VA Publishes Employee Training Letter Expanding Reach of Gulf War illness Claims

VA acknowledges “25 percent” of Gulf War veterans are ill; Expands coverage to Afghanistan War veterans

Written by Anthony Hardie, 91outcomes Publisher/Editor

(91outcomes.com) – Coming on the heels of U.S. government recognition of the reality of Gulf War Syndrome and news that VA will reopen thousands of veterans disability claims, the federal VA has published specific new guidance to its employees regarding Gulf War veterans’ claims that should open the door to approval for thousands of veterans previously denied.

Overtly acknowledging that 25 percent of the 697,000 veterans of the 1991 Gulf War suffer from disabling and chronic multi-symptom illness, the highly technical training letter, entitled, "Adjudicating Claims Based on Service in the Gulf War and Southwest Asia,” was issued by VA on February 4, 2010 as part of a broader “culture change” in the agency for veterans of the 1991 Gulf War that includes dramatically modifying the department’s programs and procedures to provide long awaited help for these veterans.

Read last week’s article, “VA cites “Culture Change” for Gulf War veterans.”

The changes to Gulf War veterans’ disability claims were among those publicly announced last week at a meeting of the Congressionally chartered Research Advisory Committee on Gulf War Veterans’ Illnesses by VA Chief of Staff John Gingrich, the Obama Administration’s highest ranking veteran of the 1991 Gulf War.  In his remarks, Gingrich said these issues are, for him, “personal,” noting that as a ground commander during the war, a number of his troops fell ill and have remained disabled since the war.

Since the 1990s, federal law has authorized service-connected disability compensation for Gulf War veterans suffering from “undiagnosed illness” – a gateway determination that also allows for VA health care and other benefits.

Until now, however, VA interpretations of the governing laws have been narrow, with few claims approved for patterns of chronic disability and excluding all but three “ill-defined” conditions that ultimately receive a diagnosis.  Gulf War veteran advocates have publicly expressed their concerns that veterans claims were being denied as “diagnosed” conditions, when in actuality the “diagnoses” were just labels for unexplained symptoms that were part of a larger patter of disability, such as widespread pain, chronic sinusitis, and chronic migraines.  These denials were despite the fact that doctors are trained to diagnose and label conditions and symptoms, as the new training letter explicitly notes and seeks to correct. 

Those three “ill-defined” conditions, which VA has previously allowed to be service-connected under the “undiagnosed illness” laws, are Fibromyalgia (FMS), chronic fatigue syndrome (CFS/ME), and irritable bowel syndrome (IBS).  Even still, this practice has come under fire by Gulf War veteran advocates, who note that only the chronic fatigue syndrome diagnosis can be rated by VA as totally disabling.  The other two, fibromyalgia and irritable bowel syndrome, “max out” at 40 percent and 30 percent disabling, respectively, despite the fact that many Gulf War veterans are severely or even totally disabled by these ill-defined but diagnosed conditions. 

With the new policies announced in the letter, VA clarifies that these three conditions are only “examples,” and not an exhaustive list of allowable ill-defined conditions, as was often seen to be the case in previous rating decisions.

These limitations have led to the denial of most Gulf War veteran claims made under the “undiagnosed illness” category, and have left veterans’ service officers with no other option but to file claims seeking direct service connection for Gulf War veterans’ diagnosed conditions and symptoms – a much more difficult case to prove and exactly the situation that Congressional leaders sought to prevent with the enactment of laws allowing for undiagnosed and ill-defined illness.

The exact numbers of denials are unclear because VA is scrubbing its Gulf War Veteran Information System reports that report the number of Gulf War veterans’ claims received and approved.

According to the VA’s training letter, diagnosed multi-symptom conditions of unexplained origin that feature symptoms including, but not limited to the following list, will qualify under the newly clarified rules:

Chronic multi-symptom illnesses include, but are not limited to: (1) fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders.

