05-12760. Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War

AGENCY:

Department of Veterans Affairs.

ACTION:

Affirmation of interim final rule as final rule.

SUMMARY:

This document affirms as final, without change, an interim final rule that established presumptions of service connection for atherosclerotic heart disease, hypertensive vascular disease, and stroke in former prisoners of war; set forth guidelines to govern future actions by the Department of Veterans Affairs (VA) to establish presumptions of service connection for other diseases associated with service involving detention or internment as a prisoner of war; and revised VA's regulations to conform to statutory changes made by the Veterans Benefits Act of 2003.

DATES:

The interim final rule became effective on October 7, 2004.

FOR FURTHER INFORMATION CONTACT:

Maya Ferrandino, Consultant, Compensation and Pension Service, Policy and Regulations Staff, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

Background

In a document published in the Federal Register on October 7, 2004 (69 FR 60083), VA issued an interim final rule that set forth guidelines to govern VA's determinations as to whether presumptions of service connection are warranted for any disease based on a finding that the disease may be associated with service involving detention or internment as a prisoner of war (POW). The interim final rule also established presumptions of service connection, pursuant to those guidelines, for atherosclerotic heart disease, hypertensive vascular disease, stroke, and their complications in former POWs. Finally, the interim final rule revised VA's regulations to reflect statutory changes made by section 201 of the Veterans Benefits Act of 2003, Public Law No. 108-183, which revised 38 U.S.C. 1112(b) to remove, for certain POW presumptive diseases, the previous requirement that the former POW must have been detained or interned for at least 30 days in order to qualify for the presumption. We solicited public comments on the interim final rule and we received comments from one individual.

In the October 7, 2004, Federal Register notice, we explained that VA generally employs evidentiary presumptions of service connection to assist claimants who face unusually difficult evidentiary burdens in demonstrating entitlement to VA disability and death benefits, due to circumstances such as the complexity of the medical issues involved in the claim or the lack of contemporaneous medical records during periods of service. We explained that Congress had previously established guidelines for determining whether new presumptions of service connection are warranted for disabilities associated with certain hazards of service, but had not established any guidelines for determining whether presumptions were warranted for diseases associated with service involving detention or internment as a prisoner of war. Accordingly, the interim final rule established such guidelines in 38 CFR 1.18, which, among other things, states that the Secretary of Veterans Affairs may establish a presumption of service connection for a disease when the Secretary finds that there is “limited/suggestive” evidence that an increased risk of such disease is associated with service involving detention or internment as a POW and the association is biologically plausible.

Applying the new guidelines in § 1.18, the Secretary determined that presumptions of service connection were warranted for atherosclerotic heart disease, hypertensive vascular disease, stroke, and their complications based on medical evidence indicating that those diseases are associated with service involving detention or internment as a POW. Accordingly, the interim final rule revised 38 CFR 3.309(c) to add those diseases to the list of diseases presumed to be associated with such service.

Analysis of Public Comment

We received comments from an epidemiologist with experience in veterans' health studies. Based on several medical studies, the commenter states that veterans who have a long-term history of post-traumatic stress disorder (PTSD) have a high risk of developing cardiovascular disease and myocardial infarction, particularly if such veterans suffer from other major psychiatric disorders or inflammatory diseases in addition to PTSD. The commenter states that, because former POWs have a relatively high rate of PTSD incurrence, they would presumably have an increased risk of cardiovascular disease. As noted above, the interim final rule established presumptions of service connection for atherosclerotic heart disease, hypertensive vascular disease, and their complications, including myocardial infarction, in former POWs. This action was based on the Secretary's determination that there was at least limited/suggestive evidence of an association between cardiovascular disease and POW experience and that such an association is biologically plausible. We noted that medical studies had detected an increased risk of cardiovascular disease among former POWs. We further noted that the evidence of an association between PTSD and cardiovascular disease lends support to our conclusion that cardiovascular disease is associated with POW experience. Accordingly, we believe the commenter's statement that former POWs have a higher risk of cardiovascular disease is consistent with our interim final rule.

