Extension Of The Presumptive Period For Gw Vets

[Wings]

[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]

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 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.

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]

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