[Federal Register Volume 89, Number 29 (Monday, February 12, 2024)]
[Proposed Rules]
[Pages 9803-9813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02590]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AR10
Updating VA Adjudication Regulations for Disability or Death
Benefit Claims Related to Exposure to Certain Herbicide Agents
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 relating to exposure to certain herbicide
agents to incorporate the provisions of the Blue Water Navy Vietnam
Veterans Act of 2019 (the BWN Act), specifically by extending the
presumed area of exposure to the offshore waters of the Republic of
Vietnam, defining the boundaries of the offshore waters, expanding the
date ranges for presumption of exposure in the Korean Demilitarized
Zone (DMZ) and establishing entitlement to spina bifida benefits for
children of certain Veterans who served in Thailand. This rule also
proposes to codify a presumption of exposure to certain herbicide
agents for locations published on the Department of Defense's (DoD)
record of locations where certain herbicide agents were used, tested or
stored outside of Vietnam. In addition, this rule also proposes to
codify longstanding procedures for searching for payees entitled to
class action settlement payments aligned with Nehmer v. U.S. Department
of Veterans Affairs and proposes to apply the definition of the
Republic of Vietnam's offshore waters to claims for presumptive service
connection for non-Hodgkin's lymphoma. VA is also proposing to amend
its adjudication regulations concerning presumptive service connection
for diseases associated with exposure to certain herbicide agents. This
amendment implements provisions of the Fiscal Year (FY) 2021 National
Defense Authorization Act (NDAA), which added bladder cancer,
hypothyroidism and Parkinsonism as medical conditions eligible for
presumptive service connection. Finally, this rulemaking proposes to
implement certain provisions of the Sergeant First Class Heath Robinson
Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT
Act), specifically by recognizing hypertension and monoclonal
gammopathy of undetermined significance (MGUS) as diseases eligible for
a presumption of exposure to certain herbicides and adding new
locations as eligible for a presumption of exposure to certain
herbicides during specific timeframes.
DATES: Comments must be received on or before [insert date 60 days
after date of publication in the Federal Register].
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
www.regulations.gov as soon as possible after they have been received.
VA will not post on Regulations.gov public comments that make threats
to individuals or institutions or suggest that the commenter will take
actions to harm the individual. VA encourages individuals not to submit
duplicative comments; however, we will post comments from multiple
unique commenters even if the content is identical or nearly identical
to other comments. Any public comment received after the comment
period's closing date is considered late and will not be considered in
the final rulemaking. In accordance with the Providing Accountability
Through Transparency Act of 2023, a 100 word Plain-Language Summary of
this proposed rule is available at Regulations.gov, under RIN 2900-
AR10.
FOR FURTHER INFORMATION CONTACT: Jane Allen, Regulations Analyst;
Robert Parks, Chief, Regulations Staff (211C), Compensation Service
(21C), Veterans Benefits Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9700.
(This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
I. Background
The spraying of herbicides as tactical defoliants during the
Vietnam War began in 1962 and continued until 1971. Public concern over
the military's use of herbicides began to grow following requests by
scientists to evaluate possible toxic effects of widespread herbicide
spraying. To respond to public concern about possible long-term health
effects of exposure to herbicides, Congress passed the Veterans' Dioxin
and Radiation Exposure Compensation Standards Act, Public Law 98-542.
The Act required VA to create guidelines and criteria for deciding
claims for benefits based on a Veteran's exposure to herbicides during
service in the Republic of Vietnam and established the first
presumptions of service connection based on exposure to certain
herbicides. The Act also established the Veterans' Advisory Committee
on Environmental Hazards to provide findings and evaluations regarding
the scientific evidence related to possible adverse health hazards due
to exposure to herbicides.
The results of these studies prompted the Agent Orange Act of 1991,
Public Law 102-4, codified in part at 38 U.S.C. 1116. This Act
established presumptive service connection for non-Hodgkins lymphoma,
soft-tissue sarcoma (with certain exceptions) and chloracne or other
consistent acneform diseases. In addition, the Act directed the VA to
enter into an agreement with the National Academy of Sciences to review
and evaluate the scientific evidence concerning the association between
exposure to certain herbicide agents during service in the Republic of
Vietnam and each disease suspected to be associated with such exposure.
The Act further established guidelines for the evidentiary support
needed to create new presumptions of service connection. The Act
required that ``Whenever the Secretary determines, on the basis of
sound medical and scientific evidence, that a positive association
exists between (A) the exposure of humans to an herbicide agent, and
(B) the occurrence of a disease in humans, the Secretary shall
prescribe regulations providing that a
[[Page 9804]]
presumption of service connection is warranted for that disease for the
purposes of this section.'' Public Law 102-4, Sec. 2(a). Since passage
of the Act, Congress and VA have established 13 additional presumptions
of service connection based on exposure to certain herbicides.
a. The BWN Act of 2019
Prior to the BWN Act, VA interpreted the presumption of exposure to
certain herbicide agents for service connection purposes under the
Agent Orange Act of 1991, codified in relevant part at 38 U.S.C.
1116(a)(1), to require service within the borders of the Republic of
Vietnam, either ``boots on the ground'' land-based service or service
within the inland waterways. If there was evidence that a Veteran went
ashore or docked in the Republic of Vietnam, however briefly, the
Veteran would be entitled to the presumption of exposure. VA's
interpretation was upheld in court until 2019. See Haas v. Peake, 525
F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 555 U.S. 1149 (2009),
overruled by Procopio v. Wilkie, 913 F.3d 1371, 1380 (Fed. Cir. 2019)
(en banc). In 2019, the U.S. Court of Appeals for the Federal Circuit
held that Congress intended the term ``Republic of Vietnam'' to include
the ``territorial sea'' of the Republic of Vietnam. The court ruled
that by using the formal name of the country, ``the Republic of
Vietnam,'' Congress referred to both its landmass and its 12 nautical
mile territorial sea. Procopio, 913 F.3d at 1375. Vietnam's offshore
waters were not defined by statute, and the Federal Circuit rejected
the distinction between service within the landmass and in the
territorial waters when it invalidated the foot-on-land requirement for
the Agent Orange presumptions. Id. at 1378. The court cited
international legal authorities to support its holding but did not
further attempt to define where the boundaries of the territorial sea
of the Republic of Vietnam must be drawn beyond its holding regarding
the 12 nautical mile territorial sea. See id. at 1375-76. While VA was
working to implement the Procopio ruling, Congress enacted the BWN Act.
The BWN Act provides a description and table of coordinates to define
the Republic of Vietnam's offshore waters.
b. The NDAA of 2021
On January 1, 2021, Congress enacted Public Law 116-283, the
William M. (Mac) Thornberry National Defense Authorization Act for
Fiscal Year 2021 (NDAA). In relevant part, this law amended 38 U.S.C.
1116(a)(2) by adding bladder cancer, hypothyroidism and Parkinsonism to
the list of conditions presumptively associated with exposure to
certain herbicide agents. The amendment to 38 U.S.C. 1116(a) was based
on the 2018 National Academies of Sciences, Engineering, and Medicine
report, Veterans and Agent Orange: Update 11, which found limited or
suggestive evidence of an association between exposure to certain
herbicide agents and bladder cancer, hypothyroidism and
Parkinsonism.\1\
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\1\ National Academies of Sciences, Engineering, and Medicine.
2018. Veterans and Agent Orange: Update 11 (2018). Washington, DC:
The National Academies Press. https://doi.org/10.17226/25137.
