Rule2023-24195
Presumptive Service Connection for Rare Respiratory Cancers Due to Exposure to Fine Particulate Matter
Primary source
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Published
November 3, 2023
Effective
November 3, 2023
Issuing agencies
Veterans Affairs Department
Abstract
This rulemaking adopts as final, without changes, an interim final rule amending the Department of Veterans Affairs (VA) adjudication regulations to establish presumptive service connection for nine rare respiratory cancers in association with presumed exposure to fine particulate matter. These presumptions apply to Veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War (hereinafter Gulf War), from August 2, 1990, onward, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. This rulemaking implements a decision by the Secretary of Veterans Affairs that determined there is sufficient evidence to support these cancers as presumptive based on exposure to fine particulate matter during service in the Southwest Asia theater of operations, Afghanistan, Syria, Djibouti, or Uzbekistan during certain periods and the subsequent development of the following rare respiratory cancers: squamous cell carcinoma (SCC) of the larynx, SCC of the trachea, adenocarcinoma of the trachea, salivary gland-type tumors of the trachea, adenosquamous carcinoma of the lung, large cell carcinoma of the lung, salivary gland-type tumors of the lung, sarcomatoid carcinoma of the lung, and typical and atypical carcinoid of the lung. The intended effect of this rulemaking is to ease the evidentiary burden of this population of Veterans who file claims with VA for these nine rare respiratory cancers.
Full Text
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<title>Federal Register, Volume 88 Issue 212 (Friday, November 3, 2023)</title>
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[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Rules and Regulations]
[Pages 75498-75500]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24195]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AR44
Presumptive Service Connection for Rare Respiratory Cancers Due
to Exposure to Fine Particulate Matter
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This rulemaking adopts as final, without changes, an interim
final rule amending the Department of Veterans Affairs (VA)
adjudication regulations to establish presumptive service connection
for nine rare respiratory cancers in association with presumed exposure
to fine particulate matter. These presumptions apply to Veterans with a
qualifying period of service, i.e., who served on active military,
naval, or air service in the Southwest Asia theater of operations
during the Persian Gulf War (hereinafter Gulf War), from August 2,
1990, onward, as well as in Afghanistan, Syria, Djibouti, or
Uzbekistan, on or after September 19, 2001, during the Gulf War. This
rulemaking implements a decision by the Secretary of Veterans Affairs
that determined there is sufficient evidence to support these cancers
as presumptive based on exposure to fine particulate matter during
service in the Southwest Asia theater of operations, Afghanistan,
Syria, Djibouti, or Uzbekistan during certain periods and the
subsequent development of the following rare respiratory cancers:
squamous cell carcinoma (SCC) of the larynx, SCC of the trachea,
adenocarcinoma of the trachea, salivary gland-type tumors of the
trachea, adenosquamous carcinoma of the lung, large cell carcinoma of
the lung, salivary gland-type tumors of the lung, sarcomatoid carcinoma
of the lung, and typical and atypical carcinoid of the lung. The
intended effect of this rulemaking is to ease the evidentiary burden of
this population of Veterans who file claims with VA for these nine rare
respiratory cancers.
DATES:
Effective date: This rule is effective November 3, 2023.
Applicability date: The provisions of this final rule shall apply
to all applications for service connection for squamous cell carcinoma
(SCC) of the larynx, SCC of the trachea, adenocarcinoma of the trachea,
salivary gland-type tumors of the trachea, adenosquamous carcinoma of
the lung, large cell carcinoma of the lung, salivary gland-type tumors
of the lung, sarcomatoid carcinoma of the lung, and typical and
atypical carcinoid of the lung based on service in the Southwest Asia
theater of operations during the Gulf War, from August 2, 1990, onward,
as well as Afghanistan, Syria, Djibouti, or Uzbekistan, on or after
September 19, 2001, during the Gulf War, received by VA on or after
April 26, 2022, or 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 April 26, 2022.
