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Updated Dec 04, 2023

In This Section

  
This section contains the following topics:
 
Topic
Topic Name
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2
3
4
5
6
 

 

1.  Processing of Herbicide Claims

 

Introduction

  

Change Date

  
December 4, 2023

VIII.i.1.A.1.a.  Overview of Policy Changes Based on PL 116-23

  
Effective January 1, 2020, Public Law (PL) 116-23, the Blue Water Navy Vietnam Veterans Act of 2019, created 38 U.S.C. 1116A, which extended the presumption of herbicide exposure to Veterans with service during the specified time range in the qualifying offshore waters of the Republic of Vietnam (RVN).
 
Notes: 
  • Concessions of qualifying RVN nautical service are centralized.
  • For supplemental claims involving a new or modified herbicide exposure presumption, review the claim as if the requirements of 38 CFR 3.2501(a)(1) had been satisfied.  The change in law obviates the new and relevant evidence requirement for the purpose of considering a supplemental claim complete.  Develop as required to satisfy the duty to assist and issue a merit-based decision.
References:  For more information on

VIII.i.1.A.1.b.  Overview of Policy Changes Based on PL 117-168

  
Effective August 10, 2022, Public Law (PL) 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022 included the following provisions for herbicide exposure:
  • Expanded presumptive herbicide exposure to additional locations as listed in 38 U.S.C. 1116.
  • Presumption of service connection (SC) for hypertension and monoclonal gammopathy of undetermined significance.
  • Allows for a reevaluation under new statute, upon election by the claimant, of Dependency and Indemnity Compensation claims that were previously evaluated and denied by the Department of Veterans Affairs (VA).
Note:  For supplemental claims involving a new or modified herbicide exposure presumption, review the claim as if the requirements of 38 CFR 3.2501(a)(1) had been satisfied.  The change in law obviates the new and relevant evidence requirement for the purpose of considering a supplemental claim complete.  Provide duty to assist and issue a merit-based decision.
 
Reference:  For more information on processing of herbicide claims under the PACT Act, see the PACT Act Implementation SOP.

VIII.i.1.A.1.c.  Claims Requiring Centralized Processing for Research of Herbicide Exposure

  
Under PACT Act implementation effective August 10, 2022, the centralized processing model of herbicide claims is as follows:
  • development, research, and documentation of herbicide exposure in all land-based locations is conducted by any regional office (RO)
  • development, research, and documentation of herbicide exposure in RVN nautical locations or nautical-based service in the new PACT Act locations is the sole responsibility of the centralized processing sites; however, only certain claims will require this step, as described below, and
  • ROs will screen claims for hypothyroidism, bladder cancer, and parkinsonism for potential Nehmer stipulation applicability and only route certain claims to a centralized processing site, when required as described below.
The table below represents the claim types which require centralized processing for concessions of herbicide exposure.
 
If there is …
Then concession of exposure is …
  • in-country service at any recognized location, and
  • none of the below apply
not centralized.
  • no qualifying in-country service, and
  • an explicit or implicit claim of RVN-based nautical service as described in the PACT Act Implementation SOP content titled, Evidence of Nautical Service
centralized.
  • no qualifying in-country service, and
  • an explicit or implicit claim of nautical service as described in the PACT Act Implementation SOP content titled, Evidence of Nautical Service, in one of the following locations
    • American Samoa
    • Guam
    • Thailand, or
    • Johnston Atoll
centralized.
  • a previously denied claim based on no qualifying service, and
  • an explicit or implicit claim of RVN-based nautical service as described in the PACT Act Implementation SOP content titled, Evidence of Nautical Service
Important:  This applies even in cases where there is evidence of qualifying land-based service in any of the recognized herbicide locations.
centralized.
 
References:  For more information on

VIII.i.1.A.1.d.  RO Processing of Herbicide Claims

  
When processing claims for presumptive herbicide exposure, ROs must follow the herbicide claim processing steps outlined in the PACT Act Implementation SOP content titled, Herbicide Exposure Development Procedures.
 
