Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 61995 

§ 1.36 Systems exempt in whole or in part 

from provisions of 5 U.S.C. 552a and this 

part. 

* * * * * 

(g) * * * 

(1) * * * 

(i) * * * 

Number System name 

*******

DO .120 ........................................... Records Related to Office of Foreign Assets Control Economic Sanctions. 

*******

* * * * * 

Dated: July 16, 2010. 

Melissa Hartman, 

Acting Deputy Assistant Secretary for Privacy, 

Transparency, and Records. 

[FR Doc. 2010–25134 Filed 10–6–10; 8:45 am] 

BILLING CODE 4811–45–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN68 

Compensation for Certain Disabilities 

Due to Undiagnosed Illnesses 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule; technical 

amendments. 

SUMMARY: This document amends a 

Department of Veterans Affairs (VA) 

ratings and evaluations regulation to 

remove a provision reserving to the 

Secretary the authority for certain 

determinations and to make a nonsubstantive clarifying change. 

DATES: Effective Date: October 7, 2010. 

Applicability Date: The amendments 

to 38 CFR 3.317 apply to claims pending 

before VA on the effective date of this 

rule, as well as to claims filed with or 

remanded to VA after that date. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Kniffen, Chief, Regulations 

Staff (211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9725. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: VA has 

determined that technical revisions to 

38 CFR 3.317 are needed to remove a 

potential source of confusion and to 

more efficiently implement the intent of 

Congress as expressed in 38 U.S.C. 

1117. 

38 U.S.C. 1117 provides for the 

payment of disability compensation to 

Persian Gulf War veterans with a 

qualifying chronic disability that 

became manifest during service in 

Southwest Asia during the Persian Gulf 

War, or became manifest to a degree of 

ten percent or more during the 

presumptive period established by the 

Secretary. Section 1117(a)(2) defines a 

‘‘qualifying chronic disability’’ as a 

chronic disability resulting from any of 

the following (or any combination of the 

following): ‘‘(A) An undiagnosed illness, 

(B) A medically unexplained chronic 

multisymptom illness (such as chronic 

fatigue syndrome, fibromyalgia, and 

irritable bowel syndrome) that is 

defined by a cluster of signs or 

symptoms, [or] (C) Any diagnosed 

illness that the Secretary determines 

* * * warrants a presumption of service 

connection.’’ 

It is evident from Congress’ use of the 

phrase ‘‘such as’’ in section 1117(a)(2)(B) 

that Congress intended ‘‘chronic fatigue 

syndrome, fibromyalgia, and irritable 

bowel syndrome’’ to be examples of 

medically unexplained chronic 

multisymptom illnesses, rather than an 

exclusive list. 

VA has implemented this statute in a 

regulation at 38 CFR 3.317(a)(2), which 

provides a substantially similar 

definition of the term ‘‘qualifying 

chronic disability,’’ but also specifies the 

process for determining whether 

conditions other than chronic fatigue 

syndrome, fibromyalgia, and irritable 

bowel syndrome will be found to be 

‘‘medically unexplained chronic 

multisymptom illnesses.’’ The regulation 

states, in 38 CFR 3.317(a)(2)(i)(B), that a 

qualifying chronic disability will 

include those three specified illnesses 

and ‘‘[a]ny other illness that the 

Secretary determines meets the criteria 

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

a medically unexplained chronic 

multisymptom illness.’’ Paragraph 

(a)(2)(ii) of § 3.317 provides a detailed 

explanation regarding the types of 

illnesses that can be considered to be 

medically unexplained chronic 

multisymptom illnesses. The practical 

effect of the procedures established in 

the current regulation is to reserve to the 

Secretary the authority to determine 

whether illnesses other than chronic 

fatigue syndrome, fibromyalgia, and 

irritable bowel syndrome will be found 

to be ‘‘medically unexplained chronic 

multisymptom illnesses’’ for purposes of 

applying 38 U.S.C. 1117. Accordingly, 

currently VA adjudicators or other 

officials cannot make that determination 

in individual cases without a specific 

determination by the Secretary. 

VA is revising this procedure for two 

reasons. First, we believe it is 

unnecessary to reserve this authority to 

the Secretary, because the regulation 

sets forth clear and detailed standards to 

guide the determination as to what 

constitutes a medically unexplained 

chronic multisymptom illness. We 

believe the regulatory language provides 

sufficient guidance to enable medical 

professionals to render medical 

opinions on this issue and to enable VA 

adjudicators to decide this issue when 

it arises in individual cases. Second, we 

believe the current procedures may 

create confusion or may dissuade 

claimants from filing claims based on 

medically unexplained illnesses other 

than those currently listed in the 

regulation. 

To make it clear that chronic fatigue 

syndrome, fibromyalgia, and irritable 

bowel syndrome are only examples of 

medically unexplained chronic 

multipsymptom illnesses, we are 

revising the language of 

§ 3.317(a)(2)(i)(B). Specifically, we are 

revising § 3.317(a)(2)(i)(B) by: Removing 

‘‘The following’’ at the beginning of the 

sentence and replacing it with ‘‘A’’; 

changing the plural word ‘‘illnesses’’ to 

the singular ‘‘illness’’ and the verb ‘‘are’’ 

to ‘‘is’’; and adding ‘‘such as’’ at the end 

of the sentence. The revised section will 

read: ‘‘(B) A medically unexplained 

chronic multisymptom illness that is 

defined by a cluster of signs or 

symptoms, such as: (1) Chronic fatigue 

syndrome; (2) Fibromyalgia; (3) Irritable 

bowel syndrome.’’ This change 

eliminates language that could imply 

that the list is exhaustive. 

