diabetes Presumptive Service Connection Does Not Preclude Consideration Of Direct Service Connection When Medical Nexus Has Been Provided.

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presumptive service connection does not preclude consideration of direct service connection when medical nexus has been provided.

Veterans Benefits Administration M21-1, Part VI

Department of Veterans Affairs Change 110

Washington, DC 20420 February 5, 2004

Veterans Benefits Manual M21-1, Part VI, “Rating Board Procedures,” is changed as follows:

Page 7-i: Remove this page and substitute page 7-i attached.

Pages 7-IV-1 through 7-IV-11: Remove these pages and substitute pages 7-IV-1 through 7-IV-12 attached.

Paragraph 7.20c is revised to

reflect that chloracne and chronic lymphocytic leukemia are not subject to the provisions of 38 CFR 3.816 (the Nehmer Stipulation)

show May 8, 2001 as the effective date that Type 2 diabetes mellitus was added to the list of presumptive diseases associated with herbicide exposure, and

add chronic lymphocytic leukemia to the list of presumptive diseases, effective

October 16, 2003.

Paragraph 7.20d is revised and rewritten to

show that 38 CFR 3.816 was added effective September 24, 2003 to provide guidance for awarding benefits under the Nehmer litigation

provide definitions of “Nehmer class members” and “covered herbicide diseases” under 38 CFR 3.816

state the eligibility and effective date provisions of 38 CFR 3.816

provide additional examples of Nehmer claims

reflect that Type 2 diabetes mellitus was added to the list of presumptive diseases in 38 CFR 3.309(e) effective May 8, 2001, rather than July 9, 2001

clarify that the estate of the deceased Nehmer class member’s falls last in the line of succession for payment of unpaid benefits

show that development for other survivors is required before the unpaid benefits can be released, and

remove the instructions to notify payees of the Nehmer district court order.

RESCISSION: Change 67

Change 90

By Direction of the Under Secretary for Benefits

Ronald J. Henke

Director, Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

LOCAL REPRODUCTION AUTHORIZED

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CHAPTER 7. RATING PROCEDURES FOR SPECIFIC ISSUES

CONTENTS

PARAGRAPH PAGE

SUBCHAPTER I. SERVICE CONNECTION

7.01 Service Connection--Direct or Presumptive 7-I-1

7.02 Determination of Service Incurrence 7-I-2

7.03 Disabilities Related to Combat 7-I-3

7.04 Definition of Injury--38 U.S.C. 101(24) and 38 CFR 3.6(a) 7-I-3

7.05 Aggravation of Preservice Disability 7-I-3

7.06 Claims For Secondary Service Connection By Aggravation 7-I-4

SUBCHAPTER II. UNEMPLOYABILITY DETERMINATIONS IN COMPENSATION CASES

7.07 Individual Unemployability 7-II-1

7.08 Evidence Requirements 7-II-1

7.09 Rating Practices and Procedures 7-II-2

7.10 Multiple Injuries Incurred in Action or as Prisoner of War (POW) 7-II-4

7.11 Claims Requiring Central Office Approval 7-II-4

7.12 Control of Evaluations Based on Individual Unemployability 7-II-4

SUBCHAPTER III. UNEMPLOYABILITY DETERMINATIONS IN PENSION CASES

7.13 Requirements 7-III-1

7.14 Unemployability 7-III-1

7.15 Marginal Employment 7-III-3

7.16 Factors Relating to Unemployability or Marginal Employment of Farmers 7-III-4

7.17 Unemployment Due to Loss of Industry in the Community 7-III-4

7.18 Rating Practices and Procedures 7-III-5

SUBCHAPTER IV. ENVIRONMENTAL HAZARDS

7.19 Reconsideration of Previously Denied Claims Based on Exposure to Ionizing

Radiation During Occupation of Hiroshima or Nagasaki or in Nuclear Testing 7-IV-1

7.20 Presumptive Diseases Associated With Exposure To Herbicide Agents 7-IV-1

7.21 Asbestos-Related Diseases 7-IV-5

7.22 Compensation for Disabilities Associated with Gulf War Service 7-IV-7

SUBCHAPTER V. POW RATINGS

7.23 Rating Claims Based on Prisoner of War Status 7-V-1

SUBCHAPTER VI. 38 U.S.C. 1151 RATINGS

7.24 Compensation or DIC under 38 U.S.C. 1151 7-VI-1

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SUBCHAPTER IV. ENVIRONMENTAL HAZARDS

7.19 RECONSIDERATION OF PREVIOUSLY DENIED CLAIMS BASED ON EXPOSURE TO IONIZING RADIATION DURING OCCUPATION OF HIROSHIMA OR NAGASAKI OR IN NUCLEAR TESTING

Veterans whose claims for service connection based upon exposure to ionizing radiation as a consequence of service with the occupation forces of Hiroshima or Nagasaki, Japan, or in connection with nuclear testing were denied prior to October 24, 1984, are entitled to a de novo review (a complete, new review) of their claims under Public Law 98-542, the "Veterans' Dioxin and Radiation Exposure Compensation Standards Act," which was enacted on October 24, 1984. New and material evidence need not be submitted to reopen these claims.

