38 U.S.C. § 1172 — Annual notice and opportunity for public

Page 201 TITLE 38—VETERANS’ BENEFITS § 1172 1 Another section 1167 is set out preceding section 1168. (c) TOXIC EXPOSURE RISK ACTIVITY DEFINED.— In this section, the term ‘‘toxic exposure risk activity’’ has the meaning given that term in section 1710(e)(4) of this title. (Added Pub. L. 117–168, title III, § 303, Aug. 10, 2022, 136 Stat. 1779.) § 1167.1 Mental health consultations (a) IN GENERAL.—Not later than 30 days after the date on which a veteran submits to the Sec- retary a claim for compensation under this chapter for a service-connected disability relat- ing to a mental health diagnosis, the Secretary shall offer the veteran a mental health consulta- tion to assess the mental health needs of, and care options for, the veteran. (b) AVAILABILITY.—The Secretary shall— (1) offer a veteran a consultation under sub- section (a) without regard to any previous de- nial or approval of a claim of that veteran for a service-connected disability relating to a mental health diagnosis; and (2) ensure that a veteran offered a mental health consultation under subsection (a) may elect to receive such consultation during the one-year period beginning on the date on which the consultation is offered or during such longer period beginning on such date as the Secretary considers appropriate. (c) RULE OF CONSTRUCTION.—A consultation provided to a veteran under this section shall not be construed as a determination that any disability of such veteran is service-connected for the purposes of any benefit under the laws administered by the Secretary. (Added Pub. L. 117–328, div. V, title IV, § 404(a)(1), Dec. 29, 2022, 136 Stat. 5512.) SUBCHAPTER VII—DETERMINATIONS RE- LATING TO PRESUMPTIONS OF SERVICE CONNECTION BASED ON TOXIC EXPO- SURE § 1171. Procedures to determine presumptions of service connection based on toxic exposure; definitions (a) PROCEDURES.—The Secretary shall deter- mine whether to establish, or to remove, pre- sumptions of service connection based on toxic exposure pursuant to this subchapter, whereby— (1) under section 1172 of this title— (A) the Secretary provides— (i) public notice regarding what formal evaluations the Secretary plans to con- duct; and (ii) the public an opportunity to com- ment on the proposed formal evaluations; (B) the working group established under subsection (b) of such section provides— (i) advice to the Secretary on toxic-ex- posed veterans and cases in which veterans who, during active military, naval, air, or space service, may have experienced a toxic exposure or their dependents may have experienced a toxic exposure while the veterans were serving in the active military, naval, air, or space service; (ii) recommendations to the Secretary on corrections needed in the Individual Longitudinal Exposure Record to better reflect veterans and dependents described in clause (i); and (iii) recommendations to the Secretary regarding which cases of possible toxic ex- posure should be reviewed; (2) the Secretary provides for formal evalua- tions of such recommendations under section 1173 of this title and takes into account re- ports received by the Secretary from the Na- tional Academies of Sciences, Engineering, and Medicine under section 1176 of this title; and (3) the Secretary issues regulations under section 1174 of this title. (b) DEFINITIONS.—In this subchapter: (1) The term ‘‘illness’’ includes a disease or other condition affecting the health of an indi- vidual, including mental and physical health. (2) The term ‘‘Individual Longitudinal Expo- sure Record’’ includes— (A) service records; (B) any database maintained by the De- partment of Defense and shared with the De- partment of Veterans Affairs to serve as a central portal for exposure-related data that compiles, collates, presents, and provides available occupational and environmental exposure information to support the needs of the Department of Defense and the Depart- ment of Veterans Affairs; or (C) any successor system to a database de- scribed in subparagraph (B). (Added Pub. L. 117–168, title II, § 202(a), Aug. 10, 2022, 136 Stat. 1767.) Statutory Notes and Related Subsidiaries CORRECTION OF EXPOSURE RECORDS BY MEMBERS OF THE ARMED FORCES AND VETERANS Pub. L. 117–168, title VIII, § 803, Aug. 10, 2022, 136 Stat. 1802, provided that: ‘‘(a) IN GENERAL.—The Secretary of Veterans Affairs shall coordinate with the Secretary of Defense to pro- vide a means for veterans to update their records as necessary to reflect exposures to occupational or envi- ronmental hazards by such member or veteran in the Individual Longitudinal Exposure Record. ‘‘(b) EVIDENCE.— ‘‘(1) PROVISION OF EVIDENCE.—To update a record under subsection (a), a veteran shall provide such evi- dence as the Secretary of Veterans Affairs considers necessary. ‘‘(2) REGULATIONS.—The Secretary of Veterans Af- fairs shall prescribe by regulation the evidence con- sidered necessary under paragraph (1). ‘‘(c) DEFINITIONS.—In this section: ‘‘(1) INDIVIDUAL LONGITUDINAL EXPOSURE RECORD.— The term ‘Individual Longitudinal Exposure Record’ has the meaning given such term in section 1171 of title 38, United States Code, as added by section 202. ‘‘(2) TOXIC EXPOSURE.—The term ‘toxic exposure’ has the meaning given such term in section 101 of title 38, United States Code, as amended by section 102(b).’’ § 1172. Annual notice and opportunity for public comment (a) NOTICE REQUIRED.