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mike/3/8/cav

Gulf War Illness

Question

From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 7, 2003]

[Document not affected by Public Laws enacted between

January 7, 2003 and February 12, 2003]

[CITE: 38USC1118]

TITLE 38--VETERANS' BENEFITS

PART II--GENERAL BENEFITS

CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH

SUBCHAPTER II--WARTIME DISABILITY COMPENSATION

Sec. 1118. Presumptions of service connection for illnesses

associated with service in the Persian Gulf during the Persian

Gulf War

(a)(1) For purposes of section 1110 of this title, and subject to

section 1113 of this title, each illness, if any, described in paragraph

(2) shall be considered to have been incurred in or aggravated by

service referred to in that paragraph, notwithstanding that there is no

record of evidence of such illness during the period of such service.

(2) An illness referred to in paragraph (1) is any diagnosed or

undiagnosed illness that--

(A) the Secretary determines in regulations prescribed under

this section to warrant a presumption of service connection by

reason of having a positive association with exposure to a

biological, chemical, or other toxic agent, environmental or wartime

hazard, or preventive medicine or vaccine known or presumed to be

associated with service in the Armed Forces in the Southwest Asia

theater of operations during the Persian Gulf War; and

(B) becomes manifest within the period, if any, prescribed in

such regulations in a veteran who served on active duty in that

theater of operations during that war and by reason of such service

was exposed to such agent, hazard, or medicine or vaccine.

(3) For purposes of this subsection, a veteran who served on active

duty in the Southwest Asia theater of operations during the Persian Gulf

War and has an illness described in paragraph (2) shall be presumed to

have been exposed by reason of such service to the agent, hazard, or

medicine or vaccine associated with the illness in the regulations

prescribed under this section unless there is conclusive evidence to

establish that the veteran was not exposed to the agent, hazard, or

medicine or vaccine by reason of such service.

(4) For purposes of this section, signs or symptoms that may be a

manifestation of an undiagnosed illness include the signs and symptoms

listed in section 1117(g) of this title.

(b)(1)(A) Whenever the Secretary makes a determination described in

subparagraph (B), the Secretary shall prescribe regulations providing

that a presumption of service connection is warranted for the illness

covered by that determination for purposes of this section.

(B) A determination referred to in subparagraph (A) is a

determination based on sound medical and scientific evidence that a

positive association exists between--

(i) the exposure of humans or animals to a biological, chemical,

or other toxic agent, environmental or wartime hazard, or preventive

medicine or vaccine known or presumed to be associated with service

in the Southwest Asia theater of operations during the Persian Gulf

War; and

(ii) the occurrence of a diagnosed or undiagnosed illness in

humans or animals.

(2)(A) In making determinations for purposes of paragraph (1), the

Secretary shall take into account--

(i) the reports submitted to the Secretary by the National

Academy of Sciences under section 1603 of the Persian Gulf War

Veterans Act of 1998; and

(ii) all other sound medical and scientific information and

analyses available to the Secretary.

(B) In evaluating any report, information, or analysis for purposes

of making such determinations, the Secretary shall take into

consideration whether the results are statistically significant, are

capable of replication, and withstand peer review.

(3) An association between the occurrence of an illness in humans or

animals and exposure to an agent, hazard, or medicine or vaccine shall

be considered to be positive for purposes of this subsection if the

credible evidence for the association is equal to or outweighs the

credible evidence against the association.

©(1) Not later than 60 days after the date on which the Secretary

receives a report from the National Academy of Sciences under section

1603 of the Persian Gulf War Veterans Act of 1998, the Secretary shall

determine whether or not a presumption of service connection is

warranted for each illness, if any, covered by the report.

(2) If the Secretary determines under this subsection that a

presumption of service connection is warranted, the Secretary shall, not

later than 60 days after making the determination, issue proposed

regulations setting forth the Secretary's determination.

(3)(A) If the Secretary determines under this subsection that a

presumption of service connection is not warranted, the Secretary shall,

not later than 60 days after making the determination, publish in the

Federal Register a notice of the determination. The notice shall include

an explanation of the scientific basis for the determination.

