[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Rules and Regulations]
[Pages 31250-31252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14480]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH04
Disease Subject to Presumptive Service Connection (Radiation Risk
Activity)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends Department of Veterans Affairs (VA)
adjudication regulations concerning diseases presumed to be the result
of exposure to ionizing radiation. This amendment is necessary to
implement Public Law 103-446, the Veterans' Benefits Improvements Act,
which provides that the term ``radiation risk activity'' includes the
onsite participation in a test involving the atmospheric detonation of
a nuclear device by the United States and by other governments. The
intended effect of this amendment is to extend the presumption of
service connection for radiogenic disabilities to those veterans
exposed to radiation during active military service due to onsite
participation in atmospheric nuclear tests conducted by nations other
than the United States.
EFFECTIVE DATE: This amendment is effective November 2, 1994, the date
of enactment of Public Law 103-446.
FOR FURTHER INFORMATION CONTACT: Lorna Weston, Consultant, Regulations
Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue NW., Washington, DC 20420, telephone
(202) 273-7210.
SUPPLEMENTARY INFORMATION: The Radiation-Exposed Veterans Compensation
Act of 1988, Public Law 100-321, which was enacted May 20, 1988,
established a presumption of service connection for specific radiogenic
diseases arising in veterans who had been present at the occupation of
Hiroshima or Nagasaki, who had potentially been exposed to ionizing
radiation as prisoners of war in Japan during World War II, or who had
participated onsite in a test involving the atmospheric detonation of a
nuclear device.
[[Page 31251]]
On June 21, 1989, VA published regulations at 38 CFR 3.309 to
implement the provisions of Pub. L. 100-321. The introductory language
of the statute had indicated that it was to apply to veterans ``who
participated in atmospheric or underwater nuclear tests as part of the
United States nuclear weapons testing program.'' In formulating the
regulations, therefore, VA defined radiation risk activity as including
onsite participation in a test involving the atmospheric detonation of
a nuclear device by the United States. The effect of that rulemaking
was to exclude those veterans exposed to ionizing radiation during
atmospheric nuclear testing by governments other than the United States
from the presumption of service connection.
The Secretary determined that this rule should be revised to allow
consideration of service connection on the same presumptive basis for
these veterans as for veterans exposed to ionizing radiation due to
atmospheric nuclear detonations conducted as a part of the U.S. testing
program. Accordingly, on September 8, 1994, VA published a proposal in
the Federal Register (59 FR 46379-46380) to amend its adjudication
regulations at 38 CFR 3.309(d)(3) to extend the presumption that
specified diseases are the result of in-service exposure to ionizing
radiation to veterans who were present at atmospheric nuclear tests
conducted by any government allied with the United States during World
War II. Interested persons were invited to submit written comments,
suggestions or objections on or before November 7, 1994.
On November 2, 1994, the President signed Pub. L. 103-446, the
Veterans' Benefits Improvements Act. Section 501(a) of that law
clarified Congressional intent on this issue by amending 38 U.S.C.
1112(c)(3)(B) to define the term ``radiation-risk activity'' to include
onsite participation in a test involving the atmospheric detonation of
a nuclear device ``without regard to whether the nation conducting the
test was the United States or another nation.''
We received two comments in response to the proposed rule published
September 8, 1994. Both comments suggested that the amendment should
apply to any nuclear tests to which military personnel were assigned
and that the phrases ``any government allied with the United States
during World War II'' and ``atmospheric nuclear tests conducted by
allied governments'' are therefore too restrictive.
We not only agree, but the suggestion is consistent with section
501 of Public Law 103-446, the Veterans' Benefits Improvements Act of
1994. We have revised the regulation accordingly.
One comment expressed concern that literal interpretation of the
phrase ``onsite participation'' could disqualify those veterans
involved in aerial sampling, ground support and decontamination
activities and suggested we expand the term ``atmospheric nuclear
test'' to include ``test activities'' without requiring that the
veteran had literally been present at the test site itself.
The term ``onsite participation'' is a statutory term (See 38
U.S.C. 1112 (c)(3)(B)(i)) that VA has interpreted to mean presence at a
test site, performance of official military duties in direct support of
the nuclear test during the operational period of the test itself, and
duties performed during the six-month period following a test in
connection with test-related projects, including decontamination
activities. (See 38 CFR 3.309(d)(3)(iii)) This definition clearly
precludes the possibility that veterans engaged in aerial sampling,
ground support or decontamination activities would be ineligible for
consideration under this regulation. In our judgment, that definition
of the term ``onsite participation'' is sufficiently broad to assure
inclusion of all veterans engaged in test activities including support,
clean up, decontamination and follow-up duties, and no change in the
current language of the regulation is warranted.
One comment stated that dosimeter records are not available for all
tests and suggested that we revise the regulation to include an
alternate method for reconstructing radiation exposure.
The statute and this implementing regulation establish the
presumption that specific radiogenic diseases arising in veterans who
participated in specific radiation risk activities are service-
connected regardless of the amount of radiation to which the veteran
was exposed. For this reason, inclusion of dose reconstruction methods
in this regulation would be both unnecessary and inappropriate.
One comment recommended that we add language to the regulation
setting out evidentiary requirements for establishing a veteran's
participation in a test, to include review of military orders, unit
history and the veteran's affidavit supported by adequate lay
testimony.
Neither 38 U.S.C. 1112(c) nor 38 CFR 3.309(d) set forth specific
evidentiary requirements for establishing a veteran's presence at
Hiroshima, Nagasaki or an atmospheric nuclear test. Eligibility for VA
benefits is determined based on the preponderance of evidence. Any
evidence that the veteran offers, whether it is documentary,
testimonial or in some other form, is included in the record and
considered (See 38 CFR 3.103(d)) and a veteran's statement is clearly
evidence which VA must consider along with service records and all
other evidence of record. In addition, by regulation VA must resolve
reasonable doubt as to service origin or any other point in favor of
the claimant. (See 38 CFR 3.102.) In our judgment, these provisions
adequately address the concerns expressed in the comment and there is
therefore no need to add language to this regulation setting forth
specific evidentiary requirements.
VA appreciates both comments received in response to the proposed
regulatory amendment, which is now adopted with changes as noted above.
The effective date of the amendment is November 2, 1994, the date
Public Law 103-446 was enacted.
The Secretary 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. This amendment will directly affect VA beneficiaries but will not
directly affect small business. Therefore, pursuant to 5 U.S.C. 606(b),
this final rule is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
This regulatory action has been reviewed by the Office of
Management and Budget under Executive Order 12866.
The Catalog of Federal Domestic Assistance program numbers are
64.101, 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.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
to read 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.
[[Page 31252]]
Sec. 3.309 Disease subject to presumptive service connection.
[Amended]
2. In Sec. 3.309, paragraph (d)(3)(ii)(A) is amended by removing
the words ``by the United States''.
3. In Sec. 3.309, paragraph (d)(3)(v) is amended by removing the
word ``The'' at the beginning of the sentence, and adding in its place
the words ``For tests conducted by the United States, the''.
4. The authority citation following Sec. 3.309(d)(3)(vii)(D) is
revised to read as follows:
Authority: 38 U.S.C. 1110, 1112, 1131.
[FR Doc. 95-14480 Filed 6-13-95; 8:45 am]
BILLING CODE 8320-01-P
