West & Dunn student associate Mitch Wright discusses the impact of the VA’s new regulation regarding respiratory conditions. Mr. Wright is a student associate at West & Dunn and a third-year law student at the University of Wisconsin Law School.Veterans suffering from asthma, rhinitis, and sinusitis as a result of exposure to burn pits and other airborne hazards while deployed in certain countries during the Persian Gulf War will soon find it much easier to obtain service connection and benefits from The Department of Veterans Affairs (“VA”) for those conditions. If you or someone you know is a veteran suffering from one of these respiratory conditions, read on to learn about the announcement, presumptive service connection, and whether you qualify for VA benefits.
What Happened?
In the press release on Monday, August 2, 2021, VA announced that it will begin accepting and processing claims for presumptive service connection for certain respiratory conditions due to exposure to hazardous airborne particulate matter. Veterans who served during qualifying deployments and are suffering from asthma, rhinitis, and sinusitis (including rhinosinusitis) will now be entitled to presumptive service connection for those conditions.
The announcement marks a significant change in VA’s regulations and makes it easier for veterans with these conditions to gain service connection and benefits associated with service. VA published its findings and new proposed regulation on August 5, 2021. VA will formally incorporate as regulation 38 C.F.R. § 3.320 after a period of public comment and revision.
Presumptive Service Connection
Under federal law, to receive benefits from VA for a condition or injury sustained in service, a veteran must ordinarily show three things: (1) evidence of a current disability; (2) evidence of a disease, injury, or event the veteran sustained while in service; and (3) that the current disability was caused or worsened by the in-service disease, injury, or event (referred to as a “nexus” between the disability and in-service event). If the veteran satisfies these conditions, the veteran’s disability is deemed “service connected,” entitling the veteran to VA benefits.
For certain disabilities, VA will assume that the condition, injury, or disease was, in fact, connected to the veteran’s service due to the frequency with which veterans experience the disability as a result of service, or because certain circumstances in service most likely caused the disability. For example, federal law provides for presumptive service connection for certain chronic diseases commonly caused by service, such as arthritis, leukemia, and PTSD, as long as the disease first appeared within one year after service and is at least 10% disabling. The same rule applies for tropical diseases such as cholera and malaria, which a veteran may have contracted due to exposure during deployment in certain countries. VA will also presume service connection for specific events that exposed the veteran to disease, such as for non-Hodgkin’s lymphoma as a result of exposure to Agent Orange during the Vietnam War.
If the condition is presumptively service-connected, the veteran need not prove a nexus, or connection, between the disease and service. The veteran only has to show that he or she served in the specified areas and times and now suffers from a condition that VA has already determined is likely to be caused by that type of service.
VA’s announcement and new regulation will add asthma, rhinitis, and sinusitis (including rhinosinusitis) to its list of presumptively service-connected diseases for qualifying veterans. VA will now presume that these veterans developed these conditions as a result of exposure to harmful airborne particulate matter during service.
The change is a welcome one and comes after VA conducted an extensive study of the common occurrence of veterans claiming service connection for respiratory diseases after serving in these areas. VA found that burn pits and other airborne hazards were so common in those areas at the time that anyone who served there was likely exposed. As veterans of these areas will know, burn pits existed at virtually every base in those areas and commonly burned harmful waste such as chemicals, paint, waste, metal, petroleum, and plastics. Other common airborne hazards include sand, dust, general air pollution, aircraft exhaust, mechanical fumes, and smoke from oil well fires.
Extended exposure to these hazards introduces microscopic particulate matter into the lungs that can directly cause long-term diseases. VA’s investigation found that veterans who served in these areas were almost three times more likely to submit a claim for respiratory disease than veterans who served at the same time but were not deployed. Because these hazards and resultant respiratory conditions are so common, VA’s new regulation will presume that the veteran was, in fact, exposed to this harmful airborne particulate matter, and now suffers from these respiratory diseases as a result.
Do You Qualify for Benefits for a Respiratory Disease Caused by Particulate Matter?
VA’s new regulation will grant presumptive service connection for veterans who satisfy all three of the following conditions:
The veteran suffers from asthma, rhinitis, and sinusitis (including rhinosinusitis);
The veteran’s respiratory symptoms manifested within 10 years after separating from service; and
The veteran served in: (a) the Southwest Asia theater of operations during the Gulf War on or after August 2, 1990; or (b) in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001.
According to VA regulations, The Southwest Asia theater of operations includes: Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. Also note that, as with service connection for any disability, the veteran must have served in the military for at least 90 days to qualify for benefits.
The veteran need not have a current diagnosis of asthma, rhinitis, or sinusitis from a doctor. The veteran can merely state in the claim for benefits that he or she suffers from general respiratory medical conditions, such as “shortness of breath” or “respiratory issues.” VA will process these symptoms in the same way as if the conditions were diagnosed. Note, however, that the veteran’s respiratory symptoms must be continuous and chronic, and cannot be the result of seasonal or allergic flare-ups.
Finally, veterans should be aware that VA may not grant presumptive service connection for these respiratory conditions if: (1) there is evidence showing that the veteran had the respiratory condition prior to service and that the condition was not worsened by service; (2) there is evidence the condition manifested after the veteran separated from service as a result of something other than airborne particulate matter; or (3) the condition was due to the veteran’s own willful misconduct.
What this Means for Veteran Claims
The new regulation is great news for veterans. Those who served in these countries and suffer from difficult respiratory conditions will find it easier to present their case to VA and receive service connection benefits. However, VA is notorious for denying valid claims for small reasons.
The Wisconsin veterans disability claims attorneys at West & Dunn have years of experience and success challenging VA disability decisions and have been able to obtain benefits and compensation for veterans previously denied by VA. If you or a family member want help appealing your claim, challenging a VA decision, or have other questions related to seeking VA benefits, please feel free to call us at (608) 490-9449 or contact us online.