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M21-1, Part IV, Subpart ii, Chapter 2, Section D – Service Connection (SC) for Qualifying Disabilities Associated with Service in Southwest Asia

Overview


In This Section

This section contains the following topics:

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

Change Date

August 1, 2017

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
  • during active duty in the Southwest Asia theater of operations during the GW, or
  • to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the GW.

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:
  • a toxic agent
  • an environmental or wartime hazard, or
  • a preventive medication or vaccine.
Note:  This PL added 38 U.S.C. 1118.

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
  • a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs and symptoms, and
  • any diagnosed illness that is determined by VA regulation to warrant presumption of SC.
Reference:  For more information on MUCMIs, see M21-1, Part IV, Subpart ii, 2.D.1.i.

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
  • undiagnosed illness or MUCMIs, and
  • a list of infectious diseases.

IV.ii.2.D.1.e.  Definition:  Qualifying Veteran Under 38 CFR 3.317

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

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:
  • Iraq
  • Kuwait
  • Saudi Arabia
  • the neutral zone between Iraq and Saudi Arabia
  • United Arab Emirates
  • Bahrain
  • Qatar
  • Oman
  • the Gulf of Aden
  • the Gulf of Oman
  • the Persian Gulf
  • the Arabian Sea, and
  • the Red Sea.

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:
  • an undiagnosed illness, or
  • an MUCMI.
References:  For more information on

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

IV.ii.2.D.1.i.  Definition:  MUCMI

medically unexplained chronic multi-symptom illness (MUCMI) is a type of chronic qualifying disability in which there is a diagnosed illness that has
  • both
    • an inconclusive pathophysiology, and
    • an inconclusive etiology
  • overlapping symptoms and signs, and
  • features such as
    • fatigue and pain
    • disability out of proportion to physical findings, and
    • inconsistent demonstration of laboratory abnormalities.
MUCMIs include but are not limited to
  • chronic fatigue syndrome
  • fibromyalgia, or
  • functional gastrointestinal disorders (FGIDs), excluding structural gastrointestinal diseases.

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
  • unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease, and
  • may be related to any part of the gastrointestinal tract.
Characteristic FGID symptoms include
  • abdominal pain
  • substernal burning or pain
  • nausea
  • vomiting
  • altered bowel habits (including diarrhea, constipation),
  • indigestion
  • bloating
  • postprandial fullness, and
  • painful or difficult swallowing.
FGID diagnoses include but are not limited to
  • irritable bowel syndrome, and
  • functional
    • dyspepsia
    • vomiting
    • constipation
    • bloating
    • abdominal pain syndrome, or
    • dysphagia.
Diagnosis of a FGID under generally accepted medical principles normally requires
  • symptom onset at least six months prior to diagnosis, and
  • the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis.
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.

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.

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).

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
  • begins on the date following last performance of active military, naval, or air service in the Southwest Asia theater of operations during the GW, and
  • extends through December 31, 2021.

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:
  • joint pain
  • muscle pain
  • neurological signs or symptoms
  • headache
  • neuropsychological signs or symptoms
  • gastrointestinal signs or symptoms
  • abnormal weight loss
  • fatigue
  • sleep disturbances
  • respiratory signs and symptoms (upper and lower)
  • cardiovascular signs or symptoms
  • skin signs and symptoms, and
  • menstrual disorders.
Notes:
  • The list of categories is not exclusive; signs or symptoms not represented by one of the listed categories may also qualify for consideration under 38 CFR 3.317.
  • A disability that is affirmatively shown to have resulted from a cause other than Southwest Asia service may not be compensated.  See 38 CFR 3.317(a)(7).
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.

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:
  • If a disability is subject to intermittent episodes of improvement and worsening within a six-month period, consider the disability to be chronic.
  • Carefully review all evidence, not just the most recent evidence, prior to determining if a claimed disability is chronic.
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.ce.

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
  • the Veteran served on active duty
  • the disease becomes manifest to a compensable degree within the time limit specified in the table.
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).
Infectious Disease
Time Limit for Manifestation
Brucellosis
one year
Campylobacter jejuni
one year
Coxiella burnetii (Q fever)
one year
Malaria
  • one year, or
  • at a time when standard or accepted treatises indicate that the incubation period began during a qualifying period of service
Mycobacterium tuberculosis
no time limit
Nontyphoid Salmonella
one year
Shigella
one year
Visceral leishmaniasis
no time limit
West Nile virus
one year

