[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Rules and Regulations]
[Pages 57072-57074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26580]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN05


Presumption of Service Connection for Amyotrophic Lateral 
Sclerosis

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule the interim final rule 
amending the Department of Veterans Affairs (VA) adjudication 
regulations to establish a presumption of service connection for 
amyotrophic lateral sclerosis (ALS) for any veteran who develops the 
disease at any time after separation from service. This amendment 
implements the decision by the Secretary of Veterans Affairs to 
establish such a presumption based on a November 2006 report by the 
National Academy of Sciences Institute of Medicine on the association 
between active service and ALS.

DATES: Effective Date: November 4, 2009.
    Applicability Date: This final rule shall apply to all applications 
for benefits that are received by VA on or after September 23, 2008, 
the effective date of the interim final rule, and to all applications 
for benefits that were pending before VA, the United States Court of 
Appeals for Veterans Claims, or the United States Court of Appeals for 
the Federal Circuit on that date.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9366.

SUPPLEMENTARY INFORMATION: On September 23, 2008, VA published in the 
Federal Register (73 FR 54691) an interim final rule that established 
at new Sec.  3.318 a presumption of service connection for ALS for any 
veteran who develops the disease at any time after separation from 
service.
    We provided a 60-day comment period that ended on November 24,

[[Page 57073]]

2008. We received comments from 12 members of the general public and 1 
each from the ALS Association and the American Speech-Language-Hearing 
Association (ASHA). Most of the comments from the general public came 
from family members of veterans affected by this disease, expressing 
gratitude and the belief that this decision was long overdue. Based on 
the rationale set forth in the interim final rule and this final rule, 
we adopt the provisions of the interim final rule as a final rule 
without change.

Administrative Procedure Act

    This document affirms the amendment made by the interim final rule 
that is already in effect. The Secretary of Veterans Affairs concluded 
that, under 5 U.S.C. 553(b)(3)(B) and (d)(3), there was good cause to 
dispense with advance public notice and opportunity to comment on this 
rule and good cause to publish the interim final rule with an immediate 
effective date. The interim final rule was necessary to implement 
immediately the Secretary's decision to establish a presumption of 
service connection for ALS for veterans with that diagnosis. Delay in 
the implementation of this presumption would have been contrary to the 
public interest.
    Because the survival period for persons suffering from ALS is 
generally 5 years or less from the onset of symptoms, any delay would 
have been extremely detrimental to veterans who are currently afflicted 
with ALS. Veterans with ALS may not be taking alleviating medications, 
participating in muscle and speech therapy, or receiving proper 
assistance for daily functions due to financial hardship or their lack 
of having service-connected status for their disability. Moreover, in 
all likelihood, some veterans would have died from this rapidly 
progressive disease during a period for prior public comment. These 
veterans obviously would not have received any benefit from a 
presumption that is implemented after a public-comment period.
    In order to benefit veterans currently suffering from ALS as 
quickly as possible, it was critical that VA established this 
presumption immediately.

Conditions for Presumptive Service Connection

    The ALS Association expressed support for this regulation and 
stated its belief that 90 continuous days of service in the military 
and a diagnosis of ALS are sufficient to establish presumptive service 
connection for that disease. New Sec.  3.318 generally establishes 
presumptive service connection for ALS if a veteran had at least 90 
continuous days of active military, naval, or air service and developed 
ALS at any time after separation from such service. We made no changes 
based on this comment.

Exceptions to the Presumption of Service Connection

    The ALS Association was concerned that the presumption of service 
connection for ALS would not apply ``when there is affirmative evidence 
that ALS was not caused by military service or was caused by a 
veteran's own willful misconduct.'' However, it conceded that there is 
``very little likelihood that either of those standards will be met 
with regard to any particular claim,'' as we stated in the 
supplementary information of the interim final rule. We made no changes 
based on this comment.

Outreach Services

    We received several comments about VA contacting family survivors 
of affected veterans concerning new Sec.  3.318, increasing awareness 
of ALS, and performing research regarding the disease. VA is taking 
steps to inform both veterans with ALS and family survivors of veterans 
with ALS about this regulation and realizes the importance of all of 
these issues. These issues, however, are beyond the scope of this 
rulemaking. We made no changes based on these comments.

Eligibility for Survivor Benefits

    We received comments concerning the availability of survivor 
benefits to survivors of veterans who died from ALS before the 
effective date of the interim final rule. A veteran's survivor who 
establishes that the veteran died from ALS before September 23, 2008, 
may be eligible for dependency and indemnity compensation pursuant to 
new Sec.  3.318, but would not be entitled to any retroactive benefits 
before September 23, 2008 (see discussion below). The laws concerning 
survivor benefits, however, are not specifically addressed by this 
rulemaking. For information about such benefits, those who are 
interested may call VA for assistance at 1-888-GIBILL1 (442-4551) for 
education benefits, or at 1-800-827-1000 for all other VA benefits. 
They may also contact VA on the Internet at http://www.gibill.va.gov 
for education claims or at https://iris.va.gov for other information. 
We made no changes based on these comments.

Expedited Claims

    The ALS Association recommended that VA consider adopting formal 
processes for expediting claims for veterans with ALS because of the 
rapidly progressive and terminal nature of the disease. VA is aware of 
the need for expediting claims for ALS and has taken steps to assure 
that this happens. However, this issue is beyond the scope of this 
rulemaking. We made no changes based on this comment.

Use of Assistive Technology

    ASHA commented that it ``strongly supports this presumption'' and 
that this presumption would help veterans with ALS receive necessary 
treatment, such as the use of a speech-generating device. We note that 
VA already provides assistive technological devices to veterans to help 
them overcome challenges they face in coping with various diseases. 
Issues relating to treatment, however, are not part of this rulemaking. 
We made no changes based on this comment.

Effective Date of Benefits

    Several commenters urged VA to provide benefits for awards based on 
new Sec.  3.318 retroactive to the date of claim, even if the claim was 
originally filed and/or denied before September 23, 2008, the effective 
date of the interim final rule. New Sec.  3.318 is applicable 
prospectively to claims filed on or after September 23, 2008, and to 
all applications for benefits that were pending before VA, the United 
States Court of Appeals for Veterans Claims, or the United States Court 
of Appeals for the Federal Circuit on that date. Under 38 U.S.C. 
5110(g), the effective date of any award of disability compensation or 
dependency and indemnity compensation made pursuant to new Sec.  3.318 
will be assigned in accordance with the facts found but cannot be 
earlier than the effective date of the interim final rule or the date 
one year prior to the date of application, whichever is later. VA 
therefore cannot assign an effective date prior to September 23, 2008, 
for an award of benefits made pursuant to new Sec.  3.318. We made no 
changes based on this comment.

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 given year. This rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

[[Page 57074]]

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, 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 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 entitlement 
recipients; 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, interagency, budgetary, legal, and 
policy implications of this final rule and has concluded that it is a 
significant regulatory action under Executive Order 12866 because it is 
likely to result in a rule that may raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order.

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. The rule could affect only VA beneficiaries and will not directly 
affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
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 and 
titles for this rule are as follows: 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: October 9, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

PART 3-ADJUDICATION

0
Accordingly, the interim rule amending 38 CFR part 3 which was 
published at 73 FR 54691 on September 23, 2008, is adopted as a final 
rule without change.

[FR Doc. E9-26580 Filed 11-3-09; 8:45 am]
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