[Federal Register Volume 82, Number 204 (Tuesday, October 24, 2017)]
[Rules and Regulations]
[Pages 49121-49123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22970]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP84


Extension of the Presumptive Period for Compensation for Gulf War 
Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final 
rule to affirm its adjudication regulations regarding compensation for 
disabilities resulting from undiagnosed illnesses suffered by veterans 
who served in the Persian Gulf War. This amendment is necessary to 
extend the period during which disabilities associated with undiagnosed 
illnesses and medically unexplained chronic multi-symptom illnesses 
must become manifest in order for a Veteran to be eligible for 
compensation. The intended effect of this amendment is to provide 
consistency in VA adjudication policy, preserve certain rights afforded 
to Persian Gulf War (GW) veterans, and ensure fairness for current and 
future GW veterans.

DATES: This final rule is effective October 24, 2017.

FOR FURTHER INFORMATION CONTACT: Janel Keyes, Policy Analyst, 
Regulations Staff (211D), Compensation Service, Veterans Benefits 
Administration, 810 Vermont Avenue NW., Washington, DC 20420, 
<a href="/cdn-cgi/l/email-protection#c983a8a7aca5e782acb0acba89bfa8e7aea6bf"><span class="__cf_email__" data-cfemail="d69cb7b8b3baf89db3afb3a596a0b7f8b1b9a0">[email protected]</span></a>, (202) 461-9700. (This is not a toll-free telephone 
number.)

SUPPLEMENTARY INFORMATION: On October 17, 2016, VA published in the 
Federal Register an interim final rule (81 FR 71382) amending its 
adjudication regulation regarding compensation for disabilities 
suffered by veterans who served in the Southwest Asia Theater of 
Operations during the GW. In order to ensure that benefits established 
by Congress are fairly administered, VA extended the evaluation period 
in which disabilities associated with undiagnosed illnesses and chronic 
multi-symptom illnesses must become manifest in order for a veteran to 
be eligible for compensation. Accordingly, VA removed the date, 
December 31, 2016, from 38 CFR 3.317(a)(1)(i) and added, in its place, 
December 31, 2021.
    VA invited interested persons to submit written comments on or 
before December 16, 2016. VA received 22 comments in response to the 
interim final rule. VA received comments from military service members, 
veterans, family members, and one veteran service organization, which 
was Veterans of Foreign Wars. Some comments addressed more than one 
issue. In those instances, VA reviewed and considered each issue 
independently. VA also grouped together by similar topic all of the 
issues raised by the commenters that concerned at least one portion of 
the rule. VA organized the responses to the comments by topic. VA 
responds to all commenters as follows.

I. Supportive

    VA received five comments expressing support for the extension. One 
commenter provided personal testimony as a GW veteran that his symptoms 
had a delayed-onset; therefore, an extension was appropriate and 
justified. Another commenter provided personal testimony as a spouse of 
a GW veteran stating that her husband's symptoms have ``steadily gotten 
worse over the years''. VA appreciates the feedback and support. VA 
makes no change based on these comments.

II. Elimination of Expiration Date

    The majority of commenters, some of whom thanked VA for the 
extension, asserted that VA should eliminate the expiration date. One 
commenter stated, ``I think that the deadline for [GW] presumptive 
claims should be totally taken away since there is still not an 
official end to the [GW] and we do not know when there will be one.'' 
Another stated, ``It took about 5 years after getting out to see a 
pattern of illness and at a level to make me concerned. It took even 
longer to see and feel the full extent of my conditions.'' 
Additionally, Veterans of Foreign Wars requested an open-ended 
presumptive period ``without an artificial time limit''.
    VA makes no change based on these comments. Section 102(7) of the 
Persian Gulf War Veterans' Benefits Act, Title I of the Veterans' 
Benefits Improvement Act of 1994, Public Law 103-446, states Congress' 
finding that further research must be undertaken to determine the 
causes of GW veterans' illnesses and that

pending the outcome of such research, veterans who are seriously ill 
as the result of such illnesses should be given the benefit of the 
doubt and be provided compensation to offset the impairment in 
earning capacities they may be experiencing.

Hence, Congress contemplated an ongoing process for investigating the 
nature and causes of GW veterans' illnesses that is reflected in the 
current statutory and regulatory scheme. See 38 U.S.C. 1117 and 38 CFR 
3.317.

[[Page 49122]]

    In section 1117(b), Congress provided the Secretary with discretion 
to prescribe a presumptive period based upon, among other things, a 
review of credible medical or scientific evidence. As stated in the 
interim final rule, there is a lack of scientific certainty surrounding 
the cause of illnesses suffered by GW veterans. Accordingly, VA 
believes that extending the presumptive period for a significant, but 
not indefinite, period to permit further investigation is consistent 
with the goals of this statutory scheme. Thus, the Secretary is 
exercising his discretion under section 1117 and extending the 
presumptive period to December 31, 2021, in order to provide more time 
for scientific and medical research regarding diseases and illnesses 
that may be related to service in the Southwest Asia Theater of 
Operations.
    One commenter expressed concern about how the expiration date may 
be perceived as inconsistent with the important missions of the VA War 
Related Illness and Injury Study Center (WRIISC) and the Department of 
Defense Gulf War Illness Research Program (GWIRP). The WRIISC develops 
and provides post-deployment health expertise to veterans and their 
health care providers through clinical care, research, education, and 
risk communication. The GWIRP focuses on funding innovative, 
competitively peer-reviewed research to provide a better understanding 
of the pathobiology underlying GW illness and to improve methods of 
diagnosis and treatment. Extending the manifestation period for 
purposes of compensation to December 31, 2021, would have no negative 
impact on the missions of WRIISC or GWIRP. As we noted above, 
continuing research while also setting an ending date for the 
presumptive period is fully consistent with Congress's intent to 
compensate veterans who are seriously ill but where more research is 
needed to understand the nature and cause of the illnesses. We note 
that this final rule does not foreclose further extensions of the 
presumptive period in the future if more time is needed for research 
beyond the currently prescribed expiration date.

