Jump to content
  • Searches Community Forums, Blog and more

  • 0

Presumption Of Service Connection Als


[Federal Register: November 4, 2009 (Volume 74, Number 212)]

[Rules and Regulations]

[Page 57072-57074]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





38 CFR Part 3

RIN 2900-AN05

Presumption of Service Connection for Amyotrophic Lateral


AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This document adopts as a final rule the interim final rule

amending the Department of Veterans Affairs (VA) adjudication

regulations to establish a presumption of service connection for

amyotrophic lateral sclerosis (ALS) for any veteran who develops the

disease at any time after separation from service. This amendment

implements the decision by the Secretary of Veterans Affairs to

establish such a presumption based on a November 2006 report by the

National Academy of Sciences Institute of Medicine on the association

between active service and ALS.

DATES: Effective Date: November 4, 2009.

Applicability Date: This final rule shall apply to all applications

for benefits that are received by VA on or after September 23, 2008,

the effective date of the interim final rule, and to all applications

for benefits that were pending before VA, the United States Court of

Appeals for Veterans Claims, or the United States Court of Appeals for

the Federal Circuit on that date.

FOR FURTHER INFORMATION CONTACT: Thomas J. Kniffen, Chief, Regulations

Staff (211D), Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 461-9366.

SUPPLEMENTARY INFORMATION: On September 23, 2008, VA published in the

Federal Register (73 FR 54691) an interim final rule that established

at new Sec. 3.318 a presumption of service connection for ALS for any

veteran who develops the disease at any time after separation from


We provided a 60-day comment period that ended on November 24,

[[Page 57073]]

2008. We received comments from 12 members of the general public and 1

each from the ALS Association and the American Speech-Language-Hearing

Association (ASHA). Most of the comments from the general public came

from family members of veterans affected by this disease, expressing

gratitude and the belief that this decision was long overdue. Based on

the rationale set forth in the interim final rule and this final rule,

we adopt the provisions of the interim final rule as a final rule

without change.

Administrative Procedure Act

This document affirms the amendment made by the interim final rule

that is already in effect. The Secretary of Veterans Affairs concluded

that, under 5 U.S.C. 553(b)(3)(B) and (d)(3), there was good cause to

dispense with advance public notice and opportunity to comment on this

rule and good cause to publish the interim final rule with an immediate

effective date. The interim final rule was necessary to implement

immediately the Secretary's decision to establish a presumption of

service connection for ALS for veterans with that diagnosis. Delay in

the implementation of this presumption would have been contrary to the

public interest.

Because the survival period for persons suffering from ALS is

generally 5 years or less from the onset of symptoms, any delay would

have been extremely detrimental to veterans who are currently afflicted

with ALS. Veterans with ALS may not be taking alleviating medications,

participating in muscle and speech therapy, or receiving proper

assistance for daily functions due to financial hardship or their lack

of having service-connected status for their disability. Moreover, in

all likelihood, some veterans would have died from this rapidly

progressive disease during a period for prior public comment. These

veterans obviously would not have received any benefit from a

presumption that is implemented after a public-comment period.

In order to benefit veterans currently suffering from ALS as

quickly as possible, it was critical that VA established this

presumption immediately.

Conditions for Presumptive Service Connection

The ALS Association expressed support for this regulation and

stated its belief that 90 continuous days of service in the military

and a diagnosis of ALS are sufficient to establish presumptive service

connection for that disease. New Sec. 3.318 generally establishes

presumptive service connection for ALS if a veteran had at least 90

continuous days of active military, naval, or air service and developed

ALS at any time after separation from such service. We made no changes

based on this comment.

Exceptions to the Presumption of Service Connection

The ALS Association was concerned that the presumption of service

connection for ALS would not apply ``when there is affirmative evidence

that ALS was not caused by military service or was caused by a

veteran's own willful misconduct.'' However, it conceded that there is

``very little likelihood that either of those standards will be met

with regard to any particular claim,'' as we stated in the

supplementary information of the interim final rule. We made no changes

based on this comment.

Outreach Services

We received several comments about VA contacting family survivors

of affected veterans concerning new Sec. 3.318, increasing awareness

of ALS, and performing research regarding the disease. VA is taking

steps to inform both veterans with ALS and family survivors of veterans

with ALS about this regulation and realizes the importance of all of

these issues. These issues, however, are beyond the scope of this

rulemaking. We made no changes based on these comments.

