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Updated Jul 19, 2024

In This Section

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

 

 

 1.  Considering SC for Disabilities Associated With Exposure to Certain Herbicide Agents

 

 

Introduction

  
This topic contains information on considering SC for disabilities associated with exposure to certain herbicide agents, including

Change Date

  
July 19, 2024

VIII.i.1.B.1.a.  Presumptive SC Based on Herbicide Exposure

  
Under 38 CFR 3.307, when there is
  • in-service exposure to an herbicide agent, and
  • a diagnosis of a condition listed in 38 CFR 3.309(e) within a defined time period
a presumption arises that the diagnosis is
  • related to the exposure, and
  • incurred in or aggravated by service. 
The presumption removes the need to prove a nexus between the current diagnosis and the in-service exposure.  Therefore, when the evidence is sufficient for the presumption to arise, service connection (SC) is established (assuming that generally applicable requirements such as Veteran status based on a qualifying discharge have been met) unless other evidence rebuts the presumption.
 
Important:  Centralized processing is required for the concession of herbicide exposure in some cases as described in M21-1, Part VIII, Subpart i, 1.A.1.c. 
 
References:  For more information on

VIII.i.1.B.1.b.  Rebutting the 38 CFR 3.307(a) Presumption by Affirmative Evidence to the Contrary

  
The 38 CFR 3.307(a) presumption of a nexus between a 38 CFR 3.309(e) disability and established in-service exposure to an herbicide agent can be rebutted by evidence that the disability was not caused by the exposure.
 
The standard in 38 CFR 3.307(d) is affirmative evidence to the contrary.  The regulation does not specifically define the standard but notes that it means less than conclusive proof and requires sound medical reasoning and consideration of all evidence of record.
 
Important:  
  • Although the regulation permits rebuttal, in practice evidence will infrequently support it.  The presumptions were created based on a finding by the Secretary that a positive association exists between the disorders listed in 38 CFR 3.309(e) and herbicide exposure. This finding in turn was based on a study by the National Academy of Science’s (NAS’s) Institute of Medicine.
  • A conclusory medical statement that a condition listed in 38 CFR 3.309(e) is not related to demonstrated or presumed herbicide exposure does not meet the sound medical reasoning requirement. There must be competent, credible, and persuasive medical evidence supported by all of the other pertinent evidence of record that the individual’s diagnosed disorder is more likely than not related to a specific non-service-related cause.

References:  For more information on

VIII.i.1.B.1.c.  Presuming Exposure to an Herbicide Agent

  
Currently, the Department of Veterans Affairs (VA) recognizes a presumption of exposure to herbicides in specific locations and military service experiences as listed in the table below.
 
Presumptive exposure provision applies to …
Authority
  • Veterans who served in
    • the Republic of Vietnam (RVN) during the period beginning on January 9, 1962, and ending on May 7, 1975, or
    • a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) between September 1, 1967, and August 31, 1971, and
  • individuals 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.
Veterans who served aboard a vessel operating not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting the coordinates listed in Public Law (PL) 116-23 during the period beginning January 9, 1962, and ending on May 7, 1975.
locations during specific time frames as shown in the table below.
 
Veterans who performed covered service in/on …
During the period …
Thailand at any United States or Royal Thai base, without regard to where on the base the Veteran was located or what military occupational specialty (MOS) the Veteran performed
January 9, 1962, to June 30, 1976.
Laos
December 1, 1965, to September 30, 1969.
Cambodia at Mimot or Krek, Kampong Cham Province
April 16, 1969, to April 30, 1969.
Guam or American Samoa, or in the territorial waters thereof
January 9, 1962, to July 31, 1980.
Johnston Atoll or on a ship that called at Johnston Atoll
January 1, 1972, to September 30, 1977.
 
