38 U.S.C. § 1119 — Presumptions of toxic exposure

Page 178 TITLE 38—VETERANS’ BENEFITS § 1119 that the veteran was not exposed to the agent, hazard, or medicine or vaccine by reason of such service. (4) For purposes of this section, signs or symp- toms that may be a manifestation of an undiagnosed illness include the signs and symp- toms listed in section 1117(g) of this title. (b) The Secretary shall ensure that any deter- mination made on or after the date of the enact- ment of the Sergeant First Class Heath Robin- son Honoring our Promise to Address Com- prehensive Toxics Act of 2022 regarding a pre- sumption of service connection based on a toxic exposure under this section is made pursuant to subchapter VII of this chapter. (Added Pub. L. 105–277, div. C, title XVI, § 1602(a)(1), Oct. 21, 1998, 112 Stat. 2681–742; amended Pub. L. 107–103, title II, § 202(b)(2), (d)(1), Dec. 27, 2001, 115 Stat. 989; Pub. L. 117–168, title II, § 202(d)(3), Aug. 10, 2022, 136 Stat. 1775.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Com- prehensive Toxics Act of 2022, referred to in subsec. (b), is the date of enactment of Pub. L. 117–168, which was approved Aug. 10, 2022. AMENDMENTS 2022—Subsecs. (b) to (e). Pub. L. 117–168 added subsec. (b) and struck out former subsecs. (b) to (e) which re- lated to determinations of presumptions of service con- nection between illnesses and exposure to toxic agents during the Persian Gulf War. 2001—Subsec. (a)(4). Pub. L. 107–103, § 202(b)(2), added par. (4). Subsec. (e). Pub. L. 107–103, § 202(d)(1), substituted ‘‘on September 30, 2011’’ for ‘‘10 years after the first day of the fiscal year in which the National Academy of Sciences submits to the Secretary the first report under section 1603 of the Persian Gulf War Veterans Act of 1998’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2001 AMENDMENT Amendment by section 202(b)(2) of Pub. L. 107–103 ef- fective Mar. 1, 2002, see section 202(c) of Pub. L. 107–103, set out as a note under section 1117 of this title. § 1119. Presumptions of toxic exposure (a) CONSIDERATION OF RECORDS.—If a veteran submits to the Secretary a claim for compensa- tion for a service-connected disability under sec- tion 1110 of this title with evidence of a dis- ability and a toxic exposure that occurred dur- ing active military, naval, air, or space service, the Secretary may, in adjudicating such claim, consider— (1) any record of the veteran in an exposure tracking record system; and (2) if no record of the veteran in an exposure tracking record system indicates that the vet- eran was subject to a toxic exposure during ac- tive military, naval, air, or space service, the totality of the circumstances of the service of the veteran. (b) PRESUMPTION OF SPECIFIC TOXIC EXPOSURE FOR MEMBERS WHO SERVED IN CERTAIN LOCA- TIONS.—(1) The Secretary shall, for purposes of section 1110 and chapter 17 of this title, presume that any covered veteran was exposed to the substances, chemicals, and airborne hazards identified in the list under paragraph (2) during the service of the covered veteran specified in subsection (c)(1), unless there is affirmative evi- dence to establish that the covered veteran was not exposed to any such substances, chemicals, or hazards in connection with such service. (2) The Secretary shall— (A) establish and maintain a list that con- tains an identification of one or more such substances, chemicals, and airborne hazards as the Secretary, in collaboration with the Sec- retary of Defense, may determine appropriate for purposes of this section; and (B) determine, using procedures consistent with section 1172 of this title and through the conduct of a formal evaluation under section 1173 of this title, whether to establish an end date for a covered veteran to qualify for pre- sumptions of exposure under this section, if appropriate, but in no case establish an end date earlier than the last day of the period specified in section 101(33) for the Persian Gulf War. (3) Beginning not later than two years after the date of the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, and not less frequently than once every two years thereafter, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report identifying any additions or removals to the list under para- graph (2) during the period covered by the re- port. (c) DEFINITIONS.—In this section: (1) The term ‘‘covered veteran’’ means any veteran who— (A) on or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in, includ- ing airspace above— (i) Bahrain; (ii) Iraq; (iii) Kuwait; (iv) Oman; (v) Qatar; (vi) Saudi Arabia; (vii) Somalia; or (viii) United Arab Emirates; or (B) on or after September 11, 2001, per- formed active military, naval, air, or space service while assigned to a duty station in, including airspace above— (i) Afghanistan; (ii) Djibouti; (iii) Egypt; (iv) Jordan; (v) Lebanon; (vi) Syria; (vii) Yemen; (viii) Uzbekistan; or (ix) any other country determined rel- evant by the Secretary. (2) The term ‘‘exposure tracking record sys- tem’’— (A) means any system, program, or pilot program used by the Secretary of Veterans Page 179 TITLE 38—VETERANS’ BENEFITS § 1121 Affairs or the Secretary of Defense to track how veterans or members of the Armed Forces have been exposed to various occupa- tional or environmental hazards; and (B) includes the Individual Longitudinal Exposure Record, or successor system. (3) The term ‘‘toxic exposure risk activity’’ has the meaning given such term in section 1710(e)(4) of this title. (Added Pub. L. 117–168, title III, § 302, Aug. 10, 2022, 136 Stat. 1777.