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c. The PACT Act
On August 10, 2022, Congress enacted the PACT Act, Public Law 117-
168, to improve access to VA benefits and health care for Veterans who
were exposed to toxic substances during military service. Section 403
of the PACT Act amended section 1116 of title 38, United States Code by
adding new locations as eligible for a presumption of exposure to
certain herbicide agents: Thailand (at any United States or Royal Thai
base), Laos, Cambodia at Mimot or Krek, Kampong Cham Province, Johnston
Atoll, Guam, and American Samoa, during certain timeframes. Prior to
the PACT Act, the only location subject to a statuory presumption of
exposure to certain herbicides was the Republic of Vietnam. Therefore,
VA is proposing to add these additional locations to VA's Part 3
Regulations at 38 CFR 3.307.
Section 404 of the PACT Act added hypertension and MGUS as diseases
associated with exposure to certain herbicide agents under 38 U.S.C.
1116(a)(2). Therefore, VA is proposing to add these diseases to 38 CFR
3.309, disease subject to presumptive service connection.
II. Proposed Changes to Sec. 3.307 Diseases Associated With Exposure
to Certain Herbicide Agents
a. Amendments to Sec. 3.307(a)(6) Based on the BWN Act of 2019
38 CFR 3.307(a)(6) outlines the service requirements and other
circumstances required for the presumption of exposure to certain
herbicide agents to apply. 38 CFR 3.307(a)(6)(iii) establishes a
presumption of exposure to certain herbicide agents for Vietnam
Veterans with active-duty service during a specific period. Prior to
Procopio and the BWN Act, Veterans who served in the ``offshore
waters'' were only presumed to have been exposed to certain herbicide
agents if there was evidence that the conditions of their service
involved duty or visitation in the Republic of Vietnam. VA proposes to
amend 38 CFR 3.307(a)(6) to clarify that service in the offshore waters
of the Republic of Vietnam--without an additional foot-on-land
requirement--is considered service in Vietnam for the purpose of
establishing presumption of in-service exposure to certain herbicide
agents. Service in other locations will continue to constitute service
in Vietnam if the conditions of service involved duty or visitation in
the Republic of Vietnam.
VA also proposes to amend 38 CFR 3.307(a)(6) by adding the
parameters of what constitutes ``offshore waters'' from the BWN Act.
See 38 U.S.C. 1116A(d). The Act includes a list of geographic points
with their names and coordinates of latitude and longitude which, when
connected by a series of lines, create the baseline from which the 12
nautical miles that define the offshore waters of the Republic of
Vietnam are measured.
The BWN Act does not direct how the southwestern-most and northern-
most points of the offshore waters are to be connected to land, which
would be necessary to create a fully defined geographic area. To define
the offshore water of the Republic of Vietnam, the law provides 11
geographic points located 12 miles seaward from the coast of the
Republic of Vietnam. The law does not dictate how the end points
connect to land. Initially, VA considered using straight lines to
define where the end points connect to land. However, using a straight
line to connect the westernmost point to land would bisect the southern
tip of Vietnam's Phu Quoc Island. VA now proposes to have this line
include the entire island. This Veteran-centric approach would help
avoid denials of service connection for Veterans who may have been
exposed in the coastal and inland waters of Phu Quoc. Further, VA views
the inclusion of the offshore waters of Phu Quoc island to be
consistent with Congress's intent that VA extend the presumption of in-
service exposure to certain herbicide agents to all applicable BWN
veterans in a ``broad and comprehensive'' manner. See H.R. Rep. No.
116-58, at 11 (2019) (discussing purpose of BWN Act vis-[agrave]-vis
Procopio). As such, VA proposes to include the offshore areas of Phu
Quoc Island to ensure that veterans who served in the offshore waters
surrounding Phu Quoc Island are entitled to the same presumption.
VA proposes to define the southwest demarcation of the offshore
waters as a line extending from where the border of Cambodia and the
Republic of Vietnam meet the shoreline (10[deg]30'54.42'' N,
[[Page 9805]]
104[deg]35'48.10'' E), to the points described as Phu Quoc Extension
points A through E and on to Hon Nhan Island, Tho Chu Archipelago Kien
Giang Province. The northern demarcation is proposed to be described as
a line from the mid-point of the Ben Hai River, which denotes the
demilitarized zone between the former North Vietnam and the Republic of
Vietnam (17[deg]0'42.19'' N, 107[deg]6'35.47'' E), to the point
described as Con Co Island, Binh Tri Thien Province.
The proposed area that comprises the offshore waters of the
Republic of Vietnam is designated solely for the purpose of determining
presumption of in-service exposure to certain herbicide agents in order
to establish entitlement to benefits under title 38 of the United
States Code. The proposed rulemaking is not an endorsement of any
state's sovereignty rights or jurisdiction under international law. The
status of some of the waters in and around the area addressed in the
proposed regulation was in dispute during the Vietnam Era and may still
be in dispute. Because of this, the proposed rule includes a note in 38
CFR 3.307 that clarifies that the purpose of the regulation is for
claim adjudication purposes and is not a statement or endorsement of
international boundaries.
VA also proposes to amend 38 CFR 3.307(a)(6) for exposures related
to service in the Korean demilitarized zone (DMZ) by proposing to
expand the date range for presumption of exposure to certain herbicide
agents for Veterans who served in units operating in or near the Korean
DMZ. Currently, the date range contained in section 3.307(a)(6)(iv) is
April 1, 1968, through August 31, 1971. The BWN Act expanded the date
range to September 1, 1967, through August 31, 1971. 38 U.S.C.
1116B(a)(2).
Over the past few years, VA has received several requests to engage
in rulemaking with regard to presumptive exposure to certain herbicide
agents. Some of the requests have pertained to the Republic of Vietnam
and its surrounds, such as Da Nang Harbor and Phu Quoc Island, and seem
to be resolved by the BWN Act and this rulemaking, with the proposed
changes to 38 CFR 3.307(a)(6) described above. That said, VA still
welcomes any and all comments on these issues.
There have also been requests to extend a presumption of exposure
to certain herbicide agents to Veterans who served at additional
locations outside Vietnam, such as Panama and Okinawa. In response to
some of these requests, VA committed to open a rulemaking that would
consider extending the presumption of exposure to certain herbicide
agents beyond the categories of Veterans currently listed in 38 CFR
3.307(a)(6)(iii)-(v). This is that rulemaking and, after serious
consideration, VA is proposing to extend a presumption of exposure to
certain herbicide agents by adding new paragraph 38 CFR
3.307(a)(6)(xi), which would presume exposure to certain herbicide
agents for Veterans who served in locations not otherwise listed under
section 3.307(a)(6) where certain herbicides and their chemical
components were tested, used or stored, based on information received
from DoD.
From 2018 to 2019, DoD reviewed thousands of government documents
from a variety of sources to include the National Archives and Records
Administration, Air Force Historical Research Agency, United States
Department of Agriculture National Agricultural Library and Defense
Technical Information Center. Information obtained from these documents
was assessed against criteria developed jointly by VA and DoD to
identify specific locations inside and outside the United States where
certain herbicide agents and their chemical components were tested,
used, or stored. The record of locations is a ``living document,'' and
the Armed Forces Pest Management Board (AFPMB) has been assigned
responsibility by the Under Secretary of Defense for Acquisition and
Sustainment to maintain and update this list and ensure that it is
current and accurate. The AFPMB conducts a review of the DoD list of
locations annually and accepts submissions from members of the public
in furtherance of updating the list.
Because DoD's list is premised on a comprehensive review of
thousands of government documents, and the list will continue to be
informed and updated through the submission of evidence by members of
the public as well as internal research, VA utilizes the list as the
most reliable source of information informing the question of where to
establish regulatory presumptions of exposure to certain herbicide
agents. VA believes that the list's acknowledgment of certain herbicide
agent usage, testing or storage at particular sites on particular dates
warrants a presumption of exposure to certain herbicide agents that
lessens the ordinary burden of proof for Veterans who reasonably would
have visited those sites on those dates. See 38 U.S.C. 5107(a); 38
U.S.C. 501(a)(1).
