Presumptive Period for GWI

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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: Interim final rule.

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 December 18,

2006. Comments must be received by VA on or before February 16, 2007.

ADDRESSES: Written comments may be submitted through

http://www.Regulations.gov; by mail or hand-delivery to Director,

Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont

Ave., 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-AM47-Extension of the Presumptive Period for Compensation for Gulf War

Veterans. " All comments received will be available for public inspection in

the Office of Regulation Policy and Management, Room 1063B, between the

hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

Please call (202) 273-9515 for an appointment. In addition, during the

comment period, comments are available online through the Federal Docket

Management System (FDMS).

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Consultant, Regulations

Staff, Compensation and Pension Service, Veterans Benefits Administration,

810 Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION:

I. Establishing a Presumptive Period

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 in title 38, United States

Code, section 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 10 percent degree or more during a

presumptive period determined by the Secretary.

Public Law 103-446 directed the Secretary to prescribe by regulation

the period of time (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. It further

directed that the Secretary's determination of a presumptive period be made

only following a review of any credible medical or scientific evidence and

the historical treatment afforded disabilities for which manifestation

periods have been established and taking into account other pertinent

circumstances regarding the experiences of veterans of the Persian Gulf War.

II. Background

To implement 38 U.S.C. 1117, VA published a final rule adding a new §

3.317 to title 38, Code of Federal Regulations. This regulation established

the framework necessary for the Secretary to pay compensation under the

authority granted by the Persian Gulf War Veterans' Benefits Act. See 60 FR

6660, February 3, 1995. As part of that rulemaking, VA established a 2-year,

post-Gulf War service presumptive period based primarily on the historical

treatment of disabilities for which manifestation periods have been

established and pertinent facts known regarding service in the Southwest

Asia theater of operations during the Persian Gulf War. 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.

Due to the continuing lack of medical and scientific evidence about the

nature and cause of the illnesses suffered by Gulf War veterans and

consensus concerning the inadequacy of the 2-year presumptive period for

undiagnosed illnesses, the Secretary determined the presumptive period

should be extended to include illnesses manifest to a 10 percent degree not

later than December 31, 2001. On April 29, 1997, VA published a final rule

amending 38 CFR 3.317 to implement this decision. See 62 FR 23138.

In 1998, Congress enacted Public Law 105-277 requiring VA to

collaborate with the National Academy of Sciences (NAS) to review and

evaluate available scientific evidence regarding associations between

illnesses and exposure to hazards of Gulf War service. Section 1603(i)(3) of

Public Law 105-277 required NAS to issue reports, which are produced by the

Institute of Medicine's (IOM) Committee on Gulf War and Health, every 2

years to review scientific research on Gulf War toxic exposures.

In 2001, the Secretary extended the presumptive period for undiagnosed

illnesses suffered by Persian Gulf War veterans from December 31, 2001, to

December 31, 2006, based upon ongoing research that would require review by

the Secretary. VA published an interim final rule amending 38 CFR 3.317 to

extend the presumptive period to December 31, 2006 (an additional 5 years).

See 66 FR 56614, November 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 of the following): (a) An undiagnosed illness;

( a medically unexplained chronic multisymptom illness (such as chronic

fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is

defined by a cluster of signs or symptoms; or © any diagnosed illness that

the Secretary determines warrants a presumption of service connection. The

revised term, " qualifying chronic disability, " has broadened the scope of

those health outcomes the Secretary may include under the presumption of

service connection. Under 38 U.S.C. 1117, a qualifying chronic disability

must still occur during service on active duty in the Armed Forces in the

Southwest Asia theater of operations during the Persian Gulf War, or to a

degree of 10 percent or more during the presumptive period prescribed

following such service. Accordingly, VA amended 38 CFR 3.317 to reflect

these changes. See 68 FR 34539, June 10, 2003.

