Overview
In This Section |
This section contains the following topics:
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1. General Information on Qualifying Disabilities Associated With Service in Southwest Asia
Introduction |
This topic contains general information on qualifying disabilities associated with service in Southwest Asia, including
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Change Date |
August 1, 2017
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IV.ii.2.D.1.a. Provisions of the Persian GW Veterans’ Benefits Act |
On November 2, 1994, Congress enacted the “Persian Gulf War Veterans’ Benefits Act,” Title I of the “Veterans’ Benefits Improvements Act of 1994,” Public Law (PL) 103-446.
The PL added a new section, 38 U.S.C. 1117, authorizing the Department of Veterans Affairs (VA) to compensate any Gulf War (GW) Veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which manifested either
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IV.ii.2.D.1.b. Provisions of the GW Veterans’ Act of 1998 |
The “Persian Gulf War Veterans’ Act of 1998,” PL 105-277, authorized VA to compensate GW Veterans for diagnosed or undiagnosed disabilities that are determined by VA regulation to warrant a presumption of service connection (SC) based on a positive association with exposure to one of the following as a result of GW service:
Note: This PL added 38 U.S.C. 1118.
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IV.ii.2.D.1.c. Provisions of the Veterans Education and Benefits Expansion Act of 2001 |
The “Veterans Education and Benefits Expansion Act of 2001,” PL 107-103, expanded the definition of “qualifying chronic disability” under 38 U.S.C. 1117 to include, effective March 1, 2002, not only a disability resulting from an undiagnosed illness but also
Reference: For more information on MUCMIs, see M21-1, Part IV, Subpart ii, 2.D.1.i.
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IV.ii.2.D.1.d. Provisions of 38 CFR 3.317 |
38 CFR 3.317 implements 38 U.S.C. 1117 by defining certain key terms and providing for presumptive SC for
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IV.ii.2.D.1.e. Definition: Qualifying Veteran Under 38 CFR 3.317 |
A qualifying Veteran, under 38 CFR 3.317, is a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the GW period.
Per 38 U.S.C. 101(33), the GW period extends from August 2, 1990, through a date yet to be determined by law or Presidential proclamation.
Reference: For a definition of the Southwest Asia theater of operations, see
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IV.ii.2.D.1.f. Definition: Southwest Asia Theater of Operations |
The Southwest Asia theater of operations, as defined in 38 CFR 3.317(e)(2), includes the following locations and the airspace above them:
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IV.ii.2.D.1.g. Definition: Qualifying Chronic Disability Under 38 CFR 3.317 |
Qualifying chronic disability, under 38 CFR 3.317, means a chronic disability resulting from any of the following or any combination of the following:
References: For more information on
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IV.ii.2.D.1.h.Definition: Undiagnosed Illness |
An undiagnosed illness is a type of chronic qualifying disability where qualifying signs and/or symptoms cannot be attributed to any known clinical diagnosis by history, physical examination and laboratory tests.
References: For more information on
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IV.ii.2.D.1.j.Definition: FGIDs |
Functional gastrointestinal disorders (FGIDs) are a group of diagnosed conditions that are a type of MUCMI. They are characterized by chronic or recurrent symptoms that are
Characteristic FGID symptoms include
FGID diagnoses include but are not limited to
Diagnosis of a FGID under generally accepted medical principles normally requires
Important: FGIDs do not include structural gastrointestinal diseases, such as inflammatory bowel disease (such as ulcerative colitis or Crohn’s disease) and gastroesophageal reflux disease, as these conditions are considered to be organic or structural diseases characterized by abnormalities seen on x-ray, endoscopy, or through laboratory tests.
Note: The effective date of the amendment to 38 CFR 3.317(a)(2)(i) to include FGIDs was July 15, 2011.
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IV.ii.2.D.1.k. Examination Requirement for MUCMIs |
In general, when a Veteran with GW service claims symptoms fitting the description of an MUCMI, as described in 38 CFR 3.317(a)(2)(ii), before proceeding with a decision, ensure that an examination with a medical opinion has been obtained.
The opinion must classify the symptom as an MUCMI without conclusive pathology or etiology before SC under 38 CFR 3.317 can be awarded.
Exception: If the diagnosis shown in medical records involves one of the MUCMIs described in 38 CFR 3.317(a)(2)(i)(B) (chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders), then SC is appropriate and a VA examination may only be necessary to determine current level of severity.
