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(1) Spina Bifida: Claims For Benefits For A Child Suffering From Spina Bifida


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M21-1-3 Claims Development

5.10 CLAIMS BASED ON EXPOSURE TO HERBICIDES CONTAINING DIOXIN (2, 3, 7, 8 TETRACHLORODIBENZO-P-DIOXIN) DURING SERVICE IN THE REPUBLIC OF VIETNAM

a. General. When initially corresponding with a veteran claiming disability resulting from exposure to herbicides while in the Republic of Vietnam, inform him or her of the availability of hospital examination and treatment. Inform the veteran that if he or she has already had the herbicide examination or been treated for herbicide exposure, he or she should submit a copy of the examination or treatment report or submit the name of the VA facility performing the examination or treatment so that the regional office may obtain a copy of the examination report.

b. No Specific Disability Claimed. If the veteran alleges herbicide exposure but claims no

disability, inform the veteran that mere exposure is not a disability. Tell the veteran to specify the disabilities resulting from herbicide exposure and to submit medical evidence of the earliest manifestations of symptoms together with evidence of continuity of treatment. Process as a denial without a rating decision and take the end product at that point.

c. Presumption of Service Connection. The Agent Orange Act of 1991 (Public Law 102-4) establishes a presumption of service connection for veterans with service in Vietnam during the Vietnam era who subsequently develop, to a degree of 10% or more, Hodgkin’s disease, multiple myeloma, non-Hodgkin's lymphoma (NHL), acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancers of the lung, bronchus, larynx or trachea), soft-tissue sarcoma or chloracne or other acneiform disease consistent with chloracne, and diabetes mellitus (type 2). Public Law 104-275 provided that effective January 1, 1997, the applicable service dates for purposes of the presumption of exposure to herbicides are from January 9, 1962, to May 7, 1975. Qualifying skin conditions must have become manifest to a degree of 10% or more within 1 year of the last date of service within the Republic of Vietnam. Even a few hours in Vietnam during the Vietnam era may be sufficient to service connect subsequently developed presumptive conditions based on exposure to herbicides.

Note: Under 38 CFR 3.313, service in Vietnam together with the development of NHL after service is sufficient to establish service connection for that disease. It does not have to be at least 10% disabling. The term "service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. There is no requirement for a specified length of service, duty or visitation in Vietnam under 38 CFR 3.313.

(1) Development. If the claimant alleges Vietnam service, review the DD Form 214 or other evidence in file to confirm such service. If necessary, develop with the service department and ask the claimant to submit evidence to show Vietnam service or to obtain confirming buddy statements. The claim cannot be denied based on a lack of verification of Vietnam service until the claimant has had 60 days to respond to the request and the 30-day follow-up period exhausted. Additionally, if Federal records were requested, continue to follow-up until the requested records are received or a formal response is received that the records are unavailable.

d. Birth Defects.

(1) Spina Bifida: Claims for benefits for a child suffering from spina bifida and other birth defects are discussed in M21-1MR, Part VI, Chapter 18.

(2) Claims for additional benefits by women Vietnam veterans due to certain birth defects of a natural child have been authorized under PL 106-419. Please refer to FL 00-90 for processing claims of this type.

(3) The law limits the birth defects for which we may pay benefits. Claims for benefits from birth defects resulting from a familial disorder, a birth-related injury, or a fetal or neonatal infirmity with well-established causes, should be denied as not authorized by law.

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