Updating VA Adjudication Regulations for Disability or Death Benefit Claims Related to Exposure to Certain Herbicide Agents, 9803-9813 [2024-02590]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 89, Number 29 (Monday, February 12, 2024)]
[Proposed Rules]
[Pages 9803-9813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02590]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR10


Updating VA Adjudication Regulations for Disability or Death 
Benefit Claims Related to Exposure to Certain Herbicide Agents

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations relating to exposure to certain herbicide 
agents to incorporate the provisions of the Blue Water Navy Vietnam 
Veterans Act of 2019 (the BWN Act), specifically by extending the 
presumed area of exposure to the offshore waters of the Republic of 
Vietnam, defining the boundaries of the offshore waters, expanding the 
date ranges for presumption of exposure in the Korean Demilitarized 
Zone (DMZ) and establishing entitlement to spina bifida benefits for 
children of certain Veterans who served in Thailand. This rule also 
proposes to codify a presumption of exposure to certain herbicide 
agents for locations published on the Department of Defense's (DoD) 
record of locations where certain herbicide agents were used, tested or 
stored outside of Vietnam. In addition, this rule also proposes to 
codify longstanding procedures for searching for payees entitled to 
class action settlement payments aligned with Nehmer v. U.S. Department 
of Veterans Affairs and proposes to apply the definition of the 
Republic of Vietnam's offshore waters to claims for presumptive service 
connection for non-Hodgkin's lymphoma. VA is also proposing to amend 
its adjudication regulations concerning presumptive service connection 
for diseases associated with exposure to certain herbicide agents. This 
amendment implements provisions of the Fiscal Year (FY) 2021 National 
Defense Authorization Act (NDAA), which added bladder cancer, 
hypothyroidism and Parkinsonism as medical conditions eligible for 
presumptive service connection. Finally, this rulemaking proposes to 
implement certain provisions of the Sergeant First Class Heath Robinson 
Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT 
Act), specifically by recognizing hypertension and monoclonal 
gammopathy of undetermined significance (MGUS) as diseases eligible for 
a presumption of exposure to certain herbicides and adding new 
locations as eligible for a presumption of exposure to certain 
herbicides during specific timeframes.

DATES: Comments must be received on or before [insert date 60 days 
after date of publication in the Federal Register].

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov 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 
www.regulations.gov as soon as possible after they have been received. 
VA will not post on Regulations.gov 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; however, 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 100 word Plain-Language Summary of 
this proposed rule is available at Regulations.gov, under RIN 2900-
AR10.

FOR FURTHER INFORMATION CONTACT: Jane Allen, Regulations Analyst; 
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.)

SUPPLEMENTARY INFORMATION: 

I. Background

    The spraying of herbicides as tactical defoliants during the 
Vietnam War began in 1962 and continued until 1971. Public concern over 
the military's use of herbicides began to grow following requests by 
scientists to evaluate possible toxic effects of widespread herbicide 
spraying. To respond to public concern about possible long-term health 
effects of exposure to herbicides, Congress passed the Veterans' Dioxin 
and Radiation Exposure Compensation Standards Act, Public Law 98-542. 
The Act required VA to create guidelines and criteria for deciding 
claims for benefits based on a Veteran's exposure to herbicides during 
service in the Republic of Vietnam and established the first 
presumptions of service connection based on exposure to certain 
herbicides. The Act also established the Veterans' Advisory Committee 
on Environmental Hazards to provide findings and evaluations regarding 
the scientific evidence related to possible adverse health hazards due 
to exposure to herbicides.
    The results of these studies prompted the Agent Orange Act of 1991, 
Public Law 102-4, codified in part at 38 U.S.C. 1116. This Act 
established presumptive service connection for non-Hodgkins lymphoma, 
soft-tissue sarcoma (with certain exceptions) and chloracne or other 
consistent acneform diseases. In addition, the Act directed the VA to 
enter into an agreement with the National Academy of Sciences to review 
and evaluate the scientific evidence concerning the association between 
exposure to certain herbicide agents during service in the Republic of 
Vietnam and each disease suspected to be associated with such exposure. 
The Act further established guidelines for the evidentiary support 
needed to create new presumptions of service connection. The Act 
required that ``Whenever the Secretary determines, on the basis of 
sound medical and scientific evidence, that a positive association 
exists between (A) the exposure of humans to an herbicide agent, and 
(B) the occurrence of a disease in humans, the Secretary shall 
prescribe regulations providing that a

[[Page 9804]]

presumption of service connection is warranted for that disease for the 
purposes of this section.'' Public Law 102-4, Sec.  2(a). Since passage 
of the Act, Congress and VA have established 13 additional presumptions 
of service connection based on exposure to certain herbicides.

a. The BWN Act of 2019

    Prior to the BWN Act, VA interpreted the presumption of exposure to 
certain herbicide agents for service connection purposes under the 
Agent Orange Act of 1991, codified in relevant part at 38 U.S.C. 
1116(a)(1), to require service within the borders of the Republic of 
Vietnam, either ``boots on the ground'' land-based service or service 
within the inland waterways. If there was evidence that a Veteran went 
ashore or docked in the Republic of Vietnam, however briefly, the 
Veteran would be entitled to the presumption of exposure. VA's 
interpretation was upheld in court until 2019. See Haas v. Peake, 525 
F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 555 U.S. 1149 (2009), 
overruled by Procopio v. Wilkie, 913 F.3d 1371, 1380 (Fed. Cir. 2019) 
(en banc). In 2019, the U.S. Court of Appeals for the Federal Circuit 
held that Congress intended the term ``Republic of Vietnam'' to include 
the ``territorial sea'' of the Republic of Vietnam. The court ruled 
that by using the formal name of the country, ``the Republic of 
Vietnam,'' Congress referred to both its landmass and its 12 nautical 
mile territorial sea. Procopio, 913 F.3d at 1375. Vietnam's offshore 
waters were not defined by statute, and the Federal Circuit rejected 
the distinction between service within the landmass and in the 
territorial waters when it invalidated the foot-on-land requirement for 
the Agent Orange presumptions. Id. at 1378. The court cited 
international legal authorities to support its holding but did not 
further attempt to define where the boundaries of the territorial sea 
of the Republic of Vietnam must be drawn beyond its holding regarding 
the 12 nautical mile territorial sea. See id. at 1375-76. While VA was 
working to implement the Procopio ruling, Congress enacted the BWN Act. 
The BWN Act provides a description and table of coordinates to define 
the Republic of Vietnam's offshore waters.

b. The NDAA of 2021

    On January 1, 2021, Congress enacted Public Law 116-283, the 
William M. (Mac) Thornberry National Defense Authorization Act for 
Fiscal Year 2021 (NDAA). In relevant part, this law amended 38 U.S.C. 
1116(a)(2) by adding bladder cancer, hypothyroidism and Parkinsonism to 
the list of conditions presumptively associated with exposure to 
certain herbicide agents. The amendment to 38 U.S.C. 1116(a) was based 
on the 2018 National Academies of Sciences, Engineering, and Medicine 
report, Veterans and Agent Orange: Update 11, which found limited or 
suggestive evidence of an association between exposure to certain 
herbicide agents and bladder cancer, hypothyroidism and 
Parkinsonism.\1\
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    \1\ National Academies of Sciences, Engineering, and Medicine. 
2018. Veterans and Agent Orange: Update 11 (2018). Washington, DC: 
The National Academies Press. https://doi.org/10.17226/25137.
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c. The PACT Act

    On August 10, 2022, Congress enacted the PACT Act, Public Law 117-
168, to improve access to VA benefits and health care for Veterans who 
were exposed to toxic substances during military service. Section 403 
of the PACT Act amended section 1116 of title 38, United States Code by 
adding new locations as eligible for a presumption of exposure to 
certain herbicide agents: Thailand (at any United States or Royal Thai 
base), Laos, Cambodia at Mimot or Krek, Kampong Cham Province, Johnston 
Atoll, Guam, and American Samoa, during certain timeframes. Prior to 
the PACT Act, the only location subject to a statuory presumption of 
exposure to certain herbicides was the Republic of Vietnam. Therefore, 
VA is proposing to add these additional locations to VA's Part 3 
Regulations at 38 CFR 3.307.
    Section 404 of the PACT Act added hypertension and MGUS as diseases 
associated with exposure to certain herbicide agents under 38 U.S.C. 
1116(a)(2). Therefore, VA is proposing to add these diseases to 38 CFR 
3.309, disease subject to presumptive service connection.

