[Federal Register Volume 67, Number 17 (Friday, January 25, 2002)]
[Rules and Regulations]
[Pages 3612-3616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1839]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK64


Diseases Specific to Radiation-Exposed Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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[[Page 3613]]

SUMMARY: The Department of Veterans Affairs (VA) is amending 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 
amendment adds cancers of the bone, brain, colon, lung, and ovary to 
the list of diseases which may be presumptively service connected and 
amends 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 do not have a 
higher burden of proof than civilians exposed to ionizing radiation who 
may be entitled to compensation for these cancers under comparable 
Federal statutes.

DATES: Effective Date: March 26, 2002.

FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff, 
Compensation and Pension Service (211A), Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, 
Washington, DC 20420, telephone (202) 273-7211.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on August 8, 2001 (66 FR 41483-41485), VA proposed to amend 
its adjudication regulations concerning presumptive service connection 
for veterans who participated in radiation-risk activities during 
active service. VA proposed to 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 was to ensure that 
veterans who may have been exposed to radiation during military service 
do not have a higher burden of proof than civilians exposed to ionizing 
radiation who may be entitled to compensation for these cancers under 
comparable Federal statutes.

I. Comments on the Proposed Rule

    The comment period ended October 9, 2001. We received written 
comments from the American Legion, the National Association of Atomic 
Veterans, the Honorable Patsy T. Mink (HI) and 14 individuals. Ten of 
the comments expressed support of the proposed rule.

Definition of Radiation-Risk Activity

    Current law defines ``radiation-risk activity'' for purposes of 
presuming that specified diseases are the result of radiation exposure 
during military service to mean (1) onsite participation in a test 
involving the atmospheric detonation of a nuclear device; (2) 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 (3) 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. 
(See 38 U.S.C. 1112(c)(3)(B) and 38 CFR 3.309(d)).
    As stated in the preamble to the proposed rule, recent legislation 
authorized 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. This 
includes those who worked on Amchitka Island, Alaska prior to January 
1, 1974, who were exposed to ionizing radiation in the performance of 
duty related to certain underground nuclear tests. It also includes 
certain persons who worked at gaseous diffusion plants in Paducah, 
Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee before February 1, 
1992. Our rulemaking proposed to add these exposures to the list of 
radiation-risk activities in 38 CFR 3.309(d).
    One commenter stated that VA's definition of radiation-risk 
activity, even as expanded by this rulemaking, does not cover all 
veterans exposed to radiation while in the service of their country, 
and urged VA to expand its definition to include veterans exposed to 
``residual contamination'' of nuclear tests. Another commenter urged VA 
to include veterans who may have been exposed to radiation during 
various activities involving the development, maintenance and handling 
of nuclear weapons, as well as clean up operations following nuclear 
testing. Another commenter specifically asked that VA expand the 
definition to include all military personnel who participated in the 
clean up of Enewetak Atoll from 1977 to 1980. Another commenter 
suggested that the definition of ``radiation-risk'' activity should 
include military duty at all DOE nuclear weapons development, testing, 
and manufacturing facilities.
    Congress created certain presumptions for veterans in the 
Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-
321, section 2(a), 102 Stat. 485-86 (codified as amended at 38 U.S.C. 
1112(c)). Congress has also created presumptions for certain civilians 
in the Radiation Exposure Compensation Act (RECA), Pub. L. 101-426, 104 
Stat. 920 (1990) (codified as amended at 42 U.S.C. 2210 note), the RECA 
Amendments of 2000, Public Law 106-245, section 3, 114 Stat. 501, 502, 
and title XXXVI of the Energy Employees Occupational Illness 
Compensation Program Act of 2000, Public Law 106-398, 114 Stat. 1654A-
1232. Under the Energy Employees Occupational Illness Compensation 
Program Act of 2000, if a member of the Special Exposure Cohort 
develops a ``specified'' cancer after beginning employment at a DOE 
facility 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 burden of proof for the 
Special Exposure Cohort is similar to that under 38 CFR 3.309(d). 
Congress has not created any presumptions for veterans or civilians 
based on ``residual contamination'' of nuclear tests, service at 
Enewetak Atoll, or any of the other types of duties suggested by the 
commenters.
    This rulemaking was only intended to ensure that veterans who may 
have been exposed to radiation during military service do not have a 
higher burden of proof than civilians exposed to ionizing radiation who 
may be entitled to compensation for these cancers under comparable 
Federal statutes. We proposed to expand the definition of radiation-
risk activity in Sec. 3.309(d)(3)(ii) to include only the relevant 
activities listed in these civilian statutes. We therefore make no 
change based on these comments.
    One commenter noted that the ``Radiation Compensation Act of 1990'' 
was recently amended to include civilian employees assigned to DOE 
nuclear weapons-related programs who were exposed to radiation, 
beryllium or silica. The commenter also stated that veterans involved 
in these programs are effectively precluded from being compensated for 
diseases related to such duty. The commenter urged that, in order to 
achieve true equity between radiation-exposed veterans and civilians, 
VA regulations should be amended to include veterans who were exposed 
to beryllium and silica during service.
    We are aware that the RECA Amendments of 2000, Public Law 106-245, 
section (2)(A)(ii) and 3(c)(1), 114 Stat. at 501, 502, authorized 
compensation for above-ground uranium miners, millers and persons who 
transported ore and have a ``nonmalignant respiratory disease,'' which 
the statute defines as fibrosis of the lung, pulmonary fibrosis, cor 
pulmonale related to fibrosis of the

