In This Section

This section contains the following topics:

Introduction

This topic contains information about awarding SC for qualifying disabilities associated with exposure to fine particulate matter, including

• establishing SC for a qualifying presumptive disability
• documenting a decision to award benefits, and
• establishing an effective date for qualifying disabilities due to particulate matter exposure.

Change Date

December 7, 2023

VIII.ii.2.C.1.a.  Establishing SC for a Qualifying Presumptive Disability

Establish presumptive service connection (SC) due to fine particulate matter exposure if the evidence establishes

• service in a qualifying location as described in M21-1, Part VIII, Subpart ii, 2.A.1.e, and
• the Veteran has been diagnosed with a condition listed in 38 U.S.C. 1120 manifest to any degree at any time after service.

Important:  Presumptive SC for the conditions listed in 38 U.S.C. 1120 became effective August 10, 2022, based on Public Law (PL) 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (Pact) Act of 2022.

References:  For more information on

• the regulatory and legislative history of particulate matter exposure, see M21-1, Part VIII, Subpart ii, 2.A.1.a
• which diagnoses qualify as a presumptive under 38 U.S.C. 1120, see
  • VBA Letter 20-22-10, Processing Claims Involving PACT Act, and
  • M21-1, Part VIII, Subpart ii, 2.A.1.f, and
• qualifying service, see the Gulf War Era Service Areas Job Aid.

VIII.ii.2.C.1.b.  Documenting a Decision to Award Benefits

In order to properly document decisions to award benefits under 38 U.S.C. 1120 in Veterans Benefits Management System-Rating (VBMS-R), claims processors must

• use a combination of applicable system-generated language, analysis fragments, and glossary text fragments available to document that SC is awarded under 38 U.S.C. 1120, and
• assign the appropriate special issue and special issue basis to each decided issue.

References:  For more information on

• rating decision requirements for fine particulate matter claims, see the PACT Act Implementation Standard Operating Procedure (SOP)
• completing the rating decision, see
  • M21-1, Part V, Subpart iv, 1.A, and
  • the VBMS Rating User Guide, and
• historical rating requirements for particulate matter claims, see the attachment, Historical_M21-1VIII_ii_2_SecC_5-4-22.docx.

VIII.ii.2.C.1.c.  Establishing an Effective Date for Disabilities Due to Particulate Matter Exposure

Follow the guidance in the PACT Act Implementation SOP content titled, Establishing an Effective Date for BPOT Claims, when assigning an effective date for a disability based on presumptive provisions of 38 U.S.C. 1120.

References:  For more information on

• effective dates under the PACT Act, see VBA Letter 20-22-10, and
• effective dates, generally, see M21-1, Part V, Subpart ii, 4.A.

Introduction

This topic contains information about denying SC for disabilities associated with exposure to fine particulate matter, including

• when presumptive SC cannot be established, and
• requirement to provide adequate explanation of decisions to deny.

Change Date

December 7, 2023

VIII.ii.2.C.2.a.  When Presumptive SC Cannot Be Established

As discussed in M21-1, Part VIII, Subpart ii, 2.A.1.d, SC cannot be established on a presumptive basis if

• the Veteran
  • did not serve in a qualifying location as listed in M21-1, Part VIII, Subpart ii, 2.A.1.e, or
  • is not diagnosed with a presumptive 38 U.S.C. 1120 disability 
• there is affirmative evidence that the 38 U.S.C. 1120 disability
  • was caused by another condition or event that occurred between the Veteran’s qualifying service and the onset of the disability, or
  • was the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs.

Reference:  For more information on establishing SC under 38 U.S.C. 1120, see

• M21-1, Part VIII, Subpart ii, 2.A
• VBA Letter 20-22-10, and
• the PACT Act Implementation SOP.

VIII.ii.2.C.2.b.  Requirement to Provide Adequate Explanation of Decisions to Deny

When denying SC for a condition under 38 U.S.C. 1120, the decision and decision notice must provide adequate reasons for the decision.  Decision makers must include a discussion of the specific provisions that were not met under both the presumptive provisions of 38 U.S.C. 1120, as well as any other avenue of SC raised by the claimant or evidence.

In order to properly document decisions to deny benefits under 38 U.S.C. 1120 in VBMS-R, claims processors must:

• use a combination of any applicable system-generated language, glossary text fragments, and free text to ensure the decision and decision notice adequately explain why the claim could not be granted under all applicable provisions, and
• apply the appropriate special issue and special issue basis for each decided contention.

Important:  If the system-generated text options do not adequately cover the reason a claim is being denied, decision makers must use glossary text or free text to supplement the explanation of the decision.

References:  For more information on

• rating decision requirements for particulate matter claims, see the PACT Act Implementation SOP
• system-generated text and glossary fragments, see the VBMS Rating User Guide
• considering unclaimed theories of SC, see M21-1, Part II, Subpart iii, 1.A.2.e, and
• decision notification requirements, see 38 CFR 3.103(f).

Change Date

December 7, 2023

VIII.ii.2.C.3.a.  Special Provisions Regarding the Evaluation of Respiratory Conditions

The rating activity must consider the provisions of 38 CFR 4.96 when granting entitlement to SC for certain respiratory disabilities.  These provisions include

• prohibitions for separately evaluating certain coexisting respiratory conditions
• entitlement to special monthly compensation in specific cases, and
• requirements for pulmonary function tests.

Reference:  For more information on evaluating respiratory disabilities, see

• 38 CFR 4.97, and
• M21-1, Part V, Subpart iii, 4.A.