II. Proposed Changes to Sec.  3.307 Diseases Associated With Exposure 
to Certain Herbicide Agents

a. Amendments to Sec.  3.307(a)(6) Based on the BWN Act of 2019

    38 CFR 3.307(a)(6) outlines the service requirements and other 
circumstances required for the presumption of exposure to certain 
herbicide agents to apply. 38 CFR 3.307(a)(6)(iii) establishes a 
presumption of exposure to certain herbicide agents for Vietnam 
Veterans with active-duty service during a specific period. Prior to 
Procopio and the BWN Act, Veterans who served in the ``offshore 
waters'' were only presumed to have been exposed to certain herbicide 
agents if there was evidence that the conditions of their service 
involved duty or visitation in the Republic of Vietnam. VA proposes to 
amend 38 CFR 3.307(a)(6) to clarify that service in the offshore waters 
of the Republic of Vietnam--without an additional foot-on-land 
requirement--is considered service in Vietnam for the purpose of 
establishing presumption of in-service exposure to certain herbicide 
agents. Service in other locations will continue to constitute service 
in Vietnam if the conditions of service involved duty or visitation in 
the Republic of Vietnam.
    VA also proposes to amend 38 CFR 3.307(a)(6) by adding the 
parameters of what constitutes ``offshore waters'' from the BWN Act. 
See 38 U.S.C. 1116A(d). The Act includes a list of geographic points 
with their names and coordinates of latitude and longitude which, when 
connected by a series of lines, create the baseline from which the 12 
nautical miles that define the offshore waters of the Republic of 
Vietnam are measured.
    The BWN Act does not direct how the southwestern-most and northern-
most points of the offshore waters are to be connected to land, which 
would be necessary to create a fully defined geographic area. To define 
the offshore water of the Republic of Vietnam, the law provides 11 
geographic points located 12 miles seaward from the coast of the 
Republic of Vietnam. The law does not dictate how the end points 
connect to land. Initially, VA considered using straight lines to 
define where the end points connect to land. However, using a straight 
line to connect the westernmost point to land would bisect the southern 
tip of Vietnam's Phu Quoc Island. VA now proposes to have this line 
include the entire island. This Veteran-centric approach would help 
avoid denials of service connection for Veterans who may have been 
exposed in the coastal and inland waters of Phu Quoc. Further, VA views 
the inclusion of the offshore waters of Phu Quoc island to be 
consistent with Congress's intent that VA extend the presumption of in-
service exposure to certain herbicide agents to all applicable BWN 
veterans in a ``broad and comprehensive'' manner. See H.R. Rep. No. 
116-58, at 11 (2019) (discussing purpose of BWN Act vis-[agrave]-vis 
Procopio). As such, VA proposes to include the offshore areas of Phu 
Quoc Island to ensure that veterans who served in the offshore waters 
surrounding Phu Quoc Island are entitled to the same presumption.
    VA proposes to define the southwest demarcation of the offshore 
waters as a line extending from where the border of Cambodia and the 
Republic of Vietnam meet the shoreline (10[deg]30'54.42'' N,

[[Page 9805]]

104[deg]35'48.10'' E), to the points described as Phu Quoc Extension 
points A through E and on to Hon Nhan Island, Tho Chu Archipelago Kien 
Giang Province. The northern demarcation is proposed to be described as 
a line from the mid-point of the Ben Hai River, which denotes the 
demilitarized zone between the former North Vietnam and the Republic of 
Vietnam (17[deg]0'42.19'' N, 107[deg]6'35.47'' E), to the point 
described as Con Co Island, Binh Tri Thien Province.
    The proposed area that comprises the offshore waters of the 
Republic of Vietnam is designated solely for the purpose of determining 
presumption of in-service exposure to certain herbicide agents in order 
to establish entitlement to benefits under title 38 of the United 
States Code. The proposed rulemaking is not an endorsement of any 
state's sovereignty rights or jurisdiction under international law. The 
status of some of the waters in and around the area addressed in the 
proposed regulation was in dispute during the Vietnam Era and may still 
be in dispute. Because of this, the proposed rule includes a note in 38 
CFR 3.307 that clarifies that the purpose of the regulation is for 
claim adjudication purposes and is not a statement or endorsement of 
international boundaries.
    VA also proposes to amend 38 CFR 3.307(a)(6) for exposures related 
to service in the Korean demilitarized zone (DMZ) by proposing to 
expand the date range for presumption of exposure to certain herbicide 
agents for Veterans who served in units operating in or near the Korean 
DMZ. Currently, the date range contained in section 3.307(a)(6)(iv) is 
April 1, 1968, through August 31, 1971. The BWN Act expanded the date 
range to September 1, 1967, through August 31, 1971. 38 U.S.C. 
1116B(a)(2).
    Over the past few years, VA has received several requests to engage 
in rulemaking with regard to presumptive exposure to certain herbicide 
agents. Some of the requests have pertained to the Republic of Vietnam 
and its surrounds, such as Da Nang Harbor and Phu Quoc Island, and seem 
to be resolved by the BWN Act and this rulemaking, with the proposed 
changes to 38 CFR 3.307(a)(6) described above. That said, VA still 
welcomes any and all comments on these issues.
    There have also been requests to extend a presumption of exposure 
to certain herbicide agents to Veterans who served at additional 
locations outside Vietnam, such as Panama and Okinawa. In response to 
some of these requests, VA committed to open a rulemaking that would 
consider extending the presumption of exposure to certain herbicide 
agents beyond the categories of Veterans currently listed in 38 CFR 
3.307(a)(6)(iii)-(v). This is that rulemaking and, after serious 
consideration, VA is proposing to extend a presumption of exposure to 
certain herbicide agents by adding new paragraph 38 CFR 
3.307(a)(6)(xi), which would presume exposure to certain herbicide 
agents for Veterans who served in locations not otherwise listed under 
section 3.307(a)(6) where certain herbicides and their chemical 
components were tested, used or stored, based on information received 
from DoD.
    From 2018 to 2019, DoD reviewed thousands of government documents 
from a variety of sources to include the National Archives and Records 
Administration, Air Force Historical Research Agency, United States 
Department of Agriculture National Agricultural Library and Defense 
Technical Information Center. Information obtained from these documents 
was assessed against criteria developed jointly by VA and DoD to 
identify specific locations inside and outside the United States where 
certain herbicide agents and their chemical components were tested, 
used, or stored. The record of locations is a ``living document,'' and 
the Armed Forces Pest Management Board (AFPMB) has been assigned 
responsibility by the Under Secretary of Defense for Acquisition and 
Sustainment to maintain and update this list and ensure that it is 
current and accurate. The AFPMB conducts a review of the DoD list of 
locations annually and accepts submissions from members of the public 
in furtherance of updating the list.
    Because DoD's list is premised on a comprehensive review of 
thousands of government documents, and the list will continue to be 
informed and updated through the submission of evidence by members of 
the public as well as internal research, VA utilizes the list as the 
most reliable source of information informing the question of where to 
establish regulatory presumptions of exposure to certain herbicide 
agents. VA believes that the list's acknowledgment of certain herbicide 
agent usage, testing or storage at particular sites on particular dates 
warrants a presumption of exposure to certain herbicide agents that 
lessens the ordinary burden of proof for Veterans who reasonably would 
have visited those sites on those dates. See 38 U.S.C. 5107(a); 38 
U.S.C. 501(a)(1).
    In August 2019, DoD conveyed to VA its updated list of locations 
where certain herbicide agents were used, tested or stored. The list 
references (1) each location where certain herbicide agents were 
present, (2) the specific site of that presence, (3) the dates of that 
presence, (4) the purpose of that presence, (5) the personnel involved, 
and (6) the name of the herbicide agent or component involved. The list 
(and links to the criteria informing its creation) can be found at: 
https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp. While DoD is the lead agency for producing and 
updating the list of locations where certain herbicide agents were 
used, tested or stored, VA is the lead agency responsible for making 
this information easily accessible to Veterans and keeping them 
informed of the benefits to which they may be entitled based on their 
service. VA keeps the public informed by publishing the list on the VA 
public health website and updating the published list as locations are 
added or removed. In addition, VA will provide notice in the Federal 
Register whenever updates are made to the DoD list.
    Given that DoD will continue to maintain and update the list of 
locations where certain herbicide agents were used, tested or stored, 
VA proposes to implement a regulatory presumption of exposure that can 
evolve with the most current DoD list. Thus, VA proposes an additional 
paragraph to 38 CFR 3.307 that would presume exposure to certain 
herbicide agents for Veterans (who do not qualify for the presumption 
under paragraphs (a)(6)(iii)-(v) or new paragraphs (a)(6)(vi)-(x) 
discussed below in Section II.b.) whose circumstances of service 
reasonably would have placed them at a site of certain herbicide agent 
testing, use or storage on a date of certain herbicide testing, use or 
storage. The authoritative source regarding where and when certain 
herbicide agents were tested, used or stored, for purposes of this 
additional paragraph, would be the information provided by DoD that is 
publicly available on VA's website and through VA's notices in the 
Federal Register.
    This presumption would alleviate the need for a Veteran to have to 
prove actual involvement with certain herbicide agents, so long as that 
Veteran's circumstances of service would reasonably have placed the 
Veteran at certain sites on certain dates. For veterans who do not 
qualify for the presumption, VA will continue to consider and decide 
claims on a case-by-case basis considering all the evidence of record. 
Such Veterans will have the opportunity to present

