Conditions That Are Presumptive For First
If you experience symptoms related to any of the below conditions in your first year out of service, you could be eligible to receive VA disability benefits.;
Note that for your condition to be designated as service-connected and on the presumptive list, it must be rated higher;than a 10% disability.;Whenever possible, laboratory findings should be used to corroborate;the clinical data.
The Presumptive Disability Decision
In 1921 Congress empowered the VA Administrator to establish presumptions of service connection for veterans. Only Congress and the VA Secretary have the authority to establish presumptions. Over time, presumptions have been made to relieve veterans of the burden to prove that disability or illness was caused by a specific exposure that occurred during military service . Since 1921, nearly 150 health outcomes have been service connected on a presumptive basis . In February 2006, Congress codified all regulatory presumptions that VA had put in place to that time.
The current presumptive disability decision-making process for veterans involves several steps and several organizations. The process involves input from many partiesCongress, VA, the National Academies, and stakeholders . Congress has made presumptions itself. In the current model, Congress or stakeholders acting through Congress may call on VA to assess whether a presumption is needed. The VA turns to IOM for completion of a review of the scientific evidence. The findings of that evaluation are consid-
Suggested Citation:Improving the Presumptive Disability Decision-Making Process for VeteransSuggested Citation:Improving the Presumptive Disability Decision-Making Process for Veterans
ered by VA in its presumptive disability decision-making process. Decisions made in the courts have also influenced the current presumptive process.
Presumptive Disability Determined By Ddb
If the applicant has an urgent need, but does not have one of the listed impairments, the IM worker must request DDB to make a presumptive disability determination. The IM worker must take the following actions once a medical professional has attested in writing, with the Medicaid Presumptive Disability form, F-10130, that there is an urgent need for medical services.
Note: If someone has an impairment, but not an urgent need, follow the normal disability application process .
See Process Help, section 9.4 Automated Medicaid Disability Determination for submissions of the forms, if necessary. This process is now automated. However, if the automated process isn’t working, send via fax each of the three forms listed above to DDB for both a presumptive and final disability determination.
DDB will make a presumptive disability finding on these cases and communicate their finding to the local IM agency within three business days of receiving the request for presumptive disability and the Medicaid Disability Application form, F-10112 form .
Federal Regulations generally require the evaluation of certain disabilities after a three month period of recovery from the original injury or medical event It may not be possible to establish disability, either on a presumptive or final basis during that period. However, all applications should be submitted and a complete medical review will be made.
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Va Presumptive List Of Tropical Diseases
Depending on the location in which a veteran served, they may qualify for certain presumptive conditions associated with that location. As long as a tropical disease manifests to 10 percent within 12 months of serving in that tropical location, the illness or disease will be considered service-connected.
The VA presumptive list of tropical diseases which are considered service-connected is as follows:
- Yellow fever
- Any disorders that result from these diseases or originate due to the administered therapy/treatment
Some of these diseases are known to have periods of incubation after infection and before symptoms in which the veteran may not know they have the disease. For the illnesses that are medically known to have a lengthy incubation period beyond the 12-month limit, they will still be considered service-connected.
Other Expedited Social Security Disability Programs
The SSA has several other programs that speed up decision making on certain types of claims. Compassionate Allowances is available for many cancers and some other illnesses that are easily diagnosed and assessed. The Terminal Illness program, or TERI, is available for those with terminal illnesses or who are in hospice. Finally, the Quick Disability Determination program identifies easily determined disability cases through a software program.
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Sensory And/or Communicative Impairments
- An impairment that results in the customer being legally blind, which is defined as central visual acuity 20/200 or less in the better eye with best correction, or visual fields restriction of 20 degrees or less .
Other Visual Impairments
- Other visual impairments that do not result in legal blindness.
Deafness, Primary Communication Visual
- A hearing impairment causing dependence primarily upon visual communication or when combined with blindness, tactile communication
Deafness, Primary Communication Auditory
- The customer uses spoken language primarily for expressive communication and has been identified in the past as being oral deaf or late-deafened adult. This category might include customers who use cochlear implants. These customers might depend primarily on visual communication, such as:
- speech-to-text translation;
Hearing Loss, Primary Communication Visual
- An unaided hearing loss
- of at least 40 dB ), or pure tone average in the more useful ear; or
- between 30 and 39 dB loss , or PTA in the more useful ear with either
- speech discrimination of less than 70 percent, or
- a statement from a physician skilled in diseases of the ear stating a progressive loss of hearing.
