Extension of the Presumptive Period for Compensation for Persian Gulf War Veterans

[Tbird]

The Department of Veterans Affairs (VA) is issuing this interim final rule to amend its adjudication regulations regarding compensation for disabilities resulting from undiagnosed illnesses suffered by Veterans who served in the Persian Gulf War. This amendment is necessary to extend the presumptive period for qualifying chronic disabilities resulting from undiagnosed illnesses that must manifest to a compensable degree in order to establish entitlement to disability compensation benefits. The intended effect of this amendment is to provide consistency in VA adjudication policy, preserve certain rights afforded to Persian Gulf War Veterans and ensure fairness for current and future Persian Gulf War Veterans.

View the full article

[Berta]

Whew!!!- an answer to my prayers- Thank you GOD!!!!!!!!!!:

https://www.va.gov/disability/eligibility/hazardous-materials-exposure/gulf-war-illness-afghanistan

I will make public comment on this because I think the VA has to be clear that this will cover all incountry Afghanistan veterans. The VA often does not read well - many of us have to fight over the lack of their literacy in combatting erroneus denials.

I bet some raters do not even know that Afghanistan is part of Southeast Asia, and in my opinion, the Afghanistan War will NOT be over for many more years.

THANKS Tbird!!!!!This is impotant info we will need here as these ervicemen and women file claims.

 

[Berta]

Here are the new presumptuives for Afghanistan and other vets regarding particulate matter exposure ( including burn pits)

"VA to start processing disability claims for certain conditions related to particulate matter

WASHINGTON — The Department of Veterans Affairs will begin processing disability claims Aug. 2 for asthma, rhinitis and sinusitis on a presumptive basis based on presumed particulate matter exposures during military service in Southwest Asia and certain other areas — if these conditions manifested within 10 years of a qualifying period of military service.

VA conducted the first iteration of a newly formed internal VA process to review scientific evidence to support rulemaking, resulting in the recommendation to consider creation of new presumptions of service connection for respiratory conditions based on VA’s evaluation of a National Academies of Science, Engineering and Medicine report and other evidence.

The process concluded that particulate matter pollution is associated with chronic asthma, rhinitis and sinusitis for Veterans who served in the Southwest Asia theater of operations beginning Aug. 2, 1990 to the present, or Afghanistan, Uzbekistan, Syria or Djibouti beginning Sept. 19, 2001 to the present. VA’s review also concluded that there was sufficient evidence to presume that these Veterans have been exposed to particulate matter.

“I announced my intent to initiate rulemaking on May 27 to consider adding respiratory conditions to the list of chronic disabilities,” said Denis McDonough, Secretary of Veterans Affairs. “Through this process I determined that the evidence provided was sufficient to establish presumptions of service connection for these three respiratory conditions. This is the right decision, and VA will continue to use a holistic approach in determining toxic exposure presumptives moving forward.”

The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea and the airspace above these locations.

VA will conduct outreach to impacted Veterans and survivors to inform them about their eligibility and will provide information on how to apply. Veterans and survivors who believe they may be eligible for the newly established presumptive conditions are encouraged to apply. They should file a VA Form 21-526EZ if applying for the first time or a VA Form 20-0995 if they are reapplying for these conditions. For more information on the new presumptive conditions, visit our website at Airborne Hazards and Burn Pit Exposures - Public Health (va.gov).  

To apply for benefits, Veterans and survivors may visit VA.gov or call toll-free at 800-827-1000.  Within the next week, you can view the interim final rule at www.regulations.gov."

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https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5699

 

Edited October 27, 2021 by Berta
added more (see edit history)

[Vync]

I got an email this morning from the VA talking about the extension of the presumptive window. Very glad to see this! Now if the VA would only learn that presumptive windows should be done away with and simply implied based on service. They learned a lot with AO, but still fail to realize that issues with veterans do not always manifest within certain timeframes...

[Berta]

You sure are correct-that not all presumptives can garner the 10% criteria or even a Zero percent SC.

I have been quite concerned about our Afghanistan veterans because the VA had a very small presumptive situation for them a few years ago and they did not qualify as falling under the Gulf War regulations.

That pops up a lot at the BVA web site in the research I have done there.

