[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30133]
[[Page Unknown]]
[Federal Register: December 8, 1994]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH35
Compensation for Certain Undiagnosed Illnesses
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its adjudication regulations to authorize compensation for disabilities
resulting from the undiagnosed illnesses of Persian Gulf veterans. This
amendment would provide the necessary regulatory framework to allow the
Secretary to pay compensation under the authority granted by the
Persian Gulf War Veterans' Benefits Act.
DATES: Comments must be received on or before January 9, 1995.
ADDRESSES: Mail written comments to: Director, Office of Regulations
Management (02D), Department of Veterans Affairs, 810 Vermont Ave, NW.,
Washington, DC 20420, or hand-deliver written comments to: Office of
Regulations Management, Room 1176, 801 Eye Street, NW., Washington, DC
20001. Comments should indicate that they are in response to ``RIN
2900-AH35.'' All written comments received will be available for public
inspection in the Office of Regulations Management, Room 1176, 801 Eye
Street, NW., Washington, DC 20001, between the hours of 8:00 a.m. and
4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Steven Thornberry, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION: Following the return of U.S. forces from the
Persian Gulf region, some Persian Gulf War veterans began exhibiting
symptoms that could not be attributed to known clinical diagnoses. A
National Institutes of Health Technology Assessment Workshop on the
Persian Gulf experience and health, held from April 27-29, 1994, found
that many of these veterans presented combinations of nonspecific
symptoms of fatigue, skin rash, muscle and joint pain, headache, loss
of memory, shortness of breath, and gastrointestinal and respiratory
symptoms, which may not fit readily into a common diagnosis. The panel
reported that it was impossible to establish a single-case definition
of the illnesses suffered by these Persian Gulf veterans, and that, in
fact, a single case-definition might not be sufficient, since more than
one disease category might be present.
Section 1110 of title 38, United States Code, authorizes VA to
compensate for disabilities arising from personal disease or injury
incurred or aggravated in the line of duty during active military,
naval, or air service. However, since many of the symptoms reported by
Persian Gulf veterans cannot be attributed to a known disease or
injury, until now VA has had no authority to compensate for them.
In response to the needs and concerns of Persian Gulf veterans,
Congress enacted the ``Persian Gulf War Veterans' Benefits Act,'' Title
I of the ``Veterans' Benefits Improvements Act of 1994,'' Public Law
103-446. That statute added a new section 1117 to title 38, United
States Code, authorizing the Secretary of Veterans Affairs to
compensate any Persian Gulf veteran suffering from a chronic disability
resulting from an undiagnosed illness or combination of undiagnosed
illnesses that became manifest either during active duty in the
Southwest Asia theater of operations during the Persian Gulf War or to
a degree of 10 percent or more within a presumptive period, as
determined by the Secretary, following service in the Southwest Asia
theater of operations during the Persian Gulf War. The statute directs
that VA's implementing regulations should address: (1) The nature,
period, and geographical areas of military service in connection with
which compensation may be paid; (2) the illnesses for which
compensation may be paid; and (3) any relevant medical characteristic
associated with each such illness. The statute further provides that a
disability for which compensation is payable under Sec. 1117 shall be
considered service connected for the purposes of all laws of the United
States.
To implement these provisions of Public Law 103-446, we propose to
amend title 38, Code of Federal Regulations, by adding a new
Sec. 3.317, to establish eligibility criteria for compensation for
Persian Gulf veterans with chronic disabilities resulting from an
undiagnosed illness or combination of undiagnosed illnesses. We propose
to require that veterans exhibit objective indications of chronic
disabilities resulting from these undiagnosed illnesses. ``Objective
indications'' means both ``signs,'' in the medical sense of objective
evidence perceptible to an examining physician, and other indicators
that are non-medical in nature but capable of independent verification.
