Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79815 

medical invoice reflecting the adjusted 

balance due after applying the sliding 

fee and/or catastrophic fee waiver. The 

invoice modified to reflect fee 

adjustments or waiver under the MHS 

MPWP will include notification of the 

requirement to transfer delinquent debts 

to the Department of the Treasury if, 

after any modification under the MHS 

MPWP, an unpaid invoice becomes 

delinquent. 

(2) For disapproved applications, the 

DHA will issue a letter by U.S. mail to 

the patient’s last known address 

reflecting the reason why the 

application was disapproved. The letter 

will inform the patient of the right to 

reapply should the patient’s financial 

circumstances change. 

(n) Collection in installments. Patients 

approved for a sliding scale fee 

reduction or catastrophic fee waiver 

shall have amounts collected in 

installments for a term not to exceed 72 

months. Patients may choose to pay 

their balance in a lump sum payment. 

(o) Application for a 10 U.S.C. 

1079b(b) waiver. (1) Basis for a waiver. 

Waivers may be granted when— 

(i) The patient has provided the DoD 

with a completed DD Form 2569 (even 

for patients who possess no valid health 

insurance) and applicable insurance 

payments have been applied; 

(ii) The patient has previously 

submitted a completed application to 

the MHS MPWP (32 CFR 220.12(k)) and 

was provided any applicable discounts; 

(iii) The patient provided additional 

information indicating that the MHS 

MPWP did not sufficiently mitigate 

severe financial harm; and 

(iv) A DoD competent medical 

authority confirms in writing (on the DD 

Form 3201) that the care provided to the 

patient enhanced the KSAs of the DoD 

healthcare provider. 

(v) If the above conditions are met, the 

Director of DHA may exercise 

discretionary authority to waive the 

medical invoice. 

(2) Method to request a waiver. 

Patients must submit a completed DD 

Form 3201–1, ‘‘Request for Medical 

Debt Waiver Military Health System 

Modified Payment and Waiver 

Program.’’ All DoD invoices will include 

the address where a patient may submit 

a waiver request. 

(3) Response to a request for waiver. 

Unless additional time is needed (e.g., 

to verify a patient’s documentation), the 

DoD shall make a decision on the 

request within 90 days. The DoD will 

provide a response in writing to the 

patient, as well as a copy of the medical 

invoice reflecting the balance due. 

Waivers that are approved under 10 

U.S.C. 1079b(b) may require reporting to 

the IRS and issuance of a IRS Form 

1099–C. 

(p) Debts transferred to Treasury that 

are subsequently processed through 

insurance. In any instance where a debt 

is transferred to Treasury and a lower 

balance is assigned to a Treasurymanaged debt due to a claim being 

subsequently processed through 

insurance, the DoD shall recall the debt 

back to the DoD for management actions 

and notify Treasury to delete the debt 

from its systems and reverse any 

adverse reporting that occurred against 

the debt. 

(q) Delinquent Accounts. Delinquent 

accounts will be processed in 

accordance with the Debt Collection 

Improvement Act of 1996 and its 

implementing regulation 31 CFR parts 

900–904 (Federal Claims Collection 

Standards). 

(r) Applications for MHS MPWP 

Received for Delinquent Accounts 

Transferred to the Department of the 

Treasury. Individuals may still submit 

an application for the MHS MPWP after 

their account has been transferred to the 

Cross-Servicing Program (‘‘CrossServicing’’) of the Department of the 

Treasury, Bureau of the Fiscal Service; 

however, any reductions to the medical 

invoice from the MPWP may be subject 

to interest, penalties, and costs. When 

patients apply to the MHS MPWP after 

their accounts were transferred to CrossServicing, their debts will remain at 

Cross-Servicing unless and until the 

DoD determines that they are eligible for 

a reduction under the MHS MPWP. The 

DoD may recall the debt from CrossServicing after it determines that the 

debt is eligible for a reduction under the 

MHS MPWP. Patients may request 

reconsideration for the MHS MPWP 

when their financial circumstances 

appear to have significantly changed. 

(s) Reporting to IRS and Furnishing of 

IRS Forms 1099–C (Cancellation of 

Debt). The DoD will report to IRS, and 

furnish to patients, IRS Forms 1099–C 

for all 10 U.S.C. 1079b(b) waivers issued 

during the previous calendar year where 

required by 26 U.S.C. 6050P. IRS 

reporting will not be done for portions 

of a bill which have been adjusted 

downwards due to insurance 

processing, or by assignment of a sliding 

fee/catastrophic fee waiver to the debt. 

The IRS Forms 1099–C will reflect 

amounts waived under the DHA 

Director’s discretionary authority. 

(t) Refunds not permitted for amounts 

previously paid. Except for 

circumstances specified in §§ 220.12(p) 

and 220.12(u)(3), financial relief under 

the MHS MPWP may only be granted for 

amounts still due by the patient; an 

application for financial relief cannot be 

used to obtain a refund for any amounts 

previously paid. 

(u) Claims involving tortfeasors and 

third-party payers. No discount or 

waiver of fees under 10 U.S.C. 1079b 

shall be interpreted to be applicable to 

tortfeasors under the FMCRA, 42 U.S.C. 

2651, or third-party payers under 10 

U.S.C. 1095. 

(1) For patients who indicate that 

their injury/disease was caused by a 

third party, DoD MTFs will follow 

procedures established under the 

Medical Affirmative Claims program. 

(2) Patients who have a remaining 

balance after insurance remittances or 

recoveries from third-party tortfeasors 

may apply for relief of any remaining 

medical debt. 

(3) Payments toward the medical debt 

that were made by the patient prior to 

settlement of the claim with the 

tortfeasor will be offset against any 

balances owed by the patient or may be 

refunded to the patient if no balance is 

owed. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2024–22584 Filed 9–30–24; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AR75 

VA Adjudication Regulations for 

Disability or Death Benefit Claims 

Based on Toxic Exposure 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is proposing to amend its 

adjudication regulations to implement 

provisions of the Sergeant First Class 

Heath Robinson Honoring our Promise 

to Address Comprehensive Toxics Act 

of 2022 (PACT Act or Act). The statute 

amended procedures applicable to 

claims based on toxic exposure and 

modified or established presumptions of 

service connection related to toxic 

exposure. Pursuant to the Act, VA is 

proposing to remove the manifestation 

period requirement and the minimum 

compensable evaluation requirement 

from Persian Gulf War claims based on 

undiagnosed illness and medically 

unexplained chronic multisymptom 

illnesses. VA is also proposing to 

expand the definition of a Persian Gulf 

veteran; update the list of locations 

eligible for a presumption of exposure to 


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79816 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

toxic substances, chemicals, or airborne 

hazards based on service during the 

Persian Gulf War; and add 

presumptions of service connection for 

23 diseases associated with exposure to 

toxins. To implement additional 

provisions of the Act, VA is also 

proposing to codify the procedure for 

determining when medical 

examinations and nexus opinions are 

required for claims that cannot be 

considered on a presumptive basis and 

the evidence establishes participation in 

a toxic exposure risk activity (TERA). 

Additional provisions of the PACT Act 

will be addressed in separate, future 

rulemakings. 

DATES: Comments must be received on 

or before December 2, 2024. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on 

www.regulations.gov as soon as possible 

after they have been received. VA will 

not post on Regulations.gov public 

comments that make threats to 

individuals or institutions or suggest 

that the commenter will take actions to 

harm the individual. VA encourages 

individuals not to submit duplicative 

comments. We will post comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. In accordance with the 

Providing Accountability Through 

Transparency Act of 2023, a plain 

language summary (not more than 100 

words in length) of this proposed rule 

is available at www.regulations.gov, 

under RIN 2900–AR75. 

FOR FURTHER INFORMATION CONTACT: Sara 

Cohen, Lead Analyst, Regulations Staff 

(211C); Robert Parks, Chief, Regulations 

Staff (211C), Compensation Service 

(21C), Veterans Benefits Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420, (202) 461–9700. (This is not a 

toll-free telephone number.) 

SUPPLEMENTARY INFORMATION: 

I. Background and Statutory Authority 

The PACT Act expanded eligibility 

for health care and disability 

compensation benefits for veterans who 

were exposed to toxic substances during 

military service. The law established a 

presumption that veterans were exposed 

to certain substances, chemicals, and 

airborne hazards if they served in 

various specified locations during 

certain time frames. The law created a 

statutory framework for VA to provide 

medical examinations in order to obtain 

nexus opinions when a veteran submits 

a claim for compensation for a nonpresumptive condition with evidence of 

a disability and evidence of 

participation in a toxic exposure risk 

activity (TERA) in service. The law also 

expanded the definition of ‘‘Persian 

Gulf veteran’’ under 38 U.S.C. 1117 to 

include six new locations, allowing 

veterans with service in those locations 

during the relevant time period to 

qualify for presumptions of service 

connection based on disability due to 

undiagnosed illness and medically 

unexplained chronic multisymptom 

illnesses (MUCMI). The PACT Act also 

created new 38 U.S.C. 1119, 

Presumptions of toxic exposure, which 

established a presumption of specific 

toxic exposures for certain covered 

veterans. The Act also created new 38 

U.S.C. 1120, which established 

presumptions of service connection for 

23 diseases that are associated with 

exposure to burn pits and other toxins. 

Although that section originally 

contained 24 diseases, lymphomatic 

cancer of any type was later removed as 

a technical amendment by Public Law 

117–623, as the term ‘‘lymphomatic 

cancer’’ is not recognized by the 

medical and scientific community. 

However, lymphoma cancer of any type 

remains a covered disease presumptive 

to exposure to burn pits and other 

toxins under 38 U.S.C. 1120. The 

presumption of service connection 

under 38 U.S.C. 1120 applies to 

‘‘covered veterans’’ under 38 U.S.C. 

1119. 

II. Proposed Changes to § 3.1 

Definitions 

VA is proposing to implement several 

portions of the PACT Act by adding new 

definitions to 38 CFR 3.1. VA is 

proposing to add the statutory definition 

of ‘‘toxic exposure risk activity’’ to 38 

CFR 3.1, in new paragraph (bb). Section 

303 of the PACT Act established 38 

U.S.C. 1168, which governs medical 

nexus examinations based on TERA. 38 

U.S.C. 1168(a) provides that if a veteran 

submits a claim for service-connected 

compensation with evidence of a 

disability and evidence of participation 

in a TERA during active military, naval, 

air, or space service, and such evidence 

is not sufficient to establish service 

connection for the disability, VA will 

provide the veteran with a medical 

examination and obtain a medical nexus 

opinion as to whether it is at least as 

likely as not that there is a nexus 

between the disability and the TERA. 38 

U.S.C. 1168(c) states that ‘‘the term 

‘‘toxic exposure risk activity’’ has the 

meaning given that term in section 

1710(e)(4) of this title.’’ 38 U.S.C. 

1710(e)(4) defines a ‘‘toxic exposure risk 

activity’’ as ‘‘any activity that requires a 

corresponding entry in an exposure 

tracking record system (as defined in 

section 1119(c) of this title) for the 

veteran who carried out the activity; or 

that the Secretary determines qualifies 

for purposes of this subsection when 

taking into account what is reasonably 

prudent to protect the health of 

veterans.’’ 

VA has determined that if a veteran’s 

military service qualifies for a 

presumption of exposure, VA must 

concede participation in a TERA. 

Locations with a presumption of 

exposure include any recognized 

radiation risk activity locations (38 

U.S.C. 1112 and 38 CFR 3.309(d)(3)(ii)); 

locations associated with herbicide 

exposure (38 U.S.C. 1116); the Persian 

Gulf (38 U.S.C. 1117); locations 

associated with exposure to burn pits 

(38 U.S.C. 1119); and at Camp LeJeune 

(38 CFR 3.307(a)(7)). If a veteran served 

in a location that qualifies for a 

presumption of exposure and submits a 

claim for a non-presumptive condition 

with evidence of a disability, a 

disability examination and medical 

opinion based on TERA must be 

requested, unless an exception under 38 

U.S.C. 1168(b), as described below in 

section III, applies. 

As required by the PACT Act, if an 

entry in an exposure tracking record 

system reflects an activity carried out by 

the veteran while on active duty, then 

the veteran will be considered to have 

participated in a TERA (38 U.S.C. 

