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MATTHEW L. PUGLISI ASSISTANT DIRECTOR THE AMERICAN LEGION BEFORE THE VETERANS’ AFFAIRS SUBCOMMITTEE ON BENEFITS UNITED STATES HOUSE OF REPRESENTATIVESON GULF WAR VETERANS ISSUES OCTOBER 26, 1999 Mr.
Chairman and distinguished members of the Subcommittee: The
American Legion appreciates the opportunity to offer testimony regarding Gulf War veterans
issues, particularly the adjudication of Persian Gulf undiagnosed illness claims by the
Department of Veterans Affairs (VA). Your
leadership on the issue of Gulf War undiagnosed illness claims in 1997 led directly to a
significant decrease in the backlog of those claims (Veterans Affairs, 1997-98). Your continued concern and oversight of this
process has kept the pressure on VA to adjudicate these claims as well as possible. Yet,
in spite of your oversight, and the oversight of The American Legion, most Gulf War
veterans who file a disability claim for undiagnosed conditions are denied service
connection and compensation from VA (Veterans Affairs, 1999). This situation exists in spite of the fact that VA
adjudicated most Persian Gulf undiagnosed illness claims twice, and overhauled the
undiagnosed illness claims process. VA is
failing to compensate disabled veterans with undiagnosed or diagnosed illnesses like
chronic fatigue syndrome (CFS) because its regulations implementing Public Law 103-446,
the “Veterans Benefits Improvements Act of 1994,” were written too narrowly. The
American Legion therefore recommends that the Committee urge VA to change its regulations
regarding Persian Gulf undiagnosed illness compensation in order to bring them more in
line with the spirit of PL 103-446 and the available scientific evidence regarding Gulf
War veterans’ illnesses. Background
The
Gulf War was like all of our nation’s past wars in that it left thousands of disabled
veterans in its wake. And like our past wars
(Stellman, 1988; Hyams, 1996; Elder, 1997), thousands of deployed Gulf War veterans report
Medically Unexplained Symptom Syndromes (Institute of Medicine, 1998), known collectively
as Gulf War veterans’ illnesses (Iowa Persian Gulf Study Group, 1997; Fukuda, 1998;
Unwin, 1999). Although some of the risk
factors troops were exposed to in the Persian Gulf were the same as those found in past
wars, some were different, such as pyridostigmine bromide (Keeler, 1991), or PB. As Gulf War veterans began reporting these hard to
define illnesses, VA was confronted with compensating these disabled veterans. VA,
however, did not. Faced with disabled war
veterans, VA pointed to public laws and blamed them for its inability to compensate these
veterans. Congress acted in 1994 with the
passage of legislation that was intended to prevent these veterans from “slipping
through the cracks.” Public Law 103-446: The
“Veterans Benefits Improvements Act of 1994”
Congress’
intent in this law was clear. Aware of
VA’s claim that thousands of disabled Gulf War veterans were ineligible for
disability compensation because Gulf War veterans’ illnesses remained ill defined and
poorly understood, Congress passed a law that would permit VA to compensate these
veterans. Yet most of those veterans who file
a claim for undiagnosed illness compensation are denied service connection for those
conditions. Why? VA regulations implementing the law, codified in
38 C.F.R., section 3.317, strictly limit eligibility for this unique type of disability
compensation. Comparison of PL 103-446 and 38
C.F.R., Section 3.317
Mr.
Chairman, a comparison of the language contained in PL 103-446 and VA’s regulations
implementing the law explain why many sick Gulf War veterans are denied compensation. Congress wanted VA to compensate disabled Gulf War
veterans “who suffer from illnesses that cannot be diagnosed or defined” (Public Law 103-446). [Emphasis
added] Floor statements and hearing
transcripts from the period during which the law was crafted make clear that Congress
intended for VA to compensate Gulf War veterans suffering from disabilities that were
likely related to their Gulf War service, regardless of how these illnesses would be
labeled by a physician. Congress selected the
phrase “clearly defined” later in the law to make clear that the lack of a
diagnosis was not the only criteria in which VA could then grant compensation. VA,
however, wrote regulations that ensure it will not compensate most Gulf War veterans who
suffer from undiagnosed or similar diagnosed illnesses.
“Objective indications of chronic disability,” “‘signs’ in
the medical sense of objective evidence perceptible to an examining physician,” and
“independent verification” are phrases found in the regulations VA wrote in
order to implement PL 103-446. This specific
criteria guiding VA officials on how to adjudicate these claims bears little resemblance
to the public law which they are meant to implement. Mr.
