Disease Subject to Presumptive Service Connection (Radiation Risk Activity)

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: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend

its adjudication regulations concerning diseases presumed to be the

result of exposure to ionizing radiation. This amendment is necessary

to implement a determination by the Secretary of Veterans Affairs that

the term ``radiation risk activity'' should include the onsite

participation in a test involving the atmospheric detonation of a

nuclear device by any government allied with the United States during

World War II. The intended effect of this amendment is to extend the

presumption of service connection for radiogenic disabilities to those

veterans exposed to radiation due to their onsite participation in

atmospheric nuclear tests conducted by allied governments.

DATES: Comments must be received on or before November 7, 1994.

Comments will be available for public inspection until November 17,

1994.

ADDRESSES: Interested persons are invited to submit written comments,

suggestions, or objections regarding this amendment to Secretary of

Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont

Avenue, NW., Washington, DC 20420. All written comments received will

be available for public inspection only in the Veterans Services Unit,

Room 119, at the above address between the hours of 8 a.m. and 4:30

p.m., Monday through Friday (except holidays), until November 17, 1994.

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, Pub. L. 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.

On June 21, 1989, VA published regulations at 38 CFR 3.309 to

implement the provisions of Pub. L. 100-321. Under these regulations,

if a veteran who was present at one of the specified sites during the

appropriate time subsequently develops one of the specified radiogenic

diseases, that condition is presumed to have resulted from the

veteran's in-service exposure to ionizing radiation. In formulating

these regulations, VA relied on the introductory language of the

statute, which 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.'' The effect of that

rulemaking was to exclude those veterans exposed to ionizing radiation

during atmospheric nuclear testing by governments allied with the

United States during World War II from the presumption of service

connection.

VA is aware that veterans who were involved in allied atmospheric

nuclear tests as part of their active military duty are at the same

risk of developing a radiogenic disease as veterans who were present at

atmospheric tests conducted by the United States. Under current

regulations, however, these veterans are not entitled to presumptive

service connection for the radiogenic conditions listed at 38 CFR

3.309(d)(2). In the judgement of the Secretary of Veterans Affairs, it

is only equitable that VA provide service connection for radiogenic

diseases 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.

Therefore, under the broad general rulemaking authority granted the

Secretary under the provisions of 38 U.S.C. 501(a), and the authority

to compensate for service-connected disabilities under 38 U.S.C. 1110

and 1131, we are amending 38 CFR 3.309(d) to extend the presumption

that radiogenic 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.

We propose to make this amendment effective the date of publication

of the final rule.

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 any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 606(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

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, Handicapped, Health

care, Pensions, Veterans.

Approved: July 7, 1994.

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.

Sec. 3.309 [Amended]

2. In Sec. 3.309, paragraph (d)(3)(ii)(A) is amended by removing

the period and adding in its place, the words ``or by the government of

any nation allied with the United States during World War II.''

3. In Sec. 3.309, paragraph (d)(3)(v) is amended by removing the

word ``The'' at the beginning of the sentence, and inserting 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. 94-21854 Filed 9-7-94; 8:45 am]

BILLING CODE 8320-01-M