[Federal Register Volume 71, Number 242 (Monday, December 18, 2006)]
[Rules and Regulations]
[Pages 75669-75672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21531]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM47


Extension of the Presumptive Period for Compensation for Gulf War 
Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this 
interim final rule to amend its adjudication regulations regarding 
compensation for

[[Page 75670]]

disabilities resulting from undiagnosed illnesses suffered by veterans 
who served in the Persian Gulf War. This amendment is necessary to 
extend the presumptive period for qualifying chronic disabilities 
resulting from undiagnosed illnesses that must become manifest to a 
compensable degree in order that entitlement for compensation be 
established. The intended effect of this amendment is to provide 
consistency in VA adjudication policy and preserve certain rights 
afforded to Persian Gulf War veterans and ensure fairness for current 
and future Persian Gulf War veterans.

DATES: Effective Date: This interim final rule is effective December 
18, 2006. Comments must be received by VA on or before February 16, 
2007.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AM47--Extension of the Presumptive Period for Compensation for 
Gulf War Veterans.'' All comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday 
(except holidays). Please call (202) 273-9515 for an appointment. In 
addition, during the comment period, comments are available online 
through the Federal Docket Management System (FDMS).

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW., Washington, DC 20420, 
telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION:

I. Establishing a Presumptive Period

    In response to the needs and concerns of veterans of the Persian 
Gulf War (Gulf War), Congress enacted the Persian Gulf War Veterans' 
Benefits Act, title I of the Veterans' Benefits Improvements Act of 
1994, Public Law 103-446, which was codified in relevant part in title 
38, United States Code, section 1117. This law provided authority to 
the Secretary of Veterans Affairs (Secretary) to compensate Gulf War 
veterans with a chronic disability resulting from an undiagnosed 
illness that became manifest either during service on active duty in 
the Southwest Asia theater of operations during the Persian Gulf War or 
to a 10 percent degree or more during a presumptive period determined 
by the Secretary.
    Public Law 103-446 directed the Secretary to prescribe by 
regulation the period of time (presumptive period) following service in 
the Southwest Asia theater of operations determined to be appropriate 
for the manifestation of an illness warranting payment of compensation. 
It further directed that the Secretary's determination of a presumptive 
period be made only following a review of any credible medical or 
scientific evidence and the historical treatment afforded disabilities 
for which manifestation periods have been established and taking into 
account other pertinent circumstances regarding the experiences of 
veterans of the Persian Gulf War.

II. Background

    To implement 38 U.S.C. 1117, VA published a final rule adding a new 
Sec.  3.317 to title 38, Code of Federal Regulations. This regulation 
established the framework necessary for the Secretary to pay 
compensation under the authority granted by the Persian Gulf War 
Veterans' Benefits Act. See 60 FR 6660, February 3, 1995. As part of 
that rulemaking, VA established a 2-year, post-Gulf War service 
presumptive period based primarily on the historical treatment of 
disabilities for which manifestation periods have been established and 
pertinent facts known regarding service in the Southwest Asia theater 
of operations during the Persian Gulf War. VA determined that there was 
little or no scientific or medical evidence, at that time, useful in 
determining an appropriate presumptive period for undiagnosed 
illnesses.
    Due to the continuing lack of medical and scientific evidence about 
the nature and cause of the illnesses suffered by Gulf War veterans and 
consensus concerning the inadequacy of the 2-year presumptive period 
for undiagnosed illnesses, the Secretary determined the presumptive 
period should be extended to include illnesses manifest to a 10 percent 
degree not later than December 31, 2001. On April 29, 1997, VA 
published a final rule amending 38 CFR 3.317 to implement this 
decision. See 62 FR 23138.
    In 1998, Congress enacted Public Law 105-277 requiring VA to 
collaborate with the National Academy of Sciences (NAS) to review and 
evaluate available scientific evidence regarding associations between 
illnesses and exposure to hazards of Gulf War service. Section 
1603(i)(3) of Public Law 105-277 required NAS to issue reports, which 
are produced by the Institute of Medicine's (IOM) Committee on Gulf War 
and Health, every 2 years to review scientific research on Gulf War 
toxic exposures.
    In 2001, the Secretary extended the presumptive period for 
undiagnosed illnesses suffered by Persian Gulf War veterans from 
December 31, 2001, to December 31, 2006, based upon ongoing research 
that would require review by the Secretary. VA published an interim 
final rule amending 38 CFR 3.317 to extend the presumptive period to 
December 31, 2006 (an additional 5 years). See 66 FR 56614, November 9, 
2001.
    In December 2001, section 202(a) of Public Law 107-103 amended 38 
U.S.C. 1117 by revising the term ``chronic disability'' to include the 
following (or any combination of the following): (a) An undiagnosed 
illness; (b) a medically unexplained chronic multisymptom illness (such 
as chronic fatigue syndrome, fibromyalgia, and irritable bowel 
syndrome) that is defined by a cluster of signs or symptoms; or (c) any 
diagnosed illness that the Secretary determines warrants a presumption 
of service connection. The revised term, ``qualifying chronic 
disability,'' has broadened the scope of those health outcomes the 
Secretary may include under the presumption of service connection. 
Under 38 U.S.C. 1117, a qualifying chronic disability must still occur 
during service on active duty in the Armed Forces in the Southwest Asia 
theater of operations during the Persian Gulf War, or to a degree of 10 
percent or more during the presumptive period prescribed following such 
service. Accordingly, VA amended 38 CFR 3.317 to reflect these changes. 
See 68 FR 34539, June 10, 2003.

