59968 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

warrant, and petty officers of the Coast 

Guard on board Coast Guard, Coast 

Guard Auxiliary, and local, State, and 

Federal law enforcement vessels. 

(3) Upon being hailed by siren, radio, 

flashing light or other means from a U.S. 

Coast Guard vessel or other vessel with 

on-scene patrol personnel aboard, the 

operator of the vessel shall proceed as 

directed. 

(4) Persons and vessels desiring to 

enter the regulated area may request 

permission to enter from the designated 

on scene patrol personnel by contacting 

them on VHF–16 or by a request to the 

Captain of the Port Long Island Sound 

via phone at (203) 468–4401. 

(d) Enforcement Period. This rule will 

be enforced annually on the Thursday 

through Sunday before Memorial Day in 

May. Notification of the enforcement of 

the safety zone will be made via marine 

broadcasts and local notice to mariners. 

Dated: May 24, 2010. 

Daniel A. Ronan, 

Captain, U.S. Coast Guard, Captain of the 

Port, Long Island Sound. 

[FR Doc. 2010–24236 Filed 9–28–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN24 

Presumptions of Service Connection 

for Persian Gulf Service 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) amends its adjudication 

regulations concerning presumptive 

service connection for certain diseases. 

This amendment implements a decision 

of the Secretary of Veterans Affairs that 

there is a positive association between 

service in Southwest Asia during certain 

periods and the subsequent 

development of certain infectious 

diseases in response to an October 16, 

2006, report of the National Academy of 

Sciences (NAS), titled ‘‘Gulf War and 

Health Volume 5: Infectious Diseases.’’ 

The intended effect of this amendment 

is to establish presumptive service 

connection for these diseases and to 

provide guidance regarding long-term 

health effects associated with these 

diseases. 

DATES: Effective Date: This amendment 

is effective September 29, 2010. 

Applicability Date: The provisions of 

this regulatory amendment apply to all 

applications for benefits pending before 

VA on or received by VA on or after 

September 29, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Hernandez, Regulations Staff 

(211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9428. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On March 

18, 2010, VA published a proposal in 

the Federal Register (75 FR 13051) to 

implement a decision of the Secretary of 

Veterans Affairs that there is a positive 

association between service in 

Southwest Asia during certain periods 

and the subsequent development of 

certain infectious diseases. We proposed 

to revise the title of the regulation to 

better reflect the content of the 

regulation and better reflect the 

authorizing statute (38 U.S.C. 1117); to 

establish presumptions of service 

connection for nine infectious diseases 

becoming manifest within a specified 

time after service in the Southwest Asia 

theater of operations or Afghanistan 

during certain time periods; and to 

reorganize the regulation to make clear 

the criteria applicable to each of the 

presumptions in the regulation. 

VA provided a 60-day comment 

period that expired on May 17, 2010. 

VA received 18 comments in response 

to the proposed rule. Of these, five 

comments expressed general agreement 

with and support for this amendment. 

We also received a number of comments 

from veterans 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. For the reasons 

explained in this notice, this final rule 

contains no changes from the proposed 

rule. 

One commenter suggested that 

presumptive service-connection be 

granted for service in Turkey during the 

Persian Gulf War. The areas considered 

in the NAS review on which this rule 

is based were those areas of southcentral and southwest Asia generally 

corresponding to the theaters of 

operations for the 1991 Gulf war, 

Operation Enduring Freedom (OEF), 

and Operation Iraqi Freedom (OIF) as 

designated by Executive Order. 

Executive Order 12744 (Jan. 12, 1991); 

60 FR 6665 (Feb. 3, 1995); Executive 

Order 13239 (Dec. 12, 2001). Turkey 

was not included in that review. We 

therefore make no change based on this 

comment. Although the NAS report did 

not include Turkey in the list of 

geographic areas where the nine 

infectious diseases are endemic, we note 

that no veteran is prevented from 

attempting to establish service 

connection on a direct basis by 

presenting evidence linking the 

veteran’s post-service disability to an 

infection contracted during service or 

any other circumstance in service. 

