44288 Federal Register / Vol. 74, No. 166 / Friday, August 28, 2009 / Rules and Regulations 

TABLE THREE

Vessel Number 

Masthead 

lights arc of 

visibility; 

rule 21(a) 

Side lights 

arc of 

visibility; 

rule 21(b) 

Stern light 

arc of 

visibility; 

rule 21(c) 

Side lights 

distance 

inboard of 

ship’s sides 

in meters 

3(b) annex 

1 

Stern light, 

distance 

forward of 

stern in 

meters; rule 

21(c) 

Forward 

anchor light, 

height 

above hull 

in meters; 

2(K) annex 

1 

Anchor 

lights 

relationship 

of aft light to 

forward light 

in meters 

2(K) annex 

1 

* * * * * * * 

USS NEW MEXICO .............. SSN 779 .................... .................... 206.4° 4.37 11.05 2.8 0.30 below. 

* * * * * * * 

* * * * * 

Approved: August 20, 2009. 

M. Robb Hyde, 

Commander, JAGC, U.S. Navy, Deputy 

Assistant Judge Advocate General (Admiralty 

and Maritime Law). 

[FR Doc. E9–20746 Filed 8–27–09; 8:45 am] 

BILLING CODE 3810–FF–P 

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. 

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 § 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 


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Federal Register / Vol. 74, No. 166 / Friday, August 28, 2009 / Rules and Regulations 44289 

on the effective date of this rule. In 

accordance with 38 U.S.C. 5110(g), the 

effective date of benefits awarded under 

§ 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 § 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 § 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 

§ 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 

§ 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 § 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 ServiceConnected 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. 

■ 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 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

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

otherwise noted. 

■ 2. Amend § 3.309(c) as follows: 

■ 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.’’. 

■ b. In paragraph (c)(2)(ii), in the list of 

diseases, add ‘‘On or after September 28, 

2009, Osteoporosis.’’ after ‘‘Cirrhosis of 

the liver.’’. 

■ c. Revising the authority citation. 

The revision reads as follows: 

§ 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 


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