Claim On Gwi, Response From Va

[ntyler0341]

I had filed claims with the VA. Some were new, and some claims were to reopen certain claims. This was almost one year ago. Recently, I received a letter a letter from the VA. It mentions they are still working on my claim, but need more information on GWI.

What do we still need from you?

We need evidence showing that the following conditions existed from military service to present time:

Body rash, joint pains, diarrhea, chest/stomach pains, all due to GWI.

The letter goes on to state.........you have claimed exposure to an environmental hazard based on your service during the GW. We can take no action since you did not claim a specific disability. Tell us your specific disability that resulted from your exposure so we can process your claim.

As you all are aware, this is getting old and very frustrating. I submitted all information I had that listed my symptoms. I was pretty specific filing form 21-4138. I went as far as listing the health effects of my children and how it affects me emotionally.

What else does a guy have to do?

Yes, I had a VSO. She was the one who initially opened this claim. BUT, when I told her I need to file for GWI, I got the deer in the headlights look. Needless to say, I went to this DAV for info on my claim, and was told she quit over a month ago.

I face many obstacles, the biggest being that I live in the most remote place in Western Washington. Im well over 4 hours from a metropolitan area. At this point, I know I need to do what ever needs to be done for this battle.

Any and all thoughts on my next steps will be highly appreciated.

[USMC5811]

I spoke to a Gulf War Vet a few weeks ago that said that he received a similar letter from his RO. He could not understand what more they wanted as he submitted medical records that confirmed several of the presumptive of GWI per the VA, his DD214 as well as copies of commendations he sent proved he was there, supporting lay person statements as to his symptoms etc. For some reason some VA workers, either through inexperience, not being educated as far as what is required in regards to presumptive conditions OR to just show a claim is being worked on (for stat purposes) are sending out these letters.

Unlike claims for direct service connection, claims based on an undiagnosed illness under section 1117 and §3.317 do not requirea medical nexus linking the condition to service; rather, they are presumptively service connected when the requirements of the statute and the regulation are met. Gutierrez v. Principi, 19 Vet.App.1, 8-9 (2004).

If you look at some of the cases at the United States Court of Appeals for Veterans http://www.uscourts.cavc.gov/ - you'll see most if not all of the denials because of "We need evidence showing that the following conditions existed from military service to present time" (pertaining to GWI presumptive) have been overturned.

One case that shows this can also be found here: http://www.kansasvet... statements.pdf

This is just my opinion and two cents but what I suggested to the vet I spoke to was to use the VA's own rules, regs, codes against them when responding specifically to the request for we need evidence showing that the following conditions that are presumptive ......I suggested he use court cases (as noted above) and such things as:

CFR-2011-title38-vol1-sec § 3.317

Compensation for certain disabilities due to undiagnosed illnesses.

(a) Compensation for disability due to

undiagnosed illness and medically unexplained

chronic multisymptom illnesses.

(1) Except as provided in paragraph

(a)(7) of this section, VA will pay compensation

in accordance with chapter

11 of title 38, United States Code, to a

Persian Gulf veteran who exhibits objective

indications of a qualifying

chronic disability, provided that such

disability:

(i) Became manifest either during active

military, naval, or air service in

the Southwest Asia theater of operations,

or to a degree of 10 percent or

more not later than December 31, 2011; <---------now December 31, 2016

and

(ii) By history, physical examination,

and laboratory tests cannot be attributed

to any known clinical diagnosis.

VA Fast Letter 10-01 also has pertinent info that can be used to respond back to the VA:

As for them asking you: "Tell us your specific disability that resulted from your exposure so we can process your claim."

If you claimed specifically one of the following or any symptoms the VA itself has worded in "Undiagnosed Illnesses" I would also point this out to them. Note: more symptoms from VA can be found in the fast letter:

"Gulf War Syndrome" represents an overall classification of disabilities and diseases; it is not an actual disability in and of itself for which VA compensation benefits are payable . . . Therefore, Persian Gulf Syndrome alone is not a 'disability' for VA compensation benefits purposes and service connection must be denied.

VA presumes certain chronic, unexplained symptoms existing for 6 months or more are related to Gulf War service without regard to cause. These "presumptive" illnesses must have appeared during active duty in the Southwest Asia theater of military operations or by December 31, 2016, and be at least 10 percent disabling. These illnesses include:

• Chronic Fatigue Syndrome, a condition of long-term and severe fatigue that is not relieved by rest and is not directly caused by other conditions.
  
• Fibromyalgia, a condition characterized by widespread muscle pain. Other symptoms may include insomnia, morning stiffness, headache, and memory problems.
  
• Functional gastrointestinal disorders, a group of conditions marked by chronic or recurrent symptoms related to any part of the gastrointestinal tract. Functional condition refers to an abnormal function of an organ, without a structural alteration in the tissues. Examples include irritable bowel syndrome (IBS), functional dyspepsia, and functional abdominal pain syndrome.
  
• Undiagnosed illnesses with symptoms that may include but are not limited to: abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances.
  

VA’s final rule specifying that functional gastrointestinal disorders are covered as presumptive illnesses took effect on August 15, 2011.

- I would point this out to them and use the VA's own wording.