III. Longer Extension

    One commenter advocated for a longer extension period. This 
commenter stated, ``I think it would be a mistake to close enrollment 
so soon.'' He further stated that some GW veterans might be in the 
beginning stages of illnesses, while others have been ``suffering 
symptoms in silence''. However, the commenter did not suggest a 
different date. The three previously established extensions, 
implemented by VA for medically unexplained chronic multi-symptom 
illnesses and undiagnosed illnesses that appeared in GW veterans, were 
5-year periods. VA determined that it was appropriate to extend the 
period again by 5 years consistent with the extensions that have 
occurred in the past. Therefore, VA makes no change based on this 
comment.
    VA also notes that the rule does not ``close enrollment.'' The time 
limit prescribes when the claimed illness must become manifest. The 
rule does not impose a limit on when a claim may be filed. For example, 
a future claimant will be allowed to present evidence showing 
manifestation that occurred within the time limit even if the claim is 
filed after the time limit has passed.

IV. More Presumptive Conditions

    Two comments stated that VA should add more presumptive conditions 
to the list, but did not mention specific conditions. As scientific and 
medical research continues, VA will consider this issue for future 
regulatory updates. However, because VA regulations must be evidence-
based in accordance with available scientific and medical research, it 
cannot amend the current list based on these comments. Therefore, VA 
makes no change to this rule based on these comments.

V. More Research

    Several comments discussed the need for additional research. One 
such commenter discussed a study that is currently underway in regards 
to ``biomarkers associated with the conditions linked to service in the 
Gulf War'' and stated, ``[M]ore must be done.'' Another commenter 
discussed other current studies and stated, ``[F]ollow-on research is 
needed to further develop findings.'' VA recognizes the need for 
further investigation, inclusive of scientific and medical research. To 
allow time for further research, this rulemaking finalizes an extension 
of the period in which manifestations of undiagnosed illnesses and 
medically unexplained chronic multi-symptom illnesses must appear in GW 
veterans to be presumed as service-connected diseases. VA, therefore, 
makes no change based on these comments.

VI. General Comments

    VA received general comments that were not associated with the 
extension of the period for VA to continue to evaluate undiagnosed 
illnesses and medically unexplained chronic multi-symptom illnesses in 
GW veterans. One commenter requested VA move the elements of 38 CFR 
3.317(c) to 38 CFR 3.307 and 3.309. This commenter also expressed 
concerns that private physicians completing GW General Medical 
Disability Benefits Questionnaire (DBQ) examinations will not know that 
GW undiagnosed illness and medically unexplained chronic multi-symptom 
illness do not apply to Afghanistan service; he was concerned that they 
would not know that only GW infectious disease presumptions apply to 
Afghanistan service. VA understands and agrees with this concern. For 
this reason, VA does not accept DBQs from private doctors for initial 
GW examinations; a Veterans Health Administration (VHA) clinician must 
perform the initial GW examination. This commenter also expressed 
concerns that Afghanistan was being included in the definition of the 
Southwest Asia theater of operations. In accordance with 38 U.S.C. 
1117(f), VA acknowledges that the term ```Persian Gulf veteran' means a 
veteran who served on active duty in the Armed Forces in the Southwest 
Asia theater of operations during the Persian Gulf War,'' and as 
reflected in 38 CFR 3.317(e)(2), ``[t]he 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.'' 
As such, VA requires the claims processors to verify qualifying 
locations of service prior to requesting a GW examination. Any concerns 
unrelated to extending the date for manifestation of undiagnosed 
illness or medically unexplained chronic multi-symptom illness are 
beyond the scope of this rulemaking. Therefore, VA makes no changes 
based on these comments.
    Another comment requested ``clarity and consistency'' concerning 
the definitions of GW undiagnosed illness and medically unexplained 
chronic multi-symptom illness. Although the medical community has not 
settled on standardized case definitions, VA applies the legal 
definitions of these conditions, which are outlined in 38 U.S.C. 
1117(a)(2) and (g). Another comment discussed historical events 
regarding the Agent Orange Act of 1991. One commenter expressed 
concerns regarding the definition of ``presumptive'' and provided 
personal testimony. Another commenter expressed concerns that her 
children (parented by an affected GW veteran) may have been 
biologically affected. These comments are not relevant to the

[[Page 49123]]

current rule amendment; therefore, VA makes no changes to the rule 
based on these comments.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires 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 
this Executive Order.'' The economic, interagency, budgetary, 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.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the provisions of the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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 not affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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 rule will have no such effect on State, 
local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title 
affected by this rule is 64.109, Veterans Compensation for Service-
Connected Disability.

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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on September 25, 2017, for publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Veterans

    The interim rule amending 38 CFR part 3, published October 17, 
2016, at 81 FR 71382, is adopted as final without change.

    Dated: September 25, 2017.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.
[FR Doc. 2017-22970 Filed 10-23-17; 8:45 am]
 BILLING CODE 8320-01-P


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