02-1839. Diseases Specific to Radiation-Exposed Veterans

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its adjudication regulations concerning presumptive service connection for certain diseases for veterans who participated in radiation-risk activities during active service or while members of reserve components during active duty for training or inactive duty training. This amendment adds cancers of the bone, brain, colon, lung, and ovary to the list of diseases which may be presumptively service connected and amends the definition of the term “radiation-risk activity.” The intended effect of this amendment is to ensure that veterans who may have been exposed to radiation during military service do not have a higher burden of proof than civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes.

DATES:

Effective Date: March 26, 2002.

FOR FURTHER INFORMATION CONTACT:

Bill Russo, Regulations Staff, Compensation and Pension Service (211A), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, telephone [phone].

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on August 8, 2001 (66 FR 41483-41485), VA proposed to amend its adjudication regulations concerning presumptive service connection for veterans who participated in radiation-risk activities during active service. VA proposed to add cancers of the bone, brain, colon, lung, and ovary to the list of diseases which may be presumptively service connected and amend the definition of the term “radiation-risk activity.” The intended effect of this amendment was to ensure that veterans who may have been exposed to radiation during military service do not have a higher burden of proof than civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes.

I. Comments on the Proposed Rule

The comment period ended October 9, 2001. We received written comments from the American Legion, the National Association of Atomic Veterans, the Honorable Patsy T. Mink (HI) and 14 individuals. Ten of the comments expressed support of the proposed rule.

Definition of Radiation-Risk Activity

Current law defines “radiation-risk activity” for purposes of presuming that specified diseases are the result of radiation exposure during military service to mean (1) onsite participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or (3) internment as a prisoner of war in Japan or service on active duty in Japan following such internment during World War II which resulted in an opportunity for exposure to ionizing radiation. (See 38 U.S.C. 1112(c)(3)(B) and 38 CFR 3.309(d)).

As stated in the preamble to the proposed rule, recent legislation authorized benefits for certain Department of Energy (DOE) employees and persons employed by DOE contractors, subcontractors, and vendors who were involved in DOE nuclear weapons-related programs. This includes those who worked on Amchitka Island, Alaska prior to January 1, 1974, who were exposed to ionizing radiation in the performance of duty related to certain underground nuclear tests. It also includes certain persons who worked at gaseous diffusion plants in Paducah, Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee before February 1, 1992. Our rulemaking proposed to add these exposures to the list of radiation-risk activities in 38 CFR 3.309(d).

One commenter stated that VA's definition of radiation-risk activity, even as expanded by this rulemaking, does not cover all veterans exposed to radiation while in the service of their country, and urged VA to expand its definition to include veterans exposed to “residual contamination” of nuclear tests. Another commenter urged VA to include veterans who may have been exposed to radiation during various activities involving the development, maintenance and handling of nuclear weapons, as well as clean up operations following nuclear testing. Another commenter specifically asked that VA expand the definition to include all military personnel who participated in the clean up of Enewetak Atoll from 1977 to 1980. Another commenter suggested that the definition of “radiation-risk” activity should include military duty at all DOE nuclear weapons development, testing, and manufacturing facilities.

Congress created certain presumptions for veterans in the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, section 2(a), 102 Stat. 485-86 (codified as amended at 38 U.S.C. 1112(c)). Congress has also created presumptions for certain civilians in the Radiation Exposure Compensation Act (RECA), Pub. L. 101-426, 104 Stat. 920 (1990) (codified as amended at 42 U.S.C. 2210 note), the RECA Amendments of 2000, Public Law 106-245, section 3, 114 Stat. 501, 502, and title XXXVI of the Energy Employees Occupational Illness Compensation Program Act of 2000, Public Law 106-398, 114 Stat. 1654A-1232. Under the Energy Employees Occupational Illness Compensation Program Act of 2000, if a member of the Special Exposure Cohort develops a “specified” cancer after beginning employment at a DOE facility or at an atomic weapons facility for an atomic weapons contractor, the cancer is presumed to have been sustained in the performance of duty and is compensable. The burden of proof for the Special Exposure Cohort is similar to that under 38 CFR 3.309(d). Congress has not created any presumptions for veterans or civilians based on “residual contamination” of nuclear tests, service at Enewetak Atoll, or any of the other types of duties suggested by the commenters.

