§ 1116. Presumptions of service connection for diseases associated with exposure to certain herbicide agents; presumption of exposure for veterans who served in certain locations

§ 1116. Presumptions of service connection for diseases associated with exposure to certain herbicide agents; presumption of exposure for veterans who served in certain locations

(a)

(1) For the purposes of section 1110 of this title, and subject to section 1113 of this title—

shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service.

(A) a disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who performed covered service; and

(B) each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who performed covered service, and while so serving was exposed to that herbicide agent,

(2) The diseases referred to in paragraph (1)(A) of this subsection are the following:

(A) Non-Hodgkin’s lymphoma becoming manifest to a degree of disability of 10 percent or more.

(B) Each soft-tissue sarcoma becoming manifest to a degree of disability of 10 percent or more other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma.

(C) Chloracne or another acneform disease consistent with chloracne becoming manifest to a degree of disability of 10 percent or more within one year after the last date on which the veteran performed covered service.

(D) Hodgkin’s disease becoming manifest to a degree of disability of 10 percent or more.

(E) Porphyria cutanea tarda becoming manifest to a degree of disability of 10 percent or more within a year after the last date on which the veteran performed covered service.

(F) Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) becoming manifest to a degree of disability of 10 percent or more.

(G) Multiple myeloma becoming manifest to a degree of disability of 10 percent or more.

(H) Diabetes Mellitus (Type 2).

(I) Parkinsonism.

(J) Bladder cancer.

(K) Hypothyroidism.

(L) Monoclonal gammopathy of undetermined significance.

(M) Hypertension.

(3) For 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.

(b) The Secretary shall ensure that any determination made on or after the date of the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 regarding a presumption of service connection based on exposure to an herbicide agent under this section is made pursuant to subchapter VII of this chapter, including with respect to assessing reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 (Public Law 102–4).

(c) For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, a veteran who performed covered service,11 So in original. The comma probably should not appear. shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.

(d) In this section, the term “covered service” means active military, naval, air, or space service—

(1) performed in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975;

(2) 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;

(3) performed in Laos during the period beginning on December 1, 1965, and ending on September 30, 1969;

(4) performed in Cambodia at Mimot or Krek, Kampong Cham Province during the period beginning on April 16, 1969, and ending on April 30, 1969; or

(5) performed on Guam or American Samoa, or in the territorial waters thereof, during the period beginning on January 9, 1962, and ending on July 31, 1980, or served 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.

(Added Pub. L. 102–4, § 2(a)(1), Feb. 6, 1991, 105 Stat. 11, § 316; renumbered § 1116 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406; Pub. L. 103–446, title V, § 505, title XII, § 1201(e)(6), Nov. 2, 1994, 108 Stat. 4664, 4685; Pub. L. 104–275, title V, § 505(b), Oct. 9, 1996, 110 Stat. 3342; Pub. L. 106–419, title IV, § 404(a)(1), Nov. 1, 2000, 114 Stat. 1864; Pub. L. 107–103, title II, § 201(a)(1)(A), (b)–(c)(2)(A), (d)(1), Dec. 27, 2001, 115 Stat. 987, 988; Pub. L. 116–283, div. H, title XCI, § 9109, Jan. 1, 2021, 134 Stat. 4785; Pub. L. 117–168, title II, § 202(d)(1), title IV, §§ 403(b), (d), 404(b), (c), Aug. 10, 2022, 136 Stat. 1775, 1780–1782.)

Editorial Notes

References in Text

The date of the enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive 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.

Section 3 of the Agent Orange Act of 1991, referred to in subsec. (b), is section 3 of Pub. L. 102–4, which is set out as a note below.

Amendments

2022—Pub. L. 117–168, § 403(d), substituted “certain locations” for “the Republic of Vietnam” in section catchline.

