By: Alicia Grana
Published: March 19, 2024
I. INTRODUCTION
More than 3.7 million veterans have served in the Gulf War, which began in 1990 and continues to the present day.[1] The regions that the Gulf War encompasses are known as the “Southwest Asia theater,” which includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Gulf of Aden, Gulf of Oman, Oman, Qatar, the United Arab Emirates, and the waters of the Persian Gulf, the Arabian Sea, and the Red Sea.[2] Some notable Gulf War military operations include Operation Desert Storm (January 17, 1991-February 28, 1991), Operation Enduring Freedom (October 7, 2001-December 28, 2014), and Operation Freedom’s Sentinel (January 1, 2015-August 31, 2021).[3] Throughout the aforementioned regions, service members have been subjected to a litany of environmental and chemical exposures.[4] These exposures include oil-well fire smoke, fuels, combustion products, propellants, pesticides, and solvents.[5] Notably, petroleum fuel was used to burn waste and garbage in open-air burn pits.[6]
Unsurprisingly, Gulf War veterans started experiencing a myriad of adverse health effects during or shortly after their service.[7] The symptoms include muscle and joint pain, memory loss, and gastrointestinal disorders.[8] Despite these complications, service members and veterans had difficulty submitting disability claims to the United States Department of Veterans Affairs (“VA”) because these health issues often were not easily attributable to any existing disease or illness.[9] To remedy this issue, Congress passed several statutes, including the Veterans Benefits Improvements Act and the Veterans Education and Benefits Expansion Act of 2001.[10] Even though the statutes did eliminate some hurdles, Gulf War veterans still experienced great difficulty in receiving compensation for undiagnosed illnesses that manifest an array of symptoms.[11] Then, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (“PACT Act”) was signed into law, which generally expanded VA health care and benefits.[12] Although the PACT Act did account for diagnosed multi-symptom illnesses, it did not assist Gulf War veterans in proving multi-symptom illnesses that are undiagnosed.[13] Thus, this gap in benefits causes a tremendous problem for Gulf War veterans because they frequently exhibit diseases with symptoms that cannot be attributed to any known clinical diagnosis.[14]
II. GOVERNING LAW PRIOR TO THE PACT ACT
Ordinarily, a veteran seeking disability compensation must show (1) a current diagnosed disability, (2) an in-service event, and (3) a causal link between the current disability and in-service event (also known as a nexus).[15] For Gulf War veterans suffering from a wide array of symptoms not reflected in existing diagnostic codes, establishing a disability claim is arduous.[16] One solution is establishing a “presumptive service connection,” when the VA automatically assumes that a veteran’s service engendered their condition.[17] Particularly, if a veteran has a presumptive condition, they don’t need to prove that their service caused the condition to receive benefits (as would otherwise be required in a typical service connection claim).[18] Historically, the VA has made certain conditions presumptive for different war-time eras, such as the Vietnam War and the Gulf War.[19] Regarding the Vietnam War, the VA has made several cancers, including bladder cancer, Hodgkin’s disease, and prostate cancer, presumptive conditions if the veteran served between January 9, 1962, and May 7, 1975, in Vietnam or a military vessel within twelve nautical miles of Vietnam, with more regions recently added by the PACT Act.[20]
Specifically, in the Gulf War context, Congress passed the Veterans’ Benefits Improvements Act in 1994, which provided compensation for “disabilities resulting from illnesses that cannot now be diagnosed or defined, and for which other causes cannot be identified” as well as required further research on the medical disability patterns associated with Gulf War service.[21] This presumption is called the “undiagnosed illness” presumption, which the VA implemented under 38 C.F.R. § 3.317.[22] The regulation lists thirteen symptoms that could be indicative of an undiagnosed illness, including abnormal weight loss, neurological signs and symptoms, and unexplained rashes.[23] Congress intended for Gulf War veterans suffering from this wide array of undiagnosable symptoms associated with service in the Gulf War to receive disability compensation.[24] However, this presumption provision seems not to have worked as intended because doctors, and the VA, are trained to make diagnoses.[25] When a veteran sees multiple doctors, they will receive one or more diagnoses related to their symptoms, even when the symptoms weakly resemble the diagnosis.[26] Once a veteran receives a diagnosis, the “undiagnosed illness” presumption no longer applies.[27]
