Update: Gulf War Claims
Service Connection--
Gulf War Veterans
Basic Information
• Gulf War veterans may obtain disability compensation for disabilities under same rules as other veterans
• However, there are additional special rules that apply to Gulf War veterans
SC—Special Rule for Gulf War
Veterans
• Special Rules for Gulf War veterans:
vets with “qualifying chronic disability”
• Undiagnosed illnesses
• Medically unexplained chronic multisymptom illnesses
Vets with listed infectious diseases (listed in § 1117)
other diseases that become presumptive in future as result of ongoing studies (required by § 1118)
Basic Requirements of
Special Gulf War Rules
Basic Requirements under § 1117
• claimant must be:
1) A “Gulf War veteran”
AND
2) With a “qualifying chronic disability” or a listed “infectious disease”
AND
3) condition must become at least 10% disabling w/in presumptive period
Basic Requirements of
Special Gulf War Rules
presumptive rules rebutted if:
• affirmative evidence establishes:
• disease not incurred during service,
• was caused by intervening event, or
• was result of vet’s willful misconduct or abuse of alcohol or drugs
Definition of
Gulf War Veteran Definition of Gulf War vet
• served on active duty in Southwest Asia theater of operations
• This includes Iraq, Kuwait, Saudi Arabia, Neutral zone, Bahrain, Qatar, UAE, Oman, Gulf of Aden, Gulf of Oman, Waters of Persian Gulf, Arabian Sea & Red Sea
• OR served in Airspace above these locations
• After August 2, 1990, and before ending date set by Congress
• Includes OIF and Operation New Dawn
Definition of
Gulf War Veteran
• Note: vets with active service in Afghanistan on or after 9/19/2001 (OEF vets) are entitled to presumptive SC for presumptive infectious diseases (even though they never served in Southwest Asia)
• Fast Letter 10-01 confusion
What is a Qualifying Chronic
Disability?
Qualifying Chronic Disability:
Must last at least 6 months, OR
show intermittent periods of improvement
and worsening over at least 6 months
Kinds of Qualifying Chronic
Disabilities
Qualifying Chronic Disability can be:
•An Undiagnosed Illness, OR
•A Medically unexplained chronic multi-symptom illness, OR
•A disease that becomes presumptive for GW veterans in the future
Qualifying Chronic Disability:
Undiagnosed Illness (UI)
Undiagnosed Illness - “by history,
physical examination & laboratory tests cannot be attributed to any known clinical diagnosis.”
Does not require “objective medical evidence”
UI—Undiagnosed Illness
• Can be shown by objective evidence perceptible to an examining physician OR
• nonmedical signs that can be independently verified or observed
lay statements may be decisive
Manual M21-1 lists other relevant non-medical evidence
M21-1MR—nonmedical indicators
events such as time lost from work OR
evidence vet sought medical treatment for symptoms OR
Lay (or medical) evidence affirming changes in vet’s appearance, physical abilities, mental or emotional attitude
Undiagnosed Illness (cont.)
non-exhaustive list of signs or symptoms: • Fatigue • Signs or symptoms involving skin • Headache • Muscle pain • Joint pain • Neurological signs or symptoms • Neuropsychological signs or symptoms • Signs or symptoms involving the respiratory system • Sleep disturbances • Gastrointestinal signs or symptoms • Cardiovascular signs or symptoms • Abnormal weight loss • Menstrual disorders
Undiagnosed Illness (cont.)
Signs or symptoms of undiagnosed illness must first appear:
• while vet served in Gulf OR
• become at least 10% disabling during applicable presumptive period
• presumptive period has been extended to 12-31-2016)
Undiagnosed Illness (cont.)
VA must rate an SC undiagnosed illness by analogy—38 CFR § 4.20
This means that VA will rate the UI under a diagnostic code (DC) in which the functions affected, the location, or the symptoms are similar to the UI condition
Medically Unexplained
Chronic Multi-Symptom Illness
Chronic Multi-symptom illness • defined by a “cluster” of signs or
symptoms
• diagnosed illness w/out conclusive etiology
• characterized by overlapping symptoms and signs
• has features such as fatigue, pain, disability out of proportion to physical findings
Medically Unexplained
Chronic Multi-Symptom Illness
• Inconsistent demonstrations of lab abnormalities
• If etiology is “partially” understood, (DM or MS) this disability will not be considered medically unexplained
• Advocates: look out for chronic multi-symptom illnesses in Gulf War veterans!