[[Page 9806]]

evidence that they were exposed to certain herbicide agents, VA will 
consider all evidence of record (including lay statements) in rendering 
a determination on exposure, and VA will give the benefit of the doubt 
to the Veteran; but a presumption that lessens the ordinary burden of 
proof under 38 U.S.C. 5107 will not apply. Otherwise stated, Veterans 
in such a position will have the opportunity to establish in-service 
exposure to certain herbicide agents on a direct basis, but not a 
presumptive basis.
    The purpose of this regulatory change is to ensure consistency 
across VA adjudications, in accord with the most up-to-date information 
garnered by DoD. Structuring the regulation in this way will also 
eliminate the need for adjudicators to continually rely on sub-
regulatory guidance or the need for VA to amend its regulations every 
time DoD updates its list.
    For several reasons, VA decided not to propose to extend a 
regulatory presumption beyond the statutory requirements and the DoD 
list at this time. First, any official declaration by VA that a certain 
herbicide agent was presumably present in a particular location should 
be based on a comprehensive review of all available records, not based 
on speculation, assumption or limited evidence. While individual 
Veteran recollections, photographs and soil samples decades after the 
fact can provide relevant evidence in support of an individual's 
pursuit of direct service connection, it is most appropriate to rely on 
the most comprehensive review--from the agency that has access to the 
most relevant documents--when establishing a regulatory presumption. 
Second, as noted above, direct service connection remains available for 
any Veteran who alleges exposure to certain herbicide agents (no matter 
the Veteran's location of service), and due consideration will be given 
to all the evidence that veteran submits, with the benefit of the doubt 
given to the Veteran. Tailoring the presumption in this way does not at 
all foreclose any Veteran alleging exposure to certain herbicide agents 
from obtaining benefits. Third, there is reason for VA to be cautious 
in presuming or making declarations about herbicide agent presence when 
DoD has superior access to relevant records and superior knowledge of 
its own operations. While some inconsistency in government positions, 
statements and decisions is inevitable given the size and complexity of 
Federal operations, it is confusing and illogical for one agency to 
create a rule that will have the force and effect of law that by its 
very premise depends upon a factual proposition that another agency 
with superior expertise or authority does not credit. Otherwise stated, 
for VA to presume an herbicide agent presence that DoD steadfastly 
denies after exhaustive research could implicate issues beyond VA 
benefits and result in widespread confusion about what the government 
believes to be fact. The better resolution is for VA and members of the 
public to submit all relevant evidence to DoD, so that the DoD list 
continues to evolve with the most up-to-date information, and for 
veterans to continue to submit evidence along with their individual 
claims.
    VA recognizes that locations like Panama and Okinawa, Japan, are 
not on DoD's current list of locations where certain herbicide agents 
were used, tested or stored, and therefore would not warrant a 
presumption at this time. Ultimately, VA believes that linking its 
presumption with DoD's current herbicide agent list (which, as noted 
above, is a living document and therefore may evolve, upon the review 
of additional submitted evidence, to include locations like Panama and 
Okinawa) is the best course of action, but VA nevertheless welcomes all 
comments on this approach, or comments on Panama and Okinawa 
specifically, during the comment period for this rulemaking.

b. Amendments to Sec.  3.307 Based on the PACT Act

    As explained above, 38 CFR 3.307(a)(6) outlines the service 
requirements and other circumstances required for the presumption of 
exposure to certain herbicide agents. Currently, 38 CFR 3.307(a)(6) 
lists two locations as eligible for a presumption of exposure: the 
Republic of Vietnam and units that operated in or near the Korean DMZ 
in an area in which herbicides are known to have been applied. Based on 
section 403 of the PACT Act, VA is proposing to add the following 
locations to 38 CFR 3.307(a)(6) with corresponding eligible timeframes: 
(1) service in Thailand at any United States or Royal Thai base during 
the period beginning on January 9, 1962, and ending on June 30, 1976; 
(2) service in Laos during the period beginning on December 1, 1965, 
and ending on September 30, 1969; (3) service in Cambodia at Mimot or 
Krek, Kampong Cham Province during the period beginning on April 16, 
1969, and ending on April 30, 1969; (4) service in Guam or American 
Samoa, or in the territorial waters thereof, during the period 
beginning on January 9, 1962, and ending on July 31, 1980; and (5) 
service 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. These new locations will be added to 38 CFR 3.307(a)(6) by 
creating new paragraphs (a)(6)(vi-x).
    To determine the territorial waters of Guam and American Samoa, VA 
relied on coordinates from the National Oceanic and Atmospheric 
Administration. The electronic charts can be found here: https://charts.noaa.gov/InteractiveCatalog/nrnc.shtml#mapTabs-2.
    For claims based on service in Thailand, VA interprets the language 
of section 403 to include service on a ship that called to a coastal 
Thailand base. Section 403 provides a presumption of exposure to 
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. As the PACT Act definition of covered service in Thailand 
includes any United States or Royal Thai bases in Thailand, VA finds it 
reasonable to include service aboard a ship at any coastal Thailand 
base. Under this interpretation, any Veteran who served on a ship that 
called to a coastal base in Thailand is eligible for a presumption of 
exposure to certain herbicides.
    VA's current policy regarding claims based on Thailand service is 
contained in sub-regulatory guidance and considers exposure on a case-
by-case direct basis for security personnel, security patrol dog 
handlers, or other Service members whose daily activities placed them 
near the security perimeters of Thailand military bases during the 
Vietnam Era. Proposed 38 CFR 3.307(a)(6)(vi) would supplant that sub-
regulatory guidance, as this new paragraph would presume exposure to 
certain herbicides for all veterans who served in Thailand at any U.S. 
or Royal Thai base between January 9, 1962, and June 30, 1976, without 
regard to where on the base the veteran was located or what military 
job specialty the Veteran performed.
    For claims based on service in Johnston Atoll or on a ship that 
called to Johnston Atoll, 38 U.S.C. 1116(d)(5) defines covered service 
to include service ``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.'' Section 1116(d)(5) specifies two 
categories of service related to Johnston Atoll that constitute covered 
service: (1) service on Johnston Atoll and (2) service on a ship that 
called at Johnston Atoll. VA understands 38 U.S.C. 1116(d)(5)'s date 
range to refer to the dates of the veteran's service in the location 
(the

[[Page 9807]]

Atoll itself or on a ship), and that the date range provided in the 
statute applies to both categories. VA thus proposes to amend 38 CFR 
3.307(a)(6) to make clear that the presumption of exposure to certain 
herbicides applies when the veteran was present on Johnston Atoll, to 
include presence on the the ship when it called at Johnston Atoll, even 
if the veteran did not disembark, during the qualifying period.

