[Federal Register: December 5, 2007 (Volume 72, Number 233)]
[Rules and Regulations]
[Page 68507-68508]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de07-12]
[[Page 68507]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AM47
Extension of the Presumptive Period for Compensation for Gulf War
Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document affirms an amendment to the Department of
Veterans Affairs (VA) adjudication regulation 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: December 5, 2007.
FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 273-7210. (This is not a toll-free
number).
SUPPLEMENTARY INFORMATION: In response to the needs and concerns of
veterans of the Persian Gulf War (Gulf War), Congress enacted the
Persian Gulf War Veterans' Benefits Act, title I of the Veterans'
Benefits Improvements Act of 1994, Public Law 103-446, which was
codified in relevant part at 38 U.S.C. 1117. This law provided
authority to 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 10 percent or more during a
presumptive period determined by the Secretary. Section 1117 directs
the Secretary to prescribe by regulation the presumptive period
following service in the Southwest Asia theater of operations
determined to be appropriate for the manifestation of an illness
warranting payment of compensation. On December 18, 2006, we published
an interim final rule extending the presumptive period in 38 CFR 3.317
to December 31, 2011 (71 FR 75669). We provided a 60-day comment period
that ended February 16, 2007.
We received one comment from a concerned individual and one comment
from The American Legion. The individual commented that it was
important to acknowledge an undiagnosed illness as a real medical
condition. We will make no change based on this comment. We note that
both statute and regulation authorize payment of compensation for
specific disabilities resulting from undiagnosed illnesses, thus
recognizing the existence of undiagnosed illnesses for purposes of VA
benefits. Moreover, we believe that the extension of the presumptive
period and other existing regulations regarding disabilities and
illnesses related to the Gulf War will continue to ensure that veterans
with compensable disabilities due to undiagnosed illnesses that may be
related to active service in the Southwest Asia theater of operations
during the Persian Gulf War may qualify for benefits.
The American Legion commented that, because military operations
continue in the Persian Gulf, research into Gulf War illnesses remains
ongoing, and VA continues to receive disability claims for disabilities
due to undiagnosed illnesses, the presumptive period should be extended
indefinitely, not just to December 31, 2011. We will make no change
based on this comment. 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.'' In 38 U.S.C. 1118, Congress has
prescribed an ongoing process for investigating the nature and causes
of Gulf War veterans' illnesses and for prescribing presumptions of
service connection for specific conditions associated with Gulf War
service. The statutory scheme reflects the hope that further research
and the procedures mandated by section 1118 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 38 U.S.C. 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, 2011 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 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 presumptive period until December 31, 2011, is within the
discretion given to him by 38 U.S.C. 1117. Before the expiration of the
presumptive period established by this rule, the Secretary may extend
the presumptive period further if scientific uncertainty remains
regarding the causes of Gulf War veterans illnesses.
We appreciate the comments submitted on the interim final rule.
Based on the rationale set forth in the interim final rule and in this
document, we now affirm as a final rule the amendments made by the
interim final rule.
Administrative Procedure Act
This document without any changes affirms amendments made by an
interim final rule that is already in effect. Accordingly, we have
concluded under 5 U.S.C. 553 that there is good cause for dispensing
with a delayed effective date based on the conclusion that such
procedure is impracticable, unnecessary, and contrary to the public
interest.
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. This final rule would not affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this final rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
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
[[Page 68508]]
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 (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 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 the Executive
Order.
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined and it has been
determined to be a significant regulatory action under the Executive
Order.
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 year. This final 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 numbers and titles for
the programs affected by this document are 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: August 27, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
0
Accordingly, the interim final rule amending 38 CFR part 3 that was
published at 71 FR 75669 on December 18, 2006, is adopted as a final
rule without change.
[FR Doc. E7-23545 Filed 12-4-07; 8:45 am]
BILLING CODE 8320-01-P