This rulemaking was only intended to ensure that veterans who may have been exposed to radiation during military service do not have a higher burden of proof than civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes. We proposed to expand the definition of radiation-risk activity in § 3.309(d)(3)(ii) to include only the relevant activities listed in these civilian statutes. We therefore make no change based on these comments.

One commenter noted that the “Radiation Compensation Act of 1990” was recently amended to include civilian employees assigned to DOE nuclear weapons-related programs who were exposed to radiation, beryllium or silica. The commenter also stated that veterans involved in these programs are effectively precluded from being compensated for diseases related to such duty. The commenter urged that, in order to achieve true equity between radiation-exposed veterans and civilians, VA regulations should be amended to include veterans who were exposed to beryllium and silica during service.

We are aware that the RECA Amendments of 2000, Public Law 106-245, section (2)(A)(ii) and 3(c)(1), 114 Stat. at 501, 502, authorized compensation for above-ground uranium miners, millers and persons who transported ore and have a “nonmalignant respiratory disease,” which the statute defines as fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, silicosis, and pneumoconiosis. The Energy Employees Occupational Illness Compensation Program Act of 2000, Public Law 106-398, tit. xxxvi, 114 Stat. 1654A-1232, authorized compensation for employees exposed to beryllium in the performance of duty for a DOE contractor, subcontractor, beryllium vendor, or subcontractor of a vendor.

However, under these statutes, beryllium-related diseases and silica-related diseases are clearly classified separately from radiogenic diseases. The purpose of this rulemaking is only to amend VA's presumptions for radiation exposure and radiogenic diseases.

In addition, we believe that existing regulations allow a sufficient basis to grant service connection, on a direct basis, for veterans exposed to beryllium or silica during military service who later suffer from these diseases. For these reasons, we do not revise the regulation to include diseases related to beryllium or silica exposure in this rulemaking, and we therefore make no change based on these comments.

Dose Reconstruction

One commenter stated that he opposed the current dose estimate requirement in 38 CFR 3.311, as being arbitrary, unreliable and inaccurate. Another commenter urged that VA should not rely on dose reconstruction estimates because they are based on lab tests, not on data collected at the atomic test sites. Another commenter also asked VA to eliminate the use of dose estimates since they are inaccurate.

Dose reconstruction is required only under 38 CFR 3.311, which is a separate and distinct basis for service connection from 38 CFR 3.309(d). The purpose of the rulemaking is only to amend VA's presumption for radiation exposure and radiogenic diseases (found in 3.309(d)), which does not require a dose estimate to establish entitlement to service connection. Therefore, these comments are outside the scope of this rulemaking and we make no change based on these comments.

Radiogenic Diseases

Several commenters urged VA to add certain diseases to 3.309(d)(2), in addition to those we proposed to add in this rulemaking. One commenter stated that radiation is a “complete carcinogen” and therefore we should list all cancers. Another commenter urged VA to add certain non-cancer diseases, such as cardiovascular disease, chronic hepatitis, and liver cirrhosis, which have been linked to radiation exposure by the Radiation Effects Research Foundation.

The basis for enactment of the RECA Amendments of 2000 and the Energy Employees Occupational Illness Compensation Program Act of 2000 was scientific data resulting from enactment of the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, and obtained from the President's Advisory Committee on Human Radiation Experiments. Based on data from these sources, Congress authorized compensation for persons suffering from these cancers who lived downwind from Government above-ground nuclear tests, were underground uranium miners, participated onsite in a test involving the atmospheric detonation of a nuclear device, or were employed at certain locations by DOE contractors or subcontractors or an atomic weapons employer. We believe this data also supports compensation for veterans suffering from the same cancers, some of whom participated in the same activities as persons entitled to be compensated under the RECA Amendments of 2000 and the Energy Employees Occupational Illness Compensation Program Act of 2000. We therefore proposed to amend 38 CFR 3.309(d)(2) to include the cancers for which compensation is payable under these other statutes.

