The Two-Regulation Test Every Herbicide Claim Must Clear
Agent Orange presumptive service connection requires satisfying two separate regulations before a claim can proceed on the presumptive pathway. 38 CFR § 3.307(a)(6)[1] establishes qualifying locations and time periods for herbicide exposure. 38 CFR § 3.309(e)[2] lists the specific diseases that receive service connection once qualifying exposure is established. Both must be satisfied before the presumption attaches.
The practical sequence matters for C-file review. If the service record does not place the veteran at a qualifying location during a qualifying period under § 3.307(a)(6), the § 3.309(e) disease list is irrelevant. If the diagnosis is not on the § 3.309(e) list, the exposure location does not help. Staff review should confirm both before the case reaches attorney review.
PACT Act Additions: New Locations and New Conditions
The PACT Act, signed August 2022, added five new presumptive locations and two new presumptive conditions to the regulatory framework. PACT Act – VA.gov[3]
The five new locations are:
- Any U.S. or Royal Thai military base in Thailand (January 9, 1962 – June 30, 1976)
- Laos (December 1, 1965 – September 30, 1969)
- Cambodia at Mimot or Krek, Kampong Cham Province (April 16–30, 1969)
- Guam or American Samoa or their territorial waters (January 9, 1962 – July 31, 1980)
- Johnston Atoll or a ship that called at Johnston Atoll (January 1, 1972 – September 30, 1977)
The two new conditions added to § 3.309(e) are hypertension and monoclonal gammopathy of undetermined significance (MGUS). 38 CFR § 3.309(e)[2] Cases that were denied before August 2022 because hypertension or MGUS was not a covered condition should be reviewed for Supplemental Claim potential if the exposure location qualifies under current authority.
The Thailand expansion deserves attention in case review. Pre-PACT Act, Thailand coverage required evidence of perimeter security duty at specific bases. The PACT Act eliminated that narrow standard. Any U.S. or Royal Thai military base in Thailand during the covered period now qualifies. VA Public Health – Agent Orange Locations[4] The specific base no longer needs to appear on a VA-approved list. Staff can flag Thailand service within the date range and pass it to attorney review without needing to match the veteran's base to a prior approved list.
Blue Water Navy: Verifying Ship-List Coverage from the C-File
Blue Water Navy veterans who served within 12 nautical miles of the Republic of Vietnam's shore qualify for Agent Orange presumptive benefits under Public Law 116-23. VA.gov – Agent Orange Eligibility[5] VA maintains an official Navy and Coast Guard ship list that identifies qualifying vessels.
The ship list is the primary verification tool. If the veteran's vessel appears on the list, service within the 12-nautical-mile zone is presumed. The C-file or service record should show the ship name, hull designation, and dates of service. The DD-214 sometimes lists ship assignment directly. If it does not, unit records or official orders are the fallback.
| Source Document | What to Extract | If Missing |
|---|---|---|
| DD-214 | Ship name or hull number, dates aboard | Request official personnel records or unit records |
| Ship's deck logs | Dates and coordinates of operations | Available through the National Archives; flag for attorney |
| Unit orders | Assignment to vessel, dates, location | NPRC request; flag as evidence gap |
If the ship does not appear on the VA list, the claim does not automatically fail. It may require an alternative exposure theory or a direct service connection argument. That decision belongs to the attorney, not to staff conducting the initial record review.
C-123 Aircraft and Herbicide Test or Storage Sites
C-123 aircraft exposure requires specific documentary support beyond general Air Force service. The claim must show the veteran had regular and repeated contact with aircraft that carried confirmed herbicide residue. 38 CFR § 3.307(a)(6)[1] VA directs practitioners to the Air Force specialty code list as the primary tool for confirming whether the veteran's specialty involved covered aircraft. VA.gov – Agent Orange Eligibility[5]
Staff review for a C-123 theory should extract the Air Force specialty code from the service record and cross-reference it against the VA specialty code list. The aircraft tail number, if documented, can be checked against the list of aircraft confirmed to have herbicide residue. If the specialty code is in the record but the aircraft assignment is not, that is an evidence gap to flag before attorney review.
For herbicide test and storage sites outside Vietnam, VA also maintains a DoD-sourced list of locations. VA.gov – Agent Orange Eligibility[5] If the C-file shows service at a location appearing on that list during a covered period, staff can flag it. The decision on whether to pursue that theory and how to frame it rests with the attorney.
The February 2024 Proposed Rule: Domestic and International Test Sites
In February 2024, VA published a proposed rule that would amend 38 CFR § 3.307(a)(6) by adding a new paragraph (xi) to presume exposure for veterans who served at locations where herbicides were tested, used, or stored outside Vietnam, based on DoD records. Federal Register – Proposed Rule, February 12, 2024[6] The proposed expansion would cover sites in the United States, Canada, and India, in addition to the locations already covered under current regulations. VA News Release – February 2024 Proposed Rule[7]
This rule was proposed, not final, as of the date of this guide. Firms should verify finalization before citing it as controlling authority. A claim built entirely on a domestic test site theory faces a gap in legal authority until the final rule publishes.