III. Proposed Changes to Sec.  3.309 Diseases Subject to Presumptive 
Service Connection

    Based on the FY 2021 NDAA and section 404 of the PACT Act, VA 
proposes to amend its adjudication regulations by revising section 
3.309 to add bladder cancer, Parkinsonism, hypothyroidism, hypertension 
and MGUS to the list of diseases subject to presumptive service 
connection based on exposure to certain herbicide agents. VA proposes 
to add the five new conditions to the end of section 3.309(e), directly 
after soft tissue sarcoma.
    VA also proposes to include parenthetical language for Parkinsonism 
that identifies the most common forms of Parkinsonism known as 
Parkinson-plus syndromes (also referred to as atypical Parkinsonism). 
The most common Parkinson-plus syndromes are progressive supranuclear 
palsy (PSP), multiple system atrophy (MSA) (also referred to as Shy-
Drager syndrome), corticobasal degeneration (CBD), vascular 
Parkinsonism, and dementia with Lewy bodies (DLB).\2\ The purpose of 
this parenthetical language is to ensure that disorders that fall under 
the umbrella term Parkinsonism are not overlooked by claims processors, 
resulting in examinations not being requested when warranted.
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    \2\ Nicolaus R. McFarland. ``Diagnostic Approach to Atypical 
Parkinsonian Syndromes,'' Continuum (Minneap Minn). 2016 Aug; 22(4 
Movement Disorders)11171142. doi: 10.1212/CON.0000000000000348
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    Drug-induced Parkinsonism will not be included as a presumptive 
condition as its etiology stems from drug side effects, not exposure to 
certain herbicide agents. Furthermore, drug-induced Parkinsonism is a 
condition that usually subsides over time once the relevant drug is 
discontinued.\3\ Claims for service connection of drug-induced 
Parkinsonism will continue to be considered, as warranted, on a direct 
basis or on a secondary basis per 38 CFR 3.310(a), which states that 
service connection will be granted when a disability is determined to 
be proximately due to or the result of a service-connected disease or 
injury. If a Veteran has a diagnosis of drug-induced Parkinsonism and a 
medical examiner opines that the disease is due to medication required 
for a service-connected condition, the claim for service connection for 
drug-induced Parkinsonism may be granted on a secondary basis. To 
provide clarity, VA further proposes to add a new note to 38 CFR 
3.309(e) to explain that drug-induced Parkinsonism is not recognized as 
a disease associated with exposure to certain herbicide agents.
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    \3\ Shin, Hae-Won, and Sun Ju Chung. ``Drug-induced 
parkinsonism.'' Journal of clinical neurology (Seoul, Korea) vol. 
8,1 (2012): 15-21. doi:10.3988/jcn.2012.8.1.15
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IV. Proposed Changes to Sec.  3.313 Claims Based on Service in Vietnam

    38 CFR 3.313 provides regulatory guidance for establishing service 
connection for non-Hodgkin's lymphoma (NHL) based on service in 
``Vietnam.'' Currently, service connection for NHL requires a medical 
diagnosis and evidence showing service on land in Vietnam or service in 
Vietnam's offshore waters. (The current regulatory provision does not 
distinguish between ``Vietnam'' and the ``Republic of Vietnam.'') 
Before the Procopio decision, service solely in the offshore waters was 
not sufficient to grant service connection for any condition except 
NHL.
    Based on the definition of Vietnam's offshore waters in the BWN 
Act, claims for NHL will no longer be held to a separate standard of 
service connection than other conditions listed under 38 CFR 3.309(e). 
Furthermore, because the current regulatory guidance does not 
distinguish between ``Vietnam'' and the ``Republic of Vietnam,'' VA is 
proposing to amend its adjudication regulations to specify that in 
order to establish presumptive service connection for NHL, service must 
have been in the ``Republic of Vietnam,'' to ensure that the regulation 
is consistent with the statutory definition of Vietnam's offshore 
waters. VA notes that, in light of Procopio and the BWN Act, the scope 
and effect of section 3.313 are essentially coextensive with section 
3.309(e) as the latter applies to NHL. However, VA proposes to revise, 
rather than rescind, section 3.313 because this provision could have an 
independent effect in rare cases, as it does not depend on a rebuttable 
presumption of herbicide agent exposure.

V. Proposed Changes to Sec.  3.114 Change of Law or Department of 
Veterans Affairs Issue

    38 CFR 3.114(a), which provides effective date provisions in 
situations where there has been a change in law or VA issue, applies, 
in relevant part, to benefits awards to an individual suffering from 
spina bifida whose biological father or mother is or was a Vietnam 
Veteran or a Veteran with covered service in Korea. Since the BWN Act 
authorizes VA to extend these benefits to children of Veterans with 
covered service in Thailand, VA proposes to add individuals with spina 
bifida born to Veterans with covered service in Thailand as a category 
of claimants who are entitled to consideration for an effective date as 
specified in this regulation.
    Furthermore, VA proposes a clerical amendment to section 3.114(a) 
by replacing the word ``child'' with the phrase ``natural child'' 
wherever it occurs in the regulation. This is not a substantive 
regulatory change; it is merely a clerical amendment that reflects the 
statutory definition of ``child'' for purposes of benefits for children 
of certain veterans born with spina bifida. See 38 U.S.C. 1831(1).

VI. Proposed Changes to Sec.  3.814 Monetary Allowance Under 38 U.S.C. 
Chapter 18 for An Individual Suffering From Spina Bifida Whose 
Biological Father or Mother Is or Was a Vietnam Veteran or a Veteran 
With Covered Service in Korea

    Individuals born with spina bifida whose biological father or 
mother was determined to be exposed to certain herbicide agents in 
Vietnam or Korea have long been eligible for a monthly monetary 
allowance under 38 U.S.C. chapter 18, based on the severity of their 
spina bifida symptoms. However, this eligibility did not extend to 
natural children of Thailand Veterans for whom certain herbicide agent 
exposure has been conceded, nor did it extend to natural children of 
Veterans who served in the offshore waters of the Republic of Vietnam. 
38 CFR 3.814 is the regulation that provides for entitlement to this 
monetary allowance under 38 U.S.C. chapter 18 and sets forth the 
criteria that must be met in order to establish such entitlement. The 
BWN Act expanded eligibility for spina bifida benefits to natural 
children of certain Thailand Veterans, as well as natural children of 
Veterans who served in the offshore waters of the Republic of Vietnam. 
This proposed rulemaking updates the criteria accordingly.
    For purposes of spina bifida benefits for natural children of 
Thailand Veterans, the BWN Act, in 38 U.S.C. 1822, defined a Veteran of 
covered service in Thailand as ``any individual, without regard to the 
characterization of that individual's service, who--(1)

[[Page 9808]]