As explained above and in the notice of proposed rulemaking, this rulemaking was only intended to ensure equity between veterans who may have been exposed to radiation during military service and civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes, including RECA. The Federal statutes referenced above do not presume that the diseases that the commenters asked VA to add to this rulemaking are due to radiation exposures in civilian occupations. Therefore, veterans do not have a higher burden of proof than civilians do, and we are making no change based on this comment.

Public Laws 98-542 and 102-578

One commenter stated that, because VA submitted a report to Congress containing its response to a report submitted to VA by the Veterans' Advisory Committee on Environmental Hazards on May 26, 1994, rather than December 1, 1993, as required by the Veterans' Radiation Exposure Amendments of 1992, Public Law 102-578, section 3, 106 Stat. 4774, 4775, radiation exposure by naval nuclear propulsion workers, those involved in weapons development for the Department of Defense, nuclear weapons maintenance workers and handlers and others have never been considered under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law 98-542, 98 Stat. 2725 (1984), or the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, 102 Stat. 485.

This rulemaking does not involve VA's compliance with Public Law 102-578 and these comments are outside the scope of this rulemaking. We therefore make no change based on these comments.

Effective Dates

One commenter stated that the effective date for claims that VA previously denied but are now granted under these new regulations should be the date of the original claim. The commenter urged that veterans exposed to radiation be given the same consideration as veterans exposed to Agent Orange under Nehmer v. United States Veterans Admin., C.A. No. C-86-6160 TEH (N.D. Cal.).

Section 5110 of title 38 United States Code and 38 CFR 3.114 establish effective date requirements that are binding on VA. Those requirements limit retroactive awards to no earlier than the effective date of a liberalizing statute or regulation, such as this rulemaking. The Nehmer lawsuit and court rulings do create an exception to these effective date rules, but the Nehmer case is limited to only diseases linked to herbicide exposure under 38 CFR 3.309(e). We have no authority to expand the exceptions established by the Nehmer court to include claims filed under 3.309(d). We therefore make no change based on this comment.

Opposition to Proposed Rule

One commenter asserted that it is very unlikely that any of the cancers developed by veterans are caused by their radiation exposure during military service. He stated that many of the premises contained in the preamble to the proposed rule are not based on valid scientific information. This commenter urged VA not to promulgate this proposed rule.

As we explained above, the basis for enactment of the RECA Amendments of 2000 and the Energy Employees Occupational Illness Compensation Program Act of 2000 was scientific data resulting from enactment of the Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-321, and obtained from the President's Advisory Committee on Human Radiation Experiments. We believe this data equally supports adding these same cancers to the list of diseases that may be presumptively service connected for radiation-exposed veterans, some of whom participated in the same activities as persons entitled to be compensated under the RECA Amendments of 2000 and the Energy Employees Occupational Illness Compensation Program Act of 2000.

This rulemaking was only intended to ensure that veterans who may have been exposed to radiation during military service do not have a higher burden of proof than civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes, including RECA. If we do not adopt this rule, veterans will have a higher burden of proof than civilians do. Therefore, we make no change based on this comment.

Medical Benefits

One commenter suggested that atomic veterans should be given a special priority for VA medical services, which should be provided without means testing and co-payments. The commenter also suggested that VA should focus on preventive measures to reduce the risk of cancer, appropriate medical treatment to keep atomic veterans healthy, and programs to educate veterans on dietary and lifestyle changes to prevent cancer. The commenter also suggested VA should work with Congress to determine if an arrangement for financial cost sharing between VA and Medicare is possible.