Notes:
  • ROs are not authorized to establish if a Veteran’s service qualifies for herbicide exposure in a nautical location.  This function is the sole responsibility of the centralized processing teams.
  • Not all claims involving nautical service require centralized processing.  Follow the guidelines in M21-1, Part VIII, Subpart i, 1.A.1.c to determine if the claim requires centralized processing for the concession of qualifying nautical service.

VIII.i.1.A.1.e.  Development Responsibilities for Centralized Processing Teams

  
For the claims described in M21-1, Part VIII, Subpart i, 1.A.1.c, the centralized processing teams are responsible for the following claim development steps:
  • researching military records and Veterans Benefits Administration (VBA)-approved sites
  • using VBA-approved tools
  • documenting the evidence-based determination for the Veteran’s category(ies) of nautical service
  • sending subsequent development letters to Veterans or survivors
  • requesting examinations or medical opinions and any other relevant records, and
  • referring claims, when appropriate, to the Records Research Team. 
Notes: 
  • The centralized processing team’s evidence-based determination will be formally documented, uploaded to the Veteran’s electronic claims folder, and is binding on all ROs. 
  • The centralized processing teams will be responsible for all adjudication activities involved in processing nautical herbicide contentions, as well as all other concurrently pending issues.

VIII.i.1.A.1.f.  Requesting Federal Records of Service

  
Prior to sending claims for centralized processing, or in all cases before deciding the Veteran was not in a qualifying location, ensure that all military records, to include service treatment records (STRs) and the entire official military personnel file (OMPF) are of record.
 
Follow procedures in M21-1, Part III, Subpart ii, 2.A.4 to obtain STRs and the OMPF, when needed.
 
Important:  A claim may not be denied solely because service in a qualifying location cannot be verified until the records have been received, or a formal response has been received indicating the records are unavailable.
 
References:  For more information on

VIII.i.1.A.1.g.  Action to Take When the Claimed Disability Is Not Recognized Under 38 CFR 3.309(e)

  
The Agent Orange Act of 1991, PL 102-4, established a presumption of SC for Veterans with service in the RVN during the Vietnam era who subsequently develop specific diseases to a degree of 10 percent or more.
 
In herbicide-related claims, if the claimed disability is not recognized as a presumptive condition under 38 CFR 3.309(e), then the claim must be processed in accordance with the procedures outlined for Toxic Risk Exposure Activity (TERA) under the PACT Act.
 
References:  For more information on

VIII.i.1.A.1.h.  Action to Take When the Veteran Claims Herbicide Exposure but Does Not Claim a Disability

  
A claim is not substantially complete if a Veteran alleges exposure to herbicides during service but does not claim SC for a specific disability.  In cases such as these, follow the procedures for handling an incomplete application at M21-1, Part II, Subpart iii, 1.C.2.b.
 
Reference:  For more information on what constitutes a substantially complete application for benefits, see

 
 

2.  Developing Claims Based on Exposure to Agent Orange for Select Air Force Personnel Through Contact With Contaminated C-123 Aircraft Used in the RVN as Part of ORH

 

Change Date

  
December 4, 2023

VIII.i.1.A.2.a.  RO Procedure for Claims Based on Exposure to Agent Orange Through Contaminated C-123 Aircraft as Part of ORH

  
The St. Paul RO generally has jurisdiction of all claims for service-connected (SC) disability or death associated with Agent Orange exposure through regular and repeated duties flying on, or maintaining, contaminated former Operation Ranch Hand (ORH) C-123 aircraft, which were used to spray Agent Orange in Vietnam.  The St. Paul RO will be responsible to address all outstanding issues claimed.
 
Exception:  For jurisdiction of claims from residents of foreign countries, see M21-1, Part II, Subpart ii, 3.1.
 
The steps in the table below must be followed when a claim based on regular and repeated contact with contaminated C-123 aircraft is received at an RO.
 