Non-medical indicators include, but are not limited to, such
circumstances or events as time lost from work, evidence that a veteran
has sought medical treatment for his or her symptoms, and evidence
affirming such things as changes in the veteran's appearance, physical
abilities, and mental or emotional attitude. Lay statements from
knowledgeable individuals may be accepted as evidence providing
objective indications if they support the conclusion that a disability
exists. Objective indications will assist us in determining the actual
presence of a disability as well as the extent of impairment caused by
the disability.
Public Law 103-446 requires that our regulations contain a
description of the illnesses for which compensation may be paid.
Therefore, we are proposing that undiagnosed illnesses be manifested by
one or more signs or symptoms, 13 categories of which are specified in
the regulation. The categories listed represent the wide range of signs
and symptoms noted in the over 17,000 completed and analyzed
examinations of participants in VA's Persian Gulf Registry, including
those veterans for whom a known clinical diagnosis has not been
established. Since signs and symptoms not represented by one of the
listed categories could legitimately qualify for consideration under
Sec. 3.317, we propose to provide that the list of 13 illness
categories is not exclusive.
However, we propose to prohibit payment under Sec. 3.317 for
disabilities that, through medical history, physical examination, and
laboratory tests, are determined to result from any known clinical
diagnosis. Once such a diagnosis is established, the condition would
fall outside the scope of this rule, but would certainly receive
consideration for service connection under other sections of the
statute and regulations governing direct incurrence or aggravation of a
disease or injury during active duty or appearance of the condition
following active duty within established presumptive periods.
We are proposing to consider a disability chronic if it has existed
for 6 months or more. In our judgment, this is a reasonable period,
generally accepted within the medical community, for distinguishing
chronic disabilities from those that are acute. Disabilities which are
subject to intermittent episodes of improvement and worsening within a
6-month period would be considered chronic. However, acute and
transitory conditions would not be considered chronic. We further
propose to authorize VA rating boards to evaluate the level of
impairment of chronic disabilities resulting from undiagnosed illnesses
using criteria from the Schedule for Rating Disabilities (38 CFR, part
4) for a disease or injury in which the functions affected, the
anatomical localization, and symptomatology are similar. Because we
cannot predict the course of an undiagnosed illness, we intend to
monitor veterans who receive compensation under Sec. 3.317 and
reexamine them as necessary to ensure that appropriate levels of
compensation are being paid. It is anticipated that in most cases a
reexamination would occur at approximately 24 months after the initial
examination.
We are proposing to establish a 2-year presumptive period following
service in the Southwest Asia theater of operations during the Persian
Gulf War for the undiagnosed illnesses of Persian Gulf veterans. Public
Law 103-446 specifies that the Secretary shall establish a post-Gulf-
service presumptive period after reviewing any credible medical or
scientific evidence, the historical treatment afforded other diseases
for which service connection is presumed, and other pertinent
circumstances regarding the experiences of Persian Gulf veterans.
Congress has for many years authorized a one-year presumptive period
for various chronic diseases, including certain muscular, neurological,
digestive, and musculoskeletal diseases whose characteristic signs and
symptoms may include some of those which this rule would cover. Based
upon our experience with chronic diseases with similar signs and
symptoms, it is our view that most illnesses related to Persian Gulf
service would become manifest within one year after such service.
However, we know of no evidence to suggest that any undiagnosed
illnesses would take longer than 2 years to become manifest.
An additional reason for proposing a 2-year presumptive period,
rather than a one-year period, is that VA did not begin full-scale
operation of its Persian Gulf Registry until November 1992. Many
Persian Gulf veterans first presented their health concerns in
connection with a Registry examination that would not have been
available to them within one year after leaving the Persian Gulf
region. Within 2 years, however, all veterans of the hostilities in the
Persian Gulf would have had this opportunity to document their
illnesses.
Our proposed presumptive period for Persian Gulf veterans would be
measured from when they last performed duty in the Southwest Asia
theater of operations, rather than from the date of separation as in
prior presumptive periods authorized by Congress, for several reasons.