These comments are beyond the scope of the rulemaking. Also, some of the comments would require an amendment to title 38, United States Code, which cannot be accomplished by rulemaking. We therefore make no changes based on these comments.

II. Compliance With the Congressional Review Act, the Regulatory Flexibility Act, and Executive Order 12866

We estimate that the ten-year benefits cost of this rule from appropriated funds will be $769 million in benefits costs. We estimate that during several of these years, the annual benefits costs will be more than $100 million. We also estimate that the ten-year cost in government operating expenses will be $34 million. Since we estimate that the adoption of the rule will have an annual effect on the economy of $100 million or more, the Office of Management and Budget has designated this rule as a major rule under the Congressional Review Act, 5 U.S.C. 802, and a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. The following information is provided pursuant to E.O. 12866.

The Secretary has made this regulatory amendment to ensure that veterans exposed to radiation during military service receive the same consideration for the risks of this exposure as DOE employees, contractors and subcontractors. There are no feasible alternatives to this proposed rule, since it is needed to provide fairness and equity for veterans and their survivors. This rule will not interfere with state, local or tribal governments in the exercise of their governmental functions.

Benefits Costs

Over the next ten years, VA expects to process 91,567 service-connected disability compensation claims (living veterans) and 48,050 Dependency and Indemnity Compensation (DIC) claims (veterans' survivors claims for service connection for cause of death) filed as a result of this proposed rule. Historically, about 12% of all radiation related claims have been granted. If past experience proves a reliable indicator of future events, VA expects to grant approximately 10,988 of those disability compensation claims and approximately 5,766 of those DIC claims.

We estimate that the cumulative totals of benefits awards to claimants over the next ten years will be as follows: $8,040,630; $26,248,947; $44,265,910; $61,126,347; $76,565,137; $90,329,734; $102,328,198; $112,436,560; $120,555,709; and $126,704,527, for a total benefits cost of $768,601,698 over ten years.

Administrative Costs

Based on the administrative workload projected to result from this rule (discussed above), VA estimates that full time employee (FTE) resources devoted to processing claims in years one through ten will be 77, 113, 69, 64, 51, 40, 39, 35, 35, and 33 respectively. Estimated government operating expenses (GOE) costs for the next 10 years are as follows: $3,910,578; $5,047,838; $3,584,683; $4,127,798; $3,419,862; $2,817,402; $2,825,825; $2,669,755; $2,780,414; and $2,750,142, for a total GOE cost of $33,934,297 over ten years.

Unfunded Mandates

The Unfunded Mandates Reform Act requires , at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

OMB Review

This rule is economically significant under Executive Order 12866 and major under the Congressional Review Act. This rule has been reviewed by OMB.

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 (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments will not directly affect any small entities. Only VA beneficiaries will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are 64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Disability benefits
• Health care
• Pensions
• Veterans
• Vietnam

Approved: December 10, 2001.

Anthony J. Principi,

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.

2. Section 3.309 is amended by:

A. Adding new paragraphs (d)(2)(xvii) through (d)(2)(xxi).

B. Adding new paragraph (d)(3)(ii)(D).

The additions read as follows:

§ 3.309

Diseases subject to presumptive service connection.

* * * * *

(d) Diseases specific to radiation-exposed veterans.***

(2) * * *

(xvii) Cancer of the bone.

(xviii) Cancer of the brain.

(xix) Cancer of the colon.

(xx) Cancer of the lung.

(xxi) Cancer of the ovary.

(3) * * *

(ii) * * *

(D)(1) Service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, if, during such service the veteran:

(i) Was monitored for each of the 250 days of such service through the use of dosimetry badges for exposure at the plant of the external parts of veteran's body to radiation; or

(ii) Served for each of the 250 days of such service in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges; or

(2) Service before January 1, 1974, on Amchitka Island, Alaska, if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

(3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the term “day” refers to all or any portion of a calendar day.

* * * * *