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Don’t miss this blog about the VA Presumptive List!
NOT SERVICE CONNECTED. CLAIM DENIED.
These are the most dreaded phrases of veterans pursuing disability claims. Numerous veterans come to VACI seeking for aid in proving service connection. But what if your claim is not service-connected? What if your disability develops after your time of service? Are you doomed to suffer without getting VA compensation?
The answer is a sparkling NO. The VA should provide you with compensation under Presumptive Disability Benefits. This is all thanks to Code of Federal Regulations Title 38, Section 3.309 (38 CFR § 3.309), entitled: Disease subject to presumptive service connection. This CFR section lists down all possible illnesses which the VA should presumably cover for compensation despite occurrence after active duty.
WHAT DOES VA PRESUMPTIVE LIST MEAN?
As stated earlier, the VA Presumptive List is a record of illnesses that the VA can “presumably” cover for compensation even without an in-service connection.
This means that these disabilities were not acquired during or caused by the veteran’s active duty, and do not appear in any of his/her service medical records. It covers disabilities that sprung after the time of duty. It also covers conditions burdening the veteran prior to enlistment but was deemed aggravated only after his/her time of service. The latter can fall under presumptive disabilities provided that the degeneration can be linked to the qualifications of VA Presumptive List (which is discussed as you read through this blog).
HOW DID IT GO ABOUT?
As early as WWI, the Congress had already contended that the burden of proof for service-connecting ailments developed after military service is heavily and unfairly put upon the shoulders of veterans.
Keep in mind that this is the 1920s – a time when record-keeping is poor and prone to error. It was also the time when our soldiers were first deployed abroad, and the effects of wartime exposure from such lands are very scarcely studied. For these reasons, Congress argued that the VA should accept presumptions for disability benefits.
Congress found the prerequisite for in-service medical history problematic. Senator Thomas J. Walsh reasoned that:
“We [Congress and VA] ought not to continue this requirement of endless affidavits… involving long delay, in demonstrating the fact that [veteran’s] illness is of service origin. The delays resulting from this affidavit requirement had often resulted in men dying before they ever got their compensation…” (Sen. Walsh, 61 Cong. Rec. 4105 1921)
Instead, the good Senator proposed that for cases wherein it is difficult to prove service connection, “the burden thus [shifts] to the Government… [to prove how the veteran could have] contracted the disease since the time of his discharge and [why] it is not traceable to service in the line of duty.” (Sen. Walsh, 61 Cong. Rec. 4105 1921)
THE “PRESUMPTIVE” LIST
Decades after decades starting from the momentous 1920s, the VA has compiled illnesses and conditions coverable by presumptive service connection. Veterans only need to fit specific conditions the VA has set for presumption known as VA Presumptive List. These presumptions are categorized according to (1) category of disease, (2) activity, and (3) location.
Category of Disease
Chronic Diseases
38 CFR § 3.309(a) lists down all coverable presumptive chronic diseases. The term “chronic” is a loose description because some of the ailments in the list are not incurable. Therefore, all conditions in this list are considered chronic unless caused by other symptoms other than military service.
This list widely ranges from arthritis, brain hemorrhage, liver cirrhosis, diabetes, Hodgkin’s disease, tuberculosis, MS, ALS, different types of cancers, and psychoses.
Conditions: The veteran must have actively and continuously served for at least 90 days. The disease must manifest to 10% or more within the first year of discharge from duty.
Tropical Diseases
The United States is a continental climate country. If a soldier is suddenly deployed to a tropical land, he/she is automatically exposed to diseases endemic to the location. The soldier’s immunity would be weak, and the illnesses may take some time to manifest. If you are a veteran assigned to tropical countries like the Philippines, Somalia, Nigeria, you might fit in the presumptive list for tropical diseases under 38 CFR § 3.309(b).
Conditions: The veteran must have actively and continuously served for at least 90 days. The disease must manifest to 10% or more within the first year of discharge from duty.
Activity
Prisoners of War
One of the many hazards of a soldier’s job is captivity. It is difficult, however, to prove in-service connection for conditions acquired from being a Prisoner of War.
38 CFR § 3.309(c) lists POW-specific conditions, which are further divided into two depending on ailment types: requirement of at least 30 days imprisonment, and no time coverage.
