Claims Based on Undiagnosed Illnesses of Gulf War Veterans RVSR/ DRO Training January 2014 (updated 02/28/17) Claims Based on Undiagnosed Illnesses of Gulf War Veterans

References 38 CFR 3.317 M21-1MR, Part IV.ii.1.E (developing GW claims) M21-1MR, Part IV.ii.2.D (rating GW claims) TL 10-01 TL 10-03 FL 10-26 FL 11-09 GW VAE FAQ dated 9/25/2013

Objectives Define a Gulf War Veteran Identify the disabilities subject to SC under 3.317 Decide whether the necessary development for a GW claim has been completed Identify the requirements for a GW rating Identify when to consider environmental hazards outlined in TL 10-03

Evolution of claims based on undiagnosed illness

HIstory 11/02/94 Congress enacted the “Persian Gulf War Veteran’s Benefits Act,” Title I of the “Veteran’s Benefits Improvements act of 1994” PL 103-446 The PL added a new section, 38 U.S.C. 1117, authorizing the Department of Veterans Affairs (VA) to compensate any Gulf War (GW) Veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which manifested either during active duty in the Southwest Asia theater of operations during the GW, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the GW.

The 1998 change… The “Persian Gulf War Veterans’ Act of 1998,” PL 105-277, authorized VA to compensate GW Veterans for diagnosed or undiagnosed disabilities that  are determined by VA regulation to warrant a presumption of service connection (SC) based on a positive association with exposure to one of the following as a result of GW service: a toxic agent an environmental or wartime hazard, or a preventive medication or vaccine.  Note:  This PL added 38 U.S.C. 1118.

The 2002 change… The “Veterans Education and Benefits Expansion Act of 2001,” PL 107-103, expanded the definition of “qualifying chronic disability” under 38 U.S.C. 1117 to include, effective March 1, 2002, not only a disability resulting from an undiagnosed illness but also a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs and symptoms, and any diagnosed illness that is determined by VA regulation to warrant presumption of SC. Reference:  For more information on MUCMIs, see M21-1, Part IV, Subpart ii, 2.D.1.i.

Who is a gulf war Veteran?

GW Veteran Definition A Veteran who served on active duty military, naval, or air service in the Southwest Asia theater of operations during the GW period. IV.ii.2.D.1.e

gulf war period August 2, 1990 – present Presumptive period currently extends through December 31, 2021 (References 38 CFR 3.2(i) and 3.317(a)(i))

Southwest Asia theater of operations Iraq Kuwait Saudi Arabia Neutral zone between Iraq and Saudi Arabia United Arab Emirates Oman The Persian Gulf and Gulfs of Aden and Oman The Arabian and Red Seas

What is evidence of service in the SW Asia locaitons? These medals are sufficient to concede service in SW Asia: Iraq Campaign Medal Kuwait Liberation Medal Afghanistan Campaign Medal (service in Afghanistan only) The medals below are not conclusive of service in SW Asia and must be supported by other evidence in the record: Southwest Asia Service Medal Global War on Terrorism Service/Expeditionary Medal

What disabilities may be service connected under 38 Cfr 3.317?

Requirements for 3.317 disabilities Manifest to a compensable level (for presumptive SC) Cannot be attributed to any known clinical diagnosis or etiology Must be chronic (persisted for 6 months or more)

3 types of disabilities under 3.317 An undiagnosed illness An undiagnosed illness is a type of chronic qualifying disability where qualifying signs and/or symptoms cannot be attributed to any known clinical diagnosis by history, physical examination and laboratory tests. (IV.ii.2.D.1.h)

Continued… A medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms A medically unexplained chronic multi-symptom illness (MUCMI) is a type of chronic qualifying disability in which there is a diagnosed illness that has both  an inconclusive pathophysiology, and an inconclusive etiology overlapping symptoms and signs, and features such as fatigue and pain disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  MUCMIs include but are not limited to chronic fatigue syndrome fibromyalgia, or functional gastrointestinal disorders (FGIDs), excluding structural gastrointestinal diseases.

