[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
                    LEGISLATIVE HEARING ON H.R. 952,
                   THE ``COMPENSATION OWED FOR MENTAL
                 HEALTH BASED ON ACTIVITIES IN THEATER
                  POST-TRAUMATIC STRESS DISORDER ACT''

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON DISABILITY ASSISTANCE
                          AND MEMORIAL AFFAIRS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 23, 2009

                               __________

                           Serial No. 111-13

                               __________

       Printed for the use of the Committee on Veterans' Affairs

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                     COMMITTEE ON VETERANS' AFFAIRS

                    BOB FILNER, California, Chairman

CORRINE BROWN, Florida               STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas                 CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine            JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South     HENRY E. BROWN, Jr., South 
Dakota                               Carolina
HARRY E. MITCHELL, Arizona           JEFF MILLER, Florida
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
DEBORAH L. HALVORSON, Illinois       BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia      DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico             GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas             VERN BUCHANAN, Florida
JOE DONNELLY, Indiana                DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia

                   Malcom A. Shorter, Staff Director

                                 ______

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                    JOHN J. HALL, New York, Chairman

DEBORAH L. HALVORSON, Illinois       DOUG LAMBORN, Colorado, Ranking
JOE DONNELLY, Indiana                JEFF MILLER, Florida
CIRO D. RODRIGUEZ, Texas             BRIAN P. BILBRAY, California
ANN KIRKPATRICK, Arizona

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.


                            C O N T E N T S

                               __________

                             April 23, 2009

                                                                   Page
Legislative Hearing on H.R. 952, the ``Compensation Owed for 
  Mental Health Based on Activities in Theater Post-Traumatic 
  Stress Disorder Act''..........................................     1

                           OPENING STATEMENTS

Chairman John J. Hall............................................     1
    Prepared statement of Chairman Hall..........................    35
Hon. Doug Lamborn, Ranking Republican Member.....................     3
    Prepared statement of Congressman Lamborn....................    36
Hon. Deborah L. Halvorson........................................    13
Hon. Ciro D. Rodriguez...........................................    18
    Prepared statement of Congressman Rodriguez..................    36

                               WITNESSES

U.S. Department of Veterans Affairs, Bradley G. Mayes, Director, 
  Compensation and Pension Service, Veterans Benefits 
  Administration.................................................    24
    Prepared statement of Mr. Mayes..............................    46

                                 ______

American Ex-Prisoners of War, Norman Bussel, National Service 
  Officer........................................................     9
    Prepared statement of Mr. Bussel.............................    41
Disabled American Veterans, John Wilson, Associate National 
  Legislative Director...........................................     5
    Prepared statement of Mr. Wilson.............................    37
National Organization of Veterans' Advocates, Inc., Richard Paul 
  Cohen, 
  Executive Director.............................................    11
    Prepared statement of Mr. Cohen..............................    42
National Veterans Legal Services Program, Barton F. Stichman, 
  Joint Executive Director.......................................     7
    Prepared statement of Mr. Stichman...........................    39

                       SUBMISSIONS FOR THE RECORD

Kavana, Robert, Croton-on-Hudson, NY, statement..................    47
Nava, Rebecca I., Kileen, TX, statement..........................    49
United Spinal Association, Jackson Heights, NY, Paul J. Tobin, 
  President and Chief Executive Officer, letter..................    51

                   MATERIAL SUBMITTED FOR THE RECORD

Background Material:

    Public Law 77-361, Approved December 20, 1941, An Act to 
      facilitate standardization and uniformity of procedure 
      relating to determination of service connection of injuries 
      or diseases alleged to have been incurred in or aggravated 
      by active service in a war, campaign, or expedition; House 
      Report No. 1157, 77th Congress, 1st Session, to accompany 
      H.R. 4905, reported from the Committee on World War 
      Veterans' Legislation, on August 12, 1941; and Senate 
      Report No. 902, 77th Congress, 1st Session, to accompany 
      H.R. 4905, reported from the Committee on Finance on 
      December 21, 1941..........................................    53
    Letters of Support addressed to Hon. John J. Hall, Chairman, 
      Subcommittee on Disability Assistance and Memorial Affairs, 
      Committee on Veterans' Affairs: Steve Robertson, National 
      Legislative Commission, The American Legion, letter dated 
      February 4, 2009; Kerry L. Baker, Assistant National 
      Legislative Director, Disabled American Veterans, letter 
      dated February 10, 2009; Joseph L. Barnes, National 
      Executive Director, Fleet Reserve Association, letter dated 
      March 16, 2009; Paul Rieckhoff, Executive Director, Iraq 
      and Afghanistan Veterans of America, letter dated February 
      20, 2009; Barton F. Stichman and Ronald B. Abrams, Joint 
      Executive Directors, National Veterans Legal Services 
      Program, letter dated February 6, 2009; Thomas Bandzul, 
      Associate Counsel, Veterans for Common Sense, letter dated 
      February 10, 2009; and Robert E. Wallace, Executive 
      Director, Veterans of Foreign Wars of the United States, 
      letter dated February 11, 2009.............................    57

Post-Hearing Questions and Responses for the Record:

    Hon. John J. Hall, Chairman, Subcommittee on Disability 
      Assistance and Memorial Affairs, Committee on Veterans' 
      Affairs, to Bradley Mayes, Director, Compensation and 
      Pension Service, Veterans Benefits Administration, U.S. 
      Department of Veterans Affairs, letter dated May 7, 2009, 
      and VA responses...........................................    62


  LEGISLATIVE HEARING ON H.R. 952, THE ``COMPENSATION OWED FOR MENTAL
      HEALTH BASED ON ACTIVITIES IN THEATER POST-TRAUMATIC STRESS
                             DISORDER ACT''

                              ----------                              


                        THURSDAY, APRIL 23, 2009

             U.S. House of Representatives,
Subcommittee on Disability Assistance and Memorial 
                                           Affairs,
                            Committee on Veterans' Affairs,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:06 a.m., in 
Room 334, Cannon House Office Building, Hon. John Hall 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Hall, Halvorson, Donnelly, 
Rodriguez, Kirkpatrick, Lamborn, and Bilbray.

               OPENING STATEMENT OF CHAIRMAN HALL

    Mr. Hall. Good morning, ladies and gentlemen. Would you 
please join me in the Pledge of Allegiance.
    [Pledge of Allegiance.]
    Mr. Hall. It is especially poