REVIEW OF THE OCTOBER 19, 1998 LAW CONCERNING SERVICE

CONNECTION FOR PERSIAN GULF WAR ILLNESSES

by: Gary Pitts

Attorney, Houston, Texas

Veterans' Day, 1998

Title XVI, of Division C of Public Law 105-277 is entitled "Service Connection for Persian Gulf War Illnesses." This important and long awaited legislation was enacted into law on October 19, 1998. It amends Subchapter II (Wartime Disability Compensation) of Chapter 11 (Compensation for Service- Connected Disability or Death) of Title 38 (Veterans Benefits) of the United States Code. The structure of this new law is very similar to the Agent Orange Act of 1991 (38 U.S. Code § 1116) which finally gave a presumption of service connection for toxic exposure to Vietnam veterans.

The new law is favorable legal framework, but will still require the Secretary of Veterans Affairs to fill in the framework with implementing regulations. The presumption of service connection for Gulf War Illnesses will be binding if the V.A. Secretary "determines in regulations" that such a presumption is warranted. It will be warranted if there is a "positive association" with exposure to a chemical, biological or other toxic agent or environmental hazard and the illness becomes manifest within a veteran within a time to be set by regulation (probably an extended period into the future given the incubation period of cancer). It does not matter that there was no record of such illness while in the service. It does not matter if the illness has been diagnosed or undiagnosed.

The important question is if there is a "positive association" between a toxic exposure that Gulf War veterans were exposed to and illness that has presented since then. The determination of a "positive association" is to be "based on sound medical and scientific evidence. In making this determination the V.A. Secretary is to take into account reports from the National Academy of Sciences (an independent nonprofit organization) and "all other sound medical and scientific information and analysis available." In considering such reports, information and analysis the V.A. Secretary "shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review."

Ultimately, a "positive association" between a toxic exposure and an illness will be found "if the credible evidence for the association is equal to or outweighs the credible evidence against the association." Thus the ball of details is being carried by the doctors and scientists studying illnesses from exposures.

The law lists 9 groups of toxins, including 33 individual toxins, that Gulf War veterans are known to have been exposed to, including low-level nerve gases, Sarin and Tabun, and their precursors; low-level mustard gas; p.b. anti-nerve pills; pesticide; oil fire smoke; depleted uranium; and others The National Academy of Sciences is given six months from the enactment of the law to submit a report reviewing and summarizing the relevant scientific evidence and determine "whether a statistical association exists" between exposure to the particular toxin and illness, whether there is an increased risk of illness from the exposure, and "whether a plausible biological mechanism or other evidence of a causal relationship" exists between the toxic exposure and illness. The National Academy of Sciences report that it is currently "on track" with its work. Their initial report is due by April 19, 1999.

For each illness identified, the National Academy of Sciences is then supposed to review the available science regarding treatment for the illnesses. They are also supposed to make recommendations for additional appropriate scientific studies, including studies regarding treatment. The National Academy of Sciences is supposed to continue reviewing the evidence and data and will provide a subsequent report in October, 2000, and every two years after that until 2008.

Once a "positive association" between a toxic exposure and an illness has been determined there will be regulations stating the association. Then any veteran who served in the theater of operations during the Gulf War who has such an associated illness will be presumed to have been exposed and made ill due to the related toxin during the Gulf War. In order to rebut this presumption, the V.A. would have to have "conclusive evidence" establishing that the veteran was not exposed to the toxin during the Gulf War. Due to missing chemical warfare logbooks, and missing or nonexistent records regarding the other toxic exposures, it will be very difficult for the V.A. to have "conclusive evidence" establishing that there was not any exposure to nerve and mustard gases, given the large number of chemical alarms throughout the theater of operations during the bombing of Iraq's chemical warfare facilities.

The law further states that the illness determined to be presumed from toxic exposure during the Gulf War will be regardless of whether the toxic exposure was a single, repeated or constant exposure or whether it was in combination with other toxic exposures.

Within 60 days of receiving the National Academy of Sciences' report on or before April 19, 1999, the V.A. Secretary shall determine whether or not a presumption of service connection is warranted for each illness covered by their report. Thus by about June 19, 1999, we will know what illnesses are covered, at least preliminarily. Within 60 days of that date the V.A. Secretary shall issue consistent proposed regulations, and within 90 days of that, the regulations will be final. Thus by November 19, 1999, or about Veterans's Day of next year, the regulations should be in place to finally see that Gulf War veterans receive the proper government medical and disability benefits that they deserve for their wartime toxic wounds.

This law covers military veterans of the Gulf War but does not cover the approximately 3,000 American civilians who were in the theater of operations supporting the war, maintaining high-tech military equipment for the most part. Hopefully, they will also be covered by similar legislation in the near future.

Published and copywrites©, with permission by Gary Pitts, Attorney at Law, Houston, Texas - "Representing Gulf War Veterans' in a Class-Action lawsuit against Chemical manufactures, who provided Iraq with the materials to make their chemical agents."