[Federal Register Volume 66, Number 153 (Wednesday, August 8, 2001)]
[Proposed Rules]
[Pages 41483-41485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19916]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK64


Diseases Specific to Radiation-Exposed Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its adjudication regulations concerning presumptive service connection 
for certain diseases for veterans who participated in radiation-risk 
activities during active service or while members of reserve components 
during active duty for training or inactive duty training. This 
proposed amendment would add cancers of the bone, brain, colon, lung, 
and ovary to the list of diseases which may be presumptively service 
connected and amend the definition of the term ``radiation-risk 
activity.'' The intended effect of this amendment is to ensure that 
veterans who may have been exposed to radiation during military service 
have the same burden of proof as civilians exposed to ionizing 
radiation who may be entitled to compensation for these cancers under 
comparable Federal statutes.

DATES: Comments must be received on or before October 9, 2001.

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; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK64.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff, 
Compensation and Pension Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 
20420, telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: Under the provisions of the Radiation-
Exposed Veterans Compensation Act of 1988, Pub. L. 100-321, Sec. 2(a), 
102 Stat. 485 (codified as amended at 38 U.S.C. 1112(c)), if a veteran 
who participated in a radiation-risk activity while serving on active 
duty or as a member of a reserve component while on active duty for 
training or inactive duty training subsequently develops leukemia 
(other than chronic lymphocytic leukemia), cancer of the thyroid, 
breast, pharynx, esophagus, stomach, small intestine, pancreas, gall 
bladder, bile ducts, salivary gland, or urinary tract, multiple 
myeloma, lymphomas (except Hodgkin's disease), primary cancer of the 
liver (except if cirrhosis or hepatitis B is indicated), or bronchiolo-
alveolar carcinoma, the disease is presumed to be service connected. 
Section 1112(c)(3)(B) of title 38, United States Code defines 
``radiation-risk activity'' to mean onsite participation in a test 
involving the atmospheric detonation of a nuclear device; the 
occupation of Hiroshima or Nagasaki, Japan, by United States forces 
during the period beginning on August 6, 1945, and ending on July 1, 
1946; or internment as a prisoner of war in Japan or service on active 
duty in Japan following such internment during World War II which 
resulted in an opportunity for exposure to ionizing radiation.
    The Radiation Exposure Compensation Act (RECA), Pub. L. No. 101-
426, 104 Stat. 920 (1990) (codified as amended at 42 U.S.C. 2210 note), 
authorizes compensation for certain residents of Nevada, Utah, and 
Arizona who lived downwind from the Government's above-ground nuclear 
tests, for underground uranium miners, and for persons who participated 
onsite in a test involving the atmospheric detonation of a nuclear 
device and contracted a specified disease, including all cancers 
included in 38 U.S.C. 1112(c)(2). On July 10, 2000, the President 
signed into law the RECA Amendments of 2000, Pub. L. No. 106-245, 
Sec. 3, 114 Stat. 501, 502, which expanded the definition of persons 
eligible to receive compensation to include above-ground uranium 
miners, millers and persons who transported ore. The RECA Amendments 
also expanded the list of specified diseases for which compensation is 
payable to include lung, colon, brain, and ovarian cancers. Other than 
bronchiolo-alveolar carcinoma (a rare type of lung cancer), No no 
presumption of service connection currently exists for these four 
cancers under 38 U.S.C. 1112(c).

    Note: Section 1112(c)(2) is slightly broader in that it includes 
urinary tract cancer not just bladder cancer as RECA does.

    On October 30, 2000, the President signed into law the Floyd D. 
Spence National Defense Authorization Act for FY 2001, Pub. L. No. 106-
398, 114 Stat. 1654. Title XXXVI of Pub. L. No. 106-398, the Energy 
Employees Occupational Illness Compensation Act Amendments of 2000, 
authorizes compensation and benefits for certain Department of Energy 
(DOE) employees and persons employed by DOE contractors, 
subcontractors, and vendors who were involved in DOE nuclear weapons-
related programs. Under the Act, if a member of a Special Exposure 
Cohort develops a ``specified cancer'' after beginning employment at a 
DOE facility for a DOE contractor, or at an atomic weapons facility for 
an atomic weapons contractor, the cancer is presumed to have been 
sustained in the performance of duty and is compensable. The term 
``Special Exposure Cohort'' refers to employees of DOE or DOE 
contractors or subcontractors on Amchitka Island, Alaska prior to 
January 1, 1974, who were exposed to ionizing radiation in

