Review of the Department of Veterans Affairs Presumption Decision Process (2023)
Chapter: Appendix A: Applicable Excerpts of Public Law 117-168
Public Law 117–168
117th Congress
An Act
To improve the Iraq and Afghanistan Service Grant and the Children of Fallen Heroes Grant.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNITED STATES CODE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Sergeant First Class Heath Robinson Honoring our Promise to Address Com- prehensive Toxics Act of 2022’’ or the ‘‘Honoring our PACT Act of 2022’’.
136 STAT. 1772 PUBLIC LAW 117–168—AUG. 10, 2022
| 38 USC 1176. |
‘‘§ 1176. Agreement with National Academies of Sciences, Engineering, and Medicine concerning toxic exposure |
136 STAT. 1774 PUBLIC LAW 117–168—AUG. 10, 2022
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(1) REPORT.— (A) title 38, United States Code, as added by subsection (c) INDEPENDENT ASSESSMENT.— (1) AGREEMENT.—The Secretary shall seek to enter into an agreement with the National Academies of Science, Engineering, and Medicine (in this subsection referred to as the ‘‘Academies’’) before the date that is 90 days after the date of the enactment of this Act to perform the services set forth under paragraph (2). (2) ASSESSMENT.— (A) IN GENERAL.—Under an agreement between the Secretary and the Academies under paragraph (1), the Academies shall conduct an assessment of the implementation by the Department of Veterans Affairs of the process established under subchapter VII of chapter 11 of title 38, United States Code, as added by subsection (a). (B) ELEMENTS.—The assessment conducted under subparagraph (A) shall include the following: (i) An assessment of the Department’s implementation of the process established under subsection (a) to determine whether the process is in accordance with current scientific standards for assessing the link between exposure to environmental hazards and the development of health outcomes, (ii) assess whether the criteria is fair and consistent, and (iii) provide recommendations for improvements to the process. (3) REPORT.—Not later than one year after the date on which the Secretary enters into an agreement under paragraph (1), the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the findings of the Academies pursuant to such agreement. |
PUBLIC LAW 117–168—AUG. 10, 2022 136 STAT. 1767
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‘‘SUBCHAPTER VII—DETERMINATIONS RELATING TO PRESUMPTIONS OF SERVICE CONNECTION BASED ON TOXIC EXPOSURE |
38 USC 1171 prec. |
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‘‘§ 1171. Procedures to determine presumptions of service connection based on toxic exposure; definitions ‘‘(a) PROCEDURES.—The Secretary shall determine whether to establish, or to remove, presumptions of service connection based on toxic exposure pursuant to this subchapter, whereby— ‘‘(1) under section 1172 of this title— ‘‘(A) the Secretary provides— |
38 USC 1171. |
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‘‘(i) public notice regarding what formal evaluations the Secretary plans to conduct; and |
Notice. |
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‘‘(ii) the public an opportunity to comment on the proposed formal evaluations; |
Public comment. |
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‘‘(B) the working group established under subsection (b) of such section provides— ‘‘(i) advice to the Secretary on toxic-exposed veterans and cases in which veterans who, during active military, naval, air, or space service, may have experienced a toxic exposure or their dependents may have experienced a toxic exposure while the veterans were serving in the active military, naval, air, or space service; ‘‘(ii) recommendations to the Secretary on corrections needed in the Individual Longitudinal Exposure Record to better reflect veterans and dependents described in clause (i); and ‘‘(iii) recommendations to the Secretary regarding which cases of possible toxic exposure should be reviewed; |
Recommendations. |
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‘‘(2) the Secretary provides for formal evaluations of such recommendations under section 1173 of this title and takes into account reports received by the Secretary from the National Academies of Sciences, Engineering, and Medicine under section 1176 of this title; and |
Evaluations. |
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‘‘(3) the Secretary issues regulations under section 1174 of this title. ‘‘(b) DEFINITIONS.—In this subchapter: ‘‘(1) The term ‘illness’ includes a disease or other condition affecting the health of an individual, including mental and physical health. ‘‘(2) The term ‘Individual Longitudinal Exposure Record’ includes— ‘‘(A) service records; ‘‘(B) any database maintained by the Department of Defense and shared with the Department of Veterans Affairs to serve as a central portal for exposure-related data that compiles, collates, presents, and provides avail- able occupational and environmental exposure information to support the needs of the Department of Defense and the Department of Veterans Affairs; or ‘‘(C) any successor system to a database described in subparagraph (B). |