1710(e)(4)(C)). VA generally proposes to 

recognize participation in a TERA based 

on any entry in an exposure tracking 

record system (e.g., the Individual 

Longitudinal Exposure Record (ILER)). 

However, there are circumstances where 

an ILER entry may show only a 

claimant’s name and contain no 

deployment information nor show any 

potential toxic exposure. For an entry in 

an exposure tracking record system to 

constitute participation in a TERA, 

based on the statutory definition of such 

term (38 U.S.C. 1710(e)(4)(C)), the entry 

must correspond to an activity 

performed by the veteran. Because 

name-only entries do not contain any 

evidence of an activity performed by the 

veteran, VA proposes that these entries 

will not constitute participation in a 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79817 

TERA, as name-only entries do not fall 

under the statutory definition of TERA. 

VA also proposes that records in an 

exposure tracking record system from 

contractor or civilian service periods 

should not be accepted as participation 

in a TERA. For example, ILER records 

contain different component categories. 

These components include mixed 

deployment histories to include periods 

of Active Duty, Reserves, National 

Guard, civilian time, and contractor 

work. An examination and TERA 

medical opinion are required under 38 

U.S.C. 1168(a) when there is evidence of 

a disability and evidence of 

participation in a TERA during active 

military, naval, air, or space service. 

Because contractor or civilian service 

periods are not considered active 

military service, deployments as a 

civilian or contractor listed in an 

exposure tracking record system should 

not be used to concede participation in 

a TERA for the purpose of triggering the 

examination requirements under 38 

U.S.C. 1168(a). 

VA also proposes to amend 38 CFR 

3.1 by adding new paragraph (cc) 

defining the term ‘‘exposure tracking 

record system.’’ The term would be 

defined as in section 302 of the PACT 

Act, to mean any system, program, or 

pilot program used by the Secretary of 

Veterans Affairs or the Secretary of 

Defense to track how veterans or 

members of the Armed Forces have been 

exposed to various occupational or 

environmental hazards, including ILER, 

or successor system. 

ILER is a joint Department of Defense 

(DoD) and VA web-based application 

that provides the ability to link a 

veteran to military exposures and/or 

deployments to improve the efficiency, 

effectiveness, and quality of health care, 

epidemiology, health effects research, 

and adjudication of benefits associated 

with exposures. The exposure data in 

ILER currently integrates information 

from multiple sources, including, but 

not limited to, the Defense Occupational 

and Environmental Health Readiness 

System—Industrial Hygiene (DOEHRS– 

IH), Armed Forces Health Surveillance 

Branch (AFHSB), Defense Manpower 

Data Center (DMDC), and Military 

Health System (MHS) Data Repository. 

ILER currently provides access to over 

six million unique veteran records and 

acts as a single access point to 

deployment history; including time, 

location, military and non-military 

deployment data, military occupational 

specialty (MOS), occupational hazard 

data, environmental hazards known or 

later found, monitoring performance in 

the area(s), diagnosis, treatment, and 

laboratory data. ILER has the capability 

of enabling a search by individual, 

location, exposure type, and health 

effect. 

DOEHRS is the biggest source of 

information for ILER. DOEHRS contains 

information resulting from routine 

investigations for occupational and 

other health standards (similar to 

investigations for compliance with the 

Occupational Safety and Health Act, the 

Safe Drinking Water Act, or other 

investigations that may be conducted by 

the Environmental Protection Agency). 

Data stored in DOEHRS contains area 

sampling information and analysis for 

potentially hazardous conditions; 

specifically, this information includes 

analysis of recorded data. The 

surveillance data is linked by ILER 

through the DMDC to the names of 

individuals present at the time of the 

area sampling so that if an unsafe 

environment is identified, the correct 

service members can be identified for 

monitoring or treatment. Records 

identifying entries or exposures that 

exceeded permissible limits or are of 

concern, which may either be generally 

applicable occupational exposure limits 

or DoD-specific limits, are displayed in 

red. While TERA does not require 

exposures over any specific thresholds, 

evidence of exposures over permissible 

limits or are of concern are provided to 

the VA medical examiner to inform 

their medical opinion. All exposure 

information is recorded in DOEHRS 

(and available through ILER) and 

includes routine surveillance with 

normal environmental exposure as well 

as exposures that may have exceeded 

permissible limits. Sampling data is 

collected both from domestic sources as 

well as from forward operating bases. 

Finally, VA also proposes to amend 

38 CFR 3.1 by adding a definition of 

‘‘physical trauma’’ in new paragraph 

(dd). This amendment is necessary to 

implement proposed changes to 38 CFR 

3.159 and is discussed below in section 

III. 

III. Proposed Changes to § 3.159 

Department of Veterans Affairs 

Assistance in Developing Claims 

VA proposes to amend 38 CFR 3.159 

to implement the new medical nexus 

examination and exception authority 

created in 38 U.S.C. 1168 by section 303 

of the PACT Act. Based on 38 U.S.C. 

1168, if a veteran submits a claim for a 

disability that cannot be considered on 

a presumptive basis and evidence 

establishes that the veteran participated 

in a TERA, and the evidence of record 

is not sufficient to establish service 

connection for the disability, VA will 

obtain a medical examination and 

medical nexus opinion to determine if 

the veteran’s claimed disability is at 

least as likely as not due to the veteran’s 

TERA. Likewise, if a veteran submits a 

claim for a disability that is subject to 

a presumption of service connection, 

but the veteran did not have qualifying 

service in a location where VA has 

conceded toxic exposure, and evidence 

establishes that the veteran participated 

in a TERA, a medical examination and 

medical nexus opinion would be 

required if service connection could not 

otherwise be established. Additionally, 

VA would not obtain a medical 

examination and medical nexus opinion 

if the evidence did not establish that the 

veteran participated in a TERA because 

doing so would require the examiners to 

provide opinions based on speculation. 

To implement the new medical nexus 

examination and exception authority 

created in 38 U.S.C. 1168 by section 303 

of the PACT Act, VA is proposing to 

amend § 3.159(c)(4) by renumbering 

current paragraphs (c)(4)(iii) and (iv) as 

(c)(4)(v) and (vi), respectively. 

Additionally, VA proposes to amend the 

language in paragraph (c)(4)(i) by 

clarifying that the requirements apply 

except as provided in paragraph 

(c)(4)(iv). VA also proposes to include 

new paragraph (c)(4)(iii), which would 

outline when a medical examination 

and medical opinion must be provided 

for claims where the evidence 

establishes participation in a TERA. 

Section 1168(b) of title 38 of the 

U.S.C. provides an exception to when 

medical examinations and nexus 

opinions are required for claims where 

there is evidence of participation in a 

TERA and the claim cannot be 

considered on a presumptive basis. The 

exception states that an examination is 

not required if the Secretary determines 

that there is no indication of an 

association between the claimed 

disability and the TERA. This exception 

provides VA with the authority to 

define when a medical examination and 

nexus opinion must be provided for 

claims where the evidence establishes 

participation in a TERA and will be 

utilized to minimize meritless 

examination requests. However, in all 

cases where the veteran submits 

competent medical or scientific 

evidence that indicates a possible 

association between their claimed 

disability and TERA, VA will provide 

an examination and medical nexus 

opinion. 

The determination that there is no 

indication of an association between a 

disability and a TERA on a categorical 

basis will necessarily involve factors 

specific and unique to the disabilities 

and TERAs involved. And so, in 

interpreting the language of 38 U.S.C. 


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79818 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

1National Institute of General Medical Sciences. 

Physical Trauma. Accessed at https://

www.nigms.nih.gov/education/fact-sheets/Pages/ 

physical-trauma.aspx on November 18, 2022. 

2 Ibid. 

3O’Neil BA, Forsythe ME, Stanish WD. Chronic 

occupational repetitive strain injury. Can Fam 

Physician. 2001 Feb;47:311–6. PMID: 11228032; 

PMCID: PMC2016244. 

4National Institute of General Medical Sciences. 

Physical Trauma. Accessed at https://

www.nigms.nih.gov/education/fact-sheets/Pages/ 

physical-trauma.aspx on November 18, 2022. 

5 Department of Veterans Affairs. Toxic 

Embedded Fragment Surveillance Center 

Information For Veterans. 2014. Accessed at https:// 

www.publichealth.va.gov/docs/exposures/TEFSCveterans-fact-sheet.pdf on October 11, 2022. 

6 VA Public Health. Gulf War Health and 

Medicine Division Reports. Accessed at https://

www.publichealth.va.gov/exposures/gulfwar/ 

reports/health-and-medicine-division.asp on 

October 25, 2022. 

7National Academies of Sciences, Engineering, 

and Medicine. 2016. Gulf War and Health: Volume 

10: Update of Health Effects of Serving in the Gulf 

War, 2016. Washington, DC: The National 

Academies Press. https://doi.org/10.17226/21840. 

1168(b), VA is not proposing a single 

standard that would govern all such 

determinations going forward. However, 

at this time VA has determined that 

there is no indication of an association 

between the following disabilities and 

TERAs and is proposing to apply the 

exception at 38 U.S.C. 1168(b) in the 

following circumstances. As noted 

below, VA has also requested comment 

on whether there are any additional 

examination exceptions pursuant to 

section 1168(b), beyond those proposed 

below, that the agency should consider 

implementing. 

First, VA proposes to apply the 

exception when a veteran submits a 

claim for service connection for a 

disability that resulted from physical 

trauma. VA would not automatically 

order a medical examination or medical 

nexus opinion if the veteran claims 

service connection for a disability that 

resulted from physical trauma unless 

the veteran submits competent medical 

or scientific evidence that indicates that 

the claimed disability may be associated 

with the in-service TERA. VA has 

determined that there is no indication of 

an association between disabilities due 

to physical trauma and TERAs because 

the etiology of these conditions is the 

physical trauma itself. 

VA proposes to define physical 

trauma as ‘‘a serious injury to the 

body.’’ 1 VA notes that in this definition, 

VA intends the body to include the head 

and all members of the person. See 

Black’s Law Dictionary 6th Ed. (1991) 

(defining body). The definition of 

physical trauma will include three main 

types: blunt force trauma, trauma due to 

repetitive use, and penetrating trauma. 

VA proposes to define blunt force 

trauma to mean ‘‘when an object or 

force strikes the body, often causing 

concussions, deep cuts, or broken 

bones.’’ 2 Trauma due to repetitive use 

will be defined as occurring ‘‘when 

repeated stress to the body’s soft tissue 

structures, including muscles, tendons, 

and nerves, results in repetitive strain 

injuries.’’ 3 Penetrating trauma will be 

defined to mean ‘‘when an object 

pierces the skin or body, usually 

creating an open wound.’’ 4 Penetrating 

trauma with embedded fragments will 

not fall under this exception. An 

embedded fragment is a piece of metal 

or other material (also referred to as 

shrapnel) that stays in the body after 

injury and can potentially lead to toxic 

exposure.5 Therefore, if a veteran 

submits a claim for service connection 

for a disability due to embedded 

fragments and there is evidence of 

participation in a TERA, a medical 

examination and medical nexus opinion 

will be required. 

To aid claims processors in 

identifying claims for conditions that 

fall under the physical trauma 

exception, VA proposes to publish and 

maintain a non-exhaustive list of 

conditions that may fall under the 

exception on the VA PACT Act website. 

However, VA notes that the list would 

not be binding on claims processors, 

who would still be required to make 

case-by-case determinations of whether 

a disability resulted from physical 

trauma based on the facts of the case. 

The VA ‘‘The PACT Act and your VA 

benefits’’ website is the primary site for 

all healthcare and benefits-related 

information on the PACT Act and 

provides the public with detailed 

information regarding these topics. 

Publishing the list on VA’s PACT Act 

website provides VA the flexibility to 

update the list by the most efficient 

means based on the continually 

evolving science on health outcomes 

due to toxic exposure. This approach 

allows VA to provide updates to 

veterans and stakeholders in a timely 

manner. Although the specific website 

has not been created yet and so a link 

cannot be provided at this time, VA 

proposes to include a link to the VA 

PACT Act website in 38 CFR 

3.159(c)(4)(iv) and would do so in the 

final rule. The VA PACT Act website 

can be found at: https://www.va.gov/ 

resources/the-pact-act-and-your-vabenefits/. In addition, VA will provide 

notice in the Federal Register whenever 

updates are made to the non-exhaustive 

list of physical trauma exceptions. 

