VA COVID-19 Presumption: Proposed Changes Could Affect Veterans With Long-Term Residuals

The Department of Veterans Affairs is working on proposed regulations addressing VA disability claims involving Coronavirus Disease 2019, commonly known as COVID-19.

The proposal is important because it would provide clearer VA regulations for presumptive service connection for COVID-19 and chronic residuals of the disease in certain qualifying circumstances.

For veterans who contracted COVID-19 during or shortly after qualifying military service—and who continue to experience long-term residuals—this is a development worth watching closely.

What Is VA Proposing?

VA's rulemaking is titled “Adjudications Coronavirus-Related Illness Claims,” RIN 2900-AR66.

According to VA's regulatory agenda, the proposed changes would:

• Establish regulatory criteria for presumptive service connection for COVID-19 and its chronic residuals.
• Add a specific diagnostic code and rating criteria for COVID-19 to the VA Schedule for Rating Disabilities.
• Address qualifying periods of military duty and applicable manifestation periods.
• Provide terminology for adjudicating coronavirus-related illnesses.

The stated purpose is to implement statutory COVID-19 presumptions enacted by Congress in the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020.

Congress Already Created a COVID-19 Presumption

Federal law already contains a specific provision addressing presumptive service connection for COVID-19.

Under 38 U.S.C. § 1164, certain qualifying service members may receive presumptions related to SARS-CoV-2 infection and COVID-19 when symptoms manifested within prescribed periods following qualifying military duty.

The statute can be particularly important for certain periods of:

• Active duty.
• Certain training duty under Title 10.
• Qualifying full-time National Guard duty.

The exact dates, duty status, and manifestation requirements matter.

The proposed VA regulation appears intended to provide more detailed adjudication and rating rules implementing that statutory framework.

Why This Could Matter for Veterans With Long COVID

For many veterans, the issue is no longer the original COVID-19 infection.

The larger question is whether they developed chronic residuals afterward.

Long-term effects reported following COVID-19 infection may involve multiple body systems, including respiratory, cardiovascular, neurologic, cognitive, and other symptoms.

However, a history of COVID-19 by itself does not establish entitlement to VA disability compensation.

A claim may still require evidence showing:

1. Qualifying military service.
2. COVID-19 manifested within the applicable statutory period.
3. A current disability or chronic residual.
4. A relationship between the current disability and the qualifying COVID-19 illness, unless an applicable presumption establishes the required connection.

The proposed regulations may provide additional clarity on how VA evaluates these claims.

COVID-19 During Reserve or National Guard Service

One of the more significant aspects of the underlying statute concerns certain Reserve and National Guard periods.

Ordinarily, determining whether a disease occurred during qualifying active military service can become complicated when the claimant was serving during a period of training or National Guard duty.

Congress specifically addressed qualifying COVID-19 cases in 38 U.S.C. § 1164.

That means veterans and former service members who contracted COVID-19 during qualifying Reserve or National Guard service should not automatically assume their duty status prevents a VA claim.

The exact orders and duty period should be reviewed.

Previously Denied for COVID-19 or Long-Term Residuals?

Veterans who previously filed a claim involving COVID-19 or chronic residuals should pay particular attention as VA's regulations develop.

A previous denial does not automatically become incorrect simply because VA proposes a new regulation.

But depending on the final rule, the veteran's service dates, duty status, diagnosis, evidence, and procedural history, a prior decision may warrant another look.

Useful records can include:

• Military orders.
• Personnel records.
• COVID-19 testing or diagnosis records.
• Service treatment records.
• Line of Duty documentation.
• Civilian hospitalization records.
• VA medical records.
• Pulmonary testing.
• Cardiac testing.
• Neurologic evaluations.
• Medical documentation of persistent symptoms following the infection.

This Is Not a Presumption for Every Veteran Who Had COVID-19

This distinction is critical.

The proposed rule does not mean that every veteran who contracted COVID-19 will automatically receive service connection.

The statutory presumption contains specific requirements involving the veteran's qualifying duty and when COVID-19 symptoms manifested.

Likewise, a veteran seeking compensation for long-term residuals must still establish a compensable current disability under the applicable VA rules.

What Should Veterans Do Now?

Veterans should preserve records showing:

• The dates and nature of their military duty.
• When COVID-19 symptoms began.
• When the infection was diagnosed.
• Treatment received during the acute infection.
• Ongoing symptoms or residual diagnoses.
• Medical treatment since the infection.

Veterans with a previous VA denial should also keep the complete rating decision and any C&P examination or medical opinion relied upon by VA.

Oakridge Claims Is Monitoring the Rule

Oakridge Claims is monitoring VA's rulemaking concerning COVID-19 presumptive service connection and chronic residuals.

Because this remains a developing regulatory issue, veterans should distinguish between existing statutory protections, proposed VA regulations, and any future final rule.

If you have already received a VA decision denying a COVID-19 or long-COVID-related disability claim, Oakridge Claims can review the decision and the evidence VA relied upon to determine whether a post-decision option may be appropriate.

Oakridge Claims also accepts select initial VA disability claims based on case fit and current availability. Initial-claim representation is provided without a fee.^*

Sources and Further Reading

• Department of Veterans Affairs — Adjudications Coronavirus-Related Illness Claims, RIN 2900-AR66
• 38 U.S.C. § 1164 — Presumptions of Service Connection for Coronavirus Disease 2019
• Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020