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http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secd.doc

Section D. Service Connection for Certain Disabilities Associated With Gulf War (GW) Service

Overview

In this Section This section contains the following topics:

Topic Topic Name See Page

13 General Information on Certain Disabilities Associated With GW Service 2-D-2

14 Rating Claims for Service Connection for Certain Disabilities Associated With GW Service 2-D-6

15 General Information About Rating Decisions Addressing Certain Disabilities Associated With GW Service 2-D-10

16 Granting Service Connection for Certain Disabilities Associated With GW Service 2-D-13

17 Denying Service Connection for Certain Disabilities Associated With GW Service 2-D-19

13. General Information on Certain Disabilities Associated With GW Service

Introduction This topic contains background information on certain disabilities associated with Gulf War (GW) service, including

• provisions of

 the GW Veterans’ Benefits Act

 the GW Veterans’ Act of 1998

 the Veterans Education and Benefits Expansion Act of 2001, and

 38 CFR 3.317

• definition of

 a GW veteran, and

 the Southwest Asia theater of operations

• presumptive period for service connection

• definition of a qualifying chronic disability

• qualifying disabilities, and

• provisions of the requirement for chronicity.

Change Date December 13, 2005

a. Provisions of the GW Veterans’ Benefits Act On November 2, 1994, Congress enacted the “Persian Gulf War Veterans’ Benefits Act,” Title I of the “Veterans’ Benefits Improvements Act of 1994,” Public Law (PL) 103-446.

The statute added a new section, 38 U.S.C. 1117, authorizing the Department of Veterans Affairs (VA) to compensate any Gulf War (GW) veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which manifested either

• during active duty in the Southwest Asia theater of operations during the GW, or

• to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the GW.

Continued on next page

13. General Information on Certain Disabilities Associated With GW Service, Continued

b. Provisions of the GW Veterans’ Act of 1998 The “Persian Gulf War Veterans’ Act of 1998,” PL 105-277, authorized VA to compensate GW veterans for diagnosed or undiagnosed disabilities that are determined by VA regulation to warrant a presumption of service connection based on a positive association with exposure to one of the following as a result of GW service:

• a toxic agent

• an environmental or wartime hazard, or

• a preventive medication or vaccine.

Note: This statute added 38 U.S.C. 1118.

c. Provisions of the Veterans Education and Benefits Expansion Act of 2001 The “Veterans Education and Benefits Expansion Act of 2001,” PL 107-103, expanded the definition of “qualifying chronic disability” under 38 U.S.C. 1117 to include, effective March 1, 2002, not only a disability resulting from an undiagnosed illness but also

• a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs and symptoms, and

• any diagnosed illness that is determined by VA regulation to warrant presumption of service connection.

d. Provisions of 38 CFR 3.317 38 CFR 3.317, which implements 38 U.S.C. 1117, defines GW service and “qualifying chronic disability,” and provides

• a broad, but non-exclusive, list of signs and symptoms which may be representative of undiagnosed or chronic, multi-symptom illnesses for which compensation may be paid, and

• the presumptive period for service connection.

e. Definition: GW Veteran A GW veteran, under 38 CFR 3.317, is a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the GW.

Per 38 U.S.C. 101(33), the GW extends from August 2, 1990, through a date yet to be determined by law or Presidential proclamation.

Continued on next page

13. General Information on Certain Disabilities Associated With GW Service, Continued

f. Definition: Southwest Asia Theater of Operations The Southwest Asia theater of operations includes the following locations and the airspace above them:

• Iraq

• Kuwait

• Saudi Arabia

• the neutral zone between Iraq and Saudi Arabia

• United Arab Emirates

• Bahrain

• Qatar

• Oman

• the Gulf of Aden

• the Gulf of Oman

• the Persian Gulf

• the Arabian Sea, and

• the Red Sea.

g. Presumptive Period for Service Connection 38 CFR 3.317 establishes the presumptive period as beginning on the date following last performance of active military, naval, or air service in the Southwest Asia theater of operations during the GW.

