(
91outcomes.com) - The U.S. Department of Veterans Affairs (VA) today published an interim final rule. effective today, extending by five more years the presumptive period for Gulf War veterans' service-connected disability claims related to undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses.
“Not all the wounds of war are fully understood,” said Secretary of Veterans Affairs Eric K. Shinseki. “When there is uncertainty about the connection between a medical problem and military service, Veterans are entitled to the benefit of the doubt.”
Several "examples" of qualifying disabling conditions are more commonly known as Gulf War Illness or Gulf War Syndrome, along with Fibromyalgia (FM), Chronic Fatigue Syndrome (CFS/ME), Irritable Bowel Syndrome (IBS), and Functional Gastrointestinal Disorders (FGIDs).
Veterans with service in the Persian Gulf theater of operation between August 1990 and the present who have medical evidence of current and disabling multiple symptoms attributed to these disorders, or not attributable to another known disorder, may qualify for "presumptive" service-connected disability compensation and related benefits under the law.
Earlier this year, VA announced it was proposing rules to extend the presumptive date "through 2018." However, the final published rule only extends the presumptive period through 2016, a full two years less than VA's earlier announcement. That announcement remains on VA's
website.
Public comments on the VA's five-year extension of this presumptive period can be made through February 27, 2012. Written comments on the rule, including concerns as to why the presumptive period was not extended through 2018 as previously announced, can be submitted:
- ONLINE: http://www.regulations.gov/#!documentDetail;D=VA_FRDOC_0001-1979
- BY MAIL: Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1068, Washington, DC 20420
- BY HAND-DELIVERY: Department of Veterans Affairs, 810 Vermont Ave., NW, Washington, DC [Letter/Envelope Addressed to: Director, Regulations Management (02REG)]
- BY FAX: (202) 273-9026
The VA press release is below, followed by the full Federal Register publication of the rule.
Anthony Hardie
Madison, Wis.
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VA: Rules Liberalized for Veterans with Undiagnosed Illnesses
Application Window Extended for Five Years
(VA PRESS RELEASE - WASHINGTON, DC) – Veterans of the Persian Gulf War with undiagnosed illnesses have an additional five years to qualify for benefits from the Department of Veterans Affairs.
“Not all the wounds of war are fully understood,” said Secretary of Veterans Affairs Eric K. Shinseki. “When there is uncertainty about the connection between a medical problem and military service, Veterans are entitled to the benefit of the doubt.”
A recent change in VA regulations affects Veterans of the conflict in Southwest Asia. Many have attributed a range of undiagnosed or poorly understood medical problems to their military services. Chemical weapons, environmental hazards and vaccinations are among the possible causes.
At issue is the eligibility of Veterans to claim VA disability compensation based upon those undiagnosed illnesses, and the ability of survivors to qualify for VA’s Dependency and Indemnity Compensation.
Under long-standing VA rules, any undiagnosed illnesses used to establish eligibility for VA benefits must become apparent by Dec. 31, 2011. The new change pushes the date back to Dec. 31, 2016.
Veterans or survivors who believe they qualify for these benefits should contact VA at 1-800-827-1000.
Further information about undiagnosed illnesses is available online at:
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VA Said it was going to extend the Gulf War Illnesses presumptive period for service-connected disability claims by seven years (to 2018).
Instead, VA only wound up extending it by five years (to 2016).
 |
| VA Webpage Showing Intention to Extend Gulf War Presumption to 2018 (but then only extended it to 2016) |
What happened, VA?! LET'S GET THIS FIXED!
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SOURCE:
http://www.regulations.gov/#!documentDetail;D=VA_FRDOC_0001-1979
[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81834-81836]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33222]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AO09
Extension of Statutory Period for Compensation for Certain Disabilities Due to Undiagnosed Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses
AGENCY: U.S. Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final rule to amend its adjudication regulation regarding
compensation for disabilities suffered by veterans who served in the
Southwest Asia Theater of Operations during 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.
DATES: Effective Date: This interim final rule is effective December
29, 2011. Comments must be received by VA on or before February 27,
2012.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave.
