[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81834-81836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33222]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AO09


Extension of Statutory Period for Compensation for Certain 
Disabilities Due to Undiagnosed Illnesses and Medically Unexplained 
Chronic Multi-Symptom Illnesses

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 regulation regarding 
compensation for disabilities suffered by veterans who served in the 
Southwest Asia Theater of Operations during the Persian Gulf War. This 
amendment is necessary to extend the period during which disabilities 
associated with undiagnosed illnesses and medically unexplained chronic 
multi-symptom illnesses must become manifest in order for a veteran to 
be eligible for compensation.

DATES: Effective Date: This interim final rule is effective December 
29, 2011. Comments must be received by VA on or before February 27, 
2012.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
(This is not a toll-free number). Comments should indicate that they 
are submitted in response to ``RIN 2900-AO09--Extension of Statutory 
Period for Compensation for Certain Disabilities Due to Undiagnosed 
Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses.'' 
Copies of 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) 461-4902 for an appointment. (This is not a toll-free 
number). In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Copeland, Consultant, 
Regulations Staff (211D), Compensation and Pension Service, Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue NW., Washington, DC 20420, (202) 461-9428. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: In response to the needs and concerns of 
veterans who served in the Southwest Asia theater of operations during 
the Persian Gulf War, Congress enacted the Persian Gulf War Veterans' 
Benefits Act, Title I of the Veterans' Benefits Improvement Act of 
1994, Public Law 103-446, which was codified at 38 U.S.C. 1117. This 
law provided authority for 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 ten percent or 
more disabling during a presumptive period determined by the Secretary.
    Public Law 103-446 directed the Secretary to prescribe by 
regulation the period of time, 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, taking into 
account other pertinent circumstances regarding the experiences of 
veterans of the Persian Gulf War.
    To implement 38 U.S.C. 1117, VA published a final rule to add 38 
CFR 3.317, which established the framework 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 
the inadequacy of a designated presumptive period for undiagnosed 
illnesses, the Secretary established December 31, 2001, as the date by 
which an undiagnosed illness must become manifest for purposes of 
claims based on service in the Southwest Asia theater of operations 
during the Persian Gulf War. In 2001, VA further extended the period 
from December 31, 2001, to December 31, 2006.
    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 multi-symptom illness 
(such as chronic fatigue syndrome, fibromyalgia, and irritable bowel 
syndrome) that is defined by a cluster of signs and 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 chronic disability must still occur during 
service in the Southwest Asia theater of operations during the Persian 
Gulf War, or to a degree of ten percent or more disabling during the 
prescribed presumptive period following such service. VA amended 38 CFR 
3.317 to reflect these changes. See 68 FR 34539, June 10, 2003.
    As required by Public Law 105-277, the National Academy of Sciences 
(NAS) conducts ongoing review, evaluation, and summarization of the 
scientific and medical literature for peer review regarding the 
possible association between service in the Southwest Asia theater of 
operations and long-term adverse health effects. Due to the 
inconclusive nature of the scientific and medical evidence concerning 
the manifestation period for the subject illnesses, in December 2007, 
VA published a final rule to further extend the manifestation period 
from December 31, 2006 (previously extended), to December 31, 2011. See 
72 FR 68507-01. Additionally, on October 13, 2010, Congress enacted 
section 806

[[Page 81835]]

of Public Law 111-275, which directed NAS to continue to review, 
evaluate, and summarize scientific and medical literature associated 
with Persian Gulf War service and broadly expanded the time frame for 
NAS to complete this research, since military operations in the 
Southwest Asia Theater of Operations continue, including Operation 
Iraqi Freedom, and no end date for the Gulf War has been established by 
Congress. See 38 U.S.C. 101(33).
    In a report published in 2010 titled Gulf War and Health, Volume 8: 
Update of Health Effects of Serving in the Gulf War, NAS evaluated the 
available scientific and medical literature regarding the prevalence of 
chronic multi-symptom illnesses in Gulf War veterans. Consistent with 
its prior findings, NAS concluded, based on multiple studies, that 
there is sufficient evidence of an association between deployment to 
the Gulf War and chronic multi-symptom illness. NAS analyzed two 
follow-up studies that surveyed veterans who served in the Gulf War in 
1991 in order to determine whether the increased prevalence of chronic 
multi-symptom illness persisted several years after such service. One 
study, conducted 10 years after the 1991 Gulf War, involved conducting 
detailed examinations and medical histories of veterans deployed to the 
Gulf War and non-deployed veterans of the same era. The study found 
that, 10 years after the 1991 Gulf War, chronic multi-symptom illness 
was nearly twice as prevalent in veterans deployed to the Gulf War 
(present in 28.9 percent of such veterans) than in the non-deployed 
veterans (15.8 percent). The study found that the prevalence of chronic 
multi-symptom illness decreased gradually over time, but remained 
significantly elevated 10 years after service. The other follow-up 
study involved a 2005 survey of veterans deployed to the 1991 Gulf War 
and their non-deployed counterparts of that era. That study found that 
36.5 percent of the deployed veterans reported experiencing symptoms of 
chronic multi-symptom illness in 2005, compared to 11.7 percent of the 
non-deployed veterans. While this report is limited in that it is based 
on self-reports, the results are statistically significant and are 
consistent with the other follow-up report.
    The currently available scientific and medical literature thus 
suggests that, while the prevalence of chronic multi-symptom illness 
may decrease over time following deployment to the Gulf War, the 
prevalence remains significantly elevated among deployed veterans more 
than a decade after deployment. At present, there is not a sufficient 
basis to identify the point, if any, at which the increased risk of 
chronic multi-symptom illness may abate. Further follow-up studies may 
provide additional information relevant to this issue in the future.
    Section 501(a) of Title 38, United States Code, provides that the 
Secretary of Veterans Affairs ``[h]as authority to prescribe all rules 
and regulations which are necessary or appropriate to carry out the 
laws administered by the Department and are consistent with those 
laws.'' Because scientific uncertainty remains as to the cause of 
illnesses suffered by Persian Gulf War veterans and the time period in 
which such veterans have an increased risk of chronic multi-symptom 
illness, and because scientific studies and NAS reviews are ongoing, in 
order to ensure that benefits established by Congress are fairly 
administered, VA is further amending 38 CFR 3.317 to extend the 
evaluation period from December 31, 2011, to December 31, 2016.

Administrative Procedures 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. Absent extension of the 
sunset date in the current regulation, VA's authority to provide 
benefits in new claims for qualifying chronic disability in Gulf War 
veterans will lapse on December 31, 2011. A lapse of such authority 
would have significant adverse impact on veterans disabled due to such 
disabilities. To avoid such impact, VA is issuing this rule as an 
interim final rule. However, VA invites public comments on this interim 
final rule and will fully consider and address any comments received.

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 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 rule would not affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), 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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this rule have been examined and it has been determined 
to be 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 year. This 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 program numbers and 
titles for this rule are: 64.109, Veterans

[[Page 81836]]

Compensation for Service-Connected Disability.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on November 28, 2011, for publication.

List of Subjects in 38 CFR Part 3

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

    Dated: December 22, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA amends 38 CFR part 3 as 
follows:

PART 3--ADJUDICATION

0
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]

0
2. In Sec.  3.317, paragraph (a)(1)(i), remove the date ``December 31, 
2011'' and add, in its place, ``December 31, 2016''.

[FR Doc. 2011-33222 Filed 12-28-11; 8:45 am]
BILLING CODE 8320-01-P