 
Notes: 
  • For any contention of in-service exposure to herbicide agents in times or locations other than those specified in one of the above authorities, it is the claimant’s burden to factually establish exposure.
  • The regulation provides that presumption of exposure to herbicide agents during qualifying service will be rebutted by affirmative evidence that the Veteran was not exposed to any such agent during qualifying service.  However, the probability that specific evidence will exist showing that a person in one of the qualifying locations during a qualifying period had no herbicide exposure is low. 
  • Concessions of qualifying nautical service are the sole responsibility of the centralized processing teams.
Reference:  For more information on centralized processing of herbicide claims, see 

VIII.i.1.B.1.d.  Definition:  Service in the RVN

  
For the purposes of the presumption of exposure to herbicide agents under 38 CFR 3.307(a)(6)(iii) and 38 CFR 3.309(e), service in the RVN includes
  • on land in the RVN
  • aboard a vessel operating on the inland waterways of the RVN or eligible offshore waters
  • aboard vessels on the offshore waters of the RVN, if the conditions of service involved duty or visitation on the ground in the RVN, or
  • other locations, if the conditions of service involved duty or visitation on the ground in the RVN.
The term service in the RVN does not include service of a Vietnam-era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. 
 
Important:  Concession of qualifying RVN nautical service is the sole responsibility of the centralized processing teams and designated legacy appeal personnel. 
 
References:  For more information on

VIII.i.1.B.1.e.  Time Limits for Disease Manifestation for Presumptive Purposes Under 38 CFR 3.309(e)

  
In order to establish presumptive SC, the following diseases listed in 38 CFR 3.309(e) must become manifest to a degree of 10 percent or more within one year of the last date of exposure to herbicides 
  • chloracne or other acne-form disease consistent with chloracne
  • porphyria cutanea tarda (PCT), and
  • early-onset peripheral neuropathy.
Notes: 
  • There is no time limit for the other listed presumptive diseases in 38 CFR 3.309(e).
  • Previously, respiratory cancers (cancers of the lung, bronchus, larynx, and trachea) had to become manifest within 30 years of last exposure.  PL 107-103 eliminated this requirement effective January 1, 2002.
  • For the purposes of establishing onset within the required manifestation period, the last date of herbicide exposure is the last date on which the Veteran served in a location associated with a presumption of herbicide exposure as listed in 38 U.S.C. 1116.
Reference:  For more information on time limits for manifestation of diseases subject to presumptive SC, see 38 CFR 3.307(a)(6)(ii).

VIII.i.1.B.1.f.  Considering Direct SC When Entitlement to Presumption Does Not Exist

  
If entitlement to presumptive SC based on herbicide exposure does not exist, consider entitlement to SC on a direct, facts-found basis under the toxic exposure risk activity (TERA) procedures.
 
Notes:
  • Under 38 CFR 3.303(d), the presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations that allow for another basis of SC.  Therefore, these provisions do not preclude direct SC, where appropriate.
  • TERA procedures went into effect on August 10, 2022, under PL 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022.
References:  For more information on

VIII.i.1.B.1.g.  Date Disabilities Became Subject to Presumptive SC Under 38 CFR 3.309(e)

  
The table below shows the dates on which the diseases listed in 38 CFR 3.309(e) became subject to presumptive SC.
 
Disability
Effective Date
  • Chloracne or other acne-form disease consistent with chloracne, and
  • soft-tissue sarcoma, other than
    • osteosarcoma
    • chondrosarcoma
    • Kaposi’s sarcoma, or
    • mesothelioma
February 6, 1991
 
Note:  Originally, September 25, 1985, under 38 CFR 3.311a.
Non-Hodgkin’s lymphoma (NHL)
February 6, 1991
 
