On September 9, 2016, a proposed rule was published in the Federal Register allowing presumptive service-connection for certain diseases associated with Camp Lejeune’s contaminated water supply (click here to learn more).
Typically, proposed rules such as this are open for the public to comment on for 60 days or more, but given the sensitive nature of the topic and the many terminally ill Veterans within the scope of the intended regulation, the Department of Veteran Affairs (VA) opted for a narrow 32-day period for public comment.
How Can a Presumption Benefit Veterans
Typically to establish service-connection for a condition, a Veteran must demonstrate 3 things: (1) an in-service occurrence/injury; (2) a current disability; and, (3) a nexus demonstrating a relationship between the in-service occurrence/injury and the current disability. The nexus is usually the most difficult thing for Veterans to prove.
However, when the VA establishes a legal presumption, it concedes the nexus so long as the other eligibility criteria has been met. Consider the following hypothetical to better understand:
Facts: Veteran served at Camp Lejeune for 31 days in 1963. In 2016, fifty plus years after separating from military service, the Veteran is diagnosed with multiple myeloma (bone cancer).
Without the Legal Presumption: To establish service-connection, the Veteran must demonstrate a nexus between his military service and his cancer. To accomplish this, the Veteran has the incredibly difficult task of obtaining a medical opinion by a doctor linking his cancer to his 31 days he was exposed to contaminated water while at Camp Lejeune.
With the Legal Presumption: To establish service-connection, the Veteran must only demonstrate that he has a current diagnosis of one of the qualifying eight conditions (multiple myeloma) and that he served at Camp Lejeune between August 1, 1953 to December 31, 1987 for 30 or more days.
Veterans, including Reservists and National Guard members, will all be able to avail themselves of the new law when it is finalized.
Where Did the Veteran Have to Serve?
Veterans had to serve at United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina.
When Did the Veteran Have to Serve?
Veterans had to serve at Camp Lejeune or Air Station New River, NC, between August 1, 1953 to December 31, 1987 for 30 or more days – consecutive or non-consecutive. The non-consecutive aspect of the proposed law is critically important to Reserve and National Guard personnel. These personnel would be presumed to have been exposed to the contaminated water during their National Guard or Reserve service, thereby qualifying them as “Veterans” under the statutory definition, which would qualify them for VA benefits to include disability compensation.
What Medical Conditions are Included?
Veterans will receive a presumption of service-connection for purposes of entitlement to VA benefits for the following eight conditions:
- Kidney cancer
- Liver cancer
- Non-Hodgkin’s lymphoma
- Adult leukemia
- Multiple myeloma
- Parkinson’s disease
- Aplastic anemia and other myelodysplastic syndromes
- Bladder cancer
When Should Veterans Apply for VA Benefits?
Immediately!! If a claim for service-connection for one of the proposed presumptive conditions would be denied under current regulations, the VA has stated that the denial will be postponed until the new rule is finalized. The proposed rule should be finalized by the end of 2016 or in the beginning of 2017. The VA is strongly encouraging Veterans eligible under the proposed Rule to apply for benefits before the rule is finalized.
Will There be Retroactive Payments for Past Denials?
No. Unlike the Vietnam Agent Orange presumptive regulations, the proposed contaminated water rule does not have a retroactive provision. Therefore, Veterans previously denied under the current regulations must again reapply or reopen their claims for benefits; and the effective date will be the date the VA receives their newest claim.
How Will the Presumptive Regulation be Implemented?
Under the proposed ruled, the added regulations will be implemented in the same manner as other presumptive conditions under the already existing presumptive regulations found at 38 CFR 3.307 and 3.309.
What Conditions are NOT Included?
The Agency for Toxic Substances and Disease Registry (ATSDR) collaborated with the VA when developing the proposed presumptive conditions. Following this collaboration, the VA conducted its own independent review of the scientific evidence and concluded (to the dismay of thousands of Veterans and their dependents) that the evidence was insufficient to establish a positive association between the contaminated drinking water and the development of the following conditions:
- Breast cancer
- Lung cancer
- Esophageal cancer
- Renal toxicity
- Hepatic steatosis
- Female infertility or miscarriage