III. Current Research

The NAS' Committee on Gulf War and Health has several meetings planned

during 2006 in support of current research projects. One such research

project is Physiologic, Psychologic, and Psychosocial Effects of Deployment

Related Stress. The objective of this project is to comprehensively review,

evaluate, and summarize the scientific and medical literature for peer

review regarding the association between stress and long-term adverse health

effects in the Gulf War.

The NAS study is not limited to veterans of the Persian Gulf War

deployments of the early 1990s but also includes veterans of current

conflicts, such as Operation Iraqi Freedom, occurring in part, within the

Southwest Asia theater of operations.

[Page 75671]

In addition to the above-referenced report, we anticipate that the NAS

will prepare other reports relevant to Gulf War veterans' health, including

reports required by Public Law 105-277 to be prepared every 2 years through

October 1, 2010. These research projects have the potential of bringing much

needed information to the Secretary regarding the establishment of a new,

more definitive, presumptive period for Gulf War veterans with qualifying

chronic disabilities. These NAS research projects have begun and are

currently ongoing.

Presently, VA continues to receive claims for qualifying chronic

disabilities. In 2005 for example, VA received 2,241 new claims with

diagnostic codes that would be affected by this final rule, and we continue

to receive such claims during 2006.

Conclusion

Currently, military operations in the Southwest Asia theater of

operations continue, including Operation Iraqi Freedom. 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 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 is

premature. If extension of the current presumptive period is not

implemented, servicemembers conducting military operations in the Southwest

Asia theater of operations after December 31, 2006, could be substantially

disadvantaged compared to servicemembers who previously served in the same

theater of operations.

Therefore, VA is extending the presumptive period in 38 CFR 3.317 for

qualifying chronic disabilities that become manifest to a degree of 10

percent or more through December 31, 2011 (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((3)(, to publish this rule without prior

opportunity for public comment. In light of the fast approaching expiration

date of the current presumptive period of December 31, 2006, the Secretary

finds delay for the purpose of soliciting public comment impracticable, and

because expiration of this rule would prohibit VA's delivery of important

benefits to some veterans of the Gulf War and Operation Iraqi Freedom,

further delay would be contrary to public interest. For the foregoing

reasons, the Secretary of Veterans Affairs is issuing this rule as an

interim final rule. The Secretary will consider and address comments that

are received on or before February 16, 2007.

Paperwork Reduction Act

This document contains no provisions constituting a new collection of

information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment 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.

Only VA beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 605(, this amendment 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. VA has examined the economic, legal, and policy

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

significant regulatory action under Executive Order 12866.

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 given year. This

rule would have no such effect on State, local, and tribal governments, or

the private sector.

Catalog of Federal Domestic Assistance Numbers

The Catalog of Federal Domestic Assistance program numbers and titles

are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans

and Members of the Armed Forces; 64.101, Burial Expenses Allowance for

Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans'

Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for

Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans

Surviving Spouses, and Children; 64.106, Specially Adapted Housing for

Disabled Veterans; 64.109, Veterans Compensation for Service-Connected

Disability; 64.110, Veterans Dependency and Indemnity Compensation for

Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured

Loans; 64.115, Veterans Information and Assistance; 64.116,Vocational

Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents

Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain

Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120,

Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer

Force Educational Assistance; 64.125, Vocational and Educational Counseling

for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan

Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born

with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for

Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care, Individuals

with disabilities, Pensions, Veterans, Vietnam.

Approved: September 26, 2006.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

* For the reasons set forth in the preamble, 38 CFR part 3 is amended as

follows:

PART 3-ADJUDICATION

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

* 1. The authority citation for part 3, subpart A continues to read as

follows:

Authority:38 U.S.C. 501(a), unless otherwise noted.

§ 3.317 [Amended]

* 2. In § 3.317, paragraph (a)(1)(i) is amended by removing " December 31,

2006 " and adding, in its place, " December 31, 2011 " .

[FR Doc. E6-21531 Filed 12-15-06; 8:45 am]

BILLING CODE 8320-01-P

Source: Government Printing Office

From CQ Federal Register Service

Providing government documents on demand, in context.

© 2006 Congressional Quarterly Inc. .

Jim Bunker

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