Chairman, the illnesses which fall under the definition “Gulf War Syndrome”
share many symptoms, but they can be labeled several ways by physicians. Among the labels are CFS and fibromyalgia (FM). VA, however, will only compensate Gulf War
veterans who do not receive a diagnosis from a physician. Physicians
undergo years of rigorous training in order to diagnose and treat illness. Yet VA compensates veterans who are examined by
physicians who are unable to diagnose their
illness. This leaves many disabled Gulf War
veterans in a bizarre situation. If their
examining physician labels their illness, they are ineligible for compensation. If the physician does not, they become eligible
for compensation. This scenario would be
comical if it did not result in the continued suffering of war veterans. Chairman of the House
Veterans’ Affairs Committee
The
failure of VA to adequately compensate many disabled Gulf War veterans is not a new issue,
nor has Congress ignored it. On June 3, 1998
the Chairman of the House Veterans’ Affairs Committee wrote the Secretary of Veterans
Affairs about this matter. Chairman
Stump’s letter clearly described how VA had an obligation to compensate all Gulf War
veterans left disabled by their military service, and further, how PL 103-446 gave VA the
statutory authority to do so. His letter went
on to urge the Secretary to revise VA’s regulations in order to bring them more in
line with the law and its mission. The
Secretary of Veterans Affairs refused. Medically Unexplained Symptom
Syndromes
The
Institute of Medicine (IOM) published a report in January 1998 regarding the Department of
Defense’s (DoD) Comprehensive Clinical Evaluation Program (CCEP). The CCEP is DoD’s identical version of
VA’s Persian Gulf Health Registry, and it is available for Gulf War veterans on
active duty. IOM’s report provides us with an insightful description of the illnesses
that Gulf War veterans exhibit. It was clear
to IOM then, and it is clear to many researchers investigating Gulf War veterans’
illnesses today, that the pattern of symptoms reported by these veterans overlap with some
recognized illnesses such as CFS and FM. In
order to create some consistency in describing these illnesses the phrase Medically
Unexplained Symptom Syndromes, coined by IOM, becomes helpful. It is not a case definition, so it cannot be
diagnosed, per se. But it describes what is
happening to these sick veterans. There
is a growing body of evidence found in the medical literature which suggests that the
symptoms of CFS and FM so overlap with each other that these illnesses are sometimes
indistinguishable to physicians. CFS and FM
are diagnoses that physicians arrive at after they have excluded other diseases. Patients with these illnesses do not test positive
on any available medical tests. One does not
test positive on a blood test for fatigue, for instance.
Physicians diagnose these illnesses after spending a great deal of time with a
patient. Different examining physicians of
the same patient can diagnose one or the other or none of these illnesses in the same
patient. Deployed
Gulf War veterans suffer from significantly worse health than non-deployed veterans (Iowa
1997; Fukuda, 1998; Unwin, 1999). The causes
of Gulf War veterans’ illnesses remain unknown, but even the Presidential Advisory
Committee on Gulf War Veterans’ Illnesses found that these diffuse illnesses were
likely service connected (PAC, 1996). Some
investigators have argued that these illnesses were found after all our wars since at
least the Civil War (Hyams, 1996). Although
the explanations for this phenomenon are controversial, it remains that the occurrence of
ill defined syndromes in combat veterans is a fact. CFS
and FM are not well understood by the medical community.
Their exact causes remain unknown. Since
epidemiological studies completed to date show that Gulf War veterans report significantly
more health symptoms consistent with these illnesses than non-deployed veterans; and since
Congress intended for such disabled veterans to be compensated by VA; then it is VA’s
obligation to amend its regulations in order to incorporate what has been learned in Gulf
War research since 1994. VA must implement
the will of Congress as it has clearly refused to do for almost five years. PB, Pesticides and Chemical
Warfare Agents
A
great deal of federally sponsored and private research is investigating the role of the
above risk factors in Gulf War veterans’ illnesses (Veterans Affairs, 1999). In particular, PB, of all the above risk factors,
has withstood great scrutiny and remains a plausible risk factor (Golomb, 1999). Investigators have found in animal and human
research that some chemicals, in combination with PB, could cause subtle nerve damage in
animals, and perhaps humans (Abou-Donia, 1996; Haley, 1997; Chaney, 1997). The impact on an exposed person’s health
would be subtle, and would not likely be measured in most diagnostic tests. Symptoms would include fatigue, headaches and
joint and muscle pain, to name several. Physicians
examining these patients may, or may not, diagnose them with some illness (Haley, 1997). The symptoms exhibited by these patients overlap
with those of CFS and FM (Amato, 1997; Haley, 1997).
It is therefore entirely possible that a Gulf War veteran exposed to these chemical
risk factors, and presented with symptoms related to those exposures, could be diagnosed
with CFS, FM, or some other illness. If they
were, however, they would not be found service connected by VA under its current
regulations. Recommendation
Mr.
Chairman, The American Legion recommends that the Committee urge VA to revise its
regulations regarding Persian Gulf undiagnosed illness compensation in order to bring them
more in line with the spirit of PL 103-446 and the available scientific evidence regarding
Gulf War veterans’ illnesses. Conclusion
Mr.
Chairman, Congress listened to sick Gulf War veterans in 1994 and acted by passing
legislation granting VA the authority to compensate those with difficult to diagnose and
ill defined illnesses. VA has failed to
implement the law, and thousands of Gulf War veterans remain without compensation for
these service connected disabilities. The
American Legion is encouraged by your continued interest in this matter, and we look
forward to you taking action in the near future that would resolve this issue. Mr.
Chairman, that concludes my statement. I
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