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One of the most frustrating aspects of dealing with Persian Gulf War claims is the medical community's desire to provide a diagnosis for these veterans' illnesses. Physicians are trained to provide a diagnosis, in other words, to “pigeonhole” the problem with their best guess; thereby preventing a veteran from establishing a claim for service connection for undiagnosed illnesses. There appears to be some inconsistency in whether a veteran is provided with a diagnosis for his illness or whether the illness goes undiagnosed. In other words, two veterans with similar symptoms may find themselves treated very differently by the VA if one is provided with a diagnosis and the other is determined to be suffering from an undiagnosed illness.

A potential problem also exists for a veteran service-connected and rated for an undiagnosed illness and who is later diagnosed with a particular disability. It would appear that once a diagnosis is made, the veteran is no longer eligible for service connection pursuant to 38 U.S.C. § 1117. Apparently, there is no mechanism in place to quickly establish service connection for the diagnosed illness under a different statute or regulation. Reportedly, a number of such cases are pending VA Central Office review.

Another frustrating aspect of Persian Gulf illness is that many of these veterans are not only underrated but, when they seek medical care, VA physicians or private physicians are unable to adequately treat them because of the unknown nature of their disabilities. In many cases, these brave young men and women are unemployed because of their debilitating illness, yet they are unable to receive adequate compensation or meaningful medical care because of the confusion surrounding their illness.

Finally, adjudicating Persian Gulf War claims at four regional offices has adversely impacted upon the adjudication of other claims in those four regions. For example, in the Central Region, more than 5,300 cases have been sent out to other regional offices for adjudication since December 1995, and another 1,000 are in the process of being shipped. In the Southern Region, there are approximately 400 cases per week being farmed out to other regional offices for adjudication. This has created long delays in the adjudication of non Persian Gulf War claims. Many of these older veterans are experiencing longer delays in the adjudication of their claims and are frustrated by the fact that their local NSO is unable to provide them with the status of their claim since it is not being adjudicated at the agency of original jurisdiction. Our NSOs are also frustrated because they have, at best, an extremely difficult time maintaining control of their local veterans' claims.

In summary, it is obvious that the current claims processing of Persian Gulf War claims is not producing the desired results. It is our understanding that the VA is currently considering the decentralization of Persian Gulf War claims. The DAV supports such a move, and we have recommended that the VA decentralize its claims processing in a letter to Secretary Brown. We hope that this Subcommittee would also encourage the VA to decentralize its claims processing of Persian Gulf War claims. At the same time, the VA needs to focus on a nationwide training program of its rating specialists and adjudicators to provide them with the necessary expertise to properly adjudicate these claims. Once this has been accomplished, the DAV believes that all veterans would be better served by having their claims adjudicated at the agency of original jurisdiction.

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With regards to the VA's proposal to limit its liability for compensating and treating veterans with smoking-related diseases, the DAV does not support the VA's proposal to exclude smoking-related disabilities and deaths from eligibility for service connection or health care. One concern is the faimess of this, given that the harmful effects of smoking were not widely known until more recently. Indeed, the Armed Forces provided free cigarettes to servicemembers in certain circumstances, such as in C Rations issued to many of our combat soldiers. Another concem is that smoking is sometimes the convenient reason given for respiratory disorders and cancers where the etiology is uncertain and where there could have been other factors, either alone or in concert with smoking, that caused the disorder. The proposed legislation could lead to unfair denials of service connection. In any event, from the information provided, the implications of this change cannot be fully understood. If the Committee entertains some action on this proposal, it should first hold hearings so that the reasons for and effects of the measure can be clarified.

This concludes my statement. I would be pleased to answer any questions you or members of the Subcommittee may have.

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The Disabled American Veterans (DAV) does not currently receive any money from any federal grant or contract.