One commenter suggested that VA 

recognize myalgic encephalomyelitis, 

neurasthenia, multiple chemical 

sensitivities, and chronic 

mononucleosis as ‘‘medically 

unexplained chronic multisymptom 

illnesses’’ under 38 CFR 

3.317(a)(2)(i)(B). The purpose of this 

rulemaking is to add presumptions for 

infectious diseases based on findings by 

NAS in ‘‘Gulf War and Health Volume 

5: Infectious Diseases.’’ That report did 

not address the issue of ‘‘medically 

unexplained chronic multisymptom 

illnesses.’’ The comment, therefore, is 

outside of the scope of this rulemaking. 

One commenter recommended that 

the rule authorize specific treatment for 

certain diseases. The purpose of this 

rule is to amend adjudication 

regulations. Treatment protocols for 

diseases and disabilities are outside the 

scope of this regulation, and, outside the 

scope of 38 CFR part 3. For this reason, 

we make no change based on this 

comment. 

This same commenter suggested that 

infections with Mycoplasma species be 

added to the list of presumptive 

infectious diseases. The NAS did not 

include Mycoplasma species among the 

nine infectious diseases they selected. 

The recent NAS report specifically 

focused on scientific and medical 

literature addressing the incidence of 

long-term health effects in individuals 

who had been diagnosed with the 

primary infectious disease and stated 

findings with respect to only the 

strength of the evidence for associations 

between the primary infectious diseases 

and the secondary health effects. The 

NAS evaluated the published, peerreviewed scientific and medical 

literature on long-term health effects 

associated with infectious diseases 

pertinent to service in Southwest Asia 

and those known to have been of special 

concern to veterans deployed to that 

area. The NAS identified over 20,000 

potentially relevant scientific reports, 

and focused on 1,200 that had the 

necessary scientific quality. 

The NAS initially identified 

approximately 100 diseases that are 

known to be endemic to Southwest 

Asia. Because those diseases would in 

most instances become manifest within 

a relatively short time after infection, 

NAS eliminated from consideration any 

disease that had never been reported in 

any U.S. troops within a reasonable 


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period following Persian Gulf 

deployments. The NAS also eliminated 

from consideration any diseases not 

known to produce long-term health 

effects. On that basis, the NAS limited 

the list of diseases to the nine that: 

(1) Are prevalent in Southwest Asia, 

(2) Have been diagnosed among U.S. 

troops serving there, and 

(3) Are known to cause long-term 

adverse health effects. 

NAS did not include mycoplasma 

infection among the conditions meeting 

these criteria. NAS addressed 

mycoplasma infections as an issue of 

special concern to Gulf War Veterans 

because some studies have suggested 

that such infections may be linked to 

Gulf War Veterans’ health problems. 

However, after reviewing the evidence, 

NAS concluded that mycoplasma 

infections are not related to the 

symptoms reported by Gulf War 

Veterans. For these reasons, we make no 

change based on this comment. 

One commenter suggested that the 

time period allowed for presumptive 

service-connection be enlarged due to 

possible delays in seeking treatment. 

The diseases with 1-year presumptive 

periods are consistent with the general 

1-year presumptive period for tropical 

diseases currently in 38 U.S.C. 

1112(a)(2). The diseases with 1-year 

presumptive periods are also consistent 

with medical principles, reflected in the 

NAS report, that those diseases 

ordinarily would be manifest within a 

short period following infection. We 

believe the 1-year presumptive period 

would be sufficient to encompass 

infectious diseases that are likely to 

have resulted from infection during 

service in the Southwest Asia theater of 

operations or Afghanistan, and we, 

therefore, make no change based on this 

comment. 