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.
Column A – Infectious Disease
Column B – Associated Condition(s)
Brucellosis
  • arthritis
  • cardiovascular, nervous, and respiratory system infections
  • chronic meningitis and mengocephalitis
  • deafness
  • demyelinating meningovascular syndromes
  • episcleritis
  • fatigue, inattention, amnesia, and depression
  • Guillain-Barre syndrome
  • hepatic abnormalities, including granulomatous hepatitis
  • multifocal choroiditis
  • myelitis-radiculoneuritis
  • nummular keratitis
  • papilledema
  • optic neuritis
  • orchioepididymitis and infections of the genitourinary system
  • sensorineural hearing loss
  • spondylitis
  • uveitis
Campylobacter jejuni
  • Guillain-Barre syndrome if manifest within two months of the infection
  • reactive arthritis if manifest within three months of the infection
  • uveitis if manifest within one month of the infection
Coxiella burnetti (Q fever)
  • chronic hepatitis
  • endocarditis
  • osteomyelitis
  • post-Q-fever chronic fatigue syndrome
  • vascular infection
Malaria
  • demyelinating polyneuropathy
  • Guillain-Barre syndrome
  • hematologic manifestations (particularly anemia after falciparum malaria and splenic rupture after vivax malaria)
  • immune-complex glomerulonephritis
  • neurologic disease, neuropsychiatric disease, or both
  • ophthalmologic manifestations, particularly retinal hemorrhage and scarring
  • Plasmodium falciparum
  • Plasmodium malariae
  • Plasmodium ovale
  • Plasmodium vivax
  • renal disease, especially nephrotic syndrome
Mycobacterium tuberculosis
  • active tuberculosis
  • long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary and extrapulmonary tuberculosis and active tuberculosis
Nontyphoid Salmonella
reactive arthritis if manifest within three months of the infection
Shigella
  • hemolytic-uremic syndrome if manifest within one month of the infection
  • reactive arthritis if manifest within three months of the infection
Visceral leishmaniasis
  • delayed presentation of the acute clinical syndrome
  • post-kala-azar dermal leishmaniasis if manifest within two years of the infection
  • reactivation of visceral leishmaniasis in the context of future immunosuppression
West Nile virus
variable physical, functional, or cognitive disability

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
  • a current diagnosis of brain cancer
  • service in the Southwest Asia theater of operations during GW I (spanning January 17, 1991 through April 11, 1991), and
  • a medical nexus between the two, justified with a rational, scientific explanation.
Reference:  For more information on determining direct SC, see M21-1, Part IV, Subpart ii, 2.B.

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

Change Date

July 14, 2016

IV.ii.2.D.2.a.  Rating Symptoms of a Qualifying Chronic Disability as a Single or Multiple Issues

The decision to rate multiple symptoms or signs of a qualifying chronic disability together as a single issue or separately as multiple issues depends on the outcome most favorable to the Veteran.
Although rating multiple manifestations under a single body system will in most cases provide the maximum benefit, be alert to symptoms affecting fundamentally different body systems that may clearly warrant separate consideration.
Notes:
  • If SC for several symptoms or signs is denied for the same reason, consider such symptoms and signs as a single issue.
  • Assign one hyphenated diagnostic code (DC) on the codesheet to each issue that is separately considered, whether SC is awarded or denied.

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:
  • when the disability arose
  • whether the disability was severe enough to warrant the award of a compensable evaluation at any time during the presumptive period, unless manifested while in the Southwest Asia theater, and
  • whether the disability chronically persisted for at least six months.
Reference:  For more information on development requirements for claims based on service in Southwest Asia, see M21-1, Part IV, Subpart ii, 1.E.

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

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
  • what the Veteran complained of
  • when complaints began
  • how long complaints lasted, and
  • nature/severity of witnessed signs or symptoms.
Reference:  For more information on when evidence is competent and credible, see M21-1, Part III, Subpart iv, 5.A.

IV.ii.2.D.2.e. Role of Non-Medical Indicators in Establishing Signs and Symptoms

Non-medical indicators may help establish signs and symptoms of a qualifying disability.  Non-medical indicators may include
  • time lost from work
  • evidence that the Veteran sought medical treatment for his/her symptoms, and
  • relevant observations, such as changes in the Veteran’s
    • appearance
    • physical abilities, and/or
    • mental or emotional status.

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.

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
  • send the examination report and claims folder back to the examiner with a copy of the “notice to examiner” shown in M21-1, Part IV, Subpart ii, 1.E.2.m, and
  • ask the examiner to characterize the specific claimed issue(s), as requested in the notice.
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.

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.
If the examiner determined the Veteran’s disability pattern to be …
Then …
  • an undiagnosed illness, or
  • a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology
award SC under 38 CFR 3.317 if the Veteran is otherwise eligible.
Reference:  For more information on awarding SC for qualifying disabilities under 38 CFR 3.317, see M21-1, Part IV, Subpart ii, 2.D.4.
  • a diagnosable chronic multi-symptom illness with a partially explained etiology, such as diabetes or multiple sclerosis, or
  • a disease with a clear and specific etiology
SC
  • cannot be awarded under 38 CFR 3.317, and
  • may be awarded only if the medical evidence is sufficient to establish SC on a direct or other basis.
  • a disability with a clear or specific etiology, and
  • provides a medical opinion with rationale that the disability is related to documented in-service injury/events, symptoms, or other specific environmental hazards exposure
award SC under 38 CFR 3.303 if the Veteran is otherwise eligible.
Reference:  For more information on deciding claims based on other specific environmental hazards, seeM21-1, Part IV, Subpart ii, 2.C.5.
Important:  As held in Gutierrez v. Principi, 19 Vet.App. 1 (2004) the Veteran is not required to provide evidence linking a qualifying chronic disability listed in 38 CFR 3.317 to events in service, as long as the Veteran meets all other requirements in 38 CFR 3.317.

