- When and where was the Persian Gulf War?
- Toxic exposures during the Gulf War
- What is Gulf War Illness (GWI)? Is it the same as Gulf War Syndrome?
- What is the presumption for Gulf War Illness? Who qualifies?
- What qualifies as an “undiagnosed illness”?
- What is a medically unexplained chronic multi-symptom illness, or MUCMI? How is it different from an undiagnosed illness?
- Is it possible to connect any other diseases or symptoms under the Gulf War Illness umbrella?
- Which infectious diseases qualify as Gulf War Illness?
- Does VA tend to fairly adjudicate Gulf War Illness claims? Why or why not?
- What is VA’s Airborne Hazards and Open Burn Pit Registry?
- How does the Board of Veterans Appeals (BVA) handle Gulf War Illness claims?
- Do GWI claims and burn pit-related claims fall under the same umbrella? What’s the difference?
- Audience Question: Where can I find a missing VA examination for GWI?
- What can veterans do to help their GWI claims?
- What if your C&P examiner (VA medical examiner) lacks information about Gulf War Illness?
- Where to find lay evidence for GWI claims
Brad: Good afternoon and welcome. You’re with Chisholm Chisholm & Kilpatrick. My name is Brad Hennings and I’m going to be moderating a discussion about Gulf War Illness in the VA claims process. With me is Mr. Kerry Baker of the firm and Ms. Jenna Zellmer of the firm as well and they’re both well acquainted with the issues involving Gulf War Illness and how they’re compensated in the claims process. Jenna works primarily on the court, court side meaning that she practices before the Court of Appeals for Veterans Claims. And Kerry primarily practices at the Department of Veterans Affairs before the Regional Offices and the Board of Veterans’ Appeals. So let’s sort of start from the beginning and where– when and where was the Persian Gulf War?
Jenna: So thanks Brad. So, generally when you say Persian Gulf War people’s minds automatically go to the first Persian Gulf War which was in the early 1990’s and that was Operation Desert Storm, Desert Shield. But what a lot of people don’t realize is that we’ve had troops in that area, it’s called the Southwest Asia Theater of Operations since that time. And so the Persian Gulf War, when we’re talking about Gulf War Illness, that can be anyone who served in Operation Desert Storm or Desert Shield but also any of our more recent veterans. So, veterans who served in Operation Iraqi Freedom or Operation New Dawn and in some instances, which we’ll talk about, Operation Enduring Freedom in Afghanistan as well.
Brad: Okay. So, what kind of toxins and substances were veterans exposed to during the Persian Gulf War?
Kerry: Well, in a large part, it’s somewhat unknown and that’s kind of why we have the Gulf War regulations. Some things are known and some things are unknown, at the very least a combination of toxins and the known effects aren’t very well understood. But there are some very clear things people were exposed to, almost 800 burning oil wells during the Gulf War. Some isolated incidents of nerve gas released from explosions that either we caused or the Iraqis caused. There’s always some debate on that. There are lots of insecticides and pesticides, that person– people used personally like flea collars. There’s a lot of shots that people received. There were anti-nerve agent shots. Those really hadn’t been used to my knowledge prior to that conflict. So, obviously, lots of high levels of particulate matter because of that region of the world has about the highest level in the world of particulate matter. So, lots of various things like that were the typical exposures.
Brad: So, what is Gulf War Illness and is it the same as Gulf War Syndrome?
Kerry: Gulf War Illness, Gulf War Syndrome, they are pretty much used interchangeably. As far as the medical field is concerned, there is no Gulf War Syndrome. Alright? That’s not a diagnosis. Neither is Gulf War Illness. But it’s referred to like that just because of a lack of better terminology to figure out what do we call a sickness that Gulf War veterans have or groups of various symptoms that are unexplained or what have you. So, it’s just referred to as Gulf War Illness or Gulf War Syndrome for pretty much a lack of better terms.
Brad: Okay. So, what is VA’s presumption for Gulf War Illness or Gulf War Syndrome? And who qualifies? How does it work? Can you talk a little bit about that?
