On August 5, 2021, the Department of Veterans Affairs issued a regulation creating a new presumption for service connection for chronic respiratory conditions as a result of particulate matter exposure associated with active military service in the Southwest Asia theatre of operations. The Southwest Asia theater of operations refers to Iraq, Bahrain, Qatar, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, the United Arab Emirates, Oman, the Gulf of Oman, the Persian Gulf, the Gulf of Aden, the Red Sea, the Arabian Sea, and the airspace above these locations.
After significant research and investigation, VA found that there were several commonly claimed respiratory conditions among veterans from the Gulf War Era and determined that assigning a presumption to these conditions would make it easier for Gulf War Veterans to obtain an award of service connection.
How Do I Take Advantage of the New Regulation?
The new regulation applies to veterans who served on active military service in the Southwest Asia theater of operations during the Persian Gulf War beginning August 2, 1990. Additionally, the regulation applies to veterans who served on active military service in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War.
The new regulation applies to claims for service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis, associated with presumed exposure to fine, particulate matter.
The claimed condition must be diagnosed within ten (10) years of a veteran’s separation from active-duty service.
There is no requirement for severity of the claimed condition or length of time in a specific country. However, the claimed condition must meet the requirements of chronicity and continuity under 38 C.F.R. § 3.303(b). Additionally, the minimum active duty requirement under 38 C.F.R § 3.12a still applies.
Presumptive service connection reduces some of the requirements necessary for veterans to demonstrate that an injury or illness is directly connected to their time in the military. In this case, the new regulation provides a presumption for the nexus element of service connection. Therefore, a veteran need only demonstrate that he or she experiences one of the specified conditions, that he or she served during the relevant time, and served in the relevant country during the Gulf War.
What Should I Do If I Have a Claim for Asthma, Sinusitis, or Rhinitis?
The new regulation automatically applies to applications for service connection received by VA on or after August 5, 2021 or pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021.
If you filed a claim for asthma, sinusitis, or rhinitis, prior to August 5, 2021 and were denied, you will need to file a new claim. More than 200,000 Gulf War veterans filed a claim for asthma between 1990 and March 2021. While approximately 51% of asthma claims were granted, many thousands were not. The same is true for veterans who filed claims for sinusitis, and rhinitis. These veterans can now file a new claim for those same illnesses.
For More Information:
Rashida I. Sims, Esq. is an attorney with Gang & Associates and a former attorney with the Board of Veterans Appeals. Her practice is focused on representing veterans before the regional offices and the Board of Veterans Appeals.