This period extends through December 31, 2006.

h. Definition: Qualifying Chronic Disability Qualifying chronic disability, under 38 CFR 3.317, means a chronic disability resulting from any of the following or any combination of the following:

• an undiagnosed illness

• a medically unexplained chronic multi-symptom illness, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, that is defined by a cluster of signs or symptoms, and/or

• any diagnosed illness that is determined by VA regulation to warrant a presumption of service connection.

Reference: For more information on the requirement that disabilities be chronic in nature, see M21-1MR, Part IV, Subpart ii, 2.D.13.j.

Continued on next page

13. General Information on Certain Disabilities Associated With GW Service, Continued

i. Qualifying Disabilities 38 CFR 3.317 specifies the following 13 categories of signs or symptoms that may represent a qualifying chronic disability:

• abnormal weight loss

• cardiovascular signs or symptoms

• fatigue

• gastrointestinal signs or symptoms

• headache

• joint pain

• menstrual disorders

• muscle pain

• neurologic signs or symptoms

• neuropsychological signs or symptoms

• signs or symptoms involving the skin

• signs or symptoms involving the upper and lower respiratory system, and

• sleep disturbances.

Notes:

• The list of 13 illness categories is not exclusive.

• Signs or symptoms not represented by one of the listed categories may also qualify for consideration under 38 CFR 3.317.

• A disability that is affirmatively shown to have resulted from a cause other than GW service may not be compensated under 38 CFR 3.317.

j. Determining Chronicity To qualify, the claimed disability must be chronic, that is, it must have persisted for a period of six months.

Measure the six-month period of chronicity from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

Note: If a disability is subject to intermittent episodes of improvement and worsening within a six-month period, consider the disability to be chronic.

14. Rating Claims for Service Connection for Certain Disabilities Associated With GW Service

Introduction This topic contains information about rating claims for service connection for certain disabilities associated with GW service, including information on

• rating a symptoms as a single or multiple issue

• information required to decide the issue of service connection for an undiagnosed illness

• the relevancy of

 medical evidence

 the veteran’s testimony, and

 lay evidence

• lay evidence consisting of non-medical indicators

• the veracity of lay evidence

• determining inclusion in the Veterans Heath Administration (VHA) Persian Gulf Health Registry, and

• considering the need for a future examination.

Change Date December 13, 2005

a. Rating Symptoms as a Single or Multiple Issue The decision to rate multiple symptoms or signs together as a single issue or separately as multiple issues depends on the outcome most favorable to the veteran.

Although rating multiple manifestations under a single body system will in most cases provide the maximum benefit, be alert to symptoms affecting fundamentally different body systems that may clearly warrant separate consideration.

Notes:

• If service connection for several symptoms or signs is denied for the same reason, consider such symptoms and signs as a single issue.

• Assign one hyphenated diagnostic code (DC) in the coded conclusion to each issue that is separately considered, whether service connection is awarded or denied.

Continued on next page

14. Rating Claims for Service Connection for Certain Disabilities Associated With GW Service, Continued

b. Information Required to Decide the Issue of Service Connection for an Undiagnosed Illness The following information is required in order to determine whether service connection for an undiagnosed illness is in order:

• when the illness arose

• whether the illness was severe enough to warrant the assignment of a compensable evaluation at any time during the presumptive period, unless manifested while in the Southwest Asia theater, and

• whether the illness chronically persisted for at least six months.

c. Relevancy of Medical Evidence When the object of service connection is identification of a diagnosed illness, medical evidence is of paramount importance because a physician specializes in identifying disabilities through diagnoses.

The concept of “objective indications” expressed in 38 CFR 3.317 makes clear that the evidence required for undiagnosed illnesses, or illnesses which are outside the scope of medical understanding, is not so dependent on formal medical evidence.

d. Relevancy of the Veteran’s Testimony When combined with an examining physician’s inability to make a diagnosis, the veteran’s testimony that he/she is experiencing the symptoms described may be sufficient to establish the existence of the illness.

e. Relevancy of Lay Evidence Lay statements from knowledgeable individuals may be accepted as evidence of objective indications of chronic disability. Lay evidence is credible if

• its source was in a position to know the alleged facts, and

• it is not contradicted by evidence of record that is more credible.