7.20 PRESUMPTIVE DISEASES ASSOCIATED WITH EXPOSURE TO HERBICIDE AGENTS

a. Herbicide Agents. "Herbicide agent" means a chemical used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant, TCDD; cacodylic acid; and picloram. (38 CFR 3.307(a)(6)(i))

b. Exposure. Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent. The last date of exposure is the last date on which he or she served in the Republic of Vietnam during the Vietnam era (38 CFR 3.307((a)(6)(iii)). Any exposure to herbicide agents in circumstances other than Vietnam service must be established on a factual basis.

c. Presumptive Diseases

(1) Requirements for Service Connection. In order to establish presumptive service connection, all diseases listed in 3.309(e) must become manifest to a degree of 10 percent or more after exposure. Chloracne (or other acneiform disease consistent with chloracne), porphyria cutanea tarda, and acute and subacute peripheral neuropathy must fulfill the 10 percent requirement within a year of last exposure to herbicides. Previously, respiratory cancers (cancers of the lung, bronchus, larynx, trachea) had to become manifest within 30 years of last exposure. Public Law 107-103 eliminated this requirement effective January 1, 2002. There is no time limit for the other listed diseases. (38 CFR 3.307((a)(6)(ii))

NOTE: The requirements for presumptive service connection do not preclude consideration of direct service connection when medical nexus has been provided. See 38 CFR 3.303(d).

(2) Acute and Subacute Peripheral Neuropathy. When processing claims for service connection for acute and subacute peripheral neuropathy based on herbicide exposure, it is important to remember that "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appeared within one year of last exposure to an herbicide agent and resolved within two years of the date of onset. It does not include chronic peripheral neuropathy. A "zero percent" evaluation should not be assigned based on a history of acute and subacute peripheral neuropathy that manifested within one year of last exposure and resolved within two years of the date of onset. Absent proof of a present disability there can be no valid claim (see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Because any acute or subacute peripheral neuropathy will, by definition, resolve within a short time after exposure, any later-occurring peripheral neuropathy, whether transient or chronic, will not be presumed to be related to the prior herbicide exposure or the previously-resolved acute or subacute peripheral neuropathy. Claims of service connection for such later-occurring peripheral neuropathy should be evaluated under the ordinary standards governing direct service connection.

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(3) Dates of Entitlement. The diseases listed in 38 CFR 3.309(e) were made subject to presumptive service connection on the dates shown below:

Effective Date Disability

February 6, 1991* and *** Chloracne or other acneform disease consistent with chloracne

February 6, 1991* Soft-tissue sarcoma (other than osteosarcoma,

chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)

February 6, 1991** Non-Hodgkin’s lymphoma

February 3, 1994 Porphyria cutanea tarda, Hodgkin's disease

June 9, 1994 Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), multiple myeloma

November 7, 1996

Prostate cancer, acute and subacute peripheral neuropathy

May 8, 2001 Diabetes mellitus (Type 2)

October 16, 2003*** Chronic lymphocytic leukemia

Unless an earlier effective date is determined pursuant to the Nehmer Stipulation, the provisions pertaining to retroactive payment under 38 CFR 3.114(a) apply.

* originally September 25, 1985 under section 3.311a

** originally August 5, 1964 under section 3.313

*** not subject to the provisions of 38 CFR 3.816 (See 7.20d.)

(4) Conditions for which the Secretary has determined there is no positive association with herbicide exposure. Under the Agent Orange Act of 1991, the Secretary receives periodic reviews and summaries of the scientific evidence concerning the association between exposure to herbicides and diseases suspected to be associated with those exposures from the National Academy of Sciences (NAS). To the extent possible, NAS determines: (1) whether there is a statistical association between specific diseases and herbicide exposure; (2) the increased risk of disease among individuals exposed to herbicides in the Republic of Vietnam during the Vietnam Era; and (3) whether there is a plausible biological mechanism or other evidence that herbicide exposure causes specific diseases. Based on cumulative scientific data reported by NAS since 1993, the Secretary has determined that there is no positive association (i.e., the evidence for an association does not equal or outweigh the evidence against an association) between herbicide exposure and the following conditions:

hepatobiliary cancers

nasal and nasopharyngeal cancer

bone cancers

breast cancer

cancers of the female reproductive system

urinary bladder cancer

renal cancer

testicular cancer

leukemia (other than chronic lymphocytic leukemia)

reproductive effects (abnormal sperm parameters and infertility)