VA is also proposing to apply the 

exception at 38 U.S.C. 1168(b) to any 

claim for service connection of a mental 

disorder under 38 CFR 4.130, Schedule 

of Ratings—Mental Disorders. VA 

would not automatically order a 

medical examination or medical nexus 

opinion if the veteran claims service 

connection for a mental disorder unless 

the veteran submits competent medical 

or scientific evidence that indicates 

there may be an association between 

their disability and the in-service TERA. 

VA has determined that there is no 

indication of an association between 

mental disorders and toxic exposures 

because currently available medical and 

scientific literature has not identified an 

association between mental disorders 

and toxic exposure. 

The National Academies of Science, 

Engineering, and Medicine (NASEM) 

has been studying the health effects of 

serving in the Gulf War since 1993 and 

has published 13 reports in their Gulf 

War and Health series.6 Over the last 25 

years, NASEM has not found an 

association between toxic exposures 

during the Gulf War and mental 

disorders. In Gulf War and Health, 

Volume 10 (2016), NASEM was tasked 

with reviewing and evaluating the 

literature on health outcomes with 

higher incidence rates in Gulf War 

deployed veterans, including postdeployment mental disorders. NASEM 

determined that there was sufficient 

evidence of association between 

deployment to the Gulf War and several 

mental disorders, including 

posttraumatic stress disorder, 

generalized anxiety disorders, 

depression, and substance use disorder. 

However, this association was found to 

be due to combat exposure, and not 

associated with exposure to toxins.7

Although this decision is predicated 

on the currently available scientific 

evidence, section 507 of the PACT Act 

requires VA to partner with NASEM ‘‘to 

assess possible relationships between 

toxic exposures experienced during 

service in the Armed Forces and mental 

health conditions, including chronic 

multisymptom illness, traumatic brain 

injury, posttraumatic stress disorder, 

depression, episodes of psychosis, 

schizophrenia, bipolar disorder, suicide 

attempts, and suicide deaths.’’ The Act 

requires VA to submit a report detailing 

NASEM’s findings not later than three 

years from the date of enactment of the 

Act. Depending on the results of this 

study, VA may revise its exceptions 

under 38 U.S.C. 1168(b). 

VA is also proposing to apply the 

exception under 38 U.S.C. 1168(b) to 

claims for certain conditions that the 

VA Secretary has determined have no 

association with herbicide exposure 

when the only participation in a TERA 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79819 

8 VA Public Health. Health and Medicine 

Division Reports on Agent Orange. Accessed at 

https://www.publichealth.va.gov/exposures/ 

agentorange/publications/health-and-medicinedivision.asp on October 25, 2022. 

9 59 FR 341, published January 4, 1994, Disease 

Not Associated With Exposure to Certain Herbicide 

Agents; 61 FR 41442, published August 8, 1996, 

Disease Not Associated With Exposure to Certain 

Herbicide Agents. August 8, 1996; 64 FR 59232, 

published November 2, 1999, Diseases Not 

Associated With Exposure to Certain Herbicide 

Agents; 67 FR 45600, published June 24, 2002, 

Diseases Not Associated With Exposure to Certain 

Herbicide Agents; 68 FR 27630, published May 20, 

2003, Diseases Not Associated With Exposure to 

Certain Herbicide Agents; 75 FR 32540 published 

June 8, 2010, Health Effects Not Associated With 

Exposure to Certain Herbicide Agents; 75 FR 81332, 

published December 27, 2010, Determinations 

Concerning Illnesses Discussed in National 

Academy of Sciences Report: Veterans and Agent 

Orange: Update 2010;77 FR 47924, published 

August 10, 2012, Determinations Concerning 

Illnesses Discussed in National Academy of 

Sciences Report: Veterans and Agent Orange: 

Update 2010; 79 FR 20308, published April 11, 

2014, Determinations Concerning Illnesses 

Discussed in National Academy of Sciences Report: 

Veterans and Agent Orange: Update 2012. 

10Competent medical or scientific evidence is 

typically provided by one who is qualified to 

provide such evidence, due to training, education, 

or experience in that particular field. See Parks v. 

Shinseki, 716 F.3d 581,585 (2013). 

11Andreotti, G., Beane Freeman, L.E., Shearer, 

J.J., Lerro, C.C., Koutros, S., Parks, C.G., Blair, A., 

Lynch, C.F., Lubin, J.H., Sandler, D.P., & Hofmann, 

J.N. (2020). Occupational Pesticide Use and Risk of 

Renal Cell Carcinoma in the Agricultural Health 

Study. Environmental health perspectives, 128(6), 

67011. https://doi.org/10.1289/EHP6334. 

that is established relates to herbicide 

exposure. The Agent Orange Act of 

1991, Public Law 102–4, provided that 

whenever the Secretary determined, 

based on sound medical and scientific 

evidence, that a positive association 

exists between exposure to an herbicide 

agent and a disease, the Secretary would 

publish regulations establishing 

presumptive service connection for that 

disease. If the Secretary determined that 

a presumption of service connection 

was not warranted, VA was required to 

publish a notice of that determination, 

including an explanation of the 

scientific basis for that determination. 

Since 1994, NASEM has published 11 

biennial reports in their Veterans and 

Agent Orange series, as required by the 

Agent Orange Act.8 VA has published 

nine notices 9 explaining that 

presumptions of service connection are 

not warranted for a number of diseases 

addressed in NASEM’s reports, due to 

the Secretary’s determination that there 

is not a positive association between 

herbicide exposure and the diseases 

evaluated. VA has determined that there 

is no indication of an association 

between these certain conditions and 

herbicide exposure. Thus, VA is 

proposing to exclude these conditions 

from warranting a medical examination 

and medical opinion under 38 U.S.C. 

1168(b) when the only relevant TERA is 

herbicide exposure. And therefore, VA 

would not automatically order a 

medical examination or medical nexus 

opinion if a veteran claims service 

connection for an excluded condition 

when the only participation in a TERA 

that is established relates to herbicide 

exposure, unless the veteran submits 

with, or during the course of the claim, 

competent medical or scientific 

evidence 10 that indicates there may be 

an association between their disability 

and herbicide exposure. This exception 

would not apply to claims for the 

excluded conditions if participation in a 

TERA other than herbicide exposure 

was established. 

VA has reviewed the list of conditions 

that the Secretary determined did not 

warrant establishment of presumptive 

service connection, published in the 

most recent Federal Register notice (79 

FR 20308), but has made several 

changes for purposes of the exception 

under 38 U.S.C. 1168(b). Conditions that 

are not considered disabilities for VA 

rating purposes, such as laboratory 

findings, have been removed. 

Conditions that have been determined 

to be presumptive to herbicide exposure 

and added to 38 U.S.C. 1112(c) since 

publication of the Federal Register 

notice have been removed. In addition, 

VA reviewed currently available 

scientific evidence regarding any 

associations with the conditions on the 

list and herbicide exposure. VA finds 

there is sufficient scientific evidence 

warranting removal of renal cancer from 

the previously published TERA 

exceptions list.11 VA’s review of 

currently available scientific evidence 

did not identify sufficient evidence of 

an association between the remaining 

conditions on the list and herbicide 

exposure. Several conditions were listed 

using vague and non-specific medical 

terminology, such as ‘‘eye problems’’ 

and ‘‘bone conditions.’’ ‘‘Eye problems’’ 

has been changed to ‘‘diseases of the 

eye.’’ ‘‘Bone conditions’’ has been 

changed to ‘‘osteoporosis’’ because 

osteoporosis was the only bone 

condition considered in the most recent 

Veterans and Agent Orange report. 

The list of conditions published in the 

Federal Register and recognized as not 

warranting a presumption of service 

connection based on herbicide exposure 

also included ‘‘cancers at other 

unspecified sites (other than those as to 

which the Secretary has already 

established a presumption.)’’ VA 

determined that excluding all other 

cancers for which there is not an 

established presumption was too broad 

and may result in a veteran being 

denied a VA examination in error. This 

determination is based on the fact that 

toxic exposure research has advanced 

dramatically since the initial list was 

published in the Federal Register, and 

VA cannot conclusively say that there is 

no indication of an association between 

herbicide exposure and all other cancers 

not already established by presumption. 

Pursuant to the exception at 38 U.S.C. 

1168(b), VA proposes to exclude the 

following conditions when the only 

participation in a TERA that is 

established relates to herbicide 

exposure: (1) Cancers of the oral cavity 

(including lips and tongue), pharynx 

(including tonsils), and nasal cavity 

(including ears and sinuses); (2) cancers 

of the pleura, mediastinum, and other 

unspecified sites within the respiratory 

system and intrathoracic organs; (3) 

cancers of the digestive organs 

(esophageal cancer; stomach cancer; 

colorectal cancer (including small 

intestine and anus), hepatobiliary 

cancers (liver, gallbladder, and bile 

ducts), and pancreatic cancer); (4) bone 

and connective tissue cancer; (5) 

melanoma; (6) nonmelanoma skin 

cancer (basal cell and squamous cell); 

(7) cancers of the reproductive organs 

(cervix, uterus, ovary, breast, testes, and 

penis; not including prostate); (8) 

cancers of the brain and nervous system 

(including eye); (9) endocrine cancers 

(including thyroid and thymus); (10) 

leukemia (other than all chronic B-cell 

leukemias including chronic 

lymphocytic leukemia and hairy cell 

leukemia); (11) neurobehavioral 

disorders (cognitive and 

neuropsychiatric); (12) 

neurodegenerative diseases (including 

amyotrophic lateral sclerosis (ALS) but 

not including Parkinson’s disease and 

Parkinsonism); (13) chronic peripheral 

nervous system disorders (other than 

early-onset peripheral neuropathy); (14) 

asthma; (15) chronic obstructive 

pulmonary disease; (16) farmer’s lung; 

(17) gastrointestinal, metabolic, and 

digestive disorders; (18) immune system 

disorders (immune suppression, allergy, 

and autoimmunity); (19) circulatory 

disorders (other than hypertension, 

ischemic heart disease, and stroke); (20) 

endometriosis; (21) hearing loss; (22) 

diseases of the eye; and (23) 

osteoporosis. 

VA proposes to apply the exception 

under 38 U.S.C. 1168(b) to claims for 

disabilities that manifested during 

military service or with an etiology not 

associated with toxic exposure. This 

exception will apply to conditions that 

manifested during service for which a 

medical nexus opinion would not be 

needed to decide service connection on 


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12 ‘‘Military Deployment Periodic Occupational 

and Environmental Monitoring Summary (POEMS): 

Karshi-Khanabad Airbase, Uzbekistan: 2001 to 

2005,’’ Department of Defense, https://

ph.health.mil/PHC%20Resource%20Library/U_

UZB_Karshi-Khanabad%20POEMS%202001-2005_

Public%20Release%20Review.pdf. 

13 ‘‘Environmental Conditions at KarshiKhanabad (K–2) Air Base Uzbekistan,’’ Army Public 

Health Center, https://ph.health.mil/ 

PHC%20Resource%20Library/Environmental

ConditionsatK-2AirBaseUzbekistan_FS_64-038- 

0617.pdf ; ‘‘Transmittal of Deployment 

Occupational and Environmental Health Site 

Assessment, Karshi-Khanabad Airbase, Karshi, 

Uzbekistan,’’ Department of the Army, https://

ph.health.mil/PHC%20Resource%20Library/ehsek2-08-doeh-assessment.pdf; ‘‘Final Report, 

Environmental Assessment—Hardened Aircraft 

Shelters, Stronghold Freedom, Karshi Khanabad 

Airfield, Uzbekistan, 6 June—20 July 2002,’’ https:// 

ph.health.mil/PHC%20Resource%20Library/ehsek2-05-enviro-assessment-aircraft-shelters.pdf. 

14 ‘‘Transmittal of Deployment Occupational and 

Environmental Health Site Assessment, KarshiKhanabad Airbase, Karshi, Uzbekistan,’’ 

Department of the Army. 

15 ‘‘Environmental Conditions at KarshiKhanabad (K–2) Air Base Uzbekistan,’’ Army Public 

Health Center. 

16 ‘‘Transmittal of Deployment Occupational and 

Environmental Health Site Assessment, KarshiKhanabad Airbase, Karshi, Uzbekistan,’’ 

Department of the Army. 

