[Federal Register: November 4, 2009 (Volume 74, Number 212)]
[Rules and Regulations]
[Page 57072-57074]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no09-7]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AN05
Presumption of Service Connection for Amyotrophic Lateral
Sclerosis
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document adopts as a final rule the interim final rule
amending the Department of Veterans Affairs (VA) adjudication
regulations to establish a presumption of service connection for
amyotrophic lateral sclerosis (ALS) for any veteran who develops the
disease at any time after separation from service. This amendment
implements the decision by the Secretary of Veterans Affairs to
establish such a presumption based on a November 2006 report by the
National Academy of Sciences Institute of Medicine on the association
between active service and ALS.
DATES: Effective Date: November 4, 2009.
Applicability Date: This final rule shall apply to all applications
for benefits that are received by VA on or after September 23, 2008,
the effective date of the interim final rule, and to all applications
for benefits that were pending before VA, the United States Court of
Appeals for Veterans Claims, or the United States Court of Appeals for
the Federal Circuit on that date.
FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations
Staff (211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461-9366.
SUPPLEMENTARY INFORMATION: On September 23, 2008, VA published in the
Federal Register (73 FR 54691) an interim final rule that established
at new Sec. 3.318 a presumption of service connection for ALS for any
veteran who develops the disease at any time after separation from
service.
We provided a 60-day comment period that ended on November 24,
[[Page 57073]]
2008. We received comments from 12 members of the general public and 1
each from the ALS Association and the American Speech-Language-Hearing
Association (ASHA). Most of the comments from the general public came
from family members of veterans affected by this disease, expressing
gratitude and the belief that this decision was long overdue. Based on
the rationale set forth in the interim final rule and this final rule,
we adopt the provisions of the interim final rule as a final rule
without change.
Administrative Procedure Act
This document affirms the amendment made by the interim final rule
that is already in effect. The Secretary of Veterans Affairs concluded
that, under 5 U.S.C. 553(b)(3)(B) and (d)(3), there was good cause to
dispense with advance public notice and opportunity to comment on this
rule and good cause to publish the interim final rule with an immediate
effective date. The interim final rule was necessary to implement
immediately the Secretary's decision to establish a presumption of
service connection for ALS for veterans with that diagnosis. Delay in
the implementation of this presumption would have been contrary to the
public interest.
Because the survival period for persons suffering from ALS is
generally 5 years or less from the onset of symptoms, any delay would
have been extremely detrimental to veterans who are currently afflicted
with ALS. Veterans with ALS may not be taking alleviating medications,
participating in muscle and speech therapy, or receiving proper
assistance for daily functions due to financial hardship or their lack
of having service-connected status for their disability. Moreover, in
all likelihood, some veterans would have died from this rapidly
progressive disease during a period for prior public comment. These
veterans obviously would not have received any benefit from a
presumption that is implemented after a public-comment period.
In order to benefit veterans currently suffering from ALS as
quickly as possible, it was critical that VA established this
presumption immediately.
Conditions for Presumptive Service Connection
The ALS Association expressed support for this regulation and
stated its belief that 90 continuous days of service in the military
and a diagnosis of ALS are sufficient to establish presumptive service
connection for that disease. New Sec. 3.318 generally establishes
presumptive service connection for ALS if a veteran had at least 90
continuous days of active military, naval, or air service and developed
ALS at any time after separation from such service. We made no changes
based on this comment.
Exceptions to the Presumption of Service Connection
The ALS Association was concerned that the presumption of service
connection for ALS would not apply ``when there is affirmative evidence
that ALS was not caused by military service or was caused by a
veteran's own willful misconduct.'' However, it conceded that there is
``very little likelihood that either of those standards will be met
with regard to any particular claim,'' as we stated in the
supplementary information of the interim final rule. We made no changes
based on this comment.
Outreach Services
We received several comments about VA contacting family survivors
of affected veterans concerning new Sec. 3.318, increasing awareness
of ALS, and performing research regarding the disease. VA is taking
steps to inform both veterans with ALS and family survivors of veterans
with ALS about this regulation and realizes the importance of all of
these issues. These issues, however, are beyond the scope of this
rulemaking. We made no changes based on these comments.
Eligibility for Survivor Benefits
We received comments concerning the availability of survivor
benefits to survivors of veterans who died from ALS before the
effective date of the interim final rule. A veteran's survivor who
establishes that the veteran died from ALS before September 23, 2008,
may be eligible for dependency and indemnity compensation pursuant to
new Sec. 3.318, but would not be entitled to any retroactive benefits
before September 23, 2008 (see discussion below). The laws concerning
survivor benefits, however, are not specifically addressed by this
rulemaking. For information about such benefits, those who are
interested may call VA for assistance at 1-888-GIBILL1 (442-4551) for
education benefits, or at 1-800-827-1000 for all other VA benefits.
They may also contact VA on the Internet at http://www.gibill.va.gov
for education claims or at https://iris.va.gov for other information.
We made no changes based on these comments.
Expedited Claims
The ALS Association recommended that VA consider adopting formal
processes for expediting claims for veterans with ALS because of the
rapidly progressive and terminal nature of the disease. VA is aware of
the need for expediting claims for ALS and has taken steps to assure
that this happens. However, this issue is beyond the scope of this
rulemaking. We made no changes based on this comment.
Use of Assistive Technology
ASHA commented that it ``strongly supports this presumption'' and
that this presumption would help veterans with ALS receive necessary
treatment, such as the use of a speech-generating device. We note that
VA already provides assistive technological devices to veterans to help
them overcome challenges they face in coping with various diseases.
Issues relating to treatment, however, are not part of this rulemaking.
We made no changes based on this comment.
Effective Date of Benefits
Several commenters urged VA to provide benefits for awards based on
new Sec. 3.318 retroactive to the date of claim, even if the claim was
originally filed and/or denied before September 23, 2008, the effective
date of the interim final rule. New Sec. 3.318 is applicable
prospectively to claims filed on or after September 23, 2008, and to
all applications for benefits that were pending before VA, the United
States Court of Appeals for Veterans Claims, or the United States Court
of Appeals for the Federal Circuit on that date. Under 38 U.S.C.
5110(g), the effective date of any award of disability compensation or
dependency and indemnity compensation made pursuant to new Sec. 3.318
will be assigned in accordance with the facts found but cannot be
earlier than the effective date of the interim final rule or the date
one year prior to the date of application, whichever is later. VA
therefore cannot assign an effective date prior to September 23, 2008,
for an award of benefits made pursuant to new Sec. 3.318. We made no
changes based on this comment.
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 an 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 given year. This rule will have no such effect on
State, local, and tribal governments, or on the private sector.
[[Page 57074]]
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, 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 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 entitlement
recipients; 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.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this final rule and has concluded that it is a
significant regulatory action under Executive Order 12866 because it is
likely to result in a rule that may raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary 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. The rule could affect only VA beneficiaries and will not directly
affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this
rule is exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are as follows: 64.109, Veterans Compensation for
Service-Connected Disability; and 64.110, Veterans Dependency and
Indemnity Compensation for Service-Connected Death.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: October 9, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
PART 3-ADJUDICATION
0
Accordingly, the interim rule amending 38 CFR part 3 which was
published at 73 FR 54691 on September 23, 2008, is adopted as a final
rule without change.
[FR Doc. E9-26580 Filed 11-3-09; 8:45 am]
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