Parkinson's disease

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chronic persistent peripheral neuropathy

lipid and lipoprotein disorders

gastrointestinal and digestive disease (other than diabetes mellitus)

immune system disorders

circulatory disorders

respiratory disorders (other than certain respiratory cancers)

skin cancer

cognitive and neuropsychiatric effects

gastrointestinal tract tumors

brain tumors

amyloidosis

d. The Nehmer Stipulation (38 CFR 3.816)

(1) Background. Title 38 CFR 3.311a, which became effective on September 25, 1985, was the first VA regulation to provide guidance for the adjudication of claims based on dioxin exposure. In February 1987, a class action entitled Nehmer v. United States Veterans Administration, et al. was filed in the United States District Court for the Northern District of California. On May 3, 1989, the district court invalidated a portion of 38 CFR 3.311a. All denials on or after September 25, 1985 based on that regulation were voided, and a moratorium was placed on further denials. The moratorium was lifted on February 15, 1994. Effective September 24, 2003, 38 CFR 3.816 was added to provide guidance for awarding disability compensation and DIC benefits under the Nehmer litigation.

(2) Nehmer Class Members. Nehmer class members under 38 CFR 3.816 include a veteran who served in the Republic of Vietnam during the Vietnam era who has a covered herbicide disease, and the surviving spouse, child, or parent of a deceased veteran who served in the Republic of Vietnam during the Vietnam era and died from a covered herbicide disease.

(3) Covered Herbicide Disease. “Covered herbicide disease” under 38 CFR 3.816 means a disease for which VA has established a presumption of service connection before October 1, 2002 under the Agent Orange Act of 1991, other than chloracne. These diseases are

Type 2 Diabetes (also known as type II diabetes mellitus or adult-onset diabetes)

Hodgkin’s disease

Multiple myeloma

Non-Hodgkin’s lymphoma

Acute and Subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and

Soft-tissue sarcoma (as defined in 38 CFR 3.309©).

(4) Entitlement to Benefits. A Nehmer class member is entitled to disability compensation or DIC benefits under 38 CFR 3.816 if a claim for service-connected disability or death from a covered herbicide disease was (1) denied in a decision issued between September 25, 1985 and May 3, 1989, (2) pending on May 3, 1989 or, (3) received between May 3, 1989 and the effective date of the regulation establishing a presumption of service connection for the covered disease.

Note: Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.

(5) Effective Date. The effective date of compensation benefits under 38 CFR 3.816 is the date of receipt of the claim on which the prior denial was based or the date on which the disability arose, whichever is

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later. The effective date of an award of DIC benefits under 38 CFR 3.816 is the later of the date of receipt of the prior claim or the date of the veteran’s death.

Exceptions: If VA received the prior claim for compensation within one year after the veteran’s separation from service, the effective date of compensation is governed by 38 CFR 3.400(b)(2). If the prior claim for DIC was received within one year after the veteran’s death, the effective date of DIC is governed by 38 CFR 3.400©.

Note: The provisions of 38 CFR 3.114(a) limiting effective dates to no earlier than the date of a liberalizing law or issue do not apply to benefits awarded under 38 CFR 3.816.

Example 1: The veteran’s initial claim for lung cancer was received on August 4, 1985 and denied on November 19, 1985. Medical evidence showed a diagnosis of lung cancer in July 1985. In this case, the date of entitlement to benefits under 38 CFR 3.816 would be from the date of claim, August 4, 1985. If the claim had been denied prior to September 25, 1985, it would be unaffected by the Nehmer Stipulation, and the effective date would be governed by 38 CFR 3.114(a).

Example 2: The veteran’s initial claim for service connection for lung cancer was received on October 14, 1992 and denied on December 23, 1992. Medical evidence showed a diagnosis of lung cancer in September 1992. Since the claim was received before June 9, 1994, the effective date of the presumption of service connection for lung cancer under 38 CFR 3.309(e), compensation benefits under 38 CFR 3.816 may be awarded from the date of claim, October 14, 1992.