In August 2019, DoD conveyed to VA its updated list of locations
where certain herbicide agents were used, tested or stored. The list
references (1) each location where certain herbicide agents were
present, (2) the specific site of that presence, (3) the dates of that
presence, (4) the purpose of that presence, (5) the personnel involved,
and (6) the name of the herbicide agent or component involved. The list
(and links to the criteria informing its creation) can be found at:
https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp. While DoD is the lead agency for producing and
updating the list of locations where certain herbicide agents were
used, tested or stored, VA is the lead agency responsible for making
this information easily accessible to Veterans and keeping them
informed of the benefits to which they may be entitled based on their
service. VA keeps the public informed by publishing the list on the VA
public health website and updating the published list as locations are
added or removed. In addition, VA will provide notice in the Federal
Register whenever updates are made to the DoD list.
Given that DoD will continue to maintain and update the list of
locations where certain herbicide agents were used, tested or stored,
VA proposes to implement a regulatory presumption of exposure that can
evolve with the most current DoD list. Thus, VA proposes an additional
paragraph to 38 CFR 3.307 that would presume exposure to certain
herbicide agents for Veterans (who do not qualify for the presumption
under paragraphs (a)(6)(iii)-(v) or new paragraphs (a)(6)(vi)-(x)
discussed below in Section II.b.) whose circumstances of service
reasonably would have placed them at a site of certain herbicide agent
testing, use or storage on a date of certain herbicide testing, use or
storage. The authoritative source regarding where and when certain
herbicide agents were tested, used or stored, for purposes of this
additional paragraph, would be the information provided by DoD that is
publicly available on VA's website and through VA's notices in the
Federal Register.
This presumption would alleviate the need for a Veteran to have to
prove actual involvement with certain herbicide agents, so long as that
Veteran's circumstances of service would reasonably have placed the
Veteran at certain sites on certain dates. For veterans who do not
qualify for the presumption, VA will continue to consider and decide
claims on a case-by-case basis considering all the evidence of record.
Such Veterans will have the opportunity to present
[[Page 9806]]
evidence that they were exposed to certain herbicide agents, VA will
consider all evidence of record (including lay statements) in rendering
a determination on exposure, and VA will give the benefit of the doubt
to the Veteran; but a presumption that lessens the ordinary burden of
proof under 38 U.S.C. 5107 will not apply. Otherwise stated, Veterans
in such a position will have the opportunity to establish in-service
exposure to certain herbicide agents on a direct basis, but not a
presumptive basis.
The purpose of this regulatory change is to ensure consistency
across VA adjudications, in accord with the most up-to-date information
garnered by DoD. Structuring the regulation in this way will also
eliminate the need for adjudicators to continually rely on sub-
regulatory guidance or the need for VA to amend its regulations every
time DoD updates its list.
For several reasons, VA decided not to propose to extend a
regulatory presumption beyond the statutory requirements and the DoD
list at this time. First, any official declaration by VA that a certain
herbicide agent was presumably present in a particular location should
be based on a comprehensive review of all available records, not based
on speculation, assumption or limited evidence. While individual
Veteran recollections, photographs and soil samples decades after the
fact can provide relevant evidence in support of an individual's
pursuit of direct service connection, it is most appropriate to rely on
the most comprehensive review--from the agency that has access to the
most relevant documents--when establishing a regulatory presumption.
Second, as noted above, direct service connection remains available for
any Veteran who alleges exposure to certain herbicide agents (no matter
the Veteran's location of service), and due consideration will be given
to all the evidence that veteran submits, with the benefit of the doubt
given to the Veteran. Tailoring the presumption in this way does not at
all foreclose any Veteran alleging exposure to certain herbicide agents
from obtaining benefits. Third, there is reason for VA to be cautious
in presuming or making declarations about herbicide agent presence when
DoD has superior access to relevant records and superior knowledge of
its own operations. While some inconsistency in government positions,
statements and decisions is inevitable given the size and complexity of
Federal operations, it is confusing and illogical for one agency to
create a rule that will have the force and effect of law that by its
very premise depends upon a factual proposition that another agency
with superior expertise or authority does not credit. Otherwise stated,
for VA to presume an herbicide agent presence that DoD steadfastly
denies after exhaustive research could implicate issues beyond VA
benefits and result in widespread confusion about what the government
believes to be fact. The better resolution is for VA and members of the
public to submit all relevant evidence to DoD, so that the DoD list
continues to evolve with the most up-to-date information, and for
veterans to continue to submit evidence along with their individual
claims.
VA recognizes that locations like Panama and Okinawa, Japan, are
not on DoD's current list of locations where certain herbicide agents
were used, tested or stored, and therefore would not warrant a
presumption at this time. Ultimately, VA believes that linking its
presumption with DoD's current herbicide agent list (which, as noted
above, is a living document and therefore may evolve, upon the review
of additional submitted evidence, to include locations like Panama and
Okinawa) is the best course of action, but VA nevertheless welcomes all
comments on this approach, or comments on Panama and Okinawa
specifically, during the comment period for this rulemaking.
b. Amendments to Sec. 3.307 Based on the PACT Act
As explained above, 38 CFR 3.307(a)(6) outlines the service
requirements and other circumstances required for the presumption of
exposure to certain herbicide agents. Currently, 38 CFR 3.307(a)(6)
lists two locations as eligible for a presumption of exposure: the
Republic of Vietnam and units that operated in or near the Korean DMZ
in an area in which herbicides are known to have been applied. Based on
section 403 of the PACT Act, VA is proposing to add the following
locations to 38 CFR 3.307(a)(6) with corresponding eligible timeframes:
(1) service in Thailand at any United States or Royal Thai base during
the period beginning on January 9, 1962, and ending on June 30, 1976;
(2) service in Laos during the period beginning on December 1, 1965,
and ending on September 30, 1969; (3) service in Cambodia at Mimot or
Krek, Kampong Cham Province during the period beginning on April 16,
1969, and ending on April 30, 1969; (4) service in Guam or American
Samoa, or in the territorial waters thereof, during the period
beginning on January 9, 1962, and ending on July 31, 1980; and (5)
service on Johnston Atoll or on a ship that called at Johnston Atoll
during the period beginning on January 1, 1972, and ending on September
30, 1977. These new locations will be added to 38 CFR 3.307(a)(6) by
creating new paragraphs (a)(6)(vi-x).
To determine the territorial waters of Guam and American Samoa, VA
relied on coordinates from the National Oceanic and Atmospheric
Administration. The electronic charts can be found here: https://charts.noaa.gov/InteractiveCatalog/nrnc.shtml#mapTabs-2.
For claims based on service in Thailand, VA interprets the language
of section 403 to include service on a ship that called to a coastal
Thailand base. Section 403 provides a presumption of exposure to
Veterans who served in Thailand at any United States or Royal Thai base
during the period beginning on January 9, 1962, and ending on June 30,
1976. As the PACT Act definition of covered service in Thailand
includes any United States or Royal Thai bases in Thailand, VA finds it
reasonable to include service aboard a ship at any coastal Thailand
base. Under this interpretation, any Veteran who served on a ship that
called to a coastal base in Thailand is eligible for a presumption of
exposure to certain herbicides.
VA's current policy regarding claims based on Thailand service is
contained in sub-regulatory guidance and considers exposure on a case-
by-case direct basis for security personnel, security patrol dog
handlers, or other Service members whose daily activities placed them
near the security perimeters of Thailand military bases during the
Vietnam Era. Proposed 38 CFR 3.307(a)(6)(vi) would supplant that sub-
regulatory guidance, as this new paragraph would presume exposure to
certain herbicides for all veterans who served in Thailand at any U.S.
or Royal Thai base between January 9, 1962, and June 30, 1976, without
regard to where on the base the veteran was located or what military
job specialty the Veteran performed.
