[Federal Register Volume 74, Number 166 (Friday, August 28, 2009)]
[Rules and Regulations]
[Pages 44288-44289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20790]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AN16


Presumption of Service Connection for Osteoporosis for Former 
Prisoners of War

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
adjudication regulations to establish a presumption of service 
connection for osteoporosis for former Prisoners of War (POWs) who were 
detained or interned for at least 30 days and whose osteoporosis is at 
least 10 percent disabling. The amendment implements a decision by the 
Secretary to establish such a presumption based on scientific studies.
    VA is additionally amending its adjudication regulations to 
establish a presumption of service connection for osteoporosis for POWs 
who were detained or interned for any period of time, have a diagnosis 
of posttraumatic stress disorder (PTSD), and whose osteoporosis is at 
least 10 percent disabling. This amendment reflects statutory 
provisions of the Veterans' Benefits Improvement Act of 2008.

DATES: Effective Dates: September 28, 2009.
    Applicability Dates: For information concerning the dates of 
applicability for certain provisions, see the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9725.

SUPPLEMENTARY INFORMATION: On January 14, 2009, VA published a proposal 
in the Federal Register (74 FR 2016) to amend VA's regulations at 38 
CFR 3.309(c)(2) to establish a presumption of service connection for 
osteoporosis for POWs who were detained or interned for at least 30 
days and whose osteoporosis is at least 10 percent disabling. 
Interested persons were invited to submit written comments on or before 
February 13, 2009. We received one comment based on the proposed rule.

38 CFR 3.309(c)(2)

    The commenter stated that the proposed rule creating a presumption 
of service connection for POWs for osteoporosis does not eliminate the 
possibility that service connection may be denied under 38 CFR 
3.307(d), Rebuttal of service incurrence or aggravation. Section 
3.307(d) states that a presumption may be rebutted if the evidence is 
of the nature that would, in ``sound medical reasoning and in 
consideration of all evidence of record, support a conclusion that the 
disease was not incurred in service.'' The commenter stated that, for 
example, if a veteran who was a POW claimed service connection for 
osteoporosis and also used corticosteroids, VA could deny the veteran's 
claim under Sec.  3.307(d) based on medical treatises that state that 
osteoporosis is a common problem associated with corticosteroids. The 
commenter stated that the rule ``seems to be another example of the 
Secretary offering to grant service connection knowing that he will 
never have to actually [sic] do so.'' The commenter inquires about 
whether VA will ``grant service connection for osteoporosis in a 
veteran with a history of treatment with corticosteroids.''
    As stated in the proposed rulemaking, VA has established a policy 
to grant presumptive service connection for osteoporosis that is at 
least 10 percent disabling for POWs detained or interned for at least 
30 days. We make no change based on this comment because VA is 
obligated to follow Congress' directive in 38 U.S.C. 1113, which is 
implemented by 38 CFR 3.307(d), to deny service connection ``[w]here 
there is affirmative evidence to the contrary, or evidence to establish 
that an intercurrent injury or disease which is a recognized cause of 
any of the diseases or disabilities within the purview of [38 U.S.C. 
1112, 1116, 1117, or 1118], has been suffered between the date of 
separation from service and the onset of any such diseases or 
disabilities, or the disability is due to the veteran's own willful 
misconduct.'' Additionally, Congress has directed that ``the Secretary 
shall consider all information and lay and medical evidence of record 
in a case before the Secretary with respect to benefits under laws 
administered by the Secretary.'' 38 U.S.C. 5107(a). VA, therefore, may 
not ignore any evidence relevant to deciding a claim.
    However, we are making a change to the proposed regulation text by 
adding language specifying the date on which the rule will be 
applicable to avoid confusion with the amendment to 38 CFR 3.309(c)(1) 
discussed infra, which implements section 106 of the Veterans Benefits 
Improvement Act of 2008, Public Law 110-389, 122 Stat. 4145, 4149. The 
amendment at 38 CFR 3.309(c)(2) applies to all applications for 
benefits that are received by VA on or after the effective date of 
September 28, 2009, or that were pending before VA, the United States 
Court of Appeals for Veterans Claims, or the United States Court of 
Appeals for the Federal Circuit