Note:  Originally, August 5, 1964, under 38 CFR 3.313.
  • PCT, and
  • Hodgkin’s disease
February 3, 1994
  • Respiratory cancers of the
    • lung
    • bronchus
    • larynx, or
    • trachea, and
  • multiple myeloma
June 9, 1994
  • Prostate cancer, and
  • acute and subacute peripheral neuropathy
November 7, 1996
Type 2 diabetes mellitus
May 8, 2001
Chronic lymphocytic leukemia (CLL)
October 16, 2003
AL amyloidosis
May 7, 2009
  • Ischemic heart disease (IHD)
  • chronic B-cell leukemia, and
  • Parkinson’s disease
August 31, 2010
Early-onset peripheral neuropathy
September 6, 2013
  • Parkinsonism
  • bladder cancer, and
  • hypothyroidism.
Reference:  For more information on presumptive SC for these disabilities, see
January 1, 2021
  • monoclonal gammopathy of undetermined significance, and
  • hypertension
Reference:  For more information on processing claims for these disabilities, see the PACT Act Implementation SOP.
August 10, 2022
 
Important:  The table above includes reference to acute and subacute peripheral neuropathy becoming subject to presumptive SC on November 7, 1996, for historical purposes. The covered disease was revised to early-onset peripheral neuropathy by change effective September 6, 2013.  For claims on or after September 6, 2013, entitlement to presumptive SC based on peripheral neuropathy only exists when the Veteran meets qualifying service requirements specified at M21-1, Part VIII, Subpart i, 1.B.1.c and medical evidence establishes a confirmed diagnosis of early-onset peripheral neuropathy.
 
Note:  Unless an earlier effective date is determined pursuant to the Nehmer stipulation under 38 CFR 3.816, the provisions pertaining to retroactive payment under 38 CFR 3.114(a) apply.
 
Reference:  For more information on the Nehmer stipulation, see

VIII.i.1.B.1.h.  Processing Claims Based on Early-Onset Peripheral Neuropathy

  
A change to 38 CFR 3.307(a)(6) and 38 CFR 3.309(e) (78 FR 54763) effective September 6, 2013, removed requirements that neuropathy must resolve within two years.
 
Do not deny presumptive SC for early-onset peripheral neuropathy solely because the condition persisted for more than two years after initial diagnosis.
 
Important: 
  • The regulatory amendment does not change that peripheral neuropathy must manifest to a compensable degree of 10 percent or more within one year of the date of last herbicide exposure during active military, naval, or air service. 
  • Claims of SC for later-occurring onset of peripheral neuropathy can only be evaluated under other bases (for example, direct or secondary).  NAS has determined that evidence does not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which NAS defined as having its onset more than one year after exposure.

VIII.i.1.B.1.i.  Conditions Determined to Have No Positive Association With Herbicide Exposure

  
When processing claims for disabilities not recognized as presumptive to herbicide exposure, follow the direct SC TERA procedures.  Review the claimed disability and determine if it falls under the exception for conditions determined to have no positive association with herbicide exposure listed below.
 
Based on cumulative scientific data reported by NAS since 1993, the Secretary has determined that a positive association does not exist between herbicide exposure and the following conditions and that a presumption of SC is not warranted for any of the conditions:
  • Cancers
    • bone and connective tissue
    • brain and nervous system (including eye)
    • digestive (esophageal, stomach, and colorectal (including small intestine and anus))
    • endocrine (including thyroid and thymus)
    • hepatobiliary (liver, gallbladder, and bile ducts) and pancreatic
    • leukemia (excluding all chronic B-cell leukemias including CLL and hairy cell)
    • nasal cavity (including ears and sinuses)
    • oral cavity (including lips and tongue)
    • pharynx (including tonsils)
    • pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs
    • skin (including melanoma and nonmelanoma (basal cell and squamous cell), and
    • reproductive (including the cervix, uterus, ovary, testes, breast, and penis, but excluding prostate).
  • Other
    • asthma
    • chronic obstructive pulmonary disease (COPD)
    • circulatory disorders (but excluding hypertension, IHD, and stroke)
    • endometriosis
    • eye diseases
    • Farmer’s lung
    • gastrointestinal, metabolic, and digestive disorders
    • hearing loss
    • immune system disorders (immune suppression, allergy, and autoimmunity)
    • neurobehavioral (cognitive and neuropsychiatric) disorders
    • neurodegenerative diseases (including amyotrophic lateral sclerosis (ALS), but excluding Parkinson’s disease and Parkinsonism)
    • osteoporosis, and
    • chronic peripheral nervous system disorders (but excluding early-onset peripheral neuropathy).
Note:  No positive association means that the evidence for an association does not equal or outweigh the evidence against association.
 