Subsec. (a)(1). Pub. L. 117–168, § 403(b)(1), which directed substitution of “performed covered service” for “, during active military, naval, air, or space service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975”, wherever appearing in section, was executed by making the substitution for “, 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” in subpars. (A) and (B) to reflect the probable intent of Congress.

Subsec. (a)(2)(C), (E). Pub. L. 117–168, § 403(b)(2), which directed substitution of “performed covered service” for “performed active military, naval, air, or space service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975” wherever appearing in section, was executed by making the substitution for “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” to reflect the probable intent of Congress.

Subsec. (a)(2)(L). Pub. L. 117–168, § 404(b), added subpar. (L).

Subsec. (a)(2)(M). Pub. L. 117–168, § 404(c), added subpar. (M).

Subsec. (b). Pub. L. 117–168, § 202(d)(1)(A), (B), added subsec. (b) and struck out former subsec. (b) which required the Secretary to prescribe regulations based on determination of a positive association between the occurrence of a disease in humans and exposure to an herbicide agent.

Subsec. (c). Pub. L. 117–168, § 403(b)(1), which directed substitution of “performed covered service” for “, during active military, naval, air, or space service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975”, wherever appearing in section, was executed by making the substitution for “, 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” to reflect the probable intent of Congress.

Pub. L. 117–168, § 202(d)(1)(A), (C), redesignated subsec. (f) as (c) and struck out former subsec. (c) which related to determinations of presumption of service connection between diseases and exposure to herbicide agents and issuance of regulations based on such determinations.

Subsec. (d). Pub. L. 117–168, §§ 202(d)(1)(A), 403(b)(3), added subsec. (d) and struck out former subsec. (d) which provided for continuation of compensation if a disease was determined no longer to be presumed as service connected.

Subsec. (e). Pub. L. 117–168, § 202(d)(1)(A), struck out subsec. (e). Text read as follows: “Subsections (b) through (d) shall cease to be effective on September 30, 2015.”

Subsec. (f). Pub. L. 117–168, § 202(d)(1)(C), redesignated subsec. (f) as (c).

2021—Subsec. (a)(2)(I) to (K). Pub. L. 116–283 added subpars. (I) to (K).

2001—Pub. L. 107–103, § 201(c)(2)(A), amended section catchline generally. Prior to amendment, catchline read as follows: “Presumptions of service connection for diseases associated with exposure to certain herbicide agents”.

Subsec. (a)(2)(F). Pub. L. 107–103, § 201(a)(1)(A), struck out “within 30 years after the last date on which the veteran 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” before period at end.

Subsec. (a)(2)(H). Pub. L. 107–103, § 201(b), added subpar. (H).

Subsec. (a)(3), (4). Pub. L. 107–103, § 201(c)(1)(B), redesignated par. (4) as (3). Former par. (3) redesignated as subsec. (f).

Subsec. (e). Pub. L. 107–103, § 201(d)(1), substituted “on September 30, 2015” for “10 years after the first day of the fiscal year in which the National Academy of Sciences transmits to the Secretary the first report under section 3 of the Agent Orange Act of 1991”.

Subsec. (f). Pub. L. 107–103, § 201(c)(1)(A), (C), redesignated subsec. (a)(3) as (f), substituted “For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, a veteran” for “For the purposes of this subsection, a veteran”, and struck out “and has a disease referred to in paragraph (1)(B) of this subsection” after “May 7, 1975,”.

2000—Subsec. (a)(2)(F). Pub. L. 106–419 inserted “of disability” after “to a degree”.

1996—Subsec. (a)(1)(A). Pub. L. 104–275, § 505(b)(2), substituted “during the period beginning on January 9, 1962, and ending on May 7, 1975” for “during the Vietnam era”.

Subsec. (a)(1)(B). Pub. L. 104–275, § 505(b)(1), substituted “during the period beginning on January 9, 1962, and ending on May 7, 1975,” for “during the Vietnam era”.

Subsec. (a)(2)(C), (E), (F). Pub. L. 104–275, § 505(b)(2), substituted “during the period beginning on January 9, 1962, and ending on May 7, 1975” for “during the Vietnam era”.