For claims based on service in Johnston Atoll or on a ship that
called to Johnston Atoll, 38 U.S.C. 1116(d)(5) defines covered service
to include service ``on Johnston Atoll or on a ship that called at
Johnston Atoll during the period beginning on January 1, 1972, and
ending on September 30, 1977.'' Section 1116(d)(5) specifies two
categories of service related to Johnston Atoll that constitute covered
service: (1) service on Johnston Atoll and (2) service on a ship that
called at Johnston Atoll. VA understands 38 U.S.C. 1116(d)(5)'s date
range to refer to the dates of the veteran's service in the location
(the
[[Page 9807]]
Atoll itself or on a ship), and that the date range provided in the
statute applies to both categories. VA thus proposes to amend 38 CFR
3.307(a)(6) to make clear that the presumption of exposure to certain
herbicides applies when the veteran was present on Johnston Atoll, to
include presence on the the ship when it called at Johnston Atoll, even
if the veteran did not disembark, during the qualifying period.
III. Proposed Changes to Sec. 3.309 Diseases Subject to Presumptive
Service Connection
Based on the FY 2021 NDAA and section 404 of the PACT Act, VA
proposes to amend its adjudication regulations by revising section
3.309 to add bladder cancer, Parkinsonism, hypothyroidism, hypertension
and MGUS to the list of diseases subject to presumptive service
connection based on exposure to certain herbicide agents. VA proposes
to add the five new conditions to the end of section 3.309(e), directly
after soft tissue sarcoma.
VA also proposes to include parenthetical language for Parkinsonism
that identifies the most common forms of Parkinsonism known as
Parkinson-plus syndromes (also referred to as atypical Parkinsonism).
The most common Parkinson-plus syndromes are progressive supranuclear
palsy (PSP), multiple system atrophy (MSA) (also referred to as Shy-
Drager syndrome), corticobasal degeneration (CBD), vascular
Parkinsonism, and dementia with Lewy bodies (DLB).\2\ The purpose of
this parenthetical language is to ensure that disorders that fall under
the umbrella term Parkinsonism are not overlooked by claims processors,
resulting in examinations not being requested when warranted.
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\2\ Nicolaus R. McFarland. ``Diagnostic Approach to Atypical
Parkinsonian Syndromes,'' Continuum (Minneap Minn). 2016 Aug; 22(4
Movement Disorders)11171142. doi: 10.1212/CON.0000000000000348
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Drug-induced Parkinsonism will not be included as a presumptive
condition as its etiology stems from drug side effects, not exposure to
certain herbicide agents. Furthermore, drug-induced Parkinsonism is a
condition that usually subsides over time once the relevant drug is
discontinued.\3\ Claims for service connection of drug-induced
Parkinsonism will continue to be considered, as warranted, on a direct
basis or on a secondary basis per 38 CFR 3.310(a), which states that
service connection will be granted when a disability is determined to
be proximately due to or the result of a service-connected disease or
injury. If a Veteran has a diagnosis of drug-induced Parkinsonism and a
medical examiner opines that the disease is due to medication required
for a service-connected condition, the claim for service connection for
drug-induced Parkinsonism may be granted on a secondary basis. To
provide clarity, VA further proposes to add a new note to 38 CFR
3.309(e) to explain that drug-induced Parkinsonism is not recognized as
a disease associated with exposure to certain herbicide agents.
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\3\ Shin, Hae-Won, and Sun Ju Chung. ``Drug-induced
parkinsonism.'' Journal of clinical neurology (Seoul, Korea) vol.
8,1 (2012): 15-21. doi:10.3988/jcn.2012.8.1.15
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IV. Proposed Changes to Sec. 3.313 Claims Based on Service in Vietnam
38 CFR 3.313 provides regulatory guidance for establishing service
connection for non-Hodgkin's lymphoma (NHL) based on service in
``Vietnam.'' Currently, service connection for NHL requires a medical
diagnosis and evidence showing service on land in Vietnam or service in
Vietnam's offshore waters. (The current regulatory provision does not
distinguish between ``Vietnam'' and the ``Republic of Vietnam.'')
Before the Procopio decision, service solely in the offshore waters was
not sufficient to grant service connection for any condition except
NHL.
Based on the definition of Vietnam's offshore waters in the BWN
Act, claims for NHL will no longer be held to a separate standard of
service connection than other conditions listed under 38 CFR 3.309(e).
Furthermore, because the current regulatory guidance does not
distinguish between ``Vietnam'' and the ``Republic of Vietnam,'' VA is
proposing to amend its adjudication regulations to specify that in
order to establish presumptive service connection for NHL, service must
have been in the ``Republic of Vietnam,'' to ensure that the regulation
is consistent with the statutory definition of Vietnam's offshore
waters. VA notes that, in light of Procopio and the BWN Act, the scope
and effect of section 3.313 are essentially coextensive with section
3.309(e) as the latter applies to NHL. However, VA proposes to revise,
rather than rescind, section 3.313 because this provision could have an
independent effect in rare cases, as it does not depend on a rebuttable
presumption of herbicide agent exposure.
V. Proposed Changes to Sec. 3.114 Change of Law or Department of
Veterans Affairs Issue
38 CFR 3.114(a), which provides effective date provisions in
situations where there has been a change in law or VA issue, applies,
in relevant part, to benefits awards to an individual suffering from
spina bifida whose biological father or mother is or was a Vietnam
Veteran or a Veteran with covered service in Korea. Since the BWN Act
authorizes VA to extend these benefits to children of Veterans with
covered service in Thailand, VA proposes to add individuals with spina
bifida born to Veterans with covered service in Thailand as a category
of claimants who are entitled to consideration for an effective date as
specified in this regulation.
Furthermore, VA proposes a clerical amendment to section 3.114(a)
by replacing the word ``child'' with the phrase ``natural child''
wherever it occurs in the regulation. This is not a substantive
regulatory change; it is merely a clerical amendment that reflects the
statutory definition of ``child'' for purposes of benefits for children
of certain veterans born with spina bifida. See 38 U.S.C. 1831(1).
VI. Proposed Changes to 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 or a Veteran
With Covered Service in Korea
Individuals born with spina bifida whose biological father or
mother was determined to be exposed to certain herbicide agents in
Vietnam or Korea have long been eligible for a monthly monetary
allowance under 38 U.S.C. chapter 18, based on the severity of their
spina bifida symptoms. However, this eligibility did not extend to
natural children of Thailand Veterans for whom certain herbicide agent
exposure has been conceded, nor did it extend to natural children of
Veterans who served in the offshore waters of the Republic of Vietnam.
38 CFR 3.814 is the regulation that provides for entitlement to this
monetary allowance under 38 U.S.C. chapter 18 and sets forth the
criteria that must be met in order to establish such entitlement. The
BWN Act expanded eligibility for spina bifida benefits to natural
children of certain Thailand Veterans, as well as natural children of
Veterans who served in the offshore waters of the Republic of Vietnam.
This proposed rulemaking updates the criteria accordingly.
