[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56614-56615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28158]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AK98
Extension of the Presumptive Period for Compensation for Gulf War
Veterans' Undiagnosed Illnesses
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulations regarding compensation for disabilities
resulting from undiagnosed illnesses suffered by Persian Gulf War
veterans. This amendment is necessary to extend the period within which
such disabilities must become manifest to a compensable degree in order
for entitlement for compensation to be established. The intended effect
of this amendment is to ensure that veterans with compensable
disabilities due to undiagnosed illnesses that may be related to active
service in the Southwest Asia theater of operations during the Persian
Gulf War may qualify for benefits.
DATES: Effective date: November 9, 2001. Comment date: Comments must be
received by VA on or before January 8, 2002.
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 electronic mail (e-mail) comments to
[email protected]. Comments should indicate that they are
submitted in response to ``RIN 2900-AK98.'' All written comments
received will be available for public inspection at the above address
in the Office of Regulations Management, Room 1158, between the hours
of 8 a.m. and 4 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Randy A. McKevitt, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7138.
SUPPLEMENTARY INFORMATION: In response to the needs and concerns of
veterans of the Persian Gulf War (Gulf War), Congress enacted the
``Persian Gulf War Veterans'' Benefits Act,'' Title I of the
``Veterans'' Benefits Improvements Act of 1994,'' Pub. L.
[[Page 56615]]
103-446. That statute added a new section 1117 to title 38, United
States Code, authorizing the Secretary of Veterans Affairs to
compensate a Gulf War veteran suffering from a chronic disability
resulting from an undiagnosed illness or combination of undiagnosed
illnesses that became manifest either during active duty in the
Southwest Asia theater of operations during the Gulf War or to a degree
of 10 percent or more within a presumptive period, as determined by the
Secretary, following service in the Southwest Asia theater of
operations during the Gulf War. The statute specified that, in
establishing a presumptive period, the Secretary should review any
credible scientific or medical evidence, the historical treatment
afforded other diseases for which service connection is presumed, and
other pertinent circumstances regarding the experience of Gulf War
veterans.
In the Federal Register of February 3, 1995, VA published a final
rule adding a new Sec. 3.317 to title 38, Code of Federal Regulations,
to establish the regulatory framework necessary for the Secretary to
pay compensation under the authority granted by the Persian Gulf War
Veterans' Benefits Act. (See 60 FR 6660) As part of that rulemaking,
having determined that there was little or no scientific or medical
evidence at that time that would be useful in determining an
appropriate presumptive period, VA established a 2-year-post-Gulf-
service presumptive period based on the historical treatment of
disabilities for which manifestation periods had been established and
pertinent circumstances regarding the experiences of Gulf War veterans
as they were then known.
Because of concerns regarding the adequacy of the 2-year
presumptive period for undiagnosed illnesses, the Secretary determined
that the presumptive period should be extended with respect to
disabilities due to undiagnosed illnesses that become manifest through
December 31, 2001. In the Federal Register of April 29, 1997, VA
published a final rule amending 38 CFR 3.317 to implement that
determination. (See 62 FR 23138)
As required by statute, 38 U.S.C. 1118, the Institute of Medicine
(IOM) of the National Academy of Sciences conducted a review of the
available scientific literature concerning associations between
diseases and exposure in military service to selected risk factors
encountered or experienced during the Gulf War. In a report published
on September 7, 2000, the IOM noted that research was still ongoing.
They suggested additional areas of possible research and recommended
that additional studies be conducted. The IOM will be conducting
additional reviews of the scientific literature.
VA continues to receive claims for undiagnosed illnesses. As of
January 15, 2001, the number of decided undiagnosed illness claims from
veterans who served in the Southwest Asia theater of operations either
during the actual conflict or afterwards has been approximately 100 per
quarter for the previous 2 years. The number of claims decided from
those veterans who served after the end of the actual conflict during
that same 2-year period has been about 40 per quarter.
Military operations in the Southwest Asia theater of operations
continue to this date. No end date for the Gulf War has been
established by Congress or the President. (See 38 U.S.C. 101(33)) The
servicemembers who conduct military operations after December 31, 2001,
will have served in essentially the same physical conditions in which
other servicemembers served from the end of the actual conflict through
December 31, 2001. It is anticipated that servicemembers will be
serving in the Gulf region after December 31, 2001. Thus, unless the
manifestation period is extended, these individuals may be unfairly
deprived of the benefits mandated by Congress.
In light of the continuing scientific and medical inquiry into the
nature and cause of undiagnosed illnesses suffered by Gulf War
veterans, the continuing military operations in the Gulf region, and
the new claims still being received from Gulf War veterans, this
document extends the presumptive period for disabilities due to
undiagnosed illnesses that become manifest to a degree of 10 percent or
more through December 31, 2006, a period of 5 years. It is expected
that, during this period, at least two additional literature reviews
will be conducted by the IOM. By then, it is anticipated, results of
ongoing research may shed more light on disabilities resulting from
Gulf War service and serve as a guide to future policies.
We are making this amendment effective on the date of publication,
on an emergency basis, due to the pending expiration of the current
manifestation period (December 31, 2001).
The presumptive period is based primarily on the need for
completion of additional research, rather than evidence concerning the
manifestation period of undiagnosed illnesses. Although this change has
the effect of creating a longer presumptive period for Gulf War
veterans who left the Southwest Asia theater of operations in the past,
as compared to those who may be in service there at present, it still
provides an ample presumptive period (up to 5 years) for the latter
individuals. Further, future extensions of the presumptive period are
possible should they prove to be necessary for any group of veterans.
Thus, this change does not disadvantage any Gulf War veteran.
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. Only VA beneficiaries could be directly affected.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
OMB Review
This rule has been reviewed under Executive Order 12866 by the
Office of Management and Budget.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
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, Health care,
Individuals with disabilities, Pensions, Veterans, Vietnam.
Approved: October 12, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is 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.
Sec. 3.317 [Amended]
2. In Sec. 3.317, paragraph (a)(1)(i) is amended by removing
``December 31, 2001'' and adding, in its place, ``December 31, 2006''.
[FR Doc. 01-28158 Filed 11-7-01; 8:45 am]
BILLING CODE 8320-01-P