The customer’s primary receptive mode of communication is visual . The customer’s primary expressive mode of communication is spoken language .
Hearing Loss, Primary Communication Auditory
An unaided hearing loss
Other Hearing Impairments
A customer who is deaf-blind is someone:
What If You Need Help With Your Review
If you need help applying for a review of your case, you may choose to work with an attorney, a claims agent, or a Veterans Service Organization representative. These professionals are trained and certified, and thus trusted by the VA, to help you with your claim.
If youre thinking about filing for VA disability and dont know where to start, Affleck and Gordon can help. Weve been helping people just like you file for VA disability for over 40 years. Sign up for a free case evaluation here, or call us 373-1649.
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Veterans Exposed To Radiation
For Veterans who participated in radiation risk activities as defined in VA regulations while on active duty, active duty for training, or inactive duty training, the following conditions are presumed to be service connected: all forms of leukemia ; cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract , brain, bone, lung, colon, and ovary; bronchiolo-alveolar carcinoma; multiple myeloma; lymphomas , and primary liver cancer .
To determine service connection for other conditions or exposures not eligible for presumptive service connection, VA considers factors such as the amount of radiation exposure, duration of exposure, elapsed time between exposure and onset of the disease, gender and family history, age at time of exposure, the extent to which a non-service exposure could contribute to disease, and the relative sensitivity of exposed tissue.
Court Precedent Rulings On Inadequate Medical Opinions That Are Binding On Va
A medical opinion is adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 ).
The opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Id. at 124. In order to fully inform the Board’s decision, an opinion must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 .
An examination that merely lists facts and conclusions with no reasoned explanation connecting the two therefore lacks probative weight. Id
Evidence Of A Current Disabling Illness Or Condition
Medical evidence is required for proving existence of a current disabling illness or condition that is suspected or known to be caused from active duty service. The Regional Office will usually want to see the VA healthcare medical file or the current private medical file of the claimant pertaining to the disabling illness or condition that is being claimed. You should be aware that the Regional Office does not want to see medical records that are not pertinent. They are useless and end up bogging down the decision process. It is important that the condition be persistent or long-lasting and not temporary in nature. VA will want to see evidence of the continuity of the symptoms of the disability or the condition from discharge or reasons why that is not the case.
Your current medical records pertaining to the disability may not actually identify a disability associated with your illness or other condition. In other words, your doctors may devote a great deal of information pertaining to diagnosis, treatment and prognosis but not even mention disability. This is also not always useful information as it requires VA to infer from the records that there may be a disability or there may not be.
Conditions Caused By Exposure
As a part of their military duties, service members are often exposed to chemicals, radiation, or other substances that can negatively affect health over time. If a condition develops after a service member leaves the military that is known to be caused by a substance they were exposed to while in the military, then that condition is service-connected.
The service member must prove that they were indeed exposed to the substance. If exposure occurs, service members should obtain documents detailing exactly what they were exposed to, how much, and for how long.
If youre unable to obtain documentation detailing your exposure, your condition will only be considered service-connected if it is on the VA Presumptive List.;;
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What Is A Presumptive Condition
The VA Presumptive list is filled with presumptive conditions that veterans can receive compensation for. A presumptive condition is any disability or illness that the VA presumes to be caused by military service. To qualify for the VA presumptive list, a veteran must have served at least 90 continuous days of active service unless otherwise specified.
All conditions on this list will automatically be considered service-connected unless there is clear evidence that it was not caused by service. For example, typically, a brain hemorrhage that develops 12 months after military service is presumed to be connected. However, if the individual was in a car accident 3 months after leaving the military, which clearly caused a head injury that led to the brain hemorrhage, the condition will not likely be service-connected.
Why Were These Gulf War Presumptions Created
As veterans were coming back from service in the Southwest Asia theater of operations, they were experiencing unexplained illnesses and symptoms.; VA then created a presumption for Gulf War veterans under 38 CFR § 3.317.; The presumption for Gulf War veterans is intended to make it easier for veterans to obtain service connection for conditions they develop due to their service in the Gulf War.