One commenter was concerned that 

the proposed rule does not address 

effective dates for claims previously 

denied service-connection for a 

condition that is now presumptively 

service-connected. The commenter also 

averred that the effective dates under 

the proposed rule should be governed 

by 38 CFR 3.816. The effective date for 

the addition of presumptive diseases is 

mandated by statute; it is not at the 

discretion of the Secretary of Veterans 

Affairs. Section 1118, title 38, United 

States Code, provides detailed 

instructions as to promulgation of 

regulations relating to presumptions of 

service connection for illnesses 

associated with service in the Persian 

Gulf during the Persian Gulf War. 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. 1118(c)(2). 

The Secretary must then ‘‘issue final 

regulations’’ which ‘‘shall be effective on 

the date of issuance.’’ 38 U.S.C. 

1118(c)(4). Under 38 U.S.C. 5110(g), the 

effective date of an award based on a 

new presumption in a VA regulation 

may not be earlier than the effective 

date of the new presumption. 

Section 3.816 applies only to class 

members of the United States District 

Court class-action case Nehmer v. 

United States Department of Veterans 

Affairs, No. CV–86–6160 TEH (N.D. 

Cal.). See 38 C.F.R. 3.816(a)(1) (defining 

Nehmer class members). Section 3.816 

is the result of a stipulation and order 

in the Nehmer case, and it operates 

outside the statutory bounds that govern 

other claims for service connection. 

Section 3.816 will not apply to any 

claims under 38 CFR 3.317, and we 

make no change to the rule based on 

this comment. 

One commenter suggested that 

examples of possible neurological 

symptoms for West Nile virus be 

included in the regulation. Identifying 

the symptoms or findings that may 

support a diagnosis of any of the 

infectious diseases is a factual issue to 

be addressed based on medical evidence 

in individual cases and is beyond the 

scope of this rule. As no examples of 

symptoms are provided for any other 

disease, and the commenter did not 

explain what distinguishes West Nile 

virus from other infectious diseases 

such that its symptoms should be listed, 

we make no change based upon this 

comment. 

One commenter suggested that the 

term ‘‘affirmative evidence’’ should be 

replaced with the term ‘‘clear and 

convincing evidence’’ describing 

evidence required to rebut the 

presumption. The general evidentiary 

standard governing VA factual 

determinations on issues material to the 

resolution of claims is set out in 38 

U.S.C. 5107. Although § 5107 does not 

explicitly state an evidentiary standard, 

VA interprets it to provide a 

‘‘preponderance of the evidence’’ 

standard. ‘‘The ‘clear and convincing’ 

standard is ‘reserved to protect 

particularly important interests in a 

limited number of civil cases.’ ’’ Thomas 

v. Nicholson, 423 F.3d 1279, 1283 (Fed. 

Cir. 2005) quoting California ex rel 

Cooper v. Mitchell Bros.’ Santa Ana 

Theater, 454 U.S. 90, 93 (1981). In 

veterans’ cases, Congress has 

established specific, heightened 

evidentiary standards for certain 

determinations, e.g., 38 U.S.C. 1111 and 

1154(b), but notably Congress did not do 

so for determinations under 38 U.S.C. 

1117 or 1118. Therefore, VA makes no 

changes based upon this comment. 

The same commenter suggested that a 

medical opinion should not be 

requested by VA when existing medical 

evidence is sufficient for rating 

purposes. Section 5125 provides 

that,‘‘[f]or purposes of establishing any 

claim for benefits under chapter 11 or 

15 of [title 38], a report of a medical 

examination administered by a private 

physician that is provided by a claimant 

in support of a claim for benefits * * * 

may be accepted without a requirement 

for confirmation by an examination by 

a physician employed by the Veterans 

Health Administration [(VHA)] if the 

report is sufficiently complete to be 

adequate for the purpose of adjudicating 

such claim.’’ See also 38 CFR 3.326. 

Because this matter is addressed by 

those authorities and is beyond the 

scope of this rule, VA makes no change 

based upon this comment. 