Example 3: On November 3, 1986, a veteran with Vietnam service died from Hodgkin's disease. His widow filed a claim for DIC on December 10, 1986, alleging that his death was related to Agent Orange exposure. On February 12, 1987, entitlement to DIC benefits was denied. The effective date for an award of DIC benefits would now be determined with reference to the date of claim, December 10, 1986. Since, in this case, the date of claim is within one year of the veteran's death, the date of eligibility would be the first day of the month in which the veteran's death occurred as required by 38 CFR 3.400©(2).

(6) Scope of Retroactive Payment Provisions

(a) No Requirement of a Claim That Specifically Mentions Herbicide Exposure. In its February 11, 1999 order the district court held that a Nehmer class member’s compensation or DIC claim need only have requested service connection for the condition in question to qualify as a Nehmer claim. It is not necessary that the claim have asserted that the condition was caused by herbicide exposure.

Example: A veteran with Vietnam service filed a claim in 1994, expressly alleging that his prostate cancer was caused by exposure to ionizing radiation in service prior to his service in Vietnam. VA denied the claim in 1995. The veteran reopened the claim in 1997, and service connection was granted. On these facts, the effective date must relate back to the 1994 claim, even though the veteran alleged a different basis for service connection.

(b) Porphyria Cutanea Tarda (PCT). Title 38 CFR 3.311a(d), which was published on October 21, 1991, stated that sound scientific and medical evidence did not establish a significant statistical association between herbicide exposure and PCT. A denial of PCT under 38 CFR 3.311a after October 20, 1991, was valid and an earlier effective date for benefits would not be assigned under 38 CFR 3.816. However, a claim for PCT which was denied between September 24, 1985, and October 21, 1991, would be considered for an earlier effective date under 38 CFR 3.816.

© Type 2 Diabetes Mellitus. Effective May 8, 2001, Type 2 diabetes mellitus became subject to presumptive service connection under 38 CFR 3.309(e). Retroactive benefits under the Nehmer review may be warranted for claims for service connection for Type 2 diabetes filed or denied during the period from September 25, 1985 to May 7, 2001. If a prior claim did not involve service connection for Type 2 diabetes, it generally would not provide a basis for an earlier effective date. However, a lack of specificity in the initial claim may be clarified by later submissions.

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Example 1: In January 1987, a veteran claimed compensation for hyperglycemia. In developing the claim, VA obtained medical records indicating that the veteran was diagnosed with Type 2 diabetes in February 1987. On these facts, it would be reasonable to treat the January 1987 claim as a claim for service connection of Type 2 diabetes. Under 38 CFR 3.816, benefits may be paid retroactive to the later of the date of that claim or the date the disability arose, as determined by the facts of the case.

Example 2: In 1995, a veteran claimed compensation for hyperglycemia. Medical records obtained by VA indicated the veteran did not have Type 2 diabetes. In 2001, the veteran claimed compensation for Type 2 diabetes, submitting evidence showing that the condition was diagnosed in 1996. On these facts, the 1995 claim was not a claim for service connection of Type 2 diabetes, as neither the application nor the evidence of record suggested the presence of Type 2 diabetes.

(d) Payment to the Survivors or Estate of a Nehmer Class Member

1. Identifying Appropriate Payee. If a Nehmer class member entitled under 38 CFR 3.816© and (d) dies before receiving the payment of retroactive benefits, award the unpaid benefits to the first individual or entity in existence in the following order: spouse; child or children (divided into equal shares, if more than one child exists), regardless of age or marital status; parents (divided in half, if both parents are alive); estate.

Note 1: The survivor or estate of a Nehmer class member is not required to file an application in order to receive the unpaid benefits.

Note 2: The provisions of 38 U.S.C. 5121(a) limiting payment of accrued benefits to amounts paid and due for a period not to exceed two years prior do not apply to payments under 38 CFR 3.816.

2. If Appropriate Payee Cannot Be Identified. If a class member is deceased and the claims file does not clearly identify an eligible survivor, use all available information in the file to determine an appropriate payee. For example, if the claims file identifies an authorized representative or relative, this person should be contacted for information on the existence of a surviving spouse, children, parents, or estate. If this development does not identify an appropriate payee, annotate the rating decision that it was not possible to locate any payee eligible for Nehmer payment.

3. Developing for Other Survivors. Before awarding benefits to an identified payee, ask the payee to state whether there are any other survivors of the class member who may have an equal or greater entitlement to payment under 38 CFR 3.816, unless the circumstances clearly indicate that such a request is unnecessary. If, after the claim is developed, the full amount of benefits is awarded to a payee, do not pay any portion of the amount to any other individual, unless the payment previously released can be recovered.

