VA Adjudication Regulations for Disability or Death Benefit Claims Based on Toxic Exposure

DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 3</CFR> <RIN>RIN 2900-AR75</RIN> <SUBJECT>VA Adjudication Regulations for Disability or Death Benefit Claims Based on Toxic Exposure</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) is proposing to amend its adjudication regulations to implement provisions of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act or Act). The statute amended procedures applicable to claims based on toxic exposure and modified or established presumptions of service connection related to toxic exposure. Pursuant to the Act, VA is proposing to remove the manifestation period requirement and the minimum compensable evaluation requirement from Persian Gulf War claims based on undiagnosed illness and medically unexplained chronic multisymptom illnesses. VA is also proposing to expand the definition of a Persian Gulf veteran; update the list of locations eligible for a presumption of exposure to toxic substances, chemicals, or airborne hazards based on service during the Persian Gulf War; and add presumptions of service connection for 23 diseases associated with exposure to toxins. To implement additional provisions of the Act, VA is also proposing to codify the procedure for determining when medical examinations and nexus opinions are required for claims that cannot be considered on a presumptive basis and the evidence establishes participation in a toxic exposure risk activity (TERA). Additional provisions of the PACT Act will be addressed in separate, future rulemakings. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before December 2, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Comments must be submitted through <E T="03">www.regulations.gov.</E> Except as provided below, comments received before the close of the comment period will be available at <E T="03">www.regulations.gov</E> 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 <E T="03">www.regulations.gov</E> as soon as possible after they have been received. VA will not post on <E T="03">Regulations.gov</E> 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. 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 plain language summary (not more than 100 words in length) of this proposed rule is available at <E T="03">www.regulations.gov,</E> under RIN 2900-AR75. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Sara Cohen, Lead Analyst, Regulations Staff (211C); 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.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background and Statutory Authority</HD> The PACT Act expanded eligibility for health care and disability compensation benefits for veterans who were exposed to toxic substances during military service. The law established a presumption that veterans were exposed to certain substances, chemicals, and airborne hazards if they served in various specified locations during certain time frames. The law created a statutory framework for VA to provide medical examinations in order to obtain nexus opinions when a veteran submits a claim for compensation for a non-presumptive condition with evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) in service. The law also expanded the definition of “Persian Gulf veteran” under 38 U.S.C. 1117 to include six new locations, allowing veterans with service in those locations during the relevant time period to qualify for presumptions of service connection based on disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI). The PACT Act also created new 38 U.S.C. 1119, Presumptions of toxic exposure, which established a presumption of specific toxic exposures for certain covered veterans. The Act also created new 38 U.S.C. 1120, which established presumptions of service connection for 23 diseases that are associated with exposure to burn pits and other toxins. Although that section originally contained 24 diseases, lymphomatic cancer of any type was later removed as a technical amendment by Public Law 117-623, as the term “lymphomatic cancer” is not recognized by the medical and scientific community. However, lymphoma cancer of any type remains a covered disease presumptive to exposure to burn pits and other toxins under 38 U.S.C. 1120. The presumption of service connection under 38 U.S.C. 1120 applies to “covered veterans” under 38 U.S.C. 1119. <HD SOURCE="HD1">II. Proposed Changes to § 3.1 Definitions</HD> VA is proposing to implement several portions of the PACT Act by adding new definitions to 38 CFR 3.1. VA is proposing to add the statutory definition of “toxic exposure risk activity” to 38 CFR 3.1, in new paragraph (bb). Section 303 of the PACT Act established 38 U.S.C. 1168, which governs medical nexus examinations based on TERA. 38 U.S.C. 1168(a) provides that if a veteran submits a claim for service-connected compensation with evidence of a disability and evidence of participation in a TERA during active military, naval, air, or space service, and such evidence is not sufficient to establish service connection for the disability, VA will provide the veteran with a medical examination and obtain a medical nexus opinion as to whether it is at least as likely as not that there is a nexus between the disability and the TERA. 38 U.S.C. 1168(c) states that “the term “toxic exposure risk activity” has the meaning given that term in section 1710(e)(4) of this title.” 38 U.S.C. 1710(e)(4) defines a “toxic exposure risk activity” as “any activity that requires a corresponding entry in an exposure tracking record system (as defined in section 1119(c) of this title) for the veteran who carried out the activity; or that the Secretary determines qualifies for purposes of this subsection when taking into account what is reasonably prudent to protect the health of veterans.” VA has determined that if a veteran's military service qualifies for a presumption of exposure, VA must concede participation in a TERA. Locations with a presumption of exposure include any recognized radiation risk activity locations (38 U.S.C. 1112 and 38 CFR 3.309(d)(3)(ii)); locations associated with herbicide exposure (38 U.S.C. 1116); the Persian Gulf (38 U.S.C. 1117); locations associated with exposure to burn pits (38 U.S.C. 1119); and at Camp LeJeune (38 CFR 3.307(a)(7)). If a veteran served in a location that qualifies for a presumption of exposure and submits a claim for a non-presumptive condition with evidence of a disability, a disability examination and medical opinion based on TERA must be requested, unless an exception under 38 U.S.C. 1168(b), as described below in section III, applies. As required by the PACT Act, if an entry in an exposure tracking record system reflects an activity carried out by the veteran while on active duty, then the veteran will be considered to have participated in a TERA (38 U.S.C. 1710(e)(4)(C)). VA generally proposes to recognize participation in a TERA based on any entry in an exposure tracking record system ( <E T="03">e.g.,</E> the Individual Longitudinal Exposure Record (ILER)). However, there are circumstances where an ILER entry may show only a claimant's name and contain no deployment information nor show any potential toxic exposure. For an entry in an exposure tracking record system to constitute participation in a TERA, based on the statutory definition of such term (38 U.S.C. 1710(e)(4)(C)), the entry must correspond to an activity performed by the veteran. Because name-only entries do not contain any evidence of an activity performed by the veteran, VA proposes that these entries will not constitute participation in a TERA, as name-only entries do not fall under the statutory definition of TERA. VA also proposes that records in an exposure tracking record system from contractor or civilian service periods should not be accepted as participation in a TERA. For example, ILER records contain different component categories. These components include mixed deployment histories to include periods of Active Duty, Reserves, National Guard, civilian time, and contractor work. An examination and TERA medical opinion are required under 38 U.S.C. 1168(a) when there is evidence of a disability and evidence of participation in a TERA during active military, naval, air, or space service. Because contractor or civilian service periods are not considered active military service, deployments as a civilian or contractor listed in an exposure tracking record system should not be used to concede participation in a TERA for the purpose of triggering the examination requirements under 38 U.S.C. 1168(a). VA also proposes to amend 38 CFR 3.1 by adding new paragraph (cc) defining the term “exposure tracking record system.” The term would be defined as in section 302 of the PACT Act, to ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 102k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━