[Federal Register Volume 67, Number 17 (Friday, January 25, 2002)]
[Rules and Regulations]
[Pages 3612-3616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1839]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AK64
Diseases Specific to Radiation-Exposed Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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[[Page 3613]]
SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulations concerning presumptive service connection for
certain diseases for veterans who participated in radiation-risk
activities during active service or while members of reserve components
during active duty for training or inactive duty training. This
amendment adds cancers of the bone, brain, colon, lung, and ovary to
the list of diseases which may be presumptively service connected and
amends the definition of the term ``radiation-risk activity.'' The
intended effect of this amendment is to ensure that veterans who may
have been exposed to radiation during military service do not have a
higher burden of proof than civilians exposed to ionizing radiation who
may be entitled to compensation for these cancers under comparable
Federal statutes.
DATES: Effective Date: March 26, 2002.
FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff,
Compensation and Pension Service (211A), Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW,
Washington, DC 20420, telephone (202) 273-7211.
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on August 8, 2001 (66 FR 41483-41485), VA proposed to amend
its adjudication regulations concerning presumptive service connection
for veterans who participated in radiation-risk activities during
active service. VA proposed to add cancers of the bone, brain, colon,
lung, and ovary to the list of diseases which may be presumptively
service connected and amend the definition of the term ``radiation-risk
activity.'' The intended effect of this amendment was to ensure that
veterans who may have been exposed to radiation during military service
do not have a higher burden of proof than civilians exposed to ionizing
radiation who may be entitled to compensation for these cancers under
comparable Federal statutes.
I. Comments on the Proposed Rule
The comment period ended October 9, 2001. We received written
comments from the American Legion, the National Association of Atomic
Veterans, the Honorable Patsy T. Mink (HI) and 14 individuals. Ten of
the comments expressed support of the proposed rule.
Definition of Radiation-Risk Activity
Current law defines ``radiation-risk activity'' for purposes of
presuming that specified diseases are the result of radiation exposure
during military service to mean (1) onsite participation in a test
involving the atmospheric detonation of a nuclear device; (2) the
occupation of Hiroshima or Nagasaki, Japan, by United States forces
during the period beginning on August 6, 1945, and ending on July 1,
1946; or (3) internment as a prisoner of war in Japan or service on
active duty in Japan following such internment during World War II
which resulted in an opportunity for exposure to ionizing radiation.
(See 38 U.S.C. 1112(c)(3)(B) and 38 CFR 3.309(d)).
As stated in the preamble to the proposed rule, recent legislation
authorized benefits for certain Department of Energy (DOE) employees
and persons employed by DOE contractors, subcontractors, and vendors
who were involved in DOE nuclear weapons-related programs. This
includes those who worked on Amchitka Island, Alaska prior to January
1, 1974, who were exposed to ionizing radiation in the performance of
duty related to certain underground nuclear tests. It also includes
certain persons who worked at gaseous diffusion plants in Paducah,
Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee before February 1,
1992. Our rulemaking proposed to add these exposures to the list of
radiation-risk activities in 38 CFR 3.309(d).
One commenter stated that VA's definition of radiation-risk
activity, even as expanded by this rulemaking, does not cover all
veterans exposed to radiation while in the service of their country,
and urged VA to expand its definition to include veterans exposed to
``residual contamination'' of nuclear tests. Another commenter urged VA
to include veterans who may have been exposed to radiation during
various activities involving the development, maintenance and handling
of nuclear weapons, as well as clean up operations following nuclear
testing. Another commenter specifically asked that VA expand the
definition to include all military personnel who participated in the
clean up of Enewetak Atoll from 1977 to 1980. Another commenter
suggested that the definition of ``radiation-risk'' activity should
include military duty at all DOE nuclear weapons development, testing,
and manufacturing facilities.
Congress created certain presumptions for veterans in the
Radiation-Exposed Veterans Compensation Act of 1988, Public Law 100-
321, section 2(a), 102 Stat. 485-86 (codified as amended at 38 U.S.C.
1112(c)). Congress has also created presumptions for certain civilians
in the Radiation Exposure Compensation Act (RECA), Pub. L. 101-426, 104
Stat. 920 (1990) (codified as amended at 42 U.S.C. 2210 note), the RECA
Amendments of 2000, Public Law 106-245, section 3, 114 Stat. 501, 502,
and title XXXVI of the Energy Employees Occupational Illness
Compensation Program Act of 2000, Public Law 106-398, 114 Stat. 1654A-
1232. Under the Energy Employees Occupational Illness Compensation
Program Act of 2000, if a member of the Special Exposure Cohort
develops a ``specified'' cancer after beginning employment at a DOE
facility or at an atomic weapons facility for an atomic weapons
contractor, the cancer is presumed to have been sustained in the
performance of duty and is compensable. The burden of proof for the
Special Exposure Cohort is similar to that under 38 CFR 3.309(d).