(B) If an illness already presumed to be service connected under

this section is subject to a determination under subparagraph (A), the

Secretary shall, not later than 60 days after publication of the notice

under that subparagraph, issue proposed regulations removing the

presumption of service connection for the illness.

(4) Not later than 90 days after the date on which the Secretary

issues any proposed regulations under this subsection, the Secretary

shall issue final regulations. Such regulations shall be effective on

the date of issuance.

(d) Whenever the presumption of service connection for an illness

under this section is removed under subsection ©--

(1) a veteran who was awarded compensation for the illness on

the basis of the presumption before the effective date of the

removal of the presumption shall continue to be entitled to receive

compensation on that basis; and

(2) a survivor of a veteran who was awarded dependency and

indemnity compensation for the death of a veteran resulting from the

illness on the basis of the presumption before that date shall

continue to be entitled to receive dependency and indemnity

compensation on that basis.

(e) Subsections (b) through (d) shall cease to be effective on

September 30, 2011.

(Added Pub. L. 105-277, div. C, title XVI, Sec. 1602(a)(1), Oct. 21,

1998, 112 Stat. 2681-742; amended Pub. L. 107-103, title II,

Sec. 202(b)(2), (d)(1), Dec. 27, 2001, 115 Stat. 989.)

References in Text

Section 1603 of the Persian Gulf War Veterans Act of 1998, referred

to in subsecs. (b)(2)(A)(i) and ©(1), is section 1603 of Pub. L. 105-

277, which is set out in a note under section 1117 of this title.

Amendments

2001--Subsec. (a)(4). Pub. L. 107-103, Sec. 202(b)(2), added par.

(4).

Subsec. (e). Pub. L. 107-103, Sec. 202(d)(1), substituted ``on

September 30, 2011'' for ``10 years after the first day of the fiscal

year in which the National Academy of Sciences submits to the Secretary

the first report under section 1603 of the Persian Gulf War Veterans Act

of 1998''.

Effective Date of 2001 Amendment

Amendment by section 202(b)(2) of Pub. L. 107-103 effective Mar. 1,

2002, see section 202© of Pub. L. 107-103, set out as a note under

section 1117 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1113, 1117 of this title.

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4 answers to this question

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From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 7, 2003]

[Document not affected by Public Laws enacted between

January 7, 2003 and February 12, 2003]

[CITE: 38USC1118]

TITLE 38--VETERANS' BENEFITS

PART II--GENERAL BENEFITS

CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH

SUBCHAPTER II--WARTIME DISABILITY COMPENSATION

Sec. 1118. Presumptions of service connection for illnesses

associated with service in the Persian Gulf during the Persian

Gulf War

(a)(1) For purposes of section 1110 of this title, and subject to

section 1113 of this title, each illness, if any, described in paragraph

(2) shall be considered to have been incurred in or aggravated by

service referred to in that paragraph, notwithstanding that there is no

record of evidence of such illness during the period of such service.

(2) An illness referred to in paragraph (1) is any diagnosed or

undiagnosed illness that--

(A) the Secretary determines in regulations prescribed under

this section to warrant a presumption of service connection by

reason of having a positive association with exposure to a

biological, chemical, or other toxic agent, environmental or wartime

hazard, or preventive medicine or vaccine known or presumed to be

associated with service in the Armed Forces in the Southwest Asia

theater of operations during the Persian Gulf War; and

(B) becomes manifest within the period, if any, prescribed in

such regulations in a veteran who served on active duty in that

theater of operations during that war and by reason of such service

was exposed to such agent, hazard, or medicine or vaccine.

(3) For purposes of this subsection, a veteran who served on active

duty in the Southwest Asia theater of operations during the Persian Gulf

War and has an illness described in paragraph (2) shall be presumed to

have been exposed by reason of such service to the agent, hazard, or

medicine or vaccine associated with the illness in the regulations

prescribed under this section unless there is conclusive evidence to

establish that the veteran was not exposed to the agent, hazard, or

medicine or vaccine by reason of such service.