17 ‘‘Transmittal of Deployment Occupational and 

Environmental Health Site Assessment, KarshiKhanabad Airbase, Karshi, Uzbekistan,’’ 

Department of the Army. 

18 ‘‘Transmittal of Deployment Occupational and 

Environmental Health Site Assessment, KarshiKhanabad Airbase, Karshi, Uzbekistan,’’ 

Department of the Army. 

a direct basis (evidence of chronicity or 

continuity is of record) and to claims 

where the evidence of record indicates 

that the claimed condition has an 

etiology that is not associated with toxic 

exposure (to include post-service event). 

VA also proposes to apply the 

exception under 38 U.S.C. 1168(b) to 

claims where the only established 

participation in a TERA is based on an 

entry in an exposure tracking record 

system that does not correspond to an 

activity performed by the veteran that 

could result in potential in-service 

exposure to toxic substances, chemicals, 

or airborne hazards. Claims processors 

should apply a liberal standard to 

determine participation in a TERA. VA 

generally proposes to recognize 

participation in a TERA based on any 

entry in ILER, except for contractor and 

civilian service records and where only 

the veteran’s name appears. However, 

there are circumstances where an entry 

in the ILER database may show, for 

example, only a post-military service 

health record or physical injuries. Such 

entries do not show the veteran was in 

proximity to, or in the environment of, 

toxic substances, chemicals, and/or 

airborne hazards, and so such entries 

cannot corroborate potential exposure to 

toxic substances, chemicals, or airborne 

hazards. Such entries would be 

sufficient to establish participation in a 

TERA, but where the relevant entry 

provides no indication of a potential 

toxic exposure during military service, 

VA has determined that there would be 

no indication of an association between 

the claimed disability and such entry. In 

such scenarios, VA proposes that it will 

not provide an examination and 

opinion, pursuant to the exception in 

section 1168(b). 

VA further proposes that in order to 

corroborate a potential exposure to toxic 

substances, chemicals, and/or airborne 

hazards, the entries in an exposure 

tracking record system that establish the 

veteran’s participation in a TERA must 

show that the veteran was in proximity 

to, or in an environment which 

contained, toxic substances, chemicals, 

and/or airborne hazards. The proximity 

should not be considered in terms of 

actual distance, but whether the 

conditions, circumstances, and 

hardships of service placed the claimant 

in a potentially toxic environment. 

Examples of service in proximity to, or 

in an environment which contained, a 

toxic substance, chemical, or airborne 

hazard include, but are not limited to, 

service in the following locations: 

Congressionally recognized radiation 

risk locations (38 U.S.C. 1112, 1154); 

locations associated with herbicide 

exposure (38 U.S.C. 1116); the Persian 

Gulf (38 U.S.C. 1117; Pub. L 111–275, 

section (d)); locations associated with 

exposure to burn pits (38 U.S.C. 1120); 

at Camp Lejeune (38 CFR 3.307(a)(7); 

and any locations determined by the 

Secretary pursuant to 38 U.S.C. 1119 

(c)(1)(B)(ix). Claims processors should 

also recognize veterans may participate 

in a TERA based on their proximity to 

environmental hazards such as asbestos, 

benzene, PFAS, or other accepted 

environmental substances that pose risk 

to human health, regardless of location 

or service era. For example, between 

2001 and 2005, the U.S. occupied an old 

Soviet-era airbase, Karshi-Khanabad 

(K2) in Uzbekistan, near Tajikistan.12

The veterans who served at K2 were 

exposed to jet fuel as a result of a 

leaking Soviet era underground jet fuel 

distribution system; 13 volatile organic 

compounds found in air samples; 14

particulate matter and dust; 15 depleted 

uranium from non-U.S. ammunition 

destroyed in fires; 16 asbestos roofing 

tiles and lead based paint; 17 and lead in 

water samples,18 which VA would 

consider TERAs for this population. VA 

invites public comment on what should 

be considered toxic exposure risk 

activity, and how VA should determine 

whether a veteran participated in the 

same. 

VA also proposes to apply the 

exception under section 1168(b) where 

the only participation in a TERA that is 

established is based on entries in an 

exposure tracking record system that are 

self-reported records that cannot be 

substantiated. That is, the self-reported 

records are inconsistent with the 

information available and circumstances 

of the veteran’s service or provide 

insufficient information to permit 

reasonable verification. For example, if 

the only participation in a TERA that is 

established is based on a veteran’s 

statement in a post-service health 

assessment or an Agent Orange 

examination registry that they believe 

an herbicide exposure occurred, the 

record must corroborate that the veteran 

served in proximity to, or in an 

environment in which, an herbicide was 

present. 

VA proposes that an unsubstantiated 

report is one VA cannot prove or 

otherwise accept to be true. (See 

unsubstantiated definition ‘‘not proven 

to be true’’. https://www.merriamwebster.com/dictionary/ 

unsubstantiated, reviewed January 11, 

2024.) Unsubstantiated would also be 

considered unsupported by any facts or 

evidence, unfounded by the evidence, 

or lacking in foundation. This also 

includes circumstances where the report 

in an exposure tracking record system, 

such as in an Agent Orange registry 

exam in ILER, is inconsistent with the 

circumstances of service based on the 

totality of the claimant’s record. Such 

scenarios could include, for example, 

inaccurate information about a veteran’s 

military occupational specialty or 

reporting service in an unverifiable 

location. 

VA has determined that there is no 

indication of an association between 

participation in a TERA that is based on 

an entry in an exposure tracking record 

system that is based on uncorroborated 

assertions of exposure or 

unsubstantiated reports and disabilities. 

VA notes that it would not be possible 

for an examiner to provide a medical 

opinion on the relationship between a 

disability and participation in a TERA 

that cannot be corroborated or 

substantiated, as doing so would require 

speculation on the examiner’s part. 

Although a veteran’s own statements 

may have evidentiary value in VA 

adjudications, in instances where selfreported records are inconsistent with 

the information available and 

circumstances of the veteran’s service, 

or provide insufficient information to 

permit reasonable verification, such 

records do not reasonably provide any 


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indication of an association between a 

claimed disability and toxic exposure 

risk activity. 

The exceptions to the medical 

examination and medical opinion 

requirements under 38 U.S.C. 1168(b) 

will be applied on a case-by-case basis 

and require individualized 

determinations. In all cases, where there 

is reasonable doubt as to whether the 

exception applies, such doubt will be 

resolved in favor of the veteran, and a 

medical examination and medical 

opinion will be provided (38 CFR 

3.102). 

As noted, VA also invites public 

comment on whether additional 

exceptions under 1168(b) are warranted. 

For example, the agency invites 

comment on the appropriateness of an 

exception that would apply if a veteran 

has not affirmatively indicated the 

presence of a TERA. 

VA proposes to list all medical 

examination and nexus opinion 

exceptions for claims based on TERA 

under 38 CFR 3.159(c)(4)(iv). 

In the interest of implementing the 

PACT Act as soon as possible following 

enactment of the law, VA published 

Notification of Sub-regulatory Guidance 

in the Federal Register on December 22, 

2022 (87 FR 78543). The notification 

includes as an attachment VBA Letter 

20–22–10, which provides subregulatory guidance for claims 

processors adjudicating disability 

compensation claims and appeals for 

veterans and survivors impacted by the 

PACT Act prior to implementation of 

the Act in regulation. Regarding section 

303 of the PACT Act, the policy letter 

outlines the procedures for determining 

when participation in a TERA will be 

conceded. The Policy Letter can be 

found as an attachment to the 

notification and can be viewed and 

downloaded at Regulations.gov. 

IV. Proposed Changes to § 3.317 

Compensation for Certain Disabilities 

Occurring in Persian Gulf Veterans 

Section 3.317(a) governs presumptive 

service connection for certain qualifying 

chronic disabilities based on service in 

the Southwest Asia theater of operations 

during the Gulf War. The controlling 

statute, 38 U.S.C. 1117, was established 

in 1994, in response to large numbers of 

Gulf War veterans returning from the 

Southwest Asia theater of operations 

with unexplained symptoms of fatigue, 

skin rash, muscle and joint pain, 

headache, loss of memory, shortness of 

breath, and gastrointestinal and 

respiratory symptoms, which could not 

be diagnosed or clearly defined. 

Congress recognized that veterans who 

deployed during the Gulf War were 

exposed to toxic substances, chemicals, 

and airborne hazards. However, at the 

time, there was a lack of scientific 

evidence linking toxic exposure during 

Gulf War service to undiagnosed 

illnesses and MUCMIs. Congress also 

recognized that VA did not have the 

authority to provide compensation for 

these claims because the claimed 

conditions could not be attributed to a 

known diagnosis (Pub. L. 103–446, title 

I, sec. 102). 

In response to these issues, Congress 

enacted the Veterans’ Benefits 

Improvements Act of 1994, Public Law 

103–446. The law added 38 U.S.C. 1117, 

authorizing the Secretary of Veterans 

Affairs to compensate any Persian Gulf 

veteran suffering from a chronic 

disability resulting from an undiagnosed 

illness or MUCMI that became manifest 

either during active duty in the 

Southwest Asia theater of operations 

during the Persian Gulf War or to a 

degree of 10 percent or more within a 

presumptive period, as determined by 

the Secretary, following service in the 

Southwest Asia theater of operations 

during the Persian Gulf War. 

Implementing that statute, 38 CFR 

3.317 prohibits compensation for 

disabilities that, through medical 

history, physical examination, and 

laboratory tests, are determined to result 

from any known clinical diagnosis. 

Disabilities resulting from a known 

clinical diagnosis receive consideration 

for service connection under other 

regulations governing direct service 

connection or aggravation (38 CFR 

3.303, 3.306, 3.310). 

Section 405 of the PACT Act amended 

38 U.S.C. 1117, Compensation for 

disabilities occurring in Persian Gulf 

War veterans, by removing the 

manifestation requirements for claims 

based on undiagnosed illnesses and 

MUCMIs and instead allows 

compensation to be paid for qualifying 

chronic disabilities that become 

manifest to any degree at any time. 

Section 405 also amended the definition 

of a Persian Gulf veteran contained in 

38 U.S.C. 1117(f) to include veterans 

with service in six additional locations: 

Afghanistan, Israel, Egypt, Turkey, 

Syria, and Jordan. 

Therefore, VA is proposing to amend 

38 CFR 3.317(a)(1) to remove the 

requirement that an undiagnosed illness 

or MUCMI must manifest either during 

active military, naval, or air service in 

the Southwest Asia theater of 

operations, or to a degree of 10 percent 

or more not later than December 31, 

2026. VA proposes to amend 38 CFR 

3.317(a)(1) to state that a qualifying 

chronic disability under this section 

may manifest to any degree at any time, 

provided that such disability, by 

history, physical examination, and 

laboratory tests, cannot be attributed to 

any known clinical diagnosis. 

Based on section 405 of the PACT 

Act, VA also proposes to amend 38 CFR 

3.317(e)(1) to update the definition of a 

Persian Gulf veteran. Currently, 38 CFR 

3.317(e)(1) defines a Persian Gulf 

veteran as ‘‘a veteran who served on 

active military, naval, or air service in 

the Southwest Asia theater of operations 

during the Persian Gulf War.’’ The 

PACT Act amended 38 U.S.C. 1117(f) to 

define a Persian Gulf veteran as ‘‘a 

veteran who served on active duty in 

the Armed Forces in the Southwest Asia 

theater of operations, Afghanistan, 

Israel, Egypt, Turkey, Syria, or Jordan, 

during the Persian Gulf War.’’ 

Therefore, VA proposes to add these six 

new locations to the definition of a 

Persian Gulf veteran under 38 CFR 

3.317(e)(1). 

VA recently announced its plans to 

take steps to consider Veterans who 

served in Uzbekistan as Persian Gulf 

Veterans, therefore making undiagnosed 

illness and medically unexplained 

chronic multi-symptom illness (also 

known as Gulf War Illness) presumptive 

conditions for those Veterans. VA 

invites public comment on that issue, as 

well as whether VA should also add 

Somalia, Djibouti, Lebanon, and Yemen 

as covered locations in the definition of 

a Persian Gulf veteran under 38 CFR 

3.317(e)(1) based on exposure in these 

locations to toxic substances similar to 

those that were present in currently 

covered locations, such as fine 

particulate matter (PM2.5). 

