Presumption Of Service Connection Als

[Wings]

[Federal Register: November 4, 2009 (Volume 74, Number 212)]

[Rules and Regulations]

[Page 57072-57074]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04no09-7]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN05

Presumption of Service Connection for Amyotrophic Lateral

Sclerosis

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule the interim final rule

amending the Department of Veterans Affairs (VA) adjudication

regulations to establish a presumption of service connection for

amyotrophic lateral sclerosis (ALS) for any veteran who develops the

disease at any time after separation from service. This amendment

implements the decision by the Secretary of Veterans Affairs to

establish such a presumption based on a November 2006 report by the

National Academy of Sciences Institute of Medicine on the association

between active service and ALS.

DATES: Effective Date: November 4, 2009.

Applicability Date: This final rule shall apply to all applications

for benefits that are received by VA on or after September 23, 2008,

the effective date of the interim final rule, and to all applications

for benefits 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 that date.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations

Staff (211D), Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 461-9366.

SUPPLEMENTARY INFORMATION: On September 23, 2008, VA published in the

Federal Register (73 FR 54691) an interim final rule that established

at new Sec. 3.318 a presumption of service connection for ALS for any

veteran who develops the disease at any time after separation from

service.

We provided a 60-day comment period that ended on November 24,

[[Page 57073]]

2008. We received comments from 12 members of the general public and 1

each from the ALS Association and the American Speech-Language-Hearing

Association (ASHA). Most of the comments from the general public came

from family members of veterans affected by this disease, expressing

gratitude and the belief that this decision was long overdue. Based on

the rationale set forth in the interim final rule and this final rule,

we adopt the provisions of the interim final rule as a final rule

without change.

Administrative Procedure Act

This document affirms the amendment made by the interim final rule

that is already in effect. The Secretary of Veterans Affairs concluded

that, under 5 U.S.C. 553(b)(3)(B) and (d)(3), there was good cause to

dispense with advance public notice and opportunity to comment on this

rule and good cause to publish the interim final rule with an immediate

effective date. The interim final rule was necessary to implement

immediately the Secretary's decision to establish a presumption of

service connection for ALS for veterans with that diagnosis. Delay in

the implementation of this presumption would have been contrary to the

public interest.

Because the survival period for persons suffering from ALS is

generally 5 years or less from the onset of symptoms, any delay would

have been extremely detrimental to veterans who are currently afflicted

with ALS. Veterans with ALS may not be taking alleviating medications,

participating in muscle and speech therapy, or receiving proper

assistance for daily functions due to financial hardship or their lack

of having service-connected status for their disability. Moreover, in

all likelihood, some veterans would have died from this rapidly

progressive disease during a period for prior public comment. These

veterans obviously would not have received any benefit from a

presumption that is implemented after a public-comment period.

In order to benefit veterans currently suffering from ALS as

quickly as possible, it was critical that VA established this

presumption immediately.

Conditions for Presumptive Service Connection

The ALS Association expressed support for this regulation and

stated its belief that 90 continuous days of service in the military

and a diagnosis of ALS are sufficient to establish presumptive service

connection for that disease. New Sec. 3.318 generally establishes

presumptive service connection for ALS if a veteran had at least 90

continuous days of active military, naval, or air service and developed

ALS at any time after separation from such service. We made no changes

based on this comment.

Exceptions to the Presumption of Service Connection

The ALS Association was concerned that the presumption of service

connection for ALS would not apply ``when there is affirmative evidence

that ALS was not caused by military service or was caused by a

veteran's own willful misconduct.'' However, it conceded that there is

``very little likelihood that either of those standards will be met

with regard to any particular claim,'' as we stated in the

supplementary information of the interim final rule. We made no changes

based on this comment.

Outreach Services

We received several comments about VA contacting family survivors

of affected veterans concerning new Sec. 3.318, increasing awareness

of ALS, and performing research regarding the disease. VA is taking

steps to inform both veterans with ALS and family survivors of veterans

with ALS about this regulation and realizes the importance of all of

these issues. These issues, however, are beyond the scope of this

rulemaking. We made no changes based on these comments.