[[Page 3614]]

lung, silicosis, and pneumoconiosis. The Energy Employees Occupational 
Illness Compensation Program Act of 2000, Public Law 106-398, tit. 
xxxvi, 114 Stat. 1654A-1232, authorized compensation for employees 
exposed to beryllium in the performance of duty for a DOE contractor, 
subcontractor, beryllium vendor, or subcontractor of a vendor.
    However, under these statutes, beryllium-related diseases and 
silica-related diseases are clearly classified separately from 
radiogenic diseases. The purpose of this rulemaking is only to amend 
VA's presumptions for radiation exposure and radiogenic diseases.
    In addition, we believe that existing regulations allow a 
sufficient basis to grant service connection, on a direct basis, for 
veterans exposed to beryllium or silica during military service who 
later suffer from these diseases. For these reasons, we do not revise 
the regulation to include diseases related to beryllium or silica 
exposure in this rulemaking, and we therefore make no change based on 
these comments.

Dose Reconstruction

    One commenter stated that he opposed the current dose estimate 
requirement in 38 CFR 3.311, as being arbitrary, unreliable and 
inaccurate. Another commenter urged that VA should not rely on dose 
reconstruction estimates because they are based on lab tests, not on 
data collected at the atomic test sites. Another commenter also asked 
VA to eliminate the use of dose estimates since they are inaccurate.
    Dose reconstruction is required only under 38 CFR 3.311, which is a 
separate and distinct basis for service connection from 38 CFR 
3.309(d). The purpose of the rulemaking is only to amend VA's 
presumption for radiation exposure and radiogenic diseases (found in 
3.309(d)), which does not require a dose estimate to establish 
entitlement to service connection. Therefore, these comments are 
outside the scope of this rulemaking and we make no change based on 
these comments.

Radiogenic Diseases

    Several commenters urged VA to add certain diseases to 3.309(d)(2), 
in addition to those we proposed to add in this rulemaking. One 
commenter stated that radiation is a ``complete carcinogen'' and 
therefore we should list all cancers. Another commenter urged VA to add 
certain non-cancer diseases, such as cardiovascular disease, chronic 
hepatitis, and liver cirrhosis, which have been linked to radiation 
exposure by the Radiation Effects Research Foundation.
    The basis for enactment of the RECA Amendments of 2000 and the 
Energy Employees Occupational Illness Compensation Program Act of 2000 
was scientific data resulting from enactment of the Radiation-Exposed 
Veterans Compensation Act of 1988, Public Law 100-321, and obtained 
from the President's Advisory Committee on Human Radiation Experiments. 
Based on data from these sources, Congress authorized compensation for 
persons suffering from these cancers who lived downwind from Government 
above-ground nuclear tests, were underground uranium miners, 
participated onsite in a test involving the atmospheric detonation of a 
nuclear device, or were employed at certain locations by DOE 
contractors or subcontractors or an atomic weapons employer. We believe 
this data also supports compensation for veterans suffering from the 
same cancers, some of whom participated in the same activities as 
persons entitled to be compensated under the RECA Amendments of 2000 
and the Energy Employees Occupational Illness Compensation Program Act 
of 2000. We therefore proposed to amend 38 CFR 3.309(d)(2) to include 
the cancers for which compensation is payable under these other 
statutes.
    As explained above and in the notice of proposed rulemaking, this 
rulemaking was only intended to ensure equity between veterans who may 
have been exposed to radiation during military service and civilians 
exposed to ionizing radiation who may be entitled to compensation for 
these cancers under comparable Federal statutes, including RECA. The 
Federal statutes referenced above do not presume that the diseases that 
the commenters asked VA to add to this rulemaking are due to radiation 
exposures in civilian occupations. Therefore, veterans do not have a 
higher burden of proof than civilians do, and we are making no change 
based on this comment.