Further, because 38 CFR 

3.317(c)(3)(ii) defines the qualifying 

service for infectious diseases in terms 

of § 3.317(e), it is necessary to amend 

paragraph (c)(3)(ii) to correctly limit the 

scope of its application to the Southwest 

Asia theater of operations during the 

Gulf War period as well as on or after 

September 19, 2001, in Afghanistan. VA 

acknowledges that there is overlap in 38 

CFR 3.317 with regard to locations 

currently covered for undiagnosed 

illnesses, MUCMIs and infectious 

diseases. VA seeks comment as to 

whether the following countries should 

be considered for inclusion under 

infectious diseases in 38 CFR 3.317(c): 

Djibouti, Lebanon, Somalia, Uzbekistan, 

Yemen, Israel, Egypt, Turkey, Syria or 

Jordan. VA is proposing amendments to 

the manifestation requirements and the 

definition of a Persian Gulf veteran 

under § 3.317 described above to 

implement the statutory changes 

imposed by the PACT Act. 


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19National Academies of Sciences, Engineering, 

and Medicine 2020. Respiratory Health Effects of 

Airborne Hazards Exposures in the Southwest Asia 

Theater of Military Operations. Washington, DC: 

The National Academies Press. https://doi.org/ 

10.17226/25837. 

20 Institute of Medicine 2011. Long-Term Health 

Consequences of Exposure to Burn Pits in Iraq and 

Afghanistan. Washington, DC: The National 

Academies Press. https://doi.org/10.17226/13209. 

21National Research Council 2010. Review of the 

Department of Defense Enhanced Particulate Matter 

Surveillance Program Report. Washington, DC: The 

National Academies Press. https://doi.org/ 

10.17226/12911. 

22American Cancer Society. Military Burn Pits 

and Cancer Risk. 2022. Accessed at https://

www.cancer.org/healthy/cancer-causes/chemicals/ 

burn-pits.html on October 10, 2022. 

23U.S. Central Command. Area of Responsibility. 

Accessed at https://www.centcom.mil/AREA-OFRESPONSIBILITY/ on September 29, 2022. 

24 Department of Defense. Open Burn Pit Report 

to Congress. 2019. Accessed at https://

www.acq.osd.mil/eid/Downloads/Congress/ 

Open%20Burn%20Pit%20Report-2019.pdf on 

October 1, 2022. 

25Center of Military History, United States Army. 

United States Forces, Somalia After Action Report 

and Historical Overview: The United States Army 

in Somalia, 1992–1994. https://

www.history.army.mil/html/documents/somalia/ 

index.html. 

26CRS Report R42738, Instances of Use of United 

States Armed Forces Abroad, 1798–2022, https://

crsreports.congress.gov/product/pdf/R/R42738/38. 

27 Jiandong Wang et al., Historical Trends in 

PM2.5-Related Premature Mortality during 1990– 

2010 across the Northern Hemisphere. 

Environmental Health Perspectives. 2017. 125:3. 

CID: https://doi.org/10.1289/EHP298; Melanie S. 

Hammer et al., Global Estimates and Long-Term 

Trends of Fine Particulate Matter Concentrations 

(1998–2018). Environ. Sci. Technol. 2020, 54, 7879– 

7890. https://doi.org/10.1021/acs.est.0c01764. 

28 Institute of Medicine 2011. Long-Term Health 

Consequences of Exposure to Burn Pits in Iraq and 

Afghanistan. Washington, DC: The National 

Academies Press. https://doi.org/10.17226/13209. 

29 Department of Defense. Enhanced Particulate 

Matter Surveillance Program (EPMSP) Final Report. 

2008. https://apps.dtic.mil/sti/pdfs/ 

ADA605600.pdf. 

V. Proposed Changes to § 3.320 Claims 

Based on Exposure to Fine Particulate 

Matter 

VA proposes to amend 38 CFR 3.320 

to implement portions of sections 302 

and 406 of the PACT Act. VA 

promulgated 38 CFR 3.320 to establish 

presumptions of service connection for 

certain chronic diseases based on 

presumed exposure to fine particulate 

matter (PM2.5) during service in the 

Southwest Asia theater of operations 

during the Persian Gulf War, and service 

in Afghanistan, Syria, Djibouti, or 

Uzbekistan, on or after September 19, 

2001, during the Persian Gulf War. 

These presumptions were based on VA’s 

review and analysis of several reports 

that focused on airborne hazards in the 

Southwest Asia theater of operations 

during the Persian Gulf War. The 

primary reports that informed VA’s 

decision were NASEM’s 2020 report, 

Respiratory Health Effects of Airborne 

Hazards Exposures in the Southwest 

Asia Theater of Military Operations,19

and NASEM’s 2011 report, Long-Term 

Consequences of Exposure to Burn Pits 

in Iraq and Afghanistan.20 VA’s decision 

was also informed by NASEM’s 2010 

report, Review of the Department of 

Defense Enhanced Particulate Matter 

Surveillance Program, which noted the 

difficulties associated with conducting 

exposure assessments in deployment 

environments. However, the report 

concluded that service members 

deployed to the Middle East ‘‘are 

exposed to high concentrations of PM 

and that the particle composition varies 

considerably over time and space.’’ 21

PM air pollution includes smoke, 

fumes, soot, and particles from natural 

sources such as dust, pollen, sea salt, 

and forest fires. Incomplete combustion 

of organic and inorganic material in 

burn pits results in high volumes of 

toxic PM in the air that includes metals, 

benzene, and other toxic compounds.22

When VA identified the qualifying 

periods of service under 38 CFR 3.320, 

the three main considerations were (1) 

whether burn pits were used in the 

location, (2) the PM2.5 levels, and (3) 

desert climate. Further, VA relied on the 

Secretary’s general rulemaking authority 

at 38 U.S.C. 501(a) when we established 

38 CFR 3.320. 

Again, taking into account the three 

considerations noted above, VA is 

proposing to remove the references to 

qualifying periods of service and 

incorporate the definition of ‘‘covered 

veteran’’ from section 302 of the PACT 

Act into 38 CFR 3.320. Section 302 of 

the PACT Act created new 38 U.S.C. 

1119, Presumptions of toxic exposure, 

and defines a ‘‘covered veteran’’ as a 

veteran who served in the following 

eligible locations: Bahrain, Iraq, Kuwait, 

Oman, Qatar, Saudi Arabia, Somalia, 

and the United Arab Emirates on or after 

August 2, 1990, and Afghanistan, 

Djibouti, Egypt, Jordan, Lebanon, Syria, 

Yemen, and Uzbekistan on or after 

September 11, 2001. VA is additionally 

proposing to extend the current 

regulatory presumption of exposure to 

PM2.5 to the five new locations listed in 

38 U.S.C. 1119 that are not currently 

recognized under § 3.320: Somalia, 

Egypt, Jordan, Lebanon, and Yemen. 

All new locations added by section 

302 of the PACT Act have documented 

burn pit use. In 2021, DoD provided 

Congress with a list of locations within 

U.S. Central Command where open burn 

pits have been used since 2001. The 

U.S. Central Command’s Area of 

Responsibility consists of 21 nations 

that stretch from Northeast Africa across 

the Middle East to Central and South 

Asia 23 and is the only combatant 

command that conducts open burn pit 

operations.24 Egypt, Jordan, Lebanon, 

and Yemen were included as locations 

with open, active burn pits. Somalia 

was not included on the list. However, 

there is evidence of burn pit use in 

Somalia prior to 1993, when service 

members were deployed in support of 

Operation Show Care.25 Additional 

deployments occurred in 1992, 1995, 

2012, and 2022; the latter being a ‘‘small 

persistent-presence.’’ 26 Available data 

in ILER provides evidence that service 

members deployed to Somalia were 

exposed to significant amounts of 

fugitive dust from airfields, residential 

fires and burn pit smoke, and that this 

contributed to elevated PM levels. 

Additionally, all new locations added 

by section 302 of the PACT Act have 

similar arid desert climate conditions. 

DoD’s 2008 Enhanced Particulate Matter 

Surveillance Program studied the 

chemical and physical properties of 

dust at 15 deployment sites in the 

Middle East, Central Asia, and 

Northeast Africa. The study found that 

Military Exposure Guideline (MEG) 

values for PM2.5 were exceeded at all 15 

sites for the entire one-year sampling 

period. The study also demonstrated 

how ‘‘short-term dust events— 

exacerbated by dirt roads, agricultural 

activities, and disturbance of the desert 

floor by motorized vehicles—all 

contribute to exceedance of both PM10

and PM2.5 mass exposure guidelines and 

standards.’’ 27 Finally, DoD’s report also 

stated that PM levels in the Middle East 

are as much as ten times greater than the 

levels at both urban and rural 

southwestern U.S. air monitoring sites. 

Dust storms and high windblown dust 

concentrations are one of many 

environmental hazards experienced 

during deployment to locations within 

U.S. Central Command. Windblown 

dust in these locations is considered an 

airborne hazard because it combines 

with elemental carbon and metals that 

arise from transportation and industrial 

activities.28 While dust in these 

locations can be toxic based on 

transportation and industrial activities 

alone, open air burn pits increase the 

concentration of toxins in PM2.5. 

All new section 1119 locations have 

a history of annual PM2.5 levels that 

exceed military and EPA air quality 

standards. Not only do they exceed air 

quality standards, average PM2.5

concentrations have been increasing in 

North Africa and the Middle East since 

1990, while Europe and North America 

have experienced decreasing trends in 

average PM2.5 concentrations.29 Based 

on evidence of burn pit use, PM2.5 levels 


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30Estrellan, C.R. and Iino, F. (2010) Toxic 

Emissions from Open Burning. Chemosphere, 80, 

193–207. https://doi.org/10.1016/j.chemosphere.

2010.03.057. 

that exceed military and EPA air quality 

standards, and their arid desert climate 

conditions that exacerbate PM2.5 levels, 

VA finds there is sufficient evidence to 

extend the presumption of exposure to 

PM2.5 under 38 CFR 3.320 to Somalia, 

Egypt, Jordan, Lebanon, and Yemen. 

Additionally, under 38 U.S.C. 

1119(b)(2)(A), VA is required to 

establish and maintain a list that 

contains an identification of one or 

more such substances, chemicals, and 

airborne hazards as the Secretary, in 

collaboration with the Secretary of 

Defense, may determine appropriate for 

purposes of section 1119. VA proposes 

to add PM2.5 as the first airborne hazard 

recognized as warranting a presumption 

of exposure under 38 U.S.C. 1119(b)(1). 

As discussed above, in 2021, VA 

established a presumption of exposure 

to PM2.5 for veterans who served in the 

Southwest Asia theater of operations, 

Afghanistan, Syria, Djibouti, or 

Uzbekistan when it promulgated 38 CFR 

3.320. Adding PM2.5 as the first airborne 

hazard recognized under 38 U.S.C. 

1119(b)(2)(A) will allow VA to merge 

the current presumption of exposure (38 

CFR 3.320) with the PACT Act 

presumptions of service connection 

without having to maintain a separate 

presumption of exposure to PM2.5 for 

the population currently eligible under 

38 CFR 3.320. It avoids VA having to 

maintain two separate presumptions of 

exposure (PM2.5 and the PACT Act (sec 

406) presumption of exposure to ‘‘burn 

pits and other toxins’’) with almost 

identical covered populations. A major 

aim of the PACT Act was to streamline 

VA’s decision-making process related to 

toxic exposure to provide faster 

decisions to veterans. Merging the 

current presumption of exposure to 

PM2.5 with the PACT Act presumptions 

of service connection supports this aim 

and would improve efficiency and 

consistency of rating decisions. 

Further, under this approach, VA 

would still be able to study additional 

health outcomes that may warrant a 

presumption of service connection 

based on PM2.5 exposure. This includes 

reviewing body systems other than the 

respiratory system, as this was the main 

focus of VA’s initial PM research. VA’s 

presumption of exposure to PM2.5 was 

rigorously analyzed through VA’s 

established presumption process in 

2021, and based on the current section 

302 requirements, VA has now 

identified PM2.5 as an exposure that was 

ubiquitous to the entire Gulf War theater 

of operations. VA’s Health Outcomes 

and Military Exposures (HOME) office, 

in collaboration with DoD, will continue 

to study and evaluate the substances, 

chemicals, and airborne hazards 

experienced by deployed Gulf War 

Veterans. Based on these efforts, VA 

may add additional substances, 

chemicals, and airborne hazards to the 

list in future rulemaking. 

