38 U.S.C. § 1116B

Presumption of herbicide exposure for certain veterans who served in Korea

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(a)Presumption of Service-Connection.—(1) For the purposes of section 1110 of this title, and subject to section 1113 of this title, a disease specified in subsection (b) that becomes manifest as specified in that subsection in a veteran described in paragraph (2) shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service.(2) A veteran described in this paragraph is a veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971.(b)Diseases.—A disease specified in this subsection is—(1) a disease specified in paragraph (2) of subsection (a) of section 1116 of this title that becomes manifest as specified in that paragraph; or(2) any additional disease that—(A) pursuant to subchapter VII of this chapter, the Secretary determines in regulations warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent; and(B) becomes manifest within any period prescribed in such regulations.(c)Herbicide Agent.—For purposes of this section, the term “herbicide agent” has the meaning given such term in section 1821(d) of this title.(Added Pub. L. 116–23, § 3(a), June 25, 2019, 133 Stat. 969; amended Pub. L. 117–168, title II, § 202(d)(2), Aug. 10, 2022, 136 Stat. 1775.)Editorial NotesAmendments

2022—Subsec. (b)(2)(A). Pub. L. 117–168 inserted “pursuant to subchapter VII of this chapter,” before “the Secretary determines”.

Statutory Notes and Related SubsidiariesEffective Date

Pub. L. 116–23, § 3(d), June 25, 2019, 133 Stat. 970, provided that: “The amendments made by this section [enacting this section] shall take effect on January 1, 2020.”

Implementation

Pub. L. 116–23, § 3(c), June 25, 2019, 133 Stat. 970, provided that:“(1)Guidance.—Notwithstanding section 501 of such title, the Secretary of Veterans Affairs may issue guidance to implement section 1116B of title 38, United States Code, as added by subsection (a), before prescribing new regulations under such section.“(2)Updates.—(A) Not later than 120 days after the date of the enactment of this Act [June 25, 2019], the Secretary shall submit a report to the Committees on Veterans’ Affairs of the House of Representatives and the Senate regarding the plans of the Secretary to respond to inquiries from veterans regarding claims for disability compensation under section 1116B of title 38, United States Code, as added by subsection (a) of this section.“(B) On a quarterly basis during the period beginning on the date of the enactment of this Act and ending on the date on which regulations are prescribed to carry out such section 1116B, the Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate updates on the status of such regulations.“(3)Pending cases.—“(A)Authority to stay.—The Secretary may stay a claim described in subparagraph (B) until the date on which the Secretary commences the implementation of section 1116B of title 38, United States Code, as added by subsection (a).“(B)Claims described.—A claim described in this subparagraph is a claim for disability compensation—“(i) relating to the service and diseases covered by such section 1116B; and“(ii) that is pending at the Veterans Benefits Administration or the Board of Veterans’ Appeals on or after the date of the enactment of this Act and before the date on which the Secretary commences the implementation of such section 1116B.”

Notes of Decisions

Cited in 7 cases (6 in the last 5 years), 2020–2022 · leading case: Military-Vets. Advocacy v. Sec'y of Vets. Affairs, 38 F.4th 154 (Fed. Cir. 2022).

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Military-Vets. Advocacy v. Sec'y of Vets. Affairs, 38 F.4th 154 (Fed. Cir. 2022). “966 , 969 (codified at 38 U.S.C. § 1116B). Case: 20-2086 Document: 56 Page: 5 Filed: 06/17/2022 MILITARY-VETERANS ADVOCACY v.”

Douglas A. Constantine v. Denis McDonough (Vet. App. 2022). · cites it 2× “38 U.S.C. § 1116B; see Blue Water Navy Vietnam Veterans Act of 2019, Pub.”

200519-85224 (Board of Vet. App. 2020). “As such, 38 U.S.C. § 1116B ( Public Law 116-91 ) appears to be a liberalizing law and provides a presumption of herbicide exposure for veterans who served in or near the Korean DMZ from September 1, 1967 to August 31, 1971, and the requirement in 38 C.”

Mares v. McDonough (Fed. Cir. 2021). “” 38 U.S.C. § 1116B. This provision went into effect January 1, 2020—after the Veterans Court is- sued its decision in this appeal.”

Simmons v. McDonough (Fed. Cir. 2022). “The Board considered the evidence before it— both the affirmative evidence against exposure and the ev- idence for it given by Mr. Simmons and his physician—and found that Mr.”

Military-Vets. Advocacy v. Sec'y of Vets. Affairs (Fed. Cir. 2022). “966 , 969 (codified at 38 U.S.C. § 1116B). Case: 20-2086 Document: 56 Page: 5 Filed: 06/17/2022 MILITARY-VETERANS ADVOCACY v.”

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