[[Page 44289]]

on the effective date of this rule. In accordance with 38 U.S.C. 
5110(g), the effective date of benefits awarded under Sec.  3.309(c)(2) 
cannot be earlier than the effective date of this rule or the date 1 
year prior to the date of application, whichever is later.
    Based on the rationale stated in the notice of proposed rulemaking 
and in this document, the proposed rule is adopted as a final rule with 
the change noted above.

38 CFR 3.309(c)(1)

    On October 10, 2008, Public Law 110-389 was enacted. Section 106 of 
Public Law 110-389 amended 38 U.S.C. 1112(b)(2) by adding a new 
subparagraph (F) that creates a presumption of service connection for 
osteoporosis that becomes manifest to a degree of 10 percent for POWs 
if the Secretary determines that the veteran has PTSD.
    Section 1112(b)(2) is implemented by VA at Sec.  3.309(c)(1). To 
conform to the statutory amendment, we are adding ``On or after October 
10, 2008, Osteoporosis, if the Secretary determines that the veteran 
has posttraumatic stress disorder (PTSD)'' to the list of diseases at 
Sec.  3.309(c)(1).
    As noted above, we are including the applicability dates in the 
amended regulations to avoid confusion. The amendment regarding a 
presumption of service connection for osteoporosis for POWs with PTSD 
at 38 CFR 3.309(c)(1) is mandated by section 106 of Public Law 110-389 
and is therefore to be applied retroactively to all applications for 
benefits that are received by VA on or after October 10, 2008, the 
effective date of Public Law 110-389, or that were pending before VA, 
the United States Court of Appeals for Veterans Claims, or the United 
States Court of Appeals for the Federal Circuit on the effective date 
of this rule. In accordance with 38 U.S.C. 5110(g), the effective date 
of benefits awarded under Sec.  3.309(c)(1) cannot be earlier than the 
effective date of Public Law 110-389 or the date 1 year prior to the 
date of application, whichever is later.

Administrative Procedure Act

    The substantive change to Sec.  3.309(c)(1) made by this final rule 
merely reflects a statutory requirement. Accordingly, there is a basis 
for dispensing with prior notice and comment and a delayed effective 
date under the provisions of 5 U.S.C. 553. Use of those procedures 
would be impracticable, unnecessary, and contrary to the public 
interest.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this amendment to Sec.  
3.309(c) 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 rule does not affect any small 
entities. Only VA beneficiaries could be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB), as any regulatory action 
that is likely to result in a rule that may: (1) Have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this rule has been examined and it has been determined 
to be a significant regulatory action under the Executive Order because 
it is likely to result in a rule that may raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This rule would have no such effect on State, 
local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are as follows: 64.109, Veterans Compensation for 
Service-Connected Disability; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: June 9, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

0
For the reasons set forth in the preamble, VA is amending 38 CFR part 3 
as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), unless otherwise noted.


0
2. Amend Sec.  3.309(c) as follows:
0
a. In paragraph (c)(1), in the list of diseases, add ``On or after 
October 10, 2008, Osteoporosis, if the Secretary determines that the 
veteran has posttraumatic stress disorder (PTSD).'' after ``Stroke and 
its complications.''.
0
b. In paragraph (c)(2)(ii), in the list of diseases, add ``On or after 
September 28, 2009, Osteoporosis.'' after ``Cirrhosis of the liver.''.
0
c. Revising the authority citation.
    The revision reads as follows:


Sec.  3.309  Disease subject to presumptive service connection.

* * * * *
    (c) * * *
    (2) * * *

(Authority: 38 U.S.C. 501(a) and 1112(b))

[FR Doc. E9-20790 Filed 8-27-09; 8:45 am]
BILLING CODE 8320-01-P