• vet can get SC for this if they meet the requirements (even if condition is not one of the three listed in § 3.317)
Medically Unexplained
Chronic Multi-Symptom Illness
• Advocates: Remember that a chronic multi-symptom illness in a Gulf War vet does not need to be listed—just needs to meet the requirements
Medically unexplained (no cause identified)
Cluster of symptoms
Inconsistent lab results
Medically Unexplained
Chronic Multi-Symptom Illness
• Currently listed:
Chronic fatigue syndrome
Fibromyalgia
Functional Gastrointestinal Disorders
(Remember, vet not limited to these three—can claim any diagnosed disability as a chronic multisymptom illness, as long as it meets the requirements—see VA Training Letter 10-01)
Functional Gastrointestinal
Disorders
Functional gastrointestinal disorders:
excludes structural gastrointestinal diseases
Group of conditions with chronic or recurrent symptoms unexplained by structural, endoscopic, lab or other objective signs of injury or disease
Functional Gastrointestinal
Disorders
FGS usually require symptom onset of at least 6 mos. prior to dx & presence of symptoms sufficient to diagnose the disorder at least 3 mos. prior to diagnosis
May be related to any part of gastrointestinal tract
What is gastrointestinal tract?
Functional Gastrointestinal
Disorders
FGDs include but not limited to:
IBS,
functional dyspepsia (indigestion),
functional vomiting,
functional constipation,
functional bloating,
functional abdominal pain syndrome and
functional dysphagia (difficulty swallowing)
Functional Gastrointestinal
Disorders--Symptoms
abdominal pain,
substernal burning or pain,
nausea,
vomiting,
altered bowel habits-diarrhea/constipation
indigestion,
bloating,
postprandial fullness,
painful or difficult swallowing
Presumptive Infectious Diseases
Effective 10/10
9 infectious diseases recognized
Brucellosis
Campylobacter jejuni
Coxiella burnetti (Q fever)
Malaria
Mycobacterium tuberculosis
Nontyphoid salmonella
Shigella
Visceral leishmaniasis
West Nile virus
Presumptive Infectious Diseases
must manifest to degree of 10% w/in 1 yr from separation from service except: • Malaria: w/in 1 yr from separation or
standard med. treatises show incubation period began during service
• Visceral leishmaniasis & mycobacterium tuberculosis: any time after service (no time limit)
Long-Term Health Effects of
Presumptive Infectious Diseases
VA recognizes long-term health effects potentially associated with these infectious diseases
Potential long term conditions are listed in 38 C.F.R. § 3.317
• VA will examine vets who are presumptively SC for a listed infectious disease & who develop a listed long-term effect
Long-Term Health Effects of
Presumptive Infectious Diseases
West Nile virus --
Variable physical, functional, or cognitive disability
Mycobacterium tuberculosis
Active tuberculosis. Long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary and extrapulmonary tuberculosis and active tuberculosis.
Long-Term Health Effects of
Presumptive Infectious Diseases
Coxiella burnetii (Q fever)
Chronic hepatitis. Endocarditis. Osteomyelitis. Post-Q-fever chronic fatigue syndrome. Vascular infection.
Resources that can help win Cases
CAVC Cases
VA General Counsel Precedent Opinions
VA Training Letters
Arguments
Good Cases on UI Conditions
NO medical nexus requirement
• Gutierrez v. Principi - CAVC concluded that BVA erred by imposing nexus evidence requirement
• Also BVA precluded from using delay in complaint of treatment of condition post discharge against claimant
Good Cases on UI Conditions
Stankevich v. Nicholson: BVA erred in failing to analyze and explain decision to assign particular diagnostic code as one most analogous to veteran’s undiagnosed illness
VA General Counsel Opinion
August 1998 VA General Counsel precedent opinion:
• If signs or symptoms of vet could conceivably be attributed to a known clinical diagnosis, but haven’t been, that does not preclude vet being awarded SC for the UI
VA Training Letter
Says RO personnel must be aware that a variety of disabilities may affect vets with Southwest Asia service. . . . A thorough review of medical evid assoc. w/ these claims is necessary to identify any signs & symptoms potentially associated w/ Southwest Asia service that are not directly claimed.
VA Training Letter
The TL explains that standard for Gulf War vet to get an exam for Gulf War illness is very low:
minimum needed is
• Vet’s lay description of symptoms plus
• Verified service in Southwest Asia
That is it! (TL 10-01, p. 7)
VA Training Letter
VA Training Letter 10-01 • Directs examiners to consider any chronic
disability pattern & explain whether vet has: A UI
A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology
VA Training Letter
If after exam the vet is determined to have
• A diagnosable chronic multi-symptom illness with a partially explained etiology or
• A disease w/ clear & specific etiology/diagnosis
Then SC cannot be granted under Gulf War/Southwest Asia rules
But vet may be able to establish SC on a direct basis (not under presumptive rules)
Arguments
• Once a condition gets a diagnosis, the UI rule no longer applies (vet can then try to obtain SC for the diagnosed condition on a direct basis)
• Or vet can rebut diagnosis with a medical opinion that explains why diagnosis is not appropriate & that symptoms should be considered an undiagnosed illness
Arguments
Examples of some chronic multisymptom illnesses—if medically unexplained, may get presumptive SC under GW rules (3.317)
• Multiple chemical sensitivity disorder??
• Other ideas?
Best Arguments
Best arguments for UI
Best arguments for medically unexplained chronic multisymptom illnesses
Best arguments for infectious diseases
Best arguments for direct SC if presumptions don’t work/don’t apply