FGID’s Functional gastrointestinal disorders (FGIDs) are a group of diagnosed conditions that are a type of MUCMI.  They are characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease, and may be related to any part of the gastrointestinal tract.  Characteristic FGID symptoms include abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  FGID diagnoses include but are not limited to irritable bowel syndrome, and functional dyspepsia,vomiting, constipation, bloating, abdominal pain syndrome, or dysphagia.  Diagnosis of a FGID under generally accepted medical principles normally requires symptom onset at least six months prior to diagnosis, and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis.  Important:  FGIDs do not include structural gastrointestinal diseases, such as inflammatory bowel disease (such as ulcerative colitis or Crohn's disease) and gastroesophageal reflux disease, as these conditions are considered to be organic or structural diseases characterized by abnormalities seen on x-ray, endoscopy, or through laboratory tests.   Note:  The effective date of the amendment to 38 CFR 3.317(a)(2)(i) to include FGIDs was July 15, 2011. IV.ii.2.D.1.j

Continued… Infectious diseases

Undiagnosed illness Examples of symptoms: (taken directly from 3.317) Fatigue Skin symptoms Headache Muscle pain Joint pain Neurological signs or symptoms Neuropsychological signs or symptoms

Undiagnosed illness Examples of symptoms (continued): Respiratory symptoms Sleep disturbances Gastrointestinal signs or symptoms Cardiovascular signs or symptoms Abnormal weight loss Menstrual disorders

Multisymptom illness A diagnosed illness that is medically unexplained. Examples: Chronic fatigue syndrome Fibromyalgia Functional gastrointestinal disorders (added July 15, 2011)

Exceptions SC cannot be granted for undiagnosed or multisymptom illnesses when there is: Evidence that it was not incurred while on active in SW Asia Evidence of an intervening cause Evidence of willful misconduct

Infectious diseases Effective September 29, 2010 Includes SW Asia and Afghanistan Veterans Also requires a review of long-term health effects potentially associated with infectious diseases

What development is necessary for GW claims?

Gulf war claims development GW VCAA verbiage in the 5103 notification letter Verified service in SW Asia STRs/ clinical records of inpatient treatment VAMC/ private treatment records GW registry exam information

Special development notes What should we do if the Veteran has claimed exposure only? If multiple joint or muscle pain is alleged, what should we do?

Requesting VA Exams Necessary in most GW claims Request the GW General Medical DBQ How should lay evidence be considered? What if there is a clinical diagnosis of record? FAQ dated 9/25/13 on GW VAEs

Splitting hairs? When a Veteran has sought treatment for claimed chronic signs and symptoms listed in 38 CFR 3.317, it is likely that the medical provider has rendered a diagnosis for those symptoms.  However, the existence of a clinical diagnosis with specific etiology, which may weigh against 38 CFR 3.317 entitlement, does not preclude the ordering of an examination unless all symptoms claimed by the Veteran are clearly attributable to the diagnosis.   If there is a question as to whether the claimed signs and symptoms are attributable to an established clinical diagnosis, and if the criteria specified in M21-1, Part IV, Subpart ii, 1.E.2.a have been met, an examination is necessary.  In such cases when an examination is warranted, the VA examiner’s workup must include an assessment of whether signs and symptoms represent a disease with a clear and specific etiology or whether they fall into a different disability pattern. IV.ii.1.E.2.d

Reviewing GW DBQs The examiner must characterize each claimed GW disability as one of the following: An undiagnosed illness A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology A diagnosable chronic multi-symptom illness with a partially explained etiology; or A disease with a clear and specific etiology

Gulf War 1 and brain cancer Although there is no presumption of SC for brain cancer due to service in Southwest Asia, claims processors must develop these claims in accordance with the provisions of direct SC under 38 CFR 3.303 and the procedures contained in this topic. In the case of claims for brain cancer from Gulf War I Veterans, VA will request a medical examination or opinion when the claim contains competent medical evidence of a diagnosis of brain cancer establishes the Veteran served in the Southwest Asia theater of operations during Gulf War I, and does not otherwise provide sufficient evidence to decide the claim.  Since there is no presumptive basis for granting SC, the medical examiners will determine, on a case-by-case basis, whether the claimed brain cancer is linked to exposure to environmental hazards during Gulf War I. Important:  Examinations and medical opinions in these claims must be requested from the Veterans Health Administration (VHA).  The Acceptable Clinical Evidence (ACE) examination process may be used when processing these claims, when deemed appropriate. IV.ii.1.E.3.c

How do I rate a GW claim?

