[Federal Register: November 7, 2002 (Volume 67, Number 216)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
Service Connection by Presumption of Aggravation of a Chronic
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning presumptive service connection to
reflect a statutory presumption that a chronic disease that preexisted
the veteran's entry into military service but was first manifest to a
10-percent degree of disability within a specified period after service
was aggravated by the veteran's military service. This amendment is
necessary to make the regulations conform with the statute and the
DATES: Effective Date: November 7, 2002.
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7213.
SUPPLEMENTARY INFORMATION: Section 1112(a), 38 U.S.C., states that, ``a
chronic disease becoming manifest to a degree of 10 percent or more
within one year from the date of separation from such service * * *
shall be considered to have been incurred in or aggravated by such
service, notwithstanding there is no record of evidence of such disease
during the period of service.''
In the VA General Counsel Precedent Opinion 14-98 (VAOPGCPREC 14-98
(October 2, 1998)), the General Counsel held that Section 1112(a) of
title 38, United States Code, does not establish a presumption of
aggravation for a chronic disease that existed prior to service but
first became manifest to a compensable degree within the presumptive
period following service.
In Splane v. West, 216 F. 3d 1058 (2000), the United States Court
of Appeals for the Federal Circuit concluded, among other things, that
the General Counsel's interpretation of 38 U.S.C. 1112(a) was not in
accordance with law and was therefore in excess of statutory authority.
The Court held that 38 U.S.C. 1112(a) establishes not only a
presumption of service incurrence for chronic diseases first manifest
after service, but also a presumption of aggravation for chronic
diseases that existed prior to service but first became manifest to a
degree of disability of 10 percent or more within the presumption
period after service. The Court vacated that portion of the General
Counsel Precedent Opinion which interpreted 38 U.S.C. 1112(a).
VA regulations currently prohibit establishing service connection
for aggravation of a preexisting chronic disease that first becomes
manifest to a degree of 10 percent or more following discharge from
military service. This prohibition is inconsistent with the statute as
interpreted by the United States Court of Appeals for the Federal
Circuit. Therefore, we are amending 38 CFR 3.307(a), (c), (d), and
3.309(a), to conform to the plain language of the statute and the
conclusions of the Court.
Presently, 38 CFR 3.307(a), (c), and (d) provide only for a
presumption of service incurrence. Accordingly, it is necessary to
revise those paragraphs to include a presumption of aggravation.
38 CFR 3.307(d) currently states the factors to be considered in
determining whether the presumption of service incurrence has been
rebutted. The current regulation is based on the invalid conclusion
that the presumption is one of service incurrence only. This provision
is inconsistent with Splane because Splane establishes that 38 U.S.C.
1112(a) includes a presumption of aggravation of pre-existing diseases
that were not incurred in service. Accordingly, it is necessary to
revise 38 CFR 3.307(d) to state separately the criteria for rebutting
the presumption of service incurrence (in cases where the chronic
disease did not exist prior to service) and the criteria for rebutting
the presumption of aggravation (in cases where the chronic disease did
exist prior to service).
A current VA regulation, 38 CFR 3.306(a), provides that a
presumption of aggravation based on an increase in the severity of a
preexisting condition during service may be rebutted by evidence that
the increase was due to
the natural progress of the disease. Additionally, section 1113(a) of
title 38, United States Code, indicates that a presumption of service
connection based on manifestations of disability subsequent to service
may be rebutted by affirmative evidence to the contrary or evidence to
establish that such disability is due to an intercurrent disease or
injury suffered after separation from service. We are revising Sec.
3.307(d) to reflect these principles. Although Splane did not discuss
the criteria for rebutting the presumption of aggravation, we believe
that inclusion of these rebuttal standards is necessary to the
implementation of that decision.
Administrative Procedure Act
Changes made by this final rule merely reflect the statutory
requirements or the decision of the United States Court of Appeals for
the Federal Circuit. Accordingly, there is a basis for dispensing with
prior notice and comment and delayed effective date provisions of 5
U.S.C. 552 and 553.
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).
Executive Order 12866
This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.
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. This amendment would not directly affect any small entities. Only
individuals could be directly affected. Therefore, pursuant to 5 U.S.C.
605(b), this final 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 are
64.109 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Individuals with disabilities, Pensions, Veterans.
Approved: September 9, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, the Department of
Veterans Affairs amends 38 CFR part 3 as follows:
Subpart A--Pension, Compensation, and Dependency and Indemnity
1. The authority citation for part 3, subpart A continues to read
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Section 3.307 is amended by:
A. In paragraph (a) introductory text, removing ``incurred in'' and
adding, in its place, ``incurred in or aggravated by''.
B. In paragraph (c), removing the last sentence ``The consideration
of service incurrence provided for chronic diseases will not be
interpreted to permit any presumption as to aggravation of a preservice
disease or injury after discharge.''.
C. Revising paragraph (d) and the authority citation at the end of
The revision reads 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,
* * * * *
(d) Rebuttal of service incurrence or aggravation. (1) Evidence
which may be considered in rebuttal of service incurrence of a disease
listed in Sec. 3.309 will be any evidence of a nature usually accepted
as competent to indicate the time of existence or inception of disease,
and medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease. The
expression ``affirmative evidence to the contrary'' will not be taken
to require a conclusive showing, but such showing as would, in sound
medical reasoning and in the consideration of all evidence of record,
support a conclusion that the disease was not incurred in service. As
to tropical diseases the fact that the veteran had no service in a
locality having a high incidence of the disease may be considered as
evidence to rebut the presumption, as may residence during the period
in question in a region where the particular disease is endemic. The
known incubation periods of tropical diseases should be used as a
factor in rebuttal of presumptive service connection as showing
inception before or after service.
(2) The presumption of aggravation provided in this section may be
rebutted by affirmative evidence that the preexisting condition was not
aggravated by service, which may include affirmative evidence that any
increase in disability was due to an intercurrent disease or injury
suffered after separation from service or evidence sufficient, under
Sec. 3.306 of this part, to show that the increase in disability was
due to the natural progress of the preexisting condition.
(Authority: 38 U.S.C 1113 and 1153)
Sec. 3.309 [Amended]
3. Section 3.309(a) is amended by removing ``incurred in'' and
adding, in its place, ``incurred in or aggravated by''.
[FR Doc. 02-28267 Filed 11-6-02; 8:45 am]
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