53202 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

other than a program as described in 

paragraph (h) of this section, if the 

Secretary determines that such 

termination of collection is in the best 

interest of the United States. For 

purposes of this paragraph, an 

individual is any member of the Armed 

Forces or veteran who dies as a result 

of an injury incurred or aggravated in 

the line of duty while serving in a 

theater of combat operations in a war or 

in combat against a hostile force during 

a period of hostilities on or after 

September 11, 2001. 

(c) For purposes of this section: 

(1) Theater of combat operations 

means the geographic area of operations 

where the Secretary in consultation 

with the Secretary of Defense 

determines that combat occurred. 

(2) Period of hostilities means an 

armed conflict in which members of the 

United States Armed Forces are 

subjected to danger comparable to 

danger to which members of the Armed 

Forces have been subjected in combat 

with enemy armed forces during a 

period of war, as determined by the 

Secretary in consultation with the 

Secretary of Defense. 

(d) The Secretary may refund amounts 

collected after the death of a member of 

the Armed Forces or veteran in 

accordance with this paragraph and 

paragraph (e) of this section. 

(1) In any case where all or any part 

of a debt of a member of the Armed 

Forces, as described under paragraph (a) 

of this section, was collected, the 

Secretary may refund the amount 

collected if, in the Secretary’s 

determination, the indebtedness would 

have been suspended or terminated 

under authority of 31 U.S.C. 3711(f). 

The member of the Armed Services 

must have been serving on active duty 

on or after September 11, 2001. In any 

case where all or any part of a debt of 

a covered member of the Armed Forces 

was collected, the Secretary may refund 

the amount collected, but only if the 

Secretary determines that, under the 

circumstances applicable with respect 

to the deceased member of the Armed 

Forces, it is appropriate to do so. 

(2) In any case where all or any part 

of a debt of a covered member of the 

Armed Forces or veteran, as described 

under paragraph (b) of this section, was 

collected on or after September 11, 

2001, the Secretary may refund the 

amount collected if, in the Secretary’s 

determination, the indebtedness would 

have been terminated under authority of 

38 U.S.C. 5302A. In addition, the 

Secretary may refund the amount only 

if he or she determines that the 

deceased individual is equitably 

entitled to the refund. 

(e) Refunds under paragraph (d) of 

this section will be made to the estate 

of the decedent or, in its absence, to the 

decedent’s next-of-kin in the order 

listed below. 

(1) The decedent’s spouse. 

(2) The decedent’s children (in equal 

shares). 

(3) The decedent’s parents (in equal 

shares). 

(f) The authority exercised by the 

Secretary to suspend or terminate 

collection action and/or refund amounts 

collected on certain indebtedness is 

reserved to the Secretary and will not be 

delegated. 

(g) Requests for a determination to 

suspend or terminate collection action 

and/or refund amounts previously 

collected as described in this section 

will be submitted to the Office of the 

Secretary through the Office of the 

General Counsel. Such requests for 

suspension or termination and/or 

refund may be initiated by the head of 

the VA administration having 

responsibility for the program that gave 

rise to the indebtedness, or any 

concerned staff office, or by the 

Chairman of the Board of Veterans’ 

Appeals. When a recommendation for 

refund under this section is initiated by 

the head of a staff office, or by the 

Chairman, Board of Veterans’ Appeals, 

the views of the head of the 

administration that administers the 

program that gave rise to the 

indebtedness will be obtained and 

transmitted with the recommendation of 

the initiating office. 

(h) The provisions of this section 

concerning suspension or termination of 

collection actions and the refunding of 

moneys previously collected do not 

apply to any amounts owed the United 

States under any program carried out 

under 38 U.S.C. chapter 37. 

(Authority: 38 U.S.C. 501, 5302A; 31 U.S.C. 

3711(f)). 

[FR Doc. 2010–21668 Filed 8–30–10; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN54 

Diseases Associated With Exposure to 

Certain Herbicide Agents (Hairy Cell 

Leukemia and Other Chronic B-Cell 

Leukemias, Parkinson’s Disease and 

Ischemic Heart Disease) 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Department of Veterans Affairs (VA) 

adjudication regulations concerning 

presumptive service connection for 

certain diseases based upon the most 

recent National Academy of Sciences 

(NAS) Institute of Medicine committee 

report, Veterans and Agent Orange: 

Update 2008 (Update 2008). This 

amendment is necessary to implement 

the decision of the Secretary of Veterans 

Affairs that there is a positive 

association between exposure to certain 

herbicides and the subsequent 

development of hairy cell leukemia and 

other chronic B-cell leukemias, 

Parkinson’s disease, and ischemic heart 

disease. The effect of this amendment is 

to establish presumptive service 

connection for these diseases based on 

herbicide exposure. 

DATES: Effective Date: This final rule is 

effective August 31, 2010. This final 

rule is a major rule and the 

implementation of this rule is subject to 

the provisions of the Congressional 

Review Act (CRA). The CRA provides 

for a 60-day waiting period before an 

agency may implement a major rule to 

allow Congress the opportunity to 

review the regulation. The impact of the 

CRA will require at least a 60-day delay 

between the issuance of the final 

regulation and when VA can begin 

paying benefits. 

Applicability Date: This final rule 

shall apply to claims received by VA on 

or after the date of publication of the 

final rule in the Federal Register and to 

claims pending before VA on that date. 

Additionally, VA will apply this rule in 

readjudicating certain previously denied 

claims as required by court orders in 

Nehmer v. Department of Veterans 

Affairs, No. CV–86–6161 TEH (N.D. 

Cal.) (Nehmer). 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Kniffen, Regulations Staff 

(211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9725 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On March 

25, 2010, VA published in the Federal 

Register (75 FR 14391) a proposal to 

amend 38 CFR 3.309 to add hairy cell 

leukemia and other chronic B-cell 

leukemias, Parkinson’s disease and 

ischemic heart disease to the list of 

diseases subject to presumptive service 

connection based on herbicide 

exposure. Interested persons were 

invited to submit written comments on 

or before April 26, 2010. VA received 

670 comments on the proposed rule. 

Overall, the comments VA received are 


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in favor of the Secretary’s decision to 

establish the new presumption of 

service connection for hairy cell 

leukemia and other chronic B-cell 

leukemias, Parkinson’s disease and 

ischemic heart disease. 

VA received comments from service 

organizations, including Vietnam 

Veterans of America, Inc. (VVA), The 

Blue Water Navy Vietnam Veterans 

Association (BWNVVA), and other 

organizations, which include The 

Parkinson’s Action Network, National 

Parkinson’s Foundation, U.S. Military 

Veterans with Parkinson’s (USMVP), 

Team Parkinson, Parkinson’s Focus 

Today, Middle Tennessee Chapter of the 

American Parkinson Disease 

Association, Froedtert & The Medical 

College of Wisconsin, and the National 

Organization of Veterans’ Advocates, as 

well as from individuals. Those 

comments, which have been grouped by 

category, are addressed below. 

VA also received numerous comments 

from veterans and surviving spouses 

regarding their individual claims for 

veterans’ benefits. We do not respond to 

these comments in this notice as they 

are beyond the scope of this rulemaking. 

A. Comments Concerning the Effective 

Date 

VA received more than 20 comments 

concerning the effective date of the 

regulation. Comments included 

suggestions that this rule should be 

effective on the date the Secretary 

announced his decision to establish the 

new presumptives or on the date an 

eligible veteran incurred one of the 

presumptive diseases. Other 

commenters stated that the rule should 

be effective when an eligible veteran 

was diagnosed with a presumptive 

disease, rather than when the veteran 

submitted a claim for compensation. 

VA Response: The proposed rule did 

not state when this regulation will be 

effective. The final rule makes clear that 

the effective date of this rule is the date 

of publication in the Federal Register. 

This is consistent with the terms of 

section 1116, title 38, United States 

Code (U.S.C.), which provides detailed 

instructions as to promulgation of 

regulations relating to presumptions of 

service connection for diseases 

associated with herbicide agents, 

including the effective date for such 

rules. The statute prescribes that when 

the Secretary determines that such a 

presumption is warranted, the Secretary 

‘‘shall issue proposed regulations setting 

forth [the] determination.’’ 38 U.S.C. 

1116(c)(1)(A). The Secretary must then 

‘‘issue final regulations’’ which ‘‘shall be 

effective on the date of issuance.’’ 38 

U.S.C. 1116(c)(2). Many of the 

comments received about the effective 

date of the regulation encouraged VA to 

establish an effective date earlier than 

the date of issuance of the final rule for 

equitable reasons. These comments 

include statements that it would be 

more appropriate to compensate 

veterans back to when the newly 

established presumptive disease was 

diagnosed or when they became 

disabled. Other commenters stated that 

veterans who filed claims years ago that 

had little chance of being granted will 

now receive large retroactive awards but 

those who did not file such claims will 

be penalized for not filing such claims. 

As the governing statute mandates that 

the effective date of the new regulation 

be the date of issuance of the final rule 

the Secretary of Veterans Affairs has no 

discretion to set an effective date for the 

new presumptions earlier than the date 

the final regulation is issued. 

Significantly, however, VA may pay 

benefits for periods prior to the rule’s 

effective date in certain circumstances 

which are set forth in detail in 38 CFR 

3.816(c) and (d). These provisions, 

which implement a stipulation and 

various court orders in the Nehmer class 

action litigation, pertain to claims where 

VA previously denied benefits or VA 

received a claim for benefits for a newly 

added condition between September 25, 

1985, and the date VA publishes the 

final regulation adding the new 

condition to the list of diseases 

presumptively associated with exposure 

to herbicides used in Vietnam. 

As set forth in 38 CFR 3.816(c) and 

(d), the effective date for such claims is 

the later of the date VA received the 

above described claim or the date the 

disability arose. As a result, effective 

dates for benefits earlier than the date 

the final regulation is issued may be 

assigned in cases governed by the 

Nehmer litigation. This means that in 

many cases veterans and their 

dependents who filed claims prior to 

the issuance of the final rule will be 

awarded retroactive benefits to the date 

the claim was filed. However, even in 

Nehmer cases there is no basis for a 

retroactive award of benefits based 

solely upon the date a condition was 

incurred or diagnosed, or when the 

veterans became disabled. Under 38 

U.S.C. 5110(a), VA generally may not 

pay benefits for any period prior to the 

date it receives an application for those 

benefits. 