7.21 ASBESTOS-RELATED DISEASES

a. General

(1) Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure.

(2) Asbestos, a fibrous form of silicate mineral of varied chemical composition and physical configuration, derives from serpentine and amphibole ore bodies. The asbestos fibers are obtained from these minerals after the rocks have been crushed. Africa has been the source of large quantities of crocidolite and amosite. The main asbestos product now used in the United States is chrysotile which consists of varied mixtures of chrysotile, tremolite, actinolite, and anthophyllite fibers. The biological actions of these fibers differ

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in some respects. Chrysotile products have their initial effects on the small airways of the lung, cause asbestosis more slowly, but result in lung cancer more often. The African fibers have more initial effects on the small blood vessels of the lung, the alveolar walls and the pleura, and result in more mesothelioma. True chrysotile fibers are hollow and extremely thin. All the other varieties of asbestos fibers are solid.

(3) Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. About 50 percent of persons with asbestosis eventually develop lung cancer, about 17 percent develop mesothelioma, and about 10 percent develop gastrointestinal and urogenital cancers.

All persons with significant asbestosis develop cor pulmonale and those who do not die from cancer often die from heart failure secondary to cor pulmonale.

b. Occupational Exposure

(1) Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced.

(2) High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).

c. Diagnosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident.

d. Guidelines

(1) When considering VA compensation claims, RVSRs must determine whether or not military records demonstrate evidence of asbestos exposure in service. RVSRs must also assure that development is accomplished to determine whether or not there is preservice and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. If assistance is needed, contact the Compensation and Pension Service Regulations Staff.

(2) Rate asbestosis under diagnostic code 6833 and pleural effusions and fibrosis, and pleural plaques analogous to asbestosis. Rate cancers under the diagnostic code for the appropriate body system. Rate

mesothelioma of pleura analogous to diagnostic code 6819 and mesothelioma of peritoneum analogous to diagnostic code 7343.

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7.22 COMPENSATION FOR DISABILITIES ASSOCIATED WITH GULF WAR SERVICE

a. Background.

(1) The Persian Gulf War Veterans’ 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 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War.

(2) The Persian Gulf War Veterans Act of 1998. The “Persian Gulf War Veterans Act of 1998”, Public Law 105-277 authorized VA to compensate Gulf War veterans for diagnosed or undiagnosed disabilities which are determined by VA regulation to warrant a presumption of service-connection based on a positive association with exposure to a toxic agent, environmental or wartime hazard, or preventive medication or vaccine associated with Gulf War service. This statute added section 1118 to Title 38, United States Code.

(3) The Veterans Education and Benefits Expansion Act of 2001. The “Veterans Education and Benefits Expansion Act of 2001,” Public Law 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 a presumption of service-connection.

(4) 38 CFR 3.317. Title 38 CFR 3.317, which implements 38 U.S.C. 1117, defines qualifying Gulf War service and qualifying chronic disability as well as establishes 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.

b. “Gulf War Veteran”. The term "Gulf War veteran" under 38 CFR 3.317 means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Gulf War. The Gulf War extends from August 2, 1990, through a date yet to be determined by law or Presidential proclamation (38 U.S.C. 101(33). The Southwest Asia theater of operations includes:

Iraq

Kuwait

Saudi Arabia

The neutral zone between Iraq and Saudi Arabia

The United Arab Emirates

Bahrain

Qatar

Oman

The Gulf of Aden

The Gulf of Oman

The Persian Gulf

The Arabian Sea

The Red Sea

The airspace above these locations

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c. Qualifying Chronic Disability

(1) Definition. The term “qualifying chronic disability” under 38 CFR 3.317 means a chronic disability resulting from any of the following (or any combination of any of the following):

(a) An undiagnosed illness.

(b) 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.

© Any diagnosed illness that is determined by VA regulation to warrant a presumption of service-connection.

(2) Signs or Symptoms of Illness. Title 38 CFR 3.317 specifies 13 categories of signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness. They are listed below. However, the list of 13 illness categories is not exclusive. Signs or symptoms not represented by one of the listed categories can also qualify for consideration. If a disability is affirmatively shown to have resulted from a cause other than Gulf War service, however, it cannot be compensated under 38 CFR 3.317.