As discussed above, in locations that 

rely on open burning of waste, the PM 

air pollution in that location will 

contain toxic combustion emissions. 

Open burning is the ‘‘burning of any 

matter in such a manner that products 

of combustion resulting from the 

burning are emitted directly into the 

ambient or surrounding outside air 

without passing through an adequate 

stack, duct or chimney.’’ 30 The 

Environmental Protection Agency (EPA) 

defines ‘‘ambient air’’ as ‘‘that portion of 

the atmosphere, external to buildings, to 

which the general public has access.’’ 

(40 CFR 50.1(e)). Because PM2.5 is a 

form of ambient air pollution and open 

burning of waste emits toxic combustion 

emissions into the ambient air, VA 

considers exposure to PM2.5 as 

encompassing exposure to burn pit 

smoke. As a result, VA will no longer 

maintain a separate presumptive 

regulation based on PM exposure, but 

38 CFR 3.320 will now cover 

presumptions of exposure for various 

toxic substances, chemicals, and 

airborne hazards. This change will 

supersede the procedural concession of 

burn pit exposure in VA’s M21–1 

Adjudication Procedures Manual. 

Concession of burn pit exposure is now 

covered under the presumption of 

exposure to toxic substances, chemicals, 

and airborne hazards. 

The new definition of a ‘‘covered 

veteran’’ in section 1119 does not 

include all areas historically included in 

the Southwest Asia theater of 

operations. The new definition omits 

the neutral zone between Iraq and Saudi 

Arabia, the Gulf of Aden, the Gulf of 

Oman, the Persian Gulf, the Arabian 

Sea, and the Red Sea. However, VA is 

proposing to maintain the current 

definition of the Southwest Asia theater 

of operations under the authority of 38 

U.S.C. 501, as this definition was based 

on Executive Order 12744 of January 21, 

1991, which designated the combat zone 

of the Persian Gulf War. Doing so would 

allow individuals with service in those 

locations omitted from the definition of 

‘‘covered veteran’’ to still qualify as 

covered veterans under the regulation. 

Section 406 of the PACT Act 

established new 38 U.S.C. 1120, 

Presumption of service connection for 

certain diseases associated with 

exposure to burn pits and other toxins, 

which added a presumption of service 

connection for 23 diseases. This 

presumption applies to covered veterans 

as defined in 38 U.S.C. 1119(c), as 

described above. Because VA is 

proposing to amend 38 CFR 3.320 to 

now govern not only claims based on 

PM2.5 exposure, but also claims based 

on exposure to toxic substances, 

chemicals, and additional airborne 

hazards, VA proposes to add the 

following presumptive diseases from 38 

U.S.C. 1120(b) to 38 CFR 3.320: (1) 

asthma; (2) head cancer of any type; (3) 

neck cancer of any type; (4) respiratory 

cancer of any type; (5) gastrointestinal 

cancer of any type; (6) reproductive 

cancer of any type; (7) lymphoma cancer 

of any type; (8) kidney cancer; (9) brain 

cancer; (10) melanoma; (11) pancreatic 

cancer; (12) chronic bronchitis; (13) 

chronic obstructive pulmonary disease; 

(14) constrictive bronchiolitis or 

obliterative bronchiolitis; (15) 

emphysema; (16) granulomatous 

disease; (17) interstitial lung disease; 

(18) pleuritis; (19) pulmonary fibrosis; 

(20) sarcoidosis; (21) chronic sinusitis; 

(22) chronic rhinitis; and (23) 

glioblastoma. VA notes that although 

section 406 of the PACT Act included 

lymphomatic cancer of any type in the 

list of presumptions, that term was 

removed from 38 U.S.C. 1120 pursuant 

to section 5124(a) of Public Law 117– 

263, as it was not a term recognized by 

the scientific and medical community 

Therefore, VA will not include 

lymphomatic cancer of any type in the 

list of presumptions included in 

regulation. However, ‘‘lymphoma cancer 

of any type’’ remains a presumptive 

condition for covered Gulf War veterans 

under 38 U.S.C. 1120. 

Section 406 of the PACT Act 

established ‘‘reproductive cancer of any 

type’’ as a disease presumed to be 

associated with exposure to burn pits 

and other toxins (38 U.S.C. 

1120(b)(2)(E)). The phrase reproductive 

cancer is not defined in the PACT Act 

or elsewhere in statute. As an initial 

matter, we propose to interpret 

reproductive cancer as including breast 

cancer. Breasts are generally considered 

a secondary sex characteristic, and 

breast tissue has unique attributes that 

are responsive to reproductive 

hormones, including estrogen and 

testosterone. Breast disorders may cause 

reproductive-related impacts. And 

breast cancer has been considered a 

reproductive cancer in other contexts, 


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31Reproductive Cancers, HHS Office of 

Population Affairs, available at https://opa.hhs.gov/ 

reproductive-health/reproductive-cancers, last 

accessed June 1, 2023. 

32Fentiman IS. The endocrinology of male breast 

cancer. Endocr Relat Cancer. 2018 Jun;25(6):R365– 

R373. doi: 10.1530/ERC–18–0117. PMID: 29752333; 

Davey M.G., Davey C.M., Bouz L., Kerin E., 

McFeetors C., Lowery A.J., Kerin M.J., Relevance of 

the 21-gene expression assay in male breast cancer: 

A systematic review and meta-analysis. Breast. 

2022;64:41–46; Valentini V., Silvestri V., Bucalo A., 

Conti G., Karimi M., Di Francesco L., Pomati G., 

Mezi S., Cerbelli B., Pignataro M.G., Nicolussi A., 

Coppa A., D’Amati G., Giannini G., Ottini L. 

Molecular profiling of male breast cancer by 

multigene panel testing: Implications for precision 

oncology. Front Oncol. 2023 Jan 6;12:1092201. doi: 

10.3389/fonc.2022.1092201. 

33National Cancer Institute. https://

www.cancer.gov/types/urethral/patient/urethraltreatment-pdq. 

34 Dorland, W.A. Newman 1864–1956. Dorland’s 

Illustrated Medical Dictionary. 29th ed. 

Philadelphia, Saunders, 2000. 

35Pastor Z., Chmel R., (2017). ‘‘Differential 

diagnostics of female ‘‘sexual’’ fluids: a narrative 

review’’. International Urogynecology Journal. 29 

(5): 621–629. doi:10.1007/s00192–017–3527–9. 

PMID 29285596. S2CID 5045626. 

36Bullough, Vern L.; Bullough, Bonnie (2014). 

Human Sexuality: An Encyclopedia. Routledge. p. 

231. ISBN 978–1135825096; Diane Tomalty, Olivia 

Giovannetti et al.: Should We Call It a Prostate? A 

Review of the Female Periurethral Glandular Tissue 

Morphology, Histochemistry, Nomenclature, and 

Role in Iatrogenic Sexual Dysfunction. In: Sexual 

Medicine Reviews. Volume 10, Issue 2, April 2022, 

page 183–194. 

including by the U.S. Department of 

Health and Human Services.31

Further, when determining whether to 

include all breast cancers, VA 

considered the similarities between the 

epidemiology, treatment, and 

psychosocial effects of breast cancer in 

males compared to females. Mutational 

signatures found in cancer cells show 

extensive core similarities between male 

and female breast cancer, supporting a 

view that these cancers have common 

etiologic processes. In addition, risk 

factors for breast cancer in men are the 

same as or analogous to risk factors for 

breast cancer in women.32 Given the 

marked similarity of male and female 

breast cancer across a range of factors, 

especially common risk factors and 

mutational signatures, the Secretary has 

determined that VA policy should apply 

equally to veterans with breast cancer 

regardless of sex or gender. Based on the 

Secretary’s decision, VA is proposing 

that all breast cancers be considered 

reproductive cancer of any type under 

38 U.S.C. 1120 and be eligible for 

presumptive service connection for 

covered veterans. 

Following VA’s review of eligible 

reproductive cancers under the PACT 

Act, VA has also determined that it is 

reasonable to interpret ‘‘reproductive 

cancer of any type’’ as including cancer 

of the urethra and cancer of the 

paraurethral glands. The urethra is the 

tube that carries urine from the bladder 

to outside the body. In women, the 

urethra is about 11⁄2 inches long and is 

just above the vagina. In men, the 

urethra is about 8 inches long, and goes 

through the prostate gland and the penis 

to the outside of the body. In men, the 

urethra also carries semen.33 Because it 

transports seminal fluid, the urethra is 

a part of the reproductive system in 

males. In female human anatomy, 

paraurethral glands (also known as the 

Skene glands or lesser vestibular glands) 

are located around the lower end of the 

urethral meatus.34 The paraurethral 

glands are located in the vestibule of the 

vulva, around the lower end of the 

urethra. Two ducts lead from the 

paraurethral glands to the vulvar 

vestibule, to the left and right of the 

urethral opening, from which they are 

structurally capable of secreting fluid. 

One purpose of the paraurethral glands 

is to secrete a fluid that helps lubricate 

the urethral opening.35

Because the paraurethral glands and 

the male prostate act similarly by 

secreting prostate-specific antigen 

(PSA), which is an ejaculate protein 

produced in males, and of prostatespecific acid phosphatase, some medical 

authorities refer to the paraurethral 

glands as the ‘‘female prostate’’.36 They 

are homologous to the male prostate 

(developed from the same embryological 

tissues). 

The Secretary has determined that VA 

policy should apply equally to Veterans 

filing claims for service connection 

regardless of sex, sexual orientation, 

gender, and/or or gender identity. 

Therefore, VA is proposing that urethral 

cancers, to include cancer of the 

paraurethral glands, be considered 

reproductive cancer of any type under 

38 U.S.C. 1120 and be eligible for 

presumptive service connection for 

covered veterans. 

Finally, section 406 adds a distinction 

after listing asthma as a presumptive 

condition under 38 U.S.C. 1120. The 

PACT Act specifies that asthma must be 

‘‘diagnosed after service of the covered 

veteran as specified in section 1119(c).’’ 

This means the presumption only 

applies when asthma is diagnosed after 

service. Per 38 CFR 3.303(d), 

presumptive periods are not intended to 

limit service connection to diseases 

diagnosed after service when the 

evidence warrants direct service 

connection. The presumptive 

regulations are intended as 

liberalizations applicable when the 

evidence would not warrant service 

connection without their aid. Therefore, 

requiring that asthma be diagnosed after 

service in order for a presumption of 

service connection to apply conflicts 

with the basic principle of presumptive 

service connection. Therefore, VA will 

implement the PACT Act presumption 

for asthma without the qualifying 

language that requires the condition to 

be diagnosed after the covered service in 

section 1119(c). 

VA notes that new sections 1119 and 

1120 provide a service-connection 

pathway distinct from that provided 

under section 1117 (undiagnosed illness 

and MUCMI). Therefore, VA is 

proposing to codify new sections 1119 

and 1120 under 38 CFR 3.320 rather 

than 38 CFR 3.317. 

VA is proposing to change the 

heading of 38 CFR 3.320 to replace the 

term ‘‘fine particulate matter’’ with 

‘‘toxic substances, chemicals, and 

airborne hazards.’’ This change is 

needed to make clear that under this 

proposal, 38 CFR 3.320 would no longer 

be specific to a single exposure (PM2.5) 

but would govern all claims based on 

exposure to toxic substances, chemicals, 

and airborne hazards for covered 

veterans. VA is proposing to describe 

the presumption of exposure in 

paragraph (a), describe the 

presumptions of service connection in 

paragraph (b), provide the definition of 

covered veteran in paragraph (c), and 

keep the existing exceptions in 

paragraph (d). 

Finally, section 406 of the PACT Act 

does not require that any of the listed 

diseases manifest to a specific level or 

within a specific presumptive period for 

presumptions of service connection 

under 38 U.S.C. 1120. VA is proposing 

to codify 38 U.S.C. 1120 under § 3.320 

as described above as required by the 

PACT Act. 

VI. Severability 

The purpose of this section is to 

clarify the agencies’ intent with respect 

to the severability of provisions of this 

proposed rule. Each provision that the 

agency has proposed is capable of 

operating independently. If any 

provision of this proposed rule is 

determined by judicial review or 

operation of law to be invalid, that 

partial invalidation will not render the 

remainder of this proposed rule invalid. 

