Federal Register / Vol. 60, No. 34 / Tuesday, February 21, 1995 / Rules and Regulations 9627

initial and final regulatory flexibility

analyses requirements of sections 603

and 604.

The Catalogue 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

set forth below:

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. In § 3.500, paragraph (e) is

amended by removing the first sentence

and adding in its place ‘‘The day

preceding the date the award of benefits

under the Federal Employees’

Compensation Act became effective.’’;

and by adding an authority citation to

read as follows:

§ 3.500 General.

* * * * *

(e) * * *

(Authority: 5 U.S.C. 8116)

* * * * *

[FR Doc. 95–4165 Filed 2–17–95; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 3

RIN 2900–AH07

Claims Based on Exposure to Ionizing

Radiation (Radiogenic Diseases)

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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 § 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 § 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 § 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 § 3.311 to conform with the

Court of Appeals’ decision and Public

Law 103–446, including a revision in

§ 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
9628 Federal Register / Vol. 60, No. 34 / Tuesday, February 21, 1995 / Rules and Regulations

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.

§ 3.311 [Amended]

2. In § 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 § 3.311(a)(1), remove ‘‘, listed in

paragraph (b)(2) of this section,’’.

4. In § 3.311(b)(1)(ii), remove

‘‘specified in paragraph (b)(2) of this

section’’.

5. In § 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 § 3.311(b)(2), the introductory

paragraph is revised to read as follows:

§ 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 § 3.311(b) redesignate paragraph

(b)(4) as paragraph (b)(5), and add new

paragraph (b)(4) to read as follows:

§ 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 § 3.311, remove paragraph (h).

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

BILLING CODE 8320–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 93–71, RM–8134]

Radio Broadcasting Services;

Wickenburg, AZ

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document denies the

petition for reconsideration filed by

Vulture Peak Restoration Group of our

Report and Order, 59 FR 27505 (May 27,

1994) substituting Channel 231C3 for

Channel 229A at Wickenburg, Arizona

and modifying the license for Station

KMEO(FM) to specify the higher class

channel. The Commission determined

that Vulture’s arguments concerning

interference to Television Channels 8

and 10 were speculative. With this

action, this proceeding is terminated.

EFFECTIVE DATE: February 21, 1995.

FOR FURTHER INFORMATION CONTACT:

Arthur D. Scrutchins, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order, MM

Docket No. 93–71, adopted February 7,

1995 and released February 10, 1995.

The full text of this Commission

decision is available for inspection and

copying during normal business hours

in the FCC Reference Center (Room

239), 1919 M Street NW, Washington

DC. The complete text of this decision

may also be purchased from the

Commission’s copy contractors,

International Transcription Service,

Inc., (202) 857–3800, 2100 M Street

NW., suite 140, Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

Douglas W. Webbink,

Chief, Policy and Rules Division, Mass Media

Bureau.

[FR Doc. 95–4079 Filed 2–17–95; 8:45 am]

BILLING CODE 6712–01–F