Camp Lejeune Presumption of Service Connection Proposed Regulation

On September 9, 2016, the Department of Veterans Affairs (DVA) proposed regulation governing the presumption of service connection for veterans stationed at Camp Lejeune, North Carolina, between August 1, 1953 and December 31, 1987. A link to the PDF copy of the proposed regulation can be located at https://www.gpo.gov/fdsys/pkg/FR-2016-09-09/pdf/2016-21455.pdf

The DVA set a thirty (30) day public comment period pursuant to the Administrative Procedure Act (APA) so the expectation is the final rule will be published on or about October 11, 2016.

For simplicity purposes, a veteran/claimant filing a claim for one of the covered conditions below will need to satisfy the following elements to be entitled to the proposed presumption:

(1) Have service at Camp Lejeune for at least thirty-days (30) between August 1, 1953 and December 31, 1987.  In calculating the 30 days, the DVA will consider both consecutive and non-consecutive days (for example two separate TDYs of 15 days at Camp Lejeune will satisfy that regulatory element).  Reserve component and National Guard on inactive duty for training or active duty for training for at least 30 days would also qualify for this specific presumption;

(2) The location of Camp Lejeune covers “the entirety of the United States Marine Corps Base Camp Lejeune border” to include Marine Corps Air Station New River;

(3) Has been diagnosed with one of the following conditions: (a) kidney cancer; (b) liver cancer; (c) non-Hodgkin’s lymphoma; (d) adult leukemia [not otherwise limited to B-Cell/CLL like the AO presumption]; (e) multiple myeloma; (f) Parkinson’s disease; (g) bladder cancer; (h) aplastic anemia; and (i) myelodysplastic syndromes.

In terms of effective date of award, the proposed regulation sets an effective date of award as the date of final rule and not retroactively.  Accordingly, if a veteran has a pending claim or a prior final claim previously denied for one of the above disabilities, I highly recommend that the veteran/claimant speak to there VSO.  I suspect, for most, the easiest mechanism will be to file a Fully Developed Claim with a Disability Benefit Questionnaire (http://benefits.va.gov/COMPENSATION/dbq_ListByDBQFormName.asp) completed for the listed condition immediately after the proposed rule becomes final.

Finally, I realize many folks have been in a gentle disagreement with the DVA regarding their claim for service connection related to Camp Lejeune for years and are concerned about losing an effective date of award.  If this is your concern and you just want to triage the issue with me (there will be a discussion of direct service connection and available medical evidence), please don’t hesitate to contact me at (732) 382-6070 or via electronic mail at sdirector@finkrosner.com.

 

M21-1 Updated (and Uploaded Below) for Camp Lejeune, December 30, 2015

On December 17, 2015, I blogged about the VA’s intent to propose regulations regarding presumptive conditions for veterans exposed to VOCs at Camp Lejeune.  I noted in a follow-up blog that “news sources quoted VA officials as stating that it may take up to one year for any future proposed regulation to become final.”

On December 30, 2015, the Department of Veterans Affairs amended the provision of the VA Adjudication Procedures Manual M21–1 [hereinafter “M21-1”] regarding Camp Lejeune Claims.  The M21-1 is the VA’s internal procedural manual for the use of field personnel.  As the Court of Appeals for the Federal Circuit noted, “the VA Adjudication Procedure Manual, M21–1, is dynamic rather than static. Manual provisions are amended, added and deleted on a continual basis for any number of policy, legal or administrative reasons.”  Fugere v. Derwinski, 1 Vet. App. 103, 109 (1990) aff’d, 972 F.2d 331 (Fed. Cir. 1992).  As the Court of Appeals for Veterans Claims has frequently commented “VA handbooks, circulars, and manuals may have the force and effect of law if they prescribe substantive rules.”  Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (internal quotations omitted).  In simplified terms, the M21-1 is the controlling  guidebook that VA rating personnel use to determine how a claim should be adjudicated.

