[Federal Register Volume 60, Number 34 (Tuesday, February 21, 1995)]
[Rules and Regulations]
[Pages 9627-9628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4166]



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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3

RIN 2900-AH07


Claims Based on Exposure to Ionizing Radiation (Radiogenic 
Diseases)

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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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 Sec. 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 Sec. 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 Sec. 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 Sec. 3.311 to conform 
with the Court of Appeals' decision and Public Law 103-446, including a 
revision in Sec. 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 
[[Page 9628]] 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.


Sec. 3.311  [Amended]

    2. In Sec. 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 Sec. 3.311(a)(1), remove ``, listed in paragraph (b)(2) of 
this section,''.
    4. In Sec. 3.311(b)(1)(ii), remove ``specified in paragraph (b)(2) 
of this section''.
    5. In Sec. 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 Sec. 3.311(b)(2), the introductory paragraph is revised to 
read as follows:


Sec. 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 Sec. 3.311(b) redesignate paragraph (b)(4) as paragraph 
(b)(5), and add new paragraph (b)(4) to read as follows:


Sec. 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 Sec. 3.311, remove paragraph (h).

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