We recognize the concern stated by 

some commenters that the retroactive 

payments authorized under Nehmer do 

not extend to persons who refrained 

from filing prior claims that they 

reasonably believed would not have 

been granted at that time. As explained 

above, however, VA generally cannot 

pay benefits prior to the date of a claim 

for benefits. Ordinarily, when VA 

establishes a new presumption of 

service connection, it cannot pay 

retroactive benefits for any period before 

the new presumption takes effect, due to 

the operation of 38 U.S.C. 5110(g). The 

Nehmer court orders create a limited 

exception to that statutory rule for cases 

where a Nehmer class member filed a 

claim before the new rule took effect. 

VA does not have authority to further 

expand that judicial exception in a 

manner that would conflict with the 

governing statutes. 

B. Comments Regarding the Addition of 

Parkinson’s Disease to VA’s List of 

Presumptive Diseases 

VA received nearly 400 comments in 

favor of the proposed regulation from 

individuals and organizations that, for 

various reasons, support the addition of 

Parkinson’s disease to VA’s regulation 

listing diseases that are presumptively 

service connected based upon exposure 

to herbicides used in Vietnam. Many of 

these comments also suggest that VA 

clarify its definition of Parkinson’s 

disease, to include diseases of 

Parkinsonism (primary, atypical, and 

secondary Parkinson’s diseases) and 

secondary Parkinsonism syndromes, as 

well as other Parkinsonian disorders. 

VA Response: Update 2008 only 

evaluated the correlation between 

certain herbicide exposure and 

Parkinson’s disease. Parkinsonism, and 

other similar diseases, is not the same 

disease as Parkinson’s disease. 

According to Update 2008, 

PD [Parkinson’s Disease] must be 

distinguished from a variety of parkinsonian 

syndromes, including drug-induced 

parkinsonism and neurodegenerative 

diseases, such as multiple systems atrophy, 

which have parkinsonian features combined 

with other abnormalities * * * Pathologic 

findings in other causes of parkinsonism 

show different patterns of brain injury [than 

with PD]. 

Institute of Medicine of the National 

Academies, Veterans and Agent Orange: 

Update 2008, The National Academies 

Press (Washington, DC, 2009), pp. 515– 

16; available online at http://www.nap.

edu/openbook.php?record_id=12662&

page=515 (accessed May 19, 2010). 

VA greatly appreciates the outpouring 

of support of the proposed regulation by 

individuals affected by Parkinson’s 

disease and organizations that advocate 

on behalf of the Parkinson’s community. 

VA is not, however, able to revise the 

definition of Parkinson’s disease to 

include Parkinsonism within this 

presumptive category. We understand 

that there are differing views in the 


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medical community concerning the 

clinical and pathological features of 

Parkinson’s disease and other diseases 

that manifest similar symptoms. In VA’s 

view, medical evidence, as described in 

Update 2008, simply does not support 

the expansion of the definition to 

include Parkinsonism and/or 

Parkinsonian syndromes and/or similar 

conditions at this time. If the Institute of 

Medicine (IOM) provides additional 

guidance regarding Parkinsonism, 

secondary Parkinsonian disorders, 

Parkinsonian syndromes or other 

similar conditions, and/or the 

synergistic effects of exposure to a 

combination of herbicides in future 

reports, VA will, of course, consider that 

guidance in assessing whether 

additional presumptive diseases should 

be added and/or whether its regulatory 

definitions should be revised. As 

acknowledged by the IOM in Update 

2008, ‘‘the preponderance of 

epidemiologic evidence now supports 

an association between herbicide 

exposure and PD.’’ The IOM, however, 

also expressed concerns about the ‘‘lack 

of data relating PD incidence to 

exposure in the Vietnam-Veteran 

population’’ and ‘‘recommend[ed] 

strongly that studies to produce such 

data be performed.’’ To that end, the 

IOM stated ‘‘we are also concerned that 

a biologic mechanism by which the 

chemicals of interest may cause PD has 

not been demonstrated.’’ 

Institute of Medicine of the National 

Academies, Veterans and Agent Orange: 

Update 2008, The National Academies 

Press (Washington DC, 2009), pp. 526– 

27; available online at http://www.nap.

edu/openbook.php?record_id=12662&

page=526 (accessed June 15, 2010). 

Expansion of VA’s definition beyond 

Parkinson’s disease is not warranted 

under such circumstances, particularly 

in light of the IOM’s findings quoted 

above that ‘‘PD must be distinguished 

from a variety of [P]arkinsonian 

syndromes.’’ Accordingly, VA makes no 

change based on comments requesting a 

broader and/or more inclusive 

regulatory definition of Parkinson’s 

disease. 

Included in the comments received 

concerning the addition of Parkinson’s 

disease to VA’s list of presumptive 

conditions were comments suggesting 

that VA make various improvements 

regarding procedures and services 

provided to veterans with Parkinson’s 

disease and their caregivers. These 

suggestions, which range from 

conducting additional research and 

studies regarding Parkinson’s disease 

and other similar conditions to revising 

the VA Schedule for Rating Disabilities, 

are beyond the scope of this rulemaking 

and will not be addressed. 

C. Comments Concerning VA’s 

Definition of Ischemic Heart Disease 

(IHD) 

(1) Lack of Reference to ICD–9–CM 

Medical Terminology and Codes 

One commenter expressed concern 

that VA regulations do not include any 

references to The International 

Classification of Diseases, 9th Revision, 

Clinical Modification, Sixth Edition 

(ICD–9 CM) codes in addition to the 

cited definition of IHD from Harrison’s 

Principles of Internal Medicine 

(Harrison’s Online, Chapter 237, 

Ischemic Heart Disease, 2008). The 

commenter is concerned that a VA 

employee reviewing a claim for 

disability would be ‘‘limited to the 

narrow and probably not extensive 

enough scope of representative criteria 

provided by the VA’s definition.’’ 

VA Response: VA believes that the 

definition of IHD in the proposed rule 

and the clarifying description in the 

preamble to the proposed rule are 

actually more accommodating to 

appropriate ratings determinations than 

ICD–9–CM because the description of 

IHD contained in the proposed rule is 

not restricted to a finite list of diagnoses 

as would be the case if ICD–9–CM codes 

were employed. To this end, for 

purposes of establishing service 

connection VA interprets IHD, as 

referred to in the regulation, as 

encompassing any atherosclerotic heart 

disease resulting in clinically significant 

ischemia or requiring coronary 

revascularization. 

VA views ICD–9–CM as a reference 

tool ‘‘used to code and classify 

morbidity data from the inpatient and 

outpatient records, physician offices, 

and most National Center for Health 

Statistics (NCHS) surveys.’’ Centers for 

Disease Control and Prevention, ICD— 

Classification of Diseases, Functioning, 

and Disability, available at http:// 

www.cdc.gov/nchs/icd.htm (accessed 

May 13, 2010). It serves as a 

standardized listing of diseases 

designed to facilitate effective 

communication between medical 

personnel. It does not contain any 

descriptive definition of IHD; therefore, 

it does not provide any additional 

assistance to either VA employees or 

veterans in understanding what 

constitutes IHD or what criteria must be 

used in making a medical diagnosis of 

such. 

Consequently, VA chose to base its 

definition of Ischemic Heart disease 

upon the definition contained in a 

leading medical treatise, Harrison’s 

Principles of Internal Medicine, and 

does not believe it is necessary to revise 

that definition to include ICD–9–CM 

references. VA makes no change based 

on this comment. 

(2) Exclusion of Diseases That Do Not 

Result in Oxygen Deficiency in the Heart 

Three commenters expressed a desire 

for VA to expand the definition of IHD 

to include diseases (such as 

hypertension, peripheral arterial 

disease, and stroke) that are potentially 

secondarily connected to IHD. 

VA Response: In the preamble to the 

proposed rule, VA, citing Harrison’s 

Principles of Internal Medicine—a 

respected and universally recognized 

reference in the medical community, 

clarified and explained the definition of 

IHD as ‘‘an inadequate supply of blood 

and oxygen to a portion of the 

myocardium; it typically occurs when 

there is an imbalance between 

myocardial oxygen supply and 

demand.’’ 75 FR 14393; See Harrison’s 

Principles of Internal Medicine 

(Harrison’s Online, Chapter 237, 

Ischemic Heart Disease, 2008). This 

definition is limited to conditions that 

directly affect the myocardium. 

‘‘Myocardium’’ is defined as ‘‘the middle 

muscular layer of the heart wall.’’ 

Merriam-Webster Dictionary Online, 

‘‘Myocardium’’ available at http:// 

www.merriam-webster.com/dictionary/ 

myocardium (accessed May 13, 2010). 

Therefore, based on the definition found 

in Harrison’s, IHD pertains only to 

conditions that directly affect the 

muscles of the heart. The accepted 

medical definition of IHD does not 

extend to other conditions, such as 

hypertension, peripheral artery disease, 

and stroke, that do not directly affect the 

muscles of the heart. As a result, VA 

will not include these conditions within 

the definition of IHD contained in this 

rulemaking. 

Additionally, this definition and 

limitation are consistent with the 

definition of IHD used by the IOM in 

Update 2008. IOM limited its 

consideration of IHD studies to ICD–9– 

CM codes 410–414. These codes 

explicitly exclude such disease as 

hypertension, which has its own unique 

code (402) in ICD–9–CM. The selection 

of these particular ICD–9–CM codes 

shows that IOM chose to limit its 

consideration of IHD to only those 

diseases that affect the muscles of the 

heart. Hence, the definition of IHD used 

by IOM in Update 2008 confirms the 

medical soundness of VA’s definition, 

and makes clear that the medical 

evidence on which VA based its 

decision relates only to those conditions 

directly affecting the oxygen supply in 


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the muscles of the heart and does not 

encompass such conditions as 

hypertension. Therefore, VA makes no 

change based on these comments. 

Two of these commenters would also 

have VA allow excluded conditions to 

be rated as secondarily caused by IHD. 

VA Response: The presumptive 

conditions addressed in this rulemaking 

only concern establishment of a primary 

service-connected condition. This 

rulemaking does not affect a claimant’s 

ability to establish secondary conditions 

proximately caused by a serviceconnected condition, including those 

conditions for which service connection 

is established presumptively. Section 

3.310, title 38, Code of Federal 

Regulations, states that any disability 

which is proximately due to or the 

result of a service-connected disease or 

injury shall be service connected. This 

principle has not changed and there is 

no need to reiterate it in this rule. 

Therefore, VA makes no change based 

on these comments. 

(3) Perceived Uncertainty Concerning 

the Definition of IHD 

One commenter queried ‘‘what is 

ischemic heart disease’’? 

