In This Section

This section contains the following topics:

Introduction

This topic contains general information about developing for qualifying disabilities, including

• identifying a claim for qualifying disabilities under 38 U.S.C. 1120
• tracking fine particulate matter claims, and
• developing for evidence of qualifying
  • service, and
  • disabilities.

Change Date

December 7, 2023

VIII.ii.2.B.1.a.  Identifying a Claim for Qualifying Disabilities Under 38 U.S.C. 1120

Claims processors should sympathetically read claims from Veterans whose symptoms and service suggest potential entitlement to presumptive service connection (SC) under 38 U.S.C. 1120.  Veterans with service in a qualifying location who claim a disability or symptom related to a disability recognized under 38 U.S.C. 1120 do not need to specifically claim the disability is due to fine particulate matter exposure. 

Example:  The Veteran may

• identify symptoms of a general medical condition, such as shortness of breath or respiratory issues rather than explicitly listing a diagnosis, or
• describe respiratory cancer in other terms, such as cancer of the throat or neck.  

Notes:  

• If a claim is unclear, claims processors should review the medical evidence to determine if a qualifying 38 U.S.C. 1120 diagnosis exists, or follow the procedures in M21-1, Part III, Subpart i, 2.D.1.c to clarify the claim.
• If the Veteran claims a disability that is not recognized as presumptive under 38 U.S.C. 1120, process the claim under direct SC guidelines in accordance with the toxic exposure risk activity procedures outlined in the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022 Implementation Standard Operating Procedure (SOP).
• The claimant must identify the disability(ies) that resulted from fine particulate matter exposure.  If the claimant only alleges exposure without identifying a symptom or disability, follow the procedures for handling an incomplete application in M21-1, Part II, Subpart iii, 1.C.2.b and c. 

Reference:  For more information on processing claims under 38 U.S.C. 1120, see the PACT Act Implementation SOP.

VIII.ii.2.B.1.b.  Tracking Fine Particulate Matter Claims

To ensure proper tracking of claims due to fine particulate matter, claims processors must

• establish the appropriate end product (EP), and
• add the Gulf War Presumptive – Airborne Hazards special issue indicator to the relevant contention(s).

Notes:  

• The special issue indicator should only be applied to the contention if it is one of the qualifying disabilities or exhibits signs and symptoms of such disabilities.  For example, do not use the above special issue indicator on a claim for fibromyalgia due to burn pit exposure.
• Claim scenarios may exist where the contention (claimed disability or signs and symptoms of a disability) would warrant additional special issue indicators such as Environmental Hazard in Gulf War or PACT based on the Veteran’s statements and service in qualifying locations.
• All claims processors have a responsibility to ensure the special issue indicator is appropriately applied throughout the life of the claim.

References:  For more information on

• EPs, see M21-4, Appendix B
• special issue indicators, see
  • M21-1, Part III, Subpart i, 2.F.2.f
  • the Veterans Benefits Management System Core User Guide, and
  • M21-4, Appendix E
• environmental hazard claim tracking, see M21-1, Part VIII, Subpart iii, 9.B.1.a, and
• processing claims under the PACT Act, see the PACT Act Implementation SOP.

VIII.ii.2.B.1.c.  Developing for Evidence of Qualifying Service

Follow standard claims development procedures to obtain all military records, including service treatment records (STRs) and the entire official military personnel file (OMPF), that are needed to establish qualifying service in the locations identified in M21-1, Part VIII, Subpart ii, 2.A.1.e.

Develop to the claimant for evidence showing qualifying service using the approved solicitation language.

References:  For more information on

• qualifying service, see M21-1, Part VIII, Subpart ii, 2.A.1.e, and
• requesting STRs and OMPFs, see M21-1, Part III, Subpart ii, 2.B and C.

VIII.ii.2.B.1.d.  Developing for Evidence of Qualifying Disabilities

Follow standard claims development procedures to obtain all relevant medical treatment records in order to substantiate the Veteran’s claimed disability(ies).

Reference:  For more information on claims development, see M21-1, Part III, Subpart i, 2.

Introduction

This topic contains information about examinations for qualifying disabilities, including

• when to request an examination or medical opinion
• medical opinions to determine aggravation of a pre-existing disability, and
• examination guidelines for 38 U.S.C. 1120 presumptive disabilities.

Change Date

December 7, 2023

VIII.ii.2.B.2.a.  When to Request an Examination or Medical Opinion

For presumptive SC claims under 38 U.S.C. 1120, follow the general presumptive SC examination guidelines noted in M21-1, Part IV, Subpart i, 1.B.1.f.

VIII.ii.2.B.2.b.  Medical Opinions to Determine Aggravation of a Pre-Existing Disability

When evidence shows the disability existed prior to enlistment, follow the procedures in M21-1, Part IV, Subpart i, 1.B.1.e to obtain a medical opinion regarding aggravation of a pre-service disability.

Exception:  A medical opinion for aggravation of a pre-existing disability is not needed if the disability manifests between periods of active duty, but after a qualifying period of service.  In this instance, review the claim to determine if presumptive SC is otherwise warranted, and if needed, obtain an examination to determine the current severity of the disability.

References:  For more information on

• aggravation of a pre-existing disability, see M21-1, Part V, Subpart ii, 2.C, and
• qualifying service, see
  • M21-1, Part VIII, Subpart ii, 2.A.1.e, and
  • the PACT Act Implementation SOP.

VIII.ii.2.B.2.c.  Examination Guidelines for 38 U.S.C. 1120 Presumptive Disabilities

The PACT Act enacted 38 U.S.C. 1120 on August 10, 2022.  Under this statute, the Department of Veterans Affairs establishes presumptive SC for certain diseases, including specific cancers, associated with exposure to toxic substances, chemicals, and airborne hazards, including fine particulate matter.  When requesting an examination for one of the 38 U.S.C. 1120 presumptive disabilities, follow the below guidelines.

• If there is no biopsy report, but there is question as to whether the Veteran is diagnosed with a presumptive cancer, request a medical opinion.
  • Do not request a biopsy or for the Veteran to be sedated and/or undergo an invasive procedure.
  • Identify any evidence for the examiner supporting why the biopsy was not conducted.
• If the evidence of record is unclear as to whether the Veteran is diagnosed with one of the presumptive cancers, or whether the cancer is considered the primary site of the cancer, request a medical opinion to help determine the originating site of the cancer.

References:  For more information on

• regulatory and legislative history of presumptive fine particulate matter exposure, see M21-1, Part VIII, Subpart ii, 2.A.1.a
• examination guidelines for 38 U.S.C. 1120 presumptive disabilities, see the PACT Act Implementation SOP
• scope of practice relative to examination, see M21-1, Part IV, Subpart i, 2.A.1.d, and
• considering presumptive SC for metastatic cancer, see M21-1, Part V, Subpart ii, 2.B.1.b.