VA Recognizes 9 “Presumptive” diseases, Expands Gulf War Illness presumption

At same time, VA denies presumptive connection to depleted uranium exposure

Written by Anthony Hardie, 91outcomes 

(91outcomes.com) The U.S. Department of Veterans Affairs announced today that a proposed rule will make nine rare endemic infectious diseases presumptive for veterans with service in the Persian Gulf theater of operations between August 2, 1990 and a future date not yet determined.

In the related press release and an official notice of rule change in the Federal Register, VA also today announced that the theater is considered to include service in Afghanistan.

Nine Infectious Diseases

The nine infectious diseases approved by VA for presumption for veterans with Persian Gulf War theater exposure, including Afghanistan, include:

• Brucellosis,
• Campylobacter jejuni,
• Coxiella burnetii (Q fever),
• Malaria,
• Mycobacterium tuberculosis,
• Nontyphoid Salmonella,
• Shigella,
• Visceral leishmaniasis, and
• West Nile virus. 

According to VA:

For non-presumptive conditions, a Veteran is required to provide medical evidence that can be used to establish an actual connection between military service and a specific disease. With the proposed rule, a Veteran will only have to show service in Southwest Asia or Afghanistan, and a current diagnosis of one of the nine diseases. 
Comments on the proposed rule will be accepted over the next 60 days.  A final regulation will be published after consideration of all comments received.
The 1998 Persian Gulf War Veterans Act requires the Secretary to review NAS reports that study scientific information and possible associations between illnesses and exposure to toxic agents by Veterans who served in the Persian Gulf War.

According to VA: The [IOM] committee selected nine
infectious diseases that:

(1) Are prevalent in Southwest Asia,
(2) Have been diagnosed among U.S. troops serving there, and
(3) Are known to cause long-term adverse health effects.

Undiagnosed Illness Revision and Expansion

Today’s announcement comes three weeks after VA announced that it would be open to reviewing the claims of Gulf War veterans who have submitted claims for chronic, ill-defined or undiagnosed multi-symptom illness, which has often been termed “Gulf War Syndrome” or “Gulf War Illness.”

That announcement was confirmed by today’s release of the proposed rule change in the Federal Register.
To date, the list of unexplained presumptive conditions has included:

• Fibromyalgia
• Chronic Fatigue Syndrome
• Irritable Bowel Syndrome

VA Chief of Staff John Gingrich, the Obama Administration’s highest ranking Gulf War veteran, announced in late February that these three presumptive conditions were only “examples” of ill-defined or chronic multi-symptom illness, and that VA would be open to reviewing previously denied claims if requested by the veteran.

Unfortunate news headlines read that VA would reopen Gulf War veterans’ claims.  While partially accurate, the veteran must request that the claim be reopened.  Gingrich noted in his public announcement that VA does not have the legal authority to proactively reopen veterans claims.

A VA training letter issued a few weeks earlier to VA claims and medical examiners directed a much broader approach to approving disability claims based on multi-symptom illness, and that the three previous conditions were merely “examples” of undiagnosed illness.

The training letter calls for Undiagnosed Illness claims to be held until the new rule becomes final.

Depleted Uranium (DU)

The latest VA announcement on Gulf War veterans claims comes a week after a March 9, 2010 Federal Register announcement in which VA denied of presumption for a list of diseases that may have been related to exposure to depleted uranium (DU) in the Persian Gulf theater of operations. 

According to VA, “The selected health outcomes were ten types of cancer and several non-malignant diseases or conditions.  With the exception of prostatic and testicular cancers, the health outcomes were selected by the IOM because there are plausible mechanisms of action (for example, lung cancer and respiratory disease were selected because inhaled insoluble uranium oxides lodge in the lung).

The types of cancer VA denied presumption related to DU exposure were:

• Lung cancer,
• Leukemia,
• Lymphoma,
• Bone cancer,
• Renal (kidney) cancer,
• Bladder cancer,
• Brain and other central nervous system cancers,
• Stomach cancer,
• Prostatic cancer, and
• Testicular cancer.

The nonmalignant diseases or conditions VA denied presumption related to DU exposure included:

• Renal (kidney) disease,
• Respiratory disease,
• Neurologic disease, and
• Reproductive and developmental effects.

According to VA, “This determination does not in any way preclude VA from granting service connection for any disease, including those specifically discussed in this notice, nor does it change any existing rights or procedures.”

The VA based its DU denial decision on an Institute of Medicine (IOM) review of scientific studies that concluded that at this time, there is “Inadequate/Insufficient Evidence to Determine Whether an Association Exists.”

This category means that the [scientific] evidence is of insufficient quantity, quality, or consistency to permit a conclusion regarding the existence of an association between exposure to uranium and a specific health outcome in humans. 

IOM concluded that there is inadequate/insufficient evidence to determine whether an association exists between exposure to uranium and each health outcome described in the report because well-conducted studies showed equivocal results, the magnitude or frequency of the health outcome may be so low that it cannot be reliably detected given the sizes of the study populations, and the available studies had limitations that prevented the IOM from reaching clear conclusions about health outcomes.

Gulf War veteran advocates have been critical for many years of the lack of scientific studies related to inhaled or ingested depleted uranium particulate matter, almost certainly a common source of exposure for veterans of the 1991 Persian Gulf War and the 2003 U.S. invasion of Iraq who were at any time in or near military vehicles, buildings, and equipment that have been hit at any time in the past with DU rounds and have not been fully cleaned up.