One commenter suggested that 

presumptive service-connection should 

be extended to complications of anthrax 

immunization. The charge to NAS that 

resulted in ‘‘Gulf War and Health 

Volume 5: Infectious Diseases’’ was to 

evaluate the published, peer-reviewed 

scientific and medical literature on 

long-term health effects associated with 

infectious diseases pertinent to service 

in Southwest Asia. We make no change 

based on this comment because it is 

outside of the scope of this rulemaking. 

Moreover, NAS previously issued a 

report titled, Gulf War and Health, 

Volume 1: ‘‘Depleted Uranium, Sarin, 

Pyridostigmine Bromide, Vaccines,’’ on 

January 1, 2000. In that report, NAS 

limited its analysis to the health effects 

of depleted uranium, the chemical 

warfare agent sarin, vaccinations against 

botulism toxin and anthrax, and 

pyridostigmine bromide. On July 6, 

2001, VA published a notice in the 

Federal Register announcing the 

Secretary’s determination that the 

available evidence did not warrant a 

presumption of service connection for 

any disease discussed in that report. See 

66 FR 35702 (2001). 

One commenter suggested that the 

presumptive period in 38 CFR 

3.317(a)(1)(i), in which certain 

disabilities due to undiagnosed illnesses 

manifest to a degree of 10 percent or 

more are attributable to service in the 

Southwest Asia theater of operations, be 

extended indefinitely. Public Law 103– 

446 directed the Secretary to prescribe 

by regulation the period of time 

(presumptive period) following service 

in the Southwest Asia theater of 

operations determined to be appropriate 


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59970 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

for the manifestation of an illness 

warranting payment of compensation. It 

further directed that the Secretary’s 

determination of a presumptive period 

be made only following a review of any 

credible medical or scientific evidence 

and the historical treatment afforded 

disabilities for which manifestation 

periods have been established and 

taking into account other pertinent 

circumstances regarding the experiences 

of veterans of the Persian Gulf War. 

Because the purpose of this rulemaking 

was to add presumptions for infectious 

diseases, any issue regarding 

undiagnosed illnesses was neither 

raised nor addressed in the proposed 

rulemaking and is, therefore, outside of 

the scope of this rulemaking. In the 

Federal Register of December 5, 2007 

(72 FR 68507), VA extended the 

presumption period for undiagnosed 

illnesses to December 31, 2011, and 

stated that VA may consider further 

extensions in the future. 

For clarity, we have made several 

changes to the proposed rule. Regarding 

section 3.317(c)(1), we have added the 

introductory words ‘‘Except as provided 

by paragraph (c)(4) of the section,’’ in 

order to notify claimants that the 

presumptions can be rebutted. We also 

changed the phrase ‘‘becomes manifest 

in a Persian Gulf veteran, as defined in 

paragraph (e)(1) of this section or a 

veteran who served on active military, 

naval, or air service in Afghanistan on 

or after September 19, 2001,’’ to the 

phrase ‘‘becomes manifest in a veteran 

with a qualifying period of service.’’ 

This change mirrors the language in 

paragraph (c)(3)(ii) and avoids restating 

a definition already provided in the 

regulation. Regarding paragraph (e), we 

are moving the phrase ‘‘during the 

Persian Gulf War’’ from paragraph (e)(1) 

to (e)(2), as it read in the previous rule. 

In the proposed rule, we explained that 

we intended to redesignate current 

paragraph (d) as paragraph (e), but in 

doing so we inadvertently moved the 

phrase ‘‘during the Persian Gulf War’’ 

from (1) to (2). The changes that we 

have made to the final rule are 

nonsubstantive. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary 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 

would not affect any small entities. 

Only VA beneficiaries could 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. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB), as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities; 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this final rule have been 

examined, and it has been determined 

to be a significant regulatory action 

under the Executive Order because it is 

likely to result in a rule that will raise 

novel legal or policy issues arising out 

of legal mandates, the President’s 

priorities, or the principles set forth in 

the Executive Order. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

year. This final rule would have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule are 64.009, Veterans 

Medical Care Benefits; 64.100, 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.106, Specially Adapted 

Housing for Disabled Veterans; 64.109, 

Veterans Compensation for ServiceConnected 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: September 23, 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. Revise § 3.317 to read as follows: 

§ 3.317 Compensation for certain 

disabilities occurring in Persian Gulf 

veterans. 