Jenna: Yeah. So, as veterans were coming back from this area which includes Iraq, Kuwait, Qatar, United Arab Emirates, a few other countries which I believe we’ll put a link to on our website. As they were coming back from these countries, VA and the government started realizing that a lot of these veterans were experiencing unexplained illnesses or symptoms. So, this includes unexplained fatigue, unexplained joint pain, sleep disturbance, psychological issues, respiratory issues. And there was no real reason why they should be experiencing these besides the fact that they had been coming back from the Persian Gulf. So, in the early 90’s, VA created this presumption that basically said, if you have served in these particular areas and you come back and demonstrate these signs or symptoms, we’re going to presume that those are related to your service and grant you service connection based on those symptoms.
Brad: So how does that actually work in practice?
Jenna: So, VA has set up three different categories of these signs or symptoms. So, the most straight forward is certain infectious diseases qualify for presumption. So, if you come back with malaria or West Nile Virus or any number of other infectious diseases and you’ve served in these qualifying areas, then you get service connected based on that. The other two areas are a little bit more complex and a little hard to navigate both from a veteran’s perspective and even VA sometimes has trouble navigating. So, that’s undiagnosed illnesses and then medically unexplained chronic multisymptom illness. And that can be shortened to MUCMI. It can be shortened to CMI for chronic multisymptom illness. Veterans will see a lot of different abbreviations for that group of symptoms. And so, basically, if you come back and you are complaining about a headache, a fatigue, joint pain, a cluster of these different symptoms that are under the undiagnosed category. But a doctor can’t figure out what’s wrong with you. VA may decide that you qualify for presumptive service connection because you have an undiagnosed illness. You have a cluster of signs or symptoms that are presumably because you served in the Persian Gulf.
Brad: So, this is Brad Hennings. I’m here with Jenna and Kerry from Chisholm Chisholm & Kilpatrick on Facebook Live. We just wanted to let everyone know if you’ve got any questions, please put them in the comments section and we will try to get to those questions later in this event. And if you can’t do it while this is live, please shoot us a message on our Facebook site and we will try to get back to you as soon as we can. So, that being said, what kind of symptoms qualify as an undiagnosed illness? What does that mean?
Kerry: It’s kind of a moving target at least as far as VA is concerned. Some things like joint pain, when you do not have a diagnosis like arthralgia is joint pain, neuralgia is nerve pain. But that’s not– like arthralgia is not the same as arthritis, which is inflammation in the joint either degenerative or traumatic or what have you. So, unexplained joint pain, unexplained nerve pain, unexplained breathing issues, any kind of objective evidence of a symptom that doctors can’t figure out the cause of, the actual diagnosis of. So, now it’s important to understand. You asked a question about undiagnosed illness. So we’re not talking about multisymptom illness or medically unexplained chronic multisymptom illness. Just undiagnosed illness. So, the history of that’s been really kind of terrible with VA because doctors don’t like to admit that they can’t diagnose a disability or what have you. So, they would usually tag a diagnosis to it and as soon as that happens, well, VA– especially in the first 10 years or so after the law passed, they would immediately deny the disability because it’s got a diagnosis. Even though it may have just been a doctor’s best guess or you may have had five or six different doctors call in something five or six different things, five or six different diagnoses. If you run in to that scenario, then it’s– that’s a good sign what you most likely have is an undiagnosed illness. But it can be almost any body system producing symptoms that just cannot be easily attributable to a non-diagnosis.
Brad: So, we just talked about undiagnosed illnesses and you sort of ran through how that works. But you also referenced the MUCMIs or the medically unexplained chronic multisystem illness. So, how does that differ from the undiagnosed illness and what are they exactly?
