2022-02176. Extension of the Presumptive Period for Compensation for Gulf War Veterans

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) amends 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 for entitlement for disability compensation to 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 to ensure fairness for current and future Persian Gulf War veterans.

DATES:

Effective date: This final rule is effective February 3, 2022.

Applicability date: The provisions of this final rule shall apply to all applications for benefits that are received by VA on or after the effective date of this final rule or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on the effective date of this final rule.

FOR FURTHER INFORMATION CONTACT:

Bryant Coleman, Regulations Staff (211D), Compensation Service, Veterans Benefits Administration, 810 Vermont Avenue NW, Washington, DC 20420, [phone]. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

On September 14, 2021, VA published an interim final rule in the Federal Register at 86 FR 51000 to amend its adjudication regulation 38 CFR 3.317 regarding compensation for disabilities suffered by veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War. This amendment is necessary to extend the presumptive period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a veteran to be eligible for compensation. To effectuate this rule, under 38 CFR 3.317(a)(1)(i), VA replaced the phrase “not later than December 31, 2021” with “not later than December 31, 2026.”

Under the provisions of 5 U.S.C. 553(b)(B) and (d)(3) the Secretary of Veterans Affairs found that there was good cause to publish this rule without prior opportunity for public comment. Had VA not extended the sunset date for the regulation, its authority to provide benefits in new claims for qualifying chronic disability in Gulf War veterans would have lapsed on December 31, 2021. A lapse of such authority would have been contrary to the public interest because it would have had a significant adverse impact on veterans disabled due to such disabilities. To avoid such impact, VA issued this rule as an interim final rule. However, VA invited interested persons to submit written comments on or before October 14, 2021, and received seven comments in response to the interim final rule. These comments are discussed below.

General Comments

Three commenters referenced their poor health concerns or the poor health concerns of a family member. While VA sympathizes with anyone suffering from a debilitating disability and/or disease, the scope of this rule only addresses the deadline for the manifestation of presumptive conditions. VA makes no changes based on these comments.

One commenter suggested the regulation should contain VA's definition of Southwest Asia. This rule merely extends the presumption period in 38 CFR 3.317, and that section already contains VA's definition of the Southwest Asia theater of operations (in 38 CFR 3.317(e)(2)). VA makes no changes based on this comment.

One commenter suggested that since no end date for the Persian Gulf War has been established by Congress, any deadline is premature. However, this rule does not impose a deadline; it extends the presumptive period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a veteran to be eligible for compensation based on the presumption. VA makes no changes based on this comment.

VA received two non-substantive comments. VA makes no changes based on these comments.

As VA makes no changes based on the comments received, this document adopts as a final rule the interim final rule published in the Federal Register on September 14, 2021.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the 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 effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule 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). There are no small entities involved with the process and/or benefits associated with the rulemaking. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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 one year. This final rule will have no such effect on state, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assitance numbers and titles for this rule are: 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Disability benefits
• Pensions
• Veterans

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved this document on January 19, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

Luvenia Potts,

Regulation Development Coordinator, Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs.

For the reasons set forth in the preamble, the Department of Veterans Affairs adopts the interim rule published September 14, 2021, at 86 FR 51000, as final without change.