[Federal Register Volume 65, Number 32 (Wednesday, February 16, 2000)]
[Proposed Rules]
[Pages 7807-7809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3662]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ59


Claims Based on the Effects of Tobacco Products

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) adjudication regulations governing determinations of 
whether disability or death is service-connected. The proposed changes 
appear necessary to implement a recent statutory amendment providing 
with certain exceptions that a disability or death will not be service-
connected on the basis that it resulted from injury or disease 
attributable to a veteran's use of tobacco products during service.

DATES: Comments must be received on or before April 17, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate they are submitted in response to RIN 2900-AJ59. All written 
comments will be available for public inspection at the above address 
in the Office of Regulations Management, Room 1158, between the hours 
of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Donald England, Chief, Regulations 
Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7210.

SUPPLEMENTARY INFORMATION: Section 9014(a) of the ``Internal Revenue 
Service Restructuring and Reform Act of 1998,'' Public Law 105-206, 
amended section 8202 of the ``Transportation Equity Act for the 21st 
Century,'' Public Law 105-178, by adding section 1103 to title 38, 
United States Code. Subsection (a) of section 1103 provides that ``a 
veteran's disability or death shall not be considered to have resulted 
from personal injury suffered or disease contracted in the line of duty 
in the active military, naval, or air service for purposes of this 
title on the basis that it resulted from injury or disease attributable 
to the use of tobacco products by the veteran during the veteran's 
service.''
    Subsection (b) of section 1103 provides that subsection (a) does 
not preclude service connection for disability or death that is 
otherwise shown to have been incurred or aggravated during service or 
that becomes manifest to the requisite degree of disability during any 
applicable presumptive period specified in section 1112 or 1116 of 
title 38, United States Code.
    This document proposes to amend VA regulations by adding new 
Sec. 3.300 to title 38, Code of Federal Regulations, to implement the 
provisions of 38 U.S.C. 1103. Section 3.300(a) provides that, for 
claims received by VA after June 9, 1998, a disability or death will 
not be considered service-connected on the basis that it resulted from 
injury or disease attributable to the veteran's use of tobacco products 
during service.
    Section 3.300(a) also defines ``tobacco products'' to mean 
``cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-
own tobacco.'' This definition is based on the definition of the same 
term in 26 U.S.C. 5702(c). Under the rule of statutory construction of 
statutes in pari materia, statutes which relate to the same person or 
thing or class of persons or things, or which have the same purpose or 
object, should be construed together. Further, the meaning of words in 
one statute which are capable of more than one meaning may be 
determined by referring to another statute relating to the same subject 
matter in which the same words are used. We believe that, based upon 
these rules of statutory construction, it is appropriate to define the 
term ``tobacco products'' in a manner consistent with 26 U.S.C. 
5702(c).

[[Page 7808]]

