[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Rules and Regulations]
[Pages 6870-6871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3676]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK87


Claims Based on Exposure to Ionizing Radiation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends VA regulations governing the 
establishment of service connection for polycythemia vera due to 
radiation exposure in service. This amendment clarifies that although 
VA does not consider polycythemia vera to be a ``radiogenic disease'' 
under its adjudication regulations, a veteran is not precluded from 
claiming service connection for this condition on a direct-incurrence 
basis due to exposure to ionizing

[[Page 6871]]

radiation in service. This final rule simply reflects legislative 
changes and case law requirements.

DATES: Effective Date: February 14, 2002.

FOR FURTHER INFORMATION CONTACT: Beth McCoy, Consultant, Regulations 
Staff, Compensation and Pension Service (211A), Department of Veterans 
Affairs, 575 N. Pennsylvania St., Suite 309, Indianapolis, IN 46237, 
(317) 226-5209 extension 3058.

SUPPLEMENTARY INFORMATION: In the ``Veterans' Dioxin and Radiation 
Exposure Compensation Standards Act,'' Public Law 98-542, Congress 
concluded that VA had no specific guidelines, standards, or criteria 
for use in deciding claims for entitlement to disability benefits based 
on exposure to ionizing radiation. Thus, Congress required VA to 
undertake rulemaking to specify, among other things, which diseases 
result from exposure to ionizing radiation in service and the 
circumstances under which VA would award benefits to veterans on the 
basis of claimed radiation-related disabilities.
    The Act established the ``Veterans Advisory Committee on 
Environmental Hazards'' and required VA to consult with this Committee 
in the development of the new regulations. Section 5 of the Act 
specifically required VA to determine whether service connection could 
be granted based on exposure to ionizing radiation for the following 
diseases: soft tissue sarcoma, porphyria cutanea tarda, chloracne, 
leukemia, malignancies of the thyroid, female breast, lung, bone, liver 
and skin, and polycythemia vera. Based on the advice of the Committee, 
VA concluded that service connection can be granted for all of these 
diseases except polycythemia vera and implemented the provisions of the 
governing statute by publishing 38 CFR 3.311b.
    Although over the years VA added several conditions to the list, VA 
treated the list of radiogenic diseases in Sec. 3.311b (later 
recodified as Sec. 3.311) as an exclusive list and generally denied 
service connection based on radiation exposure for any disease not 
included on that list. However, the U.S. Court of Appeals for the 
Federal Circuit in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), held 
that Public Law 98-542 did not authorize VA to establish an exclusive 
list of radiogenic diseases for which a claimant might establish 
entitlement to direct service connection under Sec. 3.311. Following 
the Combee decision, Congress amended 38 U.S.C. 1113(b) to provide that 
nothing in section 5 of Public Law 98-542 shall be construed to prevent 
granting of service connection for any disease or disorder shown by 
sound judgment to have been incurred in or aggravated by active duty 
service.
    VA subsequently amended Sec. 3.311 (60 FR 9627, February 21, 1995) 
to permit consideration of service connection for any disease other 
than polycythemia vera if a claimant cites or submits competent 
scientific or medical evidence that the claimed disease may be induced 
by ionizing radiation.
    The list of radiogenic diseases in Sec. 3.311(b)(2) is not an 
exclusive list. The fact that VA has determined that polycythemia vera 
is not a radiogenic disease does not deprive claimants of the 
opportunity to cite or submit evidence showing that polycythemia vera 
may be induced by exposure to ionizing radiation. We are amending 
Sec. 3.311(b) to indicate that if a claimant cites or submits evidence 
showing polycythemia vera may be induced by exposure to ionizing 
radiation, VA will obtain a dose estimate, forward the claim for review 
by the Under Secretary for Benefits, and request an advisory medical 
opinion from the Under Secretary for Health under the provisions of 
Sec. 3.311.
    This final rule simply reflects legislative changes and case law 
requirements. Thus, there is a basis for dispensing with prior notice 
and comment and delayed effective date provisions of 5 U.S.C. 552 and 
553.

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

    Because no notice of proposed rule making was required in 
connection with the adoption of this final rule, no regulatory 
flexibility analysis is required under the Regulatory Flexibility Act 
(5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this 
regulatory amendment will not directly affect any small entities. 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 
flexibility analysis requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance numbers are 64.102, 
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: October 30, 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. In Sec. 3.311, paragraphs (b)(3) and (b)(4) are revised to read 
as follows:


Sec. 3.311  Claims based on exposure to ionizing radiation.

* * * * *
    (b) * * *
    (3) Public Law 98-542 requires VA to determine whether sound 
medical and scientific evidence supports establishing a rule 
identifying polycythemia vera as a radiogenic disease. VA has 
determined that sound medical and scientific evidence does not support 
including polycythemia vera on the list of known radiogenic diseases in 
this regulation. Even so, VA will consider a claim based on the 
assertion that polycythemia vera is a radiogenic disease under the 
provisions of paragraph (b)(4) of this section. (Authority: Pub. L. 98-
542, section 5(b)(2)(A)(i), (iii)).
    (4) If a claim is based on a disease other than one of those listed 
in paragraph (b)(2) of this section, VA shall nevertheless consider the 
claim under the provisions of this section provided that the claimant 
has cited or submitted competent scientific or medical evidence that 
the claimed condition is a radiogenic disease.
* * * * *
[FR Doc. 02-3676 Filed 2-13-02; 8:45 am]
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