(a) Compensation for disability due to 

undiagnosed illness and medically 

unexplained chronic multisymptom 

illnesses. (1) Except as provided in 

paragraph (a)(7) of this section, VA will 

pay compensation in accordance with 

chapter 11 of title 38, United States 

Code, to a Persian Gulf veteran who 


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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 59971 

exhibits objective indications of a 

qualifying chronic disability, provided 

that such disability: 

(i) Became manifest either during 

active military, naval, or air service in 

the Southwest Asia theater of 

operations, or to a degree of 10 percent 

or more not later than December 31, 

2011; and 

(ii) By history, physical examination, 

and laboratory tests cannot be attributed 

to any known clinical diagnosis. 

(2)(i) For purposes of this section, a 

qualifying chronic disability means a 

chronic disability resulting from any of 

the following (or any combination of the 

following): 

(A) An undiagnosed illness; 

(B) The following medically 

unexplained chronic multisymptom 

illnesses that are defined by a cluster of 

signs or symptoms: 

(1) Chronic fatigue syndrome; 

(2) Fibromyalgia; 

(3) Irritable bowel syndrome; or 

(4) Any other illness that the 

Secretary determines meets the criteria 

in paragraph (a)(2)(ii) of this section for 

a medically unexplained chronic 

multisymptom illness. 

(ii) For purposes of this section, the 

term medically unexplained chronic 

multisymptom illness means a 

diagnosed illness without conclusive 

pathophysiology or etiology that is 

characterized by overlapping symptoms 

and signs and has features such as 

fatigue, pain, disability out of 

proportion to physical findings, and 

inconsistent demonstration of laboratory 

abnormalities. Chronic multisymptom 

illnesses of partially understood 

etiology and pathophysiology will not 

be considered medically unexplained. 

(3) For purposes of this section, 

‘‘objective indications of chronic 

disability’’ include both ‘‘signs,’’ in the 

medical sense of objective evidence 

perceptible to an examining physician, 

and other, non-medical indicators that 

are capable of independent verification. 

(4) For purposes of this section, 

disabilities that have existed for 6 

months or more and disabilities that 

exhibit intermittent episodes of 

improvement and worsening over a 6- 

month period will be considered 

chronic. The 6-month period of 

chronicity will be measured from the 

earliest date on which the pertinent 

evidence establishes that the signs or 

symptoms of the disability first became 

manifest. 

(5) A qualifying chronic disability 

referred to in this section shall be rated 

using evaluation criteria from part 4 of 

this chapter for a disease or injury in 

which the functions affected, 

anatomical localization, or 

symptomatology are similar. 

(6) A qualifying chronic disability 

referred to in this section shall be 

considered service connected for 

purposes of all laws of the United 

States. 

(7) Compensation shall not be paid 

under this section for a chronic 

disability: 

(i) If there is affirmative evidence that 

the disability was not incurred during 

active military, naval, or air service in 

the Southwest Asia theater of 

operations; or 

(ii) If there is affirmative evidence that 

the disability was caused by a 

supervening condition or event that 

occurred between the veteran’s most 

recent departure from active duty in the 

Southwest Asia theater of operations 

and the onset of the disability; or 

(iii) If there is affirmative evidence 

that the disability is the result of the 

veteran’s own willful misconduct or the 

abuse of alcohol or drugs. 

(b) Signs or symptoms of undiagnosed 

illness and medically unexplained 

chronic multisymptom illnesses. For the 

purposes of paragraph (a)(1) of this 

section, signs or symptoms which may 

be manifestations of undiagnosed illness 

or medically unexplained chronic 

multisymptom illness include, but are 

not limited to: 

(1) Fatigue. 