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IV.ii.2.D.1.l. Partially Understood Chronic Multi-symptom Illnesses |
Chronic multi-symptom illnesses of partially explained etiology and pathophysiology, such as diabetes and multiple sclerosis, are not considered medically unexplained and cannot be considered a qualifying chronic disability for purposes of 38 CFR 3.317.
When adjudicating conditions with partially explained etiology, SC can only be awarded on another basis such as direct SC under 38 CFR 3.303 or presumptive SC under 38 CFR 3.307 and 38 CFR 3.309(a).
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IV.ii.2.D.1.m. Presumptive Period for Manifestation of Disability Under 38 CFR 3.317 |
The presumptive period for manifestation of qualifying chronic disability under 38 CFR 3.317
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IV.ii.2.D.1.n. Signs and Symptoms of Undiagnosed Illnesses or MUCMIs |
38 CFR 3.317 specifies the following 13 categories of signs or symptoms that may be manifestations of an undiagnosed illness or an MUCMI:
Notes:
Example: Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 CFR 3.317 since it is a diagnosable condition. If claimed, sleep apnea must be considered on a non-presumptive SC basis.
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IV.ii.2.D.1.o. Determining Chronicity for Qualifying Disabilities |
To establish SC for a disability under 38 CFR 3.317, the claimed disability must be chronic, that is, it must have persisted for a period of six months.
Measure the six-month period of chronicity from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first manifested.
Notes:
Reference: For a discussion on the types of evidence that may be accepted to establish “objective indications” of a chronic disability, see M21-1, Part IV, Subpart ii, 2.D.2.c–e.
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IV.ii.2.D.1.p. Presumptive SC for Infectious Diseases Under 38 CFR 3.317(c) |
Effective September 29, 2010, presumptive SC is established under 38 CFR 3.317(c) for the infectious diseases listed in the table below if
Note: The one year time period specified in the table below means within one year from the date of separation from a qualifying period of service as specified in 38 CFR 3.317 (c)(3)(ii).
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IV.ii.2.D.1.q. Considering Long-Term Health Effects Potentially Associated with Infectious Diseases |
As specified in 38 CFR 3.317(d), if a Veteran who is presumed SC for a disease listed in column A of the table is diagnosed with a disease in column B within the time period specified in the table (if no time period is specified, at any time), VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the Veteran having had the associated disease in column A.
Note: This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease.
Reference: For more information on requesting a medical opinion, see M21-1, Part III, Subpart iv, 3.A.7.
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IV.ii.2.D.1.r. Considering Direct SC for Brain Cancer |
Although existing regulatory provisions offer no basis for establishing presumptiveSC for brain cancer by reason of a potential association with GW environmental hazard exposure, claims processors must follow the developmental procedures outlined in M21-1, Part IV, Subpart ii, 1.E.3 to determine if qualifying GW Veterans may warrant direct SC for brain cancer.
Under the authority of 38 CFR 3.303, VA will approve direct SC in any case in which the evidence of record includes
Reference: For more information on determining direct SC, see M21-1, Part IV, Subpart ii, 2.B.
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2. Rating Claims for SC for Qualifying Disabilities Under 38 CFR 3.317
Introduction |
This topic contains information about rating claims for SC for qualifying disabilities under 38 CFR 3.317, including
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Change Date |
July 14, 2016
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IV.ii.2.D.2.b.Information Required to Decide the Issue of SC for a Chronic Qualifying Disability |
The following information is required to determine whether SC for a chronic qualifying disability is in order:
Reference: For more information on development requirements for claims based on service in Southwest Asia, see M21-1, Part IV, Subpart ii, 1.E.
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IV.ii.2.D.2.c. Role of the Veteran’s Testimony in Establishing Signs or Symptoms |
When considering disabilities under the provisions of 38 CFR 3.317, a Veteran’s lay statement describing his or her own symptoms of a qualifying disability takes on a greater importance than when considering other claims under direct SC principles.
First, as indicated in M21-1, Part IV, Subpart ii, 1.E.2.a, the threshold for ordering an examination based on claims under 38 CFR 3.317 is low, as the claimant’s statement alone, describing symptoms, may be sufficient to trigger an examination.
Second, lay evidence describing symptoms unsupported by clinical findings is sufficient to establish SC under 38 CFR 3.317 as long as there is medical evidence showing that “no medical diagnosis” is present.
Important: The Federal Circuit, in Joyner v. McDonald, 766 F.3d 1939 (Fed. Cir. 2014) held that “neck pain,” that was unsupported by physical examination findings or laboratory tests, may establish an undiagnosed illness that causes a qualifying chronic disability. This demonstrates the importance of the Veteran’s testimony, which is essentially all that is needed for the examiner to characterize the symptoms as an “undiagnosed illness” and for SC to be granted, if all other SC requirements are otherwise met.