VA Response: VA’s definition of IHD 

in the proposed rule is based upon the 

accepted medical premise that, as stated 

in the preamble, IHD is ‘‘an inadequate 

supply of blood and oxygen to a portion 

of the myocardium; it typically occurs 

when there is an imbalance between 

myocardial oxygen supply and 

demand.’’ 75 FR 14393; See Harrison’s 

Principles of Internal Medicine 

(Harrison’s Online, Chapter 237, 

Ischemic Heart Disease, 2008). As 

previously stated, VA interprets IHD, for 

purposes of service connection, to 

encompass any atherosclerotic heart 

disease resulting in clinically significant 

ischemia or requiring coronary 

revascularization. In the notice of 

proposed rulemaking, we explained that 

the term ‘‘ischemic heart disease’’ does 

not encompass hypertension or 

peripheral manifestations of 

arteriosclerotic heart disease, such as 

peripheral vascular disease or stroke. To 

ensure that lay readers are aware of the 

distinction between these diseases, we 

are adding a Note 3 following 38 CFR 

3.309(e) to include the information 

stated in the notice of proposed 

rulemaking. 

(4) Inclusion of Angina as a 

Compensable Disability 

One commenter asked whether the 

rule will include Prinzmetal’s Angina, 

and Stable and Unstable Angina in the 

list of compensable disabilities. 

VA Response: Prinzmetal’s Angina, 

and Stable and Unstable Angina are 

explicitly included as forms of IHD in 

the list of illnesses that may be 

presumptively service connected due to 

exposure to certain herbicides. 75 FR 

14393. 

D. Comments Concerning the Scope of 

Applicability of the Presumptions 

(1) Expanding the Presumption of 

Herbicide Exposure Beyond Service in 

the Republic of Vietnam 

Approximately ten commenters 

advocated expanding coverage 

geographically, to include veterans who 

did not deploy within the land borders 

of the Republic of Vietnam, but may 

have been exposed to tactical herbicides 

in the course of their military service. 

For example, one commenter, the 

Vietnam Veterans of America (VVA), 

cited Update 2008 in support of its 

recommendation that VA adopt a 

presumption that veterans who served 

in the South China Sea during the 

Vietnam era were exposed to herbicides. 

Another commenter encouraged 

amending 38 CFR 3.307(a)(6)(iii), to 

include ‘‘Blue Water Navy Veterans’’ as 

qualifying for the presumptions listed in 

38 CFR 3.309(e). 

VA Response: These comments are 

beyond the scope of this rulemaking. 

We proposed to revise 38 CFR 3.309(e) 

to implement the requirements of 38 

U.S.C. 1116(b) and (c) directing the 

Secretary of Veterans Affairs to 

determine whether there is a positive 

association between exposure to the 

herbicides used in Vietnam and the 

occurrence of specific diseases. The 

issue of which diseases are associated 

with herbicide exposure is distinct from 

the issue of which individuals are 

presumed to have been exposed to 

herbicides in service. The latter issue is 

governed by a separate regulation in 38 

CFR 3.307(a)(6)(iii), which we did not 

propose to revise in this rulemaking. 

Accordingly, we make no change based 

on these comments. 

With respect to the issues raised by 

these comments, we note that, in a 

separate rulemaking (RIN 2900–AN27, 

Herbicide Exposure and Veterans With 

Covered Service in Korea), VA has 

proposed to provide a presumption of 

exposure to tactical herbicides for 

veterans who served with specific 

military units stationed at or near the 

Korean DMZ during the April 1968— 

July 1969 time frame. 74 FR 36640. We 

note further that, at VA’s request, the 

NAS is undertaking a comprehensive 

study of the potential herbicide 

exposure among veterans who served in 

the offshore waters around Vietnam and 

VA will carefully evaluate the findings 

of the NAS resulting from that study. 

Finally, we wish to make clear that the 

presumptions of service connection 

provided by this rule will apply to any 

veteran who was exposed during service 

to the herbicides used in Vietnam, even 

if exposure occurred outside of 

Vietnam. A veteran who is not 

presumed to have been exposed to 

herbicides, but who is shown by 

evidence to have been exposed, is 

eligible for the presumption of service 

connection for the diseases listed in 

§ 3.309(e), including the three diseases 

added by this rule. 

(2) Expanding the Presumptions To 

Include Other Herbicides 

Other commenters, including 

USMVP, seek to persuade VA to 

presume service connection for veterans 

exposed to trichloroethylene (TCE) (a 

substance found in organic solvents) 

and malathion (an insecticide). USMVP 

concedes that TCE and malathion are 

differently formulated chemical 

compounds used for pest control and 

equipment maintenance, respectively. 

Nevertheless, USMVP contends that 

VA’s mandate is sufficiently broad to 

allow the Secretary to presume diseases 

to be service connected upon exposure 

to TCE and Malathion. 

VA Response: These comments are 

beyond the scope of this rulemaking. 

We proposed to revise 38 CFR 3.309(e) 

to implement the requirements of 38 

U.S.C. 1116(b) and (c) directing the 

Secretary of Veterans Affairs to 

determine whether there is a positive 

association between exposure to the 

herbicides used in Vietnam and the 

occurrence of specific diseases. The 

comments concerning the health effects 

of other types of exposures are distinct 

from the scope and purpose of the 

proposed rule. 

USMVP notes that section 6 of the 

Agent Orange Act of 1991 directed VA 

to compile data that is likely to be 

scientifically useful in determining the 

association, if any, between disabilities 

and exposure to toxic substances 

including, but not limited to, dioxin. 

This rulemaking, however, is based on 

the distinct provisions in section 2 of 

the Agent Orange Act, codified in 

pertinent part at 38 U.S.C. 1116, 

requiring VA to determine whether 

diseases are associated with an 

‘‘herbicide agent,’’ which is defined to 

refer to ‘‘a chemical in an herbicide used 

in support of the United States and 

allied military operations in the 

Republic of Vietnam during the period 

beginning on January 9, 1962, and 

ending on May 7, 1975.’’ 38 U.S.C. 

1116(a)(3). Accordingly, VA’s regulation 


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1 Institute of Medicine of the National Academies, 

Veterans and Agent Orange: Update 2008. The 

National Academies Press (Washington DC, 2009); 

available online at http://www.nap.edu/ 

openbook.php?record_id=12662&page=515 

(accessed May 25, 2010). 

that implements 38 U.S.C. 1116(a)(3), 38 

CFR 3.307(a)(6)(i), defines herbicide 

agents specifically: ‘‘2,4–D; 2,4,5–T and 

its contaminant TCDD; cacodylic acid; 

and picloram.’’ Therefore, VA makes no 

changes based on these comments. 

(3) Secondary Service Connection 

Explicitly Listed in Regulation 

Some commenters suggest that the 

proposed regulation should include 

secondary conditions that result from 

disabilities presumptively service 

connected due to certain herbicide 

exposure. The commenters note that VA 

published a proposed rule establishing 

presumptive service connection for nine 

specific infectious diseases associated 

with military service in the Southwest 

Asia theater of operations and that the 

proposed rule listed secondary 

conditions potentially caused by those 

infectious diseases. 75 FR 13051–13058 

(March 18, 2010). Furthermore, the 

commenters stated that when VA grants 

service connection for a primary 

disease, all secondary conditions 

proximately caused by that disease are 

also service connected. 38 CFR 3.310. 

VA Response: VA’s proposed rule to 

establish presumptive service 

connection for nine specific infectious 

diseases associated with military service 

in the Southwest Asia theater of 

operations was based, in part, on the 

report issued by the National Academy 

of Sciences (NAS) entitled ‘‘Gulf War 

and Health Volume 5: Infectious 

Diseases,’’ which reported on the 

association between primary infectious 

disease and secondary health effects as 

a result of service in the Southwest Asia 

theater of operations. This report 

differed from previous NAS reports in 

that it implicated two tiers of possible 

association between a hazard and 

resulting health outcomes. In particular, 

NAS made comprehensive findings as to 

the conditions that may be secondarily 

caused by the primary infectious 

diseases, and VA determined that it 

would be helpful to include those 

findings in its rules. In contrast, the 

NAS reports on Agent Orange address 

only one tier of possible association 

between exposure to herbicides and the 

development of long-term health effects. 

In view of the divergent structure of the 

two studies and the absence of findings 

in Update 2008 regarding secondary 

health effects, VA did not propose to list 

secondary health effects in this rule. 

Although it may be feasible to identify 

and list known secondary effects of the 

three diseases covered in this rule, 

doing so is beyond the scope of this rule 

and, moreover, is not necessary to 

ensure that veterans are properly 

compensated for such secondary effects. 

As the commenters correctly note, 

pursuant to 38 CFR 3.310, when VA 

grants service connection for a 

condition, all conditions proximately 

caused by that condition may also be 

service connected. This principle would 

apply to conditions where service 

connection is established by 

presumption or by other means, such as 

a direct link to incurrence during 

military service. 

Consequently, VA makes no change 

based on these comments. 

E. Negative Comment 

Only one comment indicated clear 

opposition to the final rule. The 

commenter asserted that ‘‘[t]he proposed 

rule for presumptive conditions to 

Agent Orange exposure * * * is 

ridiculous. Just because gen[e]tic and 

life style illness are now affecting those 

of an age that served in Vietnam, does 

not mean that their service in Vietnam 

caused this.’’ The commenter went on to 

ask ‘‘No medical expert links these 

diseases to Agent Orange exposure why 

should the VA?’’ 

VA Response: First we note that the 

comment only pertains to the addition 

of ischemic heart disease to VA’s 

presumptive list. It does not express any 

opposition to the addition of 

Parkinson’s disease or B-cell Leukemias 

to VA’s presumptive list. 