A lay person’s statement regarding the veteran’s complaints, when they began, how long they lasted, and the severity of the observed symptoms/illness, may be sufficient to satisfy the requirements for objective indications of chronic disability.

Continued on next page

14. Rating Claims for Service Connection for Certain Disabilities Associated With GW Service, Continued

f. Lay Evidence Consisting of Non-Medical Indicators Lay evidence may consist of non-medical indicators, such as

• time lost from work

• evidence that the veteran sought medical treatment for his/her symptoms, and

• relevant observations, such as changes in the veteran’s

 appearance

 physical abilities, and/or

 mental or emotional status.

g. Veracity of Lay Evidence Do not

• dismiss any evidence as self-serving, as it is reasonable to expect claimants to provide evidence they believe best supports their claim, and/or

• attempt to corroborate the evidence unless there is affirmative reason to doubt the credibility of the evidence.

Example: If lay evidence indicates the veteran lost a certain amount of time from employment, accept that statement without further development if the statement is otherwise credible.

h. Determining Inclusion in the VHA Persian Gulf Health Registry In all cases, ask the veteran if he/she was

• included in the Veterans Heath Administration (VHA) Persian Gulf Health Registry, and

• examined as part of the Registry, and, if so, where he/she was examined.

If he/she has been examined, secure examination results from the appropriate VA medical center (VAMC).

Continued on next page

14. Rating Claims for Service Connection for Certain Disabilities Associated With GW Service, Continued

i. Considering the Need for a Future Examination Because the course of an undiagnosed illness cannot be predicted, monitor it by establishing the necessary controls for a future examination within 24 months of the last examination of record.

At the expiration of the control period, review the evidence of record to determine whether reexamination is necessary.

15. General Information About Rating Decisions Addressing Certain Disabilities Associated With GW Service

Introduction This topic contains general information about rating decisions for certain disabilities associated with GW service, including information on

• properly stating the issue

• language for the Decision section of the rating decision

• referencing relevant dates in the rating decision

• termination or reduction of benefits, and

• results from VA-sponsored research projects.

Change Date December 13, 2005

a. Properly Stating the Issue State the issue in the rating decision as “Service connection for [specify signs or symptoms] as due to a qualifying chronic disability.”

b. Language for the Decision Section of the Rating Decision For every disability for which service connection was considered, state the following in the Decision section of the rating decision: “Service connection for [disability] is denied,” or “Service connection for [disability] is awarded with an evaluation of [percent] percent effective [date].”

Note: The earliest effective date for entitlement to service connection under the provisions of 38 CFR 3.317 is November 2, 1994.

c. Referencing the Relevant Dates in the Rating Decision In the Reasons for Decision section of the rating decision, explicitly refer to any date that is pertinent to the decision.

This particularly includes the

• dates during which the veteran served in the Southwest Asia theater of operations, and

• earliest date that a qualifying chronic disability may have become manifest.

Continued on next page

15. General Information About Rating Decisions Addressing Certain Disabilities Associated With GW Service, Continued

d. Termination or Reduction of Benefits Situations may arise that will require termination or reduction of payments previously awarded under 38 CFR 3.317.

Follow the normal procedures for reduction of benefits or severance of service connection outlined in M21-1MR, Part I, 2.

Notes:

• Termination or reduction of benefits paid under 38 CFR 3.317 does not preclude continuation of payments if entitlement is established under other regulations governing the establishment of service connection based on incurrence or aggravation during service, or on a presumptive basis.

• 38 CFR 3.500 was amended by the addition of 38 CFR 3.500(y), which specifically requires that severance of service connection or reduction of benefits under 38 CFR 3.105(d) or 38 CFR 3.105 (e) be effective the first of the month, 60 days after final notice of the adverse action has been issued to the veteran.

Example: A physician diagnoses a previously undiagnosed illness for which compensation was paid under 38 CFR 3.317.

Continued on next page

15. General Information About Rating Decisions Addressing Certain Disabilities Associated With GW Service, Continued

e. Results From VA-Sponsored Research Projects Effective December 27, 2001, if a GW veteran participates in a VA-sponsored medical research project, service connection established for a disability under 38 U.S.C. 1117 or 38 U.S.C. 1118 is protected, regardless of the project’s findings.