References:  For more information on

VIII.i.1.B.1.j.  Metastasis of a Cancer and Presumptive SC Under 38 CFR 3.307(a)

  
Do not establish presumptive SC on the basis of herbicide exposure under 38 U.S.C. 1116 and 38 CFR 3.307(a) for a cancer listed in 38 CFR 3.309(e) when medical evidence factually shows that the cancer developed as the result of metastasis of a cancer located at a primary site that is not recognized by the VA as associated with herbicide exposure.
 
Note:  Such evidence constitutes affirmative evidence to rebut the presumption of SC based on herbicide exposure.

VIII.i.1.B.1.k.  Centralized Processing for Rating and Authorization of Herbicide Claims

  
Centralized processing of the rating and authorization activities is required for certain herbicide claims.  These include cases with
  • explicit or implicit claims of RVN-based nautical service, and
    • no in-country service at a presumptive herbicide location, or
    • a previously denied claim based on no qualifying service, or
  • service in the RVN, and potential Nehmer applicability under 38 CFR 3.816. 
References:  For more information on

 

2. Considering SC for Disabilities Associated With Service in the RVN

 

 

Introduction

  
This topic contains information on SC for disabilities associated with service in the RVN, including

Change Date

  
December 4, 2023

VIII.i.1.B.2.a.  SC for NHL Under 38 CFR 3.313 Based on Service in the RVN During the Vietnam Era

  
VA regulations at 38 CFR 3.313 provide for a presumption of SC for NHL based on service in the RVN during the Vietnam era.
 
Important: 
  • Exposure to herbicides is not a prerequisite for entitlement under 38 CFR 3.313.  The claimant needs only to show service in the RVN, which includes the waters offshore.
  • If a claim for NHL under 38 CFR 3.313 requires research of RVN nautical service, it must be referred for centralized processing as noted in M21-1, VIII, Subpart i, 1.A.1.c.
Reference:  For more information on presumptive SC for NHL based on presumptive herbicide exposure, see

VIII.i.1.B.2.b.  Subcategories of NHL Qualifying for Presumptive SC

  
When 38 CFR 3.313 was promulgated, the U.S. Center for Disease Control identified a number of subcategories that are manifestations of NHL.
Extend the presumption of SC to a Veteran who claims SC for NHL if
  • the Veteran had service in the RVN during the Vietnam era, including naval service in the offshore waters of the RVN, and
  • the medical evidence shows a diagnosis of any of the subcategories of low, intermediate, or high-grade lymphoma listed in the table below.
Low Grade Lymphoma
Intermediate Grade Lymphoma
High Grade Lymphoma
Small lymphocytic with plasmacytoid features
Diffuse, small and large
Diffuse, small and large
Small lymphocytic lymphoma and B-cell CLL
 
Note:  Small lymphocytic lymphoma and B-cell CLL are considered slightly different forms of the same disease.
Diffuse, small cleaved
Lymphoblastic
Intermediate cell
Diffuse, large cleaved
Immunoblastic
Follicular, mixed small and large
Diffuse, large non-cleaved
Burkitt’s
Mantle zone
Diffuse, large
—
Follicular, small cleaved
Follicular, large
—
Waldenstrom’s macroglobulinemia
—
—
Mycosis fungoides
 
Reference:  For more information on considering claims for SC for mycosis fungoides, see M21-1, Part V, Subpart iii, 10.4.c.
—
—
 
 
  

3. Impact of Historical Herbicide Exposure Policies

 

 

Introduction

  
This topic contains information on the impact of historical herbicide exposure policies, including

Change Date

  
December 4, 2023

VIII.i.1.B.3.a.  Overview of Historical Policies Regarding Herbicide Exposure and Nautical Service

  
The table below represents time periods during which VA had specific policies in place regarding concession of herbicide exposure based on nautical service.
 