(2) Signs or symptoms involving skin. 

(3) Headache. 

(4) Muscle pain. 

(5) Joint pain. 

(6) Neurological signs or symptoms. 

(7) Neuropsychological signs or 

symptoms. 

(8) Signs or symptoms involving the 

respiratory system (upper or lower). 

(9) Sleep disturbances. 

(10) Gastrointestinal signs or 

symptoms. 

(11) Cardiovascular signs or 

symptoms. 

(12) Abnormal weight loss. 

(13) Menstrual disorders. 

(c) Presumptive service connection for 

infectious diseases. (1) Except as 

provided in paragraph (c)(4) of this 

section, a disease listed in paragraph 

(c)(2) of this section will be service 

connected if it becomes manifest in a 

veteran with a qualifying period of 

service, provided the provisions of 

paragraph (c)(3) of this section are also 

satisfied. 

(2) The diseases referred to in 

paragraph (c)(1) of this section are the 

following: 

(i) Brucellosis. 

(ii) Campylobacter jejuni. 

(iii) Coxiella burnetii (Q fever). 

(iv) Malaria. 

(v) Mycobacterium tuberculosis. 

(vi) Nontyphoid Salmonella. 

(vii) Shigella. 

(viii) Visceral leishmaniasis. 

(ix) West Nile virus. 

(3) The diseases listed in paragraph 

(c)(2) of this section will be considered 

to have been incurred in or aggravated 

by service under the circumstances 

outlined in paragraphs (c)(3)(i) and (ii) 

of this section even though there is no 

evidence of such disease during the 

period of service. 

(i) With three exceptions, the disease 

must have become manifest to a degree 

of 10 percent or more within 1 year from 

the date of separation from a qualifying 

period of service as specified in 

paragraph (c)(3)(ii) of this section. 

Malaria must have become manifest to 

a degree of 10 percent or more within 

1 year from the date of separation from 

a qualifying period of service or at a 

time when standard or accepted 

treatises indicate that the incubation 

period commenced during a qualifying 

period of service. There is no time limit 

for visceral leishmaniasis or 

tuberculosis to have become manifest to 

a degree of 10 percent or more. 

(ii) For purposes of this paragraph (c), 

the term qualifying period of service 

means a period of service meeting the 

requirements of paragraph (e) of this 

section or a period of active military, 

naval, or air service on or after 

September 19, 2001, in Afghanistan. 

(4) A disease listed in paragraph (c)(2) 

of this section shall not be presumed 

service connected: 

(i) If there is affirmative evidence that 

the disease was not incurred during a 

qualifying period of service; or 

(ii) If there is affirmative evidence that 

the disease was caused by a supervening 

condition or event that occurred 

between the veteran’s most recent 

departure from a qualifying period of 

service and the onset of the disease; or 

(iii) If there is affirmative evidence 

that the disease is the result of the 

veteran’s own willful misconduct or the 

abuse of alcohol or drugs. 

(d) Long-term health effects 

potentially associated with infectious 

diseases. (1) A report of the Institute of 

Medicine of the National Academy of 

Sciences has identified the following 

long-term health effects that potentially 

are associated with the infectious 

diseases listed in paragraph (c)(2) of this 

section. These health effects and 

diseases are listed alphabetically and 

are not categorized by the level of 

association stated in the National 

Academy of Sciences report (see Table 

to § 3.317). If a veteran who has or had 

an infectious disease identified in 

column A also has a condition 


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59972 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

identified in column B as potentially 

related to that infectious disease, VA 

must determine, based on the evidence 

in each case, whether the column B 

condition was caused by the infectious 

disease for purposes of paying disability 

compensation. This does not preclude a 

finding that other manifestations of 

disability or secondary conditions were 

caused by an infectious disease. 