Exception: Service connection is not protected if the original award was based on fraud, or military records clearly show that the veteran did not have the requisite service or character of discharge.

Note: A list of VA-sponsored medical research projects for which service connection is protected is published in the Federal Register.

16. Granting Service Connection for Certain Disabilities Associated With GW Service

Introduction This topic contains information about granting service connection for certain disabilities associated with GW service, including information on

• establishing service connection for a qualifying chronic disability that manifested during the GW

• establishing service connection for a compensable qualifying chronic disability that arose during the presumptive period

• evaluating the level of impairment by analogy

• using hyphenated diagnostic codes (DCs)

• assigning appropriate DCs, and

• examples of analogous evaluations.

Change Date December 13, 2005

a. Establishing Service Connection for Qualifying Chronic Disability That Manifested During the GW Establish service connection if the qualifying chronic disability, per M21-1MR, Part IV, Subpart ii, 2.D.13.i, became manifest, whether to a compensable degree or not, while the claimant was on active service in the Southwest Asia theater of operations during the GW.

Include the following sentence in the Reasons for Decision: “Service connection is established for [disability] as due to an undiagnosed illness which began in the Southwest Asia theater of operations during the Gulf War.”

Continued on next page

16. Granting Service Connection for Certain Disabilities Associated With GW Service, Continued

b. Establishing Service Connection for a Compensable Qualifying Chronic Disability That Arose During the Presumptive Period Establish service connection if the qualifying chronic disability arose to a compensable degree after the veteran last served in the Southwest Asia theater of operations during the GW, regardless of the veteran’s active duty status at the time.

If service connection is established during the presumptive period, include the following statement in the Reasons for Decision: “Service connection may be presumed for disabilities resulting from undiagnosed illnesses or diagnosed illnesses which arose to a compensable degree after service in the Southwest Asia theater of operations during the Gulf War. Service connection for [disability] has been awarded on the basis of this presumption.”

c. Evaluating Level of Impairment by Analogy Evaluate the level of impairment of chronic undiagnosed disabilities by drawing an analogy to an existing DC in the rating schedule per 38 CFR 4.27.

Precede a discussion of the evaluation criteria in the Reasons for Decision section of the rating decision with the following statement: “Since the disability at issue does not have its own evaluation criteria assigned in VA regulations, a closely related disease or injury was used for this purpose.”

Continued on next page

16. Granting Service Connection for Certain Disabilities Associated With GW Service, Continued

d. Using Hyphenated DCs Use hyphenated DCs for all undiagnosed conditions.

The table below describes each of the codes that comprise a complete hyphenated DC

Reference: For more information on analogous DCs, see

• M21-1MR, Part IV, Subpart ii, 2.D.16.f, and

• M21-1MR, Part IV, Subpart ii, 2.D.16.g.

Code Description Example Reference

First DC Should always be one of the DCs established for GW undiagnosed illness 8863, for diseases analogous to systemic diseases For more information on DCs, see

• M21-1MR, Part IV, Subpart ii, 2.D.16.e, and

• M21-1MR, Part IV, Subpart ii, 2.D.16.f.

Second DC Use the DC that most closely fits the evaluating criteria 6354, for systemic disease For more information on analogous codes, see M21-1MR, Part IV, Subpart ii, 2.D.16.g.

e. Creating Appropriate DCs In order to properly identify and track disabilities for which service connection is granted or denied based on the Persian Gulf War Veterans’ Act, a DC series beginning with “88” has been established.

The 88 code is the first element of an analogous code. The second two digits of the 88 code are assigned according to the body system of the analogous code that it precedes.

References: For more information on

• DCs, see M21-1MR, Part IV, Subpart ii, 2.D.16.f, and

• analogous codes, see M21-1MR, Part IV, Subpart ii, 2.D.16.g.

Continued on next page

16. Granting Service Connection for Certain Disabilities Associated With GW Service, Continued

f. List of Appropriate DCs for GW-Related Disabilities The table below lists the first element in a hyphenated analogous code and the type of undiagnosed condition to which each code refers.