First, the language of Public Law 103-446 indicates that the
presumptive period will be so based. Second, because concerns relating
to Persian Gulf service gave rise to the legislation, it is only
reasonable that the presumptive period be measured from when such
service ended. Third, in other circumstances in which health concerns
have been determined to be related to possibly hazardous exposures
occurring during service, such as exposure to herbicides in Vietnam,
presumptive periods have been measured from the last date on which the
exposure could have occurred. Finally, because many Persian Gulf
veterans left active duty shortly after returning from the Persian Gulf
theater while others continued (and will continue) to serve on active
duty for many years, widely disparate treatment could result if the
presumptive period were measured from the date of a veteran's
separation from service.
Public Law 103-446 requires that our regulations contain a
description of the period and geographical area or areas of military
service in connection with which compensation under 38 U.S.C. Sec. 1117
may be paid. Therefore, we are proposing to extend eligibility for
consideration under Sec. 1117 to any veteran who served within the
Southwest Asia theater of operations during the Persian Gulf War, which
by statute extends from August 2, 1990, through a date yet to be
determined by law or Presidential proclamation (38 U.S.C.
Sec. 101(33)). At this time we have no information that indicates that
those serving in specific areas of the theater of operations have
greater risk of developing undiagnosed illnesses and, therefore,
believe it only appropriate that this provision apply to veterans who
served anywhere within that area.
We are proposing that compensation may not be paid under Sec. 3.317
in the following situations:
(1) If there is affirmative evidence that an undiagnosed illness
was not incurred during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf War. This
is in keeping with Public Law 103-446, which specifies that
compensation may be paid for chronic disability resulting from
undiagnosed illnesses that became manifest during active duty in the
Persian Gulf area during the Persian Gulf War.
(2) If there is affirmative evidence that an undiagnosed illness
was caused by a supervening condition or event that occurred between
the veteran's most recent departure from active duty in the Southwest
Asia theater of operations during the Persian Gulf War and the onset of
the illness. This follows the statutory requirement of 38 U.S.C.
Sec. 1113(a), as amended by Public Law 103-446. In such a situation, if
it is clear that an undiagnosed illness is due to an intervening cause,
it would be inappropriate to presume that it is related to Persian Gulf
service. This provision is consistent with similar provisions applying
to other presumptive conditions, such as those related to exposure to
ionizing radiation, herbicides used in Vietnam, mustard gas, and to the
prisoner-of-war experience.
(3) If there is affirmative evidence that the illness is the result
of the veteran's own willful misconduct or the abuse of alcohol or
drugs. This follows the statutory requirements in 38 U.S.C.
Secs. 105(a), 1110, 1113, and 1131.
We propose to define Southwest Asia theater of operations to
include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and
Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf
of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red
Sea, and the airspace above these locations. This definition follows
Executive Order 12744 of January 21, 1991, in which President Bush
designated the combat zone of the Persian Gulf War.
Situations may arise that will require termination or reduction of
payments previously awarded under Sec. 3.317, for example,
establishment of a known clinical diagnosis as the cause of a veteran's
disabilities. We therefore propose to amend Sec. 3.500 to add a
paragraph providing that reduction or termination of benefits would be
effective the last day of the month in which the 60-day period
following notice to the payee of VA's final rating action expires.
Final rating action would not be taken prior to expiration of a 60-day
predetermination period, during which the payee would have an
opportunity to show why benefits should not be reduced or terminated.
These procedures follow the regulatory requirements in 38 CFR 3.103(b),
which requires a 60-day predetermination period in actions involving
adverse determinations; and in 38 CFR 3.105 (d) and (e), which, where
reduction or severance of service-connected compensation is involved,
require termination no earlier than the last day of the month in which
a 60-day period following notice to the beneficiary of the final rating
action expires. It is reasonable and consistent with VA policy to adopt
the same procedures in regard to benefits payable under Sec. 3.317.
Termination or reduction of benefits paid under Sec. 3.317 would not
preclude continuation of payments if entitlement is established under
other sections of the statute or regulations governing grants of
service connection for diseases or injuries that are incurred or
aggravated during active duty or that first appear after active duty
but within a statutory or regulatory presumptive period.
