[Federal Register Volume 68, Number 27 (Monday, February 10, 2003)]
[Proposed Rules]
[Pages 6679-6680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3175]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL36


Presumption of Service Connection for Cirrhosis of the Liver in 
Former Prisoners of War

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations concerning presumptive service connection for 
certain diseases. The proposed amendment would add cirrhosis of the 
liver to the list of diseases for which entitlement to service 
connection is presumed for former prisoners of war (POWs). The intended 
effect is to make it easier for former POWs to obtain compensation for 
cirrhosis based on scientific and medical research showing a 
significantly higher risk of death from cirrhosis in former World War 
II POWs than in the general population.

DATES: Comments must be received on or before April 11, 2003.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Room 1154, 810 Vermont Ave., NW., 
Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail 
comments to [email protected]. Comments should indicate that 
they are submitted in response to ``RIN 2900-AL36.'' All comments 
received will be available for public inspection in the Office of 
Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30 
p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Beth McCoy, Consultant, Regulations 
Staff, Compensation and Pension Service (211A), Veterans Benefits 
Administration, Department of Veterans Affairs, 111 W. Huron Street, 
Room 22, Buffalo, NY 14202, (716) 551-4842.

SUPPLEMENTARY INFORMATION: Section 1112(b) of title 38, United States 
Code, designates 15 diseases considered to have been incurred in or 
aggravated during active duty service by former POWs detained or 
interned for at least 30 days, even though there is no record of such 
diseases during the period of service. Each listed disease must have 
become manifest to a degree of 10 percent or more after active duty 
service. VA implemented the provisions of 38 U.S.C. 1112(b) at 38 CFR 
3.309(c). Former POWs are entitled to service connection for any of the 
15 listed

[[Page 6680]]

diseases, even though there is no record of the disease during service, 
if it becomes manifest to a degree of 10 percent or more any time after 
discharge from active military, naval, or air service.
    Presumptions of service connection under Sec.  3.309 (c) are 
rebuttable under the provisions of Sec.  3.307(d), which states that 
the presumption of service connection for a disease under Sec.  3.309 
may be rebutted by competent evidence. The presumption of service 
connection may be rebutted with affirmative evidence that the disease 
was not incurred in service based on sound medical reasoning and 
consideration of all evidence of record.
    In October 2000, the Institute of Medicine (IOM) published results 
of a study that found a significantly higher risk of cirrhosis among 
former World War II POWs compared with control groups. POWs held in the 
Pacific and European theaters had roughly 1.5 times the risk of death 
due to cirrhosis compared to non-POW controls. (Page WF, Miller R: 
Cirrhosis Mortality among Former American Prisoners of War of World War 
II and the Korean Conflict: Results of a 50-year Follow-up. Military 
Medicine 2000; 165: 781-785.) Cirrhosis mortality was not found to be 
associated with any differences in levels of alcohol consumption among 
World War II and Korean POWs and Korean controls, which were similar to 
those among U.S. males. Therefore, it appears that alcohol consumption 
does not provide an explanation for the higher mortality rates 
identified in POWs.
    IOM initially conducted a 30-year follow-up of American POWs of 
World War II and the Korean Conflict. (Nefzger MD: Follow-up of World 
War II and Korean prisoners. I. Study plan and mortality findings. Am J 
Epidemiology 1970; 91: 123-38.) Sampling began in the early 1950s of 
three groups of POWs (WWII Pacific theater prisoners, WWII European 
theater prisoners, and Korean conflict prisoners) along with sampling 
of non-POW military veteran controls. In the 30-year study, IOM found 
evidence of increased mortality from cirrhosis in American former POWs 
compared to the U.S. general population.
    In the 2000 IOM study, the authors used federal records, primarily 
from VA and the Social Security Administration, to extend the follow-up 
to 50 years with similar results. Cirrhosis Mortality, 165 Military 
Medicine at 781. By crosschecking federal records, they estimate that 
their mortality statistics are 99.6 percent complete. Id. Furthermore, 
the design of their study not only allowed them to compare World War II 
and Korean POW mortality with that of the U.S. general population, but 
also permitted a direct comparison of POW mortality with that of non-
POW military veteran controls. Id. at 782. The purpose was to avoid 
biases inherent in a general population comparison attributable to the 
general fitness of military veterans. Id.
    The results of the 2000 IOM study are consistent with earlier 
studies. In 1999, a mortality follow-up of POWs held in the Far East 
found that British POWs had a higher mortality rate from diseases of 
the liver, including chronic liver disease and cirrhosis, than the 
general population. (Gale CR, Braidwood EA, Winter PD, Martyn CN: 
Mortality from Parkinson's disease and other causes in men who were 
prisoners of war in the Far East. Lancet 1999; 354: 2116-8.) Also, a 
1968 mortality study of Australian World War II POWs taken prisoner 
after the fall of Singapore revealed twice as many deaths from 
cirrhosis as those expected during the period from 1951 to 1963. (Freed 
G, Stringer PB: Comparative Mortality Experience 1946-1963 among 
Australian prisoners of war of the Japanese. Aust Repat Med Dept Bull 
1968; 150: 378-382.)
    The Secretary believes that the research cited above constitutes 
sound scientific evidence supporting the conclusion that an association 
exists between cirrhosis and POW status. The 2000 IOM study indicates a 
``significantly higher risk of cirrhosis'' for World War II POWs only; 
however, World War II POWs comprise 93 percent of the estimated 46,417 
living POWs from the last five conflicts in which the United States was 
involved. The Secretary has therefore determined that it is appropriate 
to add cirrhosis of the liver to the list of diseases in Sec.  3.309(c) 
for which VA presumes service connection in all former POWs interned or 
detained for at least 30 days.

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. 3501-3521).

Executive Order 12866

    This regulatory amendment has been reviewed by the Office of 
Management and Budget under the provisions of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993.

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 this 
amendment would 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 
regulatory flexibility analysis requirements of sections 603 and 604.
    The Catalog of Federal Domestic Assistance number is 64.109.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: November 12, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 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 continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


Sec. 3.309  [Amended]

    2. Section 3.309(c) is amended by adding ``Cirrhosis of the 
liver.'' following ``Peripheral neuropathy except where directly 
related to infectious causes.'' and before the explanatory note.

[FR Doc. 03-3175 Filed 2-7-03; 8:45 am]
BILLING CODE 8320-01-U