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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations
manifestation period of 10 years from separation from the last period of military service that includes a qualifying period of service. VA believes that a 10-year manifestation period for eligibility for presumptive service connection for the chronic respiratory conditions of asthma, rhinitis, and sinusitis, to include rhinosinusitis, would not only allow veterans time to seek healthcare treatment and/or diagnosis for such respiratory conditions after they leave military service but would expand eligibility to more Gulf War veterans if a longer manifestation period of 10 years was designated as opposed to a shorter manifestation period, e.g., five years, which would preclude certain veterans who develop and/or are diagnosed with a chronic respiratory condition outside of this timeframe. In consideration of the length of the military operations in the Gulf War and a large number of affected service members and veterans, the 10-year manifestation period more liberally provides these veterans with the healthcare, benefits, and services they have earned.
In addition, there is no minimum time limit required for the length of military deployment. There is no set guidance on deployment and this varies widely by service: some smaller units may deploy for two weeks or less for specialized missions special operations, construction units, while larger units may deploy for three to six months in the case of the U.S. Air Force, while some Army units have deployed in extreme cases for up to 15 months.
There is no average deployment time because of these extremes.
Current VA regulations governing presumptive service connection for certain diseases such as chronic diseases, diseases associated with exposure to certain herbicide agents, and others, generally require that the presumptive disease manifest to a compensable degree i.e., 10-percent or more within the applicable time limits.
However, in other contexts, some adjudication regulations governing presumptive service connection, for example presumptions for certain diseases due to exposure to ionizing radiation in 38 CFR 3.311 and mustard gas in 38 CFR 3.316, as well as for amyotrophic lateral sclerosis in 38 CFR
3.318, do not require the associated disability to have manifested to a compensable degree or more. VA is opting against requiring a specific level or dose of exposure to particulate matter and is instead taking the more veterancentric approach of presuming sufficient exposure based on service in these identified regions. This approach
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accounts for the fact that precise or specific information on individual veterans exposures that is needed to support more granular policy is generally not available. In addition, this approach is also consistent with some other presumptions of service connection. For example, VA does not require exposure dosage for Vietnam veterans who were presumed to have been exposed to a herbicide agent such as Agent Orange.
Thus, VA will not require that the chronic respiratory conditions of asthma, rhinitis, and sinusitis, to include rhinosinusitis, manifest to a compensable degree or more so that more Gulf War Veterans can meet the lower eligibility criteria for presumptive service connection for exposure to fine, particulate matter even at a noncompensable level, which could also make veterans eligible to receive VA
health care services for that condition at no cost to themselves.
One of the VA Secretarys priorities is to address the needs of the Gulf War cohort and to address the imminent need for care, services, and benefits to these veterans that is long overdue. The VA Secretary has determined that, for the three most commonly claimed respiratory health conditions, waiting for the results of additional studies for more conclusive scientific evidence would unnecessarily delay the delivery of services and benefits to veterans who served in the Gulf War. Based on the critical need to provide immediate benefits such as disability compensation and healthcare services to veterans as well as the supplemental analysis conducted by VA on the 2020 NASEM
report, the VA Secretary is establishing presumptive service connection and a presumption of exposure to fine, particulate matter for those veterans who were deployed to the Southwest Asia theater of operations as well as Afghanistan, Syria, Djibouti, or Uzbekistan and who are diagnosed with the chronic respiratory conditions of asthma, rhinitis, sinusitis, to include rhinosinusitis, as long as such conditions manifested within 10 years after separation from the last period of military service that includes a qualifying period of service.
This regulation is based on the Secretarys broad authority under 38
U.S.C. 501a to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including . . . regulations with respect to the nature and extent of proof and evidence . . . in order to establish the right to benefits under such laws. The
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Secretary may create presumptions for conditions based on exposure to particulate matter under Congresss broad delegation of general regulatory authority in 38 U.S.C. 501a1, provided there is a rational basis for the presumptions. NOVA v. Secy of Veterans Affairs, 669 F.3d 1340, 1348
Fed. Cir. 2012 A regulation is not arbitrary or capricious if there is a rational connection between the facts found and the choice made. quoting Motor Vehicle Mfrs. Assn. of the U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 1983. For the reasons explained above, the Secretary has determined that such a rational basis exists for the chronic respiratory conditions of asthma, rhinitis, and sinusitis, to include rhinosinusitis.
III. Part 3 Adjudication Regulations Update VA is amending 3.159, the regulation regarding VAs duty to assist claimants in developing their claims, specifically by adding new 3.320 to the current subparagraph that addresses VAs duty to provide medical examinations or obtain medical opinions when it has been established that a veteran has a disease or symptoms of a disease listed in the regulations governing presumptive conditions in 3.309, 3.313, 3.316, and 3.317.
VA is adding new 3.320 to address presumptive service connection based on exposure to particulate matter for Gulf War veterans. Specifically, in new paragraph a1, this provision outlines that service connection will be granted for the listed diseases for a veteran with a qualifying period of service as long as such disease manifested to any degree i.e., non-compensable would qualify within 10 years from separation from the last period of military service that includes a qualifying period of service.
This is based on the presumption that a veteran with a qualifying period of service was exposed to fine, particulate matter during that service. New subparagraph a2 lists the three new chronic diseases for presumptive service connection as asthma, rhinitis, and sinusitis, to include rhinosinusitis.
Chronic rhinosinusitis will be considered for presumptive service connection if claimed or diagnosed as related to particulate matter exposure.
Since chronic rhinosinusitis is also a disease that affects the nasal cavity and paranasal sinuses similar to chronic sinusitis and rhinitis, VA will adjudicate claims for chronic rhinosinusitis under the Diagnostic Code DC for sinusitis in 38 CFR 4.97, Schedule of ratings-respiratory system under DCs 65106514 as appropriate.

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