Claims Based on Undiagnosed Illnesses of Gulf War Veterans - PowerPoint Presentation

Slide1

Claims Based on Undiagnosed Illnesses of Gulf War Veterans

RVSR/ DRO Training January 2014 (

updated 02/28/17)

Slide2

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

Slide3

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

Slide4

Evolution of claims based on undiagnosed illness

Slide5

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.

Slide6

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

.

Slide7

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

.

Slide8

Who is a gulf war Veteran?

Slide9

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

Slide10

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))

Slide11

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

Slide12

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

Slide13

What disabilities may be service connected under 38 Cfr 3.317?

Slide14

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)

Slide15

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)

Slide16

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.

Slide17

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

Slide18

Continued…

Infectious diseases

Slide19

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

Slide20

Undiagnosed illness

Examples of symptoms (continued):

Respiratory symptoms

Sleep disturbances

Gastrointestinal signs or symptoms

Cardiovascular signs or symptoms

Abnormal weight loss

Menstrual disorders

Slide21

Multisymptom illness

A

diagnosed

illness that is medically unexplained.

Examples:

Chronic fatigue syndrome

Fibromyalgia

Functional gastrointestinal disorders (added July 15, 2011)

Slide22

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

Slide23

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

Slide24

What development is necessary for

GW claims?

Slide25

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

Slide26

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?

Slide27

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

Slide28

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

Slide29

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

Slide30

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

Slide31

How do I rate a GW claim?

Slide32

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??

Slide33

Granting SC under 3.317

Include GW Special Issue in VBMS

RFEs: When and if to schedule them

DCs Example: 8881-8100

Slide34

Reasons for denial

Result of a known clinical diagnosis

Not chronic (6 months)

Intercurrent cause

No evidence the claimed condition existed

Not compensable

Slide35

Environmental Hazards

Slide36

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

Slide37

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

Slide38

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

Slide39

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 (SO

2

) per day as well as release of hydrogen sulfide (H

2

S).  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 101

st

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 101

st

Airborne Division – 52

nd

Engineer Battalion, 326

th

Engineer Battalion, and 887

th

Engineer Battalion

.

IV.ii.2.C.5.e

Slide40

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 101

st

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

Slide41

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

Slide42

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

Slide43

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

Slide44

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

Slide45

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

Slide46

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

Slide47

Questions?

Slide48

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

Slide49

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

Slide50

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

Slide51

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.

Slide52

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.

Slide53

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.

Slide54

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)

Slide55

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.

Slide56

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

Slide57

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.

Slide58

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).