Regulations. |
136 STAT. 1768 PUBLIC LAW 117–168—AUG. 10, 2022
| 38 USC 1172. |
‘‘§ 1172. Annual notice and opportunity for public comment |
| Federal Register, publications. |
‘‘(a) NOTICE REQUIRED.—(1)(A) Not less frequently than once each year, the Secretary shall publish in the Federal Register notice of the formal evaluations that the Secretary plans to conduct pursuant to section 1173 of this title. ‘‘(B) Each notice published under subparagraph (A) shall include, for each formal evaluation referred to in the notice, an explanation as to why the military environmental exposures and adverse health outcomes that are the subject of the formal evalua- tion were chosen by the Secretary for formal evaluation under section 1173 of this title. ‘‘(2)(A) With each notice published under paragraph (1), the Secretary shall seek public comment on the military environmental exposures and adverse health outcomes that are the subject of the formal evaluations referred to in the notice. ‘‘(B) The Secretary shall— ‘‘(i) consider all public comment received under subparagraph (A); and ‘‘(ii) publish in the Federal Register a response to the comments received under subparagraph (A). ‘‘(3)(A) For each notice published under paragraph (1), the Secretary shall hold an open meeting for members of the public to voice their comments in response to the notice. |
| Evaluation. Time period. |
‘‘(B) To help evaluate presumptions of service connection, the Secretary shall, not less frequently than quarterly, collaborate with, partner with, and give weight to the advice of veterans service organizations and such other stakeholders as the Secretary considers appropriate. ‘‘(4) Failure to include a military environmental exposure or adverse health effect in a Federal Register notice published pursuant to subsection (a) shall not preclude the Secretary from initiating a formal evaluation of such exposure or health effect. |
| Establishment. |
‘‘(b) WORKING GROUP.—(1) The Secretary shall establish a working group within the Department (in this section referred to as the ‘Working Group’). ‘‘(2) The Working Group shall include personnel of the Veterans Health Administration and the Veterans Benefits Administration. |
| Consultation. |
‘‘(3) The Secretary shall consult with, and seek the advice of, the Working Group with respect to cases in which— ‘‘(A) a veteran may have, during active military, naval, air, or space service, experienced a toxic exposure; or ‘‘(B) a dependent of a veteran may have experienced a toxic exposure during the active military, naval, air, or space service of the veteran. ‘‘(c) ASSESSMENTS.—(1) The Working Group shall assess cases of the toxic exposure of veterans and their dependents that occurred during active military, naval, air, or space service, including by conducting ongoing surveillance and reviewing such exposure described in scientific literature, media reports, information from veterans, and information from Congress. ‘‘(2) The assessments under paragraph (1) shall cover suspected and known toxic exposures occurring during active military, naval, air, or space service, including by identifying and evaluating new and emerging toxic exposures that are not recognized under existing presumptions of service connection. |
PUBLIC LAW 117–168—AUG. 10, 2022 136 STAT. 1769
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‘‘(3) The Working Group may conduct an assessment under paragraph (1) in response to a comment received under paragraph (2) or (3) of subsection (a). |
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‘‘(4) The Working Group shall, in consultation with the Secretary of Defense, on a periodic basis, assess the Individual Longitudinal Exposure Record to ensure the accuracy of data collected. ‘‘(d) |
Consultation. |
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DEVELOPMENT OF RECOMMENDATIONS.—(1) Following an assessment of a case of the toxic exposure of veterans that occurred during active military, naval, air, or space service under subsection (c), or their dependents, the Working Group may develop a recommendation for formal evaluation under section 1173 of this title to conduct a review of the health effects related to the case of exposure if the Working Group determines that the research may change the current understanding of the relationship between an exposure to an environmental hazard and adverse health outcomes in humans. ‘‘(2) Upon receipt of evidence suggesting that previous findings regarding the periods and locations of exposure covered by an existing presumption of service connection are no longer supported, the Working Group may nominate such evidence for formal evalua- tion under section 1173 of this title to modify the periods and locations. |