VA’s decision to add ischemic heart 

disease to the list of diseases that are 

presumptively service connected based 

upon exposure to herbicides used in 

Vietnam was issued after the Secretary 

considered the IOM’s Update 2008, 

concerning the health effects in Vietnam 

Veterans of exposure to herbicides. That 

report states as follows: 

After consideration of the relative strengths 

and weaknesses of the evidence regarding the 

chemicals of interest and ischemic heart 

disease (ICD 410–414), which includes a 

number of studies that showed a strong doseresponse relationship and that had good 

toxicologic data demonstrating biologic 

plausibility, the committee judged that the 

evidence was adequately informative to 

advance this health outcome from the 

‘‘inadequate or insufficient’’ category into the 

‘‘limited or suggestive’’ category, again 

acknowledging that bias and confounding 

could not be ruled out. (Page 631 of Update 

2008) 1

The IOM report’s discussion 

demonstrates that there are medical 

studies that show a correlation between 

exposure to herbicides and ischemic 

heart disease. As we explained in the 

notice of proposed rulemaking, the IOM 

committee found that, of the nine most 

informative studies on this issue, five 

showed strong statistically significant 

associations between herbicide 

exposure and IHD. The IOM committee 

noted that the evidence for an 

association was further strengthened by 

findings of a dose-response relationship, 

meaning that the risk of IHD was found 

to be highest in populations with the 

highest levels of herbicide exposure. As 

stated in the notice of proposed 

rulemaking, the Secretary has 

determined that this evidence meets the 

standard in 38 U.S.C. 1116 for finding 

a ‘‘positive association’’ between 

herbicide exposure and IHD. The 

Secretary considers the analysis in the 

IOM report to provide sufficient 

scientific basis to conclude that 

ischemic heart disease merited 

inclusion on VA’s list of presumptive 

diseases. It is important to note that 38 

U.S.C. 1116 directs VA to establish a 

presumption if the credible evidence for 

an association between herbicide 

exposure and a disease is equal to or 

outweighs the credible evidence against 

the association. This evidentiary 

standard does not require the same level 

of proof that members of the scientific 

community might require before 

concluding that the disease is 

necessarily associated with herbicide 

exposure. The Secretary has determined 

that this decision is consistent with the 

standard of proof established by statute, 

and VA has no authority to change that 

statutory standard. Accordingly VA 

makes no changes based on this 

comment. 

F. Comments Indicating General 

Support of the Rulemaking 

In addition to the nearly 400 

comments received from the Parkinson’s 

community expressing support for the 

addition of Parkinson’s disease to VA’s 

presumptive list, VA received just over 

100 additional comments that expressed 

support for the rulemaking in general. 

Many of these comments, which were 

received from individuals as well as 

public and private organizations, stated 

appreciation for VA’s actions in adding 

one or more of the three diseases to its 

regulatory list of conditions that are 

presumptively service connected based 

upon herbicide exposure in Vietnam. 

VA appreciates the time and effort 

expended by these commenters in 

reviewing the proposed rule and in 

submitting comments, as well as their 

support for this rulemaking. 


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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53207 

G. Additional Comments Outside the 

Scope of This Rulemaking 

(1) Comments Related to VA’s Cost 

Estimate and Assignment of Disability 

Ratings. 

VA received 25 comments from 

organizations and members of the 

public concerning the assumptions 

stated in VA’s budget estimates that: 

(1) The average disability rating for 

Parkinson’s disease will be 100 percent; 

(2) the average disability rating for IHD 

will be 60 percent; and (3) the average 

disability rating for leukemia will be 

100 percent. Many of these comments 

construed these cost estimates as an 

expression of VA policy concerning the 

assignment of particular disability 

thresholds for each of the new 

presumptive conditions. Some of the 

comments urged VA to assign 100 

percent evaluations for each of the three 

diseases. 

VA Response: The proposed rule 

contained cost estimate assumptions 

based on VA data which indicated that 

VA assumed the average disability 

evaluation for Parkinson’s disease and 

leukemia to be 100 percent and for IHD 

to be 60 percent. VA would like to 

clarify that these assumptions are 

merely estimates and were made based 

on VA program experience. They are 

used for cost estimate purposes only, 

and they have no binding effect on any 

particular disability rating actually 

assigned. The fact that VA projects, for 

cost purposes, that particular 

disabilities will result in a particular 

average impairment, does not indicate 

the existence of a minimum level of 

disability compensation for any of the 

three new presumptive conditions. The 

disability rating assigned will be based 

on the individual factual situations and, 

in the case of Parkinson’s disease and 

hairy cell leukemias, individual ratings 

may be less than 100 percent. Similarly, 

individual ratings for IHD may be 

greater, less, or equal to 60 percent. 

Indeed VA anticipates that some 

disabilities which are granted 

presumptive service connection will be 

assigned non-compensable ratings. This 

would occur, for example, if an 

individual was diagnosed with a 

disease, IHD for example, but 

manifested no current disabling 

symptoms. 

The disability ratings to be assigned 

for any disease or injury are based upon 

application of VA’s Schedule for Rating 

Disabilities in 38 CFR Part 4 to the facts 

of each case. VA did not propose in this 

rulemaking to revise any of the 

provisions in that schedule. As 

explained above, the assumptions stated 

for purposes of VA’s cost estimate did 

not propose to adopt specific minimum 

ratings or to make any change to the 

rating schedule. To the extent these 

comments suggest adoption of 

minimum disability ratings they are 

outside the scope of this rulemaking. 

Accordingly, VA makes no changes 

based on these comments. 

(2) Perceived Nehmer Contradiction 

One commenter expressed concern 

that the statement in the preamble of the 

proposed rule at 75 FR at 14394 that 

retroactive benefit costs are paid in the 

first year only conflicts with the 

decision in the Nehmer case. The stated 

concern appears to be that paying 

retroactive benefits in the first year only 

may limit retroactive payments 

authorized by the Nehmer court orders. 

VA Response: The commenter’s 

reference pertains to the Preamble and 

cost estimate assumptions, which, as 

stated above, were used for cost 

estimating purposes only and will have 

no binding effect upon claims involving 

retroactive benefits under the proposed 

rule. Because this comment relates to a 

factual assumption in VA’s cost 

analysis, which does not affect the 

scope of the final rule, the comment has 

no bearing on the final rule. 

We want to make clear, however, that 

nothing in this rule would contravene or 

limit the Nehmer court orders. When 

retroactive benefits are paid as a result 

of a claim that qualifies under the 

Nehmer litigation, the award is paid 

from current year appropriations and 

that VA’s cost estimates for this 

regulation include first year, five year, 

and ten year costs. The statement in 

VA’s cost estimate that retroactive 

benefits are paid in the first year only 

is intended merely to reflect that VA 

expects to process all claims involving 

retroactive payments for the new 

presumptions under Nehmer within the 

first year after this rule is issued. 

Accordingly, VA makes no changes 

based on these comments. 

(3) Statements About Personal 

Situations and Hypothetical Benefit 

Questions 

Many commenters made general 

statements about their own personal 

difficulties battling one or more of the 

presumptive diseases. Another 

commenter inquired as to the possible 

implications of Bradley v. Peake, 22 Vet. 

App. 280 (2008). The commenters who 

inquired about Bradley asked whether, 

hypothetically, an IHD disability rating 

in addition to another disability that 

meet the statutory criteria under 38 

U.S.C. 1114(s), could potentially 

establish eligibility for special monthly 

compensation. 

VA Response: Comments regarding 

hypothetical situations involving the 

possible outcome of benefit claims or 

the medical or claims history presented 

by individual veterans are beyond the 

scope of this rulemaking. Claimants 

should contact their VA regional office 

for assistance with their individual 

claims. 

(4) Comments Unrelated to the Subject 

of the Rulemaking 

VA received approximately 40 

comments dealing with issues not 

directly related to the addition of the 

three new presumptively serviceconnected diseases. Such comments 

covered a wide range of topics. 

Examples of such comments appear 

below. 

One commenter opined that spouses 

of veterans should be compensated. One 

commenter stated that more should be 

done for caregivers of veterans. Another 

commenter suggested that VA should 

guide the military services on 

presumptives related to Agent Orange. 

Some commenters complained that the 

rulemaking process is too lengthy. Two 

commenters disapproved of the fact that 

herbicides were allowed to be used 

during conflict. Several commenters 

criticized the benefit claims system, 

including the VA’s Schedule for Rating 

Disabilities. One commenter stated that 

38 CFR 3.816 (Nehmer Awards) should 

be revised to list the three new 

presumptions. A commenter 

recommended that a working group be 

created to define needed research and 

studies on diseases and Vietnam 

veterans. One commenter questioned 

whether there is a relationship between 

PTSD or stress and cardiovascular 

disease. Another commenter wanted VA 

to give greater weight to finding of total 

disability by the Social Security 

Administration. A commenter requested 

special guidance for compensation and 

pension examinations to ensure 

comprehensive evaluation of cognitive 

and dementia issues related to 

Parkinson’s disease; another commenter 

similarly requested an update in rating 

templates for Parkinson’s disease. A 

commenter wanted VA to provide 

guidance to the Department of Defense 

concerning the new presumptive 

conditions. Another commenter 

indicated disagreement with the 

findings and conclusion included in 

Update 2008. Some commenters 

expressed dissatisfaction with the note 

in the current regulation regarding 

requirements for peripheral neuropathy. 

VA Response: VA does not respond to 

these comments because they are either 

unrelated to this rulemaking or beyond 

its scope. 


erowe on DSK5CLS3C1PROD with RULES
53208 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

Paperwork Reduction Act 

The collection of information under 

the Paperwork Reduction Act (44 U.S.C. 

3501–3521) that is contained in this 

document is authorized under OMB 

Control No. 2900–0001. 

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. 

VA has examined the economic, 

interagency, budgetary, legal, and policy 

implications of this rulemaking and 

determined that it is an economically 

significant rule under this Executive 

Order, because it will have an annual 

effect on the economy of $100 million 

or more. 

Regulatory Impact Analysis 

VA followed OMB Circular A–4 to the 

extent feasible in this Regulatory Impact 

Analysis. The circular first calls for a 

discussion of the Statement of Need for 

the regulation. The Agent Orange Act of 

1991, as codified at 38 U.S.C. 1116 

requires the Secretary of Veterans 

Affairs to publish regulations 

establishing a presumption of service 

connection for those diseases 

determined to have a positive 

association with herbicide exposure in 

humans. 

Statement of Need: On October 13th, 

2009, the Secretary of Veterans Affairs, 

Eric K. Shinseki, announced his intent 

to establish presumptions of service 

connection for PD, IHD, and hairy cell/ 

B cell leukemia for veterans who were 

exposed to herbicides used in the 

Republic of Vietnam during the Vietnam 

era. 

Summary of the Legal Basis: This 

rulemaking is necessary because the 

Agent Orange Act of 1991 requires the 

Secretary to promulgate regulations 

establishing a presumption of service 

connection once he finds a positive 

association between exposure to 

herbicides used in the Republic of 

Vietnam during the Vietnam era and the 

subsequent development of any 

particular disease. This final rulemaking 

is required by statute and the result of 

the Secretary’s discharge of his statutory 

mandate pursuant to the statute. 

Alternatives: There are no feasible 

alternatives to this rulemaking, since the 

Agent Orange Act of 1991 requires the 

Secretary to initiate rulemaking once the 

Secretary finds a positive association 

between a disease and herbicide 

exposure in Vietnam during the 

Vietnam era. The rule implements 

statutorily required provisions to 

expand veteran benefits. 

