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VA’s Gulf War Presumptives

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Jenna: Good afternoon, and welcome to CCK’s Facebook Live. You may notice that we look a little bit different than normal. We are experiencing the same struggles and challenges as everyone else in the country due to COVID-19. But luckily CCK is fully operational and almost entirely remote and so we will continue to represent you as our clients and we will continue to be here. If you have any questions or if you need any help, please feel free to reach out to us during this time. But we’re just going to continue on and do the work that we need to do and that includes bringing you Facebook Lives every week.

So my name is Jenna Zellmer. I’m an attorney here at Chisholm, Chisholm and Kilpatrick. Joining me today are Emma Peterson, also an attorney at the firm and Bethany Cooke, who’s an accredited claims agent. Today we are going to be talking about Persian Gulf War Presumptive Service Connection which includes MUCMIs which we’ll get into a little bit later. So just to kick us off, I think the easiest way to start is to have Emma tell us a little bit about what exactly is Gulf War Syndrome and what veterans qualify for the Gulf War Presumptive Regulations?

Emma: In order to get the disability service-connected and we’re going to get into what those disabilities might be a little later in our discussion. You have to have qualifying Gulf War service and that means service in Southwest Asia. VA has decided that those countries include, things you’re probably familiar with Iraq, Kuwait, Saudi Arabia, but other locations too Bahrain, Omar and it also includes air and naval service. So if you were in the Arabian Sea, if you’re in the airspace above those locations, you also count as a Persian Gulf War veteran. For those folks that served starting with the first Gulf War in August 1990, all the way up through the present. So it encompasses everyone who served in Southwest Asia, starting again in 1990 with the start of the first Gulf War up through 2001 when we had 9/11 and then the invasion into the operations into Afghanistan and Iraq, and then through the present because we still have boots on the ground in all these countries. So that’s who counts for these presumptions that we’re going to talk about.

Jenna: Thanks. And I think that a lot of times, veterans who served in the more recent conflicts in the Middle East include some service in Afghanistan, and so sometimes veterans are wondering, does their service in Afghanistan qualify under the Gulf War Presumptive Service Connection?

Emma: Sure, so sometimes Afghanistan will qualify. It does not qualify for what’s called an undiagnosed illness or a Medically Unexplained Chronic Multisymptom Illness or MUCMI. But it will qualify for the Presumptive Service Connection for certain infectious diseases namely; things like Malaria, West Nile Virus, and a couple of other ones that don’t really roll off the tip of the tongue. But those are probably the two most ones that are common that people know about. So again, if you were in Operation Enduring Freedom in Afghanistan, while you can’t get the Presumption Service Connection for an undiagnosed illness or MUCMI, you could if you had an infectious disease. There’s a whole other series of things you could possibly pursue including burn pits for exposure if you were in Afghanistan. But today, we’re really focusing on the Presumptive Service Connection Conditions under VA’s regulations.

Jenna: Great! I think it’s important to note that’s kind of the purpose of the regulations and why VA chose to create this presumption. So, starting in the early 90s and continuing on veterans who had served in these areas that Emma just mentioned, it started coming back with some mysterious illnesses, symptoms they couldn’t really explain. Pain, fatigue, some GI issues that doctors either couldn’t diagnose or couldn’t really explain what had caused these diagnoses. The presumption was created to make it easier for veterans to get service-connected for these disabilities that there was really no other reason why they would have it other than the fact that they had served in these places in the Middle East. Part of the reason I think that they did that was because veterans who served here were exposed to a whole host of different issues including oil or fires a lot of different pesticides and insecticides.

Some chemical agents and they also had some experimental vaccinations. So all these things contributed to VA creating this presumption that is ostensibly supposed to help veterans get service-connected, the presumption is meant to make it easier. It doesn’t require as much proof to us as a traditional service connection claim but I think we’ll get into that a little bit later about whether or not that has actually come true when whether or not it is actually easier for these veterans to pursue these claims. So just a little bit of background, now that we know what veterans like where they served and what the purpose of the presumptive is. Maybe we can talk to Bethany a little bit about what exactly Gulf War illness is. So what does the veteran need to show in order to get these presumptive conditions?

Bethany: Sure. So I think first off, it’s important to know that Gulf War illness or syndrome isn’t a specific condition that you get diagnosed with. It’s a general terminology that is used to describe a wide range of symptoms and conditions that are experienced by Gulf War veterans. As to what specifics might qualify as a Gulf War illness or syndrome, there are three categories. So the first one, which Emma touched on a little bit is the Medically Unexplained Chronic Multisymptom Illness, which you might hear that referred to by the acronym MUCMI as well as the second category which be Undiagnosed Illnesses, and then the third category which would be the Infectious Diseases.