In response to this dilemma, Congress enacted several statutes, including the Veterans Education and Benefits Expansion Act of 2001.[28] This legislation stated that Gulf War veterans were entitled to a presumption of service connection for “a medically unexplained chronic multisymptom illness [“MUCMI”] … that is defined by a cluster of symptoms.”[29] Similarly to the Veterans’ Benefits Improvements Act, the statute lists the same thirteen symptoms that could be indicative of a MUCMI.[30] The statute also includes Chronic Fatigue Syndrome (CFS), Irritable Bowel Syndrome (IBS), and Fibromyalgia as examples of a MUCMI.[31] Even though Congress intended for any diagnosed condition that includes a cluster of symptoms that are chronic and medically unexplained to qualify as a MUCMI, the VA has limited the application of the statute by continually only recognizing CFS, IBS, and Fibromyalgia as MUCMIs.[32]
To determine what conditions are presumptive for veterans, the VA relies on the National Academy of Sciences (“NAS”) to analyze scientific studies of the positive associations between different medical conditions and service-related exposures.[33] In 2010, NAS concluded that Chronic Multisymptom Illness (“CMI”), previously called Gulf War Illness and Gulf War Syndrome, was a distinct illness, involving a cluster of symptoms that are chronic, medically unexplained, and sufficiently associated with service in the Gulf War.[34] Therefore, because CMI meets the criteria of a MUCMI set forth in 38 U.S.C. § 1117 and is sufficiently associated with Gulf War service, the law mandates that a veteran suffering from CMI benefit from presumptive service connection.[35] So, CMI should be added to the list of presumptive conditions along with CFS, IBS, and Fibromyalgia.[36] In other words, CMI qualifies for presumptive service connection under 38 U.S.C. § 1117, and the VA should adopt regulations adding the illness to the list of MUCMIs entitled to a presumption as well as promptly providing a diagnostic code for use by doctors and VA adjudicators.[37] Because MUCMIs must be diagnosed and Gulf War veterans often are left undiagnosed, adding CMI to the MUCMI presumptive condition list would rectify this herculean obstacle currently plaguing veterans seeking benefits.[38]
III. THE PACT ACT, ITS FAULTS & NEXT STEPS
In August of 2022, the PACT Act was enacted.[39] The passage of the PACT Act was significant for many veterans because it extended healthcare access to veterans with toxic exposures in the Vietnam War, Gulf War, and post-9/11 eras, required the VA to provide toxic exposure screenings to every veteran enrolled in VA healthcare, and provided funds for research, staff education, and treatment for toxic exposures, among other improvements.[40] Moreover, exposures to toxins will be presumed if a veteran served in parts of the Southwest Asia theater, such as Iraq, Kuwait, Oman, Qatar, and Saudi Arabia, after August 2, 1990.[41] If exposure is established, certain conditions will be deemed presumptively related to that exposure, including several cancers.[42]
Even though the PACT Act added more than twenty burn pit and other toxic exposure presumptive conditions, the statute is not without its flaws.[43] Conducting scientific research on the alleged hazards related to Gulf War service is exceptionally hard because the VA does not have reliable information on who was exposed to what.[44] Mixing veterans with different exposures or no exposures at all can make it impossible to identify statistically significant relationships between alleged toxins and later health conditions.[45] Because of the inherent difficulties in maintaining records overseas during war times, a potential solution is the adoption of a self-reporting system.[46] In conjunction with relying on records created by the VA, veterans can document the symptoms they are experiencing themselves, along with the date and where they are at the time. Additionally, since the U.S. military has begun relying on digital records, veterans could self-report their symptoms electronically.[47] Ideally, this would allow the VA to receive self-reports in real-time. This solution is not without its flaws as well, but it is certainly a step in the right direction.