Kerry: Well, to understand it the best is to take a little step back. What we’re looking at here, these two things came from two different congressional actions. When the law was first passed in the 90’s, it only included undiagnosed illness. In early 2000’s, they added– Congress added multisymptom illness, chronic– well, I’ll just refer it to as multisymptom illness, so I don’t have to say the whole thing. And so, those are two different things but the reason Congress ended up adding the multisymptom illness, is because they were somewhat frustrated at VA on how they were adjudicating undiagnosed illness claims, that as soon as any physician or health care provider provided a descriptive label for a set of unknown symptoms or unexplained symptoms, then that resulted in a denial of benefits simply because there was what they considered a diagnosis of record, even though it really may not have been. Many people were calling arthralgias or neuralgias, things like that, a diagnosis. When all that is is a term for you have joint pain. So, Congress kind of got fed up with that and they added the multisymptom illness. The IOM had this too, the Institute of Medicine had something to do with that as well. But the difference is a multisymptom illness can be a diagnosed illness. It’s usually a diagnosed illness of unknown etiology or pathophysiology. Now that’s a moving target as well, as– especially, we here at Chisholm Chisholm & Kilpatrick know, we’ve litigated this subject. It is a very poorly understood term or set of terms. But the big difference is a undiagnosed illness is a set of symptoms that simply can’t be linked to a specific diagnosis. A multisymptom illness is a diagnosed illness that otherwise doesn’t have a known etiology or pathophysiology, such as chronic fatigue syndrome, irritable bowel syndrome, fibromyalgia. And I say irritable bowel syndrome, the regulation says functional G.I. disability. The statute still says irritable bowel syndrome.
Brad: So, is it possible to service connect any other diseases or symptoms under the Gulf War Illness umbrella?
Jenna: Yes. So, if you– I think Kerry kind of touched on this. So, the three listed symptoms and multi-medically unexplained chronic multisymptom illnesses are not a finite list. So, they’re just examples. They’re not exhaustive. So, you could have something that has a diagnosis. But still doctors don’t really know what the cause of it is. They don’t really understand how it’s– how it works in your body. And that’s what Kerry was talking about before with the no known etiology or a no known pathophysiology. If you can get a doctor to say that there’s no known etiology and no known pathophysiology, you can still get service connected under that MUCMI category. And Kerry mentioned before, we are still litigating that. As it stands right now, the law says, VA is saying that you have to have an unknown etiology and an unknown pathophysiology. You can’t just have one or the other. Both things need to be a mystery. CCK kind of disagrees and so, we’re still working on that at court. And so, as soon as we get a decision on that, I’m sure we’ll talk about it on our blog. But for the time being, if you have a diagnosed illness that is really totally unknown. We don’t know where it came from. We don’t know how it works. You can get service connected for a chronic multisymptom illness.
Brad: So, listening to both of you talk, it sounds as though this is a very complex or complicated area of the VA disability compensation scheme. Is that fair to say?
Kerry: It is insanely complex.
Brad: So, please talk– if you have a representative and you’re working on one of these claims, be it a veteran service organization, an accredited attorney or a VA accredited agent. Please talk to them about your particular claim. Now are there also infectious diseases that qualify as Gulf War Illnesses? I know we talked about some other categories. But–
Jenna: Yes. So, infectious diseases are that third category under this umbrella of Gulf War Illness. And there are nine infectious diseases right now that qualify. And, so if you have malaria, West Nile virus, a few other infectious diseases, that I’m not going to attempt to pronounce but are listed on our website. You can– if you served in the Gulf War and you come back with that disease, you can get service connect for that.
Brad: Great. So let’s talk a little bit about Gulf War Illness claims at the VA itself. So, Kerry does VA tend to fairly adjudicate these kind of claims? How do they treat them historically and now?
Kerry: In my opinion, no. They don’t treat them very fairly. A lot of that is driven by a very poor understanding of the history of the statute, the legislation, the regulation, a person’s time in the Gulf War. I mean there’s multiple reasons that drive that together with sort of, in my opinion, a group think mentality that- within VA that they understand it, that they’ve got it. That it has to be A, B or C in order to qualify for service connection under 3.317 or the Gulf War regulations. And it’s just not that simple. And that’s been proven time and again by the courts, that the courts have struggled with, the Board of Veterans’ Appeals has struggled with it. I think the Federal Circuit has done a really good job on some of their decisions with it. But the totality of the VA, the Board of Veterans’ Appeals, the courts, representatives such as ourselves, going back and forth on this subject, to me, shows that VA just does a very poor job at this. And I don’t see any indication they’re trying to make it easier to understand and better for veterans at the same time.
