[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63225-63228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25353]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final 
rule to affirm an amendment to its adjudication regulation regarding 
compensation for disabilities experienced 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. Additionally, in this final rule, VA will 
correct the adjudication section title that was amended and published 
in the Federal Register on September 29, 2010, but inadvertently 
changed to the original title.

DATES: Effective Date: This rule is effective October 16, 2012.
    Applicability Date: The provisions of this final rule shall apply 
to all applications for benefits that are or have been received by VA 
on or after December 29, 2011, or 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 December 29, 2011.

[[Page 63226]]


FOR FURTHER INFORMATION CONTACT: Nancy Copeland, Consultant, 
Regulations Staff (211D), Compensation Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-9685. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On December 29, 2011, VA published in the 
Federal Register (76 FR 81834) an interim final rule amending its 
adjudication regulation regarding compensation for disabilities 
suffered by veterans who served in the Southwest Asia Theater of 
Operations during the Persian Gulf War. In order to ensure that 
benefits established by Congress are fairly administered, VA extended 
the evaluation period in which disabilities associated with undiagnosed 
illnesses and chronic multi-symptom illnesses must become manifest in 
order for a veteran to be eligible for compensation. Accordingly, VA 
removed the date, ``December 31, 2011'' from 38 CFR 3.317(a)(1)(i) and 
added, in its place, December 31, 2016.
    Interested persons were invited to submit written comments on or 
before February 27, 2012; VA received 169 comments in response to the 
interim final rule. VA received comments from veterans service 
organizations and advocacy groups. VA also received comments and 
material from blogs and surveys established for Gulf War veterans who 
were deployed in the Southwest Asia Theater of Operations and also for 
those non-deployed during the Gulf War era. Lastly, VA received 
comments from military service members and their families.

General Comments

    VA received general comments that were not associated with 
extension of the time frame for VA to continue to evaluate undiagnosed 
illnesses and medically unexplained chronic multi-symptom illnesses in 
Persian Gulf War veterans. Some commenters asserted that undiagnosed 
illness is not fully understood even though 20 years have lapsed since 
the beginning of the Persian Gulf War. Others asserted that VA should 
revise the definition of Southwest Asia Theater of Operations or revise 
the type of service required and add medically unexplained chronic 
multi-symptom illnesses associated with different time periods. One 
commenter stated that VA examinations should be provided only by VA 
examiners and not contracted out. One commenter supported a minimum 30-
percent rating for all Persian Gulf War veterans suffering from an 
undiagnosed illness. These comments are beyond the scope of this 
rulemaking. Therefore, VA makes no changes based on these comments.

Claims Specific Comments

    VA received numerous comments from veterans regarding their 
individual claims for veterans benefits and comments from family 
members and friends in support of Gulf War veterans. These comments are 
beyond the scope of this rulemaking. Therefore, VA makes no changes 
based on these comments.

Post-9/11 [September 11, 2001] Veterans

    Several commenters asserted the need for VA to consider those 
suffering from undiagnosed and medically unexplained chronic multi-
symptom illnesses associated with the wars in Iraq, Afghanistan, and 
other Post-9/11 locations. As required by 38 U.S.C. 101(33), VA 
acknowledges that the Persian Gulf War period continues until an end 
date is established by Congress or Presidential proclamation. Section 
1117(f) of the same title provides that the term ```Persian Gulf 
veteran' means a veteran who served on active duty in the Armed Forces 
in the Southwest Asia theater of operations during the Persian Gulf 
War,'' and, as reflected in 38 CFR 3.317(e)(2), ``[t]he Southwest Asia 
theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral 
zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab 
Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, 
the Arabian Sea, the Red Sea, and the airspace above these locations.'' 
As such, VA's regulatory provisions already pertain to Post-9/11 
veterans who previously served or continue to serve in these theaters 
of operation. Further, any suggestions to expand the types of service 
to which the statute and regulation apply are beyond the scope of this 
rulemaking. Therefore, we make no changes based on these comments.

Immediate Extension of the Effective Date

    VA received comments expressing gratitude for the extension to 
December 31, 2016, and asserting that VA should extend the date 
immediately. One such commenter expressed the belief that ``this 
amendment is reasonable and effective.'' With regard to the immediate 
extension of the expiration date, the interim final rule was effective 
immediately upon its date of publication, December 29, 2011, and 
extended the manifestation period of the regulation through December 
31, 2016. This final rule merely keeps that regulation in effect. 
Accordingly, this final rule is effective upon publication.

