Processing Claims Based on Nautical Herbicide Exposure

In This Section

Introduction

• legislative history of presumptive nautical herbicide exposure
• claim requirements for Public Law (PL) 116-23, Blue Water Navy Vietnam Veterans Act of 2019 (BWN law) retroactive effective date
• proper controls for nautical herbicide claims
• higher-level reviews (HLRs)
• Board of Veterans’ Appeals (BVA) grants, and
• concessions of qualifying nautical service.

Change Date

VIII.i.1.D.1.a. Legislative History of Presumptive Nautical Herbicide Exposure

VIII.i.1.D.1.b. Claim Requirements for BWN Law Retroactive Effective Dates

• required claim forms, see M21-1, Part II, Subpart iii, 1.A.1
• supplemental claims, see M21-1, Part II, Subpart iii, 2.B, and
• effective dates under the BWN law, see M21-1, Part VIII, Subpart i, 1.D.4.

VIII.i.1.D.1.c. Proper Controls for Nautical Herbicide Claims

VIII.i.1.D.1.d. HLRs

VIII.i.1.D.1.e. BVA Grants

VIII.i.1.D.1.f. Concessions of Qualifying Nautical Service

Introduction

• centralized processing team development responsibilities
• Ship Locator Tool
• overview of nautical-based herbicide exposure verification procedures
• documenting herbicide exposure
• service in locations outside of the RVN, and
• Herbicide Exposure Verification Memorandum template.

Change Date

VIII.i.1.D.2.a. Centralized Processing Team Development Responsibilities

VIII.i.1.D.2.b. Ship Locator Tool

VIII.i.1.D.2.c. Overview of Nautical-Based Herbicide Exposure Verification Procedures

VIII.i.1.D.2.d. Documenting Herbicide Exposure

• M21-1, Part VIII, Subpart i, 1.B.2.e to properly format the documents used to verify herbicide exposure, or
• Step 4 of the table in M21-1, Part VIII, Subpart i, 1.D.2.c when documenting herbicide exposure based on the Ship Locator Tool results.

VIII.i.1.D.2.e. Service in Locations Outside of the RVN

• alleges service in a nautical location and no other qualifying service is shown, or
• was previously denied SC based on no qualifying service and has an explicit or implicit claim of RVN-based nautical service.

VIII.i.1.D.2.f. Herbicide Exposure Verification Memorandum Template

Introduction

• evidence of nautical service
• RVN nautical service locations
• definition of inland waterways
• specific geographic locations determined to be inland waterways
• definition of eligible offshore waters
• specific geographic locations determined to be in the eligible offshore waters
• definition of ineligible offshore waters
• Thailand nautical service
• Guam and American Samoa nautical service
• Johnston Atoll nautical service
• researching nautical service through approved military sites
• handling Deck Log Report Tab results in the Ship Locator Tool, and
• processing claims based on storage of Agent Orange aboard Navy and Coast Guard ships.

Change Date

VIII.i.1.D.3.a. Evidence of Nautical Service

VIII.i.1.D.3.b. RVN Nautical Service Locations

VIII.i.1.D.3.c. Definition: Inland Waterways

VIII.i.1.D.3.d. Specific Geographic Locations Determined to Be Inland Waterways

• all rivers, from their mouth on the coast, or junction with adjoining coastal water feature, and throughout upstream channels and passages within Vietnam
  • Rivers ending in bays or other offshore water features on the coastline end at a notional boundary line drawn across the junction between the river and the offshore water feature.
  • The Mekong River and other rivers with prominent deltas begin at a line drawn across the mouth of each inlet on the outer perimeter of the landmass of the delta.
• all streams
• all canals, and
• all navigable waterways inside the perimeter of land-type vegetation (e.g., trees and grasses, but not seaweed or kelp). This is particularly applicable to marshes found in the Rung Sat Special Zone and other Vietnam coastal areas.

VIII.i.1.D.3.e. Definition: Eligible Offshore Waters

VIII.i.1.D.3.f. Specific Geographic Locations Determined to Be in the Eligible Offshore Waters

• Cam Ranh Bay
• Da Nang Harbor
• Dam Bay
• Ganh Rai Bay
• Nha Phu Bay
• Nha Trang Harbor
• Qui Nhon Bay
• Rach Gia Bay
• Tre Bay
• Van Phong Bay
• Vung La Bay
• Vung Lam Bay
• Vung Ro Bay
• Vung Tau Harbor, and
• Xuan Dai Bay.

• Establish service in an approved bay or harbor using the Ship Locator Tool, other military records, or approved military sites.
• If military records show that the Veteran was on board a ship during the time it had duty or visitation in one of the above bays or harbors, centralized processing teams must recognize herbicide exposure.

VIII.i.1.D.3.g. Definition: Ineligible Offshore Waters

VIII.i.1.D.3.h. Thailand Nautical Service

VIII.i.1.D.3.i. Guam and American Samoa Nautical Service

VIII.i.1.D.3.j. Johnston Atoll Nautical Service

VIII.i.1.D.3.k. Researching Nautical Service Through Approved Military Sites

• Claims processors must ensure any records used to recognize exposure are uploaded to the Veteran’s eFolder and documented as described in M21-1, Part VIII, Subpart i, 1.D.2.d.
• If the above resources and Ship Locator Tool do not establish service in a qualifying location, the claim must be referred to the Records Research Team for additional research.

