E. EXPOSURES AND VA MEDICAL PROTOCOLS FOR GULF VETERANS

In view of DOD's admission on June 21, 1996, after 5 years of denial, that Gulf War troops were presumed exposed to chemical warfare agents at the Khamisiyah bunker detonations, and in view of the missing or inadequate medical records of veterans and chemical detection logs, Human Resources Subcommittee Chairman Shays wrote to then VA Secretary Jesse Brown calling for an immediate re-evaluation of the diagnostic and treatment protocols, and compensation practices, for Gulf War veterans.

[The chairman's letter follows, pages 43-56]

If the VA claims it has "always accepted the possibility of exposures," it should be noted that: 1) the VA did not add specific questions on chemical warfare exposures to its VA Gulf Health Registry until late 1995, 4 years after veterans began reporting illnesses; and 2) there is no VA or DOD research on the health effects of low level exposure to neurotoxic agents yet available.
In a subcommittee hearing on December 11, 1996, Chairman Christopher Shays questioned Dr. Susan Mather, VA's Chief Public Health and Environmental Hazards Officer, and Dr. Frances Murphy, VA's Director of Environmental Agents Service, about when the VA first "accepted the possibility of chemical exposures." Their testimony follows:

Mr. Shays. Do they [VA doctors] listen to that [sick] veteran or do they listen to DOD who says we have had no credible verification of chemicals being used? Who do they listen to?
Dr. Mather. The veterans.
Mr. Shays. If you were listening to veterans, why are we still now only beginning to think that maybe exposure to chemicals might in fact be credible?
Dr. Mather. Our perspective and our emphasis has been on the illness that the veterans had, and we were looking at the illnesses that the veterans had and working back from that.
Mr. Shays. To help you in this analysis ... to truly understand the illnesses that are affecting your patients, you would want to know what kind of an environment they were in and what physical confrontation they had with that environment.
Dr. Mather. Exactly. That's the reason we revised the questions we asked the veteran.
Mr. Shays. When did you make that revision?
Dr. Mather. Unfortunately, the revision did not get finished until this past year. It took a long time to get it approved and I apologize for that.
Dr. Murphy. We began educating our physicians early on about all the exposures that were known. We addressed the whole range of exposures and asked them to question veterans about those exposures.
Mr. Shays. But the fact is, we have under oath documentation that soldiers weren't asked vital questions dealing with chemical exposures until after Khamisiyah [events were announced]. When did you really start to change your approach? When, if fact, did the form get changed?
Dr. Murphy. The form was published in September 1995. ⁽¹⁷⁴⁾

In the following Gulf War hearing on January 21, 1997, the same subject was raised again by Chairman Shays with the witness Dr. Kenneth Kizer, VA's Under Secretary for Health:

Mr. Shays. Dr. Kizer, what mistakes has the VA made in the last 6 years with regard to the Gulf War issue?
Dr. Kizer. I don't know I would characterize them as mistakes ... the research agenda ... was delayed because of information that was provided.
Mr. Shays. Provided where?
Dr. Kizer. By the Department of Defense.
Mr. Shays. So in essence, the only thing you would describe as a mistake, and you wouldn't even describe it as a mistake, is that you relied on information from the DOD that our troops weren't exposed to chemicals ... ?
Dr. Kizer. The issue of chemical warfare agents ... and the investigation into that arena, was delayed, and that investigative focus was given a lower priority because of the information that had been provided by DOD.
Mr. Shays. So the bottom line is, because the DOD denied ... any exposure ... VA made a determination that therefore our troops were not exposed to ... chemicals?
Dr. Kizer. No, I don't think that characterizes what I said, Mr. Chairman.
Mr. Shays. OK. Say it over again in a different way.
Dr. Kizer. The VA has been consistently ... open to and have been concerned about the exposure of troops to chemical warfare agents. As far as specific research protocols that were funded, the potential exposure was given lower priority than others.
Mr. Shays. Because?
Dr. Kizer. Because of the information that was provided by DOD ...
Mr. Shays. So you didn't ever begin to ask our troops until 1995 if they felt they were exposed to chemicals?
Dr. Kizer. I don't believe that is correct, sir, because our physicians were asking the question before that.
Mr. Shays. So I will ask the question again. Is it a fact that the Registry did not require these questions [to be asked by VA physicians] until 1995?
Dr. Kizer. Again, physicians performing the Registry examinations before that time [1995] asked those questions. Did everybody ask it? I can't say they did, no ...⁽¹⁷⁵⁾

In the December 11, 1997 hearing, Chairman Shays questioned VA's Dr. Mather and Dr. Murphy about research on low level chemical exposures. Their testimony follows:

Mr. Shays. The VA has expressed to us that there has not been a focus on low level exposure because the DOD, whose information you rely on, has said there has been no use of chemicals in the Gulf and no exposure.
Dr. Mather. That is very true in the research arena. I think research into low level exposure has a low priority.
Dr. Murphy. It was not viewed as high priority to take asymptomatic exposures to chemical warfare nerve agents and look for health effects, because there was no evidence either from what we were being told from DOD ... [or] that [exposure] was a likely possibility. What we did not address was low level exposures and the potential long-term health effects. Current body of research proves that low level exposures cannot cause health effects [emphasis added].⁽¹⁷⁶⁾

Veterans and medical witnesses at Human Resources Subcommittee hearings maintain that the VA medical protocol does not sufficiently address exposure history. In fact, the VA Health Registry questionnaire relies on the ability of the veteran to recognize toxic exposures by asking such questions as: "Did you witness Chemical Alarms?"⁽¹⁷⁷⁾
In addition, VA physicians who examine Gulf veterans for the first time are not trained to take toxic exposure histories.⁽¹⁷⁸⁾ This is critical in that many veterans may have been exposed in theater but would not have realized it. VA physicians trained to ask the right questions can identify potential exposures of which the veteran may not have been aware.
The issue of trained VA physicians to detect the health effects of chemical exposures was also raised in Human Resources Subcommittee hearings:

Mr. Shays. I get the sense that you don't really have the background in chemical exposures. Is that correct?
Dr. Mather. I'm not a toxicologist. I'm a chest physician.
Dr. Murphy. I'm a neurologist, sir.
Mr. Shays. How many doctors work for the VA?
Dr. Murphy. Over 1,800.
Mr. Shays. How many toxicologists?
Dr. Mather. I don't know.
Dr. Murphy. Physicians are rarely toxicologists. That's a Ph.D. level kind of specialty. Dr. Kizer, for instance, is a medical toxicologist physician. I would have to go back and look specifically.
Mr. Shays. It would be an estimate. One percent? Ten percent? A half percent?
Dr. Murphy. I cannot estimate.
Dr. Mather. I honestly don't know.
Mr. Shays. Can you name me 10 toxicologists that you know are working for the VA?
Dr. Mather. No.
Dr. Murphy. I can't come up with 10 off the top of my head.
Mr. Shays. Can you name me five?
Dr. Murphy. Dr. Peter Spencer is a neurotoxicoligist.
Mr. Shays. That's one. Can you name another?
Dr. Murphy. No, sir.
Mr. Shays. You can only name one expert in a field that deals with chemical exposure? What other specialities would there be besides the toxicologists?
Dr. Murphy. Most of the subspecialities we have in investigating toxic exposures, include neurologists, pulmon-ologists, and occupational health physicians.
Mr. Shays. So it might not be their primary focus, but they might have some knowledge of chemical exposure and its effect?
Dr. Murphy. Yes.
Mr. Shays. It is telling though that you cannot name more than one person in the entire [VA] department [who is a toxicologist.].
Dr. Murphy. We can provide that for the record.
Mr. Shays. I would definitely like it for the record. ⁽¹⁷⁹⁾

On February 11, 1997, the VA provided the following information:

DEPARTMENT OF VETERANS AFFAIRS (VA)