In addition, we are removing 

§ 3.317(a)(2)(i)(B)(4) in order to omit the 

current regulatory language reserving to 

the Secretary the authority to determine 


srobinson on DSKHWCL6B1PROD with RULES
61996 Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 

whether additional illnesses are 

‘‘medically unexplained chronic 

multisymptom illnesses.’’ This change 

will have the effect of delegating to VA 

adjudicators the authority to determine 

on a case-by-case basis whether 

additional diseases meet the criteria of 

paragraph (a)(2)(ii) in the same manner 

as they make other determinations 

necessary in deciding claims. Under 38 

CFR 3.100(a), VA adjudicators generally 

have delegated authority to make all 

findings and determinations necessary 

to a decision on a claim. This 

rulemaking will result in determinations 

of medically unexplained chronic multisymptom illness being made in 

accordance with that general delegation 

of authority. 

If a veteran has an illness other than 

chronic fatigue syndrome, fibromyalgia, 

or irritable bowel syndrome, it is solely 

a medical determination whether that 

illness qualifies under revised 

§ 3.317(a)(2)(i)(B) as a ‘‘medically 

unexplained chronic multisymptom 

illness.’’ In adjudicating claims under 

§ 3.317(a)(2)(i)(B), VA will continue to 

apply the term ‘‘medically unexplained 

chronic multisymptom illness’’ as 

currently defined in § 3.317(a)(2)(ii): ‘‘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.’’ This existing definition 

is based on the Congressional Joint 

Explanatory Statement that 

accompanied the introduction of 

medically unexplained chronic 

multisymptom illnesses into 38 U.S.C. 

1117. See Explanatory Statement on 

House Amendment to Senate 

Amendments to H.R. 1291 [enacted as 

the Veterans Education and Benefits 

Expansion Act of 2001], 147 Cong. Rec. 

S13,235, S13,238 (Dec. 13, 2001)(Joint 

Explanatory Statement). 

Finally, § 3.317(a)(2)(ii) exempts 

‘‘[c]hronic multisymptom illnesses of 

partially understood etiology and 

pathophysiology’’ from being considered 

medically unexplained chronic 

multisymptom illnesses. To further 

clarify this exclusion, we have added 

the specific examples ‘‘diabetes’’ and 

‘‘multiple sclerosis.’’ This clarification 

does not alter any existing rights under 

the current regulation, but merely 

provides examples to better illustrate 

the current regulation. The two listed 

examples, diabetes and multiple 

sclerosis, were cited by Congress in the 

legislative history of the authorizing 

legislation as examples of conditions 

that would not be within the scope of 

the statutory term ‘‘medically 

unexplained chronic multipsymptom 

illnesses.’’ See Joint Explanatory 

Statement, 147 Cong. Rec. at S13,238. 

When VA issued the rule currently in 

§ 3.317(a)(2)(ii), we similarly explained 

that diabetes and multiple sclerosis 

were examples of conditions that would 

not meet the statutory and regulatory 

definition of ‘‘medically unexplained 

chronic multipsymptom illnesses.’’ 68 

FR 34539, 34540 (June 10, 2003). We 

believe that including this information 

in the text of the regulation will be 

helpful to readers. 

Administrative Procedure Act 

Because this amendment merely 

reflects a matter of agency procedure 

and makes other non-substantive 

changes, this rulemaking is exempt from 

the prior notice-and-comment and 

delayed-effective-date requirements of 5 

U.S.C. 553. 

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 initial and final regulatory 

flexibility analysis requirements of 

sections 603 and 604 of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, are 

not applicable to this rule because a 

notice of proposed rulemaking is not 

required for this rule. Even so, 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 

rule will affect only individual VA 

beneficiaries and will not directly affect 

small entities. 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, legal, and 

policy implications of this final rule 

have been examined and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. 

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 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this final 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, approved this 

document on August 19, 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. 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 61997 

Dated: September 30, 2010. 

William F. Russo, 

Director, Regulations Management, Office of 

the General Counsel, Department of Veterans 

Affairs. 

■ For the reasons set out in the 

preamble, VA amends 38 CFR part 3 as 

follows: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

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

otherwise noted. 

■ 2. Amend § 3.317 by: 

■ a. Revising the section heading. 

■ b. Revising paragraph (a)(2)(i)(B). 

■ c. In paragraph (a)(2)(ii), removing 

‘‘and pathophysiology’’ and adding, in 

its place, ‘‘and pathophysiology, such as 

diabetes and multiple sclerosis,’’. 

The revisions read as follows: 

§ 3.317 Compensation for certain 

disabilities due to undiagnosed illnesses. 

(a) * * * 

(2) * * * 

(i) * * * 

(B) A medically unexplained chronic 

multisymptom illness that is defined by 

a cluster of signs or symptoms, such as: 

(1) Chronic fatigue syndrome; 

(2) Fibromyalgia; 

(3) Irritable bowel syndrome. 

* * * * * 

[FR Doc. 2010–25100 Filed 10–6–10; 8:45 am] 

BILLING CODE P 


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