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  The Nation's #1 Independent Veterans Web Site Click here to make VA Watchdog dot Org your homepage VA NEWS FLASH from Larry Scott at VA Watchdog dot Org -- 05-05-2008 #7 |
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The Nation's #1 Independent Veterans Web Site Click here to make VA Watchdog dot Org your homepage VA NEWS FLASH from Larry Scott at VA Watchdog dot Org -- 05-05-2008 #7 |
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REPUBLIC OF VIETNAM" RULE -- "Blue Water Navy" vets still left out of Agent Orange presumptives as VA continues "boots on the ground" rule.
The VA is trying to clean up the regulatory mess surrounding service in the Republic of Vietnam. You can read the proposed rule below. This really changes nothing. It leaves "Blue Water Navy" vets out in the cold while the Haas case is fought out in Court. You may make comments on this at the links provided in the proposed rule. However, don't expect the VA to read them or give a hoot about what you might think about this. For more about "Blue Water Navy" veterans and
this "boots on the ground" rule, use the VA Watchdog search engine...click
here... Proposed regulation change here...
http://www.regulations.gov/fdmspublic/c Posted below:
------------------------- [Federal Register: April 16, 2008 (Volume
73, Number 74)]
SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the
recent decision rendered by the U. S. Court of Appeals for Veterans
Claims (CAVC) in Haas v. Nicholson, 20 Vet. App. 257 (2006).
In the Haas case, the CAVC addressed what it perceived to be
ambiguity in VA's regulatory definitions of the term ``service in the
Republic of Vietnam.'' Mr. Haas, a veteran of the U.S. Navy, filed a
claim for VA disability compensation based on diabetes that he alleged
had resulted from ``exposure to Agent Orange/radioactive materials''
during his service in Vietnam. Haas, 20 Vet. App. at 260. VA denied his
claim, concluding that 38 CFR 3.307(a)(6)(iii) does not provide a
presumption of herbicide exposure to a Vietnam Era veteran who never
set foot on land in the Republic of Vietnam and did not serve on its
inland waterways. Additionally, VA interpreted the language in Sec.
3.307(a)(6)(iii) that presumes herbicide exposure for veterans who had
``service in the waters offshore and service in other locations if the
conditions of service involved duty or visitation in Vietnam'' to
require that `` `the ship must have come to port in the [Republic of
Vietnam] and you disembarked.' '' Haas, 20 Vet. App. at 260 (quoting a
letter from a VA regional office). Mr. Haas contended that ``service in
the Republic of Vietnam'' as defined by 38 CFR 3.307(a)(6)(iii) must be
read to include service in the offshore waters, regardless of whether
the veteran set foot on land.
The issue in Haas was whether VA's interpretation of ``service in
the Republic of Vietnam'' in Sec. 3.307(a)(6)(iii) is a permissible
interpretation of that regulation and the authorizing statute, 38
U.S.C. 1116(f). The CAVC held that the statute is not clear on its face
concerning whether the phrase ``service in the Republic of Vietnam''
refers only to service on land or encompasses some forms of offshore
service. Haas, 20 Vet. App. at 265.
[[Page 20567]]
Therefore, VA may promulgate a regulatory definition of service in
Vietnam. See Haas, 20 Vet. App. at 269 (``Given the ambiguity of the
statute, VA is permitted to issue regulations in order to resolve the
ambiguity.''). We note that to the extent that Haas was based in part
on the CAVC's interpretation of certain Manual M21-1 provisions, we
have proposed to rescind those provisions, in a separate notice. 72 FR
66218 (Nov. 27, 2007).
Section 1116(f) provides:
For purposes of establishing service connection for a disability
or death resulting from exposure to a herbicide agent, including a
presumption of service-connection under this section, a veteran who,
during active military, naval, or air service, served in the
Republic of Vietnam during the period beginning on January 9, 1962,
and ending on May 7, 1975, shall be presumed to have been exposed
during such service to an herbicide agent containing dioxin or 2,4
dichlorophenoxyacetic acid, and may be presumed to have been exposed
during such service to any other chemical compound in an herbicide
agent, unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that service.
The current definition of service in the Republic of Vietnam in
Sec. 3.307(a)(6)(iii) is as follows: ``Service in the Republic of
Vietnam includes service in the waters offshore and service in other
locations if the conditions of service involved duty or visitation in
the Republic of Vietnam.'' The CAVC perceived ambiguity in Sec.