Abnormal weight loss

Cardiovascular signs or symptoms

Fatigue

Gastrointestinal signs or symptoms

Headache

Joint pain

Menstrual disorders

Muscle pain

Neurological signs or symptoms

Neuropsychological signs or symptoms

Signs or symptoms involving the respiratory system (upper and lower)

Signs and symptoms involving the skin

Sleep disturbances

(3) Chronicity. The claimed illness must be chronic. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. Disabilities which are subject to intermittent episodes of improvement and worsening within a 6-month period would be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

d. Presumptive period for service connection. Title 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 during the Gulf War. This period extends through December 31, 2006.

e. Special Considerations for Undiagnosed Disability Claims

(1) Diagnostic Codes. In order to properly identify and track claimed undiagnosed disabilities, the following diagnostic code series beginning with "88" has been established. The 88 code will be the first element of a hyphenated analogous code. It will be assigned according to the body system of the analogous code which it precedes. (See subparagraph 9b.)

DIAGNOSTIC

CODE DESCRIPTION

8850-50__ UNDIAGNOSED CONDITION--MUSCULOSKELETAL DISEASES

8851-51__ UNDIAGNOSED CONDITION—AMPUTATIONS

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8852-52__ UNDIAGNOSED CONDITION--JOINTS, SKULL, AND RIBS

8853-53__ UNDIAGNOSED CONDITION--MUSCLE INJURIES

8860-60__ UNDIAGNOSED CONDITION--DISEASES OF THE EYE

8861-61__ UNDIAGNOSED CONDITION--HEARING LOSS

8862-62__ UNDIAGNOSED CONDITION--EAR AND OTHER SENSE ORGANS

8863-63__ UNDIAGNOSED CONDITION--SYSTEMIC DISEASES

8865-65__ UNDIAGNOSED CONDITION--NOSE AND THROAT

8866-66__ UNDIAGNOSED CONDITION--TRACHEA AND BRONCHI

8867-67__ UNDIAGNOSED CONDITION--TUBERCULOSIS

8868-68__ UNDIAGNOSED CONDITION--LUNGS AND PLEURA

8870-70__ UNDIAGNOSED CONDITION--HEART DISEASES

8871-71__ UNDIAGNOSED CONDITION--ARTERIES AND VEINS

8872-72__ UNDIAGNOSED CONDITION--UPPER DIGESTIVE SYSTEM

8873-73__ UNDIAGNOSED CONDITION--LOWER DIGESTIVE SYSTEM

8875-75__ UNDIAGNOSED CONDITION--GENITOURINARY SYSTEM

8876-76__ UNDIAGNOSED CONDITION--GYNECOLOGICAL SYSTEM

8877-77__ UNDIAGNOSED CONDITION--HEMIC AND LYMPHATIC SYSTEM

8878-78__ UNDIAGNOSED CONDITION--SKIN

8879-79__ UNDIAGNOSED CONDITION--ENDOCRINE SYSTEM

8880-80__ UNDIAGNOSED CONDITION--CENTRAL NERVOUS SYSTEM

8881-81__ UNDIAGNOSED CONDITION--MISCELLANEOUS NEUROLOGICAL

8882-82__ UNDIAGNOSED CONDITION--CRANIAL NERVE PARALYSIS

8883-83__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURITIS

8884-84__ UNDIAGNOSED CONDITION--CRANIAL NERVE NEURALGIA

8885-85__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE PARALYSIS

8886-86__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURITIS

8887-87__ UNDIAGNOSED CONDITION--PERIPHERAL NERVE NEURALGIA

8889-89__ UNDIAGNOSED CONDITION--EPILEPSIES

8892-92__ UNDIAGNOSED CONDITION--PSYCHOTIC DISORDERS

8893-93__ UNDIAGNOSED CONDITION--ORGANIC MENTAL

8894-94__ UNDIAGNOSED CONDITION--PSYCHONEUROTIC

8895-95__ UNDIAGNOSED CONDITION--PSYCHOPHYSIOLOGIC

8899-99__ UNDIAGNOSED CONDITION--DENTAL AND ORAL

(2) The Issue

(a) Issue for Consideration. State the issue for rating as "Service connection for [specify signs or symptoms] as due to an undiagnosed illness."

(b) Single or Multiple Issues. The decision to rate multiple symptoms or signs separately or as a single disability will depend on the most favorable outcome to the veteran. Although rating multiple manifestations under a single body system will in most cases allow the maximum benefit, be alert to symptoms affecting fundamentally different body systems which may clearly warrant separate consideration. If service connection for several symptoms or signs is denied for the same reason, consider such symptoms and signs as a single issue. Whether granted or denied, assign one hyphenated diagnostic code in the coded conclusion to each issue which is separately considered.