References: For more information on
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IV.ii.2.D.2.d. Role of Third Party Lay Evidence in Establishing Signs or Symptoms |
Lay statements from third party lay witnesses that are competent and credible may help establish the presence of objective indications of a chronic disability.
Such statements may cover
Reference: For more information on when evidence is competent and credible, see M21-1, Part III, Subpart iv, 5.A.
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IV.ii.2.D.2.f.Considering VHA Persian Gulf Health Registry Examinations |
In all cases when the Veteran has been examined as part of the Veterans Heath Administration (VHA) Persian Gulf Health Registry, ensure those results have been obtained and considered when rating the GW-related issues.
Reference: For more information on developing for the Gulf War Registry examination, see M21-1, Part IV, Subpart ii, 1.E.1.e.
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IV.ii.2.D.2.g. VA Examiner’s Determination of Disability Pattern for Claims Based on Southwest Asia Service |
Ensure, before making a decision, that the examination report contains the examiner’s determination of disability pattern.
If it does not
Important: The Federal Circuit, in Joyner v. McDonald, 766 F.3d 1393 (Fed. Cir. 2014) held that a medical professional does not have to have eliminated all possible diagnoses before the Veteran can be compensated for a disability due to an undiagnosed illness.
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IV.ii.2.D.2.h. Rating Action Taken Based on Disability Pattern Determination |
The table below shows the rating action taken based on the VA examiner’s determination of disability pattern.
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3. General Information About Rating Decisions for Qualifying Disabilities Under 38 CFR 3.317
Introduction |
This topic contains general information about rating decisions for qualifying disabilities, including
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Change Date |
October 14, 2016
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IV.ii.2.D.3.a. Proper Coding for Disabilities Under 38 CFR 3.317 |
In order to properly identify and track disabilities for which SC is awarded or denied under 38 CFR 3.317, regional offices (ROs) must properly code the disabilities in the Veterans Benefits Management System – Ratings (VBMS-R) using the procedures in the table below.
References: For more information on
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IV.ii.2.D.3.b. Using Hyphenated DCs for Disabilities Under 38 CFR 3.317 |
When deciding claims based on the provisions of 38 CFR 3.317, use hyphenated DCs for all
The table below describes each of the codes that comprise a complete hyphenated DC.
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IV.ii.2.D.3.d. Examples of Analogous Codes for Undiagnosed Disabilities and MUCMIs |
The table below contains examples of analogous codes that may be used when evaluating undiagnosed illnesses manifest by the 13 signs or symptoms or an MUCMI found in 38 CFR 3.317. For the second code, use a DC with rating criteria that most accurately evaluates manifestations of the disability.
Note: This list does not contain all possible analogous codes.
Reference: For more information on the 13 signs or symptoms of an undiagnosed illness or MUCMI, see 38 CFR 3.317(b).
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IV.ii.2.D.3.e. Termination or Reduction of Benefits Previously Awarded Under 38 CFR 3.317 |
Situations may arise that will require termination or reduction of payments previously awarded under 38 CFR 3.317.
Follow the normal procedures for reduction of benefits or severance of SC outlined in M21-1, Part I, 2.
Notes:
Example: A physician indicates that the Veteran’s condition, which had previously been characterized as an undiagnosed illness and compensated under 38 CFR 3.317, is now a clinically diagnosed condition with a clear etiology, and the RO is unable to establish continued entitlement under any other SC provision. After following the due process procedures, a final rating effectuating the severance is prepared on October 10, 2016. As final notice of the adverse action will be sent that same month, the Rating Veterans Service Representative enters January 1, 2017, as the date of severance of compensation for that disability.
Reference: For more information on effective dates for reductions of discontinuance of benefits under 38 CFR 3.317, see 38 CFR 3.500(y).
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IV.ii.2.D.3.f.Southwest Asia Veterans’ Participation in VA-Sponsored Research Projects |
Effective December 27, 2001, if a Veteran with Southwest Asia service participates in a VA-sponsored medical research project, SC established for a disability under38 U.S.C. 1117 or 38 U.S.C. 1118 is protected, regardless of the project’s findings.
Exception: SC is not protected if the original award was based on fraud, or military records clearly show that the Veteran did not have the requisite service or character of discharge.