Jenna: I think that the big problem is that– we touched on this before. There’s a presumption. And so when VA makes a presumption that something should be service connected, it’s supposed to make it easier on the veterans to prove their claims. But as Kerry said, that’s not really the case and the Government Accountability Office recently found that about 80% of these types of claims are denied outright which doesn’t really seem to jive with the fact that you’re supposed to be able to benefit from this presumption. And so, Kerry talked about that there’s a lack of understanding. There’s kind of some poor training and it’s just like we keep saying, it’s a really complex area of law and it’s complex in the fact that it’s trying to get at all of these really complicated medical terms and figuring out how a disease really works from the inside out. And so, that kind of explains why it’s actually harder than it should be.
Brad: So, Kerry, can you talk a little bit about the VA’s Airborne Hazards and Open Burn Pit Registry? How does that play into everything?
Kerry: When it comes to these claims, it doesn’t really. Because it’s a VHA tool designed to give VA some data for their research efforts. But what that is, basically, is if you’re a Gulf War veteran and you want a full Gulf War examination, you can go to VHA and they will provide one. They’ll put you on the– you can sign up for the Gulf War registry. I don’t know how many people are on it now. But they’ve also opened it up to Iraq and Afghanistan veterans for burn pit claims which is technically something different than the normal Gulf War claims. But having one might give VA some data or additional data to try to help answer some of the unknown questions as far as helping a claim. I really haven’t seen examples where it benefits a claim one way or the other.
Brad: Okay. So, Jenna, how does the Board of Veterans’ Appeals which handles the appeals of VA claims within the VA, how do they handle them and what are some common issues that we then as a firm have to appeal to court?
Jenna: Yeah. So, Kerry mentioned earlier on, sometimes what the Board will do is look at a claim and see a diagnosis and immediately deny the claim because they are only focusing on whether or not a veteran has an undiagnosed illness. And so, we would see a lot of that probably a couple years ago, I think it’s gotten a little bit more sophisticated since then and as we’ve kind of litigated what a multisymptom illness is, we’ve seen less of that. But that was probably the most common error a while ago and now it’s kind of more into, well, does this specific diagnosis that isn’t chronic fatigue syndrome, fibromyalgia or a functional G.I. disorder, is this new diagnosis that’s not specifically listed in the reg, does that qualify as a MUCMI because that’s when the Board has a little bit less guidance. They can’t just check a box or like fit something into a box. They have to look at the evidence and that’s when we kind of figure out whether or not sometimes we actually attack exams because the examiner will make an opinion that’s not really fully informed. And so, those are the kinds of things we’re seeing at the Board and at the court a lot, trying to figure out whether or not a veteran’s specific diagnosis has a known etiology or a known pathophysiology because it is supposed to be a case-by-case analysis. It’s not just across the board, a disease either is or is not a MUCMI.
Brad: Well, so, Kerry, you talked a little bit about burn pits and how they’re different. Do burn pit-related claims fall under the Gulf War umbrella?
Kerry: I’ve seen VA mix the two up a lot in the past couple of years. Technically speaking, they do not– burn pit related claim is a claim for service connection of whatever disability you’re claiming based on direct service connection. In other words, you are exposed to some known element. You have a confirmed diagnosis. You have a nexus between the two. That is more of the standard claims process which is different than Gulf War Illness claims. But having said that, a lot of people that were exposed to burn pits in Iraq, since that’s part of the Southwest Asia Theater and since the Gulf War period is still running qualify for consideration of their claim under 3.317 or under the Gulf War regulations. Even though their claim might also qualify for consideration as resulting from exposure to burn pits or any of the other environmental hazards in Iraq and Afghanistan.
