§1164 — Title 38 Veterans' Benefits | U.S. Code

Summary

If a person who served in certain military duty shows COVID‑19 symptoms in specific time frames, the VA must treat their SARS‑CoV‑2 infection and COVID‑19 as if those happened during that duty. The law also treats any disability or death from COVID‑19 as if it happened while on duty for VA benefit purposes. The time frames are: while the qualifying duty lasted if that duty was more than 48 continuous hours, within 14 days after finishing that duty, or an extra time the Secretary of Veterans Affairs may set after talking with the Centers for Disease Control and Prevention. This rule applies to benefits the Secretary runs and that are subject to section 1113. For people whose qualifying duty is the training or full‑time National Guard duty described in the law, COVID‑19 so presumed is treated as in‑line‑of‑duty active service and benefits are paid as if the person were a veteran even if the duty would not count as active service under section 101. If it is unclear whether the symptoms came from COVID‑19 from the qualifying duty, that duty must be treated as active service when deciding if a medical exam or opinion is needed under section 5103A(d). Defined terms: Qualifying period of duty — either active duty during the President’s national emergency and before three years after the enactment of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, or training duty under title 10 or full‑time National Guard duty under orders on or after March 13, 2020 during that national emergency and before that three‑year cutoff. Symptoms of COVID‑19 — symptoms that competent medical evidence shows are caused by COVID‑19.

Title 38, §1164

Veterans' Benefits — Source: USLM XML via OLRC

(a)(1)For purposes of laws administered by the Secretary and subject to section 1113 of this title, if symptoms of Coronavirus Disease 2019 (in this section referred to as “COVID–19”) described in subsection (d) manifest within one of the manifestation periods described in paragraph (2) in an individual who served in a qualifying period of duty described in subsection (b)—

(A)infection with severe acute respiratory syndrome coronavirus 2 (in this section referred to as “SARS–CoV–2”) shall be presumed to have occurred during the qualifying period of duty;

(B)COVID–19 shall be presumed to have been incurred during the qualifying period of duty; and

(C)if the individual becomes disabled or dies as a result of COVID–19, it shall be presumed that the individual became disabled or died during the qualifying period of duty for purposes of establishing that the individual served in the active military, naval, or air service.

(2)(A)The manifestation periods described in this paragraph are the following:

(i)During a qualifying period of duty described in subsection (b), if that period of duty was more than 48 continuous hours in duration.

(ii)Within 14 days after the individual’s completion of a qualifying period of duty described in subsection (b).

(iii)An additional period prescribed under subparagraph (B).

(B)(i)If the Secretary determines that a manifestation period of more than 14 days after completion of a qualifying period of service is appropriate for the presumptions under paragraph (1), the Secretary may prescribe that additional period by regulation.

(ii)A determination under clause (i) shall be made in consultation with the Director of the Centers for Disease Control and Prevention.

(b)A qualifying period of duty described in this subsection is—

(1)a period of active duty performed—

(A)during the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.); and

(B)before the date that is three years after the date of the enactment of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020; or

(2)training duty under title 10 or full-time National Guard duty (as defined in section 101 of title 10), performed under orders issued on or after March 13, 2020—

(A)during the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.); and

(B)before the date that is three years after the date of the enactment of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020.

(c)When, pursuant to subsection (a), COVID–19 is presumed to have been incurred during a qualifying period of duty described in subsection (b)(2)—

(1)COVID–19 shall be deemed to have been incurred in the line of duty during a period of active military, naval, or air service; and

(2)where entitlement to benefits under this title is predicated on the individual who was disabled or died being a veteran, benefits for disability or death resulting from COVID–19 as described in subsection (a) shall be paid or furnished as if the individual was a veteran, without regard to whether the period of duty would constitute active military, naval, or air service under section 101 of this title.

(d)For purposes of subsection (a), symptoms of COVID–19 are those symptoms that competent medical evidence demonstrates are experienced by an individual affected and directly related to COVID–19.

(e)If there is a question of whether the symptoms experienced by an individual described in paragraph (1) of subsection (a) during a manifestation period described in paragraph (2) of such subsection are attributable to COVID–19 resulting from infection with SARS–CoV–2 during the qualifying period of duty, in determining whether a medical examination or medical opinion is necessary to make a decision on the claim within the meaning of section 5103A(d) of this title, a qualifying period of duty described in subsection (b) of this section shall be treated as if it were active military, naval, or air service for purposes of section 5103A(d)(2)(B) of this title.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The National Emergencies Act, referred to in subsec. (b)(1)(A), (2)(A), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, which is classified principally to chapter 34 (§ 1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see

Short Title

note set out under section 1601 of Title 50 and Tables. The date of the enactment of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, referred to in subsec. (b)(1)(B), (2)(B), is the date of enactment of Pub. L. 116–315, which was approved Jan. 5, 2021. Codification Another section 1164 was renumbered section 1166 of this title.

Statutory Notes and Related Subsidiaries

Medical Opinions for Certain Veterans With Service-Connected Disabilities Who Die of COVID–19 Pub. L. 117–328, div. U, title II, § 202(a), (b), Dec. 29, 2022, 136 Stat. 5447, provided that: “(a) In General.—The Secretary of Veterans Affairs shall secure a medical opinion to determine if a service-connected disability was the principal or contributory cause of death before notifying the survivor of the final decision in any case in which all of the following factors are met:“(1) A claim for compensation is filed under chapter 13 of title 38, United States Code, with respect to a veteran with one or more service-connected disabilities who dies. “(2) The death certificate for the veteran identifies Coronavirus Disease 2019 (COVID–19) as the principal or contributory cause of death. “(3) The death certificate does not clearly identify any of the service-connected disabilities of the veteran as the principal or contributory cause of death. “(4) A service-connected disability of the veteran includes a condition more likely to cause severe illness from COVID–19 as determined by the Centers for Disease Control and Prevention. “(5) The claimant is not entitled to benefits under section 1318 of such title. “(6) The evidence to support the claim does not result in a preliminary finding in favor of the claimant. “(b) Outreach.—The Secretary shall provide information to veterans, dependents, and veterans service organizations about applying to dependency and indemnity compensation when a veteran dies from COVID–19. The Secretary shall provide such information through the website of the Department of Veterans Affairs and via other outreach mechanisms.”

§1164 Presumptions of Service-connection for Coronavirus Disease 2019