VA has proposed extending presumptive service connection to veterans who have served in Southwest Asia Theater of Operation on or after September 19, 2001 and who develop one of the following infectious diseases:
1. Brucellosis
2. Campylobacter jejuni
3. Coxiella burnetii (Q fever)
4. Malaria
5. Mycobacterium tuberculosis
6. Nontyphoid Salmonella
7. Shigella
8. Visceral leishmaniasis
9. West Nile Virus.
With the exception of Malaria, Mycobacterium tuberculosis, and Visceral leishmaniasis, the infectious disease 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.
Malaria must have become manifested to a degree of 10 percent of more within one year from the 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 Mycobaterium tuberculosis or Visceral leishmaniasis.
If the regulation passes, these diseases will be the first diagnosed illnesses entitled to presumptive service connection associated with service in the Persian Gulf.
Nancy L Foti Veterans Benefits Claims Persian Gulf and Afghanistan veterans, presumptive service connection, veterans disability benefits
Many veterans who served in Operations Desert Shield and Desert Storm are suffering from a range of physical disabilities, chronic ailments, and unexplained illnesses which may be due to an “undiagnosed illness.” Thousands of veterans who served in the Gulf War have come down with a pattern of symptoms that include rashes, joint and muscle pain, sleep issues, and gastrointestinal problems. However the cause of these problems remains unclear.
What is clear is that many Gulf War veterans are suffering from very real physical problems, and they are concerned along with their families about the long and short term consequences of these health problems. Many of these veterans suffering from what’s commonly called “Gulf War illness” have turned to the Department of Veterans Affairs (“VA”) for assistance. Congress has recognized, however, that “many ill Gulf veterans report having been told when they sought medical treatment that their ailments were ‘all in their heads.’” Report of the Special Investigation Unit of Gulf War Illness, 105th Congress. See http://www1.va.gov/rac-gwvi/docs/USSenate_ReportoftheSIUonGulfWarIllnesses_ReportNo105-39PartI_1998.pdf
The Washington Post has recently reported that in an effort to change this attitude on the part of VA, Secretary of Veterans Affairs, Eric K. Shinseki, has confirmed that VA will be re-examining the disability claims of what could be thousands of Gulf War veterans suffering from ailments. VA does not have an estimate of the number of veterans who may be affected, but it could be in the thousands. See http://www.washingtonpost.com/wp-dyn/content/article/2010/02/25/AR2010022506625.htmlVA also plans to improve training for medical staff working with Gulf War veterans and a review of “Gulf War illness” regulations to ensure that veterans receive the compensation they are entitled to by law.
Nancy L Foti Veterans Benefits Claims Gulf War veterans, Undiagnosed Illnesses, veterans disability benefits
Many veterans pursuing a claim for VA benefits have already been granted Social Security Benefits or are pursuing Social Security benefits for the same disability. A common belief among veterans is that VA should make the same conclusions and/or decision as the Social Security Administration (“SSA”). For instance, many veterans believe that because SSA found them totally disabled, that decision should be binding on the VA, and therefore VA should also find them totally disabled. This is a common misconception. VA is a separate administrative agency form SSA, and therefore is bound by different regulations. Simply put, SSA regulations do not apply to VA claims. See Beaty v. Brown, 6 Vet.App. 532 (1994) (noting that there is not statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims.) In addition, there are significant differences between SSA regulations and VA regulations. For example, SSA and VA define disabilities differently. Under SSA law 42 U.S.C. § 423(d) and 20 C.F.R. §404.1509, a disability need not be reasonably likely to last a lifetime. VA regulations on the other hand, do require that it be reasonably certain that a disability will continue throughout the life of a person. 38 U.S.C. §1502(a)(1) and 38 C.F.R. § 3.340(b).
While VA is not legally bound to follow SSA decisions, however, it is obligated to take the SSA decisions into consideration when rendering a decision on a claim and provide adequate reasons or bases for why the SSA conclusions are not accepted. Brown v. Derwinski, 2 Vet.App. 444 (1991). Moreover, once VA has been put on notice that SSA documents exist, and those documents are pertinent to the VA claim, VA has a duty to assist the veteran in obtaining the SSA records prior to adjudicating the claim. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992).
Nancy L Foti FAQs, Veterans Benefits Claims veterans disability benefits