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: 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]

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