(4) For purposes of this section, signs or symptoms that may be a

manifestation of an undiagnosed illness include the signs and symptoms

listed in section 1117(g) of this title.

(b)(1)(A) Whenever the Secretary makes a determination described in

subparagraph (B), the Secretary shall prescribe regulations providing

that a presumption of service connection is warranted for the illness

covered by that determination for purposes of this section.

(B) A determination referred to in subparagraph (A) is a

determination based on sound medical and scientific evidence that a

positive association exists between--

(i) the exposure of humans or animals to a biological, chemical,

or other toxic agent, environmental or wartime hazard, or preventive

medicine or vaccine known or presumed to be associated with service

in the Southwest Asia theater of operations during the Persian Gulf

War; and

(ii) the occurrence of a diagnosed or undiagnosed illness in

humans or animals.

(2)(A) In making determinations for purposes of paragraph (1), the

Secretary shall take into account--

(i) the reports submitted to the Secretary by the National

Academy of Sciences under section 1603 of the Persian Gulf War

Veterans Act of 1998; and

(ii) all other sound medical and scientific information and

analyses available to the Secretary.

(B) In evaluating any report, information, or analysis for purposes

of making such determinations, the Secretary shall take into

consideration whether the results are statistically significant, are

capable of replication, and withstand peer review.

(3) An association between the occurrence of an illness in humans or

animals and exposure to an agent, hazard, or medicine or vaccine shall

be considered to be positive for purposes of this subsection if the

credible evidence for the association is equal to or outweighs the

credible evidence against the association.

©(1) Not later than 60 days after the date on which the Secretary

receives a report from the National Academy of Sciences under section

1603 of the Persian Gulf War Veterans Act of 1998, the Secretary shall

determine whether or not a presumption of service connection is

warranted for each illness, if any, covered by the report.

(2) If the Secretary determines under this subsection that a

presumption of service connection is warranted, the Secretary shall, not

later than 60 days after making the determination, issue proposed

regulations setting forth the Secretary's determination.

(3)(A) If the Secretary determines under this subsection that a

presumption of service connection is not warranted, the Secretary shall,

not later than 60 days after making the determination, publish in the

Federal Register a notice of the determination. The notice shall include

an explanation of the scientific basis for the determination.

(B) If an illness already presumed to be service connected under

this section is subject to a determination under subparagraph (A), the

Secretary shall, not later than 60 days after publication of the notice

under that subparagraph, issue proposed regulations removing the

presumption of service connection for the illness.

(4) Not later than 90 days after the date on which the Secretary

issues any proposed regulations under this subsection, the Secretary

shall issue final regulations. Such regulations shall be effective on

the date of issuance.

(d) Whenever the presumption of service connection for an illness

under this section is removed under subsection ©--

(1) a veteran who was awarded compensation for the illness on

the basis of the presumption before the effective date of the

removal of the presumption shall continue to be entitled to receive

compensation on that basis; and

(2) a survivor of a veteran who was awarded dependency and

indemnity compensation for the death of a veteran resulting from the

illness on the basis of the presumption before that date shall

continue to be entitled to receive dependency and indemnity

compensation on that basis.

(e) Subsections (b) through (d) shall cease to be effective on

September 30, 2011.

(Added Pub. L. 105-277, div. C, title XVI, Sec. 1602(a)(1), Oct. 21,

1998, 112 Stat. 2681-742; amended Pub. L. 107-103, title II,

Sec. 202(b)(2), (d)(1), Dec. 27, 2001, 115 Stat. 989.)

References in Text

Section 1603 of the Persian Gulf War Veterans Act of 1998, referred

to in subsecs. (b)(2)(A)(i) and ©(1), is section 1603 of Pub. L. 105-

277, which is set out in a note under section 1117 of this title.

Amendments

2001--Subsec. (a)(4). Pub. L. 107-103, Sec. 202(b)(2), added par.

(4).