The practical case-work implication: if a C-file shows stateside service that could place the veteran at a known test or storage site, flag it as a potential future claim theory. Attach the service location facts to the case record now. If the rule finalizes, the exposure theory is ready to develop without reconstructing the service history.
C-File Location Cross-Check: What Staff Can Extract Before Attorney Review
The purpose of a location cross-check is to determine whether the service record, read against VA's current location index, establishes a facially qualifying exposure location before the case reaches the attorney. Staff can complete this work. They cannot select the exposure theory, decide whether a gap is fatal, or advise the veteran on claim strategy.
| Source Document | Extract | Cross-Check Against | Flag If |
|---|---|---|---|
| DD-214 | Country/area of service, dates, unit, ship | § 3.307(a)(6) location and time-period index | Dates are close to but outside the covered window |
| Unit records or orders | Assignment location, deployment dates | VA location index, DoD unit determinations for Korea | Unit appears in Korea records but DMZ assignment is unclear |
| Air Force specialty code | MOS or AFSC | VA C-123 specialty code list | Specialty code is not on the list but aircraft work is described |
| Ship assignment records | Vessel name, hull number, dates | VA Navy/Coast Guard ship list | Ship is not on the list |
| C-file rating history | Prior exposure determinations, denials | Current location list including PACT Act additions | Denial predates PACT Act location expansion |
When prior denials exist, staff should note whether the denial was issued before August 2022. If the claimed location is now covered under the PACT Act and the diagnosis is on the § 3.309(e) list, the case may support a Supplemental Claim based on new and relevant evidence or a change in law. That determination is for the attorney.
Evidence Gaps That Require Attorney Decision Before Filing
Some gap patterns cannot be resolved through record review alone. These require an attorney or accredited representative to decide before the firm files.
Conflicting or ambiguous service dates. When the DD-214 shows service in a covered country but the dates straddle the covered period boundary, the attorney has to decide whether the record is strong enough to proceed or whether additional evidence is needed first.
Unlisted or unconfirmed units in Korea. The Korean DMZ presumption turns on a DoD determination of which units served near the DMZ during the covered period. If the unit cannot be confirmed against the DoD determination from the service record, the attorney has to assess whether to pursue the presumptive theory or develop a direct exposure argument.
No ship on the VA list. Blue Water Navy service on a vessel not appearing on the VA ship list does not establish the 12-nautical-mile presumption. The attorney decides whether to request deck logs, develop a direct service connection theory, or both.
Claims that straddle pre- and post-PACT Act coverage periods. A veteran with Thailand service that falls partly before and partly within the PACT Act's January 9, 1962 to June 30, 1976 window may have a clean claim under current law, but the record needs to confirm the exact dates. If the dates are uncertain, the attorney decides how to present the exposure theory.
Potential alternative exposure theories. If the service record shows no qualifying presumptive location but includes evidence of occupational herbicide contact, direct service connection may still be available. Selecting that theory, developing the rationale, and deciding how to frame the claim is attorney work.
Staff should document each of these patterns as a flagged evidence gap in the case file. The gap note should state what is missing, which regulation is affected, and what source document would resolve it. That structure keeps attorney review focused on judgment calls rather than paperwork reconstruction.
Related guides
Common questions
Which locations qualify for Agent Orange presumptive service connection under current VA regulations?
Vietnam (January 9, 1962 – May 7, 1975), Korean DMZ (September 1, 1967 – August 31, 1971), C-123 aircraft with confirmed herbicide residue, Thailand bases (January 9, 1962 – June 30, 1976 per PACT Act), Laos, Cambodia at Mimot or Krek, Guam or American Samoa, and Johnston Atoll are all covered locations under current authority.
Does Blue Water Navy service qualify for Agent Orange presumptive benefits?
Yes. Public Law 116-23 extended presumptive eligibility to Navy and Coast Guard veterans who served within 12 nautical miles of Vietnam's shore. VA maintains an official ship list that firms can use to verify a vessel's qualifying status.
What did the PACT Act change about Agent Orange presumptive locations?
The PACT Act added Thailand, Laos, Cambodia (Mimot or Krek), Guam, American Samoa, and Johnston Atoll as presumptive locations. It also added hypertension and MGUS as qualifying presumptive conditions under 38 CFR § 3.309(e).
Is Thailand base service automatically covered, or does the unit or base matter?
Under the PACT Act, any U.S. or Royal Thai military base in Thailand between January 9, 1962 and June 30, 1976 qualifies. The specific base does not need to be proven to be on a VA-approved list, unlike the pre-PACT perimeter-service standard.
What is the status of the 2024 proposed rule expanding Agent Orange presumptive locations to U.S. domestic sites?
As of February 2024, VA proposed adding test and storage sites in 12 U.S. states, Canada, and India as presumptive locations. The rule had not been finalized as of the date of this guide. Firms should confirm finalization before relying on it as controlling authority.
Organize your Agent Orange case record in Pete
Attach the DD-214, unit records, ship manifest, or C-file to the case. Pete structures the location and time-period facts so attorney review starts with the exposure theory, not the paperwork.