[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71382-71384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25017]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP84


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 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 October 17, 
2016.
    Comment date: Comments must be received on or before December 16, 
2016.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue 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-AP84--Extension of the Presumptive Period for 
Compensation for Gulf War Veterans.'' Copies of comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1068, 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: Stephanie Li, Chief, Regulations Staff 
(211D), Compensation Service, Veterans Benefits Administration, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not 
a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: 

I. Background

    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 in relevant part at 38 U.S.C. 1117. This law 
provided authority for the Secretary of Veterans Affairs (Secretary) to 
compensate eligible Gulf War veterans with a chronic disability 
resulting from undiagnosed illness. That illness must have become 
manifest either during active duty service in the Southwest Asia 
theater of operations during the Persian Gulf War, or disabling to a 
degree of ten percent or more during a period determined by the 
Secretary and prescribed by regulation. The Secretary would determine 
this period after reviewing any credible medical or scientific 
evidence, the historical treatment afforded disabilities for which VA 
had established such periods, and 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 VA to pay compensation 
under the Persian Gulf War Veterans' Benefits Act. See 60 FR 6660-6666, 
Feb. 3, 1995. As part of that rulemaking, VA established a period of 
two years after Gulf War service in which VA would presume a medical 
relationship of an undiagnosed illness to that service. 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. Therefore, VA primarily based this two-year period on its 
history of establishing presumptive periods as well as the available 
facts regarding service in the Southwest Asia theater of operations 
during the Gulf War.
    The lack of medical and scientific evidence about the nature and 
cause of the illnesses suffered by Gulf War veterans continued, as did 
the uncertainty of an appropriate presumptive period for undiagnosed 
illnesses. Accordingly, VA established December 31, 2001, as the date 
by which an undiagnosed illness must become manifest. See 62 FR 23138, 
Apr. 29, 1997. In 2001, VA again extended the period to December 31, 
2006. See 66 FR 56614, Nov. 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 thereof): (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 and symptoms; or (c) any diagnosed 
illness that the Secretary determines warrants a presumption of service 
connection. The term ``qualifying chronic disability'' broadened the 
scope of those illnesses the Secretary may presume related to service. 
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 Sec.  
3.317 to reflect these changes. See 68 FR 34539, June 10, 2003.
    As required by Public Law 105-368, the National Academy of Sciences 
(NAS) reviews, evaluates, and summarizes the scientific and medical 
literature for possible association between service in the Southwest 
Asia theater of operations and long-term adverse health effects. 
Following review of such NAS reports, VA determined that the evidence 
remained inconclusive

[[Page 71383]]

regarding the time of onset of undiagnosed and other illnesses related 
to Gulf War service and, in December 2006, VA published an interim 
final rule to further extend the manifestation period from December 31, 
2006, to December 31, 2011. See 71 FR 75669, Dec. 18, 2006. 
Additionally, on October 13, 2010, Congress enacted section 806 of 
Public Law 111-275, which directed VA to extend its agreement with NAS 
created under Section 101 of Public Law 105-368 to review, evaluate, 
and summarize scientific and medical literature associated with Persian 
Gulf War service. Congress has not established an end date for the Gulf 
War as military operations in the Southwest Asia theater of operations 
continued, including Operation Iraqi Freedom. 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, available at 
http://nationalacademies.org/hmd/reports/2010/gulf-war-and-health-volume-8-health-effects-of-serving-in-the-gulf-war.aspx (last viewed 
Aug. 17, 2016), NAS evaluated the available scientific and medical 
literature regarding the prevalence of chronic multisymptom 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 
multisymptom illness. NAS analyzed two follow-up studies that surveyed 
veterans who served in the Gulf War in 1991 to determine whether the 
increased prevalence of chronic multisymptom illness persisted several 
years after such service. One study involved 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 multisymptom illness was nearly twice as prevalent in 
veterans deployed to the Gulf War than in the non-deployed veterans 
(28.9 percent compared to 15.8 percent). The study found that the 
prevalence of chronic multisymptom 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 multisymptom illness in 2005, compared 
to 11.7 percent of the non-deployed veterans. While this report is 
based on self-reports, the results are statistically significant and 
are consistent with the other follow-up report.
    The scientific and medical literature surveyed by NAS in 2010 thus 
suggested that, while the prevalence of chronic multisymptom illness 
may decrease over time following deployment to the Gulf War, the 
prevalence remained significantly elevated among deployed veterans more 
than a decade after deployment. As military operations in the Southwest 
Asia theater of operations had not ended and scientific and medical 
evidence failed to identify the manifestation period for associated 
illnesses, VA again published a rule amending 38 CFR 3.317(b) to extend 
the presumptive period from December 31, 2011, to December 31, 2016. 
See 76 FR 81834, Dec. 29, 2011.

II. Current Research

    In a report published earlier this year, NAS continued to conclude 
that there is sufficient evidence of association between Gulf War 
deployment and the constellation of chronic symptoms known as Gulf War 
illness. Gulf War and Health, Volume 10: Update of Health Effects of 
Serving in the Gulf War, available at http://nationalacademies.org/hmd/Reports/2016/Gulf-War-and-Health-Volume-10.aspx (last viewed Aug. 17, 
2016). At present, there is insufficient basis to identify the point, 
if any, at which the increased risk of chronic multisymptom illness may 
abate. NAS has concluded that as of its Volume 10 publication date, 
there are no reliable or validated biomarkers of exposure or symptoms 
to substantiate the etiology or mechanisms of the illness. NAS further 
noted that studies looking for biomarkers of Gulf War illness face many 
methodological problems irrespective of the approach or technology 
used. Although follow-up studies in the future may provide additional 
information, there is no medical or scientific basis to support the 
current deadline for manifestation.

III. Extension of Current Deadline

    Currently, military operations in the Southwest Asia theater of 
operations continue. 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 and time of onset 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(a)(1)(i) is premature. If extension of the current presumptive 
period is not implemented, servicemembers whose conditions manifest 
after December 31, 2016, would be substantially disadvantaged compared 
to servicemembers whose conditions manifested at an earlier date.
    Therefore, VA is extending the presumptive period in 38 CFR 
3.317(a)(1)(i) for qualifying chronic disabilities that become manifest 
to a degree of 10 percent or more through December 31, 2021 (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)(B) and (d)(3) to publish this 
rule without prior opportunity for public comment and good cause to 
publish this rule with an immediate effective date. 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, 2016. A lapse of such authority 
would be contrary to the public interest because it would have a 
significant adverse impact on veterans with such disabilities. To avoid 
such impact, VA is issuing this rule as an interim final rule, 
effective upon date of publication. However, VA invites public comments 
on this interim final rule and will fully consider and address any 
comments received.

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,'' 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

[[Page 71384]]

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 regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of this rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim 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 interim final rule will directly affect only 
individuals and will not directly affect small entities. Therefore, 
pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

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

Paperwork Reduction Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are: 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on October 7, 2016, for publication.

    Dated: October 7, 2016.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Disability benefits, 
Pensions, Veterans.

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

PART 3--ADJUDICATION

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

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, paragraph (a)(1)(i) is revised to read as follows:


3.317  Compensation for certain disabilities occurring in Persian Gulf 
veterans.

    (a) * * *
    (1) * * *
    (i) Became manifest either during active military, naval, or air 
service in the Southwest Asia theater of operations, or to a degree of 
10 percent or more not later than December 31, 2021; and
* * * * *

(Authority: 38 U.S.C. 1117, 1118).

[FR Doc. 2016-25017 Filed 10-14-16; 8:45 am]
 BILLING CODE 8320-01-P