served in the active military, naval, or air service in Thailand, as 
determined by the Secretary in consultation with the Secretary of 
Defense, during the period beginning on January 9, 1962, and ending on 
May 7, 1975; and (2) is determined by the Secretary, in consultation 
with the Secretary of Defense, to have been exposed to a herbicide 
agent during such service in Thailand''
    As discussed above in Section II.b., the PACT Act expanded the list 
of locations eligible for a presumption of exposure to certain 
herbicides to include Thailand. The PACT Act defined covered service in 
Thailand, in 38 U.S.C. 1116(d)(2), as ``active military, naval, air, or 
space service-performed in Thailand at any United States or Royal Thai 
base during the period beginning on January 9, 1962, and ending on June 
30, 1976, without regard to where on the base the Veteran was located 
or what military job specialty the Veteran performed.'' Prior to the 
PACT Act, 38 U.S.C. 1822 provided benefits to children born with spina 
bifida whose parent served in Thailand any time between January 9, 
1962, and May 7, 1975. The PACT Act did not amend 38 U.S.C. 1822. For 
purposes of establishing entitlement to monetary benefits for spina 
bifida under 38 U.S.C. Chapter 18, VA proposes to define covered 
service in Thailand as ``service at any United States or Royal Thai 
base during the period beginning on January 9, 1962, and ending on May 
7, 1975, without regard to where on the base the Veteran was located or 
what military job specialty the Veteran performed.'' This definition 
includes the description of covered service from 38 U.S.C. 1116 but 
maintains the eligible time frame from 38 U.S.C. 1822. VA has 
determined that aligning the definitions of what characterizes Thailand 
service will improve the consistency of decisions for Thailand Veterans 
and their survivors.
    For the purposes of establishing entitlement to monetary benefits 
for spina bifida under 38 U.S.C. chapter 18, VA is proposing to include 
the offshore waters of the Republic of Vietnam in the definition of 
service in the Republic of Vietnam. In accordance with the BWN Act, VA 
further proposes to amend 38 CFR 3.814(c)(1) to align with the 
definition of ``service in the Republic of Vietnam'' set forth in the 
proposed amendment to 38 CFR 3.307(a)(6)(iii).
    Further, in accordance with the BWN Act, VA is extending the date 
range for establishing presumption of exposure along the Korean DMZ 
from April 1, 1968, through August 31, 1971, to September 1, 1967, 
through August 31, 1971. See 38 U.S.C. 1116B(a)(2). VA proposes to 
amend the start date in 38 CFR 3.814(c)(2) to reflect the date mandated 
by the new statute.
    VA also proposes replacing the phrase ``biological son or 
daughter'' in 38 CFR 3.814(c)(4) with ``natural child'' consistent with 
the clerical amendment proposed for 38 CFR 3.114(a).

VII. Proposed Changes to Sec.  3.815 Monetary Allowance Under 38 U.S.C. 
Chapter 18 for an Individual With Disability From Covered Birth Defects 
Whose Biological Mother Is or Was a Vietnam Veteran; Identification of 
Covered Birth Defects

    Prior to the BWN Act, if a Veteran mother only had service in the 
offshore waters of the Republic of Vietnam and did not go ashore or 
serve in the inland waterways, that service did not qualify for 
entitlement to a monthly monetary award for any natural children born 
with qualifying birth defects. The Act expanded the definition of 
``Vietnam Veteran'' to include Veterans who served in the offshore 
waters of the Republic of Vietnam. Therefore, VA proposes to amend 38 
CFR 3.815 accordingly.
    38 CFR 3.815 provides for a monetary allowance under 38 U.S.C. 1812 
for individuals with disability due to covered birth defects whose 
biological mother is or was a Vietnam Veteran. Covered birth defects 
include any birth defect other than familial disorders, birth-related 
injuries, or fetal or neonatal infirmity with well-established causes. 
All birth defects not excluded under these categories are covered birth 
defects. However, if an individual's only birth defect is spina bifida, 
their monthly monetary allowance will be paid under the provisions of 
38 U.S.C. 1803, 1821, and 1822, which provide a monthly monetary award 
for children of certain herbicide agent-exposed Veteran parents who 
served in Vietnam, Thailand or near the Korean DMZ.
    In accordance with the BWN Act, VA proposes to amend 38 CFR 
3.815(c)(1) to align the definition of ``service in the Republic of 
Vietnam'' with the definition set forth in the proposed amendment to 38 
CFR 3.307(a)(6)(iii).

VIII. Proposed Changes to Sec.  3.105 Revision of Decisions

    38 CFR 3.105(g), which describes procedural requirements for 
reductions in evaluations under 38 U.S.C. chapter 18 for children of 
certain herbicide agent-exposed Veterans, currently only applies to 
children of Vietnam Veterans born with spina bifida or children of 
Veterans with covered service in Korea born with spina bifida who were 
entitled to benefits. Because the BWN Act authorized VA to extend those 
benefits under 38 U.S.C. chapter 18 to children of certain Veterans who 
served in Thailand born with spina bifida, VA proposes to add these 
children to the category of claimants who are covered by the procedural 
provisions specified in this regulation. Since natural children of 
Veterans with covered service in Thailand are a newly covered type of 
claimant, it is necessary to add them as a category of claimants who 
are covered by the procedural provisions of 38 CFR 3.105. This ensures 
that benefits awarded to these claimants cannot be severed or reduced 
until the claimant has been afforded time to present evidence in 
support of maintaining their benefits.
    Finally, VA proposes a clerical amendment to section 3.105(g) by 
replacing the word ``children'' with the phrase ``natural children'' 
wherever it occurs in the regulation. As is true with the proposed 
amendment to 38 CFR 3.114(a), this is a clerical change made to reflect 
the statutory definition of ``child'' for purposes of benefits for 
children of certain Veterans born with spina bifida. See 38 U.S.C. 
1831(1).

IX. Proposed Changes to Sec.  3.816 Awards Under the Nehmer Court 
Orders for Disability or Death Caused by a Condition Presumptively 
Associated With Herbicide Exposure

    VA proposes to codify the current procedural guidance regarding 
locating the appropriate survivor(s) of a deceased Nehmer class member 
and defining the parameters of ``reasonable efforts'' to identify them. 
VA is also codifying its existing policy to pay newly identified 
qualifying payees before attempting recoupment from improperly 
compensated payees, rather than waiting for recoupment before paying 
the newly identified qualifying payees. The intent of this change is to 
ensure compliance with the Nehmer consent decree.
    Historically, VA has sought to locate payees for potential 
retroactive Nehmer benefits by sending letters to all dependents of 
record requesting the names, addresses and telephone numbers of all 
known survivors. VA will also seek to obtain proof of dependency 
documents such as birth certificates, marriages certificates and other 
proof of dependency, if necessary.
    If payees cannot be identified, VA will make reasonable efforts to 
locate payees as the information on file permits. For example, if a 
claimant's record identifies an authorized representative or a 
relative, it would be reasonable to contact such person to request 
information concerning the

[[Page 9809]]

existence of a surviving spouse, child(ren), parent(s) or the executor/
administrator of the class member's estate. It would be unreasonable to 
attempt to locate a payee where there is no evidence of record to 
suggest that the party would potentially qualify for retroactive 
benefits.
    If the evidence of record does not contain sufficient information 
to identify an eligible Nehmer class beneficiary, a letter will be sent 
to the last known address of the Veteran, and VA will wait 30 days for 
a response. If an address is unknown, an attempt will be made to 
contact the survivor by telephone to obtain their address.
    This proposed regulation codifies the procedure for locating Nehmer 
payees as follows: Claims processors must review the claims folder for 
relevant information and review other VA resources including, but not 
limited to, benefit applications, statements from the veteran, medical 
records, corporate database and claims processing system notes. If 
review of both the claims folder and electronic claims processing 
system do not provide beneficiary contact information, claims 
processors must contact any known authorized representatives of record 
(including those who provided first notice of death and/or funeral/
burial services). Claims processors also must attempt to locate 
potential payees using online public record investigation software 
authorized by VA. If, after this review, no beneficiary, authorized 
representative or next of kin is located, the claims processor will 
send (i) a letter to the Veteran's last known address and wait 30 days 
for a response and (ii) attempt contact via last known telephonic 
contact information. If no response is received at the expiration of 30 
days, the claims processor will annotate in the claims folder all 
actions taken to identify eligible payees. The claims processor will 
then add the claim data to communications with Nehmer class counsel, as 
VA is required to provide class counsel with a list of every claim 
where eligible survivors cannot be located.
    Given the universe of information in the VA benefits system 
available to claims processors and the measures VA proposes to identify 
eligible beneficiaries and contact individuals who may provide 
information about eligible beneficiaries unknown to VA, this procedural 
guidance constitutes what VA has determined to be reasonable efforts to 
identify all appropriate Nehmer payees. VA does not believe it is 
reasonable to pay private search firms or undertake extraordinary 
efforts beyond those identified in this regulation to identify 
potential payees.
    If, following such efforts, VA releases the full amount of unpaid 
benefits to a payee or payees, and additional qualifying payees 
subsequently identify themselves to VA, VA will pay the newly 
identified payee(s) the portion of the award to which they are 
entitled, and then attempt to recover the overpayment from the original 
payee(s). While this is consistent with VA's current policy, the 
revision is necessary in light of the December 2, 2021, amendment to 38 
CFR 3.816(f)(3), which was required by the November 10, 2021, court 
order in Nehmer v. U.S. Department of Veterans Affairs, No. C86-06160 
WHA (N.D. Cal.) vacating the final sentence of section 3.816(f)(3), 
directing VA to issue a rule rescinding that sentence and requiring VA 
to publish that rule in the Federal Register. See 86 FR 68409 (Dec. 2, 
2021). VA is obligated to issue payment to the newly identified 
payee(s) regardless of whether it previously disbursed the entirety of 
an award to the original payee(s). As noted by the U.S. Court of 
Appeals for Veterans Claims in Snyder v. Principi, the prior 
disbursement ``in no way impairs [VA's] authority and obligation to pay 
from the compensation . . . account the amount that is owed to the 
correct beneficiary.'' 15 Vet. App. 285, 292 (2001). This is because 
``the amount owed to the correct beneficiary, in fact, remains 
undisturbed in the compensation . . . account.'' Id. Nevertheless, 
payment to newly identified payees does not relieve VA of its 
corresponding obligation to recover the overpayment to the original 
payees. See 31 U.S.C. 3711(a)(1) (``The head of an executive, judicial, 
or legislative agency . . . shall try to collect a claim of the United 
States Government for money or property arising out of the activities 
of, or referred to, the agency.''); 38 CFR 1.910(a) (requiring VA to 
take ``aggressive collection action . . . to collect all claims for 
money or property arising from [VA's] activities''); see also Edwards 
v. Peake, 22 Vet. App. 57, 59 (2008) (noting that ``the Secretary 
generally is required to recover erroneous VA payments or overpayment 
of benefits'').

