Today, VA issued its final regulations to allow presumptive service connection for eight diseases associated with exposure to contaminated water at Camp Lejeune. 82 FR 4173. The rule is effective March 14, 2017.
Under this rule, VA will provide presumptive service connection to veterans, former reservists, and former National Guard members who served for no less than 30 days (either consecutively or nonconsecutively) between August 1, 1953 and December 31, 1987 and later developed one of eight diseases. The eight diseases include (1) kidney cancer; (2) non-Hodgkin’s lymphoma; (3) adult leukemia; (4) liver cancer; (5) bladder cancer; (6) multiple myeloma; (7) Parkinson’s disease; and (8) aplastic anemia and other myelodysplastic syndromes. VA is also establishing a presumption that affected individuals were disabled during the relevant period of service. Therefore, “[u]nder this proposed presumption, affected former reservists and National Guard members would have veteran status for purposes of entitlement to some VA benefits.”
VA published the proposed regulations in September 2016. NOVA filed comments in October 2016, and advocated for VA to remove the 30-day exposure requirement, extend the presumption to include additional conditions, and provide for retroactive application of the regulations.
VA declined to make any changes suggested by NOVA or other commenters. Although VA noted in its proposed regulation that there is no legal basis for the 30-day requirement and VA experts agreed there was no science to support a specific minimum exposure level for any of the conditions, it declined to remove the 30-day requirement.
While the commenters are correct in that VA does not require a minimum level or duration of exposure for some previously-established presumptions, VA notes that these regulations serve to provide presumptive service connection based on the specified and particular exposures, conditions, and nature of military service in accordance with the scientific and other evidence supporting them. They do not set a binding precedent for future rulemakings that address unrelated circumstances...
In addition to being based on different scientific, medical, and military evidence, the prior toxic exposure regulations often stem from a specific, separate statutory authority or requirement...
In the case of this regulation, Congress did not enact a specific statute authorizing the Secretary to establish compensation for disabilities presumptively related to exposure to contaminants in the water supply at Camp Lejeune. While creating this presumption via regulation fits within the statutory authority conferred by section 501, the Secretary’s rulemaking actions must have a rational basis. The Secretary has determined that, in the absence of evidence establishing an appropriate period of time for an exposure requirement, the soundest course is to maintain consistency with the Camp Lejeune Act, which establishes eligibility for VA health care for Camp Lejeune veterans who meet applicable criteria, including a 30-day service requirement... This will help to avoid public confusion and inconsistent results, for example where some Camp Lejeune veterans would be eligible for a presumption for purposes of disability compensation, but not the statutory presumption for health care benefits.
Regarding the inclusion of additional disabilities mirroring the Camp Lejeune Act, VA declined to expand the list because “none of the evidence reviewed concluded that there is a positive association between these conditions and the volatile organic compounds of interest.” VA also declined to assign an earlier effective date because the “rulemaking authority does not explicitly afford the Secretary authority to assign retroactive effect to the regulations created thereunder, and retroactivity is heavily disfavored in the law.”