In July 2014, the VA put another knife in the back of Veterans.
This time they handed another defeat to Gulf War Veterans who are experiencing unusually high incidence rates of brain and lung cancer.
VA Denies Service Connection Presumptions for Gulf War Veterans with Brain and Lung Cancer.
We know so very little about what is going on with the Gulf War soldiers when in comes to chronic multi-symptom illnesses.
Ironically, this is no different from what happened to Vietnam Veterans and Agent Orange exposure.
For years, nobody could figure out why Veterans from the Vietnam War were being diagnosed with some really scary medical conditions at rates staggeringly out of proportion with the civilian population of the same generation.
15-20 years after the war, someone pieced it all together: it was the dioxin that we sprayed over most of Southeast Asia for the better part of a decade.
This is one of my “gripes” with the VA – while their PR campaigns tout seemingly amazing medical accomplishments, the agency is largely numb to the major problems confronting generations of Vets until it is almost too late to do anything about it.
Today, Veterans from Desert Shield through to OIF and OEF in are suffering from some pretty scary stuff.
For example, did you know that the Gulf War Veterans who served near the Khamsiyah munitions plant (the one that released sarin gas after we bombed it) are experiencing brain cancer at the rate of 25 per 100,000?
And other Gulf War Veterans experience brain cancer diagnoses at the rate of 12 per 100,000. (For comparison purposes, that’s 100-400% higher than the general rate in the American population: between 3 and 7 per 100,000.)
So, if you are a Gulf War Vet, you are 800% more likely to be diagnosed with brain cancer than your buddies that didn’t serve in the military.
And if you served at or near Khamsiyah, you are 1600% more likely to get a brain cancer diagnosis.
But the VA doesn”t see the connection that clearly.
Nobody really explained why.
In July 2014, they simply refused to grant any sort of presumption of service-connection for Veterans that served in the Gulf Wars and who were later diagnosed with brain or lung cancer.
But it gets worse – despite the high incidence rates of lung cancer among Gulf War Veterans – particularly those Veterans exposed to the burn pits and oil fires in the Persian Gulf – the VA Declined to offer a legal presumption of service connection for lung cancer.
They said that the research failed to control for those Veterans who smoked and had lung cancer.
Call me cooky, call me crazy, but it seems to me that the conversation about ANY study of the causes of Lung Cancer should START with this consideration:
VA Doctor Bob: I’d like to study whether Gulf War Vets exposed to oil fires and burn pits have a higher rate of lung cancer
VA Doctor Jane: Great idea. Will you control for those who smoked cigarettes and were diagnosed with lung cancer?
VA Doctor Bob: Yes, that seems like the science-y thing to do.
In other words, they should have thought about THAT at the outset of the study.
But even still…take a look at this:
According to the American Cancer Association, the likelihood of a diagnosis of lung cancer due to smoking under age 45 is 2%.
That means 2 out of 100 Americans are diagnosed with smoking-related lung cancer under the age of 45.
And the average age of an American diagnosed with smoking related lung cancer is 70 years old.
Now, take a guess of the AVERAGE age of Gulf War Veterans diagnosed with lung cancer?
44 years old.
That’s the AVERAGE.
That means half of Gulf War Veterans diagnosed with lung cancer are younger than 44 years old.
Yet those facts aren’t enough for the VA to say: “Houston, we have a problem with lung and brain cancer in Gulf War Era Vets.”
Very, very disappointing.
Are There Any Conditions that CAN be presumptively service-connected for Gulf War Veterans?
Right now, the primary presumption for Gulf War Veterans is the Gulf War Illness presumption.
To be fair, the VA is strongly resisting calling it Gulf War Illness – they prefer the term “Chronic Multi-Symptom Illness”, or “CMSI” or “CMI”.
Names aside, to be eligible for this presumption, you have to have qualifying Persian Gulf service and be able to show the following elements (the criteria are listed in detail at 38 CFR § 3.317):
1) An qualifying chronic disability (Chronic Fatigue Syndrome, Fibromyalgia, and functional gastrointestinal disorders)
How does the Gulf War Illness Presumption Work?
It means that if you have the above symptoms, and the docs cannot explain them, you might be eligible for the Gulf War Illness presumption of those “cluster symptoms”.
However, once a doctor diagnoses a condition based on those symptoms, its no longer Gulf War Illness and you are not entitled to the presumption.
Here’s an example I saw – A LOT – when preparing the Sleep Apnea Guidebook:
- Veteran with qualifying Persian Gulf War Service has sleep disturbances, headaches, fatigue, and difficulty breathing, particularly when laying down at night.
- After much testing, the docs are unable to determine what is the cause of the sleep disturbance, and so the Veteran files for Service Connection of Gulf War Illness.
- The VA then diagnoses sleep apnea and with the snap of a finger, the Gulf War Illness presumption disappears and the Veteran now has to prove service connection of his sleep apnea.
So the key is that the Gulf War Veteran’s cluster symptoms (other than fibromyalgia and chronic fatigue syndrome) MUST be of the kind that evade diagnosis.
Takeaway point: You are going to need a lot of lay evidence documenting yours – and others – observations of symptoms from the above list, and a lot of medical evidence showing how the symptoms are not fitting cleanly into a traditional diagnosis.
And then, if you are lucky, you’ll get a Rater that has actually read the regs and understands 38 CFR 3.317.
But, the final knife in the back of Gulf War Veterans is this article from the Military Times:
I’ll be spending some time over the next few months digging into GWI claims and finding out the patterns why y’all are getting denied.
If there is a way for us to improve our claims to get more granted for Vets with “GWI”, rest assured, you will find it on the Veterans Law Blog.