We are proposing to make these amendments effective November 2,
1994, the effective date of Title I of Public Law 103-446. The comment
period has been shortened from 60 days to 30 days. The 30-day period
would appear to provide adequate time for the submission of comments on
this proposed rulemaking. The shortened comment period would also
expedite establishment of a final rule and thereby allow for quicker
payment of compensation to eligible individuals.
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 this
amendment would not directly affect small entities. 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 Secs. 603 and 604.
This regulatory amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993.
The Catalog of Federal Domestic Assistance program numbers are
64.109 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care,
Individuals with disabilities, Pensions, Veterans.
Approved: December 2, 1994.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR Part 3 is
proposed to be 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 3.317 is added to read as follows:
Sec. 3.317 Compensation for certain disabilities due to undiagnosed
illnesses.
(a)(1) Except as provided in paragraph (c) of this section, VA
shall pay compensation in accordance with chapter 11 of title 38,
United States Code, to a Persian Gulf veteran who exhibits objective
indications of chronic disability resulting from an illness or
combination of illnesses manifested by one or more signs and symptoms
such as those listed in paragraph (b) of this section, provided that
such disability:
(i) Became manifest either during active military, naval, or air
service in the Southwest Asia theater of operations during the Persian
Gulf War, or to a degree of 10 percent or more not later than two years
after the date on which the veteran last performed active military,
naval, or air service in the Southwest Asia theater of operations
during the Persian Gulf War; and
(ii) By history, physical examination, and laboratory tests cannot
be attributed to any known clinical diagnosis.
(2) A disability referred to in this section will be considered
chronic if it has existed for 6 months or more.
(3) The chronic disability resulting from an illness referred to in
this section shall be rated using evaluation criteria from part 4 of
this chapter for a disease or injury in which the functions affected,
anatomical localization, and symptomatology are similar.
(4) A disability referred to in this section shall be considered
service connected for purposes of all laws of the United States.
(b) For the purposes of paragraph (a)(1) of this section, signs or
symptoms which may be manifestations of undiagnosed illness include,
but are not limited to:
(1) Fatigue
(2) Signs or symptoms involving skin
(3) Headache
(4) Muscle pain
(5) Joint pain
(6) Neurologic signs or symptoms
(7) Neuropsychological signs or symptoms
(8) Signs or symptoms involving the respiratory system (upper or
lower)
(9) Sleep disturbances
(10) Gastrointestinal signs or symptoms
(11) Cardiovascular signs or symptoms
(12) Abnormal weight loss
(13) Menstrual disorders.
(c) Compensation shall not be paid under this section:
(1) If there is affirmative evidence that an undiagnosed illness
was not incurred during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf War; or
(2) If there is affirmative evidence that an undiagnosed illness
was caused by a supervening condition or event that occurred between
the veteran's most recent departure from active duty in the Southwest
Asia theater of operations during the Persian Gulf War and the onset of
the illness; or
(3) If there is affirmative evidence that the illness is the result
of the veteran's own willful misconduct or the abuse of alcohol or
drugs.
(d) For purposes of this section:
(1) The term ``Persian Gulf veteran'' means a veteran who served on
active military, naval, or air service in the Southwest Asia theater of
operations during the Persian Gulf War.
(2) The Southwest Asia theater of operations includes Iraq, Kuwait,
Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain,
Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of
Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace
above these locations.
(Authority: Title I, Pub. L. 103-446; 38 U.S.C. 501(a))
3. Section 3.500 is amended by adding paragraph (y) to read as
follows:
Sec. 3.500 General.
* * * * *
(y) Compensation for certain disabilities due to undiagnosed
illnesses (Secs. 3.317 and 3.105). Last day of the month in which the
60-day period following notice to the payee of the final rating action
expires. This applies to both reduced evaluations and severance of
service connection.
(Authority: Public Law 103-446; 38 U.S.C. 501(a))
[FR Doc. 94-30133 Filed 12-7-94; 8:45 am]
BILLING CODE 8320-01-P
