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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations Moreover, these three diseases must not be seasonal or an acute allergic manifestation in nature, as pursuant to 38 CFR 3.380, seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals.
In the event a claimant does not specifically claim one of the three presumptive diseases by name but references symptoms of a general medical condition such as shortness of breath or respiratory issues on claims forms or applications, VA will continue to process and adjudicate such claims to include on the basis of presumptive service connection due to exposure to particulate matter. VA will review and verify the claimants records, including records of deployment to a qualifying period of service and area. If confirmed, VA will schedule an examination or medical opinion if/when necessary to determine if the veteran has a diagnosis for any of the new presumptive diseases and will adjudicate the claim under new 3.320
accordingly.
In addition, new paragraph a3
provides the presumption that a veteran with a qualifying period of service was exposed to fine, particulate matter in service. And new paragraph a4
establishes the qualifying period of service in Southwest Asia theater of operations as during the Persian Gulf War, as well as Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War.
Lastly, new paragraph b provides the three circumstances under which presumptive service connection will not be granted. VA will not consider a disease to be service connected on a presumptive basis if there is affirmative evidence that shows: 1 The disease was not incurred or aggravated during a qualifying period of service; 2 the disease was caused by a supervening condition or event that happened between the most recent separation from a qualifying period of service and the onset of the disease; or 3 the disease was due to the veterans own willful misconduct. This new paragraph b is consistent with current regulations governing other conditions based on presumptive service connection such as exposure to ionizing radiation, exposure to mustard gas, or based on Gulf War service and disabilities due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses. See 38 CFR 3.311g, 3.316b, and 3.317aii7 and c4.

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IV. Review of Other Part 3 Adjudication Regulations On July 30, 2008, Congress passed Public Law 110289, the Housing and Economic Recovery Act of 2008, of which section 2603 expanded eligibility of specially adapted housing benefits to veterans who are permanently and totally disabled due to severe burn injuries as determined pursuant to regulations prescribed by the Secretary. On December 18, 2009, VA
published in the Federal Register 74
FR 67145 a proposed rule to amend 3.809 and 3.809a, the provisions governing specially adapted housing and special home adaptation grants, respectively, to conform with Public Law 110289. RIN 2900AN21
Particularly, VA proposed to add eligibility criteria of severe burn injuries to 3.809a to be defined as 1 deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or 2 subdermal burns that have resulted in contractures with limitation of motion of one or more extremities or the trunk. Although Public Law 110289 did not specifically address non-dermatological severe burn injuries, VA proposed to add a third eligibility criteria of severe burn injury, defined as residuals of an inhalation injury. VA noted that inhalation injuries can result from the same incidents that cause severe burns and attributed the breathing of steam or toxic inhalants such as fumes, gases, and mists present in a fire environment.
Toxic inhalants comprise a variety of noxious gases and particulate matter that are capable of producing local irritation, asphyxiation, and systemic toxicity. See 74 FR at 67147. It was also noted that a significant number of individuals with burns to the skin also have inhalational injury, and the presence of inhalational injury is a determinant of mortality. VA concluded that this third eligibility criteria for inhalational injury was a logical outgrowth of section 2306 of Public Law 110289 that added severe burn injury as a qualifying disability for special home adaptation grants as the law made no mention of inhalation injury.
Taken together, the fact that inhalation injury arose from legislation that only established severe burn injury as a qualifying injury for specially adapted housing and special home adaptation grants and that VAs explanation for adding inhalation injury consistently describes such injury as attributable to combustion or fire environments and events that could
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cause severe burn injuries, VA
concluded that the inhalation injury provision of 3.809a would only apply to cases where veterans could also be exposed to possible severe burn injury e.g., firefighting, escaping a burning building, etc.
With regard to inhalation injuries for special home adaptation grants and PM
exposure, VA concludes that the majority of these sources of particulate matter would not immediately put veterans in danger of suffering severe burn injury as particulate matter is ubiquitous in the environment.
Therefore, VA will not automatically presume that anyone who is permanently and totally disabled due to a respiratory illness as a result of exposure to particulate matter will automatically qualify for special home adaptation grant per 38 CFR 3.809a based on the eligibility criteria of inhalation injury. Instead, the evidentiary record must show that the respiratory illness or residuals were due to an event where the possibility of severe burn injury may have occurred.
Administrative Procedure Act Pursuant to 5 U.S.C. 553bB and d3, VA has found that there is good cause to publish this rule without prior opportunity for comment and to publish this rule with an immediate effective date. It is necessary to immediately implement this interim final rule in order to carry out the VA Secretarys decision to address the needs of service members and veterans who have been exposed to airborne hazards, i.e., particulate matter, due to their service in the Southwest Asia theater of operations, Afghanistan, Syria, Djibouti, or Uzbekistan. Delay in the implementation of this rule would be contrary to the public interest.
The new presumptions are entirely pro-claimant in nature. And because VA
has a sufficient scientific basis to support the new presumptions, continuing to deny claims that could be granted under the presumption while rulemaking is ongoing would unnecessarily deprive veterans and beneficiaries of benefits to which they would otherwise be entitled and prolong their inability to timely receive benefits. Additionally, this could create risks to beneficiaries welfare and health that would be exacerbated by any additional delay in implementation.
Due to the complexity and the historical scientific uncertainty surrounding these issues of airborne hazard exposures and disease, many veterans who will be affected by this rule have long borne the burden and expense of their disabilities while awaiting the results of research
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