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The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations relating to exposure to herbicides, such as Agent Orange, in order to incorporate the provisions of the Blue Water Navy Vietnam Veterans Act of 2019 (the BWN Act). This proposed rule would extend the presumed area of exposure to the offshore waters of the Republic of Vietnam and expand the date ranges for presumption of exposure in the Republic of Vietnam and Korea. This rule would also clarify the definition of a Nehmer class member and establish entitlement to spina bifida benefits for children of certain veterans who served in Thailand. On the basis of VA’s general rulemaking authority, VA also proposes to establish a presumption of herbicide exposure for certain veterans who served in Thailand and also proposes to codify longstanding procedures for searching for payees entitled to Nehmer class action settlement payments. This proposed rule incorporates the provisions contained in VA’s RIN 2900-AR45, titled, "Diseases Associated with Exposure to Certain Herbicide Agents (Bladder Cancer, Parkinsonism, and Hypothyroidism)” as a result of VA withdrawing RIN 2900-AR45 from the Fall 2022 Unified Agenda. A future Interim Final Rule will be published to align all of VA’s adjudication regulations with controlling statute. This future regulation will also ensure that eligible Veterans are not denied the benefits they are entitled to and will allow VA to correct previous improper denials of service connection.

Statement of Need:

The Department of Veterans Affairs (VA) is proposing to amend its regulations for the following purposes:  (1) extend the presumption of herbicide exposure to the offshore waters of the Republic of Vietnam and to define those boundaries; (2) expand the dates for presumption of herbicide exposure for service in the Korean Demilitarized Zone; (3) establish entitlement to spina bifida benefits for children of certain Veterans who served in Thailand; (4) codify the presumption of herbicide exposure for certain locations identified where herbicide agents were used, tested, or stored outside of Vietnam; (5) codify longstanding procedures for searching for payees entitled to class-action settlements under Nehmer v. Department of Veterans Affairs; (6) apply the definition of Republic of Vietnam offshore waters to presumptive service connection claims for non-Hodgkin’s lymphoma; (7) add bladder cancer, hypothyroidism, and Parkinsonism as presumptive herbicide diseases; and (8) recognize hypertension and monoclonal gammopathy of undetermined significant as presumptive herbicide diseases.

Summary of the Legal Basis:

Promulgation of these regulations is necessitated by the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-123; Fiscal Year 2021 National Defense Authorization Act; and the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Public Law 117-168.  VA’s general rulemaking authority under 38 U.S.C. 501(a) is also utilized in effectuating these regulations.

Alternatives:

The comprehensive framework of the enacted laws requires VA to issue regulations to ensure that claims processors accurately and consistently adjudicate claims pursuant to the intent and text of the legislation.  The absence of regulations would cause confusion amongst adjudicators leading to benefit decision errors, as well as incurring significant litigation risk if the only instruction concerning application of the aforementioned laws is sub-regulatory guidance that did not go through notice-and-comment as required by the Administrative Procedures Act.

Anticipated Costs and Benefits:

VA has estimated that there are both transfers and costs associated with the provisions of this rulemaking. The total transfers are estimated to be $59.9 billion over 10 years. Actual transfers and costs will be determined and reflected in this section of ROCIS once the Reg is formally sent to OMB for a formal Executive Order 12866 review.

Risks:

None.