Likewise, if the application of any 

portion of this proposed rule to a 

particular circumstance is determined to 

be invalid, the agencies intend that the 

rulemaking remain applicable to all 

other circumstances. 

VII. Effective Date and Applicability 

Section 406 of the PACT Act 

prescribed phased-in and criteria-based 

applicability dates for 11 of the 23 new 

presumptive conditions. All claims 


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based on section 406 will be effective on 

the date of enactment of the Act; 

however, section 406 would stagger the 

dates that VA would be required to 

effectuate payment of compensation. 

The Act provides an exception to the 

phased-in applicability dates for 

veterans meeting certain priority 

criteria. Specifically, new presumptions 

under section 406 are applicable on the 

date of enactment of the Act for claims 

for dependency and indemnity 

compensation (DIC) and for veterans 

whom the Secretary determines are 

terminally ill, homeless, under extreme 

financial hardship, more than 85 years 

old, or capable of demonstrating other 

sufficient cause. For claimants not 

meeting one of the priority-based 

criteria, the applicability date of the 

presumption would be established as 

one of the following staggered dates: 

October 1, 2022, October 1, 2023, 

October 1, 2024, October 1, 2025, and 

October 1, 2026. As stated above, these 

phased-in applicability dates apply to 

11 of the 23 new presumptive 

conditions under 38 U.S.C. 1120. 

However, the Secretary has 

determined that the text of the PACT 

Act provides VA with authority to treat 

all new presumptions in section 406 of 

the PACT Act as immediately 

applicable, and the Secretary has chosen 

to exercise this authority. The Secretary 

has determined that all veterans 

presenting a claim for disability 

compensation for which service 

connection could be established based 

on the presumptions in section 406 are 

‘‘capable of demonstrating other 

sufficient cause,’’ entitling those 

veterans to an applicability date 

concurrent with the date of enactment 

of the PACT Act. While the Secretary 

recognizes that Congress enumerated 

phased-in applicability dates, Congress 

also provided an extremely broad 

‘‘catch-all’’ at the end of categories of 

cases that would justify immediate 

applicability of an otherwise phased-in 

presumption. This final category is 

textually broad and left undefined, 

providing the Secretary with significant 

discretion to expand the universe of 

cases for which otherwise phased-in 

presumptions under section 406 can be 

treated as immediately applicable. In 

making this determination, the 

Secretary considered first and foremost 

the health and economic needs of 

veterans, and specifically the serious 

nature of exposure to toxins in combat 

zones and the associated health effects 

from such exposures. Additionally, 

while phased-in applicability dates 

intuitively might help manage the 

significant increase in claims inventory 

that will result from the Act, VA 

estimates that phased-in applicability 

dates would result in between 900,000 

and 1.5 million veterans having to wait 

up to four years for a decision on their 

claim, whereas acceleration of the 

applicability dates would avoid making 

veterans wait years. Further, rather than 

the administrative complexity and 

claimant confusion that would 

inevitably be created by having to hold 

many thousands of claims pending 

arrival of the phased-in applicability 

dates, immediate applicability ensures a 

simple, streamlined policy that will be 

easy for veterans and their families to 

understand and for VA to implement 

with consistency and efficiency. 

For these reasons, the Secretary has 

determined to treat all presumptions in 

the PACT Act as applicable upon 

enactment and is proposing to add a 

new paragraph (e) to § 3.320 to reflect 

this determination. 

VIII. Public Participation 

Interested persons or organizations 

are invited to participate in this 

rulemaking by submitting written 

comments, recommendations, and data 

on any topic covered in this proposal. 

In addition, VA invites comments 

specifically on the following questions 

related to this rulemaking: 

(1) What other factors and/or types of 

evidence should be considered when 

determining if participation in a TERA 

should be conceded? 

(2) Are there additional TERA 

examination exceptions that should be 

implemented? If so, what are some 

examples of exceptions that should be 

considered? For example, the agency 

invites comment on the appropriateness 

of an exception that would apply if a 

veteran has not affirmatively indicated 

the presence of a TERA. 

(3) Considering that the definition of 

TERA has an impact on the provision of 

medical examinations and nexus 

opinions under 38 U.S.C. 1168 and the 

provision of health care pursuant to 38 

U.S.C. 1710(e)(4)(C), what additional 

activities or factors should the Secretary 

consider when determining what 

qualifies as TERA? 

(4) Would it be appropriate to require 

that the veteran affirmatively assert the 

existence of a TERA in order for their 

claim to be considered under 38 U.S.C. 

1168/TERA procedure? 

VA welcomes comments from the 

public on all aspects of this proposed 

rule. This information will be utilized 

by VA to enhance our sub-regulatory 

guidance, inform the final rule, and 

improve consistency and transparency 

in our decision-making. All comments 

received by the closing date will be 

considered prior to final action. 

IX. Revise Remainder of 38 CFR 3.1 

Because VA is amending 38 CFR 3.1, 

VA is also required to bring the 

authority citations for the entirety of the 

regulation into compliance with 1 CFR 

21.43. For § 3.1, VA is proposing to 

revise § 3.1(d), (j), (m), (r), (s), (t), (x), (y), 

(aa)(1) and (2) to amend the authority 

citations. These are not substantive 

changes, but rather changing the 

placement of the authority in regulation. 

Although VA is also making changes to 

§§ 3.159, 3.317, and 3.320, VA is 

addressing the changes to authority to 

§ 3.159 in a separate rulemaking, and 

there are no authority changes required 

for §§ 3.317 or 3.320. 

Executive Orders 12866, 13563 and 

14094 

Executive Order 12866 (Regulatory 

Planning and Review) directs agencies 

to assess the costs and benefits of 

available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 (Executive Order on Modernizing 

Regulatory Review) supplements and 

reaffirms the principles, structures, and 

definitions governing contemporary 

regulatory review established in 

Executive Order 12866 of September 30, 

1993 (Regulatory Planning and Review), 

and Executive Order 13563 of January 

18, 2011 (Improving Regulation and 

Regulatory Review). The Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is a 

significant regulatory action under 

Executive Order 12866, section 3(f)(1), 

as amended by Executive Order 14094. 

The Regulatory Impact Analysis 

associated with this rulemaking can be 

found as a supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act (RFA) 

The Secretary hereby certifies that 

this proposed rule would not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act (5 U.S.C. 601–612). The 

factual basis for this certification is that 

no small entities or businesses provide 

Federal compensation or pension 


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79826 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

benefits to veterans, and such entities or 

businesses therefore would be 

unaffected by the proposed rule. 

Therefore, pursuant to 5 U.S.C. 605(b), 

the initial and final regulatory flexibility 

analysis requirements of 5 U.S.C. 603 

and 604 do not apply. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule would 

have no such effect on State, local, and 

Tribal governments, or on the private 

sector. 

Paperwork Reduction Act (PRA) 

Although this proposed rule contains 

a collection of information under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501–3521), there 

are no provisions associated with this 

rulemaking constituting any new 

collection of information or any 

revisions to the current collection of 

information. The collection of 

information for 38 CFR 3.1, 3.159, 3.307, 

3.309, 3.311, 3.317, 3.320, is currently 

approved by the Office of Management 

and Budget (OMB) and has a valid OMB 

control number of 2900–0747 and 2900– 

0886. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved and signed 

this document on September 19, 2024, 

and authorized the undersigned to sign 

and submit the document to the Office 

of the Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Jeffrey M. Martin, 

Assistant Director, Office of Regulation Policy 

& Management, Office of General Counsel, 

Department of Veterans Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR part 

3 as set forth below: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

Authority: 38 U.S.C. 501(a), unless 

otherwise noted. 

■ 2. Amend § 3.1 by: 

■ a. Revising paragraphs (d) 

introductory text, (j), (m), (r), (s), (t), (x), 

(y) introductory text, and (aa)(1) and (2); 

and 

■ 3. Adding paragraphs (bb) through 

(dd). 

The revisions and additions read as 

follows: 

§ 3.1 Definitions. 

* * * * * 

(d) Veteran means a person who 

served in the active military, naval, air, 

or space service and who was 

discharged or released under conditions 

other than dishonorable under 38 U.S.C. 

101(2). 

* * * * * 

(j) Marriage means a marriage valid 

under the law of the place where the 

parties resided at the time of marriage, 

or the law of the place where the parties 

resided when the right to benefits 

accrued under 38 U.S.C. 103(c)). 

* * * * * 

(m) In line of duty, per 38 U.S.C. 105, 

means an injury or disease incurred or 

aggravated during a period of active 

military, naval, air, or space service 

unless such injury or disease was the 

result of the veteran’s own willful 

misconduct or, for claims filed after 

October 31, 1990, was a result of his or 

her abuse of alcohol or drugs. A service 

department finding that injury, disease 

or death occurred in line of duty will be 

binding on the Department of Veterans 

Affairs unless it is patently inconsistent 

with the requirements of laws 

administered by the Department of 

Veterans Affairs. Requirements as to 

line of duty are not met if at the time 

the injury was suffered or disease 

contracted the veteran was: 

* * * * * 

(r) Date of receipt means the date on 

which a claim, information or evidence 

was received in the Department of 

Veterans Affairs, except as to specific 

provisions for claims or evidence 

received in the State Department 

(§ 3.108), or in the Social Security 

Administration (§§ 3.153, 3.201), or 

Department of Defense as to initial 

claims filed at or prior to separation. 

However, the Under Secretary for 

Benefits may establish, by notice 

published in the Federal Register, 

exceptions to this rule, using factors 

such as postmark or the date the 

claimant signed the correspondence, 

when he or she determines that a 

natural or man-made interference with 

the normal channels through which the 

Veterans Benefits Administration 

ordinarily receives correspondence has 

resulted in one or more Veterans 

Benefits Administration offices 

experiencing extended delays in receipt 

of claims, information, or evidence from 

claimants served by the affected office 

or offices to an extent that, if not 

addressed, would adversely affect such 

claimants through no fault of their own 

(38 U.S.C. 512(a), 5110). 

(s) On the borders thereof means, with 

regard to service during the Mexican 

border period, the States of Arizona, 

California, New Mexico, and Texas, and 

the nations of Guatemala and British 

Honduras (38 U.S.C. 101(30)). 

(t) In the waters adjacent thereto 

means, with regard to service during the 

Mexican border period, the waters 

(including the islands therein) which 

are within 750 nautical miles (863 

statute miles) of the coast of the 

mainland of Mexico (38 U.S.C. 101(30)). 

* * * * * 

(x) Service pension is the name given 

to Spanish-American War pension. It is 

referred to as a service pension because 

entitlement is based solely on service 

without regard to nonservice-connected 

disability, income and net worth. (38 

U.S.C. 1512, 1536). 

(y) Former prisoner of war. The term 

former prisoner of war means a person 

who, while serving in the active 

military, naval, air, or space service, was 

forcibly detained or interned in the line 

of duty by an enemy or foreign 

government, the agents of either, or a 

hostile force under 38 U.S.C. 101(32). 

* * * * * 

(aa) * * * 

(1) As used in 38 U.S.C. 103 and 

implementing regulations, fraud means 

an intentional misrepresentation of fact, 

or the intentional failure to disclose 

pertinent facts, for the purpose of 

obtaining, or assisting an individual to 

obtain an annulment or divorce, with 

knowledge that the misrepresentation or 

failure to disclose may result in the 

erroneous granting of an annulment or 

divorce; and 

(2) As used in 38 U.S.C. 110 and 1159 

and implementing regulations, fraud 

means an intentional misrepresentation 

of fact, or the intentional failure to 

disclose pertinent facts, for the purpose 

of obtaining or retaining, or assisting an 

individual to obtain or retain, eligibility 

for Department of Veterans Affairs 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79827 

benefits, with knowledge that the 

misrepresentation or failure to disclose 

may result in the erroneous award or 

retention of such benefits. 

(bb) Toxic exposure risk activity 

means: 

(1) Any activity that requires a 

corresponding entry in an exposure 

tracking record system for the veteran 

who carried out the activity; or 

(2) Any activity that the Secretary 

determines qualifies for purposes of this 

section when taking into account what 

is reasonably prudent to protect the 

health of veterans. 