Jenna: Great! Besides showing where they served and when they served, what else is a veteran really need in order to qualify for the presumption?

Bethany: Sure. The symptoms for one of the conditions that falls into these categories. It would have had to have started either while the veteran was on active duty or currently before December 31st, 2021, or a future date that will be determined by Congress. Beyond that symptoms have to be chronic lasting more than six months and they also have to manifest to a degree of at least 10% disabling, and need to be caused only by service in the Southwest theater of operations. So what that looks like is a veteran needs to have medical records showing that they would have experienced these symptoms or one of the conditions within the applicable period.

Jenna: Great! So you come back from service in the Southwest Asia theater of operations and you go to a doctor because you have these mysterious illnesses. That’s kind of what you want to demonstrate in your claim. Is that right?

Bethany: Okay.

Jenna: Great! Bethany, you mentioned the three different kinds of categories that make up what we consider Gulf War illness or Gulf War syndrome. So let’s kind of go through those one by one. I think the most confusing one is MUCMI, so we’ll start with that. Bethany said, it’s Medically Unexplained Chronic Multisymptom Illness which is a mouthful, so a lot of times we refer to it as MUCMI every once in a while, you’ll hear it referred to as just CMI Chronic Multisymptom Illness but I think that medically unexplained part is really important, and so we refer to it as MUCMI. So, Emma, do you want to talk a little bit about what exactly a MUCMI is?

Emma: Sure. So a MUCMI is something that we’d actually deal with pretty often when we’re working on these claims. It’s not often that someone has no diagnosis altogether. So a MUCMI is a condition that has a diagnosis. So it could be something like asthma, it could be something like IBS, Irritable Bowel Syndrome, or fibromyalgia. So it’s diagnosed by a doctor you have symptoms, they know what it is but the regulation specifically says that it’s been diagnosed without conclusive pathophysiology or etiology. What that means is that we don’t know the cause of it, or we don’t know the mechanisms by which it’s working in your body and that’s a pathophysiology part. It’s really important for people to know that it’s or it’s either we don’t know the cause or we don’t know the pathophysiology. You don’t need to demonstrate both and that’s something that we litigated two years ago now. We’re successful in getting the court to agree that that is in fact what you need to show to be successful in these MUCMI claims.

Jenna: Yes, that was a case called Stewart because I know sometimes our viewers like to look at the cases themselves. But you can definitely find more information about Stewart on our website and any other website that you would normally look at for case law. Emma actually argued Stewart and so it’s very exciting to always get– it’s always exciting to get a favorable decision from the court. We put a lot of hard work into that, so good job, Emma,

Emma: Thank you. MUCMIs are near and dear to my heart. So a lot of ins and outs of them. But in addition to those sort of two factors, the unknown etiology, or unknown pathophysiology. You still need to have a multisymptom illness, you need to have a cluster of signs and symptoms. It still needs to manifest¬† to 10% within that time frame. There’s some other language in the regulation that talks about your symptoms be out of proportion with what regular testing would show. So there’s some more nuance there, but I think the main thing to take away its things like chronic fatigue syndrome, like fibromyalgia, like certain gastrointestinal disabilities. But that list is not exclusively, it could really be anything that we don’t know the cause of or the pathophysiology for.

Jenna: Right and the regulation explicitly lists those three examples of MUCMIs but I think it’s really important to know that if you don’t have one of those three like Emma said, it doesn’t mean that you’re out of luck. Sometimes VA will just see that you don’t have one of those three and just decide that you don’t have a MUCMI. But that’s why it’s really important to be able to navigate the rest of the regulation and know what you’re looking for in terms of clusters of signs and symptoms and inconclusive pathophysiology and inconclusive etiology because you can still make that argument that your specific diagnosis should meet the qualifications of a MUCMI. So its complicated area of law, I recommend talking to a Service Representative whether that’s a Veteran Service Organization or an attorney because this is definitely something that is constantly changing. Emma mentioned that we litigated this two years ago and it’s still new, and I think it’s a lot to navigate if a veteran is by themselves. So let’s move on to undiagnosed illnesses. Bethany, do you want to talk a little bit about what symptoms can qualify as an undiagnosed illness?

