[Federal Register Volume 75, Number 194 (Thursday, October 7, 2010)]
[Rules and Regulations]
[Pages 61995-61997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25100]


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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.

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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 
non-substantive 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 Sec.  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 Sec.  
3.317(a)(2)(i)(B). Specifically, we are revising Sec.  
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 Sec.  3.317(a)(2)(i)(B)(4) in order to 
omit the current regulatory language reserving to the Secretary the 
authority to determine

[[Page 61996]]

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 multi-symptom 
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 Sec.  
3.317(a)(2)(i)(B) as a ``medically unexplained chronic multisymptom 
illness.'' In adjudicating claims under Sec.  3.317(a)(2)(i)(B), VA 
will continue to apply the term ``medically unexplained chronic 
multisymptom illness'' as currently defined in Sec.  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, Sec.  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 Sec.  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.


[[Page 61997]]


    Dated: September 30, 2010.
William F. Russo,
Director, Regulations Management, Office of the General Counsel, 
Department of Veterans Affairs.

0
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

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

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

0
2. Amend Sec.  3.317 by:
0
a. Revising the section heading.
0
b. Revising paragraph (a)(2)(i)(B).
0
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:


Sec.  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]
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