Author Topic: Veterans Law Library - Gulf War Illnesses Claims (US)  (Read 930 times)

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Veterans Law Library - Gulf War Illnesses Claims (US)
« on: April 01, 2012, 06:44:02 PM »
Veterans Law Library - Gulf War Illnesses Claims (US)




Consult the web page for the referral links http://www.veteranslawlibrary.com/Gulf_War_Illnesses.html

Overview

Statutory Law

Regulations

Congress has provided that VA can grant benefits for undiagnosed illnesses and
chronic multisymptom illnesses related to service in the Gulf War.  Certain specified
medical conditions are also presumed to be related to Gulf War service. Under these
provisions, the claimant does not need a medical opinion that states that there is a
relationship between the illness or condition and any specific event in service. 
However, the claim will still need to be supported with adequate documentation of
the veteran's post-service symptoms. 

The special provisions relating to Gulf War Illnesses are found in 38 U.S.C. § 1117
[available here] and 38 U.S.C. § 1118 [available here].  In particular:

      Section 1117:

    * Subsection (a)(2) allows for benefits for "undiagnosed illnesses,"
      "medically unexplained chronic multisymptom illness[es]," and any
      other condition that VA recognizes as related to Gulf War service.


    * Subsection (g) lists thirteen "signs or symptoms that may be a
      manifestation of an undiagnosed illness or a chronic multisymptom
      illness."


      Section 1118:

    * Subsections (b) and (c) describe how VA can add additional
      conditions to the list of those that are presumed to be related to Gulf
      War service.


There have been recent legislative hearings to address the ongoing scientific
research into which conditions may be related to Gulf War service and what the
causes of those conditions might be.  Recent legislative hearings include:

    * H. Hrg. 111-39 -- The Implications of U.S. Department of Veterans Affairs'
      Limited Scope of Gulf War Illness Research, July 30, 2009 [link to House
      page for hearing]


    * H. Hrg. 111-21 -- Gulf War Illness Research:  Is Enough Being Done, May
      19, 2009 [download .pdf]


    * S. Hrg. 110-314 -- Oversight Hearing on Research and Treatment for Gulf
      War Illnesses, Sept. 25, 2007 [download .pdf]


    * H. Hrg. 110-38 -- Gulf War Exposures, July 26, 2007 [download .pdf]

VA's primary regulations implementing the laws related to Gulf War Illnesses is
38 C.F.R. § 3.317 [available here].  In particular:

    * Subsection 3.317(a)(2)(i)(B) recognizes chronic fatigue syndrome,
      fibromyalgia, and irritable bowel syndrome and chronic disabilities under the
      statute.


    * Subsection 3.317(a)(2)(i)(C)(ii) defines "medically unexplained chronic
      multisymptom illness" as "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."


    * Subsection 3.317(a)(4) generally requires at least a six-month history of
      symptoms in order for a condition to be recognized as chronic.

Selected Cases
A few cases relating to Gulf War illness claims:

      Federal Circuit:

      The Federal Circuit has not yet addressed any issues related to Gulf
      War Illness.



      CAVC:

    * Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) (addressing the
      procedural relationship between seeking benefits under 38 U.S.C. §
      1117 and the general entitlement law) [download .pdf]


    * Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (addressing
      conflicting evidence regarding whether a condition is the result of an
      undiagnosed illness) [download .pdf]


    * Gutierrez v. Principi, 19 Vet. App. 1 (2004) (addressing the
      relationship between undiagnosed condition and service) [download .
      pdf]

Federal Register Notices
When VA proposes or finalizes a regulation relating to Gulf War Illness conditions or
when it withdraws such a proposed regulation -- including the list of conditions that
are presumed to be related to Gulf War service -- it publishes a public notice in the
Federal Register (which all government agencies use to announce proposed and final
rule changes).

      Proposed Rules:

    * Presumptions of Service Connection for Persian Gulf Service.  75 Fed.
      Reg. 13051 (Mar. 18, 2010) [download .pdf]


      Notices


    * Determinations Concerning Illnesses Discussed In National Academy
      of Sciences Reports on Gulf War and Health, Volumes 4 and 8, 76
      Fed. Reg. 21099 (Apr. 14, 2011) (stating no new conditions would be
      added on the basis of these reports) [download .pdf]

Law Review Articles

    * James P. Terry, Gulf War Syndrome:  Addressing Undiagnosed Illness from
      the First War with Iraq, 1 Veterans L. Rev. 167 (2009) [available here]

Selected Books and Reports

    * Institute of Medicine, Gulf War and Health:  Updated Literature Review of
      Depleted Uranium (2008) [available as a free .pdf from the author]


    * Institute of Medicine, Gulf War and Health:  Vol. 5. Infectious Diseases
      (2007) [free .pdf summary available from the author]


    * Institute of Medicine, Gulf War and Health:  Vol. 4. Health Effects of Serving
      in the Gulf War (2006) [free .pdf summary available from the author]


    * Institute of Medicine, Gulf War and Health:  Vol. 3. Fuels, Combustion
      Products, and Propellants (2005) [free .pdf summary availabe from the author]


    * Institute of Medicine, Gulf War and Health:  Vol. 2. Insecticides and Solvents
      (2003) [free .pdf summary available from the author]
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