[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