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Establish the effective date for the Functional Gastrointestinal Disorders as the date of submission of first denial of service connection for the veteran.  Whether that be 1994 or 2004.

Subject:  ‘‘RIN 2900–AN83   Presumptive Service Connection for Diseases Associated With Persian Gulf War Service: Functional Gastrointestinal Disorders (FGIDs).’’

Carl K. Price, Accredited Agent

The clarification of the intent on the Presumptive Service Connections for FGIDs does not clarify the date that these presumptive will be service connected.



The clear language of the VA’s Fast Letter 10-01 indicates that in 1994 it was Congressional intent not to restrict the illnesses/diseases in the first Persian Gulf Syndrome claim.



The VA admits in the Fast Letter that when the VA wrote the Regulations that restricted service connection to just three diseases the three diseases were only to have been illustrative, not restrictive.



The effective date must be established as the date of the original claim if the disability had previously been denied service connection.



The VA has erroneously applied too restrictive a standard in determining what conditions were associated with Persian Gulf service.



Previous U.S. Court District Decisions have ruled that denials of service connection have been invalid because the VA had applied too restrictive a standard in determining what conditions were related to Persian Gulf Service.



There is already Court precedence to establish that the VA will lose this issue in Court and that delay to establishing the effective date in the entire revisions to the Persian Gulf Syndrome/ Illness will only harm veterans by delaying the length of time that they would have been service connected.



The principles established in Nehmer v. United States Veterans' Administration (Nehmer) decision apply to Presumptions of Service Connection for Persian Gulf Service.  Although the Nehmer precedence only addresses “Exposure to Dioxin” the language talks about the effects of applying a too strict standard when writing regulations and applying regulations.



The denial of the previous claims illustrate that the Department of Veterans’ Affairs had by-passed the intent of Congress to open the presumptive list of disabilities after the initial Operations Desert Shield/Storm Operations.



Congress codified 38 U.S.C. § 1117, which is the basis of 38 C.F.R. § 3.317.  These laws address a range of chronic disabilities that did not correspond to recognized categories of diseases. The directives and regulations defined such disabilities as “undiagnosed illnesses”; however, subsequent amendments to 38 U.S.C. § 1117 expanded the definition of a chronic disability to include certain diagnosed illnesses with inconclusive etiologies.



As more research was conducted and more knowledge of the disability patterns associated with Gulf War and Southwest Asia service accumulated, Congress amended §1117 in 2001 by expanding the associated disabilities to include “medically unexplained chronic multi symptom illnesses.” This language was subsequently incorporated into the revised VA regulations at § 3.317. The result of this change was to include both “undiagnosed illnesses” and certain “diagnosed illnesses” under the overarching heading of “a qualifying chronic disability The Nehmer v. United States Veterans' Administration (Nehmer) precedent decision should apply to Presumptions of Service Connection for Persian Gulf Service in establishing an effective date for the diseases.



VA Training Letter 10-01states:



“ In 1994, Congress enacted the “Persian Gulf War Veterans’ Benefits Act,” which is codified at 38 U.S.C. § 1117. This legislation sought to promote research on the medical disability patterns associated with Gulf War service and to provide compensation for “disabilities resulting from illnesses that cannot now be diagnosed or defined, and for which other causes cannot be identified.” Through this legislation, the term “undiagnosed illnesses” was introduced and incorporated into VA regulations at 38 C.F.R. §3.317.



As more research was conducted and more knowledge of the disability patterns associated with Gulf War and Southwest Asia service accumulated, Congress amended §1117 in 2001 by expanding the associated disabilities to include “medically unexplained chronic multi symptom illnesses.” The Congressional Joint Explanatory Statement accompanying this statutory amendment described the new terminology as “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.” This language was subsequently incorporated into the revised VA regulations at § 3.317. The result of this change was to include both “undiagnosed illnesses” and certain “diagnosed illnesses” under the overarching heading of “a qualifying chronic disability.” Examples of qualifying chronic disabilities were identified by Congress and incorporated into VA regulations. These included chronic fatigue syndrome, irritable bowel syndrome, and fibromyalgia.



Although these three chronic disabilities were intended by Congress to serve as examples, the amended regulation indicated that they were the only disability patterns available for consideration as medically unexplained chronic multi symptom illnesses. Because military personnel continue to operate in Southwest Asia and continue to be exposed to potential environmental hazards, including some not experienced during the initial 1990-1991 Gulf war, C&P Service has determined that an adjustment to the regulation is in order. Therefore, § 3.317 will be amended to clarify that the three currently listed medically unexplained chronic multi symptom illnesses are only examples and are not exclusive. This will allow medical examiners more latitude in evaluating disability patterns based on service in Southwest Asia.”



Because military personnel continue to operate in Southwest Asia and continue to be exposed to potential environmental hazards, including some not experienced during the initial 1990-1991 Gulf war, C&P Service has determined that an adjustment to the regulation is in order. Therefore, § 3.317 will be amended to clarify that the three currently listed medically unexplained chronic multi symptom illnesses are only examples and are not exclusive. This will allow medical examiners more latitude in evaluating disability patterns based on service in Southwest Asia.”



Establish the effective date for the FGID as the date of submission of first denial of service connection for the veteran.  Whether that be 1994 or 2004.



The VA has the authority to establish the rules concerning effective dates especially when the VA has admitted that they have applied too restrictive an interpretation in establishing rules.