(3) Evidence. If there is a disability due to the existence of an undiagnosed illness, generally there are three facts that must be established before service connection for an undiagnosed illness may be granted or denied: when the disability arose; whether the condition was of compensable severity (unless manifested while in the Southwest Asia theater); and whether the condition chronically persisted for at least six months.

(a) Medical and Lay Evidence. When the object of service connection is a diagnosed illness, medical findings are of paramount importance because a physician specializes in identifying disabilities through

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diagnoses. However, the concept of "objective indications" expressed in 38 CFR 3.317 makes clear that the evidence required for undiagnosed illnesses--illnesses which are outside the scope of medical understanding--is not so dependent on formal medical findings. The veteran's testimony to the effect that he or she is experiencing these symptoms, when combined with an examining physician's inability to make a diagnosis, may be sufficient to establish existence of the illness. Similarly a lay person's statement regarding the veteran's complaints beginning at a certain time, lasting for a certain duration, and having a particular level of severity may be adequate to establish the requirements for consideration. Non-medical indicators include such information as time lost from work, evidence that the veteran has sought medical treatment for his or her symptoms, evidence affirming situations such as a change in the veteran's appearance, physical abilities and mental or emotional attitude. Lay statements from knowledgeable individuals may be accepted as evidence providing objective indications if they support the conclusion that a disability exists.

(b) Unnecessary Development. Lay evidence is credible if the person was in a position to know the alleged facts and if not contradicted by evidence of record which is more credible. Do not dismiss any evidence as "self-serving." It is reasonable to expect claimants to provide evidence which they believe is in their best interests. Similarly, unless there is affirmative reason to doubt the credibility of evidence, do not develop for corroboration. For example, if lay evidence alleges that the veteran lost a certain amount of time from employment, accept that statement without further development if otherwise credible.

© PGW Registry Examination. In all cases, ask the veteran if he or she had participated in the VHA Persian Gulf Health Registry and had been examined as part of the Registry, and where he or she was examined. If he or she has been examined, secure examination results from the VAMC.

(4) Future Examination. Because the course of an undiagnosed illness cannot be predicted, monitor the case by establishing a future examination control within 24 months of the last examination of record. At the expiration of the control, review the evidence of record to determine if a reexamination is necessary.

f. Decision. State the rating decision as "Service connection for _____ is denied," or "Service connection for _____ is granted with an evaluation of _____ percent effective _____ ." The earliest effective date for entitlement to service connection under 38 CFR 3.317 is November 2, 1994.

g. Reasons For Decision

(1) Granted. Service connection established under 38 CFR 3.317 is considered service connection for purposes of all laws.

(a) During Active Duty. Service connection will be established if the qualifying chronic disability (as defined in subparagraph 7.22c(1)) 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 Gulf War. Include the following sentence in the "Reasons and Bases" or “Analysis” section of the rating if service connection is established under this circumstance: "Service connection is established for _____ (or for _____ as due to an undiagnosed illness) which began in the Southwest Asia theater of operations during the Gulf War."

(b) During Presumptive Period. Service connection will be established if the qualifying chronic disability arose to a compensable degree after the veteran last served in the Southwest Asia theater during the Gulf War, 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 and Bases" or “Analysis”: "Service connection may be presumed for qualifying disabilities resulting from undiagnosed 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 _____ has been granted on the basis of this presumption."

(2) Evaluation by Analogy

(a) Evaluate the level of impairment of chronic undiagnosed disabilities by analogy to an existing diagnostic code in the rating schedule (38 CFR 4.27). Precede a discussion of the evaluation criteria and next

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higher level in the “Reasons for 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."

(b) The RSVR will use a hyphenated diagnostic code as described in subparagraph 7.22e(1) for undiagnosed disabilities. For the second code, use the diagnostic code that most closely fits the evaluating criteria. Examples of analogies for the 13 signs or symptoms found in 38 CFR 3.317 are provided below. However, use of analogies is not limited to this list.

Abnormal weight loss, 8873-7328 (resection of intestine);

Cardiovascular signs or symptoms, 8870-7013 (tachycardia), 8870-7005 (ASHD);

Fatigue, 8863-6354 (chronic fatigue syndrome), 8877-7700 (anemia);

Gastrointestinal signs or symptoms, 8873-7305 (ulcer), 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);

Neuropsychological signs or symptoms, 8893-9300 (organic mental disorder);

Signs or symptoms involving the respiratory system (upper or lower), 8865-65__, 8866-66__, 8868-68__ (respiratory system);

Signs and symptoms involving the skin, 8878-7806 (eczema);

Sleep disturbances, 8894-9400 (generalized anxiety).