Bethany: Sure. So this one is a bit less of a mouthful than a MUCMI. You can probably guess that in this category, a condition qualifies if it does not have a diagnosis. So a lot of times, veterans would come back from the Southwest Asia theater and they would have symptoms. They would go to their doctors looking for help with these symptoms and the doctors won’t be able to give a diagnosis to explain why they were experiencing these symptoms. A list of some kind of general symptoms that veterans might have reported might be abnormal weight loss, fatigue, cardiovascular disease like Jenna mentioned before, a muscle and joint pain, headaches, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances. And again, these would be symptoms that are manifesting that unlike a MUCMI would not have a diagnosis but still manifested with the severity of at least 10% disabling within the applicable period.

Jenna: Great! I think something that I remember, a more senior attorney telling me once was that doctors don’t like to admit that they can’t diagnose you and so a lot of times doctors are going to try to give something a diagnosis or they’ll use a more general word that essentially means that if there’s no diagnosis. I’m thinking in terms of like muscle and joint pain in they’d rule that arthralgia a lot which really, it’s just a fancy word for joint pain. There’s not really as official diagnosis of any of those -algia type words. I think it’s important to talk to your doctor to determine whether or not they really can diagnose you, or if they’re just kind of trying to find a reason for your symptoms. Great. And then the last category is infectious diseases. Emma, do you want to talk a little bit about that?

Emma: Sure. So this category does include folks who are in Afghanistan. So before the MUCMIs, undiagnosed illness that’s just Southwest Asia. This does include Afghanistan and like I said, it includes people who contract with diseases like West Nile Virus, Malaria, Shigella things like that. It has to manifest within a certain time period. If you’re curious or you’ve had one of these conditions, you can look up the regulation 38CFR3.317 and it discusses different infectious diseases and time frames in which they need to manifest to a certain percentage. But I think that important to know is that some of these infectious diseases could cause long term conditions, hearing loss, maybe nerve damage things like that. So even if the disease is not active, you might be subsequently rated on its residual effects. So that’s sort of the important takeaway for infectious diseases. I hope you didn’t get one. But if you did, there’s going to be a presumptive service connection for you.

Jenna: Great, and then finally, I think that a lot of times veterans come back from this area and talk a lot about what they saw in terms of burn pits and there’s that burn pit registry that VA keeps. So, is there a difference between Presumptive Gulf War Illness and Burn Pit claims? What do veterans need to know about that?

Emma: Sure. So there is no presumption for burn pits. So there’s a couple of distinctions, I think number one is the time difference burn pits are going to be for folks who are in deploy after 911. Pretty much military had widespread use of burn pits, the largest being at Ballad. I think it’s something over 10 acres of just an open pit that was just burning day and night. Douse it was in jet fuel, light it ¬†on fire and they were burning anything and everything that they needed to get rid of because waste removal was not an option. So that applies to Southwest Asia and to Afghanistan but again, that’s after 2001. So it doesn’t– at least a registry and what we know of in terms of record-keeping and what reported and acknowledged, the burn pits were used after 2001, not for Gulf War one. So if you were deployed in the early 90s, and you’re claiming burn pits, maybe it happened, I can’t say. But the chances of VA conceding that that was something that you were exposed to or is pretty slim.

The second difference is that burn pit exposure is not a presumption. So VA hasn’t been instructed by Congress to create one, they haven’t made a regulation saying that, okay, if you show you’re exposed to a burn pit, you’re going to automatically get service-connected for these conditions. So to get when a service connection claim for burn pits, you still need to have medical evidence showing an nexus between what you were exposed to and the condition you developed. But the chemicals coming off these things are pretty nasty, includes benzene, all kinds of dioxins, some that are similar to the type of dioxins that you might find in herbicides that were used in Vietnam. So again, there’s a lot of stuff out there and ways to get these conditions service-connected but you do need to have evidence, it’s nexus evidence, it’s not just going to be presumed.

Jenna: Well, and then finally, Bethany, what are some common errors that you as an agent has seen VA make when it comes to adjudicating Gulf War claims?

Bethany: Yes. Unfortunately, we see a lot of errors in how VA is adjudicating these claims. I would say, working at the regional office and the board level. One of the major errors I see is in the way they conduct Compensation and Pension examinations. So a lot of the times a veteran will attend to Compensation Pension Exam for condition. We can use the example of cardiovascular disease and the examiner might provide a medical nexus stating that these cardiovascular diseases, generally known to be hereditary. Therefore these veteran’s diseases does not qualify as a MUCMI because the examiner has identified this kind of general etiology. But that’s a common error VA makes that that examination is not adequate.