For purposes of spina bifida benefits for natural children of
Thailand Veterans, the BWN Act, in 38 U.S.C. 1822, defined a Veteran of
covered service in Thailand as ``any individual, without regard to the
characterization of that individual's service, who--(1)
[[Page 9808]]
served in the active military, naval, or air service in Thailand, as
determined by the Secretary in consultation with the Secretary of
Defense, during the period beginning on January 9, 1962, and ending on
May 7, 1975; and (2) is determined by the Secretary, in consultation
with the Secretary of Defense, to have been exposed to a herbicide
agent during such service in Thailand''
As discussed above in Section II.b., the PACT Act expanded the list
of locations eligible for a presumption of exposure to certain
herbicides to include Thailand. The PACT Act defined covered service in
Thailand, in 38 U.S.C. 1116(d)(2), as ``active military, naval, air, or
space service-performed in Thailand at any United States or Royal Thai
base during the period beginning on January 9, 1962, and ending on June
30, 1976, without regard to where on the base the Veteran was located
or what military job specialty the Veteran performed.'' Prior to the
PACT Act, 38 U.S.C. 1822 provided benefits to children born with spina
bifida whose parent served in Thailand any time between January 9,
1962, and May 7, 1975. The PACT Act did not amend 38 U.S.C. 1822. For
purposes of establishing entitlement to monetary benefits for spina
bifida under 38 U.S.C. Chapter 18, VA proposes to define covered
service in Thailand as ``service at any United States or Royal Thai
base during the period beginning on January 9, 1962, and ending on May
7, 1975, without regard to where on the base the Veteran was located or
what military job specialty the Veteran performed.'' This definition
includes the description of covered service from 38 U.S.C. 1116 but
maintains the eligible time frame from 38 U.S.C. 1822. VA has
determined that aligning the definitions of what characterizes Thailand
service will improve the consistency of decisions for Thailand Veterans
and their survivors.
For the purposes of establishing entitlement to monetary benefits
for spina bifida under 38 U.S.C. chapter 18, VA is proposing to include
the offshore waters of the Republic of Vietnam in the definition of
service in the Republic of Vietnam. In accordance with the BWN Act, VA
further proposes to amend 38 CFR 3.814(c)(1) to align with the
definition of ``service in the Republic of Vietnam'' set forth in the
proposed amendment to 38 CFR 3.307(a)(6)(iii).
Further, in accordance with the BWN Act, VA is extending the date
range for establishing presumption of exposure along the Korean DMZ
from April 1, 1968, through August 31, 1971, to September 1, 1967,
through August 31, 1971. See 38 U.S.C. 1116B(a)(2). VA proposes to
amend the start date in 38 CFR 3.814(c)(2) to reflect the date mandated
by the new statute.
VA also proposes replacing the phrase ``biological son or
daughter'' in 38 CFR 3.814(c)(4) with ``natural child'' consistent with
the clerical amendment proposed for 38 CFR 3.114(a).
VII. Proposed Changes to 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
Prior to the BWN Act, if a Veteran mother only had service in the
offshore waters of the Republic of Vietnam and did not go ashore or
serve in the inland waterways, that service did not qualify for
entitlement to a monthly monetary award for any natural children born
with qualifying birth defects. The Act expanded the definition of
``Vietnam Veteran'' to include Veterans who served in the offshore
waters of the Republic of Vietnam. Therefore, VA proposes to amend 38
CFR 3.815 accordingly.
38 CFR 3.815 provides for a monetary allowance under 38 U.S.C. 1812
for individuals with disability due to covered birth defects whose
biological mother is or was a Vietnam Veteran. Covered birth defects
include any birth defect other than familial disorders, birth-related
injuries, or fetal or neonatal infirmity with well-established causes.
All birth defects not excluded under these categories are covered birth
defects. However, if an individual's only birth defect is spina bifida,
their monthly monetary allowance will be paid under the provisions of
38 U.S.C. 1803, 1821, and 1822, which provide a monthly monetary award
for children of certain herbicide agent-exposed Veteran parents who
served in Vietnam, Thailand or near the Korean DMZ.
In accordance with the BWN Act, VA proposes to amend 38 CFR
3.815(c)(1) to align the definition of ``service in the Republic of
Vietnam'' with the definition set forth in the proposed amendment to 38
CFR 3.307(a)(6)(iii).
VIII. Proposed Changes to Sec. 3.105 Revision of Decisions
38 CFR 3.105(g), which describes procedural requirements for
reductions in evaluations under 38 U.S.C. chapter 18 for children of
certain herbicide agent-exposed Veterans, currently only applies to
children of Vietnam Veterans born with spina bifida or children of
Veterans with covered service in Korea born with spina bifida who were
entitled to benefits. Because the BWN Act authorized VA to extend those
benefits under 38 U.S.C. chapter 18 to children of certain Veterans who
served in Thailand born with spina bifida, VA proposes to add these
children to the category of claimants who are covered by the procedural
provisions specified in this regulation. Since natural children of
Veterans with covered service in Thailand are a newly covered type of
claimant, it is necessary to add them as a category of claimants who
are covered by the procedural provisions of 38 CFR 3.105. This ensures
that benefits awarded to these claimants cannot be severed or reduced
until the claimant has been afforded time to present evidence in
support of maintaining their benefits.
Finally, VA proposes a clerical amendment to section 3.105(g) by
replacing the word ``children'' with the phrase ``natural children''
wherever it occurs in the regulation. As is true with the proposed
amendment to 38 CFR 3.114(a), this is a clerical change made to reflect
the statutory definition of ``child'' for purposes of benefits for
children of certain Veterans born with spina bifida. See 38 U.S.C.
1831(1).
IX. Proposed Changes to Sec. 3.816 Awards Under the Nehmer Court
Orders for Disability or Death Caused by a Condition Presumptively
Associated With Herbicide Exposure
VA proposes to codify the current procedural guidance regarding
locating the appropriate survivor(s) of a deceased Nehmer class member
and defining the parameters of ``reasonable efforts'' to identify them.
VA is also codifying its existing policy to pay newly identified
qualifying payees before attempting recoupment from improperly
compensated payees, rather than waiting for recoupment before paying
the newly identified qualifying payees. The intent of this change is to
ensure compliance with the Nehmer consent decree.
Historically, VA has sought to locate payees for potential
retroactive Nehmer benefits by sending letters to all dependents of
record requesting the names, addresses and telephone numbers of all
known survivors. VA will also seek to obtain proof of dependency
documents such as birth certificates, marriages certificates and other
proof of dependency, if necessary.
If payees cannot be identified, VA will make reasonable efforts to
locate payees as the information on file permits. For example, if a
claimant's record identifies an authorized representative or a
relative, it would be reasonable to contact such person to request
information concerning the
[[Page 9809]]
existence of a surviving spouse, child(ren), parent(s) or the executor/
administrator of the class member's estate. It would be unreasonable to
attempt to locate a payee where there is no evidence of record to
suggest that the party would potentially qualify for retroactive
benefits.
If the evidence of record does not contain sufficient information
to identify an eligible Nehmer class beneficiary, a letter will be sent
to the last known address of the Veteran, and VA will wait 30 days for
a response. If an address is unknown, an attempt will be made to
contact the survivor by telephone to obtain their address.
This proposed regulation codifies the procedure for locating Nehmer
payees as follows: Claims processors must review the claims folder for
relevant information and review other VA resources including, but not
limited to, benefit applications, statements from the veteran, medical
records, corporate database and claims processing system notes. If
review of both the claims folder and electronic claims processing
system do not provide beneficiary contact information, claims
processors must contact any known authorized representatives of record
(including those who provided first notice of death and/or funeral/
burial services). Claims processors also must attempt to locate
potential payees using online public record investigation software
authorized by VA. If, after this review, no beneficiary, authorized
representative or next of kin is located, the claims processor will
send (i) a letter to the Veteran's last known address and wait 30 days
for a response and (ii) attempt contact via last known telephonic
contact information. If no response is received at the expiration of 30
days, the claims processor will annotate in the claims folder all
actions taken to identify eligible payees. The claims processor will
then add the claim data to communications with Nehmer class counsel, as
VA is required to provide class counsel with a list of every claim
where eligible survivors cannot be located.
Given the universe of information in the VA benefits system
available to claims processors and the measures VA proposes to identify
eligible beneficiaries and contact individuals who may provide
information about eligible beneficiaries unknown to VA, this procedural
guidance constitutes what VA has determined to be reasonable efforts to
identify all appropriate Nehmer payees. VA does not believe it is
reasonable to pay private search firms or undertake extraordinary
efforts beyond those identified in this regulation to identify
potential payees.