Moreover, the PACT Act hinders Gulf War veterans from receiving their warranted benefits because, as mentioned previously, the MUCMI regulations have major weaknesses that should have been remedied in the Act but were not.[48] The PACT Act should have added CMI to the list of MUCMI presumptive conditions along with CFS, IBS, and Fibromyalgia, and the MUCMI rating schedule, a guide for evaluating a disability related to service, should have been updated to include CMIs.[49]
For example, right now, there is just one rating schedule in the veterans benefits landscape for all mental disorders, including Post-Traumatic Stress Disorder (“PTSD”).[50] A thirty percent rating for PTSD is accompanied by symptoms like sporadic decreases in efficiency, including intermittent periods of the inability to perform tasks, such as self-care and routine conversations.[51] If further symptoms are present, such as failure to maintain employment or relationships, suicidal ideation, panic attacks, or emotional outbursts, the respective veteran may receive a seventy percent on the rating schedule.[52] With CMI absent from the MUCMI rating schedule, veterans are left without adequate reprieve.[53] While incorporating CMI into the rating schedules will undoubtedly be difficult from a scientific and economic theory standpoint, any action is often better than no action.[54] A simple start would be to assign percentage values to different symptoms associated with CMI, as well as a percentage value for being diagnosed with a CMI as a whole.[55]
IV. CONCLUSION
Before the PACT Act, MUCMI claims were one of the only presumptive service connections available to Gulf War veterans.[56] However, MUCMI regulations certainly have their shortcomings, including that the VA has consistently only recognized CFS, IBS, and Fibromyalgia as MUCMIs and that CMI has not been added to the list of presumptive conditions.[57] Although the PACT Act did help Gulf War veterans by making some diseases presumptive, it has also failed them in other respects due to the considerable defects in MUCMI regulations that appear fixable.[58] The current diagnosis process is faulty and must be streamlined by recognizing CMI as a distinct illness among Gulf War veterans.[59] It is time for the VA to meaningfully address the issues plaguing the system to properly take car of and honor veterans as originally intended.
Footnotes
[1] Nat’l Acad. of Sci., Reassessment of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry 1 (2022) [hereinafter Reassessment of Registry].
[2] Id., n.1.
[3] Id., n.2.
[4] Nat’l Acad. of Sci., Gulf War and Health: Volume 10: Update of Health Effects of Serving in the Gulf War, 16 (2016) [hereinafter Health Effects of Gulf War].
[5] Id.
[6] Id., Reassessment of Registry, supra note 1, at 1 (stating that there are more than 270 burn pits in the Southwest Asia theater).
[7] Reassessment of Registry, supra note 1, at 52, tbl.2-13. See Health Effects of Gulf War, supra note 4; Inst. of Med., Improving the Presumptive Disability Decision-Making Process for Veterans, K-37 (2008).
[8] Inst. of Med., supra note 7, at 44, tbl.2-2.
[9] Id. at 79 (“It immediately became evident to Congress and VA that the Persian Gulf veterans’ health complaints differed significantly from those voiced by the Vietnam veterans. The Vietnam veterans…claimed that the numerous well-defined diseases from which they suffered, ranging from skin and liver diseases to a variety of cancers, could be attributed to exposure to herbicides and Agent Orange. The Persian Gulf War veterans, on the other hand, claimed to be suffering from syndromes and symptoms rather than established diseases, and they blamed these on exposures to a host of toxic environmental substances that were present in the Persian Gulf.”).
[10] See 38 C.F.R. § 3.317; 38 U.S.C. § 1117.
[11] Inst. of Med., supra note 7, at 79; Nat’l Acad. of Sci., Eng’g, and Med., Review of the Department of Veterans Affairs Presumption Decision Process 58-59 (Anne N. Styka & Bruce N. Calonge, 2023) (“The health effects of many environmental hazards are unknown, and many hazards may be associated with similar health effects (e.g., many airborne hazards may induce respiratory effects) . . .”) [hereinafter Review of Presumption Decision Process].
[12] See 38 U.S.C. § 1119.
[13] See id., Inst. of Med., supra note 7; Review of Presumption Decision Process, supra note 11.
[14] Review of Presumption Decision Process, supra note 11, at I-77 (“[T]he diversity of symptoms did not cluster into a specific group such that it could be defined as a syndrome.”).