3.307(a)(6)(iii) as to whether the phrase ``service in the Republic of
Vietnam'' includes service exclusively in the waters offshore, i.e.,
where the ``conditions of service'' did not involve ``duty or
visitation'' in Vietnam. The perceived ambiguity arose in part from
similar language in 38 CFR 3.313, which defines Service in Vietnam as
``includ[ing] service in the waters offshore, or service in other
locations if the conditions of service involved duty or visitation in
Vietnam.'' 38 CFR 3.313(a). The CAVC suggested that VA viewed Sec.
3.307(a)(6)(iii) as interchangeable with Sec. 3.313, concluding that
there is no clear expression of a difference in the definition as it
appears in the two distinct regulations, despite the inclusion of a
comma in the Sec. 3.313(a) definition and, more importantly, their
very different regulatory histories and purposes. The CAVC also
concluded that VA's regulation was most reasonably construed to apply
to offshore service because certain veterans who served offshore (i.e.,
those who served for long periods in close proximity to land areas
where herbicides were used) would have a risk of herbicide exposure
comparable to certain veterans who served on land (i.e., those who
served only briefly on land).
We now propose to amend Sec. 3.307(a)(6)(iii) because the CAVC in
Haas incorrectly conflated the definitions of ``service in the Republic
of Vietnam'' in Sec. Sec. 3.307(a)(6)(iii) and 3.313 and thereby
interpreted Sec. 3.307(a)(6)(iii) in a manner inconsistent with VA's
intent in issuing that regulation. By this rulemaking, VA intends to
make clear that in Sec. 3.307(a)(6)(iii), ``service in the Republic of
Vietnam,'' for purposes of establishing presumptive service connection
due to exposure to herbicide agents, applies to a veteran who served in
the Republic of Vietnam only if that veteran was physically present on
land in Vietnam, or on its inland waterways. The presumption does not
apply to a veteran who served only on the waters offshore of Vietnam.
We propose to amend Sec. 3.307(a)(6)(iii) to state: ``For the purposes
of this section, `service in the Republic of Vietnam' includes only
service on land, or on an inland waterway, in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on May 7,
1975.'' The qualifying dates cited in the regulation are those
specified by Congress in section 1116 for application of the
presumption of exposure to herbicide agents. We believe these dates
would also make clear that the rule refers to the country as defined
during the relevant time period, as country boundaries may change over
time due to political factors.
As stated in our definition, we include only service on land and on
inland waterways. For the following reasons, we believe that this
definition comports with the legislative intent behind the enactment of
the presumption of exposure, as well as the lengthy legislative and
regulatory history of the presumption.
Congress first called for consideration of providing compensation
for Vietnam veterans exposed to dioxin in the Veterans' Dioxin and
Radiation Exposure Compensation Standards Act, Public Law 98-542, 98
Stat. 2725, 2728 (1984) (``1984 Dioxin Act''). Section 5 of that
statute directed VA to address claims for service connection based on
dioxin exposure by issuing rules grounded in ``sound scientific and
medical evidence.'' Id.
In 1985, VA promulgated 38 CFR 3.311a to implement the 1984 Dioxin
Act. The rulemaking notice for Sec. 3.311a noted that herbicides
``were used during the Vietnam conflict to defoliate trees, remove
ground cover, and destroy crops,'' and that many veterans ``were
deployed in or near locations where Agent Orange was sprayed.'' 50 FR
15848, 15849 (1985). Under 38 CFR 3.311a(b) (1986), VA presumed that
veterans who served in Vietnam during the Vietnam era were exposed to
dioxin, eliminating the need to establish exposure as a matter of fact.
The presumption of exposure extended to ``service in the waters
offshore and service in other locations, if the conditions of service
involved duty or visitation in the Republic of Vietnam.'' 38 CFR
3.311a(b) (1986) (emphasis added).