Risks: The rule implements statutorily 

required provisions to expand veteran 

benefits. No risk to the public exists. 

Anticipated Costs and Benefits: In the 

proposed rule, we estimated the total 

cost for this rulemaking to be $13.6 

billion during the first year (FY2010), 

$25.3 billion for 5 years, and $42.2 

billion over 10 years. These amounts 

included benefits costs and government 

operating expenses for both Veterans 

Benefits Administration (VBA) and 

Veterans Health Administration (VHA). 

A detailed cost analysis for each 

Administration is provided below. 

The proposed rule indicated costs 

beginning in FY2010. At the time the 

proposed rule impact analysis was 

developed, VA anticipated the final 

rulemaking would be published more 

than 60 days before the end of FY2010, 

including allowing time for the 60 day 

requirement under the CRA, and 

therefore payments would commence in 

FY2010. VA now knows that the timing 

of the final rulemaking will not allow 

payments to begin prior to FY2011. As 

a result, VA expects FY2010 and 

FY2011 costs, as shown in some of the 

tables below from the proposed rule, 

will both now occur in FY2011. We 

have not recalculated the tables to 

reflect this change. 

Veterans Benefits Administration (VBA) 

Costs 

We estimated VBA’s total cost to be 

$13.4 billion during the first year 

(FY2010), $24.3 billion for five years, 

and $39.7 billion over ten years. 

Benefits costs ($000’s) 1st year (FY10) 5-year 10-year 

Retroactive benefits costs * ............................................................................................. $12,286,048 ** $12,286,048 ** $12,286,048 

Recurring costs from retroactive processing ................................................................... 0 4,388,773 10,300,132 

Increased benefits costs for Veterans currently on the rolls ........................................... 415,927 2,188,784 4,864,755 

Accessions ....................................................................................................................... 675,214 4,645,609 11,330,294 

Administrative Costs ........................................................................................................ ............................ ............................ ............................

FTE costs ......................................................................................................................... *** 4,554 797,473 894,614 

New office space (minor construction) ............................................................................ ............................ 12,835 12,835 

IT equipment .................................................................................................................... ............................ 30,232 32,805 

Totals ........................................................................................................................ 13,381,743 24,349,746 39,721,476 

* Retroactive benefits costs are paid in the first year only. 

** Inserted for cumulative totals. 

*** FTE costs in FY 2010 represented a level of effort of current FTE that would be used to work claims received in FY2010. New hiring would 

begin in 2011. 

Of the total VBA benefits costs 

identified for FY 2010, $12.3 billion 

accounted for retroactive benefit 

payments. Ten-year total costs for 

ischemic heart disease is $31.9 billion, 

Parkinson’s disease accounts for $3.5 

billion, and hairy cell and B-cell 

leukemia is the remaining $3.4 billion. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 53209 

TOTAL OBLIGATIONS BY PRESUMPTIVE CONDITION

($000’s) Retroactive 

payments 1st year 5-year 10-year 

Ischemic heart disease .................................................................... $9,877,787 $900,470 $9,307,716 $21,978,301 

Parkinson’s ...................................................................................... 692,20 166,300 1,189,143 2,796,852 

Hairy cell/B-cell leukemia ................................................................ 1,716,057 24,372 726,306 1,720,028 

Sub-total ........................................................................................... 12,286,048 1,091,142 11,223,165 26,495,181 

Total .......................................................................................... 12,286,048 * 13,377,190 * 23,509,213 * 38,781,229 

* Includes retroactive payments. 

Methodology 

The cost estimate for the three 

presumptive conditions considers 

retroactive benefit payments for 

veterans and survivors, increases for 

veterans currently on the compensation 

rolls, and potential accessions for 

veterans and survivors. There are 

numerous assumptions made for the 

purposes of this cost estimate. At a 

minimum, four of those could vary 

considerably and the result could be 

dramatic increases or decreases to the 

mandatory benefit numbers provided. 

The estimate assumes: 

• A prevalence rate of 5.6% for IHD 

based upon information extracted from 

the CDC’s Web site. Even slight 

variations to this number will result in 

significant changes. 

• An 80% application rate in most 

instances. We have prior experiences 

that have been as low as in the 70% 

range and as high as in the 90% range. 

• New enrollees will, on average, be 

determined to have about a 60% degree 

of disability for IHD. This would mirror 

the degree of disability for the current 

Vietnam Veteran population on VA’s 

rolls. However, most of the individuals 

have had the benefit of VHA health care. 

We cannot be certain that the new 

population of Vietnam Veterans coming 

into the system will mirror that average. 

• Only the benefit costs of the 

presumptive conditions listed. 

Secondary conditions, particularly to 

IHD, may manifest themselves and 

result in even higher degrees of 

disability ultimately being granted. 

Retroactive Veteran and Survivor 

Payments 

Vietnam Veterans Previously Denied 

In 2010, approximately, 86,069 

Vietnam beneficiaries (as of August 

2009 provided by PA&I) are eligible to 

receive retroactive payments for the new 

presumptive conditions under the 

provisions of 38 CFR 3.816 (Nehmer). Of 

this total, 69,957 are living Vietnam 

Veterans, of which 62,206 were denied 

for IHD, 5,441 were denied for hairy cell 

or B cell leukemia, and the remaining 

2,310 for Parkinson’s disease. Of those 

previously denied service connection 

for the three new presumptive 

conditions, 52,918, or nearly 76 percent, 

are currently on the rolls for other 

service-connected disabilities. 

Compensation and Pension (C&P) 

Service assumes the average degree of 

disability for both Parkinson’s disease 

and hairy cell/B cell leukemia will be 

100 percent, and IHD will be 60 percent. 

Based on the Combined Rating Table, 

we assume veterans currently not on the 

rolls would access at the percentages 

identified above. For those veterans 

currently on the rolls for other serviceconnected disabilities, we assume they 

would receive a retroactive award based 

on the higher combined disability 

rating. For example, a veteran who is on 

the rolls and rated 10 percent disabled 

who establishes presumptive service 

connection for Parkinson’s disease will 

result in a higher combined rating of 

100 percent and receive a retroactive 

award for the difference. For purposes 

of this cost estimate, we assumed that 

veterans previously denied service 

connection for one of the three new 

conditions who are currently receiving 

benefits were awarded benefits for 

another disability concurrently. 

Based on the Nehmer case review in 

conjunction with the August 2006 Haas 

Court of Appeals for Veterans Claims 

(CAVC) decision, C&P Service identified 

an average retroactive payment of 11.38 

years for veterans whose claims were 

previously denied. Obligations for 

retroactive payments for veterans not 

currently on the rolls were calculated by 

applying the caseload to the benefit 

payments by degree of disability, 

multiplied by the average number of 

years for veterans’ claims. For those 

who are on the rolls, based on a 

distribution by degree of disability, 

obligations were calculated by applying 

the increased combined degree of 

disability for those currently rated zero 

to ninety percent. Of the total 52,918 

currently on the rolls, 8,348 are 

currently rated 100 percent disabled 

and, therefore, would not likely receive 

a retroactive award payment. 

Of the total 86,069 Vietnam 

beneficiaries, a total of 69,957 are living 

Vietnam Veterans. Of this total, 52,918 

are currently on the rolls for other 

service-connected disabilities and 

17,039 are off the compensation rolls 

(52,918 + 17,039 = 69,957). Of the 

52,918 Vietnam Veterans who are on the 

rolls, 8,348 are currently rated 100 

percent disabled and would not likely 

receive a retroactive payment (17,039– 

8,348 = 8,691 + 52,918 = 61,609). 

VETERAN CASELOAD AND OBLIGATIONS FOR RETROACTIVE BENEFITS

Presumptive conditions Caseload 

Retroactive 

payments 

($000’s) 

Ischemic Heart Disease ................................................................................................................................... 54,926 $7,837,369 

Parkinson’s Disease ........................................................................................................................................ 2,042 568,920 

Hairy Cell/B Cell Leukemia .............................................................................................................................. 4,641 1,209,586 

Total .......................................................................................................................................................... 61,609 9,615,875 


erowe on DSK5CLS3C1PROD with RULES
53210 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

Vietnam Veteran Survivors Previously 

Denied 

Survivor caseload was determined 

based on veteran terminations. Based on 

data obtained from PA&I, of the 86,069 

previous denials, 16,112 of the Vietnam 

veterans are deceased. Of the deceased 

population, 13,420 were veterans 

previously denied claims for IHD, 2,165 

were denied for hairy cell or B cell 

leukemia, and 527 were denied for 

Parkinson’s disease. We assumed that 

90 percent of the survivor caseload will 

be new to the rolls and the remaining 

ten percent are currently in receipt of 

survivor benefits. 

The 2001 National Survey of Veterans 

found that approximately 75 percent of 

veterans are married. With the marriage 

rate applied, we estimate there are 

12,084 survivors in 2010. Based on the 

Nehmer case review in conjunction with 

the August 2006 Haas Court of Appeals 

for Veterans Claims (CAVC) decision, 

C&P Service identified an average 

retroactive payment of 9.62 years for 

veterans’ survivors. Under Nehmer, in 

addition to survivor dependency and 

indemnity compensation (DIC) benefits, 

survivors are also entitled to the 

veteran’s retroactive benefit payment to 

the date of the veteran’s death. 

Obligations for survivors who were 

denied claims were determined by 

applying the survivor caseload for each 

presumptive condition to the average 

survivor compensation benefit payment 

from the 2010 President’s Budget and 

the average number of years for the 

survivor’s claim (9.62 years). Veteran 

benefit payments to which survivors are 

entitled were calculated similarly with 

the exception of applying the survivor 

caseload for each presumptive condition 

to the difference between the average 

veteran claim of 11.38 years and the 

average survivor claim of 9.62 years. 

The estimated remaining 4,028 deceased 

veterans who were not married would 

have their retroactive benefit payment 

applied to their estate. 

Of the 86,069 Vietnam beneficiaries, a 

total of 16,112 are Vietnam Veterans 

that are deceased. Of this total, an 

estimated 12,084 were married and an 

estimated 4,028 were not married 

(12,084 + 4,028 = 16,112). 

SURVIVOR CASELOAD AND OBLIGATIONS FOR RETROACTIVE BENEFITS

Presumptive conditions Caseload Retroactive payments 

($000’s) 

Ischemic Heart Disease ................................................................................................................... 13,420 $2,040,418 

Parkinson’s Disease ........................................................................................................................ 527 123,284 

Hairy Cell/B Cell Leukemia .............................................................................................................. 2,165 506,470 

Total .......................................................................................................................................... 16,112 2,670,173 

Recurring Veteran and Survivor 

Payments 

Retroactive caseload obligations for 

both veterans and survivors become a 

recurring cost and are reflected in outyear estimates. Mortality rates are 

applied in the out years to determine 

caseload. 