Eligibility for Survivor Benefits

We received comments concerning the availability of survivor

benefits to survivors of veterans who died from ALS before the

effective date of the interim final rule. A veteran's survivor who

establishes that the veteran died from ALS before September 23, 2008,

may be eligible for dependency and indemnity compensation pursuant to

new Sec. 3.318, but would not be entitled to any retroactive benefits

before September 23, 2008 (see discussion below). The laws concerning

survivor benefits, however, are not specifically addressed by this

rulemaking. For information about such benefits, those who are

interested may call VA for assistance at 1-888-GIBILL1 (442-4551) for

education benefits, or at 1-800-827-1000 for all other VA benefits.

They may also contact VA on the Internet at http://www.gibill.va.gov

for education claims or at https://iris.va.gov for other information.

We made no changes based on these comments.

Expedited Claims

The ALS Association recommended that VA consider adopting formal

processes for expediting claims for veterans with ALS because of the

rapidly progressive and terminal nature of the disease. VA is aware of

the need for expediting claims for ALS and has taken steps to assure

that this happens. However, this issue is beyond the scope of this

rulemaking. We made no changes based on this comment.

Use of Assistive Technology

ASHA commented that it ``strongly supports this presumption'' and

that this presumption would help veterans with ALS receive necessary

treatment, such as the use of a speech-generating device. We note that

VA already provides assistive technological devices to veterans to help

them overcome challenges they face in coping with various diseases.

Issues relating to treatment, however, are not part of this rulemaking.

We made no changes based on this comment.

Effective Date of Benefits

Several commenters urged VA to provide benefits for awards based on

new Sec. 3.318 retroactive to the date of claim, even if the claim was

originally filed and/or denied before September 23, 2008, the effective

date of the interim final rule. New Sec. 3.318 is applicable

prospectively to claims filed on or after September 23, 2008, and to

all applications for benefits that were pending before VA, the United

States Court of Appeals for Veterans Claims, or the United States Court

of Appeals for the Federal Circuit on that date. Under 38 U.S.C.

5110(g), the effective date of any award of disability compensation or

dependency and indemnity compensation made pursuant to new Sec. 3.318

will be assigned in accordance with the facts found but cannot be

earlier than the effective date of the interim final rule or the date

one year prior to the date of application, whichever is later. VA

therefore cannot assign an effective date prior to September 23, 2008,

for an award of benefits made pursuant to new Sec. 3.318. We made no

changes based on this comment.

Unfunded Mandates

The Unfunded Mandates Reform Act of`1995 requires, at 2 U.S.C.

1532, that agencies prepare an assessment of anticipated costs and

benefits before issuing any rule that may result in an expenditure by

State, local, and tribal governments, in the aggregate, or by the

private sector, of $100 million or more (adjusted annually for

inflation) in any given year. This rule will have no such effect on

State, local, and tribal governments, or on the private sector.

[[Page 57074]]

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and

benefits of available regulatory alternatives and, when regulation is

necessary, to select regulatory approaches that maximize net benefits

(including potential economic, environmental, public health and safety,

and other advantages; distributive impacts; and equity). The Executive

Order classifies a ``significant regulatory action'' requiring review

by the Office of Management and Budget, as any regulatory action that

is likely to result in a rule that may: (1) Have an annual effect on

the economy of $100 million or more or adversely affect in a material

way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, local, or

tribal governments or communities; (2) create a serious inconsistency

or interfere with an action taken or planned by another agency; (3)

materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of entitlement

recipients; or (4) raise novel legal or policy issues arising out of

legal mandates, the President's priorities, or the principles set forth

in the Executive Order.

VA has examined the economic, interagency, budgetary, legal, and

policy implications of this final rule and has concluded that it is a

significant regulatory action under Executive Order 12866 because it is

likely to result in a rule that may raise novel legal or policy issues

arising out of legal mandates, the President's priorities, or the

principles set forth in the Executive Order.

Paperwork Reduction Act

This document contains no provisions constituting a collection of

information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-


Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a

significant economic impact on a substantial number of small entities

as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-

612. The rule could affect only VA beneficiaries and will not directly

affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this

rule is exempt from the initial and final regulatory flexibility

analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and

titles for this rule are as follows: 64.109, Veterans Compensation for

Service-Connected Disability; and 64.110, Veterans Dependency and

Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: October 9, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.



Accordingly, the interim rule amending 38 CFR part 3 which was

published at 73 FR 54691 on September 23, 2008, is adopted as a final

rule without change.