In February 1991, Congress enacted The Agent Orange Act of 1991
(``AOA''), Public Law No. 102-4, Sec. 2, 105 Stat. 11, which created
and codified 38 U.S.C. 1116. The AOA was understood as codifying
existing regulatory presumptions for diseases that Congress believed
were linked to Agent Orange exposure. See, e.g., 137 Cong. Rec. S1267
(daily ed. Jan. 30, 1991) (statement of Sen. Daschle) ( ``[t]he bill
will also codify the Secretary's decisions granting presumptions of
service connection for soft-tissue sarcoma and non-Hodgkins lymphoma,
two rare cancers that have been frequently associated with exposure to
components of Agent Orange''); 137 Cong. Rec. S1272 (daily ed. Jan. 30,
1991) (Statement of Sen. Simpson) (stating that ``[t]he bill
legislatively establishes presumptions of service connection for
veterans exposed to agent orange for three conditions: chloracne, non-
Hodgkin's lymphoma, and soft-tissue sarcomas,'' but recognizing that
``[i]t is not at all imperative that we take this action
legislatively'' because ``[t]hose presumptions have already been
recognized and granted to veterans * * * by the Secretary of Veterans
Affairs''); 1991 U.S.C.C.A.N. 11 (signing statement by President Bush
stating that the AOA ``relies on science'' and will ``codify decisions
previously made by my administration with respect to presumptions of
service connection''). The AOA also codified the provision in VA's
regulation presuming herbicide exposure in veterans who served ``in the
republic of Vietnam'' during the Vietnam era. Accordingly, it is
reasonable to assume that Congress intended to codify VA's
interpretation of the presumption of exposure, or at least to reserve
to VA the authority to maintain that interpretation. See 66 FR 23166
(May 8, 2001) (recognizing this legislative history and stating that
subsequent legislation offered ``no basis
[[Page 20568]]
to conclude that Congress intended to broaden that definition to
include deep-water service'').
In September 1993, VA proposed to delete 38 CFR 3.311a and amend
Sec. 3.307(a) ``so that it * * * incorporates the definition of the
term `service in the Republic of Vietnam' from 38 CFR 3.311a.'' 58 FR
50528, 50529 (1993).
In 1996, based on new evidence concerning the deployment of troops
and the use of herbicides, Congress amended the statutory definitions
of the Vietnam era. See Veterans' Benefits Improvement Act, Public Law
No. 104-275, 110 Stat. 3322, 3342. In 38 U.S.C. 101(29), for general
purposes, the definition was broadened to cover the period from
February 28, 1961, to May 7, 1975. But Congress recognized that
``[h]erbicides and defoliants were not in use throughout the `Vietnam
era' as that term would be newly defined'' and ``such materials were
not introduced into the Republic of Vietnam until January 9, 1962.
Therefore, * * * for purposes of sections 1116 and 1710 of title 38,
United States Code, provisions of law which specify benefits based on
presumptive exposure to herbicides and defoliants, the term `Vietnam
era' [was] limited to the period between January 9, 1962, and May 7,
1975.'' S. Rep. No. 104-371, at 21 (1996) (emphasis added). Thus,
Congress found the deployment of herbicides relevant to the use of the
term ``service in the Republic of Vietnam'' in Sec. 1116 and, at that
time, the deployment of herbicides and the definition of the term were
both understood to include only service on land or on inland waterways.
Subsequent VA rulemakings stated with even greater clarity that a
veteran who served only offshore is not entitled to the presumption of
exposure. For example, a September 1997 rulemaking notice stated that
38 CFR 3.814(c)(1) incorporated the definition of ``serv[ice] in the
Republic of Vietnam'' from Sec. 3.307(a)(6)(iii) as excluding
consideration of service in offshore waters. It explained: ``Because
herbicides were not applied in waters off the shore of Vietnam,
limiting the scope of the term service in the Republic of Vietnam to
persons whose service involved duty or visitation in the Republic of
Vietnam limits the focus of the presumption of exposure to persons who
may have been in areas where herbicides could have been encountered.''
62 FR 51274 (1997). See also 69 FR 44614, 44620 (July 27, 2004)
(indicating that presumption did not extend to service in offshore
waters).
As a factual matter, our legislative interpretation accords with
what is known about the use of herbicides during Vietnam. Although
exposure data is largely absent, review of military records demonstrate
that virtually all herbicide spraying in Vietnam, which was for the
purpose of eliminating plant cover for the enemy, took place over land.
