View Rule

Statement of Need: This proposed amendment would add cancers of the bone, brain, colon, lung, and ovary to the list of diseases that may be presumptively service-connected and amend the definition of the term "radiation-risk activity." This proposed amendment would also ensure that veterans who may have been exposed to radiation during military service have the same burden of proof as civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes.

Summary of the Legal Basis: Section 501(a)(1) of title 38, United States Code, provides that the Secretary of Veterans Affairs has the authority to promulgate regulations regarding the nature and extent of proof and evidence in order to establish entitlement to veterans' benefits. Pursuant to this authority, VA proposes to amend 38 CFR 3.309(d)(2) to add bone, brain, colon, lung, and ovarian cancers, which are covered under the Energy Employees Occupational Illness Compensation Program Act or are covered under the RECA Amendments but are currently not included in the list of diseases in 38 U.S.C. 1112(c)(2) that are presumed to be service-connected for radiation-exposed veterans. This regulation is not required by statute or court order.

Alternatives: Veterans may establish service connection for these five cancers under 38 U.S.C. 1110 or 1131 or the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, 98 Stat. 2725 (1984). Doing so is difficult because, among other things, it requires sound scientific and medical evidence establishing that it is at least as likely as not the veteran's disease resulted from exposure to radiation in service, based in part on an assessment of the amount of radiation to which a veteran was exposed.

Anticipated Costs and Benefits: This regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. These amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Risks: This regulation will not increase or reduce risks to public health, safety, or the environment.