Rating Claims Based on Exposure to Burn Pits and Other Toxins, Including Fine Particulate Matter (BPOT)

In This Section

Introduction

• establishing SC for a qualifying presumptive disability
• date disabilities became subject to presumptive SC based on BPOT exposure
• presumptive SC for asthma
• BPOT general rating decision requirements, and
• establishing an effective date for qualifying disabilities due to BPOT exposure.

Change Date

VIII.ii.2.C.1.a. Establishing SC for a Qualifying Presumptive Disability

• service in a qualifying location as described in M21-1, Part VIII, Subpart ii, 2.A.1.e, and
• the Veteran has been diagnosed with a condition listed in
  • 38 U.S.C. 1120
  • 38 CFR 3.320a, or
  • 38 CFR 3.320b.

• Presumptive SC for the conditions listed in 38 U.S.C. 1120 became effective August 10, 2022, based on Public Law 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022.
• Under current rules, the presumption of SC does not require the disability to manifest within any time frame after service nor to any degree of disability.
• Presumptive SC for cancer associated with exposure to burn pits and other toxins, including fine particulate matter (BPOT) may only be established if the cancer in consideration is the primary or originating site of the cancer.

• the history of BPOT exposure policies, see M21-1, Part VIII, Subpart ii, 2.A.1.a
• which diagnoses qualify as a presumptive under 38 U.S.C. 1120, see
  • VBA Letter 20-24-06, Updated Guidance on Processing Claims Involving PACT Act, and
  • M21-1, Part VIII, Subpart ii, 2.A.1.f
• presumptive SC for metastatic cancer, see M21-1, Part V, Subpart ii, 2.B.1.b, and
• presumptive BPOT disabilities, see M21-1, Part VIII, Subpart ii, 2.A.1.f-h.

VIII.ii.2.C.1.b. Date Disabilities Became Subject to Presumptive SC Based on BPOT Exposure

VIII.ii.2.C.1.c. Presumptive SC for Asthma

VIII.ii.2.C.1.d. BPOT General Rating Decision Requirements

• cite the applicable regulatory or statutory authority for the decision, when applicable
• list favorable findings, if applicable, specific to the facts of the case, and
• assign the appropriate special issue and special issue basis to each decided issue.

VIII.ii.2.C.1.e. Establishing an Effective Date for Disabilities Due to BPOT Exposure

• When did the disability become subject to presumptive SC?
• Did the Veteran’s service qualify under 38 CFR 3.320 or under a location added in 38 U.S.C. 1119?
• Did the qualifying disability manifest within any applicable manifestation period?

• 38 CFR 3.400
• 38 CFR 3.114, and
• 38 CFR 3.156(c).

Introduction

• when presumptive SC cannot be established, and
• requirement to provide adequate explanation of decisions to deny.

Change Date

VIII.ii.2.C.2.a. When Presumptive SC Cannot Be Established

• the Veteran
  • did not serve in a qualifying location as listed in M21-1, Part VIII, Subpart ii, 2.A.1.e, or
  • is not diagnosed with a presumptive BPOT disability
• there is affirmative evidence that the BPOT disability
  • was caused by another condition or event that occurred between the Veteran’s qualifying service and the onset of the disability, or
  • was the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs.

• M21-1, Part VIII, Subpart ii, 2.A, and
• VBA Letter 20-24-06.

VIII.ii.2.C.2.b. Requirement to Provide Adequate Explanation of Decisions to Deny

• use a combination of any applicable system-generated language, glossary text fragments, and free text to ensure the decision and decision notice adequately explain why the claim could not be granted under all applicable provisions, and
• apply the appropriate special issue and special issue basis for each decided contention.

Change Date

VIII.ii.2.C.3.a. Special Provisions Regarding the Evaluation of Respiratory Conditions

• 38 CFR 4.97, and
• M21-1, Part V, Subpart iii, 4.A.