Environmental exposure to particulate matter has been highlighted in major media outlets the past several weeks. Most recently, The White House and the VA have provided updates on Veteran’s Day on future initiatives to research a number of conditions related to various operational hazards. These updates follow a May 2021 announcement by the Secretary of the VA that they were concluding “the first iteration of a newly formed internal VA process to review scientific evidence to support rulemaking, resulting in the recommendation to consider creation of new presumptions of service connection for respiratory conditions” that relied on relevant and reliable scientific evidence.
This new model resulted in the recognition of three new presumptive conditions for Sinusitis, Rhinitis, and Asthma announced in August of this year attributed to “presumed exposures to fine, particulate matter.” These three are eligible for compensation with the onset of symptoms within 10 years of service for the specific time periods and duty locations during the Persian Gulf War, Afghanistan, Uzbekistan, and Southwest Asia. Veterans who have a current diagnosis for these conditions are encouraged to consider when and where they served to see if they are eligible:
- For service beginning with the Persian Gulf War:
- Persian Gulf War – August 1990 to present.
- Countries and locations – Southwest Theater of Operations to include “Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea and the airspace above these locations.”
- For service following the attacks on September 11, 2001:
- September 19, 2001 to December 31, 2026 (or such date as President decides).
- Countries – Afghanistan, Syria, Djibouti, or Uzbekistan.
The specific definitions for these three conditions and VA rating scales are included in three tables below. As always, these conditions are available to veterans through normal service-connected disability claims whereby you must show 1) current diagnosis, (2) an in-service stressor, event, or diagnosis, and a (3) nexus between in service diagnosis and the current condition. However, presumptions are intended to make it less burdensome to claim and require the veteran to show only current diagnosis, and qualifying location and time of service.
The hope is that this is just the beginning. The VA in May said this was the “first iteration” of the new model and then The White House announced on Veterans Day that the VA had been instructed to “further test the new presumptive model to assess potential associations between military environmental exposures and constrictive bronchiolitis, lung cancers, and rare respiratory cancers such as squamous cell carcinoma of the larynx or trachea and salivary gland-type tumors of the trachea.” Nevertheless, the lessons of Vietnam era veterans and their struggle for recognition of herbicide exposure like Agent Orange serve as reminders that veterans and advocacy groups should continue to exert the maximum pressure to receive recognition for illnesses connected to service in specific places at specific periods of time.
Finally, there are a number of ways for veterans to be prepared if more presumptive conditions are added to the current list. First, is to gather all the relevant evidence under your control such as buddy statements in services or other lay statements from current friends, spouses, and partners. If you served in one of the relevant theaters, noted above, from August 1990 through the present, we recommend that you participate in the Burn Pit Registry. See link here for information to register. There is also an ongoing collaboration between the VA and the Department of Defense to create an Individual Longitudinal Exposure Record (ILER) which would map and record individual servicemember exposures based on time and location of deployments and knowledge of known, or later discovered, hazards. See link here for a fact sheet.
Garrett Artz is a Veteran of the United States Navy and an associate at the law firm of Grimes Teich Anderson, LLP.
Tod Leaven is a service-connected Veteran of the United States Army and a partner at the law firm of Grimes Teich Anderson, LLP, in charge of the firm’s Veterans Law section. The firm has offices in North and South Carolina, and the Veterans Law practice is national.
|SINUSITIS Ratings (38 CFR § 4.97 – Schedule of Ratings – Respiratory System)|
|Sinusitis Definition: Sinusitis is inflammation of the paranasal sinuses due to viral, bacterial, or fungal infections or allergic reactions. Symptoms include nasal obstruction and congestion, purulent rhinorrhea, and facial pain or pressure; sometimes malaise, headache, and/or fever are present.|
|General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514)|
|50% – Following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.|
|30% – Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting|
|10% – One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting|
|0% – Detected by X-ray only|
|Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.|
|RHINITIS Ratings (38 CFR § 4.97 – Schedule of Ratings – Respiratory System)|
|Rhinitis Definition: Nonallergic Rhinitis is inflammation of the nasal mucous membrane, with resultant nasal congestion, rhinorrhea, and variable associated symptoms depending on etiology (eg, itching, sneezing, watery or purulent rhinorrhea, anosmia). Allergic rhinitis is seasonal or perennial itching, sneezing, rhinorrhea, nasal congestion, and sometimes conjunctivitis, caused by exposure to pollens or other allergens.|
|General Rating for Allergic or Vasomotor Rhinitis (Diagnostic Code 6522)|
|30% With polyps|
|10% – Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side|
|General Rating for Bacterial Rhinitis (Diagnostic Code 6523)|
|50% – Rhinoscleroma|
|10% – With permanent hypertrophy of turbinates and with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side|
|General Rating for Granulomatous Rhinitis (Diagnostic Code 6524):|
|100% Wegener’s granulomatosis, lethal midline granuloma|
|20% Other types of granulomatous infection|
|ASTHMA Ratings (38 CFR § 4.97 – Schedule of Ratings – Respiratory System)|
|Asthma Definition: Asthma is a disease of diffuse airway inflammation caused by a variety of triggering stimuli resulting in partially or completely reversible bronchoconstriction. Symptoms and signs include dyspnea, chest tightness, cough, and wheezing.|
|General Rating for Asthma (Diagnostic Code 6602)|
|100% – FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications|
|60% – FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids|
|30% – FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication|
|10 FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy|
|Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.|
|FEV = Forced Expiratory Volume, FVC = Forced Vital Capacity. These are ratios and determinations made by a healthcare provider for pulmonary function test in reaching a diagnosis for Asthma.[Reference]|
 See White House and Federal Register, above.