Determination. |
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‘‘(e) REPORTS BY THE WORKING GROUP.—Not less frequently than once each year, the Working Group shall submit to the Sec- retary, the Committee on Veterans’ Affairs of the Senate, and the Committee on Veterans’ Affairs of the House of Representatives, and make publicly available, a report on— ‘‘(1) recommendations developed under subsection (d), if any; and ‘‘(2) recommendations for such legislative or administrative action as the Working Group considers necessary for the Working Group to be more effective in carrying out the require- ments of this section. |
Time period. Public information. Recommendations. |
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‘‘(f) RESPONSES BY SECRETARY.—In response to each report submitted under subsection (e), the Secretary shall, not later than 30 days after receiving the report, initiate a formal evaluation pursuant to section 1173 of this title. ‘‘§ 1173. Formal evaluation of recommendations |
Deadline. Evaluation. |
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‘‘(a) FORMAL EVALUATIONS.—The Secretary shall establish a process to conduct a formal evaluation with respect to each rec- ommendation made by the Working Group under section 1172 of this title. ‘‘(b) EVIDENCE, DATA, AND FACTORS.—The Secretary shall ensure that each formal evaluation under subsection (a) covers the following: ‘‘(1) Scientific evidence, based on the review of available scientific literature, including human, toxicological, animal, and methodological studies, and other factors. ‘‘(2) Claims data, based on the review of claim rate, grant rate, and service connection prevalence, and other factors. ‘‘(3) Other factors the Secretary determines appropriate, such as— ‘‘(A) the level of disability and mortality caused by the health effects related to the case of toxic exposure being evaluated; |
Reviews. Determinations. 38 USC 1173. |
136 STAT. 1770 PUBLIC LAW 117–168—AUG. 10, 2022
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‘‘(B) the quantity and quality of the information available and reviewed; ‘‘(C) the feasibility of and period for generating relevant information and evidence; ‘‘(D) whether such health effects are combat- or deployment-related; ‘‘(E) the ubiquity or rarity of the health effects; and ‘‘(F) any time frame during which a health effect must become manifest. ‘‘(c) CONDUCT OF EVALUATIONS.—(1) The Secretary shall ensure that each formal evaluation under subsection (a)— ‘‘(A) reviews scientific evidence in a manner that— ‘‘(i) conforms to principles of scientific and data integrity; ‘‘(ii) is free from suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results; and ‘‘(B)(i) evaluates the likelihood that a positive association exists between an illness and a toxic exposure while serving in the active military, naval, air, or space service; and |
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| Assessments. |
‘‘(ii) assesses the toxic exposures and illnesses and determines whether the evidence supports a finding of a positive association between the toxic exposure and the illness. |
| Data. |
‘‘(2) In carrying out paragraph (1)(B)(ii), a formal evaluation under subsection (a) shall include reviewing all relevant data to determine the strength of evidence for a positive association based on the following four categories: ‘‘(A) The ‘sufficient’ category, where the evidence is sufficient to conclude that a positive association exists. ‘‘(B) The ‘equipoise and above’ category, where the evidence is sufficient to conclude that a positive association is at least as likely as not, but not sufficient to conclude that a positive association exists. ‘‘(C) The ‘below equipoise’ category, where the evidence is not sufficient to conclude that a positive association is at least as likely as not, or is not sufficient to make a scientifically informed judgment. ‘‘(D) The ‘against’ category, where the evidence suggests the lack of a positive association. |
| Deadline. |
‘‘(d) RECOMMENDATION FOR ESTABLISHING A PRESUMPTION OF SERVICE CONNECTION.—Not later than 120 days after the date on which a formal evaluation is commenced, the element of the Department that conducts the evaluation shall submit to the Secretary a recommendation with respect to establishing a presumption of service connection for the toxic exposure and illness, or modifying an existing presumption of service connection, covered by the evaluation. |
| 38 USC 1174. |
‘‘§ 1174. Regulations regarding presumptions of service connection based on toxic exposure |
| Deadline. Determinations. |
‘‘(a) ACTION UPON RECOMMENDATION.—Not later than 160 days after the date on which the Secretary receives a recommendation to establish or modify a presumption of service connection under section 1173 of this title— ‘‘(1) if the Secretary determines, in the discretion of the Secretary, that the presumption, or modification, is warranted, the Secretary shall— |
