Compensation for Certain Undiagnosed Illnesses

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI77

Compensation for Certain Undiagnosed Illnesses

AGENCY: Department of Veterans Affairs.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its

adjudication regulations regarding compensation for disabilities

resulting from undiagnosed illnesses suffered by Persian Gulf Veterans.

This amendment is necessary to expand the period within which such

disabilities must become manifest to a compensable degree in order for

entitlement for compensation to be established. The intended effect of

this amendment is to ensure that veterans with compensable disabilities

due to undiagnosed illnesses that may be related to active service in

the Southwest Asia theater of operations during the Persian Gulf War

may qualify for benefits.

DATES: Effective date: November 2, 1994. Comment date: Comments must be

received by VA on or before June 30, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AI77.'' All

written comments received will be available for public inspection at

the above address in the Office of Regulations Management, Room 1158,

between the hours of 8 a.m. and 4 p.m., Monday through Friday (except

holidays).

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue, NW., Washington, DC 20420,

telephone (202) 273-7230.

SUPPLEMENTARY INFORMATION: In response to the needs and concerns of

Persian Gulf veterans, Congress enacted the ``Persian Gulf War

Veterans' Benefits Act,'' Title I of the ``Veterans' Benefits

Improvements Act of 1994,'' Pub. L. 103-446. That statute added a new

section 1117 to Title 38, United States Code, authorizing the Secretary

of Veterans Affairs to compensate any Persian Gulf veteran suffering

from chronic disability resulting from an undiagnosed illness or

combination of undiagnosed illnesses that became manifest either during

active duty in the Southwest Asia theater of operations during the

Persian Gulf War or to a degree of ten percent or more within a

presumptive period, as determined by the Secretary, following service

in the Southwest Asia theater of operations during the Persian Gulf

War. The statute specified that in establishing a presumptive period

the Secretary should review any credible scientific or medical

evidence, the historical treatment afforded other diseases for which

service connection is presumed, and other pertinent circumstances

regarding the experience of Persian Gulf veterans.

In the Federal Register of February 3, 1995, VA published a final

rule adding a new Sec. 3.317 to title 38, Code of Federal Regulations,

to establish the regulatory framework necessary for the Secretary to

pay compensation under the authority granted by the Persian Gulf War

Veterans' Benefits Act (See 60 FR 6660-6666). As part of that

rulemaking, having determined that there was little or no scientific or

medical evidence at that time that would be useful in determining an

appropriate presumptive period, VA established a two-year-post-Gulf-

service presumptive period based on the historical treatment of

disabilities for which manifestation periods had been established and

pertinent circumstances regarding the experiences of Persian Gulf

veterans as they were then known.

Because of growing concerns regarding the adequacy of the two-year

presumptive period for undiagnosed illnesses, the Secretary recently

held a series of veterans' forums nationwide and consulted with members

of Congress as well as the leadership of the national veterans' service

organizations on the issue of that presumptive period. The Secretary

has concluded that the two-year presumptive period is inadequate

because: (1) Despite a broad federal research effort, there is

insufficient data about the nature and causes of these illnesses to

justify limiting the presumptive period to two years; and (2) it

prevents VA from compensating certain veterans with disabilities due to

undiagnosed conditions that may have resulted from their service in the

Persian Gulf War. Based upon the consensus concerning the inadequacy of

the current presumptive period and the continuing medical and

scientific uncertainty about the nature and causes of these illnesses,

the Secretary has determined that the presumptive period should be

extended to disabilities due to undiagnosed illnesses that become

manifest through the year 2001. By then, it is anticipated, results of

ongoing research may shed more light on these issues to guide future

policies.

We are making this amendment effective November 2, 1994, the

effective date of Title I of Pub. L. 103-446, in order to ensure that

all Persian Gulf War veterans suffering from disabilities resulting

from undiagnosed illnesses receive the benefits that Congress mandated

when it enacted Pub. L. 103-446.

We also are amending the authority citation following 38 CFR 3.317

to cite 38 U.S.C. 1117 rather than the Public Law that added that

section to the statute.

We are making this document effective on an emergency basis. We

have found good cause for concluding that notice and public procedure

[[Page 23139]]

thereon are impracticable, unnecessary, and contrary to the public

interest since veterans entitled to compensation must be provided such

compensation promptly to help them meet their financial obligations.

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. Only VA beneficiaries could be directly affected.

Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from

the initial and final regulatory flexibility analysis requirements of

sections 603 and 604.

This rule has been reviewed under Executive Order 12866 by the

Office of Management and Budget.

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: March 24, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth 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. 3.317 [Amended]

2. In Sec. 3.317, paragraph (a)(1)(i) is amended by removing ``two

years after the date on which the veteran last performed active

military, naval, or air service in the Southwest Asia theater of

operations during the Persian Gulf War'' and adding, in its place,

``December 31, 2001''.

3. In Sec. 3.317, the authority citation immediately following

paragraph (d)(2) is revised to read as follows:

Sec. 3.317 Compensation for certain disabilities due to undiagnosed

illnesses.

* * * * *

Authority: 38 U.S.C. 1117.

[FR Doc. 97-11055 Filed 4-28-97; 8:45 am]

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