Congress has not created any presumptions for veterans or civilians
based on ``residual contamination'' of nuclear tests, service at
Enewetak Atoll, or any of the other types of duties suggested by the
commenters.
This rulemaking was only intended to ensure that veterans who may
have been exposed to radiation during military service do not have a
higher burden of proof than civilians exposed to ionizing radiation who
may be entitled to compensation for these cancers under comparable
Federal statutes. We proposed to expand the definition of radiation-
risk activity in Sec. 3.309(d)(3)(ii) to include only the relevant
activities listed in these civilian statutes. We therefore make no
change based on these comments.
One commenter noted that the ``Radiation Compensation Act of 1990''
was recently amended to include civilian employees assigned to DOE
nuclear weapons-related programs who were exposed to radiation,
beryllium or silica. The commenter also stated that veterans involved
in these programs are effectively precluded from being compensated for
diseases related to such duty. The commenter urged that, in order to
achieve true equity between radiation-exposed veterans and civilians,
VA regulations should be amended to include veterans who were exposed
to beryllium and silica during service.
We are aware that the RECA Amendments of 2000, Public Law 106-245,
section (2)(A)(ii) and 3(c)(1), 114 Stat. at 501, 502, authorized
compensation for above-ground uranium miners, millers and persons who
transported ore and have a ``nonmalignant respiratory disease,'' which
the statute defines as fibrosis of the lung, pulmonary fibrosis, cor
pulmonale related to fibrosis of the
[[Page 3614]]
lung, silicosis, and pneumoconiosis. The Energy Employees Occupational
Illness Compensation Program Act of 2000, Public Law 106-398, tit.
xxxvi, 114 Stat. 1654A-1232, authorized compensation for employees
exposed to beryllium in the performance of duty for a DOE contractor,
subcontractor, beryllium vendor, or subcontractor of a vendor.
However, under these statutes, beryllium-related diseases and
silica-related diseases are clearly classified separately from
radiogenic diseases. The purpose of this rulemaking is only to amend
VA's presumptions for radiation exposure and radiogenic diseases.
In addition, we believe that existing regulations allow a
sufficient basis to grant service connection, on a direct basis, for
veterans exposed to beryllium or silica during military service who
later suffer from these diseases. For these reasons, we do not revise
the regulation to include diseases related to beryllium or silica
exposure in this rulemaking, and we therefore make no change based on
these comments.
Dose Reconstruction
One commenter stated that he opposed the current dose estimate
requirement in 38 CFR 3.311, as being arbitrary, unreliable and
inaccurate. Another commenter urged that VA should not rely on dose
reconstruction estimates because they are based on lab tests, not on
data collected at the atomic test sites. Another commenter also asked
VA to eliminate the use of dose estimates since they are inaccurate.
Dose reconstruction is required only under 38 CFR 3.311, which is a
separate and distinct basis for service connection from 38 CFR
3.309(d). The purpose of the rulemaking is only to amend VA's
presumption for radiation exposure and radiogenic diseases (found in
3.309(d)), which does not require a dose estimate to establish
entitlement to service connection. Therefore, these comments are
outside the scope of this rulemaking and we make no change based on
these comments.
Radiogenic Diseases
Several commenters urged VA to add certain diseases to 3.309(d)(2),
in addition to those we proposed to add in this rulemaking. One
commenter stated that radiation is a ``complete carcinogen'' and
therefore we should list all cancers. Another commenter urged VA to add
certain non-cancer diseases, such as cardiovascular disease, chronic
hepatitis, and liver cirrhosis, which have been linked to radiation
exposure by the Radiation Effects Research Foundation.
The basis for enactment of the RECA Amendments of 2000 and the
Energy Employees Occupational Illness Compensation Program Act of 2000
was scientific data resulting from enactment of the Radiation-Exposed
Veterans Compensation Act of 1988, Public Law 100-321, and obtained
from the President's Advisory Committee on Human Radiation Experiments.
