[Federal Register Volume 72, Number 233 (Wednesday, December 5, 2007)]
[Rules and Regulations]
[Pages 68507-68508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23545]



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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: Final rule.

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SUMMARY: This document affirms an amendment to the Department of 
Veterans Affairs (VA) adjudication regulation regarding compensation 
for 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: December 5, 2007.

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-7210. (This is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: 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 at 38 U.S.C. 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 degree of 10 percent or more during a 
presumptive period determined by the Secretary. Section 1117 directs 
the Secretary to prescribe by regulation the 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. On December 18, 2006, we published 
an interim final rule extending the presumptive period in 38 CFR 3.317 
to December 31, 2011 (71 FR 75669). We provided a 60-day comment period 
that ended February 16, 2007.
    We received one comment from a concerned individual and one comment 
from The American Legion. The individual commented that it was 
important to acknowledge an undiagnosed illness as a real medical 
condition. We will make no change based on this comment. We note that 
both statute and regulation authorize payment of compensation for 
specific disabilities resulting from undiagnosed illnesses, thus 
recognizing the existence of undiagnosed illnesses for purposes of VA 
benefits. Moreover, we believe that the extension of the presumptive 
period and other existing regulations regarding disabilities and 
illnesses related to the Gulf War will continue to ensure that veterans 
with compensable disabilities due to undiagnosed illnesses that may be 
related to active service in the Southwest Asia theater of operations 
during the Persian Gulf War may qualify for benefits.
    The American Legion commented that, because military operations 
continue in the Persian Gulf, research into Gulf War illnesses remains 
ongoing, and VA continues to receive disability claims for disabilities 
due to undiagnosed illnesses, the presumptive period should be extended 
indefinitely, not just to December 31, 2011. We will make no change 
based on this comment. Section 102(7) of the Persian Gulf War Veterans' 
Benefits Act states Congress' finding that further research must be 
undertaken to determine the causes of Gulf War veterans illnesses and 
that ``pending the outcome of such research, veterans who are seriously 
ill as the result of such illnesses should be given the benefit of the 
doubt and be provided compensation to offset the impairment in earning 
capacities they may be experiencing.'' In 38 U.S.C. 1118, Congress has 
prescribed an ongoing process for investigating the nature and causes 
of Gulf War veterans' illnesses and for prescribing presumptions of 
service connection for specific conditions associated with Gulf War 
service. The statutory scheme reflects the hope that further research 
and the procedures mandated by section 1118 may eventually diminish the 
need for the presumptions in section 1117. Accordingly, we believe that 
extending the presumptive period for a significant, but not indefinite 
period to permit further investigation is consistent with the goals of 
this statutory scheme.
    In 38 U.S.C. 1117(b), Congress provided the Secretary with 
discretion to prescribe a presumptive period based upon, among other 
things, a review of credible medical or scientific evidence. As stated 
in the interim final rule, the Secretary is extending the presumptive 
period to December 31, 2011 in order to provide more time for 
scientific and medical research regarding diseases and illnesses that 
may be related to service in the Southwest Asia theater of operations. 
Based on the current lack of scientific certainty surrounding the cause 
of illnesses suffered by Gulf War veterans, the Secretary's decision to 
extend the presumptive period until December 31, 2011, is within the 
discretion given to him by 38 U.S.C. 1117. Before the expiration of the 
presumptive period established by this rule, the Secretary may extend 
the presumptive period further if scientific uncertainty remains 
regarding the causes of Gulf War veterans illnesses.
    We appreciate the comments submitted on the interim final rule. 
Based on the rationale set forth in the interim final rule and in this 
document, we now affirm as a final rule the amendments made by the 
interim final rule.

Administrative Procedure Act

    This document without any changes affirms amendments made by an 
interim final rule that is already in effect. Accordingly, we have 
concluded under 5 U.S.C. 553 that there is good cause for dispensing 
with a delayed effective date based on the conclusion that such 
procedure is impracticable, unnecessary, and contrary to the public 
interest.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

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 final rule would not affect any small entities. Only VA 
beneficiaries 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 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

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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.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order.

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 an 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 year. This final rule would have no such effect on State, local, 
and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.109, Veterans 
Compensation for Service-Connected Disability; and 64.110, Veterans 
Dependency and Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

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

    Approved: August 27, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
Accordingly, the interim final rule amending 38 CFR part 3 that was 
published at 71 FR 75669 on December 18, 2006, is adopted as a final 
rule without change.

 [FR Doc. E7-23545 Filed 12-4-07; 8:45 am]
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