See Stellman JM, Stellman SD, Christian R, Weber T, Tomasallo C, The
extent and patterns of usage of Agent Orange and other herbicides in
Vietnam, 422 Nature 681-687 (2003). Regarding inland waterways, Navy
riverine patrols reported to have routinely used herbicides for
clearance of inland waterways. See ``Veterans and Agent Orange: Health
Effects of Herbicides Used in Vietnam'' (1993 National Academies of
Science); ``Characterizing Exposure of Veterans to Agent Orange and
Other Herbicides Used in Vietnam: Final Report'' (2003, National
Academy Press). Blue water Navy service members and other personnel who
operated off shore were away from herbicide spray flight paths, and
therefore were not likely to have incurred a risk of exposure to
herbicide agents comparable to those who served in foliated areas where
herbicides were applied.
In connection with the Haas proceedings, questions were raised as
to a 2002 study performed for Australia's Queensland Health Scientific
Services by their National Research Center for Environmental Toxicology
titled, Examination of the Potential Exposure of Royal Australian Navy
Personnel to Polycholorinated Dibenzodioxins and Polychorinated
Dibenzofurans Via Drinking Water. The study assumed that ocean water
near estuarine sources could contain dioxin if dioxin had been used
over land. It then noted that Australian Navy boats distilled water,
obtained primarily from locations near such estuarine sources, to use
as drinking water. Based on these factual predicates, the study found
that the distillation process used by those boats did not remove dioxin
when dioxin was added to salt water and the distillation process was
performed in a laboratory, but, instead, the distillation concentrated
the dioxin level in the water. This study was not peer reviewed or
published and, to our knowledge, has never been cited in any subsequent
reputable study of Agent Orange.
At the outset, we note that this recent study was not a part of our
original rulemaking, or subsequent rulemakings, related to the
definition of Vietnam service and therefore could not possibly have
informed our definition of service in Vietnam under Sec. 3.307.
Moreover, VA scientists and experts have noted many problems with the
study that caution against reliance on the study to change our long-
held position regarding veterans who served off shore. First, as the
authors of the Australian study themselves noted, there was substantial
uncertainty in their assumptions regarding the concentration of dioxin
that may have been present in estuarine waters during the Vietnam War.
In particular, although distillation concentrated the dioxin level in
the water, the concentrating effect was shown to be dependent upon the
amount of sediment in the water, such that a large sediment level,
consistent with estuarine waters, could significantly reduce the
concentrating effect. Second, even with the concentrating effect found
in the Australian study, the levels of exposure estimated in this study
are not at all comparable to the exposures experienced by veterans who
served on land where herbicides were applied. This is true even if we
were to assume that a person drank only such distilled water and did so
for an extended tour. Third, it is not clear that U.S. ships used
distilled drinking water drawn from or near estuarine sources or, if
they did, whether the distillation process was similar to that used by
the Australian Navy. For these reasons, we do not intend to revise our
long-held interpretation of ``service in the Republic of Vietnam''
based on this study. Although we are not extending the meaning of
``service in Vietnam'' in this rulemaking, because we do not believe
that Congress intended that term to encompass areas that were not
likely to have been exposed to sprayed herbicides, we will continue to
assess any peer-reviewed studies brought to VA's attention on this
topic, including studies concerning the possibility of exposure through
drinking water, groundwater runoff, airborne drift, and transportation.
We will publish any determination extending the definition of service
in the Republic of Vietnam if it is warranted by such studies.
To the extent there is ambiguity in the statutory reference to
service in the Republic of Vietnam, we believe that language is most
reasonably interpreted to refer to service within the land borders of
the Republic of Vietnam. It is both intuitively obvious and well
established that herbicides were commonly deployed in foliated land
areas and would have been released seldom, if at all, over the open
waters off the coast of Vietnam. The legislative and regulatory history
indicates that the purpose of the presumption of exposure was to
provide a remedy for persons who may have been exposed to herbicides
because they were stationed
[[Page 20569]]
in areas where herbicides were used, but whose exposure could not
actually be documented due to inadequate records concerning the
movement of ground troops.
Because it is known that herbicides were used extensively on the
ground in the Republic of Vietnam, and because there are inadequate
records of ground-based troop movements, it is reasonable to presume
that any veteran who served within the land borders of Vietnam was
potentially exposed to herbicides, unless affirmative evidence
establishes otherwise. There is no similar reason to presume that
veterans who served solely in the waters offshore incurred a
significant risk of herbicide exposure.
