DVA– PGWS=AO


PGWS stands for Persian Gulf War Syndrome. AO, well, who can forget that one? The VA today published in the Federal Register an interim rule pushing forward the date for presumptive compensation of PGWS incorporated in 38 CFR § 3.317.  http://veteranslawlibrary.com/files/Fed_Reg/2011/76FedReg81834_Dec29_2011.pdf

There is a laundry list of diseases this covers, to include:

(1) Chronic fatigue syndrome;

(2) Fibromyalgia;

(3) Irritable bowel syndrome; or

(4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or

(C) Any diagnosed illness that the Secretary determines in regulations prescribed under38 U.S.C. 1117(d) warrants a presumption of service-connection.

(ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means 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.

(3) For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.

(4) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

(5) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.

(6) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States.

(b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to:

(1) Fatigue

(2) Signs or symptoms involving skin

(3) Headache

(4) Muscle pain

(5) Joint pain

(6) Neurologic signs or symptoms

(7) Neuropsychological signs or symptoms

(8) Signs or symptoms involving the respiratory system (upper or lower)

(9) Sleep disturbances

(10) Gastrointestinal signs or symptoms

(11) Cardiovascular signs or symptoms

(12) Abnormal weight loss

(13) Menstrual disorders.

(c) Compensation shall not be paid under this section:

(1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or

(2) If there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or

(3) If there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs.

(d) For purposes of this section:

(1) The term Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.

(2) The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.

The reason for my comparison is simple. When VA finally was handed the AO problem in the 80s, they did a miserable job of it. They were ill-equipped to deal with this and had no template to draw from. Hence, they tried the simplest technique- the ostritch one. By 1990, they couldn’t sweep this one under any carpet. The media grabbed it and ran with it. Nothing sells better than blood and gore at six P.M.- unless it’s a story about a Vet getting the shaft. When it concerns Vets plural (and a shit pile of them), you can almost guarantee a piece on Sixty Minutes and the morning shows. This kind of outrage was perfect for the Bahbahrah Wahwahs of the news world.

VA is adroit at PR, though. They saw the way the wind was carrying this stink and got in front of it the same way they’re doing this one. They probably brought the same AO official out of retirement, set him up with a consultant’s office for $225K a year and a staff of 20. The trick is still the same. Promise the Vets an equitable settlement on most of the diseases and a presumptive period for manifestation of the symptoms.  Set a minimum of a 10% threshold for the severity, publish it and and kick back and wait.

The first problem is no one can qualify because the presumptive period will expire before anyone finds out about it. Take Porphyria Cutanea Tarda(PCT) or sub-acute peripheral neuropathy. You had to exhibit symptoms of PCT within one year of leaving RVN and the presumptive exposure of AO. The symptoms must have been documented in your SMRs at a compensable degree of 10% or more: (http://www.law.cornell.edu/cfr/text/38/4/118)  See DC 7815. So the pesky problem you were having with your skin that you never could get off for sick call to document never got into your medrecs. The Benedryl never worked and your dematologist figured it out 20 years later. Tough luck, GI. No SC on PCT for you. Chloracne was covered under the same criteria.

Acute and sub-acute Peripheral Neuropathy is not the same as that which afflicts you from DM2. This disease had to manifest itself during active exposure to AO and the symptoms had to abate after 2 years from date of exposure:

For purposes of this section, the term acute 
and subacute peripheral neuropathy means 
transient peripheral neuropathy that appears 
within weeks or months of exposure to an 
herbicide agent and resolves within two 
years of the date of onset.

Great. Here’s another popsicle stick missing the cold stuff. VA is going to award you a rating for a disease that had to abate within two years of being documented. Sounds like another 0% game to me.

So here we are in 2011 and the Persian War Vets are coming home with all these weird diseases as we  did in 1970. VA is graciously going to award them compensation IF they manifest this stuff within X number of years that continues to ratchet up because the last ones are just now coming out of Iraq. The effective cutoff date proposed in the Fed. Reg. is December 31st, 2016. Whoohoo, Vets! Better hurry up and manifest that sucker. You have four years and counting. Twenty years from now you will arrive to find the barn empty.

So, fellow Vets of a later war, you, too, will be getting the bum’s rush soon. If you don’t get it in your records now, don’t hold your breath when you file. And, I guess I don’t need to tell you that it would be a damn good idea now if you figure out some foolproof method to prove that you were there. Our generation expected Uncle Sam would be a stand up guy on that one for us. We found out the hard way that ” There’s simply nothing in the records that would support that allegation. While the VA is mindful that the Veteran feels he was in-country, VA simply cannot document it and thus remunerate the claimant. We regret that the records are inadequate for this purpose.”

VA is like a new lover. They’ll promise you the world on paper. But, like an attorney, the devil’s in the details. The fine print immediately disenfranchises the majority and the actual financial reward, if you do manage to qualify, is infinitesimal. Just like scratch off lottery tickets, someone always wins big but it ain’t you.

I am not a big fan of mounting a Call your Congressman! The sky is falling! telephone blizzard of calls to try to change their opinions in D.C. That’s like pissing into the wind. We need to 86 all of them and start over with term limits. Veterans will always get the sympathy and the Goodwill clothes treatment from Government. When it’s politically advisable they throw us a bone. The rest of the time they can’t hear us. This regulation and the statute enforcing PGWS (38 USC §1117) will gather dust just like 38 CFR § 3.309 (e) did.

For humor, go look at the shabby treatment Vietnam Vets are still getting even now when they finally get around to filing for PCT:

http://www.index.va.gov/search/va/bva_search.jsp?QT=Porphyria+Cutanea+Tarda+&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

These poor Vets are, for the most part, convinced by their VSOs that they most likely will win this. It’s a cruel joke. Look at this and tell me it’s not SOSDD :

http://www.index.va.gov/search/va/bva_search.jsp?QT=Chronic+multisymptom+illness&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

Yes, pilgrims, VA is many things, but they are very predictable. Gulf War Veterans are soon going to learn how this process works and are not going to be so acquiescent. We were defeated by time in the 70s and 80s on AO. By the time we figured it out and blew an ass gasket, it was too late. The same could be said for HCV.

Gulf Vets started coming down with this crud in 1991 in the first Gulf war. VA hasn’t even started to deal with that contingent yet and here comes another wave. It rather makes you wonder what will come home from Afghanistan besides a host of TBI from IEDs and the ever-present PTSD.

Much like the brewing HCV storm on the horizon in 1992, VA has elected to duck and cover. With the advent of the Internet and modern dissemination of information, Vet news can travel at lightspeed. This new cohort of Vets will be far more proactive and harder to deceive with smoke and mirrors.

About asknod

VA claims blogger
This entry was posted in AO, Gulf War Issues and tagged , , , , , , . Bookmark the permalink.

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