Most people have heard of Gulf War Syndrome, especially those familiar with military or veteran populations. Previous blogs on our website have discussed “Gulf War Syndrome” and some of the nuances associated with obtaining service-connection for conditions that may fall under the Gulf War Syndrome umbrella. However, after recently working on a case involving a Persian Gulf War veteran, I felt it was important for me to blog about some important points that I recently “rediscovered” when working on my case.
First, it is important to know that 38 C.F.R § 3.317 provides for presumptive service-connected compensation for qualifying Persian Gulf War veterans with qualifying illnesses. A “Persian Gulf War veteran” is any veteran who served in the Southwest Asia Theater of Operations after August 2, 1990 during the Persian Gulf War. This definition is pretty broad, and even includes members of the military who are currently serving in these areas, because the end date for the Persian Gulf War has still not been set.
Second, it is important to know what it means for a condition to be “presumptive.” Essentially, this means that once the veteran proves he or she has a certain condition, then the VA will generally “presume” that this condition is related to military service. The beauty of presumptions is that the veteran does not have to “prove” that the condition is related to service. Once a presumption attaches, the VA concedes the nexus. Of course there are exceptions to this general rule, and there are times when the VA can rebut a presumption. However, if a presumption does attach, this is very powerful for the veteran.
Third, 38 C.F.R § 3.317 specifically defines the qualifying, chronic disabilities (e.g. lasting 6 months or more) as falling into two categories:
- Undiagnosed Illnesses
- Medically unexplained chronic multisymptom illnesses (i.e. fibromyalgia, chronic fatigue syndrome, and functional gastrointestinal disorders) that are defined by a cluster of signs or symptoms The term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs
In my practice, I have found that the VA often misstates its own regulations as to Gulf War claims. For example, they will state that because the veteran has a “diagnosed” condition, he is not entitled to service-connection under this regulation. However, this is a misstatement of the law, because even if the condition is “diagnosed,” the veteran can still obtain service-connection if the condition does not have a conclusive pathophysiology or etiology, and otherwise meets the requirements of the regulations. Also, it is a misstatement of the law to state that fibromyalgia, chronic fatigue syndrome, and IBS are the only conditions that qualify as a “medically unexplained chronic multisymptom illness.” These are just examples of qualifying conditions, but this term can encompass any chronic disability without conclusive etiology. Lastly, even if Gulf War veterans are unable to prove service-connection through 38 C.F.R § 3.317, they are still eligible to prove service-connection through other means not involving the presumption, such as direct service-connection.
The take away is that the rules regarding service-connection for Gulf War Syndrome are pretty complex, even for us lawyers. However, if you are a Persian Gulf War veteran and you have a disability you believe is related to your war-time service, 38 C.F.R § 3.317 is a provision you should be familiar with.
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