X. Severability

    The purpose of this section is to clarify the agency's intent with 
respect to the severability of provisions of this proposed rule. Each 
provision that the agency has proposed is capable of operating 
independently and the agency intends them to be severable. If any 
provision of this rule is determined by judicial review or operation of 
law to be invalid, the agency would not intend that partial 
invalidation to render the remainder of this rule invalid. Likewise, if 
the application of any portion of this proposed rule to a particular 
circumstance were determined to be invalid, the agencies would intend 
that the rule as proposed remain applicable to all other circumstances.

Executive Orders 12866, 13563 and 14094

    Executive Order (E.O.) 12866 (Regulatory Planning and Review) 
directs agencies to assess the costs and benefits of available 
regulatory alternatives and, when regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, and other 
advantages; distributive impacts; and equity). E.O. 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. E.O. 14094 (E.O. on Modernizing Regulatory 
Review) supplements and reaffirms the principles, structures, and 
definitions governing contemporary regulatory review established in 
E.O. 12866 of September 30, 1993 (Regulatory Planning and Review), and 
E.O. 13563 of January 18, 2011 (Improving Regulation and Regulatory 
Review). The Office of Information and Regulatory Affairs has 
determined that this rulemaking is a significant regulatory action 
under E.O. 12866, Section 3(f)(1), as amended by E.O. 14094. The 
Regulatory Impact Analysis associated with this rulemaking can be found 
as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). The factual basis for this certification is that no 
small entities or businesses provide Federal compensation or pension 
benefits to Veterans, and such entities or businesses therefore would 
be unaffected by the proposed rule. Therefore, pursuant to 5 U.S.C. 
605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

[[Page 9810]]

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on state, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Healthcare, Pensions, Radioactive materials, Veterans, Vietnam.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on January 9, 2024, and authorized the undersigned to 
sign and submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR 
part 3 as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

0
2. Amend Sec.  3.105 by revising paragraph (g) to read as follows:


Sec.  3.105  Revision of decisions.

* * * * *
    (g) Reduction in evaluation--monetary allowance under 38 U.S.C. 
chapter 18 for certain individuals who are natural children of Vietnam 
Veterans or natural children of Veterans with covered service in Korea 
or Thailand. Where a reduction or discontinuance of a monetary 
allowance currently being paid under 38 U.S.C. chapter 18 is considered 
warranted, VA will notify the beneficiary at his or her latest address 
of record of the proposed reduction, furnish detailed reasons 
therefore, and allow the beneficiary 60 days to present additional 
evidence to show that the monetary allowance should be continued at the 
present level. Unless otherwise provided in paragraph (i) of this 
section, if VA does not receive additional evidence within that period, 
it will take final rating action and reduce the award effective the 
last day of the month following 60 days from the date of notice to the 
beneficiary of the proposed reduction.
* * * * *
0
3. Amend Sec.  3.114 by:
0
a. Revising paragraph (a) introductory text;
0
b. Removing the authority citation immediately preceding paragraph (b); 
and
0
c. Revising the authority citation immediately following paragraph (b).
    The revisions read as follows:


Sec.  3.114  Change of law or Department of Veterans Affairs issue.

    (a) Effective date of award. Where pension, compensation, 
dependency and indemnity compensation, or a monetary allowance under 38 
U.S.C. chapter 18 for an individual who is a natural child of a Vietnam 
Veteran or natural child of a Veteran with covered service in Korea or 
Thailand is awarded or increased pursuant to a liberalizing law, or a 
liberalizing VA issue approved by the Secretary or by the Secretary's 
direction, the effective date of such award or increase shall be fixed 
in accordance with the facts found, but shall not be earlier than the 
effective date of the act or administrative issue. Where pension, 
compensation, dependency and indemnity compensation, or a monetary 
allowance under 38 U.S.C. chapter 18 for an individual who is a natural 
child of a Vietnam Veteran or natural child of a Veteran with covered 
service in Korea or Thailand is awarded or increased pursuant to a 
liberalizing law or VA issue which became effective on or after the 
date of its enactment or issuance, in order for a claimant to be 
eligible for a retroactive payment under the provisions of this 
paragraph the evidence must show that the claimant met all eligibility 
criteria for the liberalized benefit on the effective date of the 
liberalizing law or VA issue and that such eligibility existed 
continuously from that date to the date of claim or administrative 
determination of entitlement. The provisions of this paragraph are 
applicable to original and supplemental claims as well as claims for 
increase.
* * * * *
    (b) * * *

(Authority: 38 U.S.C. 1805, 1815, 1821, 1822, 1831, 1832, 5110(g))

0
4. Amend Sec.  3.307 by revising paragraphs (a)(6) introductory text, 
(a)(6)(iii) through (v), and adding paragraphs (a)(6)(vi) through (xi) 
to read as follows:


Sec.  3.307  Presumptive service connection for chronic, tropical, or 
prisoner-of-war related disease, disease associated with exposure to 
certain herbicide agents, or disease associated with exposure to 
contaminants in the water supply at Camp Lejeune; wartime and service 
on or after January 1, 1947.

    (a) * * *
    (6) Presumption of exposure to certain herbicide agents. (i) For 
the purposes of this section, the term ``herbicide agent'' means a 
chemical in an herbicide used in support of the United States and 
allied military operations in the Republic of Vietnam during the period 
beginning on January 9, 1962, and ending on May 7, 1975, specifically: 
2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.
* * * * *
    (iii) Service in the Republic of Vietnam. A veteran who, during 
active military, naval, or air service, served in the Republic of 
Vietnam during the period beginning on January 9, 1962 and ending on 
May 7, 1975, shall be presumed to have been exposed during such service 
to an herbicide agent, unless there is affirmative evidence to 
establish that the Veteran was not exposed to any such agent during 
that service. The last date on which such a Veteran shall be presumed 
to have been exposed to an herbicide agent shall be the last date on 
which he or she served in the Republic of Vietnam during the period 
beginning on January 9, 1962 and ending on May 7, 1975. Service in the 
Republic of Vietnam includes service in the offshore waters of the 
Republic of Vietnam. Service in the offshore waters of the Republic of 
Vietnam is defined as service in waters at any location not more than 
12 nautical miles seaward of a line commencing on the southwestern 
demarcation line of the waters of Vietnam and Cambodia. This line would 
encompass Phu Quoc island, terminating at the mid-point of the Ben Hai 
River, and intersecting the following points:

[[Page 9811]]