VIII.i.1.D.3.l. Handling Deck Log Report Tab Results in the Ship Locator Tool

VIII.i.1.D.3.m. Processing Claims Based on Storage of Agent Orange Aboard Navy and Coast Guard Ships

Introduction

• centralized processing team rating responsibilities
• rating decision requirements
• retroactive effective dates under the BWN law
• requirement for explicit claim for retroactive entitlement
• inapplicability of 38 CFR 3.114
• interplay of Nehmer and the BWN law
• non-retroactive effective dates
• other effective date considerations, and
• Veteran Affairs Schedule for Rating Disabilities (VASRD) updates and staged ratings.

Change Date

VIII.i.1.D.4.a. Centralized Processing Team Rating Responsibilities

VIII.i.1.D.4.b. Rating Decision Requirements

VIII.i.1.D.4.c. Retroactive Effective Dates Under the BWN Law

• VBA denied the claim under its prior interpretation of the law regarding Vietnam service, which did not include service in the territorial waters, and
• the Veteran or survivor has submitted a claim for the same previously denied condition that was
  • pending on January 1, 2020, or
  • received on or after January 1, 2020.

• For example, a claim denied due to a lack of evidence of a current disability at the time of that claim is not a qualifying claim subject to the retroactive provisions.
• In some situations, only one reason for denial may be stated in the prior decision, though other reasons for denial were implicit in the record. For example, a stated denial reason may have been a lack of evidence that the disease was incurred or aggravated by the service of the Veteran, but the evidentiary record also lacked indication of a current disability. Both the stated and implicit reason for denial are relevant to determining whether a claim may be considered an explicit claim for the presumptive disability.

VIII.i.1.D.4.d. Requirement for Explicit Claim for Retroactive Entitlement

• an explicit claim for SC on or after September 25, 1985, and before January 1, 2020, that was previously denied, and
• eligibility for SC that becomes warranted specifically under the definition of eligible offshore waters in the BWN law (38 U.S.C. 1116A).

VIII.i.1.D.4.e. Inapplicability of 38 CFR 3.114

• When an initial grant of benefits is warranted based on a Veteran’s nautical service and a retroactive effective date is not available based on the provisions described above,
  • do not apply 38 CFR 3.114 to the assigned effective date, but
  • do apply 38 CFR 3.400.
• When a retroactive effective date is available based on a previously denied claim, and the previously denied claim was received prior to the date on which the claimed disability was recognized as presumptive disability under 38 CFR 3.309(e), 38 CFR 3.114 will not limit the assigned effective date. SC may be established prior to the date the disability was recognized as presumptive under 38 CFR 3.309(e) provided that the claim was received on or after September 25, 1985. This principle applies equally to grants of SC for DIC and accrued claims.

VIII.i.1.D.4.f. Interplay of Nehmer and the BWN Law

• the Nehmer stipulation, see
  • M21-1, Part VIII, Subpart i, 2, and
  • the NehmerStandardOperating Procedure, and
• the dates on which disabilities became subject to presumptive SC based on herbicide exposure, see M21-1, Part VIII, Subpart i, 1.C.1.e.

VIII.i.1.D.4.g. Non-Retroactive Effective Dates

• Ensure that no retroactive entitlement exists. When SC is warranted but a previously denied claim exists and the criteria for retroactive entitlement described above are satisfied, establishment a retroactive effective date based on the date of receipt of the previously denied claim.
• Do not apply 38 CFR 3.114 to the assigned effective date for a new or supplemental claim except when the liberalizing change was the addition of a new disability to 38 CFR 3.309(e) as discussed above.
• The initial claim for accrued benefits must be filed within one year of the Veteran’s death to award any accrued benefits.

VIII.i.1.D.4.h. Other Effective Date Considerations

• whether the BWN law is the basis of the decision to now grant SC
• whether the claim was previously denied and the bases for previously denied claim
• date of diagnosis for the presumptive disability
• any relevant Veteran Affairs Schedule for Rating Disabilities (VASRD) updates
• changes in level of disability (staged ratings)
• applicability of Section 506, PL 112-154, for fully developed claims received between August 6, 2013, and August 5, 2015
• applicability of informal claims under historical 38 CFR 3.151 prior to March 24, 2015, and
• applicability of an intent to file under 38 CFR 3.155(b) after March 24, 2015.

VIII.i.1.D.4.i. VASRD Updates and Staged Ratings

• When appropriate, assign staged ratings in accordance with M21-1, Part V, Subpart ii, 3.D.2.j and M21-1, Part X, Subpart ii, 4.A.1.e.
• When considering VASRD adjustments, apply the provisions of M21-1, Part V, Subpart ii, 4.A.6.m and M21-1, Part V, Subpart ii, 3.D.2.h and i.

• protection of compensation evaluations, see M21-1, Part X, Subpart ii, 1.B
• VASRD adjustments, see 38 CFR Part 4, Appendix A, and
• historical 38 CFR Part 4 criteria, see
  • the historical Portable Document Format in the Attachments section for the relevant 38 CFR Part 4 regulation in the Compensation and Pension Knowledge Management portal, and
  • eCFR for the applicable date.