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll-free number). Comments should indicate that they
are submitted in response to ``RIN 2900-AO09--Extension of Statutory
Period for Compensation for Certain Disabilities Due to Undiagnosed
Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses.''
Copies of comments received will be available for public inspection in
the Office of Regulation Policy and Management, Room 1063B, between the
hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. (This is not a toll-free
number). In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Nancy Copeland, Consultant,
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: In response to the needs and concerns of
veterans who served in the Southwest Asia theater of operations during
the Persian Gulf War, Congress enacted the Persian Gulf War Veterans'
Benefits Act, Title I of the Veterans' Benefits Improvement Act of
1994, Public Law 103-446, which was codified at 38 U.S.C. 1117. This
law provided authority for the Secretary of Veterans Affairs
(Secretary) to compensate Gulf War veterans with a chronic disability
resulting from an undiagnosed illness that became manifest either
during service on active duty in the Southwest Asia theater of
operations during the Persian Gulf War or to a degree of ten percent or
more disabling during a presumptive period determined by the Secretary.
Public Law 103-446 directed the Secretary to prescribe by
regulation the period of time, following service in the Southwest Asia
theater of operations, determined to be appropriate 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, taking into
account other pertinent circumstances regarding the experiences of
veterans of the Persian Gulf War.
To implement 38 U.S.C. 1117, VA published a final rule to add 38
CFR 3.317, which established the framework for the Secretary to pay
compensation under the authority granted by the Persian Gulf War
Veterans' Benefits Act. See 60 FR 6660, February 3, 1995. As part of
that rulemaking, VA established a 2 year, post-Gulf War service
presumptive period based primarily on the historical treatment of
disabilities for which manifestation periods have been established and
pertinent facts known regarding service in the Southwest Asia theater
of operations during the Persian Gulf War. VA determined that there was
little or no scientific or medical evidence, at that time, useful in
determining an appropriate presumptive period for undiagnosed
illnesses.
Due to the continuing lack of medical and scientific evidence about
the nature and cause of the illnesses suffered by Gulf War veterans and
the inadequacy of a designated presumptive period for undiagnosed
illnesses, the Secretary established December 31, 2001, as the date by
which an undiagnosed illness must become manifest for purposes of
claims based on service in the Southwest Asia theater of operations
during the Persian Gulf War. In 2001, VA further extended the period
from December 31, 2001, to December 31, 2006.
In December 2001, section 202(a) of Public Law 107-103 amended 38
U.S.C. 1117 by revising the term ``chronic disability'' to include the
following (or any combination of the following): (a) An undiagnosed
illness; (b) a medically unexplained chronic multi-symptom illness
(such as chronic fatigue syndrome, fibromyalgia, and irritable bowel
syndrome) that is defined by a cluster of signs and symptoms; or (c)
any diagnosed illness that the Secretary determines warrants a
presumption of service connection. The revised term ``qualifying
chronic disability,'' has broadened the scope of those health outcomes
the Secretary may include under the presumption of service connection.
Under 38 U.S.C. 1117, a chronic disability must still occur during
service in the Southwest Asia theater of operations during the Persian
Gulf War, or to a degree of ten percent or more disabling during the
prescribed presumptive period following such service. VA amended 38 CFR
3.317 to reflect these changes. See 68 FR 34539, June 10, 2003.
As required by Public Law 105-277, the National Academy of Sciences
(NAS) conducts ongoing review, evaluation, and summarization of the
scientific and medical literature for peer review regarding the
possible association between service in the Southwest Asia theater of
operations and long-term adverse health effects. Due to the
inconclusive nature of the scientific and medical evidence concerning
the manifestation period for the subject illnesses, in December 2007,
VA published a final rule to further extend the manifestation period
from December 31, 2006 (previously extended), to December 31, 2011. See
72 FR 68507-01. Additionally, on October 13, 2010, Congress enacted
section 806
[[Page 81835]]
of Public Law 111-275, which directed NAS to continue to review,
evaluate, and summarize scientific and medical literature associated
with Persian Gulf War service and broadly expanded the time frame for
NAS to complete this research, since military operations in the
Southwest Asia Theater of Operations continue, including Operation
Iraqi Freedom, and no end date for the Gulf War has been established by
Congress. See 38 U.S.C. 101(33).
