[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Rules and Regulations]
[Pages 6038-6039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02176]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR22


Extension of the Presumptive Period for Compensation for Gulf War 
Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends 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 for entitlement for disability compensation to 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 to ensure fairness for current and future Persian 
Gulf War veterans.

DATES: 
    Effective date: This final rule is effective February 3, 2022.
    Applicability date: The provisions of this final rule shall apply 
to all applications for benefits that are received by VA on or after 
the effective date of this final rule or that are pending before VA, 
the United States Court of Appeals for Veterans Claims, or the United 
States Court of Appeals for the Federal Circuit on the effective date 
of this final rule.

FOR FURTHER INFORMATION CONTACT: Bryant Coleman, 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: On September 14, 2021, VA published an 
interim final rule in the Federal Register at 86 FR 51000 to amend its 
adjudication regulation 38 CFR 3.317 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 presumptive 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. To

[[Page 6039]]

effectuate this rule, under 38 CFR 3.317(a)(1)(i), VA replaced the 
phrase ``not later than December 31, 2021'' with ``not later than 
December 31, 2026.''
    Under the provisions of 5 U.S.C. 553(b)(B) and (d)(3) the Secretary 
of Veterans Affairs found that there was good cause to publish this 
rule without prior opportunity for public comment. Had VA not extended 
the sunset date for the regulation, its authority to provide benefits 
in new claims for qualifying chronic disability in Gulf War veterans 
would have lapsed on December 31, 2021. A lapse of such authority would 
have been contrary to the public interest because it would have had a 
significant adverse impact on veterans disabled due to such 
disabilities. To avoid such impact, VA issued this rule as an interim 
final rule. However, VA invited interested persons to submit written 
comments on or before October 14, 2021, and received seven comments in 
response to the interim final rule. These comments are discussed below.

General Comments

    Three commenters referenced their poor health concerns or the poor 
health concerns of a family member. While VA sympathizes with anyone 
suffering from a debilitating disability and/or disease, the scope of 
this rule only addresses the deadline for the manifestation of 
presumptive conditions. VA makes no changes based on these comments.
    One commenter suggested the regulation should contain VA's 
definition of Southwest Asia. This rule merely extends the presumption 
period in 38 CFR 3.317, and that section already contains VA's 
definition of the Southwest Asia theater of operations (in 38 CFR 
3.317(e)(2)). VA makes no changes based on this comment.
    One commenter suggested that since no end date for the Persian Gulf 
War has been established by Congress, any deadline is premature. 
However, this rule does not impose a deadline; it extends the 
presumptive 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 based on the presumption. VA makes no changes based on 
this comment.
    VA received two non-substantive comments. VA makes no changes based 
on these comments.
    As VA makes no changes based on the comments received, this 
document adopts as a final rule the interim final rule published in the 
Federal Register on September 14, 2021.

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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

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). There are no small entities involved with the process and/or 
benefits associated with the rulemaking. Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

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 final rule will have no such effect on 
state, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This 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 Assitance 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.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 3

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

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on January 19, 2022, 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.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.


0
For the reasons set forth in the preamble, the Department of Veterans 
Affairs adopts the interim rule published September 14, 2021, at 86 FR 
51000, as final without change.

[FR Doc. 2022-02176 Filed 2-2-22; 8:45 am]
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