[FR Doc. E9-26580 Filed 11-3-09; 8:45 am]


Share this post

Link to post
Share on other sites

5 answers to this question

Recommended Posts


I know a Veteran that was diagnosed with ALS, he has just passed away from it. he was never out of the states the 4 years he was in the Army, yet the VA helped him so much! He was embarrassed because my husband has Glioblastoma Multiforme Stage 4 Brain Cancer and the VA won't accept the fact that many Nam Vets have been diagnosed with it and will not connect it with Agent Orange.

He went to his grave feeling bad that he was getting all of this money from VA, yet my husband gets nothing for brain cancer.

Share this post

Link to post
Share on other sites

This widow proved her husband's brain cancer was from AO exposure:



The Veteran died of glioblastoma multiforme which was caused by Agent Orange exposure while serving in Vietnam.


Service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits."

She overcame a negative C & P exam report with two strong independent medical opinions.

Share this post

Link to post
Share on other sites

The VA is kicking the AO cancer presumptive down the road as far as they can becauses they will soon be burying most of us in the next 20 years. The budget cutters look at Vietnam veterans as fossils. We are somewhere between welfare mothers and street people to these guys. The US forgot the Korean War and forgot the Vietnam war with "extream prejudice".

Share this post

Link to post
Share on other sites

The VA is typical of an agency run by elected interference. I pressure my congressmen/women every chance I get. VOTE always. This is the single most important tool we have.

Share this post

Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Advertisemnt

  • Latest News
  • Our picks

    • Survivors- a Must read
      If you are new to hadit and have DIC questions it would help us tremendously if you can answer the following questions right away in your first post.

      What was the Primary Cause of Death (# 1) as listed on your spouse’s death certificate?

      What,if anything, was listed as a contributing cause under # 2?

      Was an autopsy done and if so do you have a complete copy of it?

       It can be obtained through the Medical Examiner’s office in your locale.

      What was the deceased veteran service connected for in his/her lifetime?

      Did they have a claim pending at death and if so what for?

      If they died from anything on the Agent Orange Presumptive list ( available here under a search) when did they serve and where? If outside of Vietnam, what was their MOS and also if they served onboard a ship in the South Pacific what ship were they on and when? Also did they have any major  physical  contact with C 123s during the Vietnam War?

      And how soon after their death was the DIC form filed…if filed within one year of death, the date of death will be the EED for DIC and also satisfy the accrued regulation criteria.
        • Like
      • 16 replies
    • If you are a Veteran, represented by MOPH, you need to know that MOPH is closing down its offices.  This can have a drastic effect on your claim, and it wont be good for you.  You likely need to get a new representative.  

      This station confirms MOPH is closing its doors:


      • 0 replies
    • Retroactive Back Pay.
      Retroactive Back Pay - #1Viewed Post Week of March 19. 2018

      My claim is scheduled to close tomorrow for my backpay.
      Does anyone know if it does close how long till the backpay hits the bank?
      Also does information only get updated on our claims whenever the site is down?
      • 44 replies
    • Examining your service medical records...
      * First thing I do after receiving a service medical record is number each page when I get to the end I go back and add 1 of 100 and so on.

      * Second I then make a copy of my service medical records on a different color paper, yellow or buff something easy to read, but it will distinguish it from the original.

      * I then put my original away and work off the copy.

      * Now if you know the specific date it's fairly easy to find. 

      * If on the other hand you don't know specifically or you had symptoms leading up to it. Well this may take some detective work and so Watson the game is afoot.

      * Let's say it's Irritable Syndrome 

      * I would start page by page from page 1, if the first thing I run across an entry that supports my claim for IBS, I number it #1, I Bracket it in Red, and then on a separate piece of paper I start to compile my medical evidence log. So I would write Page 10 #1 and a brief summary of the evidence, do this has you go through all the your medical records and when you are finished you will have an index and easy way to find your evidence. 

      Study your diagnosis symptoms look them up. Check common medications for your IBS and look for the symptoms noted in your evidence that seem to point to IBS, if your doctor prescribes meds for IBS, but doesn't call it that make those a reference also.
      • 9 replies
    • How to get your questions answered on the forum
      Do not post your question in someone else's thread. If you are reading a topic that sounds similar to your question, start a new topic and post your question. When you add your question to a topic someone else started both your questions get lost in the thread. So best to start your own thread so you can follow your question and the other member can follow theirs.

      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.

      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.

      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.

      Leading to:

      Post clear questions and then give background info on them.


      A. I was previously denied for apnea – Should I refile a claim?

      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?

      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?

      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.


      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
  • latest-posts-activity.pngstart-new-topic.pngsearch.png

  • Most Common VA Disabilities Claimed for Compensation:   


  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims


    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading


Important Information

{terms] and Guidelines