FOR FURTHER INFORMATION CONTACT: Bryant Coleman, Regulations Analyst;
Robert Parks, Chief, Regulations Staff (211), Compensation Service
(21C), 810 Vermont Avenue NW, Washington, DC, (202) 461-9700. (This is
not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: On April 26, 2022, VA published an interim
final rule at 87 FR 24421, to amend its adjudication regulations to
establish presumptive service connection for nine rare respiratory
cancers in association with presumed exposure to fine particulate
matter. These presumptions apply to Veterans with a qualifying period
of service, i.e., who served on active military, naval, or air service
in the Southwest Asia theater of operations during the Gulf War, from
August 2, 1990, onward, as well as in Afghanistan, Syria, Djibouti, or
Uzbekistan, on or after September 19, 2001, during the Gulf War. The
60-day comment period ended on June 27, 2022.
VA received nine comments from interested individuals and
organizations. The comments are discussed below under the appropriate
headings. VA made no changes based on comments received. However, we
note that changes made to Sec. 3.320 in the final rule for RIN 2900-
AR25 are carried forward here and continue to remain in effect. Based
on the rationale set forth in the interim final rule and in this final
rule, VA adopts the provisions of the interim final rule as a final
rule without change.
Confusion Regarding Qualifying Service Dates
VA received three comments that expressed confusion regarding
whether service in the Southwest Asia theater of operations during the
first Gulf War is included under the definition of the phrase
qualifying period of service. VA agrees with these comments that the
rulemaking could have caused some confusion, and acknowledges that
additional clarity is needed. So, to clarify, as currently written, the
rule applies to those who served in Desert Shield or Desert Storm as
part of the Persian Gulf War from August 2,1990 to February 28, 1991.
We note that the definition of qualifying period of service contained
in paragraph (a)(5)(i) refers to Sec. 3.2(i), which defines ``Persian
Gulf War'' as: ``August 2, 1990, through date to be prescribed by
Presidential proclamation or law.'' However, VA makes no changes based
on these comments because this issue was addressed in the final rule
for RIN 2900-AR25, which changes have been carried forward here and
continue to remain in effect.
General Comments
One commenter expressed general support for the rulemaking. VA
thanks the commenter for their view. VA makes no changes based on this
comment.
VA received two comments that addressed time frames and locations
that qualify for the presumption of exposure contained in Sec. 3.320.
In particular, one commenter stated that he was on an aircraft carrier
in the theater of Southwest Asia in July of 1987. He went on to state
that ``[a]ll Military Service-members should qualify for all exposures
during active duty in this theater of operations.'' Another commenter
asked ``is this related to burn pits? If so, why are you just making
this available to only veterans who served for that time period?'' The
commenter went on to state that they served in Beirut, Lebanon in 1982-
1983 and were exposed to burning human waste during that time. While VA
sympathizes with these commenters, VA's rulemaking establishes
presumptive service connection for nine rare respiratory cancers in
association with presumed exposure to fine particulate matter; it does
not address the locations or periods of service that qualify for the
presumption of exposure to fine particulate matter. Thus, these
comments are outside the scope of the present rulemaking.
Additionally, we note that the Secretary has made the decision to
limit these presumptive conditions to a timeframe and locations during
which VA has evidence of relevant levels of fine particulate matter in
the air. When VA created the presumption of exposure to fine
particulate matter in 38 CFR 3.320, it was based on scientific and
medical studies that focused on the
[[Page 75499]]
respiratory effects of fine particulate matter for Veterans who served
in the Southwest Asia theater of operations, Afghanistan, Syria,
Djibouti, and Uzbekistan during the Gulf War. Veterans began reporting
a variety of respiratory health issues during and after the initial
Gulf War conflict, and as a result, Congress mandated that VA study the
health outcomes of veterans deployed to the Southwest Asia theater of
operations. VA then requested the National Academies of Sciences,
Engineering, and Medicine (NASEM) to study the evidence regarding
respiratory health outcomes in veterans of the Southwest Asia
conflicts. The results of that study formed the basis for this
rulemaking. As service prior to the Gulf War was not considered in
these studies, it cannot be included as part of the qualifying
timeframe under 38 CFR 3.320.