© Denied. Begin a discussion of any denial in the "Reasons and Bases" or “Analysis” with a description of the general requirements for service connection under 38 CFR 3.317: "Service connection may be established for qualifying chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which became manifest either during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent or more after the date on which the veteran last performed service in the Southwest Asia theater of operations during the Persian Gulf War."

1. Diagnosed Illnesses. A condition having a known clinical diagnosis cannot be favorably considered for service connection under 38 CFR 3.317 unless it meets the criteria for qualifying chronic disability shown in subparagraph 7.22c, but it will receive consideration for service connection under other provisions. If service connection is denied, include the following language in the "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied because this disability is determined to result from a known clinical diagnosis of _____ , which neither occurred in nor was caused or aggravated by service."

2. Illness Not Chronic. The fact that a claimed disability is not found on last VA examination does not necessarily preclude entitlement under 38 CFR 3.317. The requirement for chronicity is fulfilled if the disability has persisted for at least 6 months. Disabilities subject to episodic improvement and worsening within a 6-month period are considered chronic. If the disability does not meet the 6-month requirement, include the following statement under “Reasons for Decision”: "The disability must have persisted for a period of at least 6 months. Service connection for _____ is denied since this disability was first manifested on _____ and lasted less than 6 months."

3. Attributable to Some Other Etiology. Service connection under 38 CFR 3.317 cannot be established if there is affirmative evidence that the illness was not incurred during active service or was caused by some intercurrent circumstance. Affirmative evidence that the illness is caused by willful misconduct or alcohol or drug abuse will also preclude entitlement. Include the following statement under “Reasons for

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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 _____ is denied because evidence established that this disability resulted from _____ ."

4. Illness not shown by the evidence of record. There is no evidence that the condition ever existed.

5. Qualifying Chronic Disability Less than 10 Percent. In order to qualify for service connection, the qualifying chronic disability must have become manifest either during active duty in the Southwest Area Theater during the Gulf War or to a degree of 10 percent or more after the date on which the veteran last performed active service in the Southwest Asia theater of operations during the Gulf War. If the veteran fails to qualify for service connection because the severity of disability is noncompensable, include the following statement in "Reasons and Bases" or “Analysis”: "Service connection for _____ is denied since this disability neither arose during service in the Persian Gulf theater, nor was it manifested to a compensable degree after the last date of service in the Persian Gulf theater during the Gulf War."

(d) Description of Dates. Under “Reasons for Decision,” explicitly refer to any date which is pertinent to the decision. This particularly includes the dates during which the veteran served in the Southwest Asia theater, and the earliest date a qualifying chronic illness may have become manifest.

h. Coded Conclusion

(1) A decision regarding service connection will be shown under either code 1. SC or 8. NSC in the coded conclusion. The parenthetical entry following 1. SC will be "GW PRES."

(2) Hyphenated codes will be used for all undiagnosed conditions. The first code will always be one of the diagnostic codes established for Gulf War undiagnosed conditions (see subparagraph 7.22e(1)) followed by the analogous diagnostic code. For example, if the analogy is 6354, the hyphenated code would be 8863-6354; or if the analogy is 5002, the code would be 8850-5002.

i. Severance and Reduction. Once service connection is established under 38 CFR 3.317, it is considered service connected for the purpose of all laws, including the provisions pertaining to protection under 38 CFR 3.951 and 3.957. Situations may arise, however, that will require termination or reduction of payments previously awarded under section 3.317; for example, establishment of a known clinical diagnosis as the cause of a veteran's disabilities. Title 38 CFR 3.500 was amended to add a paragraph (38 CFR 3.500(y)) specifically requiring severance or reduction under 38 CFR 3.105(d) or (e) to be effective on the first of the month 60 days after expiration of the predetermination period and final notice to the veteran. Apply the usual procedures for reduction or severance outlined in chapter 9. Termination or reduction of benefits paid under section 3.317 would not preclude continuation of payments if entitlement is established under other regulations governing grants of service connection by incurrence, aggravation, or presumption.

j. Participation in Research Projects. Effective December 27, 2001, if a Gulf War veteran participates in a VA-sponsored medical research project, service connection established for disability under 38 U.S.C. 1117 or 1118 will be protected, regardless of the project’s findings, unless the original award of compensation or service connection was based on fraud, or it is clearly shown from military records that the veteran did not have the requisite service or character of discharge. A list of VA-sponsored medical research projects for which service connection is protected will be published in the Federal Register.

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