Note: A list of VA-sponsored medical research projects for which SC is protected is published in the Federal Register.
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4. Awarding SC for Qualifying Disabilities Under 38 CFR 3.317
Introduction |
This topic contains information about awarding SC for qualifying disabilities under 38 CFR 3.317, including
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Change Date |
February 19, 2019
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IV.ii.2.D.4.a. Establishing SC for Qualifying Chronic Disability That Began During Southwest Asia Service |
Establish SC if the qualifying chronic disability, per M21-1, Part IV, Subpart ii, 2.D.1.g, manifested, whether to a compensable degree or not, while the claimant was on active service in the Southwest Asia theater of operations during the GW period.
Include the following sentence in the rating decision: Service connection is established for [disability] as due to an undiagnosed illness which began in the Southwest Asia theater of operations during the Gulf War period. (38 CFR 3.317)
Note: The earliest effective date for entitlement to SC under the provisions of 38 CFR 3.317 is November 2, 1994.
Reference: For more information on documenting a decision see M21-1, Part III, Subpart iv, 6.C.
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IV.ii.2.D.4.b.Establishing SC for a Compensable Qualifying Chronic Disability That Arose During the Presumptive Period |
Establish SC if the qualifying chronic disability arose to a compensable degree after the Veteran last served in the Southwest Asia theater of operations during the GW period, regardless of the Veteran’s active duty status at the time.
If SC is established during the presumptive period, include the following statement in the rating decision:
Service connection may be presumed for disabilities resulting from undiagnosed illnesses or diagnosed illnesses which arose to a compensable degree after service in the Southwest Asia theater of operations during the Gulf War period. Service connection for [disability] has been awarded on the basis of this presumption. (38 CFR 3.317)
Reference: For more information on documenting a decision see M21-1, Part III, Subpart iv, 6.C.
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IV.ii.2.D.4.c. Evaluating the Level of Impairment From an Undiagnosed Disability by Analogy |
Evaluate the level of impairment of qualifying chronic undiagnosed disabilities by drawing an analogy to an existing DC in the rating schedule per 38 CFR 4.27.
Precede a discussion of the evaluation criteria in the rating decision with the following statement: Since the disability at issue does not have its own evaluation criteria assigned in VA regulations, a closely related disease or injury was used for this purpose. (38 CFR 4.20)
References: For more information on
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5. Denying SC for Qualifying Disabilities Under 38 CFR 3.317
Change Date |
February 19, 2019
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IV.ii.2.D.5.a. Requirement to Provide Adequate Explanation of Decisions to Deny |
When denying SC for a condition under 38 CFR 3.317, the decision and decision notice must provide adequate reasons for the decision. Decision makers must include a discussion of the specific provisions that were not met under both the presumptive provisions of 38 CFR 3.317, as well as the direct SC provisions and any other avenue of SC raised by the claimant or evidence.
Using a combination of any applicable system-generated language, glossary text fragments, and free text, the decision and decision notice must adequately explain why the claim could not be granted under all applicable provisions.
Important: If the system-generated text options do not adequately cover the reason a claim is being denied, decision makers must use glossary text or free text to supplement the explanation of the decision.
Reference: For more information on system-generated text and glossary fragments, see the VBMS-R User Guide.
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12-21-16_Key-Changes_M21-1IV_ii_2_SecD.docx | May 21, 2019 | 84 KB |
Historical_M21-1IV_ii_2_SecD_10-14-16.docx | May 21, 2019 | 106 KB |
7-14-16_Key-Changes_M21-1IV_ii_2_SecD.docx | May 21, 2019 | 115 KB |
Historical_M21-1IV_ii_2_SecD_7-14-16.docx | May 21, 2019 | 105 KB |
2-19-19_Key-Changes_M21-1IV_ii_2_SecD.docx | May 21, 2019 | 74 KB |
Historical_M21-1IV_ii_2_SecD_6-3-15.docx | May 21, 2019 | 95 KB |
Historical_M21-1IV_ii_2_SecD_12-21-16.docx | May 21, 2019 | 110 KB |
Change-June-3-2015-Transmittal-Sheet-M21-1IV_ii_2_SecD_TS.docx | May 21, 2019 | 47 KB |
Transmittal-Sheet-12_13_05.docx | May 21, 2019 | 31 KB |
Transmittal-Sheet-M21-1MRIV_ii_2_secD_TS.docx | May 21, 2019 | 38 KB |
in Chapter 2 Rating, Part IV Compensation, DIC, and Death Compensation Benefits, Subpart ii Compensation
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