F. IMPACT ON VETERANS OF MISSING RECORDS

Personal medical records of veterans, including sick call records, are inadequate or missing. Documents which could help verify possible exposures and military unit locations remain in DOD files.⁽¹⁸¹⁾ Most of the military nuclear-biological-chemical [NBC] logs, which are records of toxic warfare agent detections, are missing or destroyed. Readouts from chemical detection equipment have vanished. Many CIA intelligence logs concerning Iraqi chemical/biological weapons [CBW] storage depots and manufacturing facilities, and documents concerning enemy capabilities and intentions to use CBW against U.S. troops, have remained unreleased since the war.
All this critical information comprises the complete medical history of each Gulf War veteran. In the absence of full documentation needed to prove a service-connection, sick veterans have a difficult - if not impossible - task of receiving proper medical treatment and fair compensation.
Since no Government low level exposure research is available, proof of toxic exposure as a cause of medical disability is nearly impossible to obtain. Furthermore, the burden of proof that the disability or illness is service-connected falls on the veteran exclusively under current VA regulations. Since the scientific research on the medical effects of exposure to low level chemical and biological has not been conducted, a veteran cannot prove a service-connected disability related to chemical or biological toxic exposure.
"Current VBA policies allow compensation for conditions which began during or were exacerbated by military service, including exposure to chemical warfare agents resulting in medically recognized sequelae."⁽¹⁸²⁾
If basic scientific research has not been conducted to identify medically recognized sequelae produced by toxic exposures, compensation for service connected disability cannot be proven by the veteran and the VA will not compensate the veteran without this proof.
Congress enacted legislation in 1994 allowing the VA to pay compensation benefits to veterans for disabilities related to the Gulf War caused by "undiagnosed" illnesses.⁽¹⁸³⁾ In the past, the VA had always required that compensation be based on clearly diagnosed diseases.
According to Congressional Research Service [CRS], "Under regulations issued in February 1995 (38 CFR 3.317), a veteran can be compensated only for undiagnosed illnesses that manifest themselves during Gulf War service or arise within 2 years of departing from the Gulf. Veterans must provide objective evidence of chronic illness and be at least 10 percent disabled. However, as of January 1997, the VA had denied 9,688 (93.5 percent) of the 10,357 undiagnosed illness claims that had been reviewed. Approximately 55 percent of the denied claims were rejected because the illness did not manifest itself until after the 2-year presumptive period. President Clinton [last March] extended the presumptive period by 8 years, until December 31, 2001. The VA plans to re-evaluate the claims that were denied on the basis of a 2-year presumptive period to determine if they now qualify for compensation under the extended period."⁽¹⁸⁴⁾

G. STRESS-RELATED DIAGNOSES OF VETERANS' ILLNESSES

VA has consistently diagnosed veterans presenting these symptoms as stress-related, or PTSD, or other psychological conditions, as opposed to conducting the appropriate epidemiological investigations to differentiate psychological conditions from psycho-neuro-immunological conditions such as fibromyalgia, chronic fatigue syndrome and central nervous system disorders which may have resulted from toxic exposures.
Of the 21 sick Gulf veterans - all with symptoms of undiagnosed origin - who appeared before the Human Resources Subcommittee as witnesses, 13 were diagnosed by VA and/or DOD doctors as "Stress" or "PTSD," 3 cases as "Nothing wrong; all in the head," 3 cases as "Undiagnosed," and only 2 cases of "Chemical exposure."
One sick veteran who testified, Air Policeman James Green of the Air Force, with orders to ship out to the Gulf War from Germany, had taken the vaccines and PB tabs and become sick. His orders were canceled at the last moment. "I signed up for the VA Health Registry in 1994. They sent me to the VA hospital for an exam. The [VA] doctor asked me what was wrong and to describe the symptoms. I was ... referred to the mental health clinic for stress-related problems. Seems awful funny to me that my illness is stress and I was not even in the theater."⁽¹⁸⁵⁾
Dr. Matthew Friedman, a professor of psychiatry at Dartmouth Medical School and executive director of the National Center of Post Traumatic Stress Disorder, disputes emphasis on stress as the principal cause of the illnesses. The NY Times quoted Dr. Friedman: "They [the PAC, DOD and VA] have very nicely laid out why this is such an attractive hypothesis [stress], but the data are not there to support it." The Times article stated that Dr. Friedman's research on sick Gulf veterans "showed that only about 10 percent ... were suffering from PTSD ... an extreme form of stress caused by exposure to battle or other forms of trauma."⁽¹⁸⁶⁾
Dr. Katherine Murray Leisure, an infectious disease specialist formerly at the VA Medical Center in Lebanon, PA, who treated more than 700 sick Gulf veterans, said in the same Times article it was clear to her that battlefield stress had little to do with the veterans' ailments. She said, "Out of the hundreds of people I've seen, there's been fewer than a half dozen who had PTSD. It's negligible."⁽¹⁸⁷⁾
Neurologist and psychiatrist Dr. William Baumzweiger, a former fellow at the VA Outpatient Clinic in Los Angeles who has examined more than 100 sick Gulf veterans, stated in prepared testimony before the subcommittee, "I do not believe that the majority of symptomatic Gulf War participants experienced any stress which would be sufficient to precipitate PTSD. I concluded they had suffered from environmental intoxication ... and that the disorders are neurological illnesses that involve the central nervous system and the immune system."⁽¹⁸⁸⁾
According to Dr. Leisure and Dr. Baumzweiger, both doctors were recently released by the VA, allegedly for their outspoken views on the cause and treatment of Gulf veterans' illnesses.⁽¹⁸⁹⁾
Dr. Eula Bingham, a toxicologist and environmental health professor who is chairman of the VA's Gulf War Expert Scientific Committee, in an earlier interview with the New York Times said, "It's pretty clear that the veterans who were in the gulf have a whole series of symptoms that other veterans don't." She added, "Certainly we know that there was widespread exposure to chemicals during the war. We really don't have good data on what health effects are caused by long-term, low-level exposure to those agents." Dr. Bingham was further quoted saying, "I'm very troubled when any committee says, `Well, it's stress.' Have they analyzed it? Why are they saying it? I think it's a very poor word to use at this time."<sup>(190)</sup> Dr. Bingham is also the former Administrator of OSHA.
In the same Times article, Dr. Claudia Miller, a physician and environmental research professor who is also a member of the VA's Gulf War Expert Scientific Committee, said that "stress may be a contributor to these health problems but we should be looking at potential chemical causes, particularly given the kind of chemical environment that our soldiers faced in the Gulf."<sup>(191)</sup>
A 1993-1994 study of veterans from Pennsylvania and Hawaii, sponsored by the Walter Reed Army Institute of Research, stated: "The major conclusion concerning physical health of these veterans is that for those who deployed to the Gulf War and recently reported physical symptoms, neither stress nor exposure to combat or its aftermath bear much relationship to their distress; only the fact of deployment differentiates them from their less-burdensome counterparts."<sup>(192)</sup>
Dr. Daniel Clauw, Assistant Professor of Medicine at Georgetown University Medical Center, in testimony before the Human Resources Subcommittee, stated: "The problem with considering these [Gulf War] illnesses as psychiatric conditions: In clinical practice, telling an individual with this type of illness that it is `all in their head,' or that there is no `organic' basis for their symptoms, will always lead to frustration and a sense of abandonment by the individual. It is not difficult to see why many of the veterans with these illnesses, as well as their families and advocates, have become so frustrated with this vicious cycle of no diagnoses, no effective treatment, and psychiatric attribution of symptoms."⁽¹⁹³⁾
"Take these veterans seriously. The physical and emotional toll of this type of illness is great, and these individuals developed these problems while serving our country. View with skepticism anyone who might assert that because there are no abnormalities on these individuals' blood tests, x rays, or other diagnostic studies, that there is nothing wrong, or that the individual is suffering from a psychiatric condition. It is arrogant of us as scientists to feel that because we cannot precisely define a problem, it doesn't exist."⁽¹⁹⁴⁾

