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Is family a Gulf War casualty? - Ruling lets ill widower propel lawsuit

The Detroit News
By: Paul Egan

SWARTZ CREEK -- Nobody can say U.S. Army veteran Arvid Brown's Gulf War illness is all in his head. Brown's late wife, Janyce, caught leishmaniasis -- a sometimes deadly parasitic disease borne by sand flies that can attack the body's cells and internal organs -- a malady he brought home from Operation Desert Storm. So did the Swartz Creek couple's two young children.


Now, the U.S. Court of Appeals has ruled the federal government and the Department of Veterans Affairs can be sued for alleged failure to diagnose Brown's illness and for any injuries he and his family suffered.

Veterans' groups are hailing the decision as a victory for families of tens of thousands of veterans of not only the first Gulf War, in which Brown served, but subsequent Mideast conflicts.

"This is a huge case," said Joyce Riley, spokeswoman for the American Gulf War Veterans Association in Versailles, Mo. "This gives a lot of veterans a lot of hope."
When Brown, now 48, returned from the Gulf War in 1991, he couldn't understand why his once-vigorous health was deteriorating. His head, muscles and bones ached, his strength was sapped; he was constantly exhausted but could not sleep.

Doctors with the U.S. Department of Veterans Affairs could not pinpoint an ailment. They denied him disability benefits in 1995, and Brown said they prescribed painkillers and mood-altering drugs that made things worse.

It was Brown's wife, Janyce, who had the research skills and persistence eventually to find a doctor who in 1998 diagnosed Brown with leishmaniasis.

By then, Janyce, too, had contracted the disease and both the couple's children had been born with it and other ailments, according to medical reports filed in the case from Dr. Gregory Forstall, then-director of infectious diseases at McLaren Regional Medical Center in Flint, now in private practice.

The government has not disputed the medical reports.

Janyce Brown developed a series of ailments and last year died at age 43 of a rare and inoperable form of liver cancer. Though no definite link was established between her leishmaniasis and other diseases, Arvid Brown said his wife was healthy before they met.

Janyce Brown in 2004 brought a $125 million lawsuit against the government, but a federal judge in Detroit ruled the family couldn't sue for injuries a soldier suffered while on active duty.

U.S. District Judge John Corbett O'Meara's decision was based on the Feres doctrine, after the soldier involved in a precedent-setting 1950 U.S. Supreme Court decision. Army Lt. Rudolph J. Feres died in a 1947 fire caused by a defective heater in a military barracks at Pine Camp, N.Y. The court ruled his widow could not sue because Feres was on active duty.

Late last month, the U.S. 6th Circuit Court of Appeals in Cincinnati partially overturned O'Meara's decision, saying the government is not liable for injuries suffered while Brown was on active duty but it can be sued for what happened once he returned to Michigan. The government may appeal, officials said.

"They should not be allowed to just use us up and throw us away," said Brown, now alone and raising two disabled children, ages 9 and 10, on his disability income. "Somebody has got to be accountable."

Many look toward lawsuit

Mark Zeller, 42, a Gulf War veteran in Dahlonega, Ga., said he is about to bring a lawsuit against the government and believes the decision in Brown's case will strengthen his legal position.

"I can't do anything and I have to sleep all the time," said Zeller, who has been diagnosed by Veterans Affairs doctors with chronic fatigue syndrome but says his wife and five children also constantly suffer from flulike symptoms.

The Feres doctrine "safeguards the government, but what safeguard do we have?" asked Zeller.

Leishmaniasis is little-known in North America but common in southwest Asia and many other parts of the world. According to the U.S. Centers for Disease Control and Prevention, about 12 million people in the tropics and subtropics have the disease. One form produces skin lesions. The more severe and deadly form, which Brown has, attacks blood cells and the body's internal organs. Like malaria, it is a chronic disease that can be controlled but not cured.

Dr. Katherine Murray Leisure is a former Department of Veterans Affairs doctor now in private practice in Lebanon, Pa., specializing in infectious diseases. She said leishmaniasis if often difficult to diagnose and could be an underlying factor in half or more of the thousands of cases of veterans commonly referred to as suffering from "Gulf War syndrome."

Bedouins and others who live in the desert clothe their entire bodies for good reasons, Murray Leisure said. But, when U.S. forces go to the desert to fight, "we try to pretend we're at the Jersey shore."

Situation likened to Titanic

Terry Jemison, a spokesman for the U.S. Department of Veterans Affairs, said he could not comment on the Brown case because of the ongoing court case. But he said the department is aggressively researching the ailments of Gulf War veterans and plans to spend $15 million a year on research for the next five years.

No reliable numbers are available on how many family members believe they have been infected. But Riley, a registered nurse and former U.S. Air Force captain, said she believes tens of thousands of veterans' relatives have suffered.

"I think this is the Titanic," said Robert P. Walsh, Brown's Battle Creek attorney. "All these guys saw was the tip of the iceberg."

Arvid Brown, who grew up in southwest Detroit, spent about six months overseas during Desert Storm, helping to build, maintain and operate a prisoner of war camp near Hafr Al-Batin in northeastern Saudi Arabia, about 25 miles from the Iraqi border.

Brown remembers the sand flies, the camel spiders and the bug repellent. He remembers meeting soldiers in the desert who wore dogs' flea collars around their necks, wrists and ankles and thinking how unhealthy that seemed.

The muscle aches, bone pains, headaches and rashes began while he was in Saudi Arabia, but "it was easy to attribute it to heat and everything I was doing," Brown recalled.

Long-delayed diagnosis

Solving the mystery would take seven years as Brown's condition worsened through periods of disorientation, blackouts, extreme light sensitivity and almost unbearable pain. By 1998, when he was finally diagnosed, Brown had lost his job, been forced to give up driving and said he awoke early most mornings from a fitful sleep, vomiting blood.

Veterans Affairs doctors, who according to court records examined Brown on Sept. 13, 1994, but did not detect the disease, said he was suffering anxiety attacks and prescribed pills, Brown said. The department did not grant him benefits until 1998 and only this year recognized his diagnosis of leishmaniasis.

Jemison, the VA spokesman, said the department "remains committed to ensuring all veterans receive high-quality care."

In its answer to the lawsuit, the VA denied failing to diagnose Brown and denied committing malpractice in the medical care it gave Brown.

Somehow, amid the pain and fatigue, Brown, who was divorced from his first wife soon after returning from the Gulf, was able to meet and marry the woman he credits with saving his life.

Brown wed Janyce Surface in September 1994 as his health continued to spiral downward. He lost his job and they struggled to pay bills. Children arrived: Asa, now 10, in 1995, and his sister, Helen, now 9, in 1997. Both were born with severe handicaps and later tested positive for leishmaniasis. Helen is still unable to speak.

It was Janyce Brown who got her husband an appointment with Forstall, who diagnosed Arvid Brown with leishmaniasis in October 1998. Chemotherapy put the disease into remission, though Brown continues to struggle with his health today.

By 2000, Janyce Brown and both children had also tested positive for leishmaniasis. As Janyce struggled to care for her husband and look after two young children with cerebral palsy, her own health rapidly deteriorated. She died at home of cancer.
"She was an extremely intelligent individual, someone with the will and the nerves of steel and the tenaciousness of the meanest bulldog you had ever come across," Brown said.

"She was fighting for her husband, the man she loved … and her children … She will always be my biggest hero."

You can reach Paul Egan at (313) 222-2069 or pegan@detnews.com.

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