Based on data from these sources, Congress authorized compensation for
persons suffering from these cancers who lived downwind from Government
above-ground nuclear tests, were underground uranium miners,
participated onsite in a test involving the atmospheric detonation of a
nuclear device, or were employed at certain locations by DOE
contractors or subcontractors or an atomic weapons employer. We believe
this data also supports compensation for veterans suffering from the
same cancers, some of whom participated in the same activities as
persons entitled to be compensated under the RECA Amendments of 2000
and the Energy Employees Occupational Illness Compensation Program Act
of 2000. We therefore proposed to amend 38 CFR 3.309(d)(2) to include
the cancers for which compensation is payable under these other
statutes.
As explained above and in the notice of proposed rulemaking, this
rulemaking was only intended to ensure equity between veterans who may
have been exposed to radiation during military service and civilians
exposed to ionizing radiation who may be entitled to compensation for
these cancers under comparable Federal statutes, including RECA. The
Federal statutes referenced above do not presume that the diseases that
the commenters asked VA to add to this rulemaking are due to radiation
exposures in civilian occupations. Therefore, veterans do not have a
higher burden of proof than civilians do, and we are making no change
based on this comment.
Public Laws 98-542 and 102-578
One commenter stated that, because VA submitted a report to
Congress containing its response to a report submitted to VA by the
Veterans' Advisory Committee on Environmental Hazards on May 26, 1994,
rather than December 1, 1993, as required by the Veterans' Radiation
Exposure Amendments of 1992, Public Law 102-578, section 3, 106 Stat.
4774, 4775, radiation exposure by naval nuclear propulsion workers,
those involved in weapons development for the Department of Defense,
nuclear weapons maintenance workers and handlers and others have never
been considered under the Veterans' Dioxin and Radiation Exposure
Compensation Standards Act, Public Law 98-542, 98 Stat. 2725 (1984), or
the Radiation-Exposed Veterans Compensation Act of 1988, Public Law
100-321, 102 Stat. 485.
This rulemaking does not involve VA's compliance with Public Law
102-578 and these comments are outside the scope of this rulemaking. We
therefore make no change based on these comments.
Effective Dates
One commenter stated that the effective date for claims that VA
previously denied but are now granted under these new regulations
should be the date of the original claim. The commenter urged that
veterans exposed to radiation be given the same consideration as
veterans exposed to Agent Orange under Nehmer v. United States Veterans
Admin., C.A. No. C-86-6160 TEH (N.D. Cal.).
Section 5110 of title 38 United States Code and 38 CFR 3.114
establish effective date requirements that are binding on VA. Those
requirements limit retroactive awards to no earlier than the effective
date of a liberalizing statute or regulation, such as this rulemaking.
The Nehmer lawsuit and court rulings do create an exception to these
effective date rules, but the Nehmer case is limited to only diseases
linked to herbicide exposure under 38 CFR 3.309(e). We have no
authority to expand the exceptions established by the Nehmer court to
include claims filed under 3.309(d). We therefore make no change based
on this comment.
Opposition to Proposed Rule
One commenter asserted that it is very unlikely that any of the
cancers developed by veterans are caused by their radiation exposure
during military service. He stated that many of the premises contained
in the preamble to the proposed rule are not based on valid scientific
information. This commenter urged VA not to promulgate this proposed
rule.
As we explained above, the basis for enactment of the RECA
Amendments of 2000 and the Energy Employees Occupational Illness
Compensation Program Act of 2000 was scientific data resulting from
enactment of the Radiation-Exposed Veterans Compensation Act of 1988,
Public Law 100-321, and obtained from the President's Advisory
Committee on Human Radiation Experiments. We believe this data equally
supports adding these same cancers to the list of diseases that may be
presumptively
[[Page 3615]]
service connected for radiation-exposed veterans, some of whom
participated in the same activities as persons entitled to be
compensated under the RECA Amendments of 2000 and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
This rulemaking was only intended to ensure that veterans who may
have been exposed to radiation during military service do not have a
higher burden of proof than civilians exposed to ionizing radiation who
may be entitled to compensation for these cancers under comparable
Federal statutes, including RECA. If we do not adopt this rule,
veterans will have a higher burden of proof than civilians do.
Therefore, we make no change based on this comment.
Medical Benefits
One commenter suggested that atomic veterans should be given a
special priority for VA medical services, which should be provided
without means testing and co-payments. The commenter also suggested
that VA should focus on preventive measures to reduce the risk of
cancer, appropriate medical treatment to keep atomic veterans healthy,
and programs to educate veterans on dietary and lifestyle changes to
prevent cancer. The commenter also suggested VA should work with
Congress to determine if an arrangement for financial cost sharing
between VA and Medicare is possible.