While this rulemaking is based on current medical and scientific
evidence related to the respiratory health effects of fine particulate
matter on Veterans who served during the Gulf War, VA will continue to
review new scientific evidence as it develops relating to other
exposures and to all health effects resulting from exposure to fine
particulate matter. This rulemaking does not limit the future
establishment of presumptive service connection for conditions related
to respiratory or other body systems, or the establishment of
presumptions of exposure for service in other locations or during other
time frames. Additionally, VA encourages all Veterans who believe that
they are entitled to VA compensation to file a claim with their local
VA regional office. VA makes no change to the final rule based on the
comment.
One commenter reported that they had filed 3 intent letters and had
not received a response. The commenter went on to report that they had
been turned down for compensation in the past. VA's rulemaking
establishes presumptive service connection for nine rare respiratory
cancers in association with presumed exposure to fine particulate
matter. This comment, which relates to an individual case, is outside
the scope of the present rulemaking. However, VA encourages all
Veterans who believe that they are entitled to VA compensation to file
a claim with their local VA regional office. VA makes no change to the
final rule based on the comment.
One commenter stated that her husband served in the US Army and
while serving he died of squamous cell carcinoma of the larynx. While
VA sympathizes with this commenter, VA's rulemaking establishes
presumptive service connection for nine rare respiratory cancers in
association with presumed exposure to fine particulate matter. This
comment refers to a specific case, which is outside the scope of the
present rulemaking. However, VA encourages all Veterans and dependents
who believe that they are entitled to VA compensation to file a claim
with their local VA regional office. VA makes no change to the final
rule based on the comment.
Another commenter objected to the rulemaking because it did not
cover all diseases and disabilities caused by open air burn pits or the
chemical contamination in Gulf War I. Additionally, the commenter
stated that the ``interim final rule does not clearly define the
provisions attaching to Gulf War I. Including coverage dates would
eliminate any possible confusion.'' As noted above, while this
rulemaking is based on current medical and scientific evidence related
to the respiratory health effects of fine particulate matter on
Veterans who served during the Gulf War, VA will continue to review new
scientific evidence as it develops relating to other exposures and to
all health effects resulting from exposure to fine particulate matter.
This rulemaking does not limit the future establishment of presumptive
service connection for conditions related to respiratory or other body
systems, or the establishment of presumptions of exposure for service
in other locations or during other time frames. Also, the potential
confusion regarding service during the first Gulf War was addressed in
the final rule for RIN 2900-AR25, which changes have been carried
forward here and continue to remain in effect. VA makes no change to
the final rule based on the comment.
Further, we again note that changes made to Sec. 3.320 in the
final rule for RIN 2900-AR25 are carried forward here and continue to
remain in effect. Additionally, provisions of the Sergeant First Class
Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act
of 2022, Public Law 117-168, relevant to this regulation will be the
subject of separate and future rulemaking.
Administrative Procedure Act
This document affirms the amendment made by the interim final rule
that is already in effect. The Secretary concluded that, pursuant to 5
U.S.C. 553(b)(B) and (d)(3), there was good cause to publish this rule
without prior opportunity for public comment and good cause to publish
this rule with an immediate effective date. Delay in the implementation
of this rule would have been impracticable, unnecessary, and contrary
to public interest, particularly to Veterans.
Executive Orders 12866, 13563, and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is not a significant regulatory action under Executive Order
12866, as amended by Executive Order 14094. The Regulatory Impact
Analysis associated with this rulemaking can be found as a supporting
document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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 certification is based on the fact that no small entities or
businesses determine service connection or the rating criteria, or
assign evaluations for disability claims. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of sections 603 and 604 do not apply.
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 one year. This final rule will have no
[[Page 75500]]
such effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act (PRA)
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Assistance Listing
The Assistance Listing numbers and titles for this rule are 64.101,
Burial Expenses Allowance for Veterans; 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.105, Pension to
Veterans, Surviving Spouses, and Children; 64.109, Veterans
Compensation for Service-Connected Disability; and 64.110, Veterans
Dependency and Indemnity Compensation for Service-Connected Death.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not a major rule, as defined by 5 U.S.C.
804(2).
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, and Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on August 24, 2023, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
PART 3--ADJUDICATION
0
The interim final rule amending 38 CFR part 3 which was published at 87
FR 24421 on April 26, 2022, is adopted as final without change.
[FR Doc. 2023-24195 Filed 11-2-23; 8:45 am]
BILLING CODE 8320-01-P
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