If, following such efforts, VA releases the full amount of unpaid
benefits to a payee or payees, and additional qualifying payees
subsequently identify themselves to VA, VA will pay the newly
identified payee(s) the portion of the award to which they are
entitled, and then attempt to recover the overpayment from the original
payee(s). While this is consistent with VA's current policy, the
revision is necessary in light of the December 2, 2021, amendment to 38
CFR 3.816(f)(3), which was required by the November 10, 2021, court
order in Nehmer v. U.S. Department of Veterans Affairs, No. C86-06160
WHA (N.D. Cal.) vacating the final sentence of section 3.816(f)(3),
directing VA to issue a rule rescinding that sentence and requiring VA
to publish that rule in the Federal Register. See 86 FR 68409 (Dec. 2,
2021). VA is obligated to issue payment to the newly identified
payee(s) regardless of whether it previously disbursed the entirety of
an award to the original payee(s). As noted by the U.S. Court of
Appeals for Veterans Claims in Snyder v. Principi, the prior
disbursement ``in no way impairs [VA's] authority and obligation to pay
from the compensation . . . account the amount that is owed to the
correct beneficiary.'' 15 Vet. App. 285, 292 (2001). This is because
``the amount owed to the correct beneficiary, in fact, remains
undisturbed in the compensation . . . account.'' Id. Nevertheless,
payment to newly identified payees does not relieve VA of its
corresponding obligation to recover the overpayment to the original
payees. See 31 U.S.C. 3711(a)(1) (``The head of an executive, judicial,
or legislative agency . . . shall try to collect a claim of the United
States Government for money or property arising out of the activities
of, or referred to, the agency.''); 38 CFR 1.910(a) (requiring VA to
take ``aggressive collection action . . . to collect all claims for
money or property arising from [VA's] activities''); see also Edwards
v. Peake, 22 Vet. App. 57, 59 (2008) (noting that ``the Secretary
generally is required to recover erroneous VA payments or overpayment
of benefits'').
X. Severability
The purpose of this section is to clarify the agency's intent with
respect to the severability of provisions of this proposed rule. Each
provision that the agency has proposed is capable of operating
independently and the agency intends them to be severable. If any
provision of this rule is determined by judicial review or operation of
law to be invalid, the agency would not intend that partial
invalidation to render the remainder of this rule invalid. Likewise, if
the application of any portion of this proposed rule to a particular
circumstance were determined to be invalid, the agencies would intend
that the rule as proposed remain applicable to all other circumstances.
Executive Orders 12866, 13563 and 14094
Executive Order (E.O.) 12866 (Regulatory Planning and Review)
directs agencies to assess the 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 effects, and other
advantages; distributive impacts; and equity). E.O. 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. E.O. 14094 (E.O. on Modernizing Regulatory
Review) supplements and reaffirms the principles, structures, and
definitions governing contemporary regulatory review established in
E.O. 12866 of September 30, 1993 (Regulatory Planning and Review), and
E.O. 13563 of January 18, 2011 (Improving Regulation and Regulatory
Review). The Office of Information and Regulatory Affairs has
determined that this rulemaking is a significant regulatory action
under E.O. 12866, Section 3(f)(1), as amended by E.O. 14094. The
Regulatory Impact Analysis associated with this rulemaking can be found
as a supporting document at www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would 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). The factual basis for this certification is that no
small entities or businesses provide Federal compensation or pension
benefits to Veterans, and such entities or businesses therefore would
be unaffected by the proposed rule. Therefore, pursuant to 5 U.S.C.
605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
[[Page 9810]]
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 one year. This proposed rule would have no such
effect on state, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Healthcare, Pensions, Radioactive materials, Veterans, Vietnam.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on January 9, 2024, and authorized the undersigned to
sign and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, VA proposes to amend 38 CFR
part 3 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Amend Sec. 3.105 by revising paragraph (g) to read as follows:
Sec. 3.105 Revision of decisions.
* * * * *
(g) Reduction in evaluation--monetary allowance under 38 U.S.C.
chapter 18 for certain individuals who are natural children of Vietnam
Veterans or natural children of Veterans with covered service in Korea
or Thailand. Where a reduction or discontinuance of a monetary
allowance currently being paid under 38 U.S.C. chapter 18 is considered
warranted, VA will notify the beneficiary at his or her latest address
of record of the proposed reduction, furnish detailed reasons
therefore, and allow the beneficiary 60 days to present additional
evidence to show that the monetary allowance should be continued at the
present level. Unless otherwise provided in paragraph (i) of this
section, if VA does not receive additional evidence within that period,
it will take final rating action and reduce the award effective the
last day of the month following 60 days from the date of notice to the
beneficiary of the proposed reduction.
* * * * *
0
3. Amend Sec. 3.114 by:
0
a. Revising paragraph (a) introductory text;
0
b. Removing the authority citation immediately preceding paragraph (b);
and
0
c. Revising the authority citation immediately following paragraph (b).
The revisions read as follows:
Sec. 3.114 Change of law or Department of Veterans Affairs issue.
(a) Effective date of award. Where pension, compensation,
dependency and indemnity compensation, or a monetary allowance under 38
U.S.C. chapter 18 for an individual who is a natural child of a Vietnam
Veteran or natural child of a Veteran with covered service in Korea or
Thailand is awarded or increased pursuant to a liberalizing law, or a
liberalizing VA issue approved by the Secretary or by the Secretary's
direction, the effective date of such award or increase shall be fixed
in accordance with the facts found, but shall not be earlier than the
effective date of the act or administrative issue. Where pension,
compensation, dependency and indemnity compensation, or a monetary
allowance under 38 U.S.C. chapter 18 for an individual who is a natural
child of a Vietnam Veteran or natural child of a Veteran with covered
service in Korea or Thailand is awarded or increased pursuant to a
liberalizing law or VA issue which became effective on or after the
date of its enactment or issuance, in order for a claimant to be
eligible for a retroactive payment under the provisions of this
paragraph the evidence must show that the claimant met all eligibility
criteria for the liberalized benefit on the effective date of the
liberalizing law or VA issue and that such eligibility existed
continuously from that date to the date of claim or administrative
determination of entitlement. The provisions of this paragraph are
applicable to original and supplemental claims as well as claims for
increase.
* * * * *
(b) * * *
(Authority: 38 U.S.C. 1805, 1815, 1821, 1822, 1831, 1832, 5110(g))
0
4. Amend Sec. 3.307 by revising paragraphs (a)(6) introductory text,
(a)(6)(iii) through (v), and adding paragraphs (a)(6)(vi) through (xi)
to read as follows:
Sec. 3.307 Presumptive service connection for chronic, tropical, or
prisoner-of-war related disease, disease associated with exposure to
certain herbicide agents, or disease associated with exposure to
contaminants in the water supply at Camp Lejeune; wartime and service
on or after January 1, 1947.
(a) * * *
(6) Presumption of exposure to certain herbicide agents. (i) For
the purposes of this section, the term ``herbicide agent'' means a
chemical in an herbicide used in support of the United States and
allied military operations in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975, specifically:
2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.