DU is mildly radioactive and is a heavy metal, that, like lead and mercury, is highly toxic when inhaled or ingested.  Its long-term effects remain a subject of debate.

The DU decision by VA, based on “Inadequate/Insufficient Evidence to Determine Whether an Association Exists” nearly 20 years after the end of the 1991 Persian Gulf War, will likely only serve to continue that debate.

================================
Additional information: 

• Federal Register announcement of VA approval for nine infectious diseases, and new rules for consideration of undiagnosed illnesses: “Presumptions of Service Connection
  for Persian Gulf Service,” March 18, 2010:  https://www.federalregister.gov/articles/2010/03/18/2010-5980/presumptions-of-service-connection-for-persian-gulf-service 
• Federal Register announcement of VA denial of  DU claims: “Determinations Concerning Illnesses Discussed in the Institute of Medicine Report on Gulf War and Health: Updated Literature Review of Depleted Uranium,” March 9, 2010:  http://www.gpo.gov/fdsys/pkg/FR-2010-03-09/pdf/2010-4882.pdf
• VBA Training Letter 10-01, "Adjudicating Claims Based on Service in the Gulf War and Southwest Asia", February 4, 2010:  http://sites.google.com/a/91outcomes.com/docs/home/TL10-01.pdf?attredirects=0&d=1

===================================
Proposed 3.317 Rule Language
The Federal Register announces an intention to Revise § 3.317 to read as follows:

§ 3.317 Compensation for certain disabilities occurring in Persian Gulf veterans.

(a) Compensation for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses.
(1) Except as provided in paragraph (a)(7) of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability:  (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2011; and
(ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.
(2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following):
(A) An undiagnosed illness;
(B) The following medically unexplained chronic multisymptom
illnesses that are defined by a cluster of signs or symptoms:
(1) Chronic fatigue syndrome;
(2) Fibromyalgia;
(3) Irritable bowel syndrome; or
(4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.
(ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.
(3) For purposes of this section, ‘‘objective indications of chronic disability’’ include both ‘‘signs,’’ in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.
(4) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.
(5) A qualifying chronic disability referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.
(6) A qualifying chronic disability referred to in this section shall be considered service connected for purposes of all laws of the United States.
(7) Compensation shall not be paid under this section for a chronic disability:
(i) If there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or
(ii) If there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or
(iii) If there is affirmative evidence that the disability is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs. 

(b) Signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses. For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to:
(1) Fatigue.
(2) Signs or symptoms involving skin.
(3) Headache.
(4) Muscle pain.
(5) Joint pain.
(6) Neurologic signs or symptoms.
(7) Neuropsychological signs or symptoms.
(8) Signs or symptoms involving the respiratory system (upper or lower).
(9) Sleep disturbances.
(10) Gastrointestinal signs or symptoms.
(11) Cardiovascular signs or symptoms.
(12) Abnormal weight loss.
(13) Menstrual disorders.

For Brucellosis, the long-term health outcomes presumed to be connected proposed in the rule are:

• Arthritis.
• Cardiovascular, nervous, and respiratory system infections.
• Chronic meningitis and meningoencephalitis.
• Deafness.
• Demyelinating meningovascular syndromes.
• Episcleritis.

For the eight other infectious diseases listed (Campylobacter jejuni, Coxiella burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis, and West Nile virus), the long-term health effects presumed to be connected, as proposed in the rule, are:

• Fatigue, inattention, amnesia, and depression.
• Guillain-Barre´ syndrome.
• Hepatic abnormalities, including granulomatous hepatitis.
• Multifocal choroiditis.
• Myelitis-radiculoneuritis.
• Nummular keratitis.
• Papilledema.
• Optic neuritis.
• Orchioepididymitis and infections of the genitourinary system.
• Sensorineural hearing loss.
• Spondylitis.
• Uveitis.
• Guillain-Barre´ syndrome if manifest within 2 months of the infection.
• Reactive Arthritis if manifest within 3 months of the infection.
• Uveitis if manifest within 1 month of the infection.
• Chronic hepatitis.
• Endocarditis.
• Osteomyelitis.
• post-Q-fever chronic fatigue syndrome.
• Vascular infection.
• Demyelinating polyneuropathy.
• Guillain-Barre´ syndrome.
• Hematologic manifestations (particularly anemia after falciparum malaria and splenic rupture after vivax malaria).
• Immune-complex glomerulonephritis.
• Neurologic disease, neuropsychiatric disease, or both.
• Ophthalmologic manifestations, particularly retinal hemorrhage and scarring.
• Plasmodium falciparum.
• Plasmodium malariae.
• Plasmodium ovale.
• Plasmodium vivax.
• Renal disease, especially nephrotic syndrome.
• Active tuberculosis.
• Long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary and extrapulmonary tuberculosis and active tuberculosis.
• Reactive Arthritis if manifest within 3 months of the infection.
• Hemolytic-uremic syndrome if manifest within 1 month of the infection.
• Reactive Arthritis if manifest within 3 months of the infection.
• Delayed presentation of the acute clinical syndrome.
• Post-kala-azar dermal leishmaniasis if manifest within 2 years of the infection.
• Reactivation of visceral leishmaniasis in the context of future immunosuppression.
• Variable physical, functional, or cognitive disability.