The updated guidance on processing Camp Lejeune claims can be found at the following link, M21-1 (Camp Lejeune December 30, 2015).  In essence, the VA will continue to process claims and appeals for the eight conditions noted in the December 17, 2015 Press Release (kidney cancer, non-Hodgkin’s lymphoma, multiple myeloma, leukemias, liver cancer, Parkinson’s disease, scleroderma, and aplastic anemia/myelodysplastic syndromes) on a direct-service connection basis if there is competent medical evidence in the record to suggest a correlation between the claimed condition and exposure in service.  In the absence of competent medical evidence for one of the eight conditions listed above, the VA will stay (i.e. defer a decision) until the final regulation creating a presumption of service connection is published in the Federal Register.  For all conditions not otherwise noted in the December 17, 2015 Press Release, the VA will continue to process those claims in accordance with the regular regulations governing direct service connection . . . (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; (3) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.

If you have questions concerning possible entitlements under Title 38 for Camp Lejeune veterans, please don’t hesitate to contact us at (732) 382-6070 or via email at sdirector@finkrosner.com.

 

 

 

More Information Regarding Presumptive Conditions Re: Camp Lejeune

On December 17, 2015, we blogged about the VA’s intent to propose regulations regarding presumptive conditions for veterans exposed to VOCs at Camp Lejeune.  Other news sources quoted VA officials as stating that it may take up to one year for any future proposed regulation to become final.  Frankly, this is likely a realistic timeline given the requirements of the Administrative Procedure Act (APA).

In a VA “Blog” at VAntage, the agency provided some additional information.  This included the following quote, “If a claim for service connection for one of the proposed presumptive conditions would be denied under current regulations, the denial will be stayed until VA issues its final regulations.”  I’ll note, the term to “stay” an action is a very specific legal term of art that is really not a composite of Title 38.  Hopefully, in the near future the VA will release additional information.  More information can be found at the following link:

VA plans to propose expanded disability benefits eligibility for Veterans exposed to contaminated water at Camp Lejeune

Personally, I take the position that the veteran should continue to advance claim without regard of any pending regulatory change.  Hopefully, in the near future the Agency for Toxic Substance and Disease Registry (ATSDR) will publish the scientific studies that the VA is relying upon to formulate their decision-making process.  This may provide both VA and non-VA medical examiners with additional information so that the veteran can be service connected on a direct basis without the need to wait until final promulgation of the regulation governing presumptive conditions.  Information from the ATSDR regarding Camp Lejeune can be found at the following link: ATSDR – Camp Lejeune.

If you have questions concerning possible entitlements under Title 38 for Camp Lejeune veterans, please don’t hesitate to contact us at (732) 382-6070 or via email at sdirector@finkrosner.com.

 

VA Announces Intent to Propose Presumptive Conditions Related to Camp Lejeune

On December 17, 2015, the Department of Veterans Affairs announced an intent to propose regulatory changes to Title 38 that would grant presumptive status for certain conditions related to exposure to volatile organic compounds (VOCs) while stationed at Camp Lejeune, NC.  The noted conditions were the following: (1) Kidney Cancer; (2) Liver Cancer; (3) Non-Hodgkin Lymphoma; (4) Leukemia; (5) Multiple Myeloma; (6) Scleroderma; (7) Parkinson’s Disease; and (8) Aplastic Anemia / Myelodysplastic Syndromes.  Copy of the press release can be  or downloaded at Press Release Camp Lejeune December 2015 or found at http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2743.

The covered period of time was reflected as August 1, 1953 to December 31, 1987.

If you have questions concerning possible entitlements under Title 38 for Camp Lejeune veterans, please don’t hesitate to contact us at (732) 382-6070 or via email at sdirector@finkrosner.com.

 

Link to Senate Committee on Veterans’ Affairs – Toxic Chemical Exposure

The Senate’s Committee on Veterans’ Affairs [hereinafter “Committee”] commonly holds hearings on a variety of issues effecting veterans. Most recently, the Committee held a hearing entitled, “Examining the Impact of Exposure to Toxic Chemicals on Veterans and the VA’s Response.” The testimony submitted at the hearing provides a good overview of issues pertaining to Agent Orange (2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD)) exposure during the Vietnam war and volatile organic compound (VOC) exposure at Camp Lejeune, North Carolina. 

For those interested, a link to both the oral and written testimony can be found at http://www.veterans.senate.gov/hearings/exposures09292015.