[[Page 41484]]

the performance of duty related to certain underground nuclear tests. 
The term also includes persons employed by DOE, DOE contractors or 
subcontractors, or an atomic weapons employer for at least 250 work 
days before February 1, 1992, at gaseous diffusion plants in Paducah, 
Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee. ``Specified 
cancers'' means a ``specified disease'' as defined by RECA as well as 
bone cancer.
    Section 501(a)(1) of title 38, United States Code, provides that 
the Secretary of Veterans Affairs has the authority to promulgate 
regulations regarding the nature and extent of proof and evidence in 
order to establish entitlement to veterans' benefits. Pursuant to this 
authority, VA proposes to amend 38 CFR 3.309(d)(2) to add bone, brain, 
colon, lung, and ovarian cancers, which are covered under the Energy 
Employees Occupational Illness Compensation Program Act or are covered 
under the RECA Amendments but are currently not included in the list of 
diseases in 38 U.S.C. 1112(c)(2) that are presumed to be service 
connected for radiation-exposed veterans. While veterans may establish 
service connection for these five cancers under 38 U.S.C. 1110 or 1131, 
or the Veterans' Dioxin and Radiation Exposure Compensation Standards 
Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984), doing so is difficult 
because, inter alia, it requires sound scientific and medical evidence 
establishing that it is at least as likely as not the veteran's disease 
resulted from exposure to radiation in service based in part on an 
assessment of the amount of radiation to which a veteran was exposed. 
38 CFR 3.311.
    VA believes that public policy and equity dictate that veterans are 
entitled to the reduced burden of proof for these five cancers 
available to persons covered under RECA and Pub. L. No. 106-398 for 
purposes of establishing that their same cancers are attributable to 
radiation to which they may have been exposed while serving our Nation. 
Congress has found that nuclear weapons testing involves ``unique 
dangers, including . . . recurring exposures to radioactive substances 
that, even in small amounts, can cause medical harm.'' Pub. L. No. 106-
398, Sec. 3602(a)(1). Congress has also found that scientific data 
resulting from the enactment of the Radiation-Exposed Veterans 
Compensation Act of 1988, Pub. L. 100-321, and obtained from the 
Committee on the Biological Effects of Ionizing Radiation and the 
President's Advisory Committee on Human Radiation Experiments, 
``provide medical validation for the extension of compensable 
radiogenic pathologies.'' RECA Amendments of 2000, Sec. 2(4), 114 Stat. 
501. Based upon these findings, Congress passed the RECA Amendments of 
2000 and the Energy Employees Occupational Illness Compensation Program 
Act of 2000. Public policy favors consistent, nationwide application of 
rules in federal benefits programs, see Butler Co. Mem'l Hosp. v. 
Heckler, 780 F.2d 352, 357 (3d Cir. 1985), and these congressional 
findings are equally applicable to veterans who participated in a 
radiation-risk activity during which they were involuntarily subjected 
to increased risk of injury and disease. Veterans should not carry a 
greater burden of proof to establish the relatedness of their cancer to 
their military service than persons covered under RECA and members of 
the Special Exposure Cohort covered under the Energy Employees Act. We 
therefore propose to amend VA's regulations at 38 CFR 3.309(b)(2) to 
add bone, lung, brain, colon, and ovarian cancer to the list of 
diseases presumed to be the result of a radiation-risk activity during 
active duty, active duty training, or inactive duty for training.
    To further ensure that veterans exposed to radiation during 
military service receive the same consideration for the risks of 
radiation exposure as the employees of DOE, DOE contractors and 
subcontractors, and atomic energy employers with whom they worked, we 
also propose to revise the definition of ``radiation-risk activity'' in 
38 CFR 3.309(d)(3)(ii) by adding service at Amchitka Island, Alaska, 
prior to January 1, 1974, if exposed to ionizing radiation in 
performance of duty related to certain underground nuclear tests. 
``Radiation-risk activity'' would also include service in which the 
service member was, as part of his or her official military duties, 
present during a total of at least 250 days before February 1, 1992, on 
the grounds of a gaseous diffusion plant located in Paducah, Kentucky, 
Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, 
Tennessee, if during such service, the veteran was monitored through 
the use of dosimetry badges for exposure at the plant of the external 
parts of the veteran's body to radiation or served in a position that 
had exposures comparable to a job that is or was monitored through the 
use of dosimetry badges. We have defined the term ``day'' as all or any 
portion of a calendar day. This definition is appropriate since 
military personnel are on duty 24 hours per day and do not always have 
a fixed, limited work shift. DOE has advised us that the facilities at 
Paducah, Kentucky, and Portsmouth, Ohio, were gaseous diffusion plants, 
while the gaseous diffusion plant at Oak Ridge, Tennessee, was 
restricted to one area of the campus identified as K25.