If the condition is analogous to … And the analogous code begins with … Then the first DC is …

musculoskeletal diseases 50 8850

amputations 51 8851

joints, skull, and ribs 52 8852

muscle injuries 53 8853

diseases of the eye 60 8860

hearing loss 61 8861

ear and other sense organs 62 8862

systemic diseases 63 8863

nose and throat 65 8865

trachea and bronchi 66 8866

tuberculosis 67 8867

lungs and pleura 68 8868

heart diseases 70 8870

arteries and veins 71 8871

upper digestive system 72 8872

lower digestive system 73 8873

genitourinary system 75 8875

gynecological system 76 8876

hemic and lymphatic system 77 8877

skin 78 8878

endocrine system 79 8879

central nervous system 80 8880

miscellaneous neurological 81 8881

cranial nerve paralysis 82 8882

cranial nerve neuritis 83 8883

cranial nerve neuralgia 84 8884

peripheral nerve paralysis 85 8885

peripheral nerve neuritis 86 8886

peripheral nerve neuralgia 87 8887

Continued on next page

16. Granting Service Connection for Certain Disabilities Associated With GW Service, Continued

f. List of Appropriate DCs for GW-Related Disabilities (continued)

If the condition is analogous to … And the analogous code begins with … Then the first DC is …

epilepsies 89 8889

psychotic disorders 92 8892

organic mental 93 8893

psychoneurotic 94 8894

psychophysiologic 95 8895

dental and oral 99 8899

g. Examples of Analogous Codes The table below contains examples of analogous codes that may be used when evaluating undiagnosed illnesses manifest by the 13 signs or symptoms found in 38 CFR 3.317. The second code should be a DC with rating criteria by which manifestations of the illness can most accurately be evaluated.

Note: This list does not contain all possible analogous codes.

Reference: For more information on the 13 signs or symptoms of an undiagnosed illness, see 38 CFR 3.317.

If the symptom is … Then the hyphenated DC is …

abnormal weight loss 8873-7328, (resection of intestine).

cardiovascular signs or symptoms 8870-7013, (tachycardia).

cardiovascular signs or symptoms 8870-7005, (arteriosclerotic heart disease (ASHD)).

fatigue 8863-6354, (chronic fatigue syndrome).

fatigue 8877-7700, (anemia).

gastrointestinal signs or symptoms • 8873-7305, (ulcer), or

• 8873-7319, (irritable bowel syndrome).

headache 8881-8100, (migraine headaches).

joint pain 8850-5002, (rheumatoid arthritis).

menstrual disorders 8876-7622, (uterus displacement).

muscle pain 8850-5021, (myositis).

neurologic signs or symptoms 8885-85__, (peripheral neuropathy).

Continued on next page

16. Granting Service Connection for Certain Disabilities Associated With GW Service, Continued

g. Examples of Analogous Codes (continued)

If the symptom is … Then the hyphenated DC is …

neuropsychological signs or symptoms 8893-9300, (organic mental disorder).

signs or symptoms involving the respiratory system (upper or lower) • 8865-65__, (respiratory system)

• 8866-66__, (respiratory system), or

• 8868-68__, (respiratory system).

signs or symptoms involving the skin 8878-7806, (eczema).

sleep disturbances 8894-9400, (generalized anxiety).

17. Denying Service Connection for Certain Disabilities Associated With GW Service

Introduction This topic contains information on denying service connection for certain disabilities associated with GW service, including information on

• discussing the denial in the rating decision

• addressing

 diagnosed illnesses

 an illness that is not chronic

 an illness attributable to some other etiology

 a condition that is not shown by the evidence of record, and

 a qualifying chronic disability that is less than 10-percent disabling.

Change Date December 13, 2005

a. Discussing the Denial in the Rating Decision Begin a discussion of the denial of service connection in the Reasons for Decision section of the rating decision with a description of the general requirements for service connection under 38 CFR 3.317, including the following statement:

“Service connection may be established for disability resulting from undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of symptoms, or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which manifested itself either during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of ten percent or more after the date on which the veteran last performed service in the Southwest Asia theater of operations during the Gulf War.”

