§1174 — Title 38 Veterans' Benefits | U.S. Code

Summary

Within 160 days after the Secretary gets a recommendation under section 1173, the Secretary must decide whether to create or change a presumption that a health problem is related to service. If the Secretary decides it is warranted, the Secretary must start writing rules under the Administrative Procedure Act and include any time window for when the health problem must appear. If the Secretary decides it is not warranted, the Secretary must publish a notice in the Federal Register explaining the reasons. The Secretary may also make rules to remove an illness from an existing presumption, including presumptions made under title IV of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, but cannot remove a presumptive link just because there is no evidence. If a presumption is removed or the covered times/places of exposure are changed, veterans already receiving disability pay (chapter 11) and survivors already receiving dependency and indemnity compensation (chapter 13) keep their payments, and those payments cannot be cut just because of the change.

Title 38, §1174

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(a)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—

(A)commence issuing regulations in accordance with the provisions of subchapter II of chapter 5 of title 5 (commonly referred to as the Administrative Procedures Act) setting forth the presumption or commence revising regulations to carry out such modification; and

(B)include in such regulations any time frame during which a health effect must become manifest; or

(2)if the Secretary determines, in the discretion of the Secretary, that the presumption, or modification, is not warranted, the Secretary shall publish in the Federal Register a notice of the determination, including the reasons supporting the determination.

(b)(1)(A)The Secretary may—

(i)issue a regulation to remove an illness from a presumption of service connection previously established pursuant to a regulation issued under subsection (a); and

(ii)issue a regulation to remove a presumption of service connection established pursuant to title IV of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 if the Secretary concludes that evidence suggests the lack of a positive association between the disease and the toxic exposure.

(B)Under subparagraph (A)(ii), the Secretary shall not consider the lack of evidence as sufficient to support a decision for removal of a presumption.

(2)Whenever an illness is removed from regulations pursuant to paragraph (1), or the periods and locations of exposure covered by a presumption of service connection are modified under subsection (a)—

(A)a veteran who was awarded compensation under chapter 11 of this title for such illness on the basis of the presumption provided under such regulations before the effective date of the removal or modification shall continue to be entitled to receive compensation on that basis;

(B)a survivor of a veteran who was awarded dependency and indemnity compensation under chapter 13 of this title for the death of a veteran resulting from such illness on the basis of such presumption shall continue to be entitled to receive dependency and indemnity compensation on such basis; and

(C)no veteran or survivor covered under subparagraph (A) or (B) shall have their compensation reduced solely because of the removal of an illness pursuant to paragraph (1).

Notes & Related Subsidiaries

Editorial Notes

References in Text

Title IV of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, referred to in subsec. (b)(1)(A)(ii), is title IV of Pub. L. 117–168, Aug. 10, 2022, 136 Stat. 1780, which enacted section 1120 of this title, amended section 1112, 1113, 1116, 1117, and 1710 of this title, and enacted provisions set out as notes under section 101, 1116, and 1120 of this title. For complete classification of title IV to the Code, see Tables.

§1174 Regulations Regarding Presumptions of Service Connection Based on Toxic Exposure

Summary

Title 38, §1174

Notes & Related Subsidiaries

Editorial Notes

References in Text

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