However ( and this might be included in the links above I gave) this is a Legal statement from the BVA with citations.***

"Effective August 5, 2021, the VA amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, sinusitis, to include rhinosinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the criteria for presumptive service connection for respiratory health conditions, to include asthma (claimed as right paralyzed hemidiaphragm with exercise induced bronchospasm, to include as due to exposure to environmental hazards and/or secondary to service-connected GERD), are met. It is clear that the Veteran served in the Southwest Asia theater of operations during the Gulf War, was exposed to chemical agents per the December 2000 VA letter, manifested symptoms of in-service coughing and vomiting per the March 2020 Boards favorable finding, reported dyspnea and coughing within 10 years from separation as demonstrated in lay statements, and suffered from asthma during the appeal period. The Board finds that the evidence is, at minimum, in equipoise regarding the question of whether he meets presumptive service connection for a respiratory health condition resulting from presumed exposure to fine, particulate matter. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for presumptive service connection for asthma is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In light of this grant of service connection, the Board need not address any other theory of entitlement advanced."

https://www.va.gov/vetapp21/files8/21051783.txt

And:

"Whether the Veteran is a Persian Gulf War Veteran. Because the record reflects the Veteran deployed to Afghanistan in support of Operation Enduring Freedom, the first question is whether he is entitled to presumptive service connection under 38 C.F.R. § 3.317. Although his DD214 reflects he served in support of Operation Enduring Freedom, the record shows he served in Afghanistan, Philippines, and Thailand. See October 2011 PDHA at 1; March 2012 Interim Tuberculosis Risk Assessment. Given that the Veteran has not served in any of the countries identified as part of the SW Asia theater of operations and he has not alleged a claim based on an infectious disease, the Board finds he does not qualify as a Persian Gulf War Veteran. 38 C.F.R. § 3.317(e)(2). Accordingly, he is not entitled to the benefits under § 3.317 at this time."

I lost th link for that one-

 

"Entitlement to service connection on a direct basis. Because the Veteran is not entitled to presumptive service connection, the next question issue is whether he has established entitlement to service connection under 38 C.F.R. § 3.303(a). That is, on a direct basis."

 

However this BVA decisionreveals the problems Afghanistan vets might have-

"15. If, and only if, the Veteran is determine to qualify as a Persian Gulf Veteran, and record indicates a lack of current disability with regard to the following disorders on appeal: OSA, TBI, residuals status-post left parotidectomy with claimed nerve damage, bilateral hearing loss, tinnitus, lumbar spine, right knee, right ankle, left ankle, elbow, jaw, IBS, and acquired psychiatric disorders, the examiner(s) must provide an opinion as to whether any of these disorders constitute an undiagnosed illness or a medically unexplained chronic multisystem illness. A rationale must be provided for all opinions rendered."

https://www.va.gov/vetapp21/files2/21008656.txt

The IBS is the only potential Gulf War presumptive, but the BVA questioned ( as much of the research I have done, if this Afghanistan veteran is in fact a Gulf War veteran as well falling under the Gulf War regulations and presumptives.

I guess my concern is why are the Afghanistan veterans are not falling under the Gulf War Regulations?

And shouldn't "particulate matter pollution"also be claimable by a Gulf War veteran as well?

I guess it is just how the VA uses Semantics and definitions, and Geopgraphy- but their nomenclature can adversely affect veterans in many ways.

Afghanistan is not that far from the Persian Gulf....

Ad I also am concerned that for Afghanistan vets the Gov might consider the pullout date, August 30,2021 as the formal end date and then play around with the deadline for filing claims, and not unclude any more presumptives.

Well maybe I am just nuts but I lost faith in VA long ago and wonder if the Afghanistan vets will get a fair shake- because it took YEARS for Vietnam Vets, and Blue Water Vets, and even Gulf War vets  etc etc to get a fair shake.

One claim from a Gulf war vet at BVA was award for 15 of his 16 claimed conditions.

It took him years but I bet that claim could have been awarded at the RO level long ago.I bet MOST claims could be awarded at ROs.But that would require RO literacy.

Any opinions on this statement?

", in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan."

That is the legal statement from BVA I referrenced above.

To me it means Afghanistan, Syria, Djibouti, and Uzbekistan veterans ARE Gulf War veterans.

It does not say 'for those veterans who served in the Gulf War and also Afghanistan, Syria, Djibouti, and Uzbekistan.'

 

 

 

Edited October 28, 2021 by Berta
added more. (see edit history)