Subsec. (e). Pub. L. 107-103, Sec. 202(d)(1), substituted ``on

September 30, 2011'' for ``10 years after the first day of the fiscal

year in which the National Academy of Sciences submits to the Secretary

the first report under section 1603 of the Persian Gulf War Veterans Act

of 1998''.

Effective Date of 2001 Amendment

Amendment by section 202(b)(2) of Pub. L. 107-103 effective Mar. 1,

2002, see section 202© of Pub. L. 107-103, set out as a note under

section 1117 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1113, 1117 of this title.

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I have previously applied for a service connected disability for cervical dystonia and was denied. The Board denied my claim sincee the diagnosis was not until 5years after separation. Recently, the cervical dystonia came back with a vegenance and I was placed on short term disability. I have since re-opened my claim for presumptive disability benefit due to the neurological movement disorder. I have also requested a reopen of my claim for muscle/joint pain and headeaches resulting from the gulf war!

Is there anybody else out ther who is suffering from dystonia whom served in the gulf war? I think the VA is going to deny my claim again but its frustrating because its a neurological condition and there is strong evidence it is a result of exposure to toxins. I was onboard a forward deployed ship and breathed in all that nasty air from the burning oil wells.

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From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 7, 2003]

[Document not affected by Public Laws enacted between

January 7, 2003 and February 12, 2003]

[CITE: 38USC1118]

TITLE 38--VETERANS' BENEFITS

PART II--GENERAL BENEFITS

CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH

SUBCHAPTER II--WARTIME DISABILITY COMPENSATION

Sec. 1118. Presumptions of service connection for illnesses

associated with service in the Persian Gulf during the Persian

Gulf War

(a)(1) For purposes of section 1110 of this title, and subject to

section 1113 of this title, each illness, if any, described in paragraph

(2) shall be considered to have been incurred in or aggravated by

service referred to in that paragraph, notwithstanding that there is no

record of evidence of such illness during the period of such service.

(2) An illness referred to in paragraph (1) is any diagnosed or

undiagnosed illness that--

(A) the Secretary determines in regulations prescribed under

this section to warrant a presumption of service connection by

reason of having a positive association with exposure to a

biological, chemical, or other toxic agent, environmental or wartime

hazard, or preventive medicine or vaccine known or presumed to be

associated with service in the Armed Forces in the Southwest Asia

theater of operations during the Persian Gulf War; and

(B) becomes manifest within the period, if any, prescribed in

such regulations in a veteran who served on active duty in that

theater of operations during that war and by reason of such service

was exposed to such agent, hazard, or medicine or vaccine.

(3) For purposes of this subsection, a veteran who served on active

duty in the Southwest Asia theater of operations during the Persian Gulf

War and has an illness described in paragraph (2) shall be presumed to

have been exposed by reason of such service to the agent, hazard, or

medicine or vaccine associated with the illness in the regulations

prescribed under this section unless there is conclusive evidence to

establish that the veteran was not exposed to the agent, hazard, or

medicine or vaccine by reason of such service.

(4) For purposes of this section, signs or symptoms that may be a

manifestation of an undiagnosed illness include the signs and symptoms

listed in section 1117(g) of this title.

(b)(1)(A) Whenever the Secretary makes a determination described in

subparagraph (B), the Secretary shall prescribe regulations providing

that a presumption of service connection is warranted for the illness

covered by that determination for purposes of this section.

(B) A determination referred to in subparagraph (A) is a

determination based on sound medical and scientific evidence that a

positive association exists between--

(i) the exposure of humans or animals to a biological, chemical,

or other toxic agent, environmental or wartime hazard, or preventive

medicine or vaccine known or presumed to be associated with service

in the Southwest Asia theater of operations during the Persian Gulf

War; and

(ii) the occurrence of a diagnosed or undiagnosed illness in

humans or animals.

(2)(A) In making determinations for purposes of paragraph (1), the

Secretary shall take into account--

(i) the reports submitted to the Secretary by the National

Academy of Sciences under section 1603 of the Persian Gulf War

Veterans Act of 1998; and

(ii) all other sound medical and scientific information and

analyses available to the Secretary.

