Claims Based on Exposure to Ionizing Radiation (Radiogenic Diseases)

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH07

Claims Based on Exposure to Ionizing Radiation (Radiogenic

Diseases)

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA)

adjudication regulations concerning claims based on exposure to

ionizing radiation. This amendment is necessary to implement a decision

by the United States Court of Appeals for the Federal Circuit and

recent legislation providing that VA's regulatory list of radiogenic

diseases is no longer an exclusive list of conditions which may be

considered service-connected solely on the basis of exposure to

ionizing radiation. The effect of this amendment is to provide

claimants who base their claims on conditions not on that regulatory

list an opportunity to establish service connection by demonstrating

that their conditions are radiogenic diseases.

EFFECTIVE DATE: This amendment is effective September 1, 1994.

FOR FURTHER INFORMATION CONTACT: Steven Thornberry, Consultant,

Regulations Staff (211B), Compensation and Pension Service, Veterans

Benefits Administration, 810 Vermont Avenue, NW, Washington, DC 20420;

telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: The Veterans' Dioxin and Radiation Exposure

Compensation Standards Act (Public Law 98-542) required VA to develop

regulations establishing standards and criteria for adjudicating

veterans' claims for service-connected compensation for diseases

arising from exposure to ionizing radiation during service. The law

also required that the Secretary, after receiving the advice of the

Veterans Advisory Committee on Environmental Hazards, determine which

conditions could be considered service-connected on the basis of

exposure to ionizing radiation and include those conditions in VA's

regulations.

In September 1985 VA published 38 CFR 3.311b, since redesignated as

3.311, to implement the radiation provisions of Pub. L. 98-542. As

threshold requirements for entitlement to compensation under this

regulation, a veteran must have been exposed to ionizing radiation

during atmospheric testing of nuclear weapons, the occupation of

Hiroshima and Nagasaki during World War II, or through other activities

as claimed, and must have subsequently developed a radiogenic disease

within a specified time period. Conditions not specifically listed in

the regulation at 3.311(b)(2) as radiogenic diseases were excluded from

consideration (See Sec. 3.311(h)). Since 1985, VA has added a number of

conditions to the list of radiogenic diseases.

On September 1, 1994, the United States Court of Appeals for the

Federal Circuit reversed the decision of the United States Court of

Veterans Appeals in Combee v. Brown, No. 93-7107. The Federal Circuit

held that Public Law 98-542 did not authorize VA to establish an

exclusive list of radiogenic conditions for which a claimant might

establish entitlement to direct service connection under Sec. 3.311. On

November 2, 1994, Public Law 103-446, the ``Veterans' Benefits

Improvements Act of 1994, was signed into law. Section 501(b) of that

law amended 38 U.S.C. 1113(b) to clarify that nothing contained in

Public Law 98-542 precludes a claimant from attempting to establish

direct service connection for a disability or disease based upon

exposure to ionizing radiation in service.

The amendment provides that if a claimant cites or submits

competent scientific or medical evidence that the claimed condition is

a radiogenic disease, the claim will be considered under the provisions

of Sec. 3.311. That provision is consistent with a decision by the U.S.

Court of Veterans Appeals that, where a determinative issue involves

medical causation, competent medical evidence to the effect that the

claim is plausible or possible is required to establish that the claim

is well grounded. (See Grottveit v. Brown 5 Vet. App. 91 (1993)) The

amendment also deletes 3.311(h), which set out VA's previous policy

that the list of radiogenic diseases is an exclusive list, because that

policy has been superseded by the Court of Appeals' decision in Combee

and section 501(b) of Public Law 103-446.

We are making technical changes throughout Sec. 3.311 to conform

with the Court of Appeals' decision and Public Law 103-446, including a

revision in Sec. 3.311(b)(2) to define the term ``radiogenic disease''

for the purposes of this regulation as a disease which may be induced

by ionizing radiation. We are also replacing all references to ``Chief

Medical Director'' and ``Chief Benefits Director'' with ``Under

Secretary for Health'' and ``Under Secretary for Benefits''

respectively, which are the correct statutory titles.

The amendment is effective September 1, 1994, the date of the

decision by the United States Court of Appeals for the Federal Circuit

in Combee v. Brown, which changed VA's legal interpretation of this

issue. Making the amendment effective that date rather than the date of

publication of the final rule works to the advantage of claimants who

may be entitled to the effective date considerations of 38 U.S.C.

5010(g) and 38 CFR 3.3114(a) without working to the detriment of any

other claimant.

It has been determined that the final rule, insofar as it relates

to radiogenic diseases, constitutes an interpretive rule and

restatement of statutory provisions, and, consequently, is exempt from

the notice and comment provisions and the 30 day delay provisions of 5

U.S.C. 553.

Because no notice of proposed rulemaking was required in connection

with the adoption of this final rule, no regulatory flexibility

analysis is required under the Regulatory Flexibility Act (5

[[Page 9628]] U.S.C. 601 et seq.). Even so, 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.

This amendment will only directly affect VA beneficiaries and will not

directly affect any small entities.

The Catalog of Federal Domestic Assistance program numbers are

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.

Approved: February 10, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is amended

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. 3.311 [Amended]

2. In Sec. 3.311 remove the words ``Chief Medical Director'' and

``Chief Benefits Director'', wherever they appear, and add in their

places the words ``Under Secretary for Health'' and ``Under Secretary

for Benefits'', respectively.

3. In Sec. 3.311(a)(1), remove ``, listed in paragraph (b)(2) of

this section,''.

4. In Sec. 3.311(b)(1)(ii), remove ``specified in paragraph (b)(2)

of this section''.

5. In Sec. 3.311(b)(1)(iii), remove ``(b)(4)'' and add in its place

``(b)(5)''; and remove ``(But see paragraph (h) of this section.)''.

6. In Sec. 3.311(b)(2), the introductory paragraph is revised to

read as follows:

Sec. 3.311 Claims based on exposure to ionizing radiation.

* * * * *

(b) Initial review of claims. * * *

(2) For purposes of this section the term ``radiogenic disease''

means a disease that may be induced by ionizing radiation and shall

include the following:

* * * * *

7. In Sec. 3.311(b) redesignate paragraph (b)(4) as paragraph

(b)(5), and add new paragraph (b)(4) to read as follows:

Sec. 3.311 Claims based on exposure to ionizing radiation.

* * * * *

(b) Initial review of claims. * * *

(4) If a claim is based on a disease other than one of those listed

in paragraphs (b)(2) or (b)(3) of this section, VA shall nevertheless

consider the claim under the provisions of this section provided that

the claimant has cited or submitted competent scientific or medical

evidence that the claimed condition is a radiogenic disease.

* * * * *

8. In Sec. 3.311, remove paragraph (h).

[FR Doc. 95-4166 Filed 2-17-95; 8:45 am]

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