Guidance Time Period
Exposure Policy
pre-Haas (1991-2002)
Exposure conceded based on receipt of the Vietnam Service Medal (VSM).
2002
Removed concession for VSM from M21-1 guidance.
Fast Letter (FL) 06-26 (December 11, 2006)
All blue water Navy claims stayed based on the Haas decision.
Haas stay lifted, FL 09-07 (February 6, 2009)
Exposure conceded based on review of military records for
  • inland waterways service of the RVN, or
  • service on a ship that docked, if the Veteran provided a lay statement that he went ashore. 
Training Letter 10-06 (September 9, 2010)
Concession based on categories of ships on the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, a.k.a., the Ships List.
Veterans Service Center Manager (VSCM) Call (January 2011)
Ships List updated with Category IV, Ships operating on Vietnam’s close coastal waters for extended periods with evidence that crew members went ashore (lay statement of going ashore required).
VSCM Call (May 2011)
Ships List updated with Category V, Ships operating on Vietnam’s close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore (lay statement of going ashore required).
PL 116-23 (January 1, 2020)
Definition of service in the RVN expanded to include eligible offshore waters.  Use of the Ships List discontinued and replaced with VBA’s internal claims processing tools used to determine a ship’s location(s).
PACT Act (August 10, 2022)
Expanded presumptive herbicide exposure to additional nautical locations by amending 38 U.S.C. 1116.
 

VIII.i.1.B.3.b.  Benefits Previously Awarded Under Historical Policies

  
When reviewing initial or supplemental claims decided under historical nautical service herbicide exposure policies, do not
  • propose to sever SC for the disabilities previously awarded when the presumption of herbicide exposure was conceded under former policies, or
  • concede herbicide exposure for any newly claimed disabilities unless evidence is presented that otherwise establishes the Veteran’s exposure based on current evidentiary requirements.
Important: 
  • Before deciding any initial or supplemental claim based on herbicide exposure, always apply the most current standards and definitions of qualifying service and review all available records.
  • The protection noted above applies to SC for the disability awarded based on a historical policy.  Once a disability has been service-connected (SC), even erroneously, and protection has attached, then the Veteran is entitled to increased evaluations for the disability, to SC for secondary conditions, and to awards of individual unemployability based solely or partly on those SC conditions.
References:  For more information on

 

4. Effective Date Determinations in Herbicide Exposure Claims

 

 

Introduction

  
This topic contains information on effective date determinations in herbicide exposure claims, including

Change Date

  
July 29, 2021

VIII.i.1.B.4.a.  Maximizing Benefits With Effective Date Determinations in Herbicide Claims

  
When awarding SC for a disability under 38 CFR 3.309(e), different provisions allow for assignment of an effective date.  In such cases, consider each effective date rule and assign the most advantageous effective date that applies for the facts of the case.
 
Use the table below to determine which effective date rule may apply to an award of SC for a 38 CFR 3.309(e) disability.
 
If …
Then consider entitlement to an effective date under …
Reference
the claimant filed the claim prior to the date VA added the presumptive disability to 38 CFR 3.309(e)
the claimant met all eligibility criteria for a benefit on the effective date of a liberalizing law change as detailed in M21-1, Part V, Subpart ii, 4.A.6.h
the claimant is entitled to retroactive payment of benefits based on PL 116-23
  • the claim was previously denied because available service records did not establish the Veteran had qualifying service, and
  • newly received service records establish service in a qualifying location
none of the above special provisions apply
 
Reference:  For more information on establishing an effective date under the PACT Act, see the PACT Act Implementation SOP.

VIII.i.1.B.4.b.  Effective Dates Based on Herbicide Exposure and CFR 3.156(c)

  
If a claim based on exposure to herbicides was previously denied because available service records did not establish the Veteran had qualifying service, decision makers must review any newly available service records to determine if new evidence of qualifying service exists.
 