—(1)(A) Not less fre- quently than once each year, the Secretary shall Page 202 TITLE 38—VETERANS’ BENEFITS § 1173 publish in the Federal Register notice of the for- mal evaluations that the Secretary plans to con- duct pursuant to section 1173 of this title. (B) Each notice published under subparagraph (A) shall include, for each formal evaluation re- ferred to in the notice, an explanation as to why the military environmental exposures and ad- verse health outcomes that are the subject of the formal evaluation were chosen by the Sec- retary for formal evaluation under section 1173 of this title. (2)(A) With each notice published under para- graph (1), the Secretary shall seek public com- ment on the military environmental exposures and adverse health outcomes that are the sub- ject of the formal evaluations referred to in the notice. (B) The Secretary shall— (i) consider all public comment received under subparagraph (A); and (ii) publish in the Federal Register a re- sponse to the comments received under sub- paragraph (A). (3)(A) For each notice published under para- graph (1), the Secretary shall hold an open meet- ing for members of the public to voice their comments in response to the notice. (B) To help evaluate presumptions of service connection, the Secretary shall, not less fre- quently than quarterly, collaborate with, part- ner with, and give weight to the advice of vet- erans service organizations and such other stakeholders as the Secretary considers appro- priate. (4) Failure to include a military environ- mental exposure or adverse health effect in a Federal Register notice published pursuant to subsection (a) shall not preclude the Secretary from initiating a formal evaluation of such ex- posure or health effect. (b) WORKING GROUP.—(1) The Secretary shall establish a working group within the Depart- ment (in this section referred to as the ‘‘Work- ing Group’’). (2) The Working Group shall include personnel of the Veterans Health Administration and the Veterans Benefits Administration. (3) The Secretary shall consult with, and seek the advice of, the Working Group with respect to cases in which— (A) a veteran may have, during active mili- tary, naval, air, or space service, experienced a toxic exposure; or (B) a dependent of a veteran may have expe- rienced a toxic exposure during the active military, naval, air, or space service of the veteran. (c) ASSESSMENTS.—(1) The Working Group shall assess cases of the toxic exposure of vet- erans and their dependents that occurred during active military, naval, air, or space service, in- cluding by conducting ongoing surveillance and reviewing such exposure described in scientific literature, media reports, information from vet- erans, and information from Congress. (2) The assessments under paragraph (1) shall cover suspected and known toxic exposures oc- curring during active military, naval, air, or space service, including by identifying and eval- uating new and emerging toxic exposures that are not recognized under existing presumptions of service connection. (3) The Working Group may conduct an assess- ment under paragraph (1) in response to a com- ment received under paragraph (2) or (3) of sub- section (a). (4) The Working Group shall, in consultation with the Secretary of Defense, on a periodic basis, assess the Individual Longitudinal Expo- sure Record to ensure the accuracy of data col- lected. (d) DEVELOPMENT OF RECOMMENDATIONS.—(1) Following an assessment of a case of the toxic exposure of veterans that occurred during active military, naval, air, or space service under sub- section (c), or their dependents, the Working Group may develop a recommendation for for- mal evaluation under section 1173 of this title to conduct a review of the health effects related to the case of exposure if the Working Group deter- mines that the research may change the current understanding of the relationship between an exposure to an environmental hazard and ad- verse health outcomes in humans. (2) Upon receipt of evidence suggesting that previous findings regarding the periods and loca- tions of exposure covered by an existing pre- sumption of service connection are no longer supported, the Working Group may nominate such evidence for formal evaluation under sec- tion 1173 of this title to modify the periods and locations. (e) REPORTS BY THE WORKING GROUP.—Not less frequently than once each year, the Working Group shall submit to the Secretary, the Com- mittee on Veterans’ Affairs of the Senate, and the Committee on Veterans’ Affairs of the House of Representatives, and make publicly available, a report on— (1) recommendations developed under sub- section (d), if any; and (2) recommendations for such legislative or administrative action as the Working Group considers necessary for the Working Group to be more effective in carrying out the require- ments of this section. (f) RESPONSES BY SECRETARY.—In response to each report submitted under subsection (e), the Secretary shall, not later than 30 days after re- ceiving the report, initiate a formal evaluation pursuant to section 1173 of this title. (Added Pub. L. 117–168, title II, § 202(a), Aug. 10, 2022, 136 Stat. 1768.) § 1173. Formal evaluation of recommendations (a) FORMAL EVALUATIONS.—The Secretary shall establish a process to conduct a formal evaluation with respect to each recommenda- tion made by the Working Group under section 1172 of this title. (b) EVIDENCE, DATA, AND FACTORS.—The Sec- retary shall ensure that each formal evaluation under subsection (a) covers the following: (1) Scientific evidence, based on the review of available scientific literature, including human, toxicological, animal, and methodo- logical studies, and other factors. (2) Claims data, based on the review of claim rate, grant rate, and service connection preva- lence, and other factors.