H. TREATMENT AND RESEARCH

[NOTES]

174. Testimony of Susan Mather and Frances Murphy, Human Resources and Intergovernmental Relations Subcommittee hearings, Nos. 5-6, p. 247.
175. Testimony of Kenneth Kizer, Human Resources Subcommittee hearing, No. 1, pp. 50-60.
176. See supra note 174, p. 52 (Mather testimony), pp. 80, 99, 109 (Murphy testimony).
177. U.S. Department of Veterans Affairs, Persian Gulf Registry Questionnaire (in subcommittee files).
178. Human Resources and Intergovernmental Relations Subcommittee staff conference call with Claudia Miller, September 20, 1996.
179. See supra note 174, pp. 259-260. See also infra text to accompany note 391.
180. Statement of William Reeves to the PAC, January and September 1996, slides 31-36 (in subcommittee files).
181. PAC Report, p. 52. See also, supra note 125 [IOM Report], pp. 6, 7, 10.
182. See supra, entire text of Secretary Brown's letter in text section entitled, "Exposures and VA Medical Protocols for Gulf Veterans," (original in subcommittee files).
183. Public Law 103-446.
184. See supra note 4, p. 6.
185. Testimony of James Green, Human Resources Subcommittee hearing, No. 1, p. 220.
186. Shenon, Philip, "Studies Seem to Back Veterans Who Trace Illnesses to Gulf War," New York Times, November 26, 1996, p. 1.
187. Ibid.
188. Statement of William Baumzweiger, Human Resources Subcommittee hearings, Nos. 1-4, p. 500.
189. Correspondence from William Baumzweiger and Katherine Murray Leisure (in subcommittee files). See also, Shenon, Philip, "VA Punishes Doctors for Speaking Out on Gulf Illnesses" New York Times, December 12, 1996, p. A12.
190. Shenon, Philip, "Panel Disputes Studies on Gulf War Illness," New York Times, November 21, 1996, p. B11.
191. Ibid.
192. Streich, et al., "Symptomatology of Gulf War Era Service," Military Medicine, Walter Reed Army Institute of Research, Bethesda, MD, March 1995.
193. Statement of Daniel Clauw, Human Resources and Intergovernmental Relations Subcommittee hearings, Nos. 1-4, p. 186.
194. Ibid., p. 189.