It is conceivable that some veterans of offshore service incurred
exposure under some circumstances due, for example, to airborne drift,
groundwater runoff, and the proximity of individual boats to the
Vietnam coast. For purposes of the presumption of exposure, however,
there is no apparent basis for concluding that any such risk was
similar in kind or degree to the risk attending service within the land
borders of the Republic of Vietnam. More significantly, because
``offshore service'' encompasses a wide range of service remote from
land and thus from areas of actual herbicide use, there is no reason to
believe that any risk of herbicide exposure would be similarly
pervasive among veterans of offshore service as among veterans of
service within the land borders of Vietnam.
In Haas the Veterans Court noted that ``there are many ways to
interpret the boundaries of a sovereign nation such as the former
Republic of Vietnam'' and stated that, based on established definitions
of sovereign territory, the statutory phrase ``in the Republic of
Vietnam'' could conceivably be construed to encompass waters extending
to a distance of either 12 or 200 miles from the coast. Haas, 20 Vet.
App. at 263-64. It is apparent that any risk of airborne or water-borne
exposure due to herbicide spraying on land areas would be negligible
for most of such distances, and we believe it is highly unlikely that
Congress intended to adopt one of those measures rather than limiting
the presumption to persons who served on land where herbicides were
actually in use. Finally, we note that, to the extent there may be a
risk of exposure through airborne drift or water runoff, that risk
would exist across land borders Vietnam shares with other nations as
well as to drift over open seas, yet Congress clearly did not intend
the presumption to extend beyond the land borders of the Republic of
Vietnam in those instances.
It is also relevant to note that VA's interpretation results in a
logical and easily manageable presumption of exposure, whereas the
alternate interpretation suggested in Haas would entail precisely the
type of difficult policy and case-by-case determinations that
presumptions are generally designed to avoid. As the Veterans Court
noted in Haas, the category of ``offshore service'' may encompass
persons who served hundreds of miles from Vietnam's coast. We believe
it is implausible that Congress intended to encompass all offshore
service, irrespective of whether there is any likelihood that such
service involved the potential for exposure resulting from application
of herbicides in the Republic of Vietnam. However, if Congress intended
to presume herbicide exposure for veterans who served in offshore
waters, but only to the extent there was some risk of herbicide
exposure through airborne drift or water-borne runoff, it would be
exceedingly difficult and highly speculative to define the class of
persons to whom the presumption applies, in the absence of clear
evidence defining the point at which the risk of exposure by such means
ceases to exist. The legislative and regulatory history does not allude
to any basis for making such determinations, which would be essential
to application of the presumption under the interpretation set forth in
Haas. The fact that it would be exceedingly difficult, if not
impossible, to define the parameters of the presumption in any logical
and meaningful way strongly suggests that Congress did not intend to
encompass offshore service for purposes of the presumption of herbicide
exposure.
We have found no indication that Congress intended a presumption
covering offshore service. Rather, in providing a presumption of
herbicide exposure based on service ``in the Republic of Vietnam,'' we
believe Congress reasonably intended to distinguish between areas where
herbicides were actually applied and other areas, such as offshore
areas, where herbicides were not used. That interpretation is
reasonable because it comports with VA's long-standing interpretation
of its own regulations, which Congress intended to codify in 38 U.S.C.
1116; because it comports with known facts regarding the use of
herbicides in Vietnam; because it results in a rule that can easily be
administered; and because the alternate interpretation suggested in
Haas would be exceedingly difficult, if not impossible, to define and
apply in a meaningful, non-arbitrary manner.
The CAVC's observation that there may be similarity between certain
persons who served offshore and certain persons who served on land does
not provide a basis for a different interpretation. ``The `task of
classifying persons for * * * benefits * * * inevitably requires that
some persons who have an almost equally strong claim to favored
treatment be placed on different sides of the line.''' United States
R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (quoting Mathews
v. Diaz, 426 U.S. 67, 83-84 (1976)). The same concern would exist for
any rule interpreting the parameters of the presumption of exposure,
whether it is limited to service on land or to service within some
specified distance from land. For the reasons explained above, we
believe it is far more reasonable to interpret the presumption as
limited to service on land than to service at some arbitrary distance
from land.
