The Court of Appeals for Veterans Claims denies veterans who served in Afghanistan the VA compensation benefits available to those who served in Iraq.
In Cox v. McDonald (decided November 7, 2016), the Court affirmed that veterans who served in Afghanistan do not automatically get the same VA compensation benefits for Gulf War Syndrome that Iraq veterans receive.
These benefits allow veterans who served in the Southwest Asia theater of operations presumptive status for undiagnosed illnesses and medically unexplained chronic multisymptom illnesses. Examples include chronic fatigue syndrome, fibromyalgia and irritable bowel syndrome. Afghanistan is not currently included in VA’s definition of the Southwest Asia theater of operations.
What this means for veterans who served in Afghanistan is that even though they served in a country that has been recognized by VA as similar in its environment to Iraq and suffer from irritable bowel syndrome, they must prove it is related to their military service. Veterans who served in Iraq are not required to provide this evidence. It is automatic or presumed to beservice-connected.
In an attempt to make up for this inconsistent application of the law, the VA amended its guidelines in 2010 to include nine rare infectious diseases that are also presumptive for veterans who served in Afghanistan. However, the VA still refused to include Afghanistan in the definition of the Southwest Asia theater of operations, calling it “outside of the scope” of the rulemaking at that time.
Nobody quite knows why Congress and the VA have excluded Afghanistan from Gulf War Syndrome illnesses. The Court indicated that if Congress wanted to, it could have added Afghanistan to its 2001 amendment, but it did not.
One explanation for Congress’ inaction in this area is that under 38 U.S.C. § 1117(d), Congress gave the VA authority to determine which “geographical area or areas of military service” should be included. Therefore, one could argue that Congress does not have a dog in this fight.
Either way, if one of the purposes for enacting the Gulf War Syndrome laws and regulations was to compensate Persian Gulf War veterans who suffer from disabilities resulting from illnesses that cannot be diagnosed (or for which causes cannot be identified), it defies logic to exclude in any way veterans who bravely fought and were injured or became ill as a result of their service in Afghanistan.
If you or a loved one is suffering from Gulf War syndrome, please call the Berry Law Firm at 888.883.2483 or contact us online. Our team of veterans’ law attorneys is ready to help you receive the benefits you’ve earned.
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