RECURRING VETERAN AND SURVIVOR CASELOAD AND OBLIGATIONS FROM RETROACTIVE PROCESSING

FY Veteran caseload Survivor caseload Obligations ($000’s) 

2010 ......................................................................................................... N/A N/A N/A 

2011 ......................................................................................................... 61,365 10,672 $1,079,310 

2012 ......................................................................................................... 61,243 10,570 1,084,209 

2013 ......................................................................................................... 61,121 10,458 1,102,800 

2014 ......................................................................................................... 61,000 10,336 1,122,454 

2015 ......................................................................................................... 60,879 10,201 1,142,251 

2016 ......................................................................................................... 60,758 10,052 1,162,167 

2017 ......................................................................................................... 60,637 9,891 1,182,189 

2018 ......................................................................................................... 60,517 9,716 1,202,298 

2019 ......................................................................................................... 60,397 9,526 1,222,453 

Total .................................................................................................. .................................... .................................... 10,300,132 

Vietnam Veterans (Reopened Claims) 

We expected veterans who are 

currently on the compensation rolls and 

have any of the three presumptive 

conditions to file a claim and receive a 

higher combined disability rating 

beginning in 2010. We anticipate that 

veterans receiving compensation for 

other service-connected conditions will 

continue to file claims over ten years. 

Total costs are expected to be $415.9 

million the first year and approximately 

$4.9 billion over ten years. 

According to the Defense Manpower 

Data Center (DMDC), there are 2.6 

million in-country Vietnam Veterans. 

With mortality applied, an estimated 2.1 

million will be alive in 2010. C&P 

Service assumes that 34 percent of this 

population are service connected for 

other conditions and are already in 

receipt of compensation benefits. In 

2010, we anticipated that 725,547 

Vietnam Veterans would be receiving 

compensation benefits. This number is 

further reduced by the number of 

veterans identified in the previous 

estimate for retroactive claims (52,918). 

C&P Service assumes an average age of 

63 for all Vietnam Veterans. With 

prevalence and mortality rates applied, 

and an estimated 80 percent application 

rate and 100 percent grant rate, we 

calculate that 32,606 veterans currently 

on the rolls would have a presumptive 

condition in 2010. Of this total, we 

anticipated 27,909 cases would result in 

increased obligations. Of the 27,909 

veterans, 25,859 are associated with 

IHD, 1,693 are associated with 

Parkinson’s disease, and the remaining 

357 are associated with hairy cell/B cell 

leukemia. In future years, the estimated 


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number of veteran reopened claims 

decreases to almost one thousand cases 

and continues at a decreasing rate. The 

cumulative effect of additional cases 

with mortality rates applied is shown in 

the chart below. 

The Vietnam Era caseload distribution 

by degree of disability provided by C&P 

Service was used to further distribute 

the total Vietnam Veterans who will 

have a presumptive condition in 2010 

by degree of disability for each of the 

three new presumptive conditions. We 

assume 100 percent for the average 

degree of disability for both Parkinson’s 

disease and hairy cell/B cell leukemia 

and 60 percent for IHD. Based on the 

Combined Rating Table, veterans that 

are on the rolls for other serviceconnected conditions (with the 

exception of those that are currently 

receiving compensation benefits for 100 

percent disability), would receive a 

higher combined disability rating if they 

have any of the three new presumptive 

conditions. 

September average payments from the 

2010 President’s Budget were used to 

calculate obligations. These average 

payments are higher than schedular 

rates due to adjustments for dependents, 

Special Monthly Compensation, and 

Individual Unemployability. The 

difference in average payments due to 

higher ratings was calculated, 

annualized, and applied to the on-rolls 

caseload to determine increased 

obligations. Because this particular 

veteran population is currently in 

receipt of compensation benefits, 

survivor caseload and obligations would 

not be impacted. 

REOPENED CASELOAD AND OBLIGATIONS

FY Veteran 

caseload 

Obligations 

($000’s) 

2010 ................................................................................................................................................................. 27,909 $415,927 

2011 ................................................................................................................................................................. 28,340 418,928 

2012 ................................................................................................................................................................. 29,051 431,726 

2013 ................................................................................................................................................................. 29,746 451,042 

2014 ................................................................................................................................................................. 30,425 471,161 

2015 ................................................................................................................................................................. 31,086 491,648 

2016 ................................................................................................................................................................. 31,746 512,767 

2017 ................................................................................................................................................................. 32,404 534,529 

2018 ................................................................................................................................................................. 33,061 556,958 

2019 ................................................................................................................................................................. 33,716 580,070 

Total .......................................................................................................................................................... ............................ 4,864,755 

Vietnam Veteran and Survivor 

Accessions 

We anticipated accessions for both 

veterans and survivors beginning in 

2010 and continuing over ten years. 

Total costs were expected to be $675.2 

million in the first year and total just 

over $11.3 billion from the cumulative 

effect of cases accessing the rolls each 

year. 

To identify the number of veteran 

accessions in 2010, we applied 

prevalence rates to the anticipated 

living Vietnam Veteran population of 

2,133,962, and reduced the population 

by those identified in the previous 

estimates for retroactive and reopened 

claims. Based on an expected 

application rate of 80 percent and a 100 

percent grant rate, 28,934 accessions are 

expected. Of the 28,934 veteran 

accessions, 25,505 are associated with 

IHD, 3,074 are associated with 

Parkinson’s disease, and the remaining 

355 are associated with hairy cell/B cell 

leukemia. In the out years, anticipated 

veteran accessions drop to 

approximately 3,400 cases in 2011, and 

continue at a decreasing rate. The 

cumulative effect of additional cases 

coupled with applying mortality rates is 

shown in the chart below. 

To calculate obligations, the caseload 

was multiplied by the annualized 

average payment. We assumed those 

accessing the rolls due to IHD will be 

rated 60 percent disabled and those 

with either Parkinson’s disease or hairy 

cell/B cell leukemia will be rated 100 

percent disabled. Average payments 

were based on the 2010 President’s 

Budget with the Cost of Living 

Adjustments factored into the out years. 

The caseload for survivor 

compensation is associated with the 

number of service-connected veterans’ 

deaths. There are two groups to consider 

for survivor accessions: Those survivors 

associated with veterans who never 

filed a claim and died prior to 2010; and 

survivors associated with the mortality 

rate applied to the veteran accessions 

noted above. 

To calculate the survivor caseload 

associated with veterans who never 

filed a claim and died prior to 2010, 

general mortality rates were applied to 

the estimated total Vietnam Veteran 

population (2.6 million). We estimate 

that almost 500,000 Vietnam Veterans 

were deceased by 2010. Prevalence rates 

for each condition were applied to the 

total veteran deaths to estimate the 

number of deaths due to each condition. 

With the marriage rate and survivor 

mortality applied, we anticipated 20,961 

eligible spouses at the end of 2010. We 

assumed that half of this population 

would apply in 2010 and the remaining 

in 2011. Obligations were calculated by 

applying average survivor compensation 

payments to the caseload each year. 

The second group of survivors 

associated with veteran accessions was 

calculated by applying mortality rates 

for each of the presumptive conditions 

to the estimated eligible veteran 

population (28,934). In 2010, 57 veteran 

deaths were anticipated as a result of 

one of the new presumptive conditions. 

With the marriage rate applied and 

aging the spouse population (and 

assuming spouses were the same age as 

veterans), we calculated 42 spouses at 

the end of 2010. Average survivor 

compensation payments were applied to 

the spouse caseload to determine total 

obligations. 


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VETERAN AND SURVIVOR ACCESSIONS CUMULATIVE CASELOAD AND TOTAL OBLIGATIONS

FY Veteran caseload Survivor caseload Total obligations 

2010 ......................................................................................................... 28,934 10,416 $675,214 

2011 ......................................................................................................... 32,270 20,265 882,974 

2012 ......................................................................................................... 35,541 20,693 955,525 

2013 ......................................................................................................... 38,744 20,487 1,028,467 

2014 ......................................................................................................... 41,874 20,283 1,103,429 

2015 ......................................................................................................... 44,928 20,081 1,179,725 

2016 ......................................................................................................... 47,900 19,881 1,257,259 

2017 ......................................................................................................... 50,787 19,682 1,335,922 

2018 ......................................................................................................... 53,583 19,485 1,415,601 

2019 ......................................................................................................... 56,285 19,290 1,496,178 

Total .................................................................................................. .................................... .................................... 11,330,294 

Estimated Claims From Veterans Not 

Eligible 

Based on program history, we 

anticipate that we will also receive 

claims from veterans who will not be 

eligible for presumptive service 

connection for the three new conditions. 

These claims will be received from 

two primary populations: 

• Veterans with a presumptive 

disease who did not serve in the 

Republic of Vietnam. 

• Claims from Vietnam Veterans with 

hypertension who claim ‘‘heart disease.’’ 

We applied the prevalence rate of 

IHD, Parkinson’s disease and hairy cell/ 

B cell leukemia to the estimated 

population of veterans who served in 

Southeast Asia during the Vietnam Era 

(45,304, 32, and 6 respectively), and 

assumed that 10 percent of that 

population will apply for presumptive 

service connection. 

Review of data obtained from PA&I 

shows that 23 percent of Vietnam 

Veterans who have been denied 

entitlement to service connection for 

hypertension also have nonserviceconnected heart disease. We applied the 

prevalence rate of hypertension to the 

living Vietnam Veteran population, and 

then subtracted 23 percent who are 

assumed to also have IHD. We assumed 

that 10 percent of the remaining 

population would apply for 

presumptive service connection to 

arrive at an estimated caseload of 

111,256. 

We then assumed that 25 percent of 

the ineligible population would apply 

in 2010, 25 percent would apply in 

2011, and the remaining population 

would apply over the next 8 years. For 

purposes of claims processing, 

anticipated claims are as follows. The 

chart below reflects workload, which is 

not directly comparable to the preceding 

caseload charts. 

