Disease Associated With Exposure to Certain Herbicide Agents

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AG69

Disease Associated With Exposure to Certain Herbicide Agents

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) has amended its

adjudication regulations concerning presumptive service connection for

certain diseases even though there is no record of the disease during

service. This amendment is necessary to implement a decision of the

Secretary of Veterans Affairs under the authority granted by the Agent

Orange Act of 1991 that there is an association between exposure to

herbicides used in the Republic of Vietnam during the Vietnam era and

the subsequent development of Hodgkin's disease and porphyria cutanea

tarda (PCT). The intended effect of this amendment is to establish

presumptive service connection for those conditions based on herbicide

exposure.

EFFECTIVE DATE: This amendment is effective February 3, 1994, as

provided by Public Law 102-4.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 233-3005.

SUPPLEMENTARY INFORMATION: VA published a proposal to amend 38 CFR

3.307(a), 3.309(e), and 3.311a to establish presumptive service

connection for Hodgkin's disease and PCT based on exposure to

herbicides in the Federal Register of September 28, 1993 (58 FR 50528-

30). Interested persons were invited to submit written comments,

suggestions or objections concerning the proposal on or before October

28, 1993. Since no comments were received, the proposed amendments are

adopted without change.

The Secretary hereby certifies that this regulatory amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act (RFA), 5

U.S.C. 601-612. The reason for this certification is that this

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 605(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are

64.109 and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Handicapped, Health

care, Pensions, Veterans.

Approved: January 4, 1994.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is amended

as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

The authority citation for part 3, subpart A, continues to read as

follows:

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

2. In Sec. 3.307, the heading and paragraph (a)(6) are revised to

read as follows:

Sec. 3.307 Presumptive service connection for chronic, tropical or

prisoner-of-war related disease, or disease associated with exposure to

certain herbicide agents; wartime and service on or after January 1,

1947.

(a) * * *

(6) Diseases associated with exposure to certain herbicide agents.

(i) For the purposes of this section, the term ``herbicide agent''

means a chemical in an herbicide used in support of the United States

and allied military operations in the Republic of Vietnam during the

Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD;

cacodylic acid; and picloram.

(ii) The diseases listed at Sec. 3.309(e) shall have become

manifest to a degree of 10 percent or more at any time after service,

except that chloracne or other acneform disease consistent with

chloracne and porphyria cutanea tarda shall have become manifest to a

degree of 10 percent or more within a year after the last date on which

the veteran was exposed to an herbicide agent during active military,

naval, or air service.

(iii) A veteran who, during active military, naval, or air service,

served in the Republic of Vietnam during the Vietnam era and has a

disease listed at Sec. 3.309(e) shall be presumed to have been exposed

during such service to an herbicide agent, unless there is affirmative

evidence to establish that the veteran was not exposed to any such

agent during that service. The last date on which such a veteran shall

be presumed to have been exposed to an herbicide agent shall be the

last date on which he or she served in the Republic of Vietnam during

the Vietnam era. ``Service in the Republic of Vietnam'' includes

service in the waters offshore and service in other locations if the

conditions of service involved duty or visitation in the Republic of

Vietnam.

* * * * *

Sec. 3.307 [Amended]

3. In Sec. 3.307(a), the first sentence of the introductory text,

remove the words ``a disease associated with service in the Republic of

Vietnam'' and insert, in their place, the words ``a disease associated

with exposure to certain herbicide agents''.

4. In Sec. 3.309, paragraph (e) is revised to read as follows:

Sec. 3.309 Disease subject to presumptive service connection.

* * * * *

(e) Disease associated with exposure to certain herbicide agents.

If a veteran was exposed to an herbicide agent during active military,

naval, or air service, the following diseases shall be service-

connected if the requirements of Sec. 3.307(a)(6) are met even though

there is no record of such disease during service, provided further

that the rebuttable presumption provisions of Sec. 3.307(d) are also

satisfied.

Chloracne or other acneform disease consistent with chloracne

Hodgkin's disease

Non-Hodgkin's lymphoma

Porphyria cutanea tarda

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma,

Kaposi's sarcoma, or mesothelioma)

Note: The term ``soft-tissue sarcoma'' includes the following:

Adult fibrosarcoma

Dermatofibrosarcoma protuberans

Malignant fibrous histiocytoma

Liposarcoma

Leiomyosarcoma

Epithelioid leiomyosarcoma (malignant leiomyoblastoma)

Rhabdomyosarcoma

Ectomesenchymoma

Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)

Proliferating (systemic) angioendotheliomatosis

Malignant glomus tumor

Malignant hemangiopericytoma

Synovial sarcoma (malignant synovioma)

Malignant giant cell tumor of tendon sheath

Malignant schwannoma, including malignant schwannoma with

rhabdomyoblastic differentiation (malignant Triton tumor), glandular

and epithelioid malignant schwannomas

Malignant mesenchymoma

Malignant granular cell tumor

Alveolar soft part sarcoma

Epithelioid sarcoma

Clear cell sarcoma of tendons and aponeuroses

Extraskeletal Ewing's sarcoma

Congenital and infantile fibrosarcoma

Malignant ganglioneuroma

Sec. 3.311a [Removed]

Sec. 3.311b [Redesignated as Sec. 3.311]

5. Section 3.311a is removed and Sec. 3.311b is redesignated as

Sec. 3.311.

[FR Doc. 94-2403 Filed 2-2-94; 8:45 am]

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