28 C.F.R. Subpart C—Eligibility Criteria for Claims Relating to Certain Specified Diseases Contracted After Exposure in an Affected Area (“Downwinders”)
Title 28 - Judicial Administration
The regulations in this subpart describe the criteria for eligibility for compensation under sections 4(a)(2) (A) and (B) of the Act and the evidence that will be accepted as proof of the various eligibility criteria. Sections 4(a)(2) (A) and (B) of the Act provide for a payment of $50,000 to individuals who were exposed to fallout from the atmospheric detonation of nuclear devices at the Nevada Test Site due to their physical presence in an affected area during a designated time period and who later developed one or more specified compensable diseases. (a) The definitions listed in §79.11 (a) through (e) and (i) apply to this subpart. (b) Indication of disease means any medically significant information that suggests the presence of a disease, whether or not the presence of the disease is later confirmed. (c) Leukemia, chronic lymphocytic leukemia, multiple myeloma, lymphomas, Hodgkin's disease, primary cancer of the thyroid, primary cancer of the male breast, primary cancer of the female breast, primary cancer of the esophagus, primary cancer of the stomach, primary cancer of the pharynx, primary cancer of the small intestine, primary cancer of the pancreas, primary cancer of the bile ducts, primary cancer of the gallbladder, primary cancer of the salivary gland, primary cancer of the urinary bladder, primary cancer of the brain, primary cancer of the colon, primary cancer of the ovary, primary cancer of the liver, and primary cancer of the lung mean the physiological conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature. (d) Specified compensable diseases means leukemia (other than chronic lymphocytic leukemia), provided that initial exposure occurred after the age of 20 and that the onset of the disease was at least two years after first exposure, and the following diseases, provided onset was at least five years after first exposure: multiple myeloma; lymphomas (other than Hodgkin's disease); and primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gallbladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), or lung. To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following: (a)(1) That the claimant was physically present at any place within the affected area for a period of at least two years (24 consecutive or cumulative months) during the period beginning on January 21, 1951, and ending on October 31, 1958; or (2) That the claimant was physically present at any place within the affected area for the entire, continuous period beginning on June 30, 1962, and ending on July 31, 1962; and (b) That after such period of physical presence the claimant contracted one of the following specified compensable diseases: (1) Leukemia (other than chronic lymphocytic leukemia), provided that: (i) The claimant's initial exposure occurred after the age of 20; and (ii) The onset of the disease occurred at least two years after first exposure; (2) Multiple myeloma, provided onset occurred at least five years after first exposure; (3) Lymphomas, other than Hodgkin's disease, provided onset occurred at least five years after first exposure; (4) Primary cancer of the thyroid, provided onset occurred at least five years after first exposure; (5) Primary cancer of the male or female breast, provided onset occurred at least five years after first exposure; (6) Primary cancer of the esophagus, provided onset occurred at least five years after first exposure; (7) Primary cancer of the stomach, provided onset occurred at least five years after first exposure; (8) Primary cancer of the pharynx, provided onset occurred at least five years after first exposure; (9) Primary cancer of the small intestine, provided onset occurred at least five years after first exposure; (10) Primary cancer of the pancreas, provided onset occurred at least five years after first exposure; (11) Primary cancer of the bile ducts, provided onset occurred at least five years after first exposure; (12) Primary cancer of the gallbladder, provided onset occurred at least five years after first exposure; (13) Primary cancer of the salivary gland, provided onset occurred at least five years after first exposure; (14) Primary cancer of the urinary bladder, provided onset occurred at least five years after first exposure; (15) Primary cancer of the brain, provided onset occurred at least five years after first exposure; (16) Primary cancer of the colon, provided onset occurred at least five years after first exposure; (17) Primary cancer of the ovary, provided onset occurred at least five years after first exposure; (18) Primary cancer of the liver, provided, (i) Onset occurred at least five years after first exposure; (ii) There is no indication of the presence of hepatitis B; and (iii) There is no indication of the presence of cirrhosis; or (19) Primary cancer of the lung, provided onset occurred at least five years after first exposure. (a) Proof of physical presence for the requisite period may be made in accordance with the provisions of §79.13(a) and (b). An individual who resided or was employed on a full-time basis within the affected area is presumed to have been physically present during the time period of residence or full-time employment. (b) For purposes of establishing eligibility under §79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on any two dates less than three years apart, during the period beginning on January 21, 1951, and ending on October 31, 1958, establishes the claimant's presence within the affected area for the period between the two dates reflected in the documentation submitted as proof of presence. (c) For purposes of establishing eligibility under §79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is before January 21, 1951, and another of which is within the specified time period, establishes the claimant's presence in the affected area between January 21, 1951, and the date within the specified time period, provided the dates are not more than three years apart. (d) For purposes of establishing eligibility under §79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is after October 31, 1958, and another of which is within the specified time period, establishes the claimant's presence in the affected area between the date within the specified time period and October 31, 1958, provided the dates are not more than three years apart. (e) For purposes of establishing eligibility under §79.22(a)(2), the Program will apply the presumptions contained in §79.13(g) and (h). (a) Proof of the claimant's date of birth must be established in accordance with the provisions of §79.14(a). (b) Absent any indication to the contrary, the Program will presume that the earliest date within the designated time period indicated on any records accepted by the Program as proof of the claimant's physical presence in the affected area was the date of initial or first exposure. The date of onset will be the date of diagnosis as indicated in the medical documentation accepted by the Radiation Exposure Compensation Program as proof of the claimant's specified compensable disease. The date of onset must be at least five years after the date of first exposure as determined under §79.24(b). In the case of leukemia, the date of onset must be at least two years after the date of first exposure. (a) Medical documentation is required in all cases to prove that the claimant suffered from or suffers from any specified compensable disease. Proof that the claimant contracted a specified compensable disease must be made either by using the procedure outlined in paragraph (b) of this section or by submitting the documentation required in paragraph (c) of this section. (For claims relating to primary cancer of the liver, the claimant or eligible surviving beneficiary must also submit the additional medical documentation prescribed in §79.27.) (b) If a claimant was diagnosed as having one of the specified compensable diseases in Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, the claimant or eligible surviving beneficiary need not submit any medical documentation of disease at the time the claim is filed (although medical documentation subsequently may be required). Instead, the claimant or eligible surviving beneficiary may submit with the claim an Authorization to Release Medical and Other Information, valid in the state of diagnosis, that authorizes the Program to contact the appropriate state cancer or tumor registry. The Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of one of the specified compensable diseases. If the designated state does not possess medical records or abstracts of medical records that contain a verified diagnosis of one of the specified compensable diseases, the Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit the written medical documentation required in paragraph (c) of this section, in accordance with the provisions of §79.72(b). (c) Proof that the claimant contracted a specified compensable disease may be made by the submission of one or more of the contemporaneous medical records listed in this paragraph, provided that the specified document contains an explicit statement of diagnosis and such other information or data from which the appropriate authorities with the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty. If the medical record submitted does not contain sufficient information or data to make such a diagnosis, the Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit additional medical records identified in this paragraph, in accordance with the provisions of §79.72(b). The medical documentation submitted under this section to establish that the claimant contracted leukemia or a lymphoma must also contain sufficient information from which the appropriate authorities with the National Cancer Institute can determine the type of leukemia or lymphoma contracted by the claimant. Proof of leukemia shall be made by submitting one or more of the documents listed in §79.16(c). (1) Multiple myeloma. (i) Pathology report of tissue biopsy; (ii) Autopsy report; (iii) Report of serum electrophoresis; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Hematology summary or consultation report; (D) Medical oncology summary or consultation report; or (E) X-ray report; or (v) Death certificate, provided that it is signed by a physician at the time of death. (2) Lymphomas. (i) Pathology report of tissue biopsy; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Hematology consultation or summary report; or (D) Medical oncology consultation or summary report; or (iv) Death certificate, provided that it is signed by a physician at the time of death. (3) Primary cancer of the thyroid. (i) Pathology report of tissue biopsy or fine needle aspirate; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative summary report; (D) Medical oncology summary or consultation report; or (iv) Death certificate, provided that it is signed by a physician at the time of death. (4) Primary cancer of the male or female breast. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative report; (D) Medical oncology summary or consultation report; or (E) Radiotherapy summary or consultation report; (iv) Report of mammogram; (v) Report of bone scan; or (vi) Death certificate, provided that it is signed by a physician at the time of death. (5) Primary cancer of the esophagus. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) Endoscopy report; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative report; (D) Radiotherapy report; or (E) Medical oncology consultation or summary report; (v) One of the following radiological studies: (A) Esophagram; (B) Barium swallow; (C) Upper gastrointestinal (GI) series; (D) Computerized tomography (CT) scan; or (E) Magnetic resonance imaging (MRI); or (vi) Death certificate, provided that it is signed by a physician at the time of death. (6) Primary cancer of the stomach. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) Endoscopy or gastroscopy report; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative report; (D) Radiotherapy report; or (E) Medical oncology summary report; (v) One of the following radiological studies: (A) Barium swallow; (B) Upper gastrointestinal (GI) series; (C) Computerized tomography (CT) series; or (D) Magnetic resonance imaging (MRI); or (vi) Death certificate, provided that it is signed by a physician at the time of death. (7) Primary cancer of the pharynx. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) Endoscopy report; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Report of otolaryngology examination; (D) Radiotherapy summary report; (E) Medical oncology summary report; or (F) Operative report; (v) Report of one of the following radiological studies: (A) Laryngograms; (B) Tomograms of soft tissue and lateral radiographs; (C) Computerized tomography (CT) scan; or (D) Magnetic resonance imaging (MRI); or (vi) Death certificate, provided that it is signed by a physician at the time of death. (8) Primary cancer of the small intestine. (i) Pathology report of tissue biopsy; (ii) Autopsy report; (iii) Endoscopy report, provided that the examination covered the duodenum and parts of the jejunum; (iv) Colonoscopy report, provided that the examination covered the distal ileum; (v) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Report of gastroenterology examination; (D) Operative report; (E) Radiotherapy summary report; or (F) Medical oncology summary or consultation report; (vi) Report of one of the following radiologic studies: (A) Upper gastrointestinal (GI) series with small bowel follow-through; (B) Angiography; (C) Computerized tomography (CT) scan; or (D) Magnetic resonance imaging (MRI); or (vii) Death certificate, provided that it is signed by a physician at the time of death. (9) Primary cancer of the pancreas. (i) Pathology report of tissue biopsy or fine needle aspirate; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; or (D) Medical oncology summary report; (iv) Report of one of the following radiographic studies: (A) Endoscopic retrograde cholangiopancreatography (ERCP); (B) Upper gastrointestinal (GI) series; (C) Arteriography of the pancreas; (D) Ultrasonography; (E) Computerized tomography (CT) scan; or (F) Magnetic resonance imaging (MRI); or (v) Death certificate, provided that it is signed by a physician at the time of death. (10) Primary cancer of the bile ducts. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative report; (D) Gastroenterology consultation report; or (E) Medical oncology summary or consultation report; (iv) Report of one of the following radiographic studies: (A) Ultrasonography; (B) Endoscopic retrograde cholangiography; (C) Percutaneous cholangiography; or (D) Computerized tomography (CT) scan; or (v) Death certificate, provided that it is signed by a physician at the time of death. (11) Primary cancer of the gallbladder. (i) Pathology report of tissue from surgical resection; (ii) Autopsy report; (iii) Report of one of the following radiological studies: (A) Computerized tomography (CT) scan; (B) Magnetic resonance imaging (MRI); or (C) Ultrasonography (ultrasound); (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Operative report; (D) Radiotherapy report; or (E) Medical oncology summary or report; or (v) Death certificate, provided that it is signed by a physician at the time of death. (12) Primary cancer of the liver. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Medical oncology summary report; (D) Operative report; or (E) Gastroenterology report; (iv) Report of one of the following radiological studies: (A) Computerized tomography (CT) scan; (B) Magnetic resonance imaging (MRI); or (v) Death certificate, provided that it is signed by a physician at the time of death. (13) Primary cancer of the lung. (i) Pathology report of tissue biopsy or resection, including, but not limited to specimens obtained by any of the following methods: (A) Surgical resection; (B) Endoscopic endobronchial or transbronchial biopsy; (C) Bronchial brushings and washings; (D) Pleural fluid cytology; (E) Fine needle aspirate; (F) Pleural biopsy; or (G) Sputum cytology; (ii) Autopsy report; (iii) Report of bronchoscopy, with or without biopsy; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; (D) Medical oncology summary report; or (E) Operative report; (v) Report of one of the following radiology examinations: (A) Computerized tomography (CT) scan; (B) Magnetic resonance imaging (MRI); (C) X-rays of the chest; or (D) Chest tomograms; or (vi) Death certificate, provided that it is signed by a physician at the time of death. (14) Primary cancer of the salivary gland. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) Report of otolaryngology or oral maxillofacial examination; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; (D) Medical oncology summary report; or (E) Operative report; (v) Report of one of the following radiology examinations: (A) Computerized tomography (CT) scan; or (B) Magnetic resonance imaging (MRI); or (vi) Death certificate, provided that it is signed by a physician at the time of death. (15) Primary cancer of the urinary bladder. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) Report of cytoscopy, with or without biopsy; (iv) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; (D) Medical oncology summary report; or (E) Operative report; (v) Report of one of the following radiology examinations: (A) Computerized tomography (CT) scan; or (B) Magnetic resonance imaging (MRI); or (vi) Death certificate, provided that it is signed by a physician at the time of death. (16) Primary cancer of the brain. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; (D) Medical oncology summary report; or (E) Operative report; (iv) Report of one of the following radiology examinations: (A) Computerized tomography (CT) scan; (B) Magnetic resonance imaging (MRI); or (C) CT or MRI with enhancement; or (v) Death certificate, provided that it is signed by a physician at the time of death. (17) Primary cancer of the colon. (i) Pathology report of tissue biopsy; (ii) Autopsy report; (iii) Endoscopy report, provided the examination covered the duodenum and parts of the jejunum; (iv) Colonoscopy report, provided that the examination covered the distal ileum; (v) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Report of gastroenterology examination; (D) Operative report; (E) Radiotherapy summary report; or (F) Medical oncology summary or consultation report; (vi) Report of one of the following radiologic studies: (A) Upper gastrointestinal (GI) series with small bowel follow-through; (B) Angiography; (C) Computerized tomography (CT) scan; or (D) Magnetic resonance imaging (MRI); or (vii) Death certificate, provided that it is signed by a physician at the time of death. (18) Primary cancer of the ovary. (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary report; (C) Radiotherapy summary report; (D) Medical oncology summary report; or (E) Operative report; or (iv) Death certificate, provided that it is signed by a physician at the time of death. (a)(1) If the claimant or eligible surviving beneficiary is claiming eligibility under this subpart for primary cancer of the liver, the claimant or eligible surviving beneficiary must submit, in addition to proof of the disease, all medical records pertaining to the claimant listed below from any hospital, medical facility, or health care provider that were created within the period six months before and six months after the date of diagnosis of primary cancer of the liver: (i) All history and physical examination reports; (ii) All operative and consultation reports; (iii) All pathology reports; and (iv) All physician, hospital, and health care facility admission and discharge summaries. (2) In the event that any of the records in paragraph (a)(1) of this section no longer exist, the claimant or eligible surviving beneficiary must submit a certified statement by the custodian(s) of those records to that effect. (b) If the medical records listed in paragraph (a) of this section, or information possessed by the state cancer or tumor registries, indicates the presence of hepatitis B or cirrhosis, the Radiation Exposure Compensation Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit other written medical documentation or contemporaneous records in accordance with §79.72(b) to establish that in fact there was no presence of hepatitis B or cirrhosis. (c) The Program may also require that the claimant or eligible surviving beneficiary provide additional medical records or other contemporaneous records, or an authorization to release such additional medical and contemporaneous records, as may be needed to make a determination regarding the indication of the presence of hepatitis B or cirrhosis.
Title 28: Judicial Administration
PART 79—CLAIMS UNDER THE RADIATION EXPOSURE COMPENSATION ACT
Subpart C—Eligibility Criteria for Claims Relating to Certain Specified Diseases Contracted After Exposure in an Affected Area (“Downwinders”)
§ 79.20 Scope of subpart.
§ 79.21 Definitions.
§ 79.22 Criteria for eligibility for claims relating to certain specified diseases contracted after exposure in an affected area (“downwinders”).
§ 79.23 Proof of physical presence for the requisite period.
§ 79.24 Proof of initial or first exposure after age 20 for claims under §79.22(b)(1).
§ 79.25 Proof of onset of leukemia at least two years after first exposure, and proof of onset of a specified compensable disease more than five years after first exposure.
§ 79.26 Proof of medical condition.
§ 79.27 Indication of the presence of hepatitis B or cirrhosis.