Eligibility for Survivor Benefits

We received comments concerning the availability of survivor

benefits to survivors of veterans who died from ALS before the

effective date of the interim final rule. A veteran's survivor who

establishes that the veteran died from ALS before September 23, 2008,

may be eligible for dependency and indemnity compensation pursuant to

new Sec. 3.318, but would not be entitled to any retroactive benefits

before September 23, 2008 (see discussion below). The laws concerning

survivor benefits, however, are not specifically addressed by this

rulemaking. For information about such benefits, those who are

interested may call VA for assistance at 1-888-GIBILL1 (442-4551) for

education benefits, or at 1-800-827-1000 for all other VA benefits.

They may also contact VA on the Internet at http://www.gibill.va.gov

for education claims or at https://iris.va.gov for other information.

We made no changes based on these comments.

Expedited Claims

The ALS Association recommended that VA consider adopting formal

processes for expediting claims for veterans with ALS because of the

rapidly progressive and terminal nature of the disease. VA is aware of

the need for expediting claims for ALS and has taken steps to assure

that this happens. However, this issue is beyond the scope of this

rulemaking. We made no changes based on this comment.

Use of Assistive Technology

ASHA commented that it ``strongly supports this presumption'' and

that this presumption would help veterans with ALS receive necessary

treatment, such as the use of a speech-generating device. We note that

VA already provides assistive technological devices to veterans to help

them overcome challenges they face in coping with various diseases.

Issues relating to treatment, however, are not part of this rulemaking.

We made no changes based on this comment.

Effective Date of Benefits

Several commenters urged VA to provide benefits for awards based on

new Sec. 3.318 retroactive to the date of claim, even if the claim was

originally filed and/or denied before September 23, 2008, the effective

date of the interim final rule. New Sec. 3.318 is applicable

prospectively to claims filed on or after September 23, 2008, and to

all applications for benefits 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 that date. Under 38 U.S.C.

5110(g), the effective date of any award of disability compensation or

dependency and indemnity compensation made pursuant to new Sec. 3.318

will be assigned in accordance with the facts found but cannot be

earlier than the effective date of the interim final rule or the date

one year prior to the date of application, whichever is later. VA

therefore cannot assign an effective date prior to September 23, 2008,

for an award of benefits made pursuant to new Sec. 3.318. We made no

changes based on this comment.

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 given year. This rule will have no such effect on

State, local, and tribal governments, or on the private sector.

[[Page 57074]]

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, 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 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 entitlement

recipients; 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.

VA has examined the economic, interagency, budgetary, legal, and

policy implications of this final rule and has concluded that it is a

significant regulatory action under Executive Order 12866 because it is

likely to result in a rule that may raise novel legal or policy issues

arising out of legal mandates, the President's priorities, or the

principles set forth in the Executive Order.

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. The rule could affect only VA beneficiaries and will not directly

affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this

rule is exempt from the initial and final regulatory flexibility

analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and

titles for this rule are as follows: 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: October 9, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

PART 3-ADJUDICATION

0

Accordingly, the interim rule amending 38 CFR part 3 which was

published at 73 FR 54691 on September 23, 2008, is adopted as a final

rule without change.

[FR Doc. E9-26580 Filed 11-3-09; 8:45 am]

BILLING CODE 8320-01-P

[ZenArcher]

Thanks for posting this.

[NamTanker]

I know a Veteran that was diagnosed with ALS, he has just passed away from it. he was never out of the states the 4 years he was in the Army, yet the VA helped him so much! He was embarrassed because my husband has Glioblastoma Multiforme Stage 4 Brain Cancer and the VA won't accept the fact that many Nam Vets have been diagnosed with it and will not connect it with Agent Orange.

He went to his grave feeling bad that he was getting all of this money from VA, yet my husband gets nothing for brain cancer.

[Berta]

This widow proved her husband's brain cancer was from AO exposure:

http://www.va.gov/vetapp11/Files3/1118138.txt

"FINDING OF FACT

The Veteran died of glioblastoma multiforme which was caused by Agent Orange exposure while serving in Vietnam.

ORDER

Service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits."

She overcame a negative C & P exam report with two strong independent medical opinions.

[john999]

The VA is kicking the AO cancer presumptive down the road as far as they can becauses they will soon be burying most of us in the next 20 years. The budget cutters look at Vietnam veterans as fossils. We are somewhere between welfare mothers and street people to these guys. The US forgot the Korean War and forgot the Vietnam war with "extream prejudice".

[Joe Doaks]

The VA is typical of an agency run by elected interference. I pressure my congressmen/women every chance I get. VOTE always. This is the single most important tool we have.