38 U.S.C. § 1116B — Presumption of herbicide exposure for

Page 170 TITLE 38—VETERANS’ BENEFITS § 1116B Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–23, § 2(g), June 25, 2019, 133 Stat. 969, pro- vided that: ‘‘The amendments made by this section [en- acting this section and amending section 1710 of this title] shall take effect on January 1, 2020.’’ IMPLEMENTATION Pub. L. 116–23, § 2(c), June 25, 2019, 133 Stat. 968, pro- vided that: ‘‘(1) GUIDANCE.—Notwithstanding section 501 of such title, the Secretary of Veterans Affairs may issue guid- ance to implement section 1116A of title 38, United States Code, as added by subsection (a), before pre- scribing new regulations under such section. ‘‘(2) UPDATES.—(A) Not later than 120 days after the date of the enactment of this Act [June 25, 2019], the Secretary shall submit a report to the Committees on Veterans’ Affairs of the House of Representatives and the Senate regarding the plans of the Secretary— ‘‘(i) to conduct outreach under subsection (d); and ‘‘(ii) to respond to inquiries from veterans regard- ing claims for disability compensation under section 1116A of title 38, United States Code, as added by sub- section (a) of this section. ‘‘(B) On a quarterly basis during the period beginning on the date of the enactment of this Act and ending on the date on which regulations are prescribed to carry out such section 1116A, the Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate updates on the status of such regulations. ‘‘(3) PENDING CASES.— ‘‘(A) AUTHORITY TO STAY.—The Secretary may stay a claim described in subparagraph (B) until the date on which the Secretary commences the implementa- tion of such section 1116A. ‘‘(B) CLAIMS DESCRIBED.—A claim described in this subparagraph is a claim for disability compensation— ‘‘(i) relating to the service and diseases covered by such section 1116A; and ‘‘(ii) that is pending at the Veterans Benefits Ad- ministration or the Board of Veterans’ Appeals on or after the date of the enactment of this Act and before the date on which the Secretary commences the implementation of such section 1116A.’’ OUTREACH Pub. L. 116–23, § 2(d), June 25, 2019, 133 Stat. 968, pro- vided that: ‘‘(1) REQUIREMENT.—The Secretary of Veterans Af- fairs shall conduct outreach to inform veterans de- scribed in paragraph (2) of the ability to submit a claim for disability compensation under section 1116A of title 38, United States Code, as added by subsection (a). Such outreach shall include the following: ‘‘(A) The Secretary shall publish on the website of the Department a notice that a veterans [sic] de- scribed in paragraph (2) may submit or resubmit a claim for disability compensation under such section 1116A. ‘‘(B) The Secretary shall notify in writing the vet- eran service organization community of the ability of veterans described in paragraph (2) to submit or re- submit claims for disability compensation under such section 1116A. ‘‘(2) VETERAN DESCRIBED.—A veteran described in this paragraph is a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.’’ § 1116B. Presumption of herbicide exposure for certain veterans who served in Korea (a) PRESUMPTION OF SERVICE-CONNECTION.—(1) For the purposes of section 1110 of this title, and subject to section 1113 of this title, a disease specified in subsection (b) that becomes mani- fest as specified in that subsection in a veteran described in paragraph (2) shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evi- dence of such disease during the period of such service. (2) A veteran described in this paragraph is a veteran who, during active military, naval, or air service, served in or near the Korean Demili- tarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971. (b) DISEASES.—A disease specified in this sub- section is— (1) a disease specified in paragraph (2) of sub- section (a) of section 1116 of this title that be- comes manifest as specified in that paragraph; or (2) any additional disease that— (A) pursuant to subchapter VII of this chapter, the Secretary determines in regula- tions warrants a presumption of service-con- nection by reason of having positive associa- tion with exposure to an herbicide agent; and (B) becomes manifest within any period prescribed in such regulations. (c) HERBICIDE AGENT.—For purposes of this section, the term ‘‘herbicide agent’’ has the meaning given such term in section 1821(d) of this title. (Added Pub. L. 116–23, § 3(a), June 25, 2019, 133 Stat. 969; amended Pub. L. 117–168, title II, § 202(d)(2), Aug. 10, 2022, 136 Stat. 1775.) Editorial Notes AMENDMENTS 2022—Subsec. (b)(2)(A). Pub. L. 117–168 inserted ‘‘pur- suant to subchapter VII of this chapter,’’ before ‘‘the Secretary determines’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–23, § 3(d), June 25, 2019, 133 Stat. 970, pro- vided that: ‘‘The amendments made by this section [en- acting this section] shall take effect on January 1, 2020.’’ IMPLEMENTATION Pub. L. 116–23, § 3(c), June 25, 2019, 133 Stat. 970, pro- vided that: ‘‘(1) GUIDANCE.—Notwithstanding section 501 of such title, the Secretary of Veterans Affairs may issue guid- ance to implement section 1116B of title 38, United States Code, as added by subsection (a), before pre- scribing new regulations under such section. ‘‘(2) UPDATES.—(A) Not later than 120 days after the date of the enactment of this Act [June 25, 2019], the Secretary shall submit a report to the Committees on Veterans’ Affairs of the House of Representatives and the Senate regarding the plans of the Secretary to re- spond to inquiries from veterans regarding claims for disability compensation under section 1116B of title 38, United States Code, as added by subsection (a) of this section. ‘‘(B) On a quarterly basis during the period beginning on the date of the enactment of this Act and ending on the date on which regulations are prescribed to carry out such section 1116B, the Secretary shall submit to Page 171 TITLE 38—VETERANS’ BENEFITS § 1117 1 See References in Text note below. the Committees on Veterans’ Affairs of the House of Representatives and the Senate updates on the status of such regulations. ‘‘(3) PENDING CASES.