Compliance With the Congressional Review Act, the Regulatory 
Flexibility Act, and Executive Order 12866

    We estimate that the 10-year benefits cost of this proposed rule 
from appropriated funds would be $769 million in benefits costs. We 
estimate that during several of these years, the annual benefits costs 
would be more than $100 million. We also estimate that the 10-year cost 
in Government operating expenses would be $34 million. Since we 
estimate that the adoption of the proposed rule would have an annual 
effect on the economy of $100 million of more, the Office of Management 
and Budget has designated this rule as a major rule under the 
Congressional Review Act, 5 U.S.C. 802, and a significant regulatory 
action under Executive Order 12866, Regulatory Planning and Review. The 
following information is provided pursuant to E.O. 12866.
    As explained above, the Secretary has proposed this regulatory 
amendment to ensure that veterans exposed to radiation during military 
service receive the same consideration for the risks of this exposure 
as DOE employees, contractors, and subcontractors. There are no 
feasible alternatives to this proposed rule, since it is needed to 
provide fairness and equity for veterans and their survivors. This rule 
would not interfere with State, local, or tribal governments in the 
exercise of their governmental functions.

Benefits Costs

    Over the next 10 years, VA expects to process 91,567 service-
connected disability compensation claims (living veterans) and 48,050 
Dependency and Indemnity Compensation (DIC) claims (veterans' survivors 
claims for service connection for cause of death) filed as a result of 
this proposed rule. Historically, about 12% of all radiation related 
claims have been granted. If past experience proves a reliable 
indicator of future events, VA expects to grant 10,988 of those 
disability compensation claims and 5,766 of those DIC claims.
    We estimate that the cumulative totals of benefits awards to 
claimants over the next 10 years would be as follows: $8,040,630, 
$26,248,947, $44,265,910, $61,126,347, $76,565,137, $90,329,734, 
$102,328,198, $112,436,560, $120,555,709, and $126,704,527, for a total 
benefits cost of $768,601,698 over 10 years.

[[Page 41485]]

Administrative Costs

    Based on the administrative workload projected to result from this 
proposed rule (discussed above), VA estimates that full time employee 
(FTE) resources devoted to processing claims in years 1 through 10 
would be 77, 113, 69, 64, 51, 40, 39, 35, 35, and 33 respectively. 
Estimated Government operating expenses (GOE) costs for the next 10 
years are as follows: $3,910,578, $5,047,838, $3,584,683, $4,127,798, 
$3,419,862, $2,817,402, $2,825,825, $2,669,755, $2,780,414 and 
$2,750,142, for a total GOE cost of $33,934,297 over 10 years.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-612. The reason for this certification is that these 
amendments would not directly affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), these amendments are exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

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

    Approved: March 20, 2001.
Anthony J. Principi,
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 3.309 is amended by:
    A. Adding new paragraphs (d)(2)(xvii) through (d)(2)(xxi).
    B. Adding new paragraph (d)(3)(ii)(D).
    The additions read as follows:


Sec. 3.309  Diseases subject to presumptive service connection.

* * * * *
    (d) Diseases specific to radiation-exposed veterans. * * *
    (2) * * *
    (xvii) Cancer of the bone.
    (xviii) Cancer of the brain.
    (xix) Cancer of the colon.
    (xx) Cancer of the lung.
    (xxi) Cancer of the ovary.
    (3) * * *
    (ii) * * *
    (D)(1) Service in which the service member was, as part of his or 
her official military duties, present during a total of at least 250 
days before February 1, 1992, on the grounds of a gaseous diffusion 
plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area 
identified as K25 at Oak Ridge, Tennessee, if, during such service the 
veteran:
    (i) Was monitored for each of the 250 days of such service through 
the use of dosimetry badges for exposure at the plant of the external 
parts of veteran's body to radiation; or
    (ii) Served for each of the 250 days of such service in a position 
that had exposures comparable to a job that is or was monitored through 
the use of dosimetry badges; or
    (2) Service before January 1, 1974, on Amchitka Island, Alaska, if, 
during such service, the veteran was exposed to ionizing radiation in 
the performance of duty related to the Long Shot, Milrow, or Cannikin 
underground nuclear tests.
    (3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the 
term ``day'' refers to all or any portion of a calendar day.
* * * * *
[FR Doc. 01-19916 Filed 8-7-01; 8:45 am]
BILLING CODE 8320-01-P