E6-21531. 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 [phone]. 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 [phone] 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 [phone].

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; (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.

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(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 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”.