Pros and Cons to Camp Lejeune Water Contamination Ruling

By: Ryan Spencer, Veterans Disability Benefits Attorney

VA published a final interim rule today regarding Camp Lejeune Water Contaminated Veterans, 82 FR 4173. The effective date for this rule is March 14^th, 2017 and no earlier. To be eligible for benefits under this new ruling you must meet the below requirements.

• Valid discharge for Veterans Benefits still required. Other Than Honorable (OTH) and Dishonorable Discharges (generally speaking) are barred from benefits. However, there are exceptions.
• Must have served in active duty military, Reserves or National Guard. This rule creates an exception for Reservists and National Guard members in that, regardless of their type of service, they will be considered “Veterans” for these specific disabilities under this specific rule.
• Must have served 30 days at Camp Lejeune.
• Must have a qualifying disability:
  • Kidney cancer
  • Non-Hodgkin’s lymphoma
  • Adult Leukemia
  • Liver cancer
  • Bladder cancer
  • Multiple Myeloma
  • Parkinson’s disease
  • Aplastic anemia and myelodysplastic syndromes

Pros

1. Adds new conditions that were not part of the ‘Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012’.
2. Includes Reservists and National Guard members that otherwise would not be eligible for VA benefits due to a lack of active duty service or active duty for training purposes period of service.
3. The 30 days of service at Camp Lejeune can be consecutive or non-consecutive.

Cons

1. No retroactivity on current claims. The rule only applies to new and pending claims as of March 14^th, 2017. That means if you have or will be denied your claim before March 14^th, 2017, this new rule does not apply.
2. No spouses or children are eligible for compensation benefits under this rule. Compensation benefits are solely for veterans.
3. The new list of diseases differs greatly from the ‘Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012’ list. The following conditions that are eligible for health care but not for compensation benefits are listed below:
   1. Esophageal cancer
   2. Lung cancer
   3. Breast cancer
   4. Renal toxicity
   5. Hepatic steatosis
   6. Female infertility
   7. Miscarriage
   8. Scleroderma
   9. Neurobehavioral effects.
4. Service records shall be the sole source of authority on whether a Veteran had 30 calendar days of service at Camp Lejeune.
   1. Without evidence in official service department records documenting official orders or assignment to serve, either in an individual capacity or as part of a larger unit, at Camp Lejeune, a claimant does not meet the evidentiary standard for presumptive service connection. As such, without military orders or other official service department records reflecting service at Camp Lejeune, veterans, former reservists or National Guard members who served aboard vessels that docked at Camp Lejeune during the period of contamination are not eligible for presumptive service connection under the provisions of this rule.
5. The term “Camp Lejeune” does not include any surrounding bases, including but not limited to: Cherry Point or the Marine Corps Air Station New River.

Overall the rule can be considered good and bad. It is good because it expands the scope of coverage to include National Guard and Reservists who otherwise would not be eligible for benefits. Additionally, it adds some diseases not allowed under the prior 2012 Act. However, it is troubling that older cases that have been denied and appealed are barred from using this rule in upcoming decisions. As it stands, current Veterans who have appealed prior claims have no right to use the provisions of this new and favorable rule solely because their case was already denied. Essentially, it is as if the rule was never passed into law. Additionally, we are bothered by the VA’s reliance on service records as the sole source of authority on whether a Veteran was stationed at Camp Lejeune for 30 days or more. In a perfect world the Department of Defense and the United States Department of Veterans Affairs would maintain all records perfectly and never lose said records. Unfortunately, time has proven otherwise. The VA and DOD have repeatedly lost, destroyed or “misplaced” records. For Veterans who are the victim of this mishandling of records, there is no recourse. Finally, we are disappointed that the VA refuses to create a special class for eligibility purposes for the families that lived on base with the Veteran. To deny spouses and children, especially those who were born on base, compensation akin to the Veteran is essentially the same as saying “You don’t matter.” Based on VA’s reasoning for this denial, Congress should delegate specific authority to the VA to enable such a class to be created for this specific rule.

At Marcari, Russotto, Spencer & Balaban we’re determined to see all Camp Lejeune veterans get the benefits they deserve. Call us from anywhere in the nation at 866-866-VETS or contact our office online.