— ‘‘(A) AUTHORITY TO STAY.—The Secretary may stay a claim described in subparagraph (B) until the date on which the Secretary commences the implementa- tion of section 1116B of title 38, United States Code, as added by subsection (a). ‘‘(B) CLAIMS DESCRIBED.—A claim described in this subparagraph is a claim for disability compensation— ‘‘(i) relating to the service and diseases covered by such section 1116B; and ‘‘(ii) that is pending at the Veterans Benefits Ad- ministration or the Board of Veterans’ Appeals on or after the date of the enactment of this Act and before the date on which the Secretary commences the implementation of such section 1116B.’’ § 1117. Compensation for disabilities occurring in Persian Gulf War veterans (a)(1) The Secretary may pay compensation under this subchapter to a Persian Gulf veteran with a qualifying chronic disability that became manifest to any degree at any time. (2) For purposes of this subsection, the term ‘‘qualifying chronic disability’’ means a chronic disability resulting from any of the following (or any combination of any of the following): (A) An undiagnosed illness. (B) A medically unexplained chronic multi- symptom illness (such as chronic fatigue syn- drome, fibromyalgia, and irritable bowel syn- drome) that is defined by a cluster of signs or symptoms. (C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (c) warrants a presumption of serv- ice-connection. (b)(1) Whenever the Secretary determines under section 1118(c) 1 of this title that a pre- sumption of service connection previously estab- lished under this section is no longer war- ranted— (A) a veteran who was awarded compensa- tion under this section on the basis of the pre- sumption shall continue to be entitled to re- ceive compensation under this section on that basis; and (B) a survivor of a veteran who was awarded dependency and indemnity compensation for the death of a veteran resulting from the dis- ease on the basis of the presumption before that date shall continue to be entitled to re- ceive dependency and indemnity compensation on that basis. (2) This subsection shall cease to be effective on September 30, 2011. (c)(1) The Secretary shall prescribe regula- tions to carry out this section. (2) Those regulations shall include the fol- lowing: (A) A description of the period and geo- graphical area or areas of military service in connection with which compensation under this section may be paid. (B) A description of the illnesses for which compensation under this section may be paid. (C) A description of any relevant medical characteristic (such as a latency period) asso- ciated with each such illness. (d) If a Persian Gulf veteran at a medical facil- ity of the Department presents with any one symptom associated with Gulf War Illness, the Secretary shall ensure that health care per- sonnel of the Department use a disability bene- fits questionnaire, or successor questionnaire, designed to identify Gulf War Illness, in addition to any other diagnostic actions the personnel determine appropriate. (e) A disability for which compensation under this subchapter is payable shall be considered to be service connected for purposes of all other laws of the United States. (f) For purposes of this section, the term ‘‘Per- sian Gulf veteran’’ means a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations, Afghani- stan, Israel, Egypt, Turkey, Syria, or Jordan, during the Persian Gulf War. (g) For purposes of this section, signs or symp- toms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include the following: (1) Fatigue. (2) Unexplained rashes or other dermato- logical signs or symptoms. (3) Headache. (4) Muscle pain. (5) Joint pain. (6) Neurological signs and symptoms. (7) Neuropsychological signs or symptoms. (8) Signs or symptoms involving the upper or lower respiratory system. (9) Sleep disturbances. (10) Gastrointestinal signs or symptoms. (11) Cardiovascular signs or symptoms. (12) Abnormal weight loss. (13) Menstrual disorders. (h)(1) If the Secretary determines with respect to a medical research project sponsored by the Department that it is necessary for the conduct of the project that Persian Gulf veterans in re- ceipt of compensation under this section or sec- tion 1118 of this title participate in the project without the possibility of loss of service connec- tion under either such section, the Secretary shall provide that service connection granted under either such section for disability of a vet- eran who participated in the research project may not be terminated. Except as provided in paragraph (2), notwithstanding any other provi- sion of law any grant of service-connection pro- tected under this subsection shall remain serv- ice-connected for purposes of all provisions of law under this title. (2) Paragraph (1) does not apply in a case in which— (A) the original award of compensation or service connection was based on fraud; or (B) it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. (3) The Secretary shall publish in the Federal Register a list of medical research projects spon- sored by the Department for which service con- nection granted under this section or section 1118 of this title may not be terminated pursu- ant to paragraph (1). (i)(1) The Secretary shall take such actions as may be necessary to ensure that health care per-