Reconsider the claim under 38 CFR 3.156(c) if newly received service records result in
  • presumption of herbicide exposure based on location of service, or
  • concession of herbicide exposure on a factual basis.
As stated in 38 CFR 3.156(c)(3), if the evidence now justifies the establishment of SC, the effective date will be the later of 
  • the date entitlement arose, or
  • the date VA received the previously decided claim.
 Notes:
  • The date entitlement arose may be either the
    • date the claimed disease was diagnosed (or symptoms became manifest according to medical evidence), or
    • the date the claimed presumptive disease was finalized as part of the presumptive list of herbicide exposure-related diseases in 38 CFR 3.309(e).
  • Decision makers must also consider the effective date provisions of 38 CFR 3.114 and the Nehmer stipulation, when applicable.
References:  For more information on

VIII.i.1.B.4.c.  Determining Applicability of 38 CFR 3.156(c) or 38 CFR 3.114 for Exposure to Herbicides in Korea 

  
Effective dates based on a grant of SC for a disability associated with exposure to herbicides in the Korean DMZ can be affected by liberalizing changes and/or receipt of additional service department records. 
 
Two liberalizing changes to the provisions of 38 CFR 3.307(a)(6)(iv) (as discussed more thoroughly in M21-1, Part VIII, Subpart i, 1.A.3.b) have been made to revise the applicable dates for the concession of exposure to herbicides for Veterans who served in specific designated units operating in or near the Korean DMZ. 
 
When a claim for SC associated with exposure to herbicides in Korea was previously denied, but entitlement to the benefit is now established based on
  • expanded regulatory authority not in effect at the time of the prior decision, apply 38 CFR 3.114(a) if all other criteria for applicability are satisfied, or
  • new service records received from the service department that establish exposure based on the regulatory provision in place at the time of the previously adjudicated claim, apply 38 CFR 3.156(c) if all other criteria for applicability are satisfied.
References:  For more information on

VIII.i.1.B.4.d.  Examples of Determining Effective Date in a Claim Based on Herbicide Exposure in Korea 

  
Facts:  The Veteran previously claimed and was denied SC for prostate cancer due to herbicide exposure in Korea.  The Veteran was notified of the denial on July 18, 2010.  The service records at that time showed that the Veteran served in a designated unit in the Korean DMZ, but the dates of service were in October to November 1970.  The Veteran has submitted a supplemental claim for SC for prostate cancer due to herbicide exposure in Korea. 
 
Analysis:  The liberalizing law change of February 24, 2011, expanded the applicable dates for presumption of exposure for Veterans who served in a designated unit in the Korean DMZ to include dates of service through August 31, 1971.  Since the Veteran’s service in 1970 falls within the designated time period, SC is now warranted.  Given that SC is warranted based on the liberalizing law change expanding the applicable time period associated with Korean service, apply 38 CFR 3.114 to assign an effective date one year prior to the date of receipt of the supplemental claim if all other criteria for applicability of this regulation are otherwise satisfied.
 
Facts:  The Veteran previously claimed and was denied SC for lung cancer due to herbicide exposure in Korea.  The claim was received on March 12, 2015, and the Veteran was notified of the denial on August 22, 2015.  The Veteran claimed to have been assigned on temporary duty orders to a designated unit in the DMZ during the spring of 1969.  Development attempts were made for records of the Veteran’s assignments, and no evidence was received to verify the claimed service.  In 2019, the Veteran submitted a supplemental claim with new and relevant evidence.  Development for that claim revealed recently declassified records confirming that the Veteran was sent on temporary duty orders to a designated unit in the Korean DMZ in 1969. 
 
Analysis:  Receipt of additional service records confirming service in a designated unit in the Korean DMZ in 1969 is sufficient to allow presumption of herbicide exposure under 38 CFR 3.307(a)(6)(iv).  Assuming all other criteria are met, the prior denial of SC must be reconsidered and revised under 38 CFR 3.156(c).  SC for lung cancer is warranted effective March 12, 2015.