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Com- prehensive Toxics Act of 2022, referred to in subsec. (b)(3), is the date of enactment of Pub. L. 117–168, which was approved Aug. 10, 2022. § 1120. Presumption of service connection for certain diseases associated with exposure to burn pits and other toxins (a) PRESUMPTION OF SERVICE CONNECTION.—For the purposes of section 1110 of this title, and subject to section 1113 of this title, a disease specified in subsection (b) becoming manifest in a covered veteran shall be considered to have been incurred in or aggravated during active military, naval, air, or space service, notwith- standing that there is no record of evidence of such disease during the period of such service. (b) DISEASES SPECIFIED.—The diseases speci- fied in this subsection are the following: (1) Asthma that was diagnosed after service of the covered veteran as specified in sub- section (c). (2) The following types of cancer: (A) Head cancer of any type. (B) Neck cancer of any type. (C) Respiratory cancer of any type. (D) Gastrointestinal cancer of any type. (E) Reproductive cancer of any type. (F) Lymphoma cancer of any type. (G) Kidney cancer. (H) Brain cancer. (I) Melanoma. (J) Pancreatic cancer. (3) Chronic bronchitis. (4) Chronic obstructive pulmonary disease. (5) Constrictive bronchiolitis or obliterative bronchiolitis. (6) Emphysema. (7) Granulomatous disease. (8) Interstitial lung disease. (9) Pleuritis. (10) Pulmonary fibrosis. (11) Sarcoidosis. (12) Chronic sinusitis. (13) Chronic rhinitis. (14) Glioblastoma. (15) Any other disease for which the Sec- retary determines, pursuant to regulations prescribed under subchapter VII that a pre- sumption of service connection is warranted based on a positive association with a sub- stance, chemical, or airborne hazard identified in the list under section 1119(b)(2) of this title. (c) COVERED VETERAN DEFINED.—In this sec- tion, the term ‘‘covered veteran’’ has the mean- ing given that term in section 1119(c) of this title. (Added Pub. L. 117–168, title IV, § 406(b), Aug. 10, 2022, 136 Stat. 1784; amended Pub. L. 117–263, div. E, title LI, § 5124(a), Dec. 23, 2022, 136 Stat. 3211.) Editorial Notes AMENDMENTS 2022—Subsec. (b)(2)(G) to (K). Pub. L. 117–263 redesig- nated subpars. (H) to (K) as (G) to (J), respectively, and struck out former subpar. (G) which read as follows: ‘‘Lymphomatic cancer of any type.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–263, div. E, title LI, § 5124(d), Dec. 23, 2022, 136 Stat. 3211, provided that: ‘‘The amendments made by this section [amending this section and sections 8103 and 8104 of this title] shall take effect as if included in the enactment of the Honoring our PACT Act of 2022 (Public Law 117–168).’’ EFFECTIVE DATE Pub. L. 117–168, title IV, § 406(d), Aug. 10, 2022, 136 Stat. 1784, provided that: ‘‘The amendments made by this section [enacting this section and amending sec- tion 1113 of this title] shall take effect on the date of the enactment of this Act [Aug. 10, 2022] and shall apply as follows: ‘‘(1) On the date of the enactment of this Act for claimants for dependency and indemnity compensa- tion under chapter 13 of title 38, United States Code, and veterans whom the Secretary of Veterans Affairs determines are— ‘‘(A) terminally ill; ‘‘(B) homeless; ‘‘(C) under extreme financial hardship; ‘‘(D) more than 85 years old; or ‘‘(E) capable of demonstrating other sufficient cause. ‘‘(2) On the date of the enactment of this Act for ev- eryone not described in paragraph (1), with respect to paragraphs (1), (2)(C), (2)(I) [now (2)(H)], (5), (6), (7), (8), (9), (10), (11), (12), (13), and (14), of section 1120(b) of title 38, United States Code, as added by subsection (b). ‘‘(3) On October 1, 2023, for everyone not described in paragraph (1), with respect to paragraphs (3) and (4) of section 1120(b) of such title, as so added. ‘‘(4) On October 1, 2024, for everyone not described in paragraph (1), with respect to subparagraphs (A), (B), (D), (E), (F), [former] (G), and (K) [now (J)] of sec- tion 1120(b)(2) of such title, as so added. ‘‘(5) On October 1, 2025, for everyone not described in paragraph (1), with respect to subparagraphs (H) [now (G)] and (J) [now (I)] of section 1120(b)(2) of such title, as so added.’’ SUBCHAPTER III—WARTIME DEATH COMPENSATION § 1121. Basic entitlement The surviving spouse, child or children, and dependent parent or parents of any veteran who died before January 1, 1957 as the result of in- jury or disease incurred in or aggravated by ac- tive military, naval, or air service, in line of duty, during a period of war, shall be entitled to receive compensation at the monthly rates spec- ified in section 1122 of this title. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1122, § 321; Pub. L. 92–197, § 6, Dec. 15, 1971, 85 Stat. 662; Pub. L. 94–433, title IV, § 404(12), Sept. 30, 1976, 90 Stat.