Continued on next page

17. Denying Service Connection for Certain Disabilities Associated With GW Service, Continued

b. Addressing Diagnosed Illnesses Service connection may not be granted under 38 CFR 3.317 for an illness having a known clinical diagnosis unless it meets the criteria for a qualifying chronic disability shown in M21-1MR, Part IV, Subpart ii, 2.D.13.h. However, service connection under other provisions of the law must be considered.

If service connection for a claimed undiagnosed illness is denied on this basis, include the following language in the Reasons for Decision section of the rating decision: “Service connection for [claimed disability] is denied because this disability is determined to result from a known clinical diagnosis of [diagnosed disability], which neither occurred in, nor was caused or aggravated by, service.”

c. Addressing an Illness That Is Not Chronic The fact that a claimed disability is not found on the veteran’s last VA examination does not necessarily preclude his/her entitlement to compensation under 38 CFR 3.317.

The requirement for chronicity is fulfilled if the disability has persisted for at least six months. Disabilities subject to episodic improvement and worsening within a six-month period are considered chronic.

If the disability does not meet the six-month requirement, include the following statement under the Reasons for Decision section of the rating decision: “The disability must have persisted for a period of at least six months. Service connection for [disability] is denied since this disability was first manifested on [date] and lasted less than six months.”

Continued on next page

17. Denying Service Connection for Certain Disabilities Associated With GW Service, Continued

d. Addressing an Illness That Is Attributable to Some Other Etiology Service connection under 38 CFR 3.317 may not be established if there is affirmative evidence that an undiagnosed illness was not incurred during active service or was caused by some intercurrent circumstance.

Important: Affirmative evidence that the illness is caused by willful misconduct or alcohol or drug abuse will also preclude entitlement.

Include the following statement under the Reasons for Decision section of the rating decision if service connection is denied on this basis: “Service connection under this provision is precluded if there is affirmative evidence that the disability was unrelated to service in the Gulf War. Service connection for [disability] is denied because evidence established that this disability resulted from [unrelated event, accident, injury, etc.].”

e. Addressing a Condition That Is Not Shown to Exist by the Evidence of Record If the evidence of record fails to show that a condition exists or has existed in the past, include the following statement in the Reasons for Decision section of the rating decision: “There is no evidence that the condition ever existed.”

f. Addressing a Qualifying Chronic Disability That Is Less Than 10-Percent Disabling If the veteran fails to qualify for service connection because the severity of the qualifying chronic disability is noncompensable, include the following statement in the Reasons for Decision section of the rating decision: “Service connection for [disability] is denied since this disability neither arose during service in the Southwest Asia theater of operations, nor was it manifested to a compensable degree after the last date of service in the Persian Gulf theater during the Gulf War.”

Reference: For more information on qualifications for service connection, see M21-1MR, Part IV, Subpart ii, 2.D.13.a.

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Good find. Looks like this lays it all out there. Now to pick it apart.

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Good find. Looks like this lays it all out there. Now to pick it apart.

it's a start for anyone to begin research on. Trying to establish sercive connection is something else though. It seems most illnessess occur after service and most often nothing is in MSR's. Don't know if Buddy letters would help or not. Probably, but I don't have any experience with them. And have'nt kept up with old unit members. There are sites to find them though.

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    • I have a 30% hearing loss and 10% Tinnitus rating since 5/17.  I have Meniere's Syndrome which was diagnosed by a VA facility in 2010 yet I never thought to include this in my quest for a rating.  Meniere's is very debilitating for me, but I have not made any noise about it because I could lose my license to drive.  I am thinking of applying for additional compensation as I am unable to work at any meaningful employment as I cannot communicate effectively because of my hearing and comprehension difficulties.  I don't know whether to file for a TDUI, or just ask for additional compensation.  My county Veterans service contact who helped me get my current rating has been totally useless on this when I asked her for help.  Does anyone know which forms I should use?  There are so many different directions to proceed on this that I am confused.  Any help would be appreciated.  Vietnam Vet 64-67. 
    • e-Benefits Status Messages
      e-Benefits Status Messages 

      Claims Process – Your claim can go from any step to back a step depending on the specifics of the claim, so you may go from Pending Decision Approval back to Review of Evidence. Ebenefits status is helpful but not definitive. Continue Reading
      • 0 replies
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