[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37040-37042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12760]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 3

RIN 2900-AM09


Presumptions of Service Connection for Diseases Associated With 
Service Involving Detention or Internment as a Prisoner of War

AGENCY: Department of Veterans Affairs.

ACTION: Affirmation of interim final rule as final rule.

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SUMMARY: This document affirms as final, without change, an interim 
final rule that established presumptions of service connection for 
atherosclerotic heart disease, hypertensive vascular disease, and 
stroke in former prisoners of war; set forth guidelines to govern 
future actions by the Department of Veterans Affairs (VA) to establish 
presumptions of service connection for other diseases associated with 
service involving detention or internment as a prisoner of war; and 
revised VA's regulations to conform to statutory changes made by the 
Veterans Benefits Act of 2003.

DATES: The interim final rule became effective on October 7, 2004.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
Compensation and Pension Service, Policy and Regulations Staff, 
Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, 
DC 20420, (202) 273-7232.

SUPPLEMENTARY INFORMATION:

Background

    In a document published in the Federal Register on October 7, 2004 
(69 FR 60083), VA issued an interim final rule that set forth 
guidelines to govern VA's determinations as to whether presumptions of 
service connection are warranted for any disease based on a finding 
that the disease may be associated with service involving detention or 
internment as a prisoner of war (POW). The interim final rule also 
established presumptions of service connection, pursuant to those 
guidelines, for atherosclerotic heart disease, hypertensive vascular 
disease, stroke, and their complications in former POWs. Finally, the 
interim final rule revised VA's regulations to reflect statutory 
changes made by section 201 of the Veterans Benefits Act of 2003, 
Public Law No. 108-183, which revised 38 U.S.C. 1112(b) to remove, for 
certain POW presumptive diseases, the previous requirement that the 
former POW must have been detained or interned for at least 30 days in 
order to qualify for the presumption. We solicited public comments on 
the interim final rule and we received comments from one individual.
    In the October 7, 2004, Federal Register notice, we explained that 
VA generally employs evidentiary presumptions of service connection to 
assist claimants who face unusually difficult evidentiary burdens in 
demonstrating entitlement to VA

[[Page 37041]]

disability and death benefits, due to circumstances such as the 
complexity of the medical issues involved in the claim or the lack of 
contemporaneous medical records during periods of service. We explained 
that Congress had previously established guidelines for determining 
whether new presumptions of service connection are warranted for 
disabilities associated with certain hazards of service, but had not 
established any guidelines for determining whether presumptions were 
warranted for diseases associated with service involving detention or 
internment as a prisoner of war. Accordingly, the interim final rule 
established such guidelines in 38 CFR 1.18, which, among other things, 
states that the Secretary of Veterans Affairs may establish a 
presumption of service connection for a disease when the Secretary 
finds that there is ``limited/suggestive'' evidence that an increased 
risk of such disease is associated with service involving detention or 
internment as a POW and the association is biologically plausible.
    Applying the new guidelines in Sec.  1.18, the Secretary determined 
that presumptions of service connection were warranted for 
atherosclerotic heart disease, hypertensive vascular disease, stroke, 
and their complications based on medical evidence indicating that those 
diseases are associated with service involving detention or internment 
as a POW. Accordingly, the interim final rule revised 38 CFR 3.309(c) 
to add those diseases to the list of diseases presumed to be associated 
with such service.