Brad: So, we just actually got a question from Julia. And the question is, do you have any insight on requesting a Gulf War registry examination? I have a situation where an exam from the 90’s is not in the claims file. And she hasn’t gotten it as part of the VAMC records. VA medical center records. And I’ll start with you, Jenna. And then–
Jenna: Yeah. So, it sounds like– from the question, it sounds like she has actually received the exam. She just wants a copy of it. And so, it’s– what she’s done so far, Julia, what you’ve done so far has been right, to request the c-file. And if it’s not in the c-file, that’s a little bit complicated, it’s possible that VA may have lost it along the way. That’s been known to happen. You could also try doing a FOIA request. But do you guys have any other thoughts on how to get it?
Kerry: I could add some things to that. And they may apply, they may not. But back in the 90’s, a lot of the VA medical centers were still using paper records. And after a while, the VA medical centers would– depending on where you were and what facilities they had available to them, would retire a lot of their paper records to some warehouse somewhere. Everything is in a computer system now. VHA has a few different ones. So, there’s a chance that it’s simply not in the medical center files any longer. It could have been retired which should still be retrievable. But just because it’s not in the claims file, it could still be actually in the computer system at VHA. A lot of people get confused and think, well I have file at VA, it’s all one VA. You should not think that. You have a claims file under control of the Veterans Benefits Administration. You have basically a medical file under control of the Veterans Health Administration. Now, sometimes they’re the same. But most of the time they’re not. Unless the VBA has requested records from VHA. Nowadays, they can just print them and put them in the claims file. Back then they weren’t doing it that much. So, the records may be at the VA medical center. If you haven’t tried that, I wasn’t sure from the message if you had. If you haven’t, then you would go to the Release of Records Office. The Records Information Office and ask for a copy of that. If you know about when you had it, they can usually search examinations from treatment notes, from certain diagnostic procedures. They can separate it out now in their computer system. So, if it’s in their computer system and just not in the claims file, I would say go directly to the medical center and request a copy of that. If they don’t have it, then I would ask the medical center where in the 90’s where are you keeping your paper records when you retired them and they may have to do a little footwork to obtain that. But they are supposed to be able to do that. So, I would give that a shot.
Brad: So, what can veterans do to help their Gulf War Illness claims through the VA adjudication process?
Jenna: So, I think we’ve talked about this a couple times. It’s really important to talk to your representative and if you don’t have a representative, I would definitely recommend getting one for these types of claims. They’re just really difficult to prove. The area of law is really complicated. And so, having someone either a VSO or an attorney who is a little bit more experienced than a layperson help you out would be really helpful. And then just any other way that you would support your claim. Writing out lay statements about what you remember about your symptoms, getting treatment records. As long as you’re documenting everything and making sure that everything is laid out as well as possible for the VA, you want to just make it as easy as possible for VA to grant your claim. And so, especially in these cases where the law is a little bit complicated and VA doesn’t do a great job. The best thing you can do is just be simple and straightforward and to the point. And have a representative.
Brad: So, it sounds like, based off of everything that we’ve talked about in terms of the law and in terms of the medical complexity, this isn’t something that your average doctor is going to necessarily be familiar with. So, what should a veteran do if their compensation and pension examiner that VA provides, seems to lack the knowledge or training about these Gulf War conditions?
Kerry: Well, and they probably will. Just to put that on the table. Somewhat it depends on the disability you’re talking about and the set of symptoms you’re talking about. So, if you’re having symptoms that they cannot diagnose which puts you in sort of in an undiagnosed illness category, that may actually even be a little bit easier than a multisymptom illness. One thing– because the examiner is going to be looking for certain things that they can put their hands on, that they can touch and feel and test for. And that may just be too much for an undiagnosed illness. You just may not ever uncover those things. So, the key to undiagnosed illnesses are the symptoms. So, my advice would be to keep track of those symptoms as you run into people in day-to-day life, especially family members and friends that notice those symptoms. Have them write lay statements for you. Now, they’re not doctors. They can’t diagnose you. But when it comes to Gulf War claims, lay evidence is supposed to be presumed credible when you’re talking about undiagnosed illness type issues. So, if you’re having major breathing problems or joint pain or nerve pain or any number of things that are unexplained, then make sure you paper the record as much as you can with lay evidence from credible sources who’ve seen you go through the symptoms that you’ve gone through. And so, even if the VA examiner then comes back and says, “Well, I can’t find anything and there’s no diagnosis.” Which they do, which of course if you’re claiming an undiagnosed illness, there probably shouldn’t be a diagnosis. That’s still going to support your claim. I would also say get a copy of your exams, when you go in for a C&P exam. But for any kind of Gulf War type illness claim, some– we still sometimes see this. We used to see it a lot. A couple of years ago, where an examiner would say I cannot diagnose an undiagnosed illness. It made me– they were literally saying there’s– you don’t have this diagnosis as if undiagnosed illness was a diagnosis. That should never happen for one. And that can be overcome in how you present your claim. So, I would say just look– keep an eye out for little items like that.
