Extension of the Presumptive Period for Compensation for Gulf War Veterans

In response to the needs and concerns of veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, Congress enacted the Persian Gulf War Veterans' Benefits Act, Title I of the Veterans' Benefits Improvement Act of 1994, Public Law 103-446, which was codified in relevant part at 38 U.S.C. 1117. This law provided authority for the Secretary of Veterans Affairs (Secretary) to compensate eligible Gulf War veterans with a chronic disability resulting from undiagnosed illness. That illness must have become manifest either during active duty service in the Southwest Asia theater of operations during the Persian Gulf War, or disabling to a degree of ten percent or more during a period determined by the Secretary and prescribed by regulation. The Secretary would determine this period after reviewing any credible medical or scientific evidence, the historical treatment afforded disabilities for which VA had established such periods, and other pertinent circumstances regarding the experiences of veterans of the Persian Gulf War.

To implement 38 U.S.C. 1117, VA published a final rule to add 38 CFR 3.317, which established the framework for VA to pay compensation under the Persian Gulf War Veterans' Benefits Act. See 60 FR 6660-6666, Feb. 3, 1995. As part of that rulemaking, VA established a period of two years after Gulf War service in which VA would presume a medical relationship of an undiagnosed illness to that service. VA determined that there was little or no scientific or medical evidence at that time useful in determining an appropriate presumptive period for undiagnosed illnesses. Therefore, VA primarily based this two-year period on its history of establishing presumptive periods as well as the available facts regarding service in the Southwest Asia theater of operations during the Gulf War.

The lack of medical and scientific evidence about the nature and cause of the illnesses suffered by Gulf War veterans continued, as did the uncertainty of an appropriate presumptive period for undiagnosed illnesses. Accordingly, VA established December 31, 2001, as the date by which an undiagnosed illness must become manifest. See 62 FR 23138, Apr. 29, 1997. In 2001, VA again extended the period to December 31, 2006. See 66 FR 56614, Nov. 9, 2001.

In December 2001, section 202(a) of Public Law 107-103 amended 38 U.S.C. 1117by revising the term “chronic disability” to include the following (or any combination thereof): (a) An undiagnosed illness; (b) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms; or (c) any diagnosed illness that the Secretary determines warrants a presumption of service connection. The term “qualifying chronic disability” broadened the scope of those illnesses the Secretary may presume related to service. Under 38 U.S.C. 1117, a chronic disability must still occur during service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of ten percent or more disabling during the prescribed presumptive period following such service. VA amended § 3.317 to reflect these changes. See 68 FR 34539, June 10, 2003.

As required by Public Law 105-368, the National Academy of Sciences (NAS) reviews, evaluates, and summarizes the scientific and medical literature for possible association between service in the Southwest Asia theater of operations and long-term adverse health effects. Following review of such NAS reports, VA determined that the evidence remained inconclusive Start Printed Page 71383regarding the time of onset of undiagnosed and other illnesses related to Gulf War service and, in December 2006, VA published an interim final rule to further extend the manifestation period from December 31, 2006, to December 31, 2011. See 71 FR 75669, Dec. 18, 2006. Additionally, on October 13, 2010, Congress enacted section 806 of Public Law 111-275, which directed VA to extend its agreement with NAS created under Section 101 of Public Law 105-368 to review, evaluate, and summarize scientific and medical literature associated with Persian Gulf War service. Congress has not established an end date for the Gulf War as military operations in the Southwest Asia theater of operations continued, including Operation Iraqi Freedom. See 38 U.S.C. 101(33).

In a report published in 2010 titled Gulf War and Health, Volume 8: Update of Health Effects of Serving in the Gulf War, available at http://nationalacademies.org/​hmd/​reports/​2010/​gulf-war-and-health-volume-8-health-effects-of-serving-in-the-gulf-war.aspx (last viewed Aug. 17, 2016), NAS evaluated the available scientific and medical literature regarding the prevalence of chronic multisymptom illnesses in Gulf War veterans. Consistent with its prior findings, NAS concluded, based on multiple studies, that there is sufficient evidence of an association between deployment to the Gulf War and chronic multisymptom illness. NAS analyzed two follow-up studies that surveyed veterans who served in the Gulf War in 1991 to determine whether the increased prevalence of chronic multisymptom illness persisted several years after such service. One study involved detailed examinations and medical histories of veterans deployed to the Gulf War and non-deployed veterans of the same era. The study found that, 10 years after the 1991 Gulf War, chronic multisymptom illness was nearly twice as prevalent in veterans deployed to the Gulf War than in the non-deployed veterans (28.9 percent compared to 15.8 percent). The study found that the prevalence of chronic multisymptom illness decreased gradually over time, but remained significantly elevated 10 years after service. The other follow-up study involved a 2005 survey of veterans deployed to the 1991 Gulf War and their non-deployed counterparts of that era. That study found that 36.5 percent of the deployed veterans reported experiencing symptoms of chronic multisymptom illness in 2005, compared to 11.7 percent of the non-deployed veterans. While this report is based on self-reports, the results are statistically significant and are consistent with the other follow-up report.

The scientific and medical literature surveyed by NAS in 2010 thus suggested that, while the prevalence of chronic multisymptom illness may decrease over time following deployment to the Gulf War, the prevalence remained significantly elevated among deployed veterans more than a decade after deployment. As military operations in the Southwest Asia theater of operations had not ended and scientific and medical evidence failed to identify the manifestation period for associated illnesses, VA again published a rule amending 38 CFR 3.317(b) to extend the presumptive period from December 31, 2011, to December 31, 2016. See 76 FR 81834, Dec. 29, 2011.