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

Change Date

October 14, 2016

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.
If deciding a claim for a(n) …
Then, in VBMS-R, code the disability using …
  • undiagnosed illness, or
  • MUCMI
  • the 88 DC modifier, and
  • Environmental Hazard in Gulf War special issue.
infectious disease
  • Gulf War Presumptive special issue, and
  • the special issue basis specific to the infectious disease.
References:  For more information on

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
  • undiagnosed disabilities, and
  • MUCMIs.
The table below describes each of the codes that comprise a complete hyphenated DC.
Code
Description
Example
First DC
A 4-digit code created with the 88 modifier as the first two digits.  The second two digits are assigned according to the relevant body system.
8863, for diseases analogous to systemic diseases
Second DC
Use the DC that most closely fits the evaluating criteria.
6354, for systemic disease

IV.ii.2.D.3.c.  List of Appropriate DCs for Undiagnosed Disabilities and MUCMIs

The table below lists the first element in a hyphenated analogous code and the type of undiagnosed condition to which each code refers.
If the condition is analogous to …
And the analogous code begins with …
Then the first DC is …
musculoskeletal diseases
50
8850
amputations
51
8851
joints, skull, and ribs
52
8852
muscle injuries
53
8853
diseases of the eye
60
8860
hearing loss
61
8861
ear and other sense organs
62
8862
systemic diseases
63
8863
nose and throat
65
8865
trachea and bronchi
66
8866
tuberculosis
67
8867
lungs and pleura
68
8868
heart diseases
70
8870
arteries and veins
71
8871
upper digestive system
72
8872
lower digestive system
73
8873
genitourinary system
75
8875
gynecological system
76
8876
hemic and lymphatic system
77
8877
skin
78
8878
endocrine system
79
8879
central nervous system
80
8880
miscellaneous neurological
81
8881
cranial nerve paralysis
82
8882
cranial nerve neuritis
83
8883
cranial nerve neuralgia
84
8884
peripheral nerve paralysis
85
8885
peripheral nerve neuritis
86
8886
peripheral nerve neuralgia
87
8887
epilepsies
89
8889
psychotic disorders
92
8892
organic mental
93
8893
psychoneurotic
94
8894
psychophysiologic
95
8895
dental and oral
99
8899

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.
If the symptom or MUCMI is …
Then the hyphenated DC is …
abnormal weight loss
8873-7328, (resection of intestine).
cardiovascular signs or symptoms
8870-7013, (tachycardia).
cardiovascular signs or symptoms
8870-7005, (arteriosclerotic heart disease (ASHD)).
chronic fatigue syndrome
8863-6354.
fatigue
8863-6354, (chronic fatigue syndrome).
fatigue
8877-7700, (anemia).
fibromyalgia
8850-5025.
  • gastrointestinal signs or symptoms, or
  • an FGID
  • 8873-7305, (ulcer)
  • 8873-7346 (hernia hiatal), or
  • 8873-7319, (irritable bowel syndrome).
headache
8881-8100, (migraine headaches).
joint pain
8850-5002, (rheumatoid arthritis).
menstrual disorders
8876-7622, (uterus displacement).
muscle pain
8850-5021, (myositis).
neurologic signs or symptoms
8885-85__, (peripheral neuropathy).
neuropsychological signs or symptoms
8893-9300, (organic mental disorder).
signs or symptoms involving the respiratory system (upper or lower)
  • 8865-65__, (respiratory system)
  • 8866-66__, (respiratory system), or
  • 8868-68__, (respiratory system).
signs or symptoms involving the skin
8878-7806, (eczema).
sleep disturbances
8894-9400, (generalized anxiety).
Reference:  For more information on the 13 signs or symptoms of an undiagnosed illness or MUCMI, see 38 CFR 3.317(b).

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:
  • Termination or reduction of benefits paid under 38 CFR 3.317 does not preclude continuation of payments if entitlement can be established for SC based on incurrence or aggravation under the provisions of 38 CFR 3.303 and 38 CFR 3.306, respectively, or based on presumption under the provisions of 38 CFR 3.307.
  • The last day of the month 60 days after issuance of the final notice of the adverse action is the last date benefits are payable at the prior rate or, in cases of severance, for the disability.  For rating purposes in VBMS-R, enter the first day of the following month as the date of the reduction or severance.
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).

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.

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

Change Date

February 19, 2019

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.

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.

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

5.  Denying SC for Qualifying Disabilities Under 38 CFR 3.317

 


Change Date

February 19, 2019

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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