    Section 3.300(b) provides that Sec. 3.300(a) does not prohibit 
service connection for a disability or death if it resulted from a 
disease or injury otherwise shown to have been incurred or aggravated 
during service, or that became manifest to the required degree of 
disability within a period that establishes eligibility for a 
presumption of service connection under 38 CFR 3.307, 3.309, 3.313, or 
3.316, or that may be secondarily service-connected under 
Sec. 3.310(b).
    Sections 3.307 and 3.309 implement the statutory presumptions of 38 
U.S.C. 1112 and 1116, which are specifically mentioned at 38 U.S.C. 
1103(b). These sections of the statute govern the presumptions that the 
following diseases are service-connected: chronic and tropical diseases 
(section 1112(a)); diseases appearing in former prisoners of war 
(section 1112(b)); diseases appearing in radiation-exposed veterans 
(section 1112(c)); and diseases associated with exposure to certain 
herbicide agents (section 1116).
    Sections 3.313 and 3.316 are regulatory, rather than statutory, 
presumptions issued pursuant to the general rulemaking authority of the 
Secretary of Veterans Affairs. 38 U.S.C. 501(a). They govern, 
respectively, service connection for non-Hodgkins' lymphoma developing 
subsequent to service in Vietnam and service connection for diseases 
developing subsequent to exposure to mustard gas and Lewisite. Also, 
Sec. 3.310(b), a regulatory presumption, governs secondary service 
connection of ischemic heart disease and other cardiovascular disease 
as the proximate result of certain service-connected amputations of the 
lower extremities. 38 U.S.C. 1103(b) explicitly provides that nothing 
in section 1103(a) shall be construed as precluding establishment of 
service connection if disability or death resulted from a disease or 
injury otherwise shown to have been incurred or aggravated during 
service or that appeared to the required degree within a statutory 
presumptive period.
    In our view, 38 U.S.C. 1103 was not intended to affect a veteran's 
ability to establish service connection on the basis of any legal 
presumption, including regulatory presumptions authorized by 38 U.S.C. 
501(a) as well as statutory presumptions. Section 1103(a) only 
precludes establishment of service connection for a disability or death 
``on the basis that'' it resulted from injury or disease attributable 
to the veteran's use of tobacco products. We believe that section 
1103(b) was enacted as a safeguard to assure that VA did not 
misinterpret section 1103(a) as barring otherwise valid claims for 
service connection. Based on our interpretation of section 1103, new 
Sec. 3.300(b) specifies that if disability or death can be service-
connected under the regulatory presumptions of Sec. 3.310(b), 3.313, or 
3.316, a claim will not be denied on the basis of Sec. 3.300(a).
    New Sec. 3.300(c) provides that, for claims received by VA after 
June 9, 1998, a disability that is proximately due to or the result of 
an injury or disease previously service-connected on the basis of the 
veteran's use of tobacco products during service will not be service-
connected. According to current Sec. 3.310(a), ``[d]isability which is 
proximately due to or the result of a service-connected disease or 
injury shall be service connected.'' Section 3.310(a) provides for 
service connection of disability not itself incurred or aggravated in 
service but nevertheless resulting from a disease or injury incurred or 
aggravated in service. Just as with directly service-connected 
disabilities, secondarily service-connected disabilities are the result 
of service-incurred or service-aggravated injury or disease, only they 
are somewhat more remotely related to such disease or injury. When a 
disability is proximately due to or the result of an injury or disease 
previously service-connected on the basis of the veteran's use of 
tobacco products during service, the secondary condition results from a 
disease or injury attributable to the use of tobacco products. 
Consequently, service connection of such a condition is barred by 38 
U.S.C. 1103(a). New Sec. 3.300(c) therefore provides that secondary 
service connection may not be established under Sec. 3.310(a) in a 
claim received by VA after June 9, 1998, for a disability proximately 
due to or the result of an injury or disease previously service-
connected on the basis that it is attributable to a veteran's tobacco 
use during service. Under Sec. 3.300(c), a condition cannot be service-
connected under Sec. 3.310(a) as secondary to a disease such as 
nicotine dependence, for example, that was previously service-connected 
solely on the basis that it resulted from the veteran's use of tobacco 
products during service. We also propose to amend Sec. 3.310(a) to make 
explicit that it is subject to the provisions of Sec. 3.300(c).
    Section 8202 of Public Law 105-178, as amended (38 U.S.C. 1103 
note), provides that 38 U.S.C. 1103 shall apply to claims received by 
VA after June 9, 1998.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is 
that the proposed rule would not directly affect any small entities. 
Only individuals could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this proposed rule is exempt from the initial and final 
regulatory flexibility analyses requirements of sections 603 and 604.
    The Catalog of Federal Domestic Assistance program numbers are 
64.109 and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: February 3, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR part 3 is 
proposed to be amended as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.

    2. Section 3.300 is added under the undesignated centerheading 
``Ratings and Evaluations; Basic Entitlement Considerations'' to read 
as follows:


Sec. 3.300  Claims based on the effects of tobacco products.

    (a) For claims received by VA after June 9, 1998, a disability or 
death will not be considered service-connected on the basis that it 
resulted from injury or disease attributable to the veteran's use of 
tobacco products during service. For the purpose of this section, the 
term ``tobacco products'' means cigars, cigarettes, smokeless tobacco, 
pipe tobacco, and roll-your-own tobacco.
    (b) The provisions of paragraph (a) of this section do not prohibit 
service connection if:
    (1) The disability or death resulted from a disease or injury that 
is otherwise shown to have been incurred or aggravated during service;
    (2) The disability or death resulted from a disease or injury that 
appeared to the required degree of disability within any applicable 
presumptive period under Secs. 3.307, 3.309, 3.313, or 3.316; or

[[Page 7809]]

    (3) Secondary service connection is established for ischemic heart 
disease or other cardiovascular disease under Sec. 3.310(b).
    (c) For claims for secondary service connection received by VA 
after June 9, 1998, a disability that is proximately due to or the 
result of an injury or disease previously service-connected on the 
basis that it is attributable to the veteran's use of tobacco products 
during service will not be service-connected under Sec. 3.310(a).

(Authority: 38 U.S.C. 501(a), 1103, 1103 note)


Sec. 3.310  [Amended]

    3. In Sec. 3.310, paragraph (a) is amended by removing 
``Disability'' and adding, in its place, ``Except as provided in 
Sec. 3.300(c), disability''.

[FR Doc. 00-3662 Filed 2-15-00; 8:45 am]
BILLING CODE 8320-01-P