Deciding whether to grant SC If the examiner notes a disability pattern of an undiagnosed illness or medically unexplained multi-symptom illness, SC can be granted under 3.317. If the examiner notes a diagnosed disability with an etiology, SC cannot be granted under 3.317. But wait – what about direct SC??

Granting SC under 3.317 Include GW Special Issue in VBMS RFEs: When and if to schedule them DCs Example: 8881-8100

Reasons for denial Result of a known clinical diagnosis Not chronic (6 months) Intercurrent cause No evidence the claimed condition existed Not compensable

Environmental Hazards

Environmental Hazards DoD has identified a number of specific environmental hazards at military installations in Iraq, Afghanistan, and elsewhere that could present health risks.  These hazards include large burn pits throughout Iraq, Afghanistan, and Djibouti on the Horn of Africa particulate matter in Iraq, Afghanistan, and Djibouti on the Horn of Africa a large sulfur fire at Mishraq State Sulphur Mine near Mosul, Iraq hexavalent chromium exposure at the Qarmat Ali Water Treatment Plant at Basrah, Iraq contaminated drinking water at Camp LeJeune, North Carolina, 1953 to 1987, and pollutants from a waste incinerator near the Naval Air Facility (NAF) at Atsugi, Japan. IV.ii.2.C.5.a

Burn Pits Some examples of burned waste products include polycyclic aromatic hydrocarbons formed during the incomplete burning of coal, oil and gas, garbage, or other organic substances volatile organic compounds (VOCs) emitted as gases from certain solids or liquids, and toxic organic halogenated dioxins and furans to include those associated with tactical herbicide use in Vietnam. In Iraq, Afghanistan, and Djibouti on the Horn of Africa from approximately 2001 to the present, the U.S. military has utilized large burn pits to dispose of waste at every location wherein the military has positioned a forward operating base (FOB). Example:  Joint Base Balad, also known as Logistic Support Area (LSA) Anaconda located in Northern Iraq approximately 68 kilometers (km) north of Baghdad and 1.5 km from the Tigris River. IV.ii.2.C.5.b and c

Particular Matter Particulate matter is a complex mixture of extremely small particles and liquid droplets that results from primary sources of dust storms and emissions from local industries.  Particulate matter is made up of a number of components to include acids (such as nitrates and sulfates) organic chemicals metals, and soil or dust particles. Notes:   Although particulate matter emissions from natural and man-made sources are generally found worldwide, the particulate matter levels in Southwest Asia and Djibouti on the Horn of Africa are naturally higher and may present a health risk to service members. Particles that are typically a health concern include those with a diameter less than or equal to 10 microns and those with a diameter of 2.5 microns and smaller.  The smaller particles are considered more harmful as the particles can pass through the throat and nose and enter the lungs. IV.ii.2.C.5.d

Sulfur Fire at Mishraq State Sulfur Mine near Mosul, Iraq On June 24, 2003, a fire ignited at the Mishraq State Sulfur Mine Plant in Northern Iraq.  The fire burned for approximately 3 weeks and caused the release of roughly 42 million pounds of sulfur dioxide (SO2) per day as well as release of hydrogen sulfide (H2S).  Field sampling data showed that the levels of SO2/H2S were not solely located in the immediate vicinity of the fire.  Other areas found to be affected included Qayyarah Airfield West (Camp Q West), which is 25 km to the south and is a major military supply airstrip as well as the primary area of deployment for the 101st Airborne Division, and the area approximately 50 km to the north up to the Mosul Airfield area. Important:  A roster of firefighters and support elements that participated in controlling the fire identifies involved individuals as primarily from the 101st Airborne Division – 52nd Engineer Battalion, 326th Engineer Battalion, and 887th Engineer Battalion. IV.ii.2.C.5.e