To the extent the comment might be viewed as suggesting that we should use the term “cardiovascular disease” rather than the terms “atherosclerotic heart disease” and “hypertensive vascular disease” to describe the presumptive diseases, we make no change based on that comment. As explained in our October 7, 2004, Federal Register notice, the terms “atherosclerotic heart disease” and “hypertensive vascular disease” are broad terms encompassing a wide variety of cardiovascular diseases that may be described by more specific diagnoses in individual cases. We have concluded that those terms are sufficiently broad to cover the cardiovascular diseases for which there is evidence suggestive of an association with POW experience and, moreover, for which there is a biologically plausible relationship to circumstances of POW experience such as malnutrition and stress. We do not have sufficient evidence at this time to conclude that there is a sufficiently demonstrated and biologically plausible association between POW experience and certain other types of cardiovascular disease such as those of viral or bacterial origin. Accordingly, we believe that the term “atherosclerotic heart disease” most aptly describes the range of heart diseases for which current medical evidence supports a presumption of service connection, and that the term “hypertensive vascular disease” most aptly describes the range of peripheral vascular diseases for which current medical evidence supports a presumption of service connection.

The commenter also states that veterans with chronic PTSD have been found to have a significant risk of developing autoimmune diseases, such as rheumatoid arthritis, psoriasis, insulin-dependent diabetes, and hypothyroidism, and asserts that former POWs are therefore likely to have a higher risk of autoimmune diseases. We make no change based on this comment because it involves matters beyond the scope of the interim final rule. Although the interim final rule established presumptions of service connection for certain diseases, it should not be construed to reflect a determination by VA concerning the strength of any evidence that may exist for a possible association between other diseases, such as autoimmune diseases, and POW experience. In order to ensure the prompt delivery of benefits to the aging POW population, VA necessarily focused on certain diseases for which it was aware of the compelling evidence of an association with POW service. The issue of whether presumptions may be established for other specific diseases is beyond the scope of this final rule. However, the purpose of establishing guidelines in new § 1.18 was to provide a framework for VA, on an ongoing basis, to evaluate scientific and medical evidence pertaining to diseases possibly associated with POW experience as well as policy issues pertaining to the need for particular presumptions. Accordingly, evidence such as that cited by the commenter with respect to autoimmune diseases may be the subject of subsequent review and deliberation under the newly established guidelines.

We note further that existing VA regulations may provide a basis for granting service connection to former POWs who incur autoimmune diseases as a result of PTSD. Currently, 38 CFR 3.309(c) establishes a presumption of service connection for anxiety disorders, including PTSD, in former POWs. A separate regulation at 38 CFR 3.310 provides that service connection may be granted for any disability arising as a proximate result of a service-connected condition. Pursuant to those regulations, a former POW who has PTSD may be able to establish service connection for an autoimmune disease if medical evidence shows that the veteran's disease proximately resulted from the veteran's PTSD.

Administrative Procedure Act

In the October 7, 2004, Federal Register notice, we determined that there was a basis under the Administrative Procedure Act for issuing the interim final rule with immediate effect. We invited and received public comment on the interim final rule. This document merely affirms the interim final rule as a final rule without change.

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 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 (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

This document contains no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) previously has approved the VA application forms governing claims for benefits based on service-connected disability or death. Those forms specify the requirements for submitting information and evidence in support of such claims and would govern any claims for benefits based on the presumptions established by this rule. By establishing presumptions of service connection, this rule will relieve some claimants of the need to submit evidence directly establishing that a cardiovascular disease was incurred in or aggravated by service. The OMB approval numbers for the relevant information collections are 2900-0001 (VA Form 21-526, Veterans' Application for Compensation and/or Pension); 2900-0004 (VA Form 21-534, Application for DIC, Death Compensation, and Accrued Benefits by a Surviving Spouse or Child); and 2900-0005 (VA Form 21-535, Application for DIC by Parent(s)).

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory action 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. The reason for this certification is that these amendments will not directly affect any small entities. Only VA beneficiaries and their survivors will be directly affected.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers are 64.109, Veterans Compensation for Services-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

List of Subjects

38 CFR Part 1

• Administrative practice and procedure
• Claims

38 CFR Part 3

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

Approved: May 10, 2005.

R. James Nicholson,

Secretary of Veterans Affairs.

Accordingly, the interim final rule amending 38 CFR parts 1 and 3 which was published at 69 FR 60083 is adopted as a final rule without change.