Brad: So, Jenna first, what are some examples of that lay evidence that can be provided? What kinds of folks could provide the lay evidence that Kerry is talking about to sort of fill in the gaps?
Jenna: Yes. So, friends and family members are probably the best source. A lot of times, we’ll see veterans whose wives provide really valuable lay statements because they’re the people– or wives or husbands because we have veterans who are men and women. But spouses, who– those are the people that they spend the most time with. And so, sometimes the spouses recognize signs or symptoms before the veteran themselves does. Coworkers are really helpful. And so are fellow service officers. If things started in service or if you’re trying to demonstrate that certain exposures or anything like that, you’re supposed to be presumed to have been exposed to these things. But it can never hurt to just pad the record. Your fellow service members were there with you. They presumably experienced the same things that you did and they were there and they’re competent and credible to report those types of things.
Kerry: If I could add a little bit more about the multisymptom illness part, kind of goes along with your question. Some people may feel that they’re kind of stuck in what they can do when they have a diagnosis of something and VA is denying them service connection for a multisymptom illness and it is more complex, there’s no two ways about that. But I, and again, a lot of it depends on the disability. But for instance, you have some type of immune disorder that– and which there are tons of immune disorders that cause any number of type of resulting disabilities. I’m just using that because it makes for a good example, a good teaching example. A lot of immune disorders don’t have any known etiology. And that doesn’t– now, that doesn’t mean all those types of similar immune disorders should be granted service connection. As Jenna said earlier, this is a case-by-case example. So, you want to make your case a case-by-case example. If you are treating with a physician, VA physician or private physician, try to get some information on the Gulf War, on what some of the exposures were. Try to explain the best you can how the Gulf War rules work to your physician. Ask your physician if what you have has a known cause, a known etiology. If it does not, ask the physician if they can kind of put that into some writing in a medical opinion for you or in your specific situation most importantly, does it have a known etiology or pathophysiology. Most things have a pathophysiology, but not etiology when it comes to some rare diseases. And so, that could help– at least if you prepare the case like that and be willing to fight the appeal in the long term, you’re going to have a lot better evidence in the record in which somebody can help you prevail in the claim.
Brad: With that, we have most of our planned questions done. So, I just want to see if there were any additional questions. Then that being the case, again, this has been Brad Hennings with Chisholm Chisholm & Kilpatrick with Jenna and Kerry. Do you have any last words to add about the subject, Jenna?
Jenna: I’m good.
Kerry: One more thing.
Brad: Yes, sir.
Kerry: Don’t forget direct service connection. Okay? When all else fails and sometimes it’s even easier to do this. You know, I’m a Gulf War veteran. I know what it was like over there. I remember the oil well fires, I flew helicopters right in the middle of those things, there was no sunlight in the middle of the day. There was lots of exposures. Some things you can define easier than others. So, if you believe what– some kind of defined illness that you have is related to a specific exposure, then work on a medical opinion or more on that route. If you can tie your disability to a specific exposure, then you don’t have to rely on the Gulf War regulations. And your claim might actually be much easier to win. So, keep that in mind. That’s all.
Brad: Well, that’s a great point. And if anyone has any additional questions or they see this after the time it’s being broadcast live, please send us a message either via Facebook or on our website at cck-law.com. Again, this is Chisholm Chisholm & Kilpatrick. And thank you for joining us today.