(cc) Exposure tracking record system 

means: 

(1) Any system, program, or pilot 

program used by the Secretary of 

Veterans Affairs or the Secretary of 

Defense to track how veterans or 

members of the Armed Forces have been 

exposed to various occupational or 

environmental hazards; and 

(2) Includes the Individual 

Longitudinal Exposure Record, or 

successor system. 

(dd) Physical trauma means a serious 

injury to the body. The three types of 

physical trauma are as follows: 

(i) Blunt force trauma—when an 

object or force strikes the body, often 

causing concussions, deep cuts, or 

broken bones; 

(ii) Trauma due to repetitive use— 

when repeated stress to the body’s soft 

tissue structures, including muscles, 

tendons, and nerves, results in 

repetitive strain injuries; and 

(iii) Penetrating trauma—when an 

object pierces the skin or body, usually 

creating an open wound. Penetrating 

trauma due to embedded fragments (to 

include shrapnel) does not fall under 

this definition. 

(Authority: 38 U.S.C. 101, 103, 105, 110, 501, 

512, 1159, 1168, 1512, 1536, 1742, 5110) 

■ 4. Amend § 3.159 by: 

■ a. Revising paragraphs (c)(4)(i) and 

(ii); 

■ b. Redesignating paragraphs (c)(4)(iii) 

and (iv) as paragraphs (c)(4)(v) and (vi), 

respectively; and 

■ c. Adding new paragraphs (c)(4)(iii) 

and (iv). 

The revisions and additions read as 

follows: 

§ 3.159 Department of Veterans Affairs 

assistance in developing claims. 

* * * * * 

(c) * * * 

(4) Providing medical examinations or 

obtaining medical opinions. (i) Except 

as provided in paragraphs (c)(4)(iii) and 

(iv) of this section, in a claim for 

disability compensation, VA will 

provide a medical examination or obtain 

a medical opinion based upon a review 

of the evidence of record if VA 

determines it is necessary to decide the 

claim. A medical examination or 

medical opinion is necessary if the 

information and evidence of record does 

not contain sufficient competent 

medical evidence to decide the claim, 

but: 

(A) Contains competent lay or 

medical evidence of a currently 

diagnosed disability or persistent or 

recurrent symptoms of disability; 

(B) Establishes that the veteran 

suffered an event, injury or disease in 

service, or has a disease or symptoms of 

a disease listed in §§ 3.309, 3.313, 3.316, 

3.317, and 3.320 manifesting during an 

applicable presumptive period provided 

the claimant has the required service or 

triggering event to qualify for that 

presumption; and 

(C) Indicates that the claimed 

disability or symptoms may be 

associated with the established event, 

injury, or disease in service or with 

another service-connected disability. 

(ii) Paragraph (c)(4)(i)(C) of this 

section could be satisfied by competent 

evidence showing post-service 

treatment for a condition, or other 

possible association with military 

service. 

(iii) Except as provided in paragraph 

(c)(4)(iv) of this section, when a claim 

that cannot be considered on a 

presumptive basis is received, VA will 

provide a medical examination and 

medical nexus opinion if the evidence 

of record does not contain sufficient 

competent medical evidence to establish 

service connection, but only if the 

claim: 

(A) Contains competent lay or 

medical evidence of a current disability; 

and 

(B) Establishes that the veteran 

participated in a toxic exposure risk 

activity as defined in § 3.1(bb). 

(iv). The Secretary has determined 

that there is no indication of an 

association between toxic exposure risk 

activities and the disabilities, 

conditions, and circumstances listed in 

paragraphs (c)(4)(iv)(A) through (D) of 

this section. A VA examination and 

medical nexus opinion will not be 

required for claims that cannot be 

considered on a presumptive basis and 

evidence establishes that the veteran 

participated in a toxic exposure risk 

activity if evidence shows: 

(A) The disability is the result of 

physical trauma as defined in § 3.1(dd); 

or 

(B) The claimed condition is a mental 

disorder; or 

(C) The disability manifested during 

military service or has an etiology not 

associated with toxic exposure; or 

(D) The only participation in a toxic 

exposure risk activity that is established 

relates to herbicide exposure and the 

veteran claims any of the following 

conditions: 

(1) Cancers of the oral cavity 

(including lips and tongue), pharynx 

(including tonsils), and nasal cavity 

(including ears and sinuses); 

(2) Cancers of the pleura, 

mediastinum, and other unspecified 

sites within the respiratory system and 

intrathoracic organs; 

(3) Cancers of the digestive organs 

(esophageal cancer; stomach cancer; 

colorectal cancer (including small 

intestine and anus), hepatobiliary 

cancers (liver, gallbladder, and bile 

ducts), and pancreatic cancer); 

(4) Bone and connective tissue cancer; 

(5) Melanoma; 

(6) Nonmelanoma skin cancer (basal 

cell and squamous cell); 

(7) Cancers of the reproductive organs 

(cervix, uterus, ovary, breast, testes, and 

penis; not including prostate); 

(8) Cancers of the brain and nervous 

system (including eye); 

(9) Endocrine cancers (including 

thyroid and thymus); 

(10) Leukemia (other than all chronic 

B-cell leukemias including chronic 

lymphocytic leukemia and hairy cell 

leukemia); 

(11) Neurobehavioral disorders 

(cognitive and neuropsychiatric); 

Neurodegenerative diseases (including 

amyotrophic lateral sclerosis (ALS) but 

not including Parkinson’s disease and 

Parkinsonism); 

(12) Chronic peripheral nervous 

system disorders (other than early-onset 

peripheral neuropathy); 

(13) Asthma; 

(14) Chronic obstructive pulmonary 

disease; 

(15) Farmer’s lung; 

(16) Gastrointestinal, metabolic, and 

digestive disorders; 

(17) Immune system disorders 

(immune suppression, allergy, and 

autoimmunity); 

(18) Circulatory disorders (other than 

hypertension, ischemic heart disease, 

and stroke); 

(19) Endometriosis; 

(20) Hearing loss; 

(21) Diseases of the eye; and 

(22) Osteoporosis. 

(E) The exceptions under paragraphs 

(c)(4)(iv)(A) through (D) of this section 

will not apply if the veteran submits 

competent scientific or medical 

evidence that indicates that the claimed 

disability or condition may be 

associated with the in-service toxic 

exposure risk activity. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
79828 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

(F) The only participation in a toxic 

exposure risk activity that is established 

is based on an entry in an exposure 

tracking record system, as defined in 

§ 3.1(cc), that does not corroborate a 

veteran’s potential exposure to toxic 

substances, chemicals, or airborne 

hazards during military service. 

(G) The only participation in a toxic 

exposure risk activity that is established 

is based on an entry in an exposure 

tracking record system, as defined in 

§ 3.1(cc), that is based on the veteran’s 

report of exposure to toxic substances, 

chemicals, or airborne hazards that 

cannot be substantiated. 

* * * * * 

■ 4. Amend § 3.317 by revising the 

section heading and paragraphs (a)(1), 

(c)(3)(ii), and (e)(1) to read as follows: 

§ 3.317 Presumption of service connection 

for certain undiagnosed illnesses and 

medically unexplained chronic multisymptom illnesses occurring in Persian 

Gulf veterans. 

(a) * * * 

(1) Except as provided in paragraph 

(a)(7) of this section, VA will pay 

compensation in accordance with 38 

U.S.C. chapter 11, to a Persian Gulf 

veteran who exhibits objective 

indications of a qualifying chronic 

disability that became manifest to any 

degree at any time, provided that such 

disability, by history, physical 

examination, and laboratory tests, 

cannot be attributed to any known 

clinical diagnosis. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) For purposes of this paragraph (c), 

the term qualifying period of service 

means service in the Southwest Asia 

theater of operations during the Gulf 

War or a period of active military, naval, 

or air service on or after September 19, 

2001, in Afghanistan. 

* * * * * 

(e) Service. For purposes of this 

section: 

(1) The term Persian Gulf veteran 

means a veteran who served on active 

military, naval, or air service in the 

Southwest Asia theater of operations, 

Afghanistan, Israel, Egypt, Turkey, 

Syria, or Jordan, during the Persian Gulf 

War. 

* * * * * 

■ 5. Revise § 3.320 to read as follows: 

§ 3.320 Presumptive service connection 

based on exposure to toxic substances, 

chemicals, and airborne hazards. 

(a) Presumption of exposure. A 

covered veteran as defined in paragraph 

(c) of this section, and required by 38 

U.S.C. 1119(b), shall be presumed to 

have been exposed to the following 

toxic substances, chemicals, and 

airborne hazards during such service, 

unless there is affirmative evidence to 

establish that the veteran was not 

exposed to any such toxic substances, 

chemicals, and airborne hazards during 

that service. 

(1) Fine particulate matter. 

(2) [Reserved] 

(b) Presumption of service connection. 

Except as provided in paragraph (d) of 

this section, the following diseases 

becoming manifest in a covered veteran, 

as defined in paragraph (c) of this 

section, shall be considered to have 

been incurred in or aggravated during 

active military, naval, air, or space 

service, notwithstanding that there is no 

record of evidence of such disease 

during the period of such service. 

(1) Asthma. 

(2) Head cancer of any type. 

(3) Neck cancer of any type. 

(4) Respiratory cancer of any type. 

(5) Gastrointestinal cancer of any 

type. 

(6) Reproductive cancer of any type. 

(7) Lymphoma cancer of any type. 

(8) Kidney cancer. 

(9) Brain cancer. 

(10) Melanoma. 

(11) Pancreatic cancer. 

(12) Chronic bronchitis. 

(13) Chronic obstructive pulmonary 

disease. 

(14) Constrictive bronchiolitis or 

obliterative bronchiolitis. 

(15) Emphysema. 

(16) Granulomatous disease. 

(17) Interstitial lung disease. 

(18) Pleuritis. 

(19) Pulmonary fibrosis. 

(20) Sarcoidosis. 

(21) Chronic sinusitis. 

(22) Chronic rhinitis. 

(23) Glioblastoma. 

(c) Covered veteran. For purposes of 

this section, the term covered veteran 

means any veteran who: 

(1) On or after August 2, 1990, 

performed active military, naval, air, or 

space service while assigned to a duty 

station in, including airspace above: 

(i) The Southwest Asia theater of 

operations as defined in § 3.317(e)(2); or 

(ii) Somalia; or 

(2) On or after September 11, 2001, 

performed 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; or 

(viii) Uzbekistan. 

(d) Exceptions. A disease listed in 

paragraph (b) of this section shall not be 

presumed service connected if there is 

affirmative evidence that: 

(1) The disease was not incurred or 

aggravated during active military, naval, 

air, or space service; or 

(2) The disease was caused by a 

supervening condition or event that 

occurred between the veteran’s most 

recent departure from active military, 

naval, air, or space service and the onset 

of the disease; or 

(3) The disease is the result of the 

veteran’s own willful misconduct. 

(e) Special applicability date 

provision. The Secretary has determined 

that all veterans presenting a claim for 

disability compensation for which 

service connection could be established 

based on the presumptions in section 

406 of Public Law 117–168 are ‘‘capable 

of demonstrating other sufficient 

cause,’’ entitling those veterans to an 

applicability date for the presumptions 

concurrent with the date of enactment 

of Public Law 117–168. 

(Authority: 38 U.S.C. 501, 1119, 1120) 

[FR Doc. 2024–21852 Filed 9–30–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2024–0083; FRL–11767– 

01–R2] 

Finding of Failure To Attain the 

Primary 2010 1-Hour Sulfur Dioxide 

Standard for the San Juan and 

Guayama-Salinas Nonattainment 

Areas; Approval and Conditional 

Approval of Air Quality State 

Implementation Plans; Puerto Rico; 

Attainment Plan for the 2010 1-Hour 

Sulfur Dioxide Standard for the San 

Juan and Guayama-Salinas 

Nonattainment Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing two actions 

related to attainment of the 2010 

primary 1-hour sulfur dioxide (SO2) 

National Ambient Air Quality Standard 

(NAAQS or ‘‘standard’’). First, the EPA 

is proposing to determine that the San 

Juan and Guayama-Salinas SO2

Nonattainment Areas (NAAs) failed to 

attain the 2010 primary 1-hour SO2

NAAQS by the applicable attainment 

date of April 9, 2023, based upon a 

technical analysis of various evidence 


khammond on DSKJM1Z7X2PROD with PROPOSALS