III. Current Research

    The NAS' Committee on Gulf War and Health has several meetings 
planned during 2006 in support of current research projects. One such 
research project is Physiologic, Psychologic, and Psychosocial Effects 
of Deployment Related Stress. The objective of this project is to 
comprehensively review, evaluate, and summarize the scientific and 
medical literature for peer review regarding the association between 
stress and long-term adverse health effects in the Gulf War.
    The NAS study is not limited to veterans of the Persian Gulf War 
deployments of the early 1990s but also includes veterans of current 
conflicts, such as Operation Iraqi Freedom, occurring in part, within 
the Southwest Asia theater of operations.

[[Page 75671]]

    In addition to the above-referenced report, we anticipate that the 
NAS will prepare other reports relevant to Gulf War veterans' health, 
including reports required by Public Law 105-277 to be prepared every 2 
years through October 1, 2010. These research projects have the 
potential of bringing much needed information to the Secretary 
regarding the establishment of a new, more definitive, presumptive 
period for Gulf War veterans with qualifying chronic disabilities. 
These NAS research projects have begun and are currently ongoing.
    Presently, VA continues to receive claims for qualifying chronic 
disabilities. In 2005 for example, VA received 2,241 new claims with 
diagnostic codes that would be affected by this final rule, and we 
continue to receive such claims during 2006.

Conclusion

    Currently, military operations in the Southwest Asia theater of 
operations continue, including Operation Iraqi Freedom. No end date for 
the Gulf War has been established by Congress or the President. See 38 
U.S.C. 101(33). Because scientific uncertainty remains as to the cause 
of illnesses suffered by Persian Gulf War veterans and current IOM 
research studies are incomplete, limiting entitlement to benefits 
payable under 38 U.S.C. 1117 due to the expiration of the presumptive 
period in 38 CFR 3.317 is premature. If extension of the current 
presumptive period is not implemented, servicemembers conducting 
military operations in the Southwest Asia theater of operations after 
December 31, 2006, could be substantially disadvantaged compared to 
servicemembers who previously served in the same theater of operations.
    Therefore, VA is extending the presumptive period in 38 CFR 3.317 
for qualifying chronic disabilities that become manifest to a degree of 
10 percent or more through December 31, 2011 (a period of 5 years), to 
ensure those benefits established by Congress are fairly administered.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the provisions of 5 U.S.C. 553(b)(3)(B), to publish this rule 
without prior opportunity for public comment. In light of the fast 
approaching expiration date of the current presumptive period of 
December 31, 2006, the Secretary finds delay for the purpose of 
soliciting public comment impracticable, and because expiration of this 
rule would prohibit VA's delivery of important benefits to some 
veterans of the Gulf War and Operation Iraqi Freedom, further delay 
would be contrary to public interest. For the foregoing reasons, the 
Secretary of Veterans Affairs is issuing this rule as an interim final 
rule. The Secretary will consider and address comments that are 
received on or before February 16, 2007.

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

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, 5 
U.S.C. 601-612. 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.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. VA has examined the economic, legal, and policy implications of 
this Interim final rule and has concluded that it is a significant 
regulatory action under Executive Order 12866.

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 issuing any rule that may result in the expenditure by 
State, local, and 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 would have no such effect on 
State, local, and tribal governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles are 64.100, Automobiles and Adaptive Equipment for Certain 
Disabled Veterans and Members of the Armed Forces; 64.101, Burial 
Expenses Allowance for Veterans; 64.102, Compensation for Service-
Connected Deaths for Veterans' Dependents; 64.103, Life Insurance 
for Veterans; 64.104, Pension for Non-Service-Connected Disability 
for Veterans; 64.105, Pension to Veterans Surviving Spouses, and 
Children; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death; 64.114, Veterans Housing-Guaranteed and Insured 
Loans; 64.115, Veterans Information and Assistance; 
64.116,Vocational Rehabilitation for Disabled Veterans; 64.117, 
Survivors and Dependents Educational Assistance; 64.118, Veterans 
Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans 
Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' 
Educational Assistance; 64.124, All-Volunteer Force Educational 
Assistance; 64.125, Vocational and Educational Counseling for 
Servicemembers and Veterans; 64.126, Native American Veteran Direct 
Loan Program; 64.127, Monthly Allowance for Children of Vietnam 
Veterans Born with Spina Bifida; and 64.128, Vocational Training and 
Rehabilitation for Vietnam Veterans' Children with Spina Bifida or 
Other Covered Birth Defects.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Health care, 
Individuals with disabilities, Pensions, Veterans, Vietnam.

    Approved: September 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

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For the reasons set forth in the preamble, 38 CFR part 3 is amended as 
follows:

[[Page 75672]]

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

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1. The authority citation for part 3, subpart A continues to read as 
follows:

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


Sec.  3.317  [Amended]

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2. In Sec.  3.317, paragraph (a)(1)(i) is amended by removing 
``December 31, 2006'' and adding, in its place, ``December 31, 2011''.

[FR Doc. E6-21531 Filed 12-15-06; 8:45 am]
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