PGW claims based specifically on VA’s Persian Gulf War regulations
The Persian Gulf War (PGW) in Southwest Asia began in August 1990 and continues, for VA “period of war” purposes, to the present. The 1990-91 PGW involved approximately 750,000 military personnel. The PGW period of war currently extends to December 31, 2021. VA disability claims can be complicated and Gulf War veterans who file PGW claims may face a unique set of challenges.
PGW Environmental Hazards
Among the environmental hazards during the PGW were: smoke from over 750 Kuwaiti oil well fires; pesticide/insecticide use, including personal flea collars; indigenous infectious diseases, such as leishmaniasis; solvents and fuels; ingestion of pyridostigmine bromide tablets on a daily basis as a nerve gas antidote; the combined effect of multiple vaccines; and inhalation of ultra-fine-grain sand particles. Veterans began reporting chronic debilitating medical symptoms that typically included some combination of chronic headaches, cognitive difficulties, widespread bodily pain, unexplained fatigue, chronic diarrhea, respiratory problems, and other abnormalities.
VA’s Persian Gulf War regulations
After the 1991 Gulf War, Congress enacted statutory directives at 38 U.S.C. § 1117, which addressed a range of disabilities in veterans who served in Southwest Asia. VA then promulgated its regulations at 38 C.F.R. § 3.317. Although rarely applied correctly by VA, the law provides for presumptive service connection for a “qualifying chronic disability.” A qualifying chronic disability means a chronic disability resulting from “an undiagnosed illness” or “a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders.” If a veteran’s disability pattern is either one of these, then VA must grant service connection based on § 3.317. There are also numerous “infectious diseases” endemic to Southwest Asia covered under these laws (discussed below).
The PGW regulations are intended to provide a “presumption” of service connection for qualifying chronic disabilities. This means PGW Veterans are not required to prove exposure to these toxins or that such toxins caused the qualifying disability in order to validate a service connection claim.
What disabilities qualify?
An undiagnosed illness is generally a chronic disability without a “clinical” diagnosis. For example, “pain” may satisfy the criteria for an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (holding the plain language of § 1117 makes clear that pain may establish an undiagnosed illness that causes a qualifying chronic disability). Other examples of common terminology used to describe such symptoms are arthralgia and neuralgia.
VA defines a medically unexplained chronic multisymptom illness as a “diagnosed illness without conclusive pathophysiology or etiology.” Chronic fatigue syndrome, functional gastrointestinal disabilities, and fibromyalgia are examples of such diseases. Although multisymptom illnesses may be diagnosed, if the diagnosis is partially understood in terms of etiology and pathophysiology, then it will not be considered medically unexplained. The analysis must be conducted on a case-by-case basis. VA routinely fails to undertake this type of analysis.
Potential entitlement to service connection for an undiagnosed illness or to a medically unexplained chronic multisymptom illness does not currently exist for Post-9/11 veterans who served only in Afghanistan. This is because VA does not currently consider Afghanistan part of the Southwest Asia Theater of military operations for these two qualifying chronic disabilities. For the purposes of service connection for an undiagnosed illness or to a medically unexplained chronic multisymptom illness, VA considers eligible any veteran who served in the Southwest Asia Theatre of operations from August 2, 1990 to the present. This includes the following locations:
- Saudi Arabia
- The neutral zone between Saudi Arabia and Iraq
- The United Arab Emirates
- Gulfs of Aden and Oman
- Water of the Persian Gulf, Arabian Sea, and the Red Sea
- Airspace above these locations
*Veterans who served in Operation Iraqi Freedom (2003-2010) and Operation New Dawn (2010-2011) are eligible as well.
However, veterans with service in Afghanistan do qualify for service connection of the pertinent infectious diseases in the Persian Gulf War regulations listed below. All veterans who served in Southwest Asia, including Afghanistan, from August 1990 currently through December 31, 2021 potentially entitled to presumptive service connection for the following infectious diseases: (1) Brucellosis; (2) Campylobacter jejuni; (3) Coxiella burnetii (Q fever); (4) Malaria; (5) Mycobacterium tuberculosis; (6) Non-typhoid Salmonella; (7) Shigella; (8) Visceral leishmaniosis; and, (9) West Nile virus.
Exposure-related claims from PGW veterans are not restricted to these regulations if a veteran can otherwise show he/she has a disability directly related to an exposure event in Southwest Asia, such as the Kuwait oil fires.
These are complex regulations that VA has systematically failed in correctly applying to the appropriate cases. VA is now confusing the law regarding PGW claims discussed above, with its own policies on adjudicating claims based on specific environmental exposures, such as burn pits, in Post-911 Veterans who served in Operations Enduring and Iraqi Freedom. To read our blog post about OIF & OEF exposure-related claims, click here.
Category: Veterans Law