------------------------------------------------------------------------
      Points geographic names         Latitude north     Longitude east
------------------------------------------------------------------------
At Phu Quoc Extension Point A.....  10[deg]14'51.16''  104[deg]12'54.69'
                                                                       '
At Phu Quoc Extension Point B.....  10[deg]23'55.92''           104[deg]
                                                               7'56.91''
At Phu Quoc Extension Point C.....  10[deg]30'12.70''  103[deg]59'19.11'
                                                                       '
At Phu Quoc Extension Point D.....   9[deg]43'18.90''  102[deg]46'28.56'
                                                                       '
At Phu Quoc Extension Point E.....   9[deg]11'34.58''  103[deg]14'38.50'
                                                                       '
At Hon Nhan Island, Tho Chu               9[deg]15.0'      103[deg]27.0'
 Archipelago Kien Giang Province..
At Hon Da Island southeast of Hon         8[deg]22.8'      104[deg]52.4'
 Khoai Island Minh Hai Province...
At Tai Lon Islet, Con Dao Islet in        8[deg]37.8'      106[deg]37.5'
 Con Dao-Vung Toa Special Sector..
At Bong Lai Islet, Con Dao Islet..        8[deg]38.9'      106[deg]40.3'
At Bay Canh Islet, Con Dao Islet..        8[deg]39.7'      106[deg]42.1'
At Hon Hai Islet (Phu Qui group of        9[deg]58.0'       109[deg]5.0'
 islands) Thuan Hai Province......
At Hon Doi Islet, Thuan Hai              12[deg]39.0'      109[deg]28.0'
 Province.........................
At Dai Lanh point, Phu Khanh             12[deg]53.8'      109[deg]27.2'
 Province.........................
At Ong Can Islet, Phu Khanh              13[deg]54.0'      109[deg]21.0'
 Province.........................
At Ly Son Islet, Nghia Binh              15[deg]23.1'      109[deg] 9.0'
 Province.........................
At Con Co Island, Binh Tri Thien         17[deg]10.0'      107[deg]20.6'
 Province.........................
------------------------------------------------------------------------

    (iv) Service in or near the Korean Demilitarized Zone (DMZ). A 
Veteran who, during active military, naval, or air service, served 
between September 1, 1967, and August 31, 1971, in a unit that, as 
determined by DoD, operated in or near the Korean DMZ in an area in 
which certain herbicide agents are known to have been applied during 
that period, shall be presumed to have been exposed during such service 
to an herbicide agent, unless there is affirmative evidence to 
establish that the Veteran was not exposed to any such agent during 
that service. See also 38 CFR 3.814(c)(2).
    (v) Service operating, maintaining, or serving aboard C-123 
aircraft. An individual 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 shall be presumed to have been exposed during such service 
to an herbicide agent. For purposes of this paragraph, ``regularly and 
repeatedly operated, maintained, or served onboard C-123 aircraft'' 
means that the individual was assigned to an Air Force or Air Force 
Reserve squadron when the squadron was permanently assigned one of the 
affected aircraft and the individual had an Air Force Specialty Code 
indicating duties as a flight, ground maintenance, or medical crew 
member on such aircraft. Such exposure constitutes an injury under 38 
U.S.C. 101(24)(B) and (C). If an individual described in this paragraph 
develops a disease listed in 38 CFR 3.309(e) as specified in paragraph 
(a)(6)(ii) of this section, it will be presumed that the individual 
concerned became disabled during that service for purposes of 
establishing that the individual served in the active military, naval, 
or air service.
    (vi) Service in Thailand. A veteran who, during active military, 
naval, or air service, 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, without regard to where on the base the Veteran was 
located or what military job specialty the Veteran performed, shall be 
presumed to have been exposed during such service to an herbicide 
agent, unless there is affirmative evidence to establish that the 
Veteran was not exposed to any such agent during that service. Service 
at any United States or Royal Thai base includes service aboard a ship 
that called to a coastal base in Thailand.
    (vii) Service in Laos. A veteran who, during active military, 
naval, or air service, served in Laos during the period beginning on 
December 1, 1965, and ending on September 30, 1969, shall be presumed 
to have been exposed during such service to an herbicide agent, unless 
there is affirmative evidence to establish that the Veteran was not 
exposed to any such agent during that serviche.
    (viii) Service in Cambodia. A veteran who, during active military, 
naval, or air service, served in Cambodia at Mimot or Krek, Kampong 
Cham Province during the period beginning on April 16, 1969, and ending 
on April 30, 1969, shall be presumed to have been exposed during such 
service to an herbicide agent, unless there is affirmative evidence to 
establish that the Veteran was not exposed to any such agent during 
that service.
    (ix) Service in Guam or American Samoa. A Veteran who, during 
active military, naval, or air service, served in Guam or American 
Samoa, or in the territorial waters thereof, during the period 
beginning on January 9, 1962, and ending on July 31, 1980, shall be 
presumed to have been exposed during such service to an herbicide 
agent, unless there is affirmative evidence to establish that the 
Veteran was not exposed to any such agent during that service.
    (x) Service on Johnston Atoll. A Veteran who, during active 
military, naval, or air service, served on Johnston Atoll or served on 
a ship when it called at Johnston Atoll during the period beginning on 
January 1, 1972, and ending on September 30, 1977, shall be presumed to 
have been exposed during such service to an herbicide agent, unless 
there is affirmative evidence to establish that the Veteran was not 
exposed to any such agent during that service.
    (xi) Service in locations recognized by the Department of Defense. 
A veteran who does not meet the requirements of paragraphs (a)(6)(iii)-
(x) of this section, and whose circumstances of service reasonably 
would have placed the Veteran at a site of certain herbicide agent 
testing, use, or storage on a date of certain herbicide agent testing, 
use, or storage, shall be presumed to have been exposed to an herbicide 
agent during such service, unless there is affirmative evidence to 
establish that the Veteran was not exposed to any such agent during 
that service. The DoD List of Locations Where Tactical Herbicides and 
Their Chemical Components Were Tested, Used, or Stored Outside of 
Vietnam, published on VA's website, is the authoritative source 
regarding where and when certain herbicide agents were tested, used or 
stored for purposes of this paragraph, and can be found at: https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp. VA will publish changes to this list in the Notices section 
of the Federal Register.
* * * * *
0
5. Amend Sec.  3.309 by revising paragraph (e) to read as follows:

[[Page 9812]]

Sec.  3.309  Disease subject to presumptive service connection.

* * * * *
    (e) Disease associated with exposure to certain herbicide agents. 
If a Veteran was exposed to an herbicide agent during active military, 
naval, or air service, the following diseases shall be service 
connected if the requirements of Sec.  3.307(a)(6) are met even though 
there is no record of such disease during service, provided further 
that the rebuttable presumption provisions of Sec.  3.307(d) are also 
satisfied.

AL amyloidosis
Chloracne or other acneform disease consistent with chloracne.
Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset 
diabetes),
Hodgkin's disease
Ischemic heart disease (including, but not limited to, acute, subacute, 
and old myocardial infarction; atherosclerotic cardiovascular disease 
including coronary artery disease (including coronary spasm) and 
coronary bypass surgery; and stable, unstable and Prinzmetal's angina)
All chronic B-cell leukemias (including, but not limited to, hairy-cell 
leukemia and chronic lymphocytic leukemia)
Multiple myeloma
Non-Hodgkin's lymphoma
Parkinson's disease
Early-onset peripheral neuropathy
Porphyria cutanea tarda
Prostate cancer
Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)
Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's 
sarcoma, or mesothelioma)
Bladder cancer
Parkinsonism (including, but not limited to, the following Parkinson-
plus syndromes (also referred to as ``atypical Parkinsonism''): 
progressive supranuclear palsy (PSP), multiple system atrophy (MSA) 
(also referred to as Shy-Drager syndrome), corticobasal degeneration 
(CBD), vascular Parkinsonism, and dementia with Lewy bodies (DLB))
Hypothyroidism
Hypertension
Monoclonal gammopathy of undetermined significance (MGUS)


    Note 1: The term ``soft-tissue sarcoma'' includes the following:


Adult fibrosarcoma
Dermatofibrosarcoma protuberans
Malignant fibrous histiocytoma
Liposarcoma
Leiomyosarcoma
Epithelioid leiomyosarcoma (malignant leiomyoblastoma)
Rhabdomyosarcoma
Ectomesenchymoma
Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)
Proliferating (systemic) angioendotheliomatosis
Malignant glomus tumor
Malignant hemangiopericytoma
Synovial sarcoma (malignant synovioma)
Malignant giant cell tumor of tendon sheath
Malignant schwannoma, including malignant schwannoma with 
rhabdomyoblastic differentiation (malignant Triton tumor), glandular 
and epithelioid malignant schwannomas
Malignant mesenchymoma
Malignant granular cell tumor
Alveolar soft part sarcoma
Epithelioid sarcoma
Clear cell sarcoma of tendons and aponeuroses
Extraskeletal Ewing's sarcoma
Congenital and infantile fibrosarcoma
Malignant ganglioneuroma


    Note 2: For purposes of this section, the term ischemic heart 
disease does not include hypertension or peripheral manifestations 
of arteriosclerosis such as peripheral vascular disease or stroke, 
or any other condition that does not qualify within the generally 
accepted medical definition of Ischemic heart disease.