[15] See 38 U.S.C. § 1110.
[16] Review of Presumption Decision Process, supra note 11, at 24.
[17] Eligibility for VA disability benefits, U.S. Dep’t of Veterans Aff., https://perma.cc/BE5F-R7N4 (last visited Dec. 21, 2023).
[18] Id.
[19] See generally 38 U.S.C. § 1116 (containing the Agent Orange presumptions for Vietnam War veterans); 38 U.S.C. § 1118 (containing the presumptive conditions for Gulf War veterans).
[20] Agent Orange exposure and VA disability compensation, U.S. Dep’t of Veterans Aff., https://perma.cc/LUA7-HM2M (last visited Jan. 24, 2024).
[21] Pub. L. No. 103-446, § 106(a); 108 Stat. 4645, 4650 (1994); 38 U.S.C. § 1117.
[22] See 38 C.F.R. § 3.317.
[23] Other symptoms include menstrual disorders, joint pain, headache, and sleep disturbances. Id.
[24] Pub. L. No. 103-446, § 103(1) (declaring that the purpose of the statute is to compensate Gulf War veterans for “disabilities resulting from illnesses that cannot now be diagnosed or defined, and for which other causes cannot be identified.”).
[25] See 38 U.S.C. § 1110 (stating that a veteran cannot even typically receive disability benefits unless they are formally diagnosed).
[26] Inst. of Med., supra note 7, at 95 (“Compensation presumptions mandated by Congress in the absence of certain scientific evidence that link Gulf War service to adverse health outcomes . . . may have contributed to confusion and suspicion around the presumptive process.”).
[27] See Pub. L. No. 103-446, § 106(a); 108 Stat. 4645, 4650 (1994); 38 U.S.C. § 1117.
[28] 38 U.S.C. § 1117.
[29] 38 U.S.C. § 1117(a)(2)(B).
[30] See Pub. L. No. 103-446, § 106(a); 108 Stat. 4645, 4650 (1994); 38 U.S.C. § 1117.
[31] 38 U.S.C. § 1117(a)(2)(B).
[32] U.S. Gov’t Accountability Off., GAO-17-511, Gulf War Illness: Improvements Needed for VA to Better Understand, Process, and Communicate Decisions on Claims 39 (2017), tbl.1 (reporting that over eighty percent of Gulf War veterans’ claims are denied).
[33] Inst. of Med., supra note 7, at 77.
[34] Health Effects of Gulf War, supra note 4, at 242-44.
[35] Id., 38 U.S.C. § 1117.
[36] See Health Effects of Gulf War, supra note 4; 38 U.S.C. § 1117.
[37] See Health Effects of Gulf War, supra note 4; 38 U.S.C. § 1117; 38 C.F.R. § 4.27 (describing that diagnostic codes are typically four-digit numbers that are associated with different disabilities. The number is used to categorize conditions for rating purposes, which is where the severity of the condition corresponds to a veteran’s monthly compensation).
[38] See 38 U.S.C. § 1117; Inst. of Med., supra note 7; Review of Presumption Decision Process, supra note 11.
[39] See 38 U.S.C. § 1119; The PACT Act and your VA benefits, U.S. Dep’t of Veterans Aff., https://perma.cc/TA5F-CFQQ (last visited Dec. 23, 2023).
[40] 38 U.S.C. § 1119. Note that the PACT Act also improved the decision-making process for determining what medical conditions will be considered for presumptive status, authorized thirty-one new facilities across the country, and defined the term “toxic exposure.”
[41] Id.
[42] Id.; The PACT Act and your VA benefits, supra note 39.
[43] 38 C.F.R. § 3.317 (a)(1)(i) (showing that the PACT Act added functional gastrointestinal disorder to the list of MUCMI presumptive conditions but no others); 38 U.S.C. § 1119 (demonstrating that the VA did not identify what the toxins were, nor did it publish the research it relied on); Review of Presumption Decision Process, supra note 11, at 59 (“It is not clear… how VA is making a determination of exposure presumption, despite its key role in the overall decision process.”).
