Posted by Gregory M. Rada | March 2, 2017 | Disability Compensation,Legal Update
After a long wait, the Department of Veterans Affairs has finalized and released regulations that establish a presumption of service connection for certain conditions caused by contaminants in the water supply at the U.S. Marine Corps Base Camp Lejeune, North Carolina. 
The amended regulations apply to veterans, former reservists, and former National Guard members who served for at least 30 days at Camp Lejeune between August 1, 1953, and December 31, 1987. During that time, service members were exposed to water contaminated with the toxic chemicals trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride. These toxic chemicals contaminated the water supply to housing facilities, recreational facilities, and the base hospital, and reached service members through inhalation, skin contact, and ingestion of the contaminated water.
The new regulations create significant and important benefits by allowing veterans with certain conditions to by-pass the otherwise difficult and time-intensive requirement of establishing that their condition is service-connected.
The Eight Presumptive Conditions
Under the amended regulations, there are eight conditions for which the VA will presume service connection. If a veteran is diagnosed with one of these conditions, and he or she has evidence of at least 30 days of service at Camp Lejeune during the relevant time-period, then the VA will presume that the condition is related to exposure to the contaminants. The eight presumptive conditions are:
There is no requirement that the eight conditions manifest by a certain date after exposure or after service. Rather, to qualify, the diseases must “have become manifest to a degree of 10 percent or more at any time after service.” (To be codified at 38 CFR 3.307(a)(7)(ii)).
Under the amended regulations, the presumption of service connection for these eight conditions applies unless there is “affirmative evidence” to establish that the individual was not exposed to contaminants in the water supply during his or her service. The regulation does not state what qualifies as “affirmative evidence.”
Despite requests from advocacy groups and individual veterans, the VA determined that the scientific evidence is not strong enough to include other diseases on the presumptive condition list. Notably, this does not mean that a veteran with an unlisted disease cannot receive disability compensation for that disease if he or she was exposed to contaminated water at Camp Lejeune. For example, a veteran suffering from scleroderma, or a neurodegenerative disease, or a type of cancer not listed above, may still prove direct service connection for that disease. To prove direct service connection, a veteran must show evidence of a current disease or disability, evidence of exposure to contaminated water at Camp Lejeune, and a medical connection between the condition and the water, supported by medical evidence.
The amended regulations do not provide disability compensation benefits for any family members or civilians who may have been exposed to contaminated water at Camp Lejeune and later developed any of the eight listed conditions. The regulations only apply to qualifying veterans, former reservists, or National guard members with service during the relevant time frame.
30 Day Requirement
To qualify for a presumptive service connection, the regulation requires at least 30 days of service at Camp Lejeune. The 30 days can be consecutive or cumulative. The 30-day requirement is consistent with the Camp Lejeune Act, which requires 30 days of service at Camp Lejeune for a veteran to be entitled to health care based on that service.
In its comments regarding the rule, the VA noted that when calculating the 30 days, it intends to exclude time served at any satellite camps and time served on any vessels docked at Camp Lejeune. For purposes of the regulation “service at Camp Lejeune” includes any service “within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Stations New River, North Carolina during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records.” (38 CFR 3.307(a)(7)(iii)).
It is unclear how many veterans might be affected by the decision to exclude service in adjacent areas or on vessels docked at Camp Lejeune that might have been supplied with contaminated water. Again, however, nothing in the new regulations stops a veteran with less than 30 days of service from establishing direct service connection for any disease alleged to have been caused by contaminated water.
Effective Date
The new regulations will become effective 60 days after publication in the Federal Register (which happened on January 13, 2017), or following the conclusion of the 60-day congressional review, whichever is later. The regulations will apply to claims received on or after the effective date of the final rule and to claims pending with the VA on that date.
The amended regulations do not apply retroactively to claims that have been finally decided. That said, if the VA previously denied your claim, you may file a new claim to obtain a new determination of entitlement under the final regulations.
Veterans who believe they will qualify for presumptive service connection should apply as soon as possible to ensure the earliest effective date, and most amount of back-pay, as possible.
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