Definition of Service in the Republic of Vietnam, 20566-20571 [E8-8091]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Proposed Rules]
[Pages 20566-20571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8091]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM74


Definition of Service in the Republic of Vietnam

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations regarding the definition of service in the 
Republic of Vietnam. We state that service in the Republic of Vietnam 
for the purposes of applying the presumption of exposure to herbicide 
agents includes service on land and on inland waterways in Vietnam. The 
amendments clarify existing regulatory provisions and ensure the proper 
administration of VA policy.

DATES: Comments must be received by VA on or before June 16, 2008.

ADDRESSES: Written comments may be submitted through https://
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AM74-Definition of 
Service in the Republic of Vietnam.'' Copies of comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-9739. (This is not a toll-free 
number.)

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