Respiratory for Sulfur Fire From late 2004 through February 2007, 41 soldiers with prior exposure to the Mishraq State Sulfur Mine Fire from the U.S. base for the 101st Airborne Division located in Fort Campbell, Kentucky, reported unexplained shortness of breath on exertion and were referred to a pulmonary specialist at the Vanderbilt Medical Center for evaluation.  As of February 2007, 19 personnel were diagnosed with constrictive bronchiolitis by open lung biopsy. Constrictive bronchiolitis (also known as bronchiolitis obliterans) is an inflammatory and fibrotic lesion of the terminal bronchioles of the lungs.  Possible causes include inhalation exposures, organ transplantation, certain drugs, and collagen vascular disorders. In most cases of constrictive bronchiolitis, affected soldiers are comfortable at rest and are able to perform activities of daily living.  Soldiers can have normal or near-normal pulmonary function tests (PFTs) and normal x-rays but, at the same time, become short of breath on slight physical exertion, experience inability to meet physical training requirements, and even be considered unfit for deployment.  In some cases, symptoms can be incorrectly attributed to asthma or COPD. IV.ii.2.C.5.f and g

Qarmat Ali Water Treatment Plant in Basrah, Iraq From approximately April through September 2003, Army National Guard (NG) personnel from Indiana, West Virginia, South Carolina, and Oregon served at the Qarmat Ali Water Treatment Plant in Basrah, Iraq, and were assigned to guard contract workers who were restoring the plant. At that time, testing verified that sodium dichromate, a source of hexavalent chromium (Chromium VI), that was previously used as a corrosion-preventing chemical by former Iraqi plant workers, was found on the ground and measured in the air. Chromium VI in sodium dichromate is a lung carcinogen through inhalation and an acidic compound that can cause immediate irritation to the eyes, nose, sinuses, lungs, and skin.  The Army could not specifically trace symptoms to the chromium exposure.  Research into the effects of the exposure is ongoing. If a Veteran served in an NG unit located in Indiana, West Virginia, South Carolina, or Oregon between April and September 2003, DoD has confirmed that the Veterans served at the Qarmat Ali Water Treatment Plant in Basrah, Iraq.  Therefore, exposure can be conceded for these personnel. IV.ii.2.C.5.i

Waste incinerator near NAF Atsugi, Japan Between 1985 and 2001, personnel at NAF Atsugi were exposed to environmental contaminants due to an off-base waste incinerator business known as the Jinkanpo or Shinkampo Incinerator Complex, which was owned and operated by a private Japanese company.  Identified chemicals included: chloroform 1, 2-DCE methylene chloride TCE chromium dioxins and furans, and other particulate matter.  Important:  Handle disability claims based on exposure to environmental airborne contaminants at NAF Atsugi on a case-by-case basis.  Actual service at the installation during the timeframe of environmental contaminants must be established. VI.ii.2.C.5.j

Evidence of exposure Thoroughly review military personnel records and service treatment records (STRs) (to include the Post-Deployment Health Assessment (PDHA) and Discharge Examination) for evidence that corroborates the Veteran’s statement of exposure.  The PDHA includes specific questions relating to exposure incidents.  In addition, because military service records will not verify all incidents of exposure, it is important to consider alternate evidence in establishing whether the Veteran participated in or was affected by an in-service environmental hazard exposure incident.  Alternate evidence includes personal statements buddy statements unit histories news articles, and other lay evidence.  IV.ii.2.C.5.k

Camp Lejeune Contaminated Water Between 1953 to 1987, persons residing or working at the U.S. Marine Corps Base at Camp Lejeune, North Carolina, were potentially exposed to drinking water contaminated with VOCs.  Contaminants included tricholoroethylene (TCE) perchloroethylene (PCE) benzene vinyl chloride, and other VOCs. SC for any disease alleged to have been caused by contaminated water at Camp Lejeune requires evidence of a current disease evidence of service at Camp Lejeune during the period of contamination, and a medical nexus between the two, justified with a rational scientific explanation.  Important:  Adjudication of claims based on contaminated drinking water on the Marine Corps Base at Camp Lejeune, North Carolina, has been centralized to the Louisville, Kentucky, Regional Office. Handle disability claims based on exposure to contaminated drinking water at Camp Lejeune on a case-by-case basis.  Actual service at the installation during the timeframe of water contamination must be established. IV.ii.2.C.5.o