Step
Action
1
Review the claim for Agent Orange and/or C-123 annotation. 
2
Establish the proper end product and add the C-123 corporate flash.
3
Attach the C-123 special issue contention for each of the presumptive herbicide disabilities claimed.
 
Note:  Application of the C-123 special issue triggers assignment of the claim for centralized processing in the National Work Queue (NWQ).
 
Reference:  For more information on processing claims based on contaminated C-123 aircraft, see the C-123 Aircraft Agent Orange Exposure website.

 

3.  Developing Claims Based on Herbicide Exposure on the Korean DMZ

 

Introduction

  

This topic contains information on developing claims based on herbicide exposure in the Korean DMZ, including

Change Date

  
January 21, 2022

VIII.i.1.A.3.a. Requirements for Presumptive SC Based on Herbicide Exposure in the Korean DMZ

  
Under 38 U.S.C. 1116B, extend the presumption of herbicide exposure to any Veteran who served
  • in a unit determined by VA or the Department of Defense (DoD) to have operated in the Korean demilitarized zone (DMZ), and
  • between September 1, 1967, and August 31, 1971.

VIII.i.1.A.3.b.  Overview of Historical Korean DMZ Herbicide Policies

  
The table below represents time periods during which VA had specific policies in place regarding concession of herbicide exposure based on Korean DMZ service.
 
Guidance Time Period
Exposure Policy
Prior to February 24, 2011
VA conceded exposure to herbicides on a direct, facts-found basis for Veterans who served between April 1968 and July 1969 in units or other military entities that DoD identified as operating in the Korean DMZ.
Effective February 24, 2011
Under 38 CFR 3.307(a)(6)(iv), VA created a presumption of exposure to herbicides for Veterans who served between April 1, 1968, and August 31, 1971, in units or other military entities that DoD identified as operating in the Korean DMZ.
Effective January 1, 2020, under PL 116-23
The date range of recognized presumptive exposure to herbicides was extended between September 1, 1967, and August 31, 1971, for Veterans who served in units or other military entities that DoD identified as operating in the Korean DMZ.
 

VIII.i.1.A.3.c.  Units or Other Military Entities Identified by DoD as Operating in the Korean DMZ During the Qualifying Time Period 

  
The table below shows the units or other military entities that DoD has identified as operating in the Korean DMZ during the qualifying time period of September 1, 1967, to August 31, 1971.
 

Major Command Assignment
Unit/Military Entity
  • Combat Brigade of the 2nd Infantry Division, or
  • 3rd Brigade of the 7th Infantry Division 
Note:  Although the units are listed as subunits of either the 2nd or 7th Infantry Divisions, they generally operated independently and may have been attached to either infantry division.
  • 1st Battalion, 12th Artillery
  • 1st Battalion, 15th Artillery
  • 1st Battalion, 9th Infantry
  • 1st Battalion, 17th Infantry
  • 1st Battalion, 23rd Infantry
  • 1st Battalion, 31st Infantry
  • 1st Battalion, 32nd Infantry
  • 1st Battalion, 38th Infantry
  • 1st Battalion, 72nd Armor
  • 1st Battalion, 73rd Armor
  • 2nd Battalion, 9th Infantry
  • 2nd Battalion, 17th Infantry
  • 2nd Battalion, 23rd Infantry
  • 2nd Battalion, 31st Infantry
  • 2nd Battalion, 32nd Infantry
  • 2nd Battalion, 38th Infantry
  • 2nd Battalion, 72nd Armor
  • 2nd Squadron, 10th Cavalry
  • 3rd Battalion, 23rd Infantry
  • 3rd Battalion, 32nd Infantry
  • 5th Battalion, 38th Artillery
  • 6th Battalion, 37th Artillery
  • 7th Battalion, 17th Artillery
  • 54th CBRE Detachment
  • 6th Aviation Platoon, or
  • 239th Aviation Company.
Notes:
  • The 6th Aviation Platoon was deactivated on April 15, 1969, and incorporated into the 239th Aviation Company.
  • Service in the Korean DMZ for members of the 6th Aviation Platoon or 239th Aviation Company is limited to helicopter crewmen, which generally consisted of pilots, crew chief, and door gunner(s).  A factual finding must still be made as to the nature of the Veteran’s service in determining whether or not herbicide exposure is established.
Division Reaction Force
4th Squadron, 7th Cavalry.
Other
  • 2nd Military Police Company, 2nd Infantry Division
  • 2nd Engineer Battalion, 2nd Infantry Division
  • 13th Engineer Combat Battalion
  • United Nations Command Security Battalion-Joint Security Area (UNCSB-JSA)
  • Crew of the USS Pueblo, or
  • 25th Chemical Company, 2nd Infantry Division.
 