Analysis of Public Comment

    We received comments from an epidemiologist with experience in 
veterans' health studies. Based on several medical studies, the 
commenter states that veterans who have a long-term history of post-
traumatic stress disorder (PTSD) have a high risk of developing 
cardiovascular disease and myocardial infarction, particularly if such 
veterans suffer from other major psychiatric disorders or inflammatory 
diseases in addition to PTSD. The commenter states that, because former 
POWs have a relatively high rate of PTSD incurrence, they would 
presumably have an increased risk of cardiovascular disease. As noted 
above, the interim final rule established presumptions of service 
connection for atherosclerotic heart disease, hypertensive vascular 
disease, and their complications, including myocardial infarction, in 
former POWs. This action was based on the Secretary's determination 
that there was at least limited/suggestive evidence of an association 
between cardiovascular disease and POW experience and that such an 
association is biologically plausible. We noted that medical studies 
had detected an increased risk of cardiovascular disease among former 
POWs. We further noted that the evidence of an association between PTSD 
and cardiovascular disease lends support to our conclusion that 
cardiovascular disease is associated with POW experience. Accordingly, 
we believe the commenter's statement that former POWs have a higher 
risk of cardiovascular disease is consistent with our interim final 
rule.
    To the extent the comment might be viewed as suggesting that we 
should use the term ``cardiovascular disease'' rather than the terms 
``atherosclerotic heart disease'' and ``hypertensive vascular disease'' 
to describe the presumptive diseases, we make no change based on that 
comment. As explained in our October 7, 2004, Federal Register notice, 
the terms ``atherosclerotic heart disease'' and ``hypertensive vascular 
disease'' are broad terms encompassing a wide variety of cardiovascular 
diseases that may be described by more specific diagnoses in individual 
cases. We have concluded that those terms are sufficiently broad to 
cover the cardiovascular diseases for which there is evidence 
suggestive of an association with POW experience and, moreover, for 
which there is a biologically plausible relationship to circumstances 
of POW experience such as malnutrition and stress. We do not have 
sufficient evidence at this time to conclude that there is a 
sufficiently demonstrated and biologically plausible association 
between POW experience and certain other types of cardiovascular 
disease such as those of viral or bacterial origin. Accordingly, we 
believe that the term ``atherosclerotic heart disease'' most aptly 
describes the range of heart diseases for which current medical 
evidence supports a presumption of service connection, and that the 
term ``hypertensive vascular disease'' most aptly describes the range 
of peripheral vascular diseases for which current medical evidence 
supports a presumption of service connection.
    The commenter also states that veterans with chronic PTSD have been 
found to have a significant risk of developing autoimmune diseases, 
such as rheumatoid arthritis, psoriasis, insulin-dependent diabetes, 
and hypothyroidism, and asserts that former POWs are therefore likely 
to have a higher risk of autoimmune diseases. We make no change based 
on this comment because it involves matters beyond the scope of the 
interim final rule. Although the interim final rule established 
presumptions of service connection for certain diseases, it should not 
be construed to reflect a determination by VA concerning the strength 
of any evidence that may exist for a possible association between other 
diseases, such as autoimmune diseases, and POW experience. In order to 
ensure the prompt delivery of benefits to the aging POW population, VA 
necessarily focused on certain diseases for which it was aware of the 
compelling evidence of an association with POW service. The issue of 
whether presumptions may be established for other specific diseases is 
beyond the scope of this final rule. However, the purpose of 
establishing guidelines in new Sec.  1.18 was to provide a framework 
for VA, on an ongoing basis, to evaluate scientific and medical 
evidence pertaining to diseases possibly associated with POW experience 
as well as policy issues pertaining to the need for particular 
presumptions. Accordingly, evidence such as that cited by the commenter 
with respect to autoimmune diseases may be the subject of subsequent 
review and deliberation under the newly established guidelines.
    We note further that existing VA regulations may provide a basis 
for granting service connection to former POWs who incur autoimmune 
diseases as a result of PTSD. Currently, 38 CFR 3.309(c) establishes a 
presumption of service connection for anxiety disorders, including 
PTSD, in former POWs. A separate regulation at 38 CFR 3.310 provides 
that service connection may be granted for any disability arising as a 
proximate result of a service-connected condition. Pursuant to those 
regulations, a former POW who has PTSD may be able to establish service 
connection for an autoimmune disease if medical evidence shows that the 
veteran's disease proximately resulted from the veteran's PTSD.

Administrative Procedure Act

    In the October 7, 2004, Federal Register notice, we determined that 
there was a basis under the Administrative Procedure Act for issuing 
the interim final rule with immediate effect. We invited and received 
public comment on the interim final rule. This document merely affirms 
the interim final rule as a final rule without change.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 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

[[Page 37042]]

an expenditure by State, local, or tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
annually for inflation) in any given year. This rule will have no such 
effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

    This document contains no new collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of 
Management and Budget (OMB) previously has approved the VA application 
forms governing claims for benefits based on service-connected 
disability or death. Those forms specify the requirements for 
submitting information and evidence in support of such claims and would 
govern any claims for benefits based on the presumptions established by 
this rule. By establishing presumptions of service connection, this 
rule will relieve some claimants of the need to submit evidence 
directly establishing that a cardiovascular disease was incurred in or 
aggravated by service. The OMB approval numbers for the relevant 
information collections are 2900-0001 (VA Form 21-526, Veterans' 
Application for Compensation and/or Pension); 2900-0004 (VA Form 21-
534, Application for DIC, Death Compensation, and Accrued Benefits by a 
Surviving Spouse or Child); and 2900-0005 (VA Form 21-535, Application 
for DIC by Parent(s)).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory action 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. The reason for this certification is that these 
amendments will not directly affect any small entities. Only VA 
beneficiaries and their survivors will be directly affected.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers are 
64.109, Veterans Compensation for Services-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

List of Subjects

38 CFR Part 1

    Administrative practice and procedure, Claims.

38 CFR Part 3

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

    Approved: May 10, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.

0
Accordingly, the interim final rule amending 38 CFR parts 1 and 3 which 
was published at 69 FR 60083 is adopted as a final rule without change.

[FR Doc. 05-12760 Filed 6-27-05; 8:45 am]
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