Subsec. (a)(3). Pub. L. 104–275, § 505(b)(1), substituted “during the period beginning on January 9, 1962, and ending on May 7, 1975,” for “during the Vietnam era”.

Subsec. (a)(4). Pub. L. 104–275, § 505(b)(2), substituted “during the period beginning on January 9, 1962, and ending on May 7, 1975” for “during the Vietnam era”.

1994—Subsec. (a)(1)(B). Pub. L. 103–446, § 1201(e)(6), substituted “(i)” for “(1)” and “(ii)” for “(2)”.

Subsec. (a)(2)(D) to (G). Pub. L. 103–446, § 505, added subpars. (D) to (G).

1991—Pub. L. 102–83, § 5(a), renumbered section 316 of this title as this section.

Subsec. (a)(1). Pub. L. 102–83, § 5(c)(1), substituted “1110” for “310” and “1113” for “313” in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–168, title IV, § 403(e), Aug. 10, 2022, 136 Stat. 1781, provided that: “The amendments made by this section [amending this section and section 1710 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 compensation under chapter 13 of title 38, United States Code, and for 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 October 1, 2022, for everyone not described in paragraph (1).”

Pub. L. 117–168, title IV, § 404(d), Aug. 10, 2022, 136 Stat. 1782, provided that: “(1) Monoclonal gammopathy of undetermined significance.—“(A) In general.—The amendment made by subsection (b) [amending this section] shall take effect on the date of the enactment of this Act [Aug. 10, 2022] and shall apply as follows:“(i) On the date of the enactment of this Act for claimants for dependency and indemnity compensation under chapter 13 of title 38, United States Code, and for veterans whom the Secretary of Veterans Affairs determines are—“(I) terminally ill; “(II) homeless; “(III) under extreme financial hardship; “(IV) more than 85 years old; or “(V) capable of demonstrating other sufficient cause. “(ii) On October 1, 2022, for everyone not described in clause (i). “(B) Retroactive application.—Notwithstanding any Federal court decisions or settlements in effect on the day before the date of the enactment of this Act, the Secretary of Veterans Affairs shall award retroactive claims for a condition under section 1116(a)(2)(L) of title 38, United States Code, as added by subsection (b) of this section, only to claimants for dependency and indemnity compensation under chapter 13 of such title described in subparagraph (A)(i) of this paragraph. “(2) Hypertension.—“(A) In general.—The amendment made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act [Aug. 10, 2022] and shall apply as follows:“(i) On the date of the enactment of this Act for claimants for dependency and indemnity compensation under chapter 13 of title 38, United States Code, and for veterans whom the Secretary of Veterans Affairs determines are—“(I) terminally ill; “(II) homeless; “(III) under extreme financial hardship; “(IV) more than 85 years old; or “(V) capable of demonstrating other sufficient cause. “(ii) On October 1, 2026, for everyone not described in subparagraph (A). “(B) Retroactive application.—Notwithstanding any Federal court decisions or settlements in effect on the day before the date of the enactment of this Act, the Secretary of Veterans Affairs shall award retroactive claims for a condition under section 1116(a)(2)(M) of title 38, United States Code, as added by subsection (c) of this section, only to claimants for dependency and indemnity compensation under chapter 13 of such title described in subparagraph (A)(i) of this paragraph.”

Effective Date of 2001 Amendment

Pub. L. 107–103, title II, § 201(a)(1)(B), Dec. 27, 2001, 115 Stat. 987, provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect January 1, 2002.”

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–275 effective Jan. 1, 1997, with no benefit to be paid or provided by reason of such amendment for any period before such date, see section 505(d) of Pub. L. 104–275, set out as a note under section 101 of this title.

Comptroller General Briefing and Report on Repealing Manifestation Period for Presumptions of Service Connection for Certain Diseases Associated With Exposure to Certain Herbicide Agents