These comments are beyond the scope of the rulemaking. Also, some
of the comments would require an amendment to title 38, United States
Code, which cannot be accomplished by rulemaking. We therefore make no
changes based on these comments.
II. Compliance With the Congressional Review Act, the Regulatory
Flexibility Act, and Executive Order 12866
We estimate that the ten-year benefits cost of this rule from
appropriated funds will be $769 million in benefits costs. We estimate
that during several of these years, the annual benefits costs will be
more than $100 million. We also estimate that the ten-year cost in
government operating expenses will be $34 million. Since we estimate
that the adoption of the rule will have an annual effect on the economy
of $100 million or more, the Office of Management and Budget has
designated this rule as a major rule under the Congressional Review
Act, 5 U.S.C. 802, and a significant regulatory action under Executive
Order 12866, Regulatory Planning and Review. The following information
is provided pursuant to E.O. 12866.
The Secretary has made this regulatory amendment to ensure that
veterans exposed to radiation during military service receive the same
consideration for the risks of this exposure as DOE employees,
contractors and subcontractors. There are no feasible alternatives to
this proposed rule, since it is needed to provide fairness and equity
for veterans and their survivors. This rule will not interfere with
state, local or tribal governments in the exercise of their
governmental functions.
Benefits Costs
Over the next ten years, VA expects to process 91,567 service-
connected disability compensation claims (living veterans) and 48,050
Dependency and Indemnity Compensation (DIC) claims (veterans' survivors
claims for service connection for cause of death) filed as a result of
this proposed rule. Historically, about 12% of all radiation related
claims have been granted. If past experience proves a reliable
indicator of future events, VA expects to grant approximately 10,988 of
those disability compensation claims and approximately 5,766 of those
DIC claims.
We estimate that the cumulative totals of benefits awards to
claimants over the next ten years will be as follows: $8,040,630;
$26,248,947; $44,265,910; $61,126,347; $76,565,137; $90,329,734;
$102,328,198; $112,436,560; $120,555,709; and $126,704,527, for a total
benefits cost of $768,601,698 over ten years.
Administrative Costs
Based on the administrative workload projected to result from this
rule (discussed above), VA estimates that full time employee (FTE)
resources devoted to processing claims in years one through ten will be
77, 113, 69, 64, 51, 40, 39, 35, 35, and 33 respectively. Estimated
government operating expenses (GOE) costs for the next 10 years are as
follows: $3,910,578; $5,047,838; $3,584,683; $4,127,798; $3,419,862;
$2,817,402; $2,825,825; $2,669,755; $2,780,414; and $2,750,142, for a
total GOE cost of $33,934,297 over ten years.
Unfunded Mandates
The Unfunded Mandates Reform Act requires , at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no
consequential effect on State, local or tribal governments.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
OMB Review
This rule is economically significant under Executive Order 12866
and major under the Congressional Review Act. This rule has been
reviewed by OMB.
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The reason for this certification is that these
amendments will not directly affect any small entities. Only VA
beneficiaries will be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), these amendments are exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: December 10, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
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. Section 3.309 is amended by:
A. Adding new paragraphs (d)(2)(xvii) through (d)(2)(xxi).
B. Adding new paragraph (d)(3)(ii)(D).
The additions read as follows:
Sec. 3.309 Diseases subject to presumptive service connection.
* * * * *
(d) Diseases specific to radiation-exposed veterans.***
[[Page 3616]]
(2) * * *
(xvii) Cancer of the bone.
(xviii) Cancer of the brain.
(xix) Cancer of the colon.
(xx) Cancer of the lung.
(xxi) Cancer of the ovary.
(3) * * *
(ii) * * *
(D)(1) Service in which the service member was, as part of his or
her official military duties, present during a total of at least 250
days before February 1, 1992, on the grounds of a gaseous diffusion
plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area
identified as K25 at Oak Ridge, Tennessee, if, during such service the
veteran:
(i) Was monitored for each of the 250 days of such service through
the use of dosimetry badges for exposure at the plant of the external
parts of veteran's body to radiation; or
(ii) Served for each of the 250 days of such service in a position
that had exposures comparable to a job that is or was monitored through
the use of dosimetry badges; or
(2) Service before January 1, 1974, on Amchitka Island, Alaska, if,
during such service, the veteran was exposed to ionizing radiation in
the performance of duty related to the Long Shot, Milrow, or Cannikin
underground nuclear tests.
(3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the
term ``day'' refers to all or any portion of a calendar day.
* * * * *
[FR Doc. 02-1839 Filed 1-24-02; 8:45 am]
BILLING CODE 8320-01-P