[44] See 38 C.F.R. § 3.317 (a)(1)(i); Lost to History: Missing War Records Complicate Benefit Claims by Iraq, Afghanistan Veterans, ProPublica (Nov. 9, 2012), https://perma.cc/S77D-DHM9 (recounting that field records from warzones in areas such as Iraq and Afghanistan were frequently never kept, destroyed, or unable to be found); Review of Presumption Decision Process, supra note 11, at 58-59 (“As is often the case when reliable and accurate exposure information is not available for military populations—let alone individuals—exposure must be presumed based on location and dates of service . . . Classified deployments introduce additional difficulties with measuring or estimating exposures. Furthermore, there may be long latencies between an exposure and a health effect, making it difficult to attribute the effect to a specific exposure.”).
[45] See Lost to History: Missing War Records Complicate Benefit Claims by Iraq, Afghanistan Veterans, supra note 44.
[46] See id.; Review of Presumption Decision Process, supra note 11.
[47] Lost to History: Missing War Records Complicate Benefit Claims by Iraq, Afghanistan Veterans, supra note 44 (articulating how the U.S. military began transitioning from paper records to electronic records during the Gulf War, causing major gaps in recordkeeping).
[48] See 38 U.S.C. § 1117; U.S. Gov’t Accountability Off., GAO-17-511, supra note 32.
[49] See 38 U.S.C. § 1117; U.S. Gov’t Accountability Off., GAO-17-511, supra note 32; 38 CFR Part 4 (containing the schedule for all rating disabilities, including the current rating schedule for MUCMIs); 38 C.F.R. § 4.1 (explaining that ratings include consideration of the “average impairment in earning capacity” and are determined by VA adjudicators after a review of all the evidence submitted in a veteran’s claim. The degrees of disability are supposed to compensate for “considerable loss of working time working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”); About VA disability ratings, U.S. Dep’t of Veterans Aff., https://perma.cc/DJV4-T6EQ (last visited Dec. 26, 2023).
[50] 38 CFR § 4.130 (showing that the rating schedule is based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM–5”), which is used by mental health professionals to diagnose mental illnesses); How Do You Know if You’ve Been Given a Proper VA Disability Rating for PTSD?, Veterans L. Grp., https://perma.cc/4VRN-TCBD / (last visited Dec. 26, 2023).
[51] 38 CFR § 4.130; How Do You Know if You’ve Been Given a Proper VA Disability Rating for PTSD?, supra note 50 (stating that a rating of thirty percent for PTSD essentially means that the respective symptoms are still manageable).
[52] Id.
[53] See 38 C.F.R. § 4.1.
[54] See Lost to History: Missing War Records Complicate Benefit Claims by Iraq, Afghanistan Veterans, supra note 44.
[55] See 38 U.S.C. § 1117; U.S. Gov’t Accountability Off., GAO-17-511, supra note 32; 38 CFR Part 4.
[56] See 38 U.S.C. § 1117.
[57] See id.,; U.S. Gov’t Accountability Off., GAO-17-511, supra note 32.
[58] See 38 U.S.C. § 1117. See also Suzanne Gordon & Steve Early, PACT Act Problems, Progressive Mag. (Apr. 6, 2023) https://perma.cc/QK9F-XVZ8 (discussing how the PACT Act has exacerbated existing problems within the VA, including understaffing, wasteful outsourcing, and a massive backlog of claims).
[59] See 38 U.S.C. § 1117; Health Effects of Gulf War, supra note 4, at 242-44.
About the Author
Alicia Grana is a third-year J.D. candidate at Penn State Law. A New Jersey native, Alicia graduated summa cum laude in three years from The College of New Jersey with a BA in Criminology and a minor in Psychology. This article is especially close to Alicia’s heart, as she plans on practicing Elder and Veteran’s Benefits Law after law school. During her time at Penn State Law, Alicia was a clinical student at Veterans & Servicemembers Clinic, as well as a student in the Veterans Benefits Law class.
Suggested Citation: Alicia Grana, How the PACT Act Has Failed Gulf War Veterans, Penn St. L. Rev.: F. Blog (Mar. 19, 2024), https://www.pennstatelawreview.org/the-forum/how-the-pact-act-has-failed-gulf-war-veterans/.