DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

November 19, 2009

Director (00/21) In Reply Refer to: 211A
All VA Regional Offices and Centers Fast Letter 09-50

SUBJ: Procedures for handling disability claims based on herbicide exposure for hairy
cell and other B-cell leukemias, Parkinson’s disease, and ischemic heart disease.

Purpose:

On October 13, 2009, Secretary Shinseki announced that hairy cell and other B-cell
leukemias, Parkinson’s disease, and ischemic heart disease will be added to the list of
diseases presumptively associated with exposure to certain herbicide agents. Although
the public announcement has been made, the amendment to 38 CFR 3.309(e) will not
become effective for several months. In the meantime, it is likely that regional offices
will begin receiving herbicide exposure related claims from veterans diagnosed with
these diseases. This letter provides interim procedures for controlling such claims.

Background:

The Agent Orange Act of 1991 established a procedure for adding diseases to the list of
disabilities presumptively associated with herbicide exposure. The procedure requires
the Secretary of the Department of Veterans Affairs to consider reports received from the
National Academy of Sciences’ Institute of Medicine (IOM) and all other sound medical
and scientific information and analysis on the health effects of herbicide exposure before
making a decision on presumptive service connection. In its latest report, Veterans and
Agent Orange, Update 2008 (2009), IOM reviewed new studies and determined that there
is “limited or suggestive” evidence of an association between herbicide exposure and the
subsequent development of Parkinson’s disease and ischemic heart disease. The IOM
also determined that hairy cell leukemia and all chronic B-cell leukemias belong in the
category of “sufficient evidence of an association.” This assessment by IOM contributed
to the Secretary’s decision to add these diseases to the presumptive list and publish the
required notice in the Federal Register.

Regional Office Actions:

We anticipate that the Secretary’s public announcement adding these diseases to the list
of presumptive conditions associated with herbicide exposure will generate a large
number of new claims. However, the regulation change adding them to the list at 38 CFR
3.309(e) will not become effective until the required rulemaking procedures are
completed. Rating evaluations of these claims under the new regulation cannot take
place until that time. Therefore, regional offices must hold (or stay) these claims and
refrain from issuing rating decisions on them until the implementing regulation becomes
final. In addition, claims based on any of these diseases should be controlled by
establishing an end product (EP) 681 future claim diary with a suspense date of May 1,
2010.

The following procedures are required when an original or new claim for one of the
newly added presumptive diseases is received or a claim to reopen is received where one
of the added presumptive diseases was previously denied. These procedures also apply in
cases where a veteran claims service connection for one of the added presumptive
diseases along with one or more claims for disabilities other than the added presumptives.
These procedures are intended to avoid delays in adjudication of the other claims and the
unnecessary expenditure of resources in handling claims that may ultimately be
overturned on appeal. Please keep in mind that service connection for any of these added
presumptive diseases should first be considered on a direct basis. If direct service
connection can be established, the presumptive procedures need not be followed.

Cases where only new presumptives are claimed:

If a claim is received for any of the newly added presumptive diseases and no other issues
are claimed, control the claim exclusively under the future EP 681. This includes the
following categories of claims:

· Original compensation claims
· Original dependency and indemnity compensation (DIC) claims in which the
claimant is basing the DIC claim exclusively on one of the added presumptives
· New compensation claims for one of the added presumptives when the veteran
has already filed an original claim for another disability and a substantially
completed application (VA Form 21-526) is of record
· Reopened compensation claims in which the condition was previously denied and
there is no basis to establish entitlement except under the new regulation
· Reopened DIC claims in which the claim was previously denied and there is no
basis to establish entitlement except under the new regulation

Send the veteran or surviving spouse a standard VCAA notification letter that includes
the holding or stay language described below. Begin development for service treatment
and personnel records or private medical records that may be necessary to establish the
claim as ready-to-rate. Extensive development may not be required in reopened claims
where sufficient evidence to rate the claim is already of record. Do not request VA
medical examinations unless herbicide exposure has been verified. Following any
necessary development, the claims should be held until the regulation adding the new
presumptive diseases is finalized. At that time, a rating decision can be produced and
notice of the decision provided to the claimant. If entitlement to benefits can be
established on a direct basis, a rating decision should be released without delay.

Cases where new presumptives and other issues are claimed:

If a claim is received for any of the newly added presumptive diseases along with other
unrelated claims, establish future EP 681 for the added presumptive(s) and the
appropriate EP (110, 010, 020, 140 etc.) for the other claimed condition(s). Develop for
evidence supporting the newly added presumptive disease claim in the same manner as
described above and add the special holding or stay language to the VCAA notification
letter. The development and rating methods for the other claimed issues can generally
proceed in the normal manner. However, when the rating decision for the other issues is
released, it should contain a deferred issue for the newly added presumptive disease. The
narrative should state that entitlement to benefits on a direct basis was considered but
cannot be granted and that entitlement on a presumptive basis will be considered when
the new additions to 38 CFR §3.309(e) have been finalized. Continue to control the
newly added presumptive disease claims under the future EP 681.

VCAA notice language:

The VCAA notification letter will require modification to inform claimants that a hold
will be placed on releasing a rating decision for the new presumptives pending
finalization of the regulation governing presumptive diseases associated with herbicide
exposure. The following language may be used.
“We have received your compensation claim for (insert the newly added presumptive
disease) based on herbicide exposure. However, this disease has not yet been added to
the Department of Veterans Affairs regulations governing diseases presumptively
associated with herbicide exposure. In order to add this disease, we must follow a series
of legal requirements, including publishing a notice in the Federal Register. We have
begun this process, but are holding your claim until these legal requirements have been
met. When the process is complete, we will make a determination on your claim and
provide you with a notice of our decision.”

Further Guidance:

This fast letter provides the basic procedures for handling claims based on the newly
added presumptive diseases associated with herbicide exposure. Compensation and
Pension Service is working with the Office of Field Operations to develop additional
procedures that may be warranted. Further guidance will be provided to regional office
personnel as necessary.

Questions:

Questions concerning the final rulemaking or this letter should be e-mailed to:

VAVBAWAS/CO/211/AGENTORANGE
/S/
Bradley G. Mayes
Director
Compensation and Pension Service