    Note 3: Drug-induced Parkinsonism is not recognized as a disease 
associated with exposure to certain herbicide agents.

* * * * *
0
6. Revise Sec.  3.313 to read as follows:


Sec.  3.313  Claims based on service in the Republic of Vietnam.

    (a) Service in the Republic of Vietnam. Service in the Republic of 
Vietnam includes service in the offshore waters of the Republic of 
Vietnam as defined in 38 CFR 3.307(a)(6)(iii). Service in other 
locations will constitute service in the Republic of Vietnam if the 
conditions of service involved duty or visitation in the Republic of 
Vietnam.
    (b) Service connection based on service in the Republic of Vietnam. 
Service in the Republic of Vietnam during the Vietnam Era together with 
the development of non-Hodgkin's lymphoma manifested subsequent to such 
service is sufficient to establish service connection for that disease.
0
7. Amend Sec.  3.814 by revising the section heading, paragraph (c), 
and the authority citation at the end of the section to read as 
follows:


Sec.  3.814  Monetary allowance under 38 U.S.C. chapter 18 for an 
individual suffering from spina bifida whose biological father or 
mother is or was a Vietnam Veteran or a Veteran with covered service in 
Korea or Thailand.

* * * * *
    (c) Definitions--(1) Vietnam veteran. For the purposes of this 
section, the term ``Vietnam Veteran'' means a person who performed 
active military, naval, or air service in the Republic of Vietnam 
during the period beginning on January 9, 1962, and ending on May 7, 
1975, without regard to the characterization of the person's service. 
Service in the Republic of Vietnam includes service in the offshore 
waters of the Republic of Vietnam as defined in 38 CFR 
3.307(a)(6)(iii). Service in other locations will constitute service in 
the Republic of Vietnam if the conditions of service involved duty or 
visitation in the Republic of Vietnam.
    (2) Covered service in Korea. For the purposes of this section, the 
term ``Veteran with covered service in Korea'' means a person who 
served in the active military, naval, or air service in or near the 
Korean DMZ between September 1, 1967, and August 31, 1971, and who is 
determined by VA, in consultation with the DoD, to have been exposed to 
an herbicide agent during such service. Exposure to an herbicide agent 
will be conceded if the Veteran served between September 1, 1967, and 
August 31, 1971, in a unit that, as determined by the Department of 
Defense, operated in or near the Korean DMZ in an area in which certain 
herbicide agents are known to have been applied during that period, 
unless there is affirmative evidence to establish that the Veteran was 
not exposed to any such agent during that service.
    (3) Covered service in Thailand. For the purposes of this section, 
the term ``covered service in Thailand'' means service in Thailand at 
any United States or Royal Thai base during the period beginning on 
January 9, 1962, and ending on May 7, 1975, without regard to where on 
the base the Veteran was located or what military job specialty the 
Veteran performed.
    (4) Individual. For the purposes of this section, the term 
``individual'' means a person, regardless of age or marital status, 
whose biological father or mother is or was a Vietnam Veteran and who 
was conceived after the date on which the veteran first served in the 
Republic of Vietnam during the Vietnam Era, or whose biological father 
or mother is or was a Veteran with covered service in Korea or Thailand 
and who was conceived after the date on which the Veteran first had 
covered service in

[[Page 9813]]

Korea or Thailand as defined in this section. Notwithstanding the 
provisions of Sec.  3.204(a)(1), VA will require the types of evidence 
specified in Sec. Sec.  3.209 and 3.210 sufficient to establish in the 
judgment of the Secretary that a person is the natural child of a 
Vietnam Veteran or a Veteran with covered service in Korea or Thailand.
    (5) Spina bifida. For the purposes of this section, the term 
``spina bifida'' means any form and manifestation of spina bifida 
except spina bifida occulta.
* * * * *
(Authority: 38 U.S.C. 501, 1116A, 1116B, 1805, 1811, 1812, 1821, 
1822, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112)

0
8. Amend Sec.  3.815 by revising paragraph (c)(1) and the authority 
citation at the end of the section to read as follows:


Sec.  3.815  Monetary allowance under 38 U.S.C. chapter 18 for an 
individual with disability from covered birth defects whose biological 
mother is or was a Vietnam Veteran; identification of covered birth 
defects.

* * * * *
    (c) * * *
    (1) Vietnam Veteran. For the purposes of this section, the term 
Vietnam veteran means a person who performed active military, naval, or 
air service in the Republic of Vietnam during the period beginning on 
February 28, 1961, and ending on May 7, 1975, without regard to the 
characterization of the person's service. Service in the Republic of 
Vietnam includes service in the waters offshore of the Republic of 
Vietnam, as defined in 38 CFR 3.307(a)(6)(iii). Service in other 
locations will constitute service in the Republic of Vietnam if the 
conditions of service involved duty or visitation in the Republic of 
Vietnam.
* * * * *

(Authority: 38 U.S.C. 501, 1116A, 1811, 1812, 1813, 1814, 1815, 
1816, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112)

0
9. Amend Sec.  3.816 by revising paragraph (f)(3) and the authority 
citation at the end of the section to read as follows:


Sec.  3.816  Awards under the Nehmer Court Orders for disability or 
death caused by a condition presumptively associated with herbicide 
exposure.

* * * * *
    (f) * * *
    (3) Identifying payees. VA shall make reasonable efforts to 
identify the appropriate payee(s) under paragraph (f)(1) of this 
section. For the purposes of this section, reasonable efforts to locate 
a Nehmer payee are limited to the following:
    (i) Claims processors must review the claims folder for beneficiary 
contact information. Documents in the claims folder that might contain 
this contact information can include but are not limited to:
    (A) benefit applications;
    (B) statements from the Veteran; and
    (C) medical records
    (ii) Claims processors must review electronic claims processing 
systems for potential beneficiary contact information, including:
    (A) corporate database review, and
    (B) claims processing system notes review
    (iii) Claims processors must utilize online public record 
investigation software authorized by VA to locate potential beneficiary 
contact information.
    (iv) If review of both the claims folder and electronic claims 
processing systems do not provide contact information, VA will attempt 
to contact any known or applicable authorized representatives of 
record, next of kin, individuals who provided first notice of death, 
the executor/administrator of the class member's estate, or funeral 
homes that provided funeral/burial services, if that information is 
available.
    (v) If no beneficiary, authorized representative, next of kin, 
individuals who provided first notice of death, executor/administrator 
of the class member's estate, or funeral home that provided funeral/
burial services is located in the review above, then claims processors 
must:
    (A) Send a letter to the last known address of the veteran and wait 
30 days for a response, and
    (B) Attempt contact via the Veteran's last known telephonic contact 
information found in the Veteran's file.
    (vi) If, following such efforts, VA releases the full amount of 
unpaid benefits to a payee, and additional qualifying payees 
subsequently identify themselves to VA, VA will pay the newly 
identified payees the portion of the award to which they are entitled, 
and then attempt to recover the overpayment from the original payee(s).
* * * * *

(Authority: 38 U.S.C. 501)

[FR Doc. 2024-02590 Filed 2-9-24; 8:45 am]
BILLING CODE 8320-01-P