Maryland Bar Bulletin
Publications : Bar Bulletin : May 2010

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 BAR BULLETIN FOCUS: VETERANS AFFAIRS/MILITARY LAW

One of the most frequent questions that arise in the area of veterans’ benefits concerns the benefits available to the men and women who have served in the recent armed conflicts involving the Persian Gulf and Afghanistan. Therefore, it is important to be aware of both the existing rules and recent proposals by the Department of Veterans Affairs to recognize new presumptions based upon such service.

Under existing laws and regulations, service connection may be established on a presumptive basis for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more under relevant rating criteria not later than September 30, 2011. A “qualifying chronic disability” for purposes of these rules is a chronic disability resulting from (a) an undiagnosed illness, (b) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary of the Department of Veterans Affairs determines in regulation warrants a presumption of service connection. Objective indications of a chronic disability include both “signs”, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss or menstrual disorders. Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during such service; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs.

Until recently, the Department of Veterans Affairs has not recognized any diagnosed illness as warranting presumptive service connection under these rules. Recently, however, the Department of Veterans Affairs has proposed extending a presumption of service connection to veterans who have served in the Southwest Asia theater of operations or Afghanistan during certain periods (on or after September 19, 2001), and who subsequently develop one of nine infectious diseases known to have long-term adverse health effects. These nine conditions are: Brucellosis; Campylobacter jejuni; Coxiella burnetii (Q fever); Malaria; Mycobacterium tuberculosis; Nontyphoid Salmonella; Shigella; Visceral leishmaniasis; and West Nile virus. With three exceptions, these nine diseases must have become manifest to a degree of 10 percent or more within one year from the date of separation from a qualifying period of service. The exceptions include malaria, which must have become manifest to a degree of 10 percent or more within one year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more.

None of these nine diseases shall be presumed service-connected if there is affirmative evidence that the disease was not incurred during a qualifying period of service; or that the disease was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from a qualifying period of service and the onset of the disease; or that the disease is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs.

As these proposals represent the first diagnosed illness recognized by the Department of Veterans Affairs as being presumptively associated with service in the Persian Gulf, their significance cannot be overstated. The fact that it also provides recognition for service in Afghanistan is also significant. However, it is important to remember that these are only proposed changes. Moreover, the proposed rulemaking specifically requested comments on various matters related to the presumptive periods for visceral leishmaniasis and tuberculosis. Granted, it is highly probable that all of the aforementioned conditions will ultimately be recognized by regulation as being presumptively associated with herbicide exposure. Nevertheless, individuals interested in these developments should keep careful track of the rules ultimately adopted by regulation.

John Kitlas has worked as an attorney with the Department of Veterans Affairs, Board of Veterans Appeals, since 1998.


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Publications : Bar Bulletin: May 2010

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