VIII.i.1.A.3.d.  Requesting Records From MRRC in Support of a Korean DMZ Herbicide Claim

  
RO Research Coordinators should send a request to the VA Military Records Research Center (MRRC) for verification of exposure to herbicides when a Veteran
Notes: 
  • If the claim and available records do not provide sufficient details of the Veteran’s Korean DMZ service, send a subsequent development letter to the claimant and allow 30 days for a response.
  • Request and review all available military records prior to submitting a request to MRRC for verification of herbicide exposure.
  • If the Veteran fails to provide sufficient information to complete an MRRC request, refer the claim to the rating activity. 
Reference:  For more information on referring a claim to the RO Research Coordinator, see the NWQ Playbook.

                         
 

4.  Developing Claims Based on Herbicide Exposure in Thailand

 

Change Date

  
December 4, 2023

VIII.i.1.A.4.a.  Presumptive Herbicide Exposure in Thailand 

  
The PACT Act added a presumption of herbicide exposure for 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.  Apply the procedures outlined in the PACT Act Implementation SOP when processing a claim based on service in Thailand.
 

5.  Developing Claims Based on Herbicide Exposure on Johnston Atoll

 

Change Date

  
December 4, 2023

VIII.i.1.A.5.a.  Presumptive Herbicide Exposure on Johnston Atoll

  
The PACT Act added a presumption of herbicide exposure for Veterans who served 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.  Centralized processing teams are responsible for establishing qualifying Johnston Atoll nautical service. 
 
Reference:  For more information on when referral to the centralized processing team is appropriate, see the PACT Act Implementation SOP.
                                                                                                                               

6.  Developing Claims Based on Herbicide Exposure in Other Locations
 
 

Change Date

  
December 4, 2023

VIII.i.1.A.6.a.  Verifying Herbicide Exposure on a Factual Basis in Other Locations 

  
Follow the steps in the table below to verify potential herbicide exposure on a factual basis when the Veteran alleges exposure in a location not associated with a presumption of herbicide exposure. 
 
Step
Action
1
If the claimant did not provide approximate dates, location(s), and nature of the alleged exposure to herbicides, send a subsequent development letter and include the VBMS AO – Exposure General Notice paragraph.  Allow the Veteran 30 days to submit the requested information.
2
After 30 days, did VA receive this information?
  • If yes, go to Step 3.
  • If no,
    • refer the case to the rating activity, and
    • disregard the remaining steps in the table.
3
Research the date(s), location(s), and circumstances of claimed herbicide exposure with the Herbicide Tests and Storage Outside Vietnam lists provided by DoD.
 
Exception:  If in response to the letter sent in Step 1 above, the Veteran provided an allegation of service in a location associated with a presumption of herbicide exposure, follow the procedures relevant to the specific location.
4
Did the DoD lists confirm that herbicides were used as claimed?
  • If yes, determine whether SC is otherwise in order.
  • If no, go to Step 5.
5
Has the Veteran provided sufficient information to permit a search by MRRC?
  • If yes, refer the case to the RO Research Coordinator to send a request to MRRC for verification of exposure to herbicides.
  • If no, process the SC claim as a non-presumptive disability claim under the TERA procedures as outlined in the PACT Act Implementation SOP. 
Reference:  For more information on referring a claim to the RO Research Coordinator, see the NWQ Playbook.