Public Laws 98-542 and 102-578

    One commenter stated that, because VA submitted a report to 
Congress containing its response to a report submitted to VA by the 
Veterans' Advisory Committee on Environmental Hazards on May 26, 1994, 
rather than December 1, 1993, as required by the Veterans' Radiation 
Exposure Amendments of 1992, Public Law 102-578, section 3, 106 Stat. 
4774, 4775, radiation exposure by naval nuclear propulsion workers, 
those involved in weapons development for the Department of Defense, 
nuclear weapons maintenance workers and handlers and others have never 
been considered under the Veterans' Dioxin and Radiation Exposure 
Compensation Standards Act, Public Law 98-542, 98 Stat. 2725 (1984), or 
the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 
100-321, 102 Stat. 485.
    This rulemaking does not involve VA's compliance with Public Law 
102-578 and these comments are outside the scope of this rulemaking. We 
therefore make no change based on these comments.

Effective Dates

    One commenter stated that the effective date for claims that VA 
previously denied but are now granted under these new regulations 
should be the date of the original claim. The commenter urged that 
veterans exposed to radiation be given the same consideration as 
veterans exposed to Agent Orange under Nehmer v. United States Veterans 
Admin., C.A. No. C-86-6160 TEH (N.D. Cal.).
    Section 5110 of title 38 United States Code and 38 CFR 3.114 
establish effective date requirements that are binding on VA. Those 
requirements limit retroactive awards to no earlier than the effective 
date of a liberalizing statute or regulation, such as this rulemaking. 
The Nehmer lawsuit and court rulings do create an exception to these 
effective date rules, but the Nehmer case is limited to only diseases 
linked to herbicide exposure under 38 CFR 3.309(e). We have no 
authority to expand the exceptions established by the Nehmer court to 
include claims filed under 3.309(d). We therefore make no change based 
on this comment.

Opposition to Proposed Rule

    One commenter asserted that it is very unlikely that any of the 
cancers developed by veterans are caused by their radiation exposure 
during military service. He stated that many of the premises contained 
in the preamble to the proposed rule are not based on valid scientific 
information. This commenter urged VA not to promulgate this proposed 
rule.
    As we explained above, the basis for enactment of the RECA 
Amendments of 2000 and the Energy Employees Occupational Illness 
Compensation Program Act of 2000 was scientific data resulting from 
enactment of the Radiation-Exposed Veterans Compensation Act of 1988, 
Public Law 100-321, and obtained from the President's Advisory 
Committee on Human Radiation Experiments. We believe this data equally 
supports adding these same cancers to the list of diseases that may be 
presumptively

[[Page 3615]]

service connected for radiation-exposed veterans, some of whom 
participated in the same activities as persons entitled to be 
compensated under the RECA Amendments of 2000 and the Energy Employees 
Occupational Illness Compensation Program Act of 2000.
    This rulemaking was only intended to ensure that veterans who may 
have been exposed to radiation during military service do not have a 
higher burden of proof than civilians exposed to ionizing radiation who 
may be entitled to compensation for these cancers under comparable 
Federal statutes, including RECA. If we do not adopt this rule, 
veterans will have a higher burden of proof than civilians do. 
Therefore, we make no change based on this comment.

Medical Benefits

    One commenter suggested that atomic veterans should be given a 
special priority for VA medical services, which should be provided 
without means testing and co-payments. The commenter also suggested 
that VA should focus on preventive measures to reduce the risk of 
cancer, appropriate medical treatment to keep atomic veterans healthy, 
and programs to educate veterans on dietary and lifestyle changes to 
prevent cancer. The commenter also suggested VA should work with 
Congress to determine if an arrangement for financial cost sharing 
between VA and Medicare is possible.
    These comments are beyond the scope of the rulemaking. Also, some 
of the comments would require an amendment to title 38, United States 
Code, which cannot be accomplished by rulemaking. We therefore make no 
changes based on these comments.

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

    We estimate that the ten-year benefits cost of this rule from 
appropriated funds will be $769 million in benefits costs. We estimate 
that during several of these years, the annual benefits costs will be 
more than $100 million. We also estimate that the ten-year cost in 
government operating expenses will be $34 million. Since we estimate 
that the adoption of the rule will have an annual effect on the economy 
of $100 million or 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.
    The Secretary has made 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 will not interfere with 
state, local or tribal governments in the exercise of their 
governmental functions.

Benefits Costs

    Over the next ten 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 approximately 10,988 of 
those disability compensation claims and approximately 5,766 of those 
DIC claims.
    We estimate that the cumulative totals of benefits awards to 
claimants over the next ten years will 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 ten years.

Administrative Costs

    Based on the administrative workload projected to result from this 
rule (discussed above), VA estimates that full time employee (FTE) 
resources devoted to processing claims in years one through ten will 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 ten years.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires , at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local or tribal governments.

Paperwork Reduction Act

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

OMB Review

    This rule is economically significant under Executive Order 12866 
and major under the Congressional Review Act. This rule has been 
reviewed by OMB.

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 will not directly affect any small entities. Only VA 
beneficiaries will 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, Veterans, Vietnam.

    Approved: December 10, 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.


    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.***

[[Page 3616]]

    (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. 02-1839 Filed 1-24-02; 8:45 am]
BILLING CODE 8320-01-P