In a report published in 2010 titled Gulf War and Health, Volume 8:
Update of Health Effects of Serving in the Gulf War, NAS evaluated the
available scientific and medical literature regarding the prevalence of
chronic multi-symptom illnesses in Gulf War veterans. Consistent with
its prior findings, NAS concluded, based on multiple studies, that
there is sufficient evidence of an association between deployment to
the Gulf War and chronic multi-symptom illness. NAS analyzed two
follow-up studies that surveyed veterans who served in the Gulf War in
1991 in order to determine whether the increased prevalence of chronic
multi-symptom illness persisted several years after such service. One
study, conducted 10 years after the 1991 Gulf War, involved conducting
detailed examinations and medical histories of veterans deployed to the
Gulf War and non-deployed veterans of the same era. The study found
that, 10 years after the 1991 Gulf War, chronic multi-symptom illness
was nearly twice as prevalent in veterans deployed to the Gulf War
(present in 28.9 percent of such veterans) than in the non-deployed
veterans (15.8 percent). The study found that the prevalence of chronic
multi-symptom illness decreased gradually over time, but remained
significantly elevated 10 years after service. The other follow-up
study involved a 2005 survey of veterans deployed to the 1991 Gulf War
and their non-deployed counterparts of that era. That study found that
36.5 percent of the deployed veterans reported experiencing symptoms of
chronic multi-symptom illness in 2005, compared to 11.7 percent of the
non-deployed veterans. While this report is limited in that it is based
on self-reports, the results are statistically significant and are
consistent with the other follow-up report.
The currently available scientific and medical literature thus
suggests that, while the prevalence of chronic multi-symptom illness
may decrease over time following deployment to the Gulf War, the
prevalence remains significantly elevated among deployed veterans more
than a decade after deployment. At present, there is not a sufficient
basis to identify the point, if any, at which the increased risk of
chronic multi-symptom illness may abate. Further follow-up studies may
provide additional information relevant to this issue in the future.
Section 501(a) of Title 38, United States Code, provides that the
Secretary of Veterans Affairs ``[h]as authority to prescribe all rules
and regulations which are necessary or appropriate to carry out the
laws administered by the Department and are consistent with those
laws.'' Because scientific uncertainty remains as to the cause of
illnesses suffered by Persian Gulf War veterans and the time period in
which such veterans have an increased risk of chronic multi-symptom
illness, and because scientific studies and NAS reviews are ongoing, in
order to ensure that benefits established by Congress are fairly
administered, VA is further amending 38 CFR 3.317 to extend the
evaluation period from December 31, 2011, to December 31, 2016.
Administrative Procedures Act
The Secretary of Veterans Affairs finds that there is good cause
under the provisions of 5 U.S.C. 553(b)(3)(B) to publish this rule
without prior opportunity for public comment. Absent extension of the
sunset date in the current regulation, VA's authority to provide
benefits in new claims for qualifying chronic disability in Gulf War
veterans will lapse on December 31, 2011. A lapse of such authority
would have significant adverse impact on veterans disabled due to such
disabilities. To avoid such impact, VA is issuing this rule as an
interim final rule. However, VA invites public comments on this interim
final rule and will fully consider and address any comments received.
Paperwork Reduction Act
This document contains no provisions constituting a new collection
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
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 would 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.
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 rule have been examined and it has been determined
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 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: 64.109, Veterans
[[Page 81836]]
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. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on November 28, 2011, 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: December 22, 2011.
Robert C. McFetridge,
Director of Regulation Policy and 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
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.
Sec. 3.317 [Amended]
0
2. In Sec. 3.317, paragraph (a)(1)(i), remove the date ``December 31,
2011'' and add, in its place, ``December 31, 2016''.
[FR Doc. 2011-33222 Filed 12-28-11; 8:45 am]
BILLING CODE 8320-01-P
