a. Provisions of PL 98-542 Under Public Law (PL) 98-542, which was enacted on October 24, 1984, the following claims that were denied prior to October 24, 1984, are entitled to a de novo review: claims for service connection (SC) based upon exposure to ionizing radiation as a consequence of service with the occupation forces of Hiroshima or Nagasaki, Japan, or claims for SC based upon exposure to ionizing radiation in connection with nuclear testing. Notes: A de novo review is a new and complete review of an issue with no deference given to the previous decision. It is not necessary for the claimant to submit new and material evidence to reopen these claims. b. Provisions of PL 102-86 PL 102-86, effective August 14, 1991, extended eligibility to presumptive SC to individuals engaged in a radiation-risk activity during active duty for training, or inactive duty training. c. History of Time Limits for Disease Manifestation for Presumptive Purposes Under 38 CFR 3.309(d) Originally, in order to establish presumptive SC, the time limit for a disease listed under to become manifest to a degree of 10 percent or more was 30 years for leukemia, and 40 years for all other diseases. Then, the presumptive period was extended to 40 years for leukemia effective August 14, 1991. Effective October 1, 1992, a time limit for manifestation is not specified or required for any disease listed under . d. List of Disabilities Under 38 CFR 3.309(d) for Which SC Is Presumed The table below lists the disabilities for which SC is presumed based on a Veteran’s exposure to ionizing radiation under . PL or Federal Register Citation Presumptive Disabilities Under 38 CFR 3.309(d)
for a Claim in Which Exposure to Herbicides Is Not Specifically Mentioned denied the claim in 1995. The Veteran reopened the claim in 1997 and SC was established on the basis of herbicide exposure. Result: Based on these facts, the effective date must relate back to the 1994 claim, even though the Veteran alleged a different basis for SC. l. Handling Claims for Type 2 DM as Related to Herbicide Exposure Effective May 8, 2001, type 2 DM became subject to presumptive SC under . Retroactive benefits under the Nehmer review may be warranted for claims filed or denied during the period September 25, 1985, to May 7, 2001. If a prior claim did not involve SC for type 2 DM, there generally exists no basis for assigning an earlier effective date. However, a lack of specificity in the initial claim may be clarified by later submissions. m. Example 1: Claim for SC for Type 2 DM Situation: In January 1987, a Veteran filed a claim for SC for hyperglycemia. In developing the claim, VA obtained medical records indicating that the Veteran was diagnosed with type 2 DM in February 1987. Result: Based on these facts, it would be reasonable to treat the January 1987 claim as a claim for SC for type 2 DM. Rationale: Under Nehmer, benefits may be paid retroactive to the date the initial claim was received or the date the disability arose as determined by the facts of the case, whichever is later. n. Example 2: Claim for SC for Type 2 DM Situation: In 1995, a Veteran filed a claim for SC for hyperglycemia. Medical records obtained by VA indicated that the Veteran did not have type 2 DM. In 2001, the Veteran filed a second claim for SC for type 2 DM, submitting evidence showing that the condition was diagnosed in 1996. Result: Based on these facts, the 1995 claim is not considered a claim for SC for type 2 DM. Rationale: Neither the claim nor the evidence of record (when the 1995 claim was processed) indicated the Veteran had been diagnosed with type 2 DM. o. Information to Include in the Rating Decision for Any Nehmer Rating When completing a rating decision under the Nehmer guidelines, include the following entry in the Evidence part All evidence contained in the claims file prior to [date], which is the earliest date a claim for Nehmer purposes was received in VA. In the decision narrative, include the following
following language A final decision is being deferred until a final regulation creating a presumption of service connection is published in the Federal Register, and follow the guidance in the table below for the Veterans Appeals Control and Locator System (VACOLS) record. Note: Decide any concurrent appeal issues not affected by the stay under normal procedures. Reference: For more information on VACOLS, see the , and M21-1, Part I, 5.K. is for any other condition not affected by the stay, and requires a continued denial through an SOC or SSOC issue an SOC or SSOC under normal appeal procedures. Reference: For more information on issuing an SOC or SSOC, see M21-1, Part I, 5.D. 6. Claims Based on Participation in the SHAD Project Introduction This topic contains information on claims based on participation in the SHAD Project, including background on the SHAD Project considering SC on direct and presumptive bases, and