TOTAL CLAIMS

FY Retroactive 

claims Reopened claims Accessions Claims not eligible Total claims 

2010 ................................................................. 86,069 32,606 39,350 27,814 185,839 

2011 ................................................................. ............................ 1,069 13,806 27,814 42,689 

2012 ................................................................. ............................ 1,051 3,386 6,954 11,391 

2013 ................................................................. ............................ 1,032 3,329 6,954 11,314 

2014 ................................................................. ............................ 1,011 3,267 6,954 11,232 

2015 ................................................................. ............................ 989 3,201 6,954 11,143 

2016 ................................................................. ............................ 989 3,129 6,953 11,071 

2017 ................................................................. ............................ 989 3,053 6,953 10,995 

2018 ................................................................. ............................ 989 2,971 6,953 10,913 

2019 ................................................................. ............................ 989 2,885 6,953 10,827 

VBA Administrative Costs 

Administrative costs, including minor 

construction and information 

technology support were estimated to be 

$4.6 million during FY2010, $841 

million for five years and $940 million 

over ten years. 

C&P Service, along with the Office of 

Field Operations, estimated the FTE that 

would be required to process the 

anticipated claims resulting from the 

new presumptive conditions using the 

following assumptions: 

1. 185,839 additional claims in 

addition to the projected 1,146,508 

receipts during FY2010. This includes: 

• 86,069 retroactive readjudications 

under Nehmer. 

• 89,354 new and reopened claims 

from veterans. 

• 10,416 new claims from survivors. 

2. The average number of days to 

complete all claims in FY2010 would be 

165. 

3. Priority will be given to those 

Agent Orange claims that fall in the 

Nehmer class action. 

In FY2010, we intended to leverage 

the existing C&P workforce to process as 

many of these new claims as possible, 

once the regulation was approved, but 

especially the Nehmer cases. However, 

to fully accommodate this additional 

claims volume with as little negative 

impact as possible on the processing of 

other claims, we plan to add 1,772 

claims processors to be brought on in 

the FY2011 budget and timeframe. This 

approximate level of effort will be 

sustained through 2012 and into 2013 in 

order to process these claims without 

significantly degrading the processing of 

the non-presumptive workload. 

• Net administrative costs for payroll, 

training, additional office space, 

supplies and equipment were estimated 

to be $4.6 million in FY2010, $165 

million in FY2011, $798 million over 

five years, and $895 million over 10 

years. Additional support costs for 

minor construction are expected to be 

$12.8 million over the five and ten year 

period. Information Technology 

(computers and support) are assumed to 


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require $30.2 million over five years and 

$32.8 million over ten years. 

Veterans Health Administration (VHA) 

Costs 

We estimated VHA’s total cost to be 

$236 million during the first year 

(FY2010), $976 million for five years, 

and $2.5 billion over ten years. 

FY2010 and FY2011 Summary 

• FY2010 new enrollee patients are 

expected to number 8,680. 

• FY2011 additional new enrollees 

are expected to number 1,018. 

• FY2010 costs for C&P examinations 

are expected to be $114M. 

• FY2011 costs for C&P examinations 

are expected to be $23M. 

• FY2010 health care costs (inclusive 

of travel) are expected to be $236M 

(using cost per patient of 13,500). 

• FY2011 health care costs (inclusive 

of travel) are expected to be $165M 

(using cost per patient of 14,100). 

• Combined costs are as follows: 

Æ FY2010: $236M. 

Æ FY2011: $165M. 

Assumptions 

• 30% of veterans newly determined 

to be service-connected will enroll and 

will use VA health care. 

• Newly enrolled veterans will be 

Priority Group 1 veterans. 

• The cost per patient is arrived at 

using the average cost per Priority 

Group 1 patient aged between 45–64. 

• Every VBA case will require a new 

exam. 

• It is assumed that 100% of newly 

enrolled veterans will request mileage 

reimbursement. The average amount of 

mileage reimbursement claims per 

veteran is $511 (this amount reflects to 

the FY2009 actual average amount). 

We note that many assumptions, 

which form the foundation for an 

agency’s cost forecasts, seldom prove to 

be completely accurate due to variables 

over which VA has no control, such as 

application rates, veteran Priority Group 

designation, diagnostic examinations in 

the future, or changes in incidence rates. 

For example, we assumed that all newly 

enrolled veterans would be in Priority 

Group 1. If we were to assume that a 

substantial number of these new 

enrollees would be in Priority Group 2, 

the cost estimate could decrease 

significantly. 

Distribution of Disability Claims 

VBA has established estimates for 

claims workload for veterans. Figure 1 

provides breakdown of disability 

claims. 

Overall, VBA anticipates 69,957 

claims. Of these, 17,039 will be for 

veterans whose previous claims for 

disability compensation were denied. 

Additionally, VBA anticipates reopened 

claim volume of 32,606 claims in 

FY2010 with subsequent decreases to 

1,069 per year in FY2011. VBA 

anticipates 28,934 accessions in 

FY2010. These are new disability 

compensation awards—for veterans who 

did not previously have an award for 

service connected disability 

compensation. Additionally, in FY2010 

VBA anticipates disability claim volume 

associated with the presumptive SC 

determination to be 159,311 and to 

exceed 270,000 through FY2019. 

FIGURE 1 

FY Retroactive 

claims 

Retroactive 

claims representing new 

SC disability 

award 

Reopened claims Accessions Total disability 

claim volume 

2010 ................................................................. 69,957 17,039 32,606 28,934 159,311 

2011 ................................................................. ............................ ............................ 1,069 3,393 31,207 

2012 ................................................................. ............................ ............................ 1,051 3,335 10,289 

2013 ................................................................. ............................ ............................ 1,032 3,273 10,227 

2014 ................................................................. ............................ ............................ 1,011 3,207 10,161 

Subtotals ................................................... ............................ ............................ 36,769 42,142 221,195 

2015 ................................................................. ............................ ............................ 989 3,137 10,091 

2016 ................................................................. ............................ ............................ 989 3,062 10,016 

2017 ................................................................. ............................ ............................ 989 2,983 9,937 

2018 ................................................................. ............................ ............................ 989 2,898 9,852 

2019 ................................................................. ............................ ............................ 989 2,809 9,763 

Totals ........................................................ 69,957 ............................ 41,714 57,031 270,854 

New Enrollments and Changed 

Enrollments 

The disability compensation 

workload, the resulting increases in 

service-connected patients, and the 

increased combined service connected 

percents will both add new patients to 

VA’s health care system and will change 

the priority levels of veterans currently 

enrolled in VA’s health care system. 

For purposes of estimation, it is 

assumed that 30% of veterans 

‘‘Accessions’’ will enroll in the system 

each year. For FY2010, this means that 

8,680 of the 28,934 veteran 

‘‘Accessions’’. Figure 2 provides the 

estimate of new enrollments per year for 

the ten year period. In all, it is estimated 

that 17,109 new veterans will enroll in 

VA’s health care system. 

FIGURE 2 

FY New enrollees 

per year 

New 

enrollees 

cumulative 

2010 ....................................................................................................................................................................... 8,680 8,680 

2011 ....................................................................................................................................................................... 1,018 9,698 

2012 ....................................................................................................................................................................... 1,001 10,699 

2013 ....................................................................................................................................................................... 982 11,681 


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FIGURE 2—Continued 

FY New enrollees 

per year 

New 

enrollees 

cumulative 

2014 ....................................................................................................................................................................... 962 12,643 

Subtotals ......................................................................................................................................................... 12,643 ......................

2015 ....................................................................................................................................................................... 941 13,584 

2016 ....................................................................................................................................................................... 919 14,502 

2017 ....................................................................................................................................................................... 895 15,397 

2018 ....................................................................................................................................................................... 869 16,267 

2019 ....................................................................................................................................................................... 843 17,109 

Totals .............................................................................................................................................................. 17,109 17,109 

It is assumed that veterans enrolling 

will be Priority Group 1 veterans and 

that they will use VA health care 

services. 

For purposes of estimation, it is 

assumed that 40% of the veterans whose 

claims are reopened will have been 

enrolled in VA’s health care system and 

that their Priority Group will move from 

a copayment required status to a 

copayment exempt status. Additionally, 

it is assumed that their third party 

collections will be lost. It is assumed 

that 10% of the accessions will result in 

changes to veterans who are currently 

enrolled. These veterans would be 

enrolled in a copayment required status 

and would move to copayment exempt 

status. In FY2010 it is estimated that 

43,919 veterans would have their 

enrollment status changed, and FY 2011 

it is estimated that an additional 767 

veterans would have their enrollment 

status changed. Figure 3 provides these 

estimated changes in enrollment status 

per year and cumulatively. 

FIGURE 3 

FY Upgraded enrollees per year 

Upgraded enrollees cumulative 

2010 ................................................................................................................................................................. 43,919 43,919 

2011 ................................................................................................................................................................. 767 44,686 

2012 ................................................................................................................................................................. 754 45,439 

2013 ................................................................................................................................................................. 740 46,180 

2014 ................................................................................................................................................................. 725 46,905 

Subtotals ................................................................................................................................................... 46,905 46,905 

2015 ................................................................................................................................................................. 709 47,614 

2016 ................................................................................................................................................................. 702 48,316 

2017 ................................................................................................................................................................. 694 49,010 

2018 ................................................................................................................................................................. 685 49,695 

2019 ................................................................................................................................................................. 677 50,372 

Totals ........................................................................................................................................................ 50,372 50,372 

Disability Exams Associated Costs 

It is assumed that each VBA case will 

result in disability examinations for the 

veteran. In all, it is estimated that 

270,854 disability examinations will 

need to be performed. An escalation 

factor of 4% is applied to cost of 

disability examinations. 

FIGURE 4 

FY Total disability claim 

volume 

Cost per 

disability exam * 

Annual cost per disability exams 

2010 ......................................................................................................... 159,311 $719 $114,544,609 

2011 ......................................................................................................... 31,207 748 23,335,346 

2012 ......................................................................................................... 10,289 778 8,001,451 

2013 ......................................................................................................... 10,227 809 8,271,365 

2014 ......................................................................................................... 10,161 841 8,546,705 

Subtotals ........................................................................................... 221,195 .................................... 162,699,475 

2015 ......................................................................................................... 10,091 875 8,827,339 

2016 ......................................................................................................... 10,016 910 9,112,200 

2017 ......................................................................................................... 9,937 946 9,401,942 

2018 ......................................................................................................... 9,852 984 9,694,379 

2019 ......................................................................................................... 9,763 1,023 9,991,075 

Totals ................................................................................................ 270,854 .................................... 209,726,410 

*Source: Allocation Resource Center. 


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Health Care and Total Costs 

Figure 5 provides extended health 

care costs per year and includes costs 

for C&P disability examinations and 

travel associated with C&P 

examinations. The cost per patient is 

arrived at using the average cost per 

Priority Group 1 patient, ages 45–64. It 

is assumed that 100% of newly enrolled 

veterans will request mileage 

reimbursement. The average amount of 

mileage reimbursement claims per 

veteran is $511 (this amount reflects to 

the FY2009 actual average amount). 