The presumption holds that if a veteran served in the locations listed above between August 2, 1990 and December 31, 2021, and they experience certain signs or symptoms, VA will presume that the veterans Gulf War service caused their condition.; The presumption includes MUCMIs; undiagnosed illnesses; and certain infectious diseases.
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Iculate Matter Exposure And Veterans
U.S. veterans stationed in Southwest Asia beginning in the 1990s were likely exposed to dust, sandstorms, and other environmental hazards containing particulate matter, and thus breathed in these toxic fumes for extended periods of time.
A portion of this particulate matter pollution may have been caused by military burn pits, a method of waste disposal practiced by the U.S. Military and its contractors in the post-9/11 era.; Huge amounts of waste generated by military bases were burned, emitting plumes of toxic smoke containing particulate matter and other dangerous toxins.
As a result, veterans who served in Southwest Asia and surrounding areas are now suffering from a multitude of different illnesses and disabilities.
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Extended Deadline For Gulf War Presumptive List
On September 14th, the VA officially extended the deadline for conditions on the Gulf War Presumptive List.;
The Gulf War Presumptive List allows veterans who served in Southwest Asia and Afghanistan during the Gulf War to receive benefits for certain conditions that develop after their military service.
The list includes conditions like Gulf War Syndrome and multi-symptom illnesses, which must qualify for a 10% rating before the deadline in order to be considered service-connected.;
Not all of the Presumptive Lists have deadlines, but the Gulf War Presumptive List does. Previously, the deadline was December 31, 2021, but in the new regulation published yesterday, the VA pushed back the deadline by 5 years to December 31, 2026.;
This is not the first time the VAs extended this deadline. Since the Gulf War is ongoing, keeping the previous deadline would deny future Gulf War veterans their much-deserved benefits. In the regulation, the VA also acknowledges that the research regarding these conditions remains inconclusive regarding the time of onset of undiagnosed and other illnesses related to Persian Gulf War service.;
Presumptive Service Connection For Particulate Matter Exposure
To be eligible for the particulate matter exposure presumption according to the new VA guidelines, veterans must have a current diagnosis of chronic asthma, rhinitis, or sinusitis that manifested within 10 years of a qualifying period of military service.
This particulate matter presumption impacts veterans who served in Afghanistan, Uzbekistan, Syria, or Djibouti between September 19, 2001 and the present day.; It also encompasses veterans who served between August 2, 1990 and the present in the Southwest Asia theater of operations.; The Southwest Asia theater of operations refers to the following areas:
- The neutral zone between Iraq and Saudi Arabia
- Red Sea
- The airspace above all these locations
Chronic asthma, rhinitis, and sinusitis are just a few of numerous disabilities veterans have developed following service in these areas.; Veterans with illnesses resulting from particulate matter exposure that are not yet considered presumptive by VA can still establish service connection on a direct basis.
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Disability Compensation For Presumptive Conditions
VA presumes that specific disabilities diagnosed in certain veterans were caused by their military service. VA does this because of the unique circumstances of their military service. If one of these conditions is diagnosed in a Veteran in one of these groups, VA presumes that the circumstances of his/her service caused the condition, and disability compensation can be awarded.
The following diseases and conditions are considered to be part of this program:
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 veterans 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 .
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Unreported Accident Injury Or Illness
A discharge medical evaluation may uncover unreported accidents injuries or illnesses. It is not unreasonable to assume that the rigors of military service for certain assignments would result in back injuries, muscle injuries or other joint injuries. For various reasons, these injuries might go unreported. Perhaps illnesses are also unreported that could have a chronic effect many years after discharge.
Where any evidence from service records is lacking, it is up to the claimant to try and come up with enough evidence to provide a reasonable assumption that the existing disability was due to an unreported accident, injury or illness. This is a large burden of proof and it may not always be possible to win these kinds of claims. A sworn statement by the veteran alone without other evidence, is typically not acceptable unless accompanied by documents such as personnel records, squadron or battalion duty records showing temporary duty due to injury or illness or other medical records that might point to complications caused by the unreported accident, injury or illness even though medical records for the primary injury do not exist.