Condition: Prisoners of War (POW) are exempted from the 90-day service presumptive rule. The disease must manifest to 10% or more within the first year of discharge from duty.
Radiation Exposure
As we all know, the dangers of radiation do not surface immediately unless a person is exposed to a considerably high amount. 38 CFR § 3.309(d) covers presumptive diseases under radiation exposure. The notes in 38 CFR § 3.309(d) mention all possible radiation-exposed roles coverable in this section, most significant of which is deployment within 10 miles from Nagasaki or Hiroshima in 1945-1946.
Conditions: The veteran must have actively and continuously served for at least 90 days. The disease must manifest to 10% or more within the first year of discharge from duty.
Mustard Gas/Lewisite Exposure
Mustard Gas and Lewisite are both blister agents and lung irritants that are used in chemical warfare. Both are widely used during WWI up to WWII. Record keeping during these times is difficult and prone to error, so it will be difficult for veterans to prove service-connection.
Conditions: Submission of any (medical or service) records showing number, length, and/or type of exposure. The veteran must have actively and continuously served for at least 90 days. The disease must manifest to 10% or more within the first year of discharge from duty.
Location
Vietnam and Korea War Veterans
If WWI and WWII have mustard and lewisite as warfare chemicals, Vietnam and Korea wars have Agent Orange – a powerful herbicide used to remove forest cover and crops. There’s a solid presumptive class action lawsuit about exposure to Agent Orange in 1989 called Nehmer Law. It urged the VA to presumptively recognize that herbicide exposure leads to cancer and other diseases even after the veteran’s time of duty. 38 CFR § 3.309(e) lists herbicide-exposure related diseases coverable under presumptive service connection.
Conditions: Proof of deployment to or near herbicide-exposed areas. The disease must manifest to 10% or more within the first year of discharge from duty. Like POWs, veterans exposed to herbicide agents are exempted from the 90-day service rule.
Key Note: Veterans who were not deployed in or near Vietnam and Korea but were exposed to herbicides testing, storage, or disposal in the US can also be covered under 38 CFR § 3.309(e) presumptions provided that they can show deployment records to such facilities.
Gulf War Veterans
The VA Presumptive List has three categories for Gulf War disabilities: Infectious Diseases, Gulf War Syndrome, and Multi-Symptom Illnesses.
Unlike the former, both Gulf War Syndrome and Multi-Symptom Illnesses are vague and are prone to a high compensation denial rate. Both categories include loosely defined but disabling symptoms that Gulf War veterans can develop after their time of service. If the condition is identifiable by clinical diagnosis, it won’t qualify as Gulf War Syndrome. Multi-Symptom Illnesses, on the other hand, can be diagnosed and justified clinically but without a definite cause.
Conditions: Proof of deployment to Southwest Asia or the Persian Gulf. Diseases or symptoms must manifest to 10% or more within one year of discharge (for Infectious Diseases) or up to December 31, 2021 (for Gulf War Syndrome and Multi-Symptom Illnesses).
Camp Lejeune Water Veterans
38 CFR § 3.309(f) covers chronic conditions attributable to former reservist or National Guard veterans who were exposed to the contaminated water supply at Camp Lejeune during their time of service. If deemed presumptive, compensation will date back to March 14, 2017.
Conditions: Proof of at least 30 days service at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987. Diseases or symptoms must manifest to 10% or more within one year of discharge.
HOW TO WIN A PRESUMPTIVE CONDITION?
If you think you qualify for the VA Presumptive conditions, you must submit:
- Clear out-of-service diagnosis
- (Presumption under Location) DD214 must show deployment to the location
- Nexus letter – to bridge the diagnosis and the disease
- Attach a copy of the VA Presumptive List to give hints that you are trying to get rated by presumptive service connection.
To get those out-of-service disabilities considered as presumptive service-connected, sign up for our Elite Program! Let’s win that Presumptive Disability!
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About VA Claims Insider
VA Claims Insider is an education-based coaching/consulting company. We’re here for disabled veterans exploring eligibility for increased VA disability benefits and who wish to learn more about that process. We also connect veterans with independent medical professionals in our referral network for medical examinations, disability evaluations, and credible independent medical opinions and nexus statements (medical nexus letters) for a wide range of disability conditions.
