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Extension of the Presumptive Period for Compensation for Gulf War Veterans

Date: Mon, 18 Dec 2006 11:23:49 -0600 [12:23:49 PM EST]
From: Jim Bunker
Subject: Extension of the Presumptive Period for Compensation for Gulf War Veterans

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; 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.
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;
(b) 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 (c) 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.
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(b)(3)(B), 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(b), 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
Subpart A-Pension, Compensation, and Dependency and Indemnity Compensation
* 1. The authority citation for part 3, subpart A continues to read as
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]

Source: Government Printing Office
From CQ Federal Register Service
Providing government documents on demand, in context.
2006 Congressional Quarterly Inc. All Rights Reserved.

Jim Bunker
WE are all here to help veterans.
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