[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Rules and Regulations]
[Pages 67792-67793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28267]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL20


Service Connection by Presumption of Aggravation of a Chronic 
Preexisting Disease

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations concerning presumptive service connection to 
reflect a statutory presumption that a chronic disease that preexisted 
the veteran's entry into military service but was first manifest to a 
10-percent degree of disability within a specified period after service 
was aggravated by the veteran's military service. This amendment is 
necessary to make the regulations conform with the statute and the 
Court's decision.

DATES: Effective Date: November 7, 2002.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW., Washington, DC 20420, 
telephone (202) 273-7213.

SUPPLEMENTARY INFORMATION: Section 1112(a), 38 U.S.C., states that, ``a 
chronic disease becoming manifest to a degree of 10 percent or more 
within one year from the date of separation from such service * * * 
shall be considered to have been incurred in or aggravated by such 
service, notwithstanding there is no record of evidence of such disease 
during the period of service.''
    In the VA General Counsel Precedent Opinion 14-98 (VAOPGCPREC 14-98 
(October 2, 1998)), the General Counsel held that Section 1112(a) of 
title 38, United States Code, does not establish a presumption of 
aggravation for a chronic disease that existed prior to service but 
first became manifest to a compensable degree within the presumptive 
period following service.
    In Splane v. West, 216 F. 3d 1058 (2000), the United States Court 
of Appeals for the Federal Circuit concluded, among other things, that 
the General Counsel's interpretation of 38 U.S.C. 1112(a) was not in 
accordance with law and was therefore in excess of statutory authority. 
The Court held that 38 U.S.C. 1112(a) establishes not only a 
presumption of service incurrence for chronic diseases first manifest 
after service, but also a presumption of aggravation for chronic 
diseases that existed prior to service but first became manifest to a 
degree of disability of 10 percent or more within the presumption 
period after service. The Court vacated that portion of the General 
Counsel Precedent Opinion which interpreted 38 U.S.C. 1112(a).
    VA regulations currently prohibit establishing service connection 
for aggravation of a preexisting chronic disease that first becomes 
manifest to a degree of 10 percent or more following discharge from 
military service. This prohibition is inconsistent with the statute as 
interpreted by the United States Court of Appeals for the Federal 
Circuit. Therefore, we are amending 38 CFR 3.307(a), (c), (d), and 
3.309(a), to conform to the plain language of the statute and the 
conclusions of the Court.
    Presently, 38 CFR 3.307(a), (c), and (d) provide only for a 
presumption of service incurrence. Accordingly, it is necessary to 
revise those paragraphs to include a presumption of aggravation.
    38 CFR 3.307(d) currently states the factors to be considered in 
determining whether the presumption of service incurrence has been 
rebutted. The current regulation is based on the invalid conclusion 
that the presumption is one of service incurrence only. This provision 
is inconsistent with Splane because Splane establishes that 38 U.S.C. 
1112(a) includes a presumption of aggravation of pre-existing diseases 
that were not incurred in service. Accordingly, it is necessary to 
revise 38 CFR 3.307(d) to state separately the criteria for rebutting 
the presumption of service incurrence (in cases where the chronic 
disease did not exist prior to service) and the criteria for rebutting 
the presumption of aggravation (in cases where the chronic disease did 
exist prior to service).
    A current VA regulation, 38 CFR 3.306(a), provides that a 
presumption of aggravation based on an increase in the severity of a 
preexisting condition during service may be rebutted by evidence that 
the increase was due to

[[Page 67793]]

the natural progress of the disease. Additionally, section 1113(a) of 
title 38, United States Code, indicates that a presumption of service 
connection based on manifestations of disability subsequent to service 
may be rebutted by affirmative evidence to the contrary or evidence to 
establish that such disability is due to an intercurrent disease or 
injury suffered after separation from service. We are revising Sec.  
3.307(d) to reflect these principles. Although Splane did not discuss 
the criteria for rebutting the presumption of aggravation, we believe 
that inclusion of these rebuttal standards is necessary to the 
implementation of that decision.

Administrative Procedure Act

    Changes made by this final rule merely reflect the statutory 
requirements or the decision of the United States Court of Appeals for 
the Federal Circuit. Accordingly, there is a basis for dispensing with 
prior notice and comment and delayed effective date provisions of 5 
U.S.C. 552 and 553.

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).

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 final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This amendment would not directly affect any small entities. Only 
individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 
605(b), this final rule is exempt from the initial and final regulatory 
flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    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, Disability benefits, 
Individuals with disabilities, Pensions, Veterans.

    Approved: September 9, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs amends 38 CFR part 3 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 3.307 is amended by:
    A. In paragraph (a) introductory text, removing ``incurred in'' and 
adding, in its place, ``incurred in or aggravated by''.
    B. In paragraph (c), removing the last sentence ``The consideration 
of service incurrence provided for chronic diseases will not be 
interpreted to permit any presumption as to aggravation of a preservice 
disease or injury after discharge.''.
    C. Revising paragraph (d) and the authority citation at the end of 
the section.
    The revision reads as follows:


Sec.  3.307  Presumptive service connection for chronic, tropical or 
prisoner-of-war related disease, or disease associated with exposure to 
certain herbicide agents; wartime and service on or after January 1, 
1947.

* * * * *
    (d) Rebuttal of service incurrence or aggravation. (1) Evidence 
which may be considered in rebuttal of service incurrence of a disease 
listed in Sec.  3.309 will be any evidence of a nature usually accepted 
as competent to indicate the time of existence or inception of disease, 
and medical judgment will be exercised in making determinations 
relative to the effect of intercurrent injury or disease. The 
expression ``affirmative evidence to the contrary'' will not be taken 
to require a conclusive showing, but such showing as would, in sound 
medical reasoning and in the consideration of all evidence of record, 
support a conclusion that the disease was not incurred in service. As 
to tropical diseases the fact that the veteran had no service in a 
locality having a high incidence of the disease may be considered as 
evidence to rebut the presumption, as may residence during the period 
in question in a region where the particular disease is endemic. The 
known incubation periods of tropical diseases should be used as a 
factor in rebuttal of presumptive service connection as showing 
inception before or after service.
    (2) The presumption of aggravation provided in this section may be 
rebutted by affirmative evidence that the preexisting condition was not 
aggravated by service, which may include affirmative evidence that any 
increase in disability was due to an intercurrent disease or injury 
suffered after separation from service or evidence sufficient, under 
Sec.  3.306 of this part, to show that the increase in disability was 
due to the natural progress of the preexisting condition.

(Authority: 38 U.S.C 1113 and 1153)

Sec.  3.309  [Amended]

    3. Section 3.309(a) is amended by removing ``incurred in'' and 
adding, in its place, ``incurred in or aggravated by''.

[FR Doc. 02-28267 Filed 11-6-02; 8:45 am]
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