Presumptive Conditions

Document, Document, Document. 

Anyone who has ever served has heard that word repeatedly. And any veteran who has ever filed a disability claim with the VA has come to understand the true meaning of it. However, there are some situations when VA forgoes documentation in favor of that word that we were all told never to use…assumption or, more accurately in this case, presumption. Using an if/then formula reminiscent of a standardized test, federal regulation says that if a veteran has one of the conditions I’m about to mention, then VA is to presume that condition is service connected, even if there is no direct documentation to prove that the condition resulted from or was aggravated by military service. These conditions are called “presumptive.”

The basic list of presumptive conditions, which can be found in CFR 38 3.309, includes such conditions as Hansen’s disease (aka leprosy), Endocarditis (aka inflammation of the heart lining), Leukemia, Bronchiectasis (aka a loosening of the airways that prevents them from clearing away mucus), malignant tumors, and about 35 other conditions. It also includes ALS, also known as Lou Gehrig’s disease, which was added in 2008 (CFR 38 3.318). This list applies to any veteran who serves in peace or wartime after 1 January 1947 and any vet who served 90 consecutive days in wartime prior to 1947.

There are also some presumptive conditions that only apply to certain groups of veterans. For example:

  • Former Prisoners of War: conditions such as “Post-traumatic Osteoarthritis” or
  • Veterans who served in tropical environments: conditions such as Malaria or Yellow Fever (some of the conditions on the tropical list count if they were acquired because of treatment designed to prevent and/or treat these conditions as well) or
  • Veterans exposed to radiation: such as those who served in Paducah, Kentucky, in the early 90s, and now have cancer or
  • Gulf War/SWA/Afghanistan vets: who have conditions, including “undiagnosed conditions” with symptoms such as skin, respiratory, and neurological disorders, which last for at least six months and have no cause other than service in theater. (A full list of these symptoms can be found in CFR 3.317 or here.)

Now, this list isn’t an entirely blank check. Veterans with these conditions must meet a couple of requirements. (Come on, it’s VA, you expected this, right?) The first one is that the condition must have “manifested to a compensable degree,” meaning 10% or more. Also, it has to reach this compensable limit within the time period required in CFR 38 3.307 or, for the Gulf War/SWA/Afghanistan vets, CFR 38 3.317. With only a few exceptions, this time period is within a year of date of separation or, if service continues after the war period, within a year of the end of the war period. Exceptions are:

  • Hansen’s disease and tuberculosis, which have three years to manifest at the 10% level,
  • Multiple Sclerosis (MS), which has seven years,
  • Gulf War/SWA/Afghanistan related conditions, which must present before 31 Dec 2016,
  • Many (but not all) of the conditions that could occur due to “exposure to certain herbicide agents,” namely Agent Orange and the like, which are considered service-connected regardless of when they appear and
  • All of the former POW conditions, which are also service-connected regardless of when they appear.

A few other things that you should also be aware of regarding presumptive conditions:

  • You still have to provide medical records showing symptomology, testing, and/or other medical evidence of the claimed condition.
  • In certain instances, claims can be denied if they can find proof that a veteran was nowhere near where the agent was used or if the condition can be directly attributed to something other than service, such as a specific medication taken after separation or alcohol abuse.
  • VA recently rejected a request to add brain cancer, lung cancer, and migraines to the list of presumptive conditions for Gulf War vets.
  • Gulf War veterans can get a free medical evaluation for conditions on the presumptive list. More about this evaluation can be found here.
  • There is a bit more fine print about each presumptive category, which I didn’t have room to list here, so if you’re thinking of applying for one of the categories, I would look up the relevant CFR section or make an appointment with your local Veterans Services Office to get some more information/assistance with your specific situation.

As with most government rules, items can be added (or possibly removed) from the list, as they did with ALS, or dates of “manifestation” can be extended, such as was recently done with the Gulf War illnesses. As such, it’s important to keep an eye out on veteran news sources in case there is a key change. If you belong to a veterans’ group, such as IAVA, DAV, VFW, AMV, or American Legion, they will likely include any updates in their newsletters or other publications. Also, sometimes VA sends changes out to those in their registries, such as the Gulf War or the new Burn Pit registry, so there are advantages to both signing up for those and making sure VA has your current address.

© 2014 – 2019, Sarah Maples LLC. All rights reserved.

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