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: Final rule.

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SUMMARY: This document adopts as a final rule the provisions of an

interim final rule which amended the Department of Veterans Affairs

(VA) 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: March 6, 1998.

Applicability Date: November 2, 1994.

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, VA, 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, 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.

In the Federal Register of April 29, 1997, VA published an interim

rule with a request for comments that revised the presumptive period

for disabilities due to undiagnosed illnesses suffered by Persian Gulf

veterans. As revised, the presumptive period encompasses any such

disability that becomes manifest to a compensable degree through the

year 2001 (See 62 FR 23138-23139). Interested persons were invited to

submit written comments concerning the interim rule on or before

[[Page 11123]]

June 30, 1997. VA received one comment from a concerned individual.

The commenter stated that the extension of the presumptive period

for disabilities due to undiagnosed illnesses is inconsistent with the

Secretary's responsibilities under the law.

Section 103(1) of Pub. L. 103-446 establishes that the first

purpose of the legislation is to provide compensation to Persian Gulf

War veterans who suffer disabilities resulting from illnesses that

cannot now be diagnosed or defined, and for which other causes cannot

be identified. The Secretary determined that in order to accomplish

this purpose it was necessary to extend the presumptive period. That

action clearly was consistent with his responsibilities under the law

and we make no change based on this comment.

The commenter stated that it is unfair to make a decision to extend

the presumptive period without supporting data regarding the latency

period of the illnesses at issue.

Pub. L. 103-446 requires the Secretary to prescribe the period of

time following Persian Gulf War service appropriate for the presumption

of service connection for disabilities due to undiagnosed illnesses

after reviewing, among other things, any available credible medical or

scientific evidence.

Despite a broad federal research effort, there is still

insufficient data about the nature and causes of the undiagnosed

illnesses to establish a specific latency period. What is clear,

however, is that a two-year presumptive period prevented VA from

compensating certain veterans with disabilities due to undiagnosed

illnesses that may have resulted from their service in the Persian Gulf

War. The Secretary therefore decided to extend the presumptive period

until a time when it is reasonable to anticipate that the results of

ongoing research may have shed enough light on these issues to guide

future policies. For these reasons, we make no change based on this

comment.

This commenter also stated that the extension of the presumptive

period for disabilities due to undiagnosed illnesses is unfair since we

are still within the Persian Gulf War time period and veterans will,

therefore, have significantly different presumptive periods.

Once it became clear that a significant number of veterans were

developing disabilities due to undiagnosed illnesses more than two

years after the date that they last served in the Persian Gulf, the

Secretary determined that the most equitable way to address this issue

was to extend the presumptive period in such a manner that no Persian

Gulf veterans with qualifying disabilities would be denied

compensation. If the results of ongoing research eventually identify a

latency period, VA will revise the presumptive period accordingly. In

the meantime, no one should be denied benefits unfairly because of a

presumptive period that, based on VA's experience with claims from

Persian Gulf veterans, is too short. The department, therefore, makes

no change based on this comment.

Based on the rationale set forth in the interim final rule and this

document, the interim final rule amending 38 CFR part 3 which was

published at 62 FR 23138 on April 29, 1997, is adopted as a final rule

without change.

Approved: February 27, 1998.

Togo D. West, Jr.,

Acting Secretary.

[FR Doc. 98-5841 Filed 3-5-98; 8:45 am]

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