The new rules further state, “There may be instances where a chronic undiagnosed illness or diagnosed multi-system illness affect distinct body systems. In such a case, a determination should be made that is most consistent with the evidence and most beneficial to the Veteran.”

However, diabetes and multiple sclerosis (MS), which VA states in the letter are of partially explained etiology, are specifically excluded.

The new policy letter, distributed internally to disability claims and medical examiners, seems to add credence to Gingrich’s public comments, which are echoed in the letter’s statement that the changes, “will allow medical examiners more latitude in evaluating disability patterns based on service in Southwest Asia.”

The letter also clarifies that veterans who have served in the Persian Gulf after the 1991 Gulf War will continue to be eligible for service-connection for unexplained or undiagnosed chronic multi-symptom illnesses.  And, the letter notes that VA is expanding the geographic area of service for “UDX” to include veterans with service in Afghanistan, with formal regulations forthcoming.

Gingrich said that veterans previously denied will be sent a letter providing the details of the new rules and information on how to have their claim reopened.  Despite previously misleading headlines, VA will reopen claims, but only if requested by the veteran.

The only bad news in the letter, if it is indeed bad news, is that potentially eligible veterans who have claims currently pending and would be positively affected under the new regulations will see their claims held until the new regulations are formally issued.  According to VA:

“Until the amended regulation becomes final, regional office personnel will be required to hold any claim where the medical evidence shows a disability pattern that is not one of the three currently identified.”

The silver lining of that cloud is that veterans should do much better under the new rules – exactly what Congress originally intended and Gulf War veterans’ advocates have long argued.

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More about the Letter

The letter begins with a “History of Disability Patterns Associated with Gulf War and Southwest Asia Service,” which states, in part that for these veterans, that:

…patterns of chronic debilitating medical symptoms..typically
included some combination of chronic headaches, cognitive difficulties, widespread bodily pain, unexplained fatigue, chronic diarrhea, skin rashes, respiratory problems, and other abnormalities. These symptoms did not correspond easily to recognized categories of diseases and presented a problem for health care diagnoses and treatment procedures, as well as for regional office decision makers attempting to adjudicate claims for disability  compensation.

Because the problem involved a significant percentage of Gulf War Veterans, estimated at 25 percent, [VA] initiated studies seeking to explain these chronic illness patterns.

The report then goes on to describe the types of multi-symptom illness experienced by this 25 percent of Gulf War veterans.

The RAC study indicates that service in Southwest Asia may be associated with disturbances of the brain and central nervous system, including dysfunctions of the autonomic nervous system, neuromuscular system, neuroendocrine system, and sensory systems, as well as the immune system.

The report provides an interpretive history of the laws and regulations related to undiagnosed illness and unexplained chronic-multi-symptom illness in Southewest Asia veterans, and provides detailed technical guidance for VA personnel involved in rating procedures and medical exams.  A clarifying letter to VBA claims examiners in also included.

The letter also notes that while the laws and regulations creating “Undiagnosed Illness” as a presumptive service-connection for veterans of the 1991 Gulf War, they remain in effect to the present and therefore include veterans of current operations in Iraq, as well as in the interim between 1991 and 2003. 

Additionally, the letter notes that VA has interpreted the applicable “Southwest Asia” region to include service in Afghanistan, thereby making an equal playing field for those with post-9/11 service in the region, for whom, according to VA:

…information is accumulating that indicates environmental hazards may also be widespread in the current theater of Gulf War operations and may contribute to the disability patterns typically associated with Southwest Asia service.

The letter states that a regulatory amendment is forthcoming that will make this “inclusive of Afghanistan” interpretation official.

The letter was signed by Brad Mayes, VBA’s director of the Compensation and Pension Service.  Mayes has had an upwardly mobile career with VBA that, among others, included service at Bay Pines, Fla., Ohio, and as assistant director of the VA Regional Office in Milwaukee, Wis. under then-director John Baker.

The letter is dated February 4, 2010, and is available in the 91outcomes document archives.