Total costs over the 10-year period are 

estimated to be in excess of $2.4B. 

FIGURE 5 

FY Annual cost per 

disability exams 

Cost per BT 

mileage claim 

Beneficiary travel 

costs (41.5 

cents/mile) 

Cost per patient Health care costs 

per patient 

Extended annual 

costs 

2010 ................................. $114,544,609 $511 $4,435,582 $13,500 $117,182,700 $236,162,891 

2011 ................................. 23,335,346 511 4,955,729 14,100 136,743,210 165,034,285 

2012 ................................. 8,001,451 511 5,466,985 14,700 157,269,420 170,737,855 

2013 ................................. 8,271,365 511 5,968,736 15,100 176,375,550 190,615,650 

2014 ................................. 8,546,705 511 6,460,369 15,700 198,488,820 213,495,893 

Subtotals ................... 162,699,475 ............................ 27,287,400 ............................ 786,059,700 976,046,575 

2015 ................................. 8,827,339 511 6,941,271 16,300 221,414,310 237,182,919 

2016 ................................. 9,112,200 511 7,410,675 17,100 247,989,330 264,512,205 

2017 ................................. 9,401,942 511 7,867,969 17,900 275,609,880 292,879,791 

2018 ................................. 9,694,379 511 8,312,233 18,800 305,812,080 323,818,692 

2019 ................................. 9,991,075 511 8,742,852 19,800 338,764,140 357,498,068 

Totals ........................ 209,726,410 ............................ 66,562,400 ............................ 2,175,649,440 2,451,938,251 

Summary 

Combined estimated increases in 

health care costs are presented in Figure 

6. 

FIGURE 6 

FY Extended annual 

costs 

2010 .................................. $236,162,891 

2011 .................................. 165,034,285 

2012 .................................. 170,737,855 

2013 .................................. 190,615,650 

2014 .................................. 213,495,893 

Subtotals .................... 976,046,575 

2015 .................................. 237,182,919 

2016 .................................. 264,512,205 

2017 .................................. 292,879,791 

2018 .................................. 323,818,692 

2019 .................................. 357,498,068 

Totals ......................... 2,451,938,251 

Uncertainties: After the comment 

period had expired, VA received 

correspondence from the Chairman of 

the Senate Committee on Veterans 

Affairs which questioned VA’s use of 

the prevalence rate of 5.6 percent for 

IHD in the proposed rule. The Chairman 

mentioned that the 5.6 percent 

prevalence rate was for the general U.S. 

population, instead of a rate more 

representative of the Vietnam Veteran 

population, which is older. He also 

asked why the prevalence rate for IHD 

among Vietnam Veterans was not 

assumed to increase on a yearly basis as 

they age over the next ten years, citing 

Centers for Disease Control (CDC) 

findings that the prevalence rate for IHD 

increases as an individual ages. 

For purposes of costing the three new 

presumptive conditions in the proposed 

rule, VA’s assumptions for the 

prevalence and mortality rates were 

identified based on information 

obtained from the CDC, the National 

Institutes of Health (NIH), and the 

Census Bureau. In FY2000, 15,800,000 

people were identified with coronary 

heart disease. The total U.S. population 

according to the Census Population 

Survey in the same year was 

281,421,906, reflecting the 5.6 percent 

prevalence rate. Since veteran-specific 

prevalence and mortality rates are not 

commonly reported, it is standard 

practice to use general population 

prevalence and mortality rates for cost 

estimating purposes. 

After publishing a proposed rule, 

agencies often receive additional 

information, which in turn improves the 

analysis of agency action. It is not 

unusual for an agency to receive new 

data during or after the comment period, 

either submitted by the public with 

comments or collected by the agency in 

a continuing effort to give the agency’s 

regulations a more complete foundation. 

An agency may use such data to address 

potential deficiencies in the proposed 

rule’s data, so long as no prejudice is 

shown. 

We have, therefore, conducted a 

separate analysis based on the CDC’s 

age-adjusted prevalence rates for 

coronary heart disease. We found that 

CDC’s data uses the age categories of 

45–54, 55–64, 65–74, 75–84, and 85 and 

older, for both males and females. These 

age-adjusted prevalence rates were 

applied in a separate analysis, which 

resulted in much higher potential costs. 

Using age-adjusted prevalence rates, 

shifting initial costs data from FY2010 

to FY2011, adjusting the assumed 

degree of disability, and updating the 

assumed caseload, the estimated VBA 

costs in the first year would decrease by 

nearly $1.5 billion compared to VA’s 

proposed rule estimate and the overall 

ten-year costs would increase by nearly 

$19.8 billion. Similarly, VHA developed 

a methodology based on the data 

provided by VBA to evaluate VBA 

projected claims data from a health care 

cost analysis perspective. Making 

adjustments for priority group 

distributions and shifting the FY2010 

cost data to FY2011, the associated VHA 

costs in the first year would increase by 

nearly $100 million compared to VA’s 

proposed rule estimate and the overall 

ten-year costs would increase by nearly 

$5.0 billion. The details of this analysis 

are available on VA’s Web site at: 

http://vaww1.va.gov/ORPM/FY_2010_

Published_VA_Regulations.asp, and 

also may be viewed online through the 

Federal Docket Management System at 

http://www.regulations.gov. 

We note that many assumptions, 

which form the foundation for an 

agency’s cost forecasts, seldom prove to 

be completely accurate due to variables 

over which VA has no control, such as 

application rates, better diagnostic 

techniques in the future, or changes in 

incidence rates. As documented in the 

Department’s analysis, there are various 


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53216 Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations 

1 Docket Nos. MC2009-19; MC2010-28 and 

CP2010-71; MC2010-26, CP2010-67 and CP2010-68; 

MC2010-27, CP2010-69 and CP2010-70; MC2010-30 

and CP2010-75; MC2010-31 and CP2010-76; and 

MC2010-32 and CP2010-77. 

assumptions applied in the cost 

estimate that, if altered, could result in 

dramatic increases (e.g. age adjustment 

of prevalence rates) or decreases (e.g., 

lower application rates) in the range of 

costs attributed to the rule. We further 

note that, in addition to being subject to 

various sources of uncertainty, the 

model applied by the Department for 

estimating the range of prospective 

impacts is further subject to the relative 

sensitivity of variation in the respective 

inputs to the model; for example, the 

model is highly sensitive to variation in 

the prevalence rates, such as that 

resulting from age adjustment. 

While all three presumptive 

conditions covered by this rule are 

subject to these variations and the 

resulting impacts on projected 

obligations, VA considers the proposed 

rule’s cost estimate to remain a 

reasonable baseline projection of the 

costs associated with this final rule. 

However, cost estimates provided and 

the assumptions used to develop them 

have no binding effect, and veterans 

who qualify for benefits on the basis of 

these presumptions will receive their 

benefits regardless of cost estimates 

used at this time. VA’s discretionary 

and mandatory funding require explicit 

appropriations on an annual basis. 

Mandatory out-year estimates are 

evaluated for relevant current data as 

they become available and budget 

estimates are adjusted accordingly. 

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 final rule would have no such 

effect on State, local, and Tribal 

governments, or on the private sector. 

Regulatory Flexibility Act 

The Secretary of Veterans Affairs 

hereby certifies that this final rule 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 

final rule will not affect any small 

entities. Only individuals will be 

directly affected. Therefore, pursuant to 

5 U.S.C. 605(b), this final rule is exempt 

from the initial and final regulatory 

flexibility analysis requirements of 

sections 603 and 604. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule are 64.109, Veterans 

Compensation for Service-Connected 

Disability and 64.110, Veterans 

Dependency and Indemnity 

Compensation for Service-Connected 

Death. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on July 7, 2010, for 

publication. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Dated: August 25, 2010. 

Robert C. McFetridge, 

Director, Regulation Policy and Management, 

Office of the General Counsel, Department 

of Veterans Affairs. 

■ For the reasons set out 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. Section 3.309 is amended as 

follows: 

■ a. In paragraph (e), by removing 

‘‘Chronic lymphocytic leukemia’’ and 

adding, in its place, ‘‘All chronic B-cell 

leukemias (including, but not limited to, 

hairy-cell leukemia and chronic 

lymphocytic leukemia).’’ 

■ b. In paragraph (e), by adding 

‘‘Parkinson’s disease’’ immediately 

preceding ‘‘Acute and subacute 

peripheral neuropathy’’. 

■ c. In paragraph (e), by adding 

‘‘Ischemic heart disease (including, but 

not limited to, acute, subacute, and old 

myocardial infarction; atherosclerotic 

cardiovascular disease including 

coronary artery disease (including 

coronary spasm) and coronary bypass 

surgery; and stable, unstable and 

Prinzmetal’s angina)’’ immediately 

following ‘‘Hodgkin’s disease’’. 

■ d. At the end of § 3.309, immediately 

following Note 2, adding a new Note 3 

to reads as follows: 

§ 3.309 Disease subject to presumptive 

service connection. 

* * * * * 

Note 3: For purposes of this section, the 

term ischemic heart disease does not include 

hypertension or peripheral manifestations of 

arteriosclerosis such as peripheral vascular 

disease or stroke, or any other condition that 

does not qualify within the generally 

accepted medical definition of Ischemic heart 

disease. 

[FR Doc. 2010–21556 Filed 8–30–10; 8:45 am] 

BILLING CODE P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3020 

[Docket Nos. MC2009–19, et al.] 

New Postal Products 

AGENCY: Postal Regulatory Commission. 

ACTION: Final rule. 

SUMMARY: The Commission is updating 

the postal product lists. This action 

reflects the disposition of recent 

dockets, as reflected in Commission 

orders, and a publication policy adopted 

in a recent Commission order. The 

referenced policy assumes periodic 

updates. The updates are identified in 

the body of this document. The product 

lists, which are re-published in their 

entirety, include these updates. 

DATES: Effective Date: August 31, 2010. 

Applicability Dates: July 13, 2010 

(Stamp Fulfillment Services); July 29, 

2010 (GEPS 3); July 30, 2010 (Global 

Plus 1A and Global Plus 2A); and 

August 6, 2010 (Priority Mail Contract 

25, Priority Mail Contract 26, and 

Priority Mail Contract 27). 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

at stephen.sharfman@prc.gov or 202– 

789–6820. 

SUPPLEMENTARY INFORMATION: This 

document identifies recent updates to 

the product lists, which appear as 39 

CFR Appendix A to Subpart A of Part 

3020–Mail Classification Schedule.1

Publication of updated product lists in 

the Federal Register is consistent with 


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