Continued… The following is a non-exclusive list of diseases potentially associated with exposure to contaminants present in the Camp Lejeune water supply between 1953 and 1987: esophageal cancer lung cancer breast cancer bladder cancer kidney cancer adult leukemia multiple myeloma myelodysplastic syndromes renal toxicity hepatic steatosis female infertility miscarriage, with exposure during pregnancy scleroderma, and neurobehavioral effects. Notes:  Manifestation of any of these diseases in a Veteran with verified Camp Lejeune service between 1953 and 1987 is sufficient to initiate a VA medical examination, and request an opinion regarding its relationship to Camp Lejeune service.   There are currently no presumptive diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy.  Therefore, this listing is only meant to serve as a guide for determining when a VA examination should be scheduled.  IV.ii.2.C.5.p

Stay…what’s a Stay? On September 9, 2016, the Department of Veterans Affairs (VA) published a proposed regulation in the Federal Register proposing to amend 38 C.F.R. §3.307 and §3.309.  The proposed rule establishes presumptive service connection for former Servicemembers, to include Veterans, Reservists, and National Guard members, exposed to contaminants in the water supply at Camp Lejeune between August 1, 1953 and December 31, 1987, and who later develop one of the following eight diseases: kidney cancer non-Hodgkin’s lymphoma multiple myeloma leukemias liver cancer Parkinson’s disease scleroderma, and aplastic anemia/myelodysplastic syndromes, and bladder cancer. Denials of SC for the following claimed conditions based on exposure to the Camp Lejeune contaminated water are stayed until further notice. ***As of 2/28/17 IV.ii.2.C.5.q

Questions?

Review Question #1 What is the earliest date SC may be granted for any GW disability under the provisions of 38 CFR 3.317? November 2, 1994

Review Question #2 Name 3 locations that are included in the SW Asia theater of operations. Iraq, Kuwait, Saudi Arabia, neutral zone, UAE, Oman, Gulfs of Aden and Oman, Persian Gulf, Arabian and Red Seas

Review Question #3 What are the 3 categories of disabilities that may be service connected under 38 CFR 3.317? 1 – Undiagnosed Illness 2 – Medically unexplained chronic multi-symptom illness 3 – Infectious diseases

Review question #4 True or false: SC can be granted for diagnosed disabilities under 38 CFR 3.317. True In what circumstances? When it is a medically unexplained chronic multi-symptom illness or an infectious disease.

Review question #5 What action should be taken if the Veteran claims multiple joint or muscle pain? The VCAA letter should request that the Veteran specify the joints/ areas involved.

Review question #6 What development should be done regarding Gulf War Registry exams? The Veteran should be asked if he/ she was included in the VHA Persian Gulf Health Registry, and if examined, when and where. This exam should be obtained from the appropriate VAMC.

Review question #7 Name the 4 categories the VA examiner must use to classify claimed GW disabilities. 1 – Undiagnosed illness 2 – Diagnosable, but medically unexplained multi-symptom 3 – Diagnosable multi-symptom with partially explained etiology 4 – Disease with clear and specific etiology (DM,MS)

Review question #8 True or false: When a Veteran submits a claim for a GW related disability, direct SC may never be granted. Please elaborate. False. If there is an event in service (such as exposure, treatment, etc.), a current diagnosis, and a link between the two provided by an MO, then direct SC under 3.303 may be granted.

Review question #9 Identify the 2 ways a GW rating is different than a “regular” rating decision. 1 – Special issue in VBMS 2 – “88” DC

Review question #10 What type of evidence may we accept regarding exposure to burn pits? Lay testimony if they served in Iraq, Afghanistan, or Djibouti.

Bonus question! When does service in Afghanistan “count”? Under 3.317(c)(2) for infectious diseases and the environmental hazards outlined in TL 10-03 (direct SC).