During fiscal year (FY) 1995, DAV received $55,252.56 from Court of Veterans Appeals appropriated funds provided to the Legal Service Corporation for services provided by DAV to the Veterans Consortium Pro Bono Program. In FY 1996, DAV received $8,448.12 for services provided to the Consortium. Since June 1996, DAV has provided its services to the Consortium at no cost to the Consortium.

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Member, State of California and District of Columbia Bars
Member, Presidential Delegation (POW/MIA's) to Southeast Asia, March, 1996
Co-chair, Veterans' Appeals Committee, Federal Circuit Bar Assoc., 1992-1996
Co-chair, Legislative Committee, Federal Circuit Bar Assoc., 1996-present
Vice chair, Veterans' Benefits Committee, American Bar Association, 1991-present
At-lange board member, Veterans' Low Section, Federal Bar Association, 1991-1992
Life member, Disabled American Veterans, Chapter Commander, 1990-1991
Life member, Veterans of Foreign Wars, Post Commander, 1984-1985
Life member, 3d Marine Division Association, Chapter Secretary, 1986-1987
Member, American Legion, Marine Corps League, and 2nd Bn, 4th Marines Assoc.
Member, Knights of Columbus, Fourth degree
Member, National Italian-American Foundation, Council of 1000
Member, National Italian-American Bar Association
Member, Geriatrics and Gerontology Advisory Committee, Depr. of Veterans Affairs
Board of Directors, Bowie Cable TV, 1992-1994
Member, Bowic Cable TV City Council Advisory Committee, 1989-1991
Co-host, Veteran's Forum, Bowic Cable TV, 1991-1994





MAY 14, 1997

Mr. Chairman and distinguished members of the Subcommittee:

The American Legion appreciates the opportunity to offer testimony regarding the processing of Persian Gulf War claims by the Department of Veterans Affairs. We commend the Chairman for convening this hearing. The topic of Persian Gulf claims has received little media attention, but is an important issue that lies at the heart of how the federal government aids disabled veterans of the Gulf War. This hearing comes in the midst of a massive review of Gulf War undiagnosed illness claims by VA because of earlier widespread processing errors and the recent extension of the presumptive period. This review and the extension of the presumptive period, although welcomed by The American Legion, both exacerbate the inherent flaw of the Gulf War Environmental Hazards processing system, of which undiagnosed illness claims are a major subset. The centralized processing of Gulf War Environmental Hazards claims has created a backlog of over 14,000 cases awaiting adjudication. Mr. Chairman, that's 14,000 disabled Gulf War veterans, many with families, forced to wait longer for their claim to be adjudicated. When VA initiated their plan to centralize Persian Gulf claims The American Legion adamantly opposed this effort because of the possibility it would create a massive backlog. The American Legion has consistently encouraged VA to immediately end the practice of processing Gulf War Environmental Hazards claims at four Area Processing Offices (APOs).

Background In 1991, many returning Gulf War veterans reported chronic symptoms of fatigue, skin rash, memory loss, joint and muscle pain, and other symptoms that have come to be known as Gulf War Illness (GWI). GWI is a complex of ill defined and often poorly characterized symptoms that have evaded a case definition by the medical community, and therefore, go undiagnosed by medical doctors.

In November 1994, Congress passed and the President signed Public Law 103446, the “Veterans' Benefits Improvement Act of 1994." This legislation was a bold, unprecedented approach to the payment of compensation for a serviceconnected disability. It allowed VA to pay compensation to Gulf War veterans who suffered from undiagnosed illnesses possibly related to their service in the Southwest Asia theater of operations. The legislation gave Gulf War veterans the benefit of the doubt concerning their current disabilities, keeping with the nation's long and proud tradition of caring for its disabled war veterans.

In February 1995, VA published the regulation titled Compensation for Certain Disabilities Due to Undiagnosed Illnesses" (38 CFR, section 3.317). The regulation required some nexus between symptoms and service in the Persian Gulf.

To qualify for disability compensation under this regulation a veteran must prove or provide evidence of the following:

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