We also note that a veteran who does not meet the requirements of
Sec. 3.307(a)(6)(iii) for application of the presumption of service
connection based on service in Vietnam may establish direct service
connection under Sec. 3.307(a)(6) and Sec. 3.309(e) based on
herbicide exposure if the veteran can establish that he or she was
actually exposed to herbicides in service. Section 3.307(a)(6)(iii)
only defines when the presumption of exposure to herbicide agents will
apply. Additionally, as part of its duty to assist, VA will assist a
claimant in obtaining any relevant evidence related to a claim for
exposure to herbicide agents.
For consistency and to avoid possible similar ambiguities in the
interpretation of the term, we propose to amend 38 CFR 3.814(c)(1) to
clarify the meaning of ``service in the Republic of Vietnam'' in that
regulation. Section 3.814 provides benefits for spina bifida to
children of veterans who served in Vietnam, based on those veterans'
presumed exposure to herbicide agents. Because currently the definition
parallels the definition of service in Vietnam in Sec.
3.307(a)(6)(iii), we propose to amend the definition to parallel the
clarifications of that definition established by this rulemaking.
Additionally, 38 CFR 3.815 provides benefits for covered birth
defects to children of women Vietnam veterans, based on those veterans'
service in Vietnam. Section 3.815 was added to VA's adjudication
regulations largely based on a study of women Vietnam veterans and
women non-Vietnam veterans. See 67 FR 200 (Jan. 2, 2002) (discussing
Pregnancy Outcomes
[[Page 20570]]
Among U.S. Women Vietnam Veterans, Kang, et al., 38 Amer. J. Indus.
Med. 447 (2000)). The study compared women Vietnam veterans, defined as
women whose permanent tour of duty included service in Vietnam between
July 4, 1965, through March 28, 1973, to women non-Vietnam veterans,
defined as women assigned to a military unit in the United States
during that time and whose tour of duty did not include service in
Vietnam. According to the study, women Vietnam veterans experienced a
higher prevalence of birth defects among their children than women
veterans who did not serve in Vietnam. The study did not assess a
specific cause for the difference in adverse pregnancy outcomes, but
identified many potential risk factors for abnormal reproductive
outcomes in women Vietnam veterans, including, in addition to herbicide
exposure, risk factors associated with military hospital nursing
conditions in Vietnam (all women Vietnam veterans in the study were
nurses), such as physical stress and exposure to waste anesthetic gases
and ethyleneoxide. The study did not expressly state whether it
considered any women who served solely on ships off the coast of
Vietnam, but the focus on risk factors such as herbicide exposure and
hospital service strongly suggests that the study focused on land-based
service. Although not all of the additional risk factors described in
the study, such as psychological stress, were exclusive to women who
served on land in Vietnam, it appears that the study only considered
such women. As such, the benefits provided in Sec. 3.815 were not
based solely on herbicide exposure, but were based solely on service on
land. For that reason, the rule specifically defined ``service in the
Republic of Vietnam'' consistent with the definition provided in Sec.
3.307(a)(6)(iii), and intended only to include veterans who served on
land. (In fact, in defining an individual eligible for consideration
under the rule, the rule specifically refers to ``the date on which the
veteran first entered the Republic of Vietnam.'' 38 CFR 3.815(c)(2).)
For this reason, and for consistency, we will additionally revise the
definition of service in the Republic of Vietnam in Sec. 3.815(c)(1)
to parallel the definitions in Sec. Sec. 3.307 and 3.814. As such,
benefits under Sec. 3.815 will be provided to women who served on land
or in inland waters, but not offshore. The definition of service in the
Republic of Vietnam in Sec. 3.815(c)(1) as revised differs from the
definitions in Sec. Sec. 3.307 and 3.814 in that the dates for service
in Vietnam in Sec. 3.815 are controlled by Congress' definition of
service in Vietnam for the purposes of the authorizing statute for that
regulation, 38 U.S.C. 1831.