We would want to point out there that the examiner can’t just provide an opinion based on the diseases as a whole. They do need to kind of apply other specifics of the veteran’s case. If they’re saying that this veteran’s cardiovascular disease is hereditary, then they need to provide an explanation other than just kind of this disease generally is known to be that way. Beyond that, often the way VA just gets Compensation and Pension examination is incorrect. This is important to remember that this is a presumption. But oftentimes the VA will try to get an examination and they think the examiner needs to provide some kind of opinion that the condition is at least as likely as not due to the exposure that the veteran experienced in the southwest theater.

But they’re kind of misunderstanding the presumption itself, what they need to figure out basically, it’s just whether the condition is of an unknown etiology or pathophysiology in the case of a MUCMI. If it’s either of those things and the presumption applies, and it should get service-connected. They don’t need any kind of medical opinion saying is, at least as likely as not due to the exposure that way they would, for example, in a burn pit case. So when they’re getting these kinds of examinations, the errors continue and you’ll often see the regional office and the board issue unfavorable decisions relying on these inadequate examinations to do so, which ends up being kind of misapplication of the law itself.

Jenna: That’s a really good synthesis for what kind of what they do. Emma, do you have any other thoughts about common errors that you’ve seen?

Emma: Sure, I think one of the common errors that I will see is VA does not even applying the regulation altogether. So they forget about MUCMIs, they’ll see and reading decisions but more often in board decisions. Someone, board member saying, well, these veteran’s diagnosed with the condition therefore 3.317 doesn’t apply. Moving on, there’s no evidence of direct service connection but forgetting they need to– it’s not just undiagnosed illnesses, it’s also diagnosed illnesses that are MUCMIs. So just only reading section A of the regulation and not following through with the rest of it could be problematic. I think also it’s, you might see some older decisions or decisions that get for whatever reason, copy and pasted throughout your appeal process. Using that older and incorrect understanding that you need to have an inconclusive pathophysiology and etiology. That is not in fact, the case but there was some incorrect instruction out there saying that you need both. So if that applied to you, that probably was a mistake and it should be looked at again.

Jenna: And then just some closing thoughts, what can veterans really do to build a strong case for their Gulf War claim to try to avoid some of these pitfalls that we’ve seen VA make? Bethany, what do you think?

Bethany: Step one, of course, is establishing that you served in the southwest theater of operations. So I would make sure that the VA has your service records establishing that you did serve there. If you’re a Navy veteran and you served in one of the Gulfs and your personal service records don’t establish that you served in those waters. I would recommend seeing if you can obtain your deck logs, to see if those can place you in that area. But after that, the next part is establishing that your condition meets the rest of the requirements. So you want to make sure you’re submitting medical records, showing what your symptoms are. If you are looking to get a MUCMI service-connected, then having a letter from your doctor saying that they can identify the cause of the condition, even something like that can be really helpful.

But beyond that, a VA does look for things like a family history when they’re getting these examinations. So I would also make sure that if VA getting exams that are negative to your case that you’re responding to them. This is something where I think it can be really important to look for representation to help you with because negative examination can really be used against you later on in the process. So if VA is getting inadequate examinations, I think it’s really important to kind of call them out on that and make sure that you’re stating that it’s inaccurate for them to be but lying on that. If you are looking to get a condition service-connected on the basis that is undiagnosed, then again, medical records are really important. Even just your regular treatment records from your VAMC, or your private treatment can really be all that’s needed to make an argument that the presumption should apply to you.

Jenna: Great! That’s really helpful. I think, yes, I would just echo I think that these particular claims are probably the most challenging despite the presumption, despite it intending to be more helpful for veterans. I think I would echo Bethany’s statement that getting some help whether it’s a VSO or an attorney is really helpful in these sorts of claims. Emma, do you have any final closing thoughts?

Emma: I think that Bethany really covered the bulk of what you need to have one of these claims be successful. I think another important thing is knowing that it’s out there and available to you. So especially for the folks that were deployed after 2001. Not only can you pursue your burn pit claim but you can also pursue these Persian Gulf War Presumptive claims and I think some people don’t know that. Some of the things are going to overlap. So make sure that you’re informing yourself and finding out what presumptions apply to you based on your periods of service and where you served. But I think that– like Bethany said, medical evidence is key as always as is making sure that you are thoroughly and carefully examining what VA is doing to develop your claim.

Jenna: We have a lot of information about Gulf War claims on our website. We have past Facebook Lives. I think we did a whole blog post and a Facebook Live on Stewart when it came out and so we would link to some of that down below and please feel free to visit our site at cck-law.com for more information. Thank you for joining us today. My name is Jenna Zellmer, joining me are Emma Peterson and Bethany Cooke. We hope that everyone is staying safe and healthy and we look forward to seeing you next week.