(B) In evaluating any report, information, or analysis for purposes

of making such determinations, the Secretary shall take into

consideration whether the results are statistically significant, are

capable of replication, and withstand peer review.

(3) An association between the occurrence of an illness in humans or

animals and exposure to an agent, hazard, or medicine or vaccine shall

be considered to be positive for purposes of this subsection if the

credible evidence for the association is equal to or outweighs the

credible evidence against the association.

©(1) Not later than 60 days after the date on which the Secretary

receives a report from the National Academy of Sciences under section

1603 of the Persian Gulf War Veterans Act of 1998, the Secretary shall

determine whether or not a presumption of service connection is

warranted for each illness, if any, covered by the report.

(2) If the Secretary determines under this subsection that a

presumption of service connection is warranted, the Secretary shall, not

later than 60 days after making the determination, issue proposed

regulations setting forth the Secretary's determination.

(3)(A) If the Secretary determines under this subsection that a

presumption of service connection is not warranted, the Secretary shall,

not later than 60 days after making the determination, publish in the

Federal Register a notice of the determination. The notice shall include

an explanation of the scientific basis for the determination.

(B) If an illness already presumed to be service connected under

this section is subject to a determination under subparagraph (A), the

Secretary shall, not later than 60 days after publication of the notice

under that subparagraph, issue proposed regulations removing the

presumption of service connection for the illness.

(4) Not later than 90 days after the date on which the Secretary

issues any proposed regulations under this subsection, the Secretary

shall issue final regulations. Such regulations shall be effective on

the date of issuance.

(d) Whenever the presumption of service connection for an illness

under this section is removed under subsection ©--

(1) a veteran who was awarded compensation for the illness on

the basis of the presumption before the effective date of the

removal of the presumption shall continue to be entitled to receive

compensation on that basis; and

(2) a survivor of a veteran who was awarded dependency and

indemnity compensation for the death of a veteran resulting from the

illness on the basis of the presumption before that date shall

continue to be entitled to receive dependency and indemnity

compensation on that basis.

(e) Subsections (b) through (d) shall cease to be effective on

September 30, 2011.

(Added Pub. L. 105-277, div. C, title XVI, Sec. 1602(a)(1), Oct. 21,

1998, 112 Stat. 2681-742; amended Pub. L. 107-103, title II,

Sec. 202(b)(2), (d)(1), Dec. 27, 2001, 115 Stat. 989.)

References in Text

Section 1603 of the Persian Gulf War Veterans Act of 1998, referred

to in subsecs. (b)(2)(A)(i) and ©(1), is section 1603 of Pub. L. 105-

277, which is set out in a note under section 1117 of this title.

Amendments

2001--Subsec. (a)(4). Pub. L. 107-103, Sec. 202(b)(2), added par.

(4).

Subsec. (e). Pub. L. 107-103, Sec. 202(d)(1), substituted ``on

September 30, 2011'' for ``10 years after the first day of the fiscal

year in which the National Academy of Sciences submits to the Secretary

the first report under section 1603 of the Persian Gulf War Veterans Act

of 1998''.

Effective Date of 2001 Amendment

Amendment by section 202(b)(2) of Pub. L. 107-103 effective Mar. 1,

2002, see section 202© of Pub. L. 107-103, set out as a note under

section 1117 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1113, 1117 of this title.

I have a pending claim for SC Diarrhia, joint pain and head aches. All a result of "Gulf War Illness". I just signed the VCAA notice and submitted every medical document I have. Hopefully, I will get something but probably not. I've grown accustom to denials.

Bergie

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The sad part is that it's been well over a year since GWI was officially determined to be a 'real' illness.

Gulf War veterans should be getting Gulf War Illness diagnoses and there should be a diagnostic code for it by now.

We are getting shafted, pure and simple.

If doctors would get up to date with last years findings and the VA/congress would update USC to include the illness, it would solve some of the SC problems. I suppose that is why it isn't done.

GWI is this generations AO. It will be many more years before it is reccognized.

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