* * * * *
(iii) Service in the Republic of Vietnam. 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, unless there is affirmative evidence to
establish that the Veteran was not exposed to any such agent during
that service. The last date on which such a Veteran shall be presumed
to have been exposed to an herbicide agent shall be the last date on
which he or she served in the Republic of Vietnam during the period
beginning on January 9, 1962 and ending on May 7, 1975. Service in the
Republic of Vietnam includes service in the offshore waters of the
Republic of Vietnam. Service in the offshore waters of the Republic of
Vietnam is defined as service in waters at any location not more than
12 nautical miles seaward of a line commencing on the southwestern
demarcation line of the waters of Vietnam and Cambodia. This line would
encompass Phu Quoc island, terminating at the mid-point of the Ben Hai
River, and intersecting the following points:
[[Page 9811]]
------------------------------------------------------------------------
Points geographic names Latitude north Longitude east
------------------------------------------------------------------------
At Phu Quoc Extension Point A..... 10[deg]14'51.16'' 104[deg]12'54.69'
'
At Phu Quoc Extension Point B..... 10[deg]23'55.92'' 104[deg]
7'56.91''
At Phu Quoc Extension Point C..... 10[deg]30'12.70'' 103[deg]59'19.11'
'
At Phu Quoc Extension Point D..... 9[deg]43'18.90'' 102[deg]46'28.56'
'
At Phu Quoc Extension Point E..... 9[deg]11'34.58'' 103[deg]14'38.50'
'
At Hon Nhan Island, Tho Chu 9[deg]15.0' 103[deg]27.0'
Archipelago Kien Giang Province..
At Hon Da Island southeast of Hon 8[deg]22.8' 104[deg]52.4'
Khoai Island Minh Hai Province...
At Tai Lon Islet, Con Dao Islet in 8[deg]37.8' 106[deg]37.5'
Con Dao-Vung Toa Special Sector..
At Bong Lai Islet, Con Dao Islet.. 8[deg]38.9' 106[deg]40.3'
At Bay Canh Islet, Con Dao Islet.. 8[deg]39.7' 106[deg]42.1'
At Hon Hai Islet (Phu Qui group of 9[deg]58.0' 109[deg]5.0'
islands) Thuan Hai Province......
At Hon Doi Islet, Thuan Hai 12[deg]39.0' 109[deg]28.0'
Province.........................
At Dai Lanh point, Phu Khanh 12[deg]53.8' 109[deg]27.2'
Province.........................
At Ong Can Islet, Phu Khanh 13[deg]54.0' 109[deg]21.0'
Province.........................
At Ly Son Islet, Nghia Binh 15[deg]23.1' 109[deg] 9.0'
Province.........................
At Con Co Island, Binh Tri Thien 17[deg]10.0' 107[deg]20.6'
Province.........................
------------------------------------------------------------------------
(iv) Service in or near the Korean Demilitarized Zone (DMZ). A
Veteran who, during active military, naval, or air service, served
between September 1, 1967, and August 31, 1971, in a unit that, as
determined by DoD, operated in or near the Korean DMZ in an area in
which certain herbicide agents are known to have been applied during
that period, shall be presumed to have been exposed during such service
to an herbicide agent, unless there is affirmative evidence to
establish that the Veteran was not exposed to any such agent during
that service. See also 38 CFR 3.814(c)(2).
(v) Service operating, maintaining, or serving aboard C-123
aircraft. An individual who performed service in the Air Force or Air
Force Reserve under circumstances in which the individual concerned
regularly and repeatedly operated, maintained, or served onboard C-123
aircraft known to have been used to spray an herbicide agent during the
Vietnam era shall be presumed to have been exposed during such service
to an herbicide agent. For purposes of this paragraph, ``regularly and
repeatedly operated, maintained, or served onboard C-123 aircraft''
means that the individual was assigned to an Air Force or Air Force
Reserve squadron when the squadron was permanently assigned one of the
affected aircraft and the individual had an Air Force Specialty Code
indicating duties as a flight, ground maintenance, or medical crew
member on such aircraft. Such exposure constitutes an injury under 38
U.S.C. 101(24)(B) and (C). If an individual described in this paragraph
develops a disease listed in 38 CFR 3.309(e) as specified in paragraph
(a)(6)(ii) of this section, it will be presumed that the individual
concerned became disabled during that service for purposes of
establishing that the individual served in the active military, naval,
or air service.
(vi) Service in Thailand. A veteran who, during active military,
naval, or air service, served in Thailand at any United States or Royal
Thai base during the period beginning on January 9, 1962, and ending on
June 30, 1976, without regard to where on the base the Veteran was
located or what military job specialty the Veteran performed, shall be
presumed to have been exposed during such service to an herbicide
agent, unless there is affirmative evidence to establish that the
Veteran was not exposed to any such agent during that service. Service
at any United States or Royal Thai base includes service aboard a ship
that called to a coastal base in Thailand.
(vii) Service in Laos. A veteran who, during active military,
naval, or air service, served in Laos during the period beginning on
December 1, 1965, and ending on September 30, 1969, shall be presumed
to have been exposed during such service to an herbicide agent, unless
there is affirmative evidence to establish that the Veteran was not
exposed to any such agent during that serviche.
(viii) Service in Cambodia. A veteran who, during active military,
naval, or air service, served in Cambodia at Mimot or Krek, Kampong
Cham Province during the period beginning on April 16, 1969, and ending
on April 30, 1969, shall be presumed to have been exposed during such
service to an herbicide agent, unless there is affirmative evidence to
establish that the Veteran was not exposed to any such agent during
that service.
(ix) Service in Guam or American Samoa. A Veteran who, during
active military, naval, or air service, served in Guam or American
Samoa, or in the territorial waters thereof, during the period
beginning on January 9, 1962, and ending on July 31, 1980, shall be
presumed to have been exposed during such service to an herbicide
agent, unless there is affirmative evidence to establish that the
Veteran was not exposed to any such agent during that service.
(x) Service on Johnston Atoll. A Veteran who, during active
military, naval, or air service, served on Johnston Atoll or served on
a ship when it called at Johnston Atoll during the period beginning on
January 1, 1972, and ending on September 30, 1977, shall be presumed to
have been exposed during such service to an herbicide agent, unless
there is affirmative evidence to establish that the Veteran was not
exposed to any such agent during that service.
(xi) Service in locations recognized by the Department of Defense.
A veteran who does not meet the requirements of paragraphs (a)(6)(iii)-
(x) of this section, and whose circumstances of service reasonably
would have placed the Veteran at a site of certain herbicide agent
testing, use, or storage on a date of certain herbicide agent testing,
use, or storage, shall be presumed to have been exposed to an herbicide
agent during such service, unless there is affirmative evidence to
establish that the Veteran was not exposed to any such agent during
that service. The DoD List of Locations Where Tactical Herbicides and
Their Chemical Components Were Tested, Used, or Stored Outside of
Vietnam, published on VA's website, is the authoritative source
regarding where and when certain herbicide agents were tested, used or
stored for purposes of this paragraph, and can be found at: https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp. VA will publish changes to this list in the Notices section
of the Federal Register.
* * * * *
0
5. Amend Sec. 3.309 by revising paragraph (e) to read as follows:
[[Page 9812]]
Sec. 3.309 Disease subject to presumptive service connection.
* * * * *
(e) Disease associated with exposure to certain herbicide agents.
If a Veteran was exposed to an herbicide agent during active military,
naval, or air service, the following diseases shall be service
connected if the requirements of Sec. 3.307(a)(6) are met even though
there is no record of such disease during service, provided further
that the rebuttable presumption provisions of Sec. 3.307(d) are also
satisfied.
AL amyloidosis
Chloracne or other acneform disease consistent with chloracne.
Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset
diabetes),
Hodgkin's disease
Ischemic heart disease (including, but not limited to, acute, subacute,
and old myocardial infarction; atherosclerotic cardiovascular disease
including coronary artery disease (including coronary spasm) and
coronary bypass surgery; and stable, unstable and Prinzmetal's angina)
All chronic B-cell leukemias (including, but not limited to, hairy-cell
leukemia and chronic lymphocytic leukemia)
Multiple myeloma
Non-Hodgkin's lymphoma
Parkinson's disease
Early-onset peripheral neuropathy
Porphyria cutanea tarda
Prostate cancer
Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)
Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma)
Bladder cancer
Parkinsonism (including, but not limited to, the following Parkinson-
plus syndromes (also referred to as ``atypical Parkinsonism''):
progressive supranuclear palsy (PSP), multiple system atrophy (MSA)
(also referred to as Shy-Drager syndrome), corticobasal degeneration
(CBD), vascular Parkinsonism, and dementia with Lewy bodies (DLB))
Hypothyroidism
Hypertension
Monoclonal gammopathy of undetermined significance (MGUS)
Note 1: The term ``soft-tissue sarcoma'' includes the following:
Adult fibrosarcoma
Dermatofibrosarcoma protuberans
Malignant fibrous histiocytoma
Liposarcoma
Leiomyosarcoma
Epithelioid leiomyosarcoma (malignant leiomyoblastoma)
Rhabdomyosarcoma
Ectomesenchymoma
Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)
Proliferating (systemic) angioendotheliomatosis
Malignant glomus tumor
Malignant hemangiopericytoma
Synovial sarcoma (malignant synovioma)
Malignant giant cell tumor of tendon sheath
Malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant Triton tumor), glandular
and epithelioid malignant schwannomas
Malignant mesenchymoma
Malignant granular cell tumor
Alveolar soft part sarcoma
Epithelioid sarcoma
Clear cell sarcoma of tendons and aponeuroses
Extraskeletal Ewing's sarcoma
Congenital and infantile fibrosarcoma
Malignant ganglioneuroma
Note 2: For purposes of this section, the term ischemic heart
disease does not include hypertension or peripheral manifestations
of arteriosclerosis such as peripheral vascular disease or stroke,
or any other condition that does not qualify within the generally
accepted medical definition of Ischemic heart disease.
Note 3: Drug-induced Parkinsonism is not recognized as a disease
associated with exposure to certain herbicide agents.
* * * * *
0
6. Revise Sec. 3.313 to read as follows:
Sec. 3.313 Claims based on service in the Republic of Vietnam.
(a) Service in the Republic of Vietnam. Service in the Republic of
Vietnam includes service in the offshore waters of the Republic of
Vietnam as defined in 38 CFR 3.307(a)(6)(iii). Service in other
locations will constitute service in the Republic of Vietnam if the
conditions of service involved duty or visitation in the Republic of
Vietnam.
(b) Service connection based on service in the Republic of Vietnam.
Service in the Republic of Vietnam during the Vietnam Era together with
the development of non-Hodgkin's lymphoma manifested subsequent to such
service is sufficient to establish service connection for that disease.
0
7. Amend Sec. 3.814 by revising the section heading, paragraph (c),
and the authority citation at the end of the section 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 or a Veteran with covered service in
Korea or Thailand.
* * * * *
(c) Definitions--(1) Vietnam veteran. For the purposes of this
section, the term ``Vietnam Veteran'' means a person who performed
active military, naval, or air service in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on May 7,
1975, without regard to the characterization of the person's service.
Service in the Republic of Vietnam includes service in the offshore
waters of the Republic of Vietnam as defined in 38 CFR
3.307(a)(6)(iii). Service in other locations will constitute service in
the Republic of Vietnam if the conditions of service involved duty or
visitation in the Republic of Vietnam.
(2) Covered service in Korea. For the purposes of this section, the
term ``Veteran with covered service in Korea'' means a person who
served in the active military, naval, or air service in or near the
Korean DMZ between September 1, 1967, and August 31, 1971, and who is
determined by VA, in consultation with the DoD, to have been exposed to
an herbicide agent during such service. Exposure to an herbicide agent
will be conceded if the Veteran served between September 1, 1967, and
August 31, 1971, in a unit that, as determined by the Department of
Defense, operated in or near the Korean DMZ in an area in which certain
herbicide agents are known to have been applied during that period,
unless there is affirmative evidence to establish that the Veteran was
not exposed to any such agent during that service.
(3) Covered service in Thailand. For the purposes of this section,
the term ``covered service in Thailand'' means service in Thailand at
any United States or Royal Thai base during the period beginning on
January 9, 1962, and ending on May 7, 1975, without regard to where on
the base the Veteran was located or what military job specialty the
Veteran performed.
(4) Individual. For the purposes of this section, the term
``individual'' means a person, regardless of age or marital status,
whose biological father or mother is or was a Vietnam Veteran and who
was conceived after the date on which the veteran first served in the
Republic of Vietnam during the Vietnam Era, or whose biological father
or mother is or was a Veteran with covered service in Korea or Thailand
and who was conceived after the date on which the Veteran first had
covered service in
[[Page 9813]]
Korea or Thailand as defined in this section. Notwithstanding the
provisions of Sec. 3.204(a)(1), VA will require the types of evidence
specified in Sec. Sec. 3.209 and 3.210 sufficient to establish in the
judgment of the Secretary that a person is the natural child of a
Vietnam Veteran or a Veteran with covered service in Korea or Thailand.
(5) Spina bifida. For the purposes of this section, the term
``spina bifida'' means any form and manifestation of spina bifida
except spina bifida occulta.
* * * * *
(Authority: 38 U.S.C. 501, 1116A, 1116B, 1805, 1811, 1812, 1821,
1822, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112)
0
8. Amend Sec. 3.815 by revising paragraph (c)(1) and the authority
citation at the end of the section 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) Vietnam Veteran. For the purposes of this section, the term
Vietnam veteran means a person who performed active military, naval, or
air service in the Republic of Vietnam during the period beginning on
February 28, 1961, and ending on May 7, 1975, without regard to the
characterization of the person's service. Service in the Republic of
Vietnam includes service in the waters offshore of the Republic of
Vietnam, as defined in 38 CFR 3.307(a)(6)(iii). Service in other
locations will constitute service in the Republic of Vietnam if the
conditions of service involved duty or visitation in the Republic of
Vietnam.
* * * * *
(Authority: 38 U.S.C. 501, 1116A, 1811, 1812, 1813, 1814, 1815,
1816, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112)
0
9. Amend Sec. 3.816 by revising paragraph (f)(3) and the authority
citation at the end of the section to read as follows:
Sec. 3.816 Awards under the Nehmer Court Orders for disability or
death caused by a condition presumptively associated with herbicide
exposure.
* * * * *
(f) * * *
(3) Identifying payees. VA shall make reasonable efforts to
identify the appropriate payee(s) under paragraph (f)(1) of this
section. For the purposes of this section, reasonable efforts to locate
a Nehmer payee are limited to the following:
(i) Claims processors must review the claims folder for beneficiary
contact information. Documents in the claims folder that might contain
this contact information can include but are not limited to:
(A) benefit applications;
(B) statements from the Veteran; and
(C) medical records
(ii) Claims processors must review electronic claims processing
systems for potential beneficiary contact information, including:
(A) corporate database review, and
(B) claims processing system notes review
(iii) Claims processors must utilize online public record
investigation software authorized by VA to locate potential beneficiary
contact information.
(iv) If review of both the claims folder and electronic claims
processing systems do not provide contact information, VA will attempt
to contact any known or applicable authorized representatives of
record, next of kin, individuals who provided first notice of death,
the executor/administrator of the class member's estate, or funeral
homes that provided funeral/burial services, if that information is
available.
(v) If no beneficiary, authorized representative, next of kin,
individuals who provided first notice of death, executor/administrator
of the class member's estate, or funeral home that provided funeral/
burial services is located in the review above, then claims processors
must:
(A) Send a letter to the last known address of the veteran and wait
30 days for a response, and
(B) Attempt contact via the Veteran's last known telephonic contact
information found in the Veteran's file.
(vi) If, following such efforts, VA releases the full amount of
unpaid benefits to a payee, and additional qualifying payees
subsequently identify themselves to VA, VA will pay the newly
identified payees the portion of the award to which they are entitled,
and then attempt to recover the overpayment from the original payee(s).
* * * * *
(Authority: 38 U.S.C. 501)
[FR Doc. 2024-02590 Filed 2-9-24; 8:45 am]
BILLING CODE 8320-01-P