Edited September 3, 2012 by USMC5811

[ntyler0341]

USMC5811: I appreciate the thorough response. Very helpful information. There is so much information that I have come across, it has my head spinning.

[Guest]

You can review this site.

http://www.hadit.com/forums/index.php?/forum/98-gulf-war-illness/

A lot of good information.

[rdawg]

i got s a similar letter about exposures. I listed what I was exposed to (my supervisor actually noted it in my smr) and specifically said I was not claiming a condition of "exposure". I then listed the specific conditions I was claiming and how the exposures caused them. I got the same letter about how I did not claim a specific condition.

I think it is thier way of telling you that you are an idiot and that exposure is not a condition. They have thier digs at us just to get thru the day.

It sounds like you know what you are doing and I would not pay any attention to it.

[Gulfvet45]

You can get the new section 3.317 online to use the date will be right it will have the FGID in it this lets veterans claim not only a diagnosed IBS but some other GI problems too. They cannot claim GERD inless there is a nexus to serice. You do need to state out that you symptoms are caused by your service in the gulf are like what was said. you should find some of the research to also help you in your claim. There is some out their. The term for chronic multisymptom illnesses was expanded to include more this past year too.

I spoke to a Gulf War Vet a few weeks ago that said that he received a similar letter from his RO. He could not understand what more they wanted as he submitted medical records that confirmed several of the presumptive of GWI per the VA, his DD214 as well as copies of commendations he sent proved he was there, supporting lay person statements as to his symptoms etc. For some reason some VA workers, either through inexperience, not being educated as far as what is required in regards to presumptive conditions OR to just show a claim is being worked on (for stat purposes) are sending out these letters.

Unlike claims for direct service connection, claims based on an undiagnosed illness under section 1117 and &sect;3.317 do not requirea medical nexus linking the condition to service; rather, they are presumptively service connected when the requirements of the statute and the regulation are met. Gutierrez v. Principi, 19 Vet.App.1, 8-9 (2004).

If you look at some of the cases at the United States Court of Appeals for Veterans http://www.uscourts.cavc.gov/ - you'll see most if not all of the denials because of "We need evidence showing that the following conditions existed from military service to present time" (pertaining to GWI presumptive) have been overturned.

One case that shows this can also be found here: http://www.kansasvet... statements.pdf

This is just my opinion and two cents but what I suggested to the vet I spoke to was to use the VA's own rules, regs, codes against them when responding specifically to the request for we need evidence showing that the following conditions that are presumptive ......I suggested he use court cases (as noted above) and such things as:

CFR-2011-title38-vol1-sec &sect; 3.317

Compensation for certain disabilities due to undiagnosed illnesses.

(a) Compensation for disability due to

undiagnosed illness and medically unexplained

chronic multisymptom illnesses.

(1) Except as provided in paragraph

(a)(7) of this section, VA will pay compensation

in accordance with chapter

11 of title 38, United States Code, to a

Persian Gulf veteran who exhibits objective

indications of a qualifying

chronic disability, provided that such

disability:

(i) Became manifest either during active

military, naval, or air service in

the Southwest Asia theater of operations,

or to a degree of 10 percent or

more not later than December 31, 2011; <---------now December 31, 2016

and

(ii) By history, physical examination,

and laboratory tests cannot be attributed

to any known clinical diagnosis.

VA Fast Letter 10-01 also has pertinent info that can be used to respond back to the VA:

As for them asking you: "Tell us your specific disability that resulted from your exposure so we can process your claim."

If you claimed specifically one of the following or any symptoms the VA itself has worded in "Undiagnosed Illnesses" I would also point this out to them. Note: more symptoms from VA can be found in the fast letter:

"Gulf War Syndrome" represents an overall classification of disabilities and diseases; it is not an actual disability in and of itself for which VA compensation benefits are payable . . . Therefore, Persian Gulf Syndrome alone is not a 'disability' for VA compensation benefits purposes and service connection must be denied.

VA presumes certain chronic, unexplained symptoms existing for 6 months or more are related to Gulf War service without regard to cause. These "presumptive" illnesses must have appeared during active duty in the Southwest Asia theater of military operations or by December 31, 2016, and be at least 10 percent disabling. These illnesses include:

• Chronic Fatigue Syndrome, a condition of long-term and severe fatigue that is not relieved by rest and is not directly caused by other conditions.
  
• Fibromyalgia, a condition characterized by widespread muscle pain. Other symptoms may include insomnia, morning stiffness, headache, and memory problems.
  
• Functional gastrointestinal disorders, a group of conditions marked by chronic or recurrent symptoms related to any part of the gastrointestinal tract. Functional condition refers to an abnormal function of an organ, without a structural alteration in the tissues. Examples include irritable bowel syndrome (IBS), functional dyspepsia, and functional abdominal pain syndrome.
  
• Undiagnosed illnesses with symptoms that may include but are not limited to: abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances.
  

VA’s final rule specifying that functional gastrointestinal disorders are covered as presumptive illnesses took effect on August 15, 2011.

- I would point this out to them and use the VA's own wording.

[ArNG11]

Section 1117? Does anyone have the references on the reg? Since I was given a hard diagnosis I have a feeling I am going to have a difficult road ahead with my gulf war claim. Yes I have records of symptoms and documentation from private doctors, however, it is not undiagnosed. Any suggestions on direction for this?