Elimination of the Expiration Date

    The majority of commenters, some of whom thanked VA for the 
extension to December 31, 2016, asserted that VA should completely 
eliminate the expiration date. Some provided statements such as 
``undiagnosed illnesses remain difficult to identify or treat''; 
``veterans may not realize they need help until after the five-year 
extension''; the presumption for Amyotrophic Lateral Sclerosis has no 
end date; diseases affecting Vietnam veterans are still emerging 50 
years later with no end date for filing, and some Gulf War veterans are 
more ill than Vietnam veterans; ``undiagnosed and chronic multi-symptom 
illnesses cause life-long disabilities'' warranting no time 
restrictions on a veteran to seek presumptive service connection; 
``medical conditions may take decades to manifest,'' and the Persian 
Gulf War period continues under 38 U.S.C. 101(33); and the regulations 
should cover veterans of the interim war period between the Gulf War 
and the Iraq War and those ``on the ground as late as December 2011.''
    We will make no change based on these comments. 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.'' Congress contemplated an ongoing process for 
investigating the nature and causes of Gulf War veterans' illnesses. 
The statutory scheme reflects the hope that further research 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 section 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, 2016, 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

[[Page 63227]]

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 presumption period until December 
31, 2016, is within the discretion given to him by section 1117.

Extension of the Expiration Date to 2018 or 2050

    Two commenters thanked VA for extending the time frame to December 
31, 2016, but asserted that since VA publicly announced the intention 
to draft a rule extending the presumptive date by an additional 7 
years, VA should follow through by extending the date to December 31, 
2018, versus December 31, 2016, in the final rule. One of these 
comments stated that a VA Web page describing that VA intended to 
extend the date through 2018 remained publicized and called this 
``overt duplicity'' on the part of VA. The Web page information 
referred to by the commenter is not publicized at this time and was 
removed as soon as the error was noted. It appears the date publicized 
was mistaken and should have stated December 31, 2016. One commenter 
supported extending the time frame to 2050. The two previously 
established time frame extensions implemented by VA for medically 
unexplained chronic multi-symptom illnesses and undiagnosed illnesses 
that appeared in Gulf War veterans were 5-year periods. VA determined 
that it was appropriate to extend the time frame again by 5 years 
consistent with the extensions that have occurred in the past. 
Therefore, we make no change based on these comments.

Need for Further Research

    Some commenters conveyed disagreement with the apparent premise of 
scientific studies that only those serving in certain areas during the 
Gulf War era are afflicted with Gulf War Syndrome and prone to adverse 
effects and toxins of war because this premise is based on ``a flawed 
definition set by Congress in 1994.'' Commenters in this group assert 
that ill Gulf War era veterans, including those both deployed and non-
deployed, should be considered equally in regards to researching 
causative agents and treatments. Commenters asserted that non-deployed 
veterans are excluded from participation in the Gulf War Illness 
Registry and consideration of all Gulf War veterans, those deployed and 
non-deployed, would narrow the field of possible main causes down to 
causative agents and treatments, vaccines, immunizations, and 
infectious communicable diseases/biological weapons. Some commenters 
asserted the need for more time for investigation, medical and 
scientific research, and testing regarding undiagnosed and medically 
unexplained chronic multi-symptom illnesses. Others asserted the need 
for enhanced medical care for Gulf War veterans, testing for possible 
effects on offspring, and the need for VA to examine Gulf War veterans 
before VA makes a decision on an extension deadline.
    VA recognizes the need for further investigation and scientific and 
medical research until more consistent evidence is available to the 
Secretary. This rulemaking finalizes an extension of the time frame in 
which manifestations of undiagnosed illnesses and medically unexplained 
chronic multi-symptom illnesses must appear in Gulf War veterans to be 
presumed as service-connected diseases to allow time for further 
research. To the extent the comments call for specific types of 
research, they are outside the scope of this rulemaking. We, therefore, 
make no change based on these comments.

Technical Amendment

    On September 29, 2010, VA published AN24, ``Presumptions of Service 
Connection for Persian Gulf Service,'' in the Federal Register at 75 FR 
59968 and replaced the title ``Sec.  3.317 Compensation for certain 
disabilities due to undiagnosed illnesses'' with ``Sec.  3.317 
Compensation for certain disabilities occurring in Persian Gulf 
veterans.'' Subsequently, on October 7, 2010, VA published an amendment 
to the final rule which removed a provision reserving to the Secretary 
the authority for certain determinations and, inadvertently, also 
switched the title back to its original form. Therefore, in this final 
rule, VA makes a technical correction to replace the current title with 
``Sec.  3.317 Compensation for certain disabilities occurring in 
Persian Gulf veterans.''
    Based on the rationale set forth in the interim final rule and this 
document, we are adopting the provisions of the interim final rule as a 
final rule with no changes other than correction of the title of Sec.  
3.317.

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 will 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 final rule have been examined and it has been 
determined not 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 will have no such effect

[[Page 63228]]

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 number and title 
for this rule is 64.109, Veterans 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, approved this document on October 4, 2012, 
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: October 10, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    Accordingly, the interim final rule amending 38 CFR part 3 that was 
published at 76 FR 81834 on December 29, 2011, is adopted as a final 
rule with the following change:

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.


0
2. In Sec.  3.317, revise the section heading to read as follows:


Sec.  3.317  Compensation for certain disabilities occurring in Persian 
Gulf veterans.

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[FR Doc. 2012-25353 Filed 10-15-12; 8:45 am]
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