(2) If a veteran presumed service 

connected for one of the diseases listed 

in paragraph (c)(2) of this section is 

diagnosed with one of the diseases 

listed in column ‘‘B’’ in the table within 

the time period specified for the disease 

in the same table, if a time period is 

specified or, otherwise, at any time, VA 

will request a medical opinion as to 

whether it is at least as likely as not that 

the condition was caused by the veteran 

having had the associated disease in 

column ‘‘A’’ in that same table. 

TABLE TO § 3.317—LONG-TERM HEALTH EFFECTS POTENTIALLY ASSOCIATED WITH INFECTIOUS DISEASES

A 

B 

Disease 

Brucellosis ....................................... • Arthritis. 

• Cardiovascular, nervous, and respiratory system infections. 

• Chronic meningitis and meningoencephalitis. 

• Deafness. 

• Demyelinating meningovascular syndromes. 

• Episcleritis. 

• Fatigue, inattention, amnesia, and depression. 

• Guillain-Barre ́ syndrome. 

• Hepatic abnormalities, including granulomatous hepatitis. 

• Multifocal choroiditis. 

• Myelitis-radiculoneuritis. 

• Nummular keratitis. 

• Papilledema. 

• Optic neuritis. 

• Orchioepididymitis and infections of the genitourinary system. 

• Sensorineural hearing loss. 

• Spondylitis. 

• Uveitis. 

Campylobacter jejuni ...................... • Guillain-Barre ́ syndrome if manifest within 2 months of the infection. 

• Reactive Arthritis if manifest within 3 months of the infection. 

• Uveitis if manifest within 1 month of the infection. 

Coxiella burnetii (Q fever) ............... • Chronic hepatitis. 

• Endocarditis. 

• Osteomyelitis. 

• Post-Q-fever chronic fatigue syndrome. 

• Vascular infection. 

Malaria ............................................ • Demyelinating polyneuropathy. 

• Guillain-Barre ́ syndrome. 

• Hematologic manifestations (particularly anemia after falciparum malaria and splenic rupture after vivax 

malaria). 

• Immune-complex glomerulonephritis. 

• Neurologic disease, neuropsychiatric disease, or both. 

• Ophthalmologic manifestations, particularly retinal hemorrhage and scarring. 

• Plasmodium falciparum. 

• Plasmodium malariae. 

• Plasmodium ovale. 

• Plasmodium vivax. 

• Renal disease, especially nephrotic syndrome. 

Mycobacterium tuberculosis ........... • Active tuberculosis. 

• Long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary 

and extrapulmonary tuberculosis and active tuberculosis. 

Nontyphoid Salmonella ................... • Reactive Arthritis if manifest within 3 months of the infection. 

Shigella ........................................... • Hemolytic-uremic syndrome if manifest within 1 month of the infection. 

• Reactive Arthritis if manifest within 3 months of the infection. 

Visceral leishmaniasis ..................... • Delayed presentation of the acute clinical syndrome. 

• Post-kala-azar dermal leishmaniasis if manifest within 2 years of the infection. 

• Reactivation of visceral leishmaniasis in the context of future immunosuppression. 

West Nile virus ................................ • Variable physical, functional, or cognitive disability. 

(e) Service. For purposes of this 

section: 

(1) The term Persian Gulf veteran 

means a veteran who served on active 

military, naval, or air service in the 

Southwest Asia theater of operations 

during the Persian Gulf War. 

(2) The Southwest Asia theater of 

operations refers to Iraq, Kuwait, Saudi 

Arabia, the neutral zone between Iraq 

and Saudi Arabia, Bahrain, Qatar, the 

United Arab Emirates, Oman, the Gulf 

of Aden, the Gulf of Oman, the Persian 

Gulf, the Arabian Sea, the Red Sea, and 

the airspace above these locations. 

(Authority: 38 U.S.C. 1117, 1118). 

[FR Doc. 2010–24360 Filed 9–28–10; 8:45 am] 

BILLING CODE 8320–01–P 


erowe on DSK5CLS3C1PROD with RULES