The definition of ``service in the Republic of Vietnam'' as stated
in Sec. Sec. 3.307(a)(6)(iii), 3.814(c)(1), and 3.815(c)(1) is only
intended to be used for those sections, as those are the only sections
that address VA benefits based on service in Vietnam and the potential
exposure to herbicide agents therein. To ensure this, we will add the
statement ``For the purposes of this section'' to the beginning of the
definitions in Sec. Sec. 3.307(a)(6)(iii), 3.814(c)(1), and
3.815(c)(1). For the same reason, we propose to amend 38 CFR 3.313 to
specify that the definition of ``service in Vietnam'' therein applies
to that section only. In addition, we propose to amend the title of
Sec. 3.313 to read, ``Presumption of service connection for non-
Hodgkin's lymphoma based on service in Vietnam.'' The definition of
``Service in Vietnam'' in Sec. 3.313(a) will remain unchanged. We are
not making any substantive change to the regulation by these revisions.
The intent of the term ``Service in Vietnam'' in Sec. 3.313 is
completely different from that which was intended in Sec.
3.307(a)(6)(iii). See 55 FR 25339 (June 21, 1990). The title change
additionally reflects specifically what the regulation addresses.
Section 3.313 was added based on the results of a study of the
association of selected cancers with service in the U.S. military in
Vietnam by the Centers for Disease Control (CDC). The CDC study found
that Vietnam veterans have roughly a 50 percent increased risk of
developing non-Hodgkin's Lymphoma after service in Vietnam. A similar
increased risk was not seen among veterans who served in other
locations during the Vietnam Era. The Secretary thereupon made a
determination that there is a relationship between Vietnam service and
non-Hodgkin's Lymphoma. Unlike Sec. 3.307(a)(6)(iii), Sec. 3.313 is
not linked to herbicide exposure, merely service in Vietnam.
Paperwork Reduction Act
This document contains no provisions constituting a 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 does 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 Order 12866--Regulatory Planning and Review
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 (OMB) unless OMB waives such
review, 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 the 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 the Executive Order 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.
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.
[[Page 20571]]
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this rulemaking are 64.102, Compensation for Service-
Connected Deaths for Veterans' Dependents; 64.109, Veterans
Compensation for Service-Connected Disability; 64.110, Veterans
Dependency and Indemnity Compensation for Service-Connected Death;
64.127, Monthly Allowance for Children of Vietnam Veterans Born with
Spina Bifida; and 64.128, Vocational Training and Rehabilitation for
Vietnam Veterans' Children with Spina Bifida or Other Covered Birth
Defects.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: January 8, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR part 3 as follows:
PART 3--ADJUDICATION
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. Amend Sec. 3.307(a)(6)(iii) by revising the last sentence to
read as follows:
Sec. 3.307 Presumptive service connection for chronic, tropical or
prisoner-of-war related disease, or disease associated with exposure to
certain herbicide agents; wartime and service on or after January 1,
1947.
(a) * * *
(6) * * *
(iii) * * * For the purposes of this section, ``service in the
Republic of Vietnam'' includes only service on land, or on an inland
waterway, in the Republic of Vietnam during the period beginning on
January 9, 1962, and ending on May 7, 1975.
3. Amend Sec. 3.313 by revising the section heading and adding at
the beginning of the first sentence of paragraph (a) ``For purposes of
this section,'' to read as follows:
Sec. 3.313 Presumption of service connection for non-Hodgkin's
lymphoma based on service in Vietnam.
(a) * * * For the purposes of this section, * * *
* * * * *
4. Amend 3.814(c)(1) by revising the last sentence to read as
follows:
Sec. 3.814 Monetary allowance under 38 U.S.C. chapter 18 for an
individual suffering from spina bifida whose biological father or
mother is or was a Vietnam veteran.
* * * * *
(c) * * *
(1) * * * For the purposes of this section, ``service in the
Republic of Vietnam'' includes only service on land, or on an inland
waterway, in the Republic of Vietnam during the period beginning on
January 9, 1962, and ending on May 7, 1975.
* * * * *
5. Amend 3.815(c)(1) by revising the last sentence to read as
follows:
Sec. 3.815 Monetary allowance under 38 U.S.C. chapter 18 for an
individual with disability from covered birth defects whose biological
mother is or was a Vietnam veteran; identification of covered birth
defects.
* * * * *
(c) * * *
(1) * * * For the purposes of this section, ``service in the
Republic of Vietnam'' includes only service on land, or on an inland
waterway, in the Republic of Vietnam during the period beginning on
February 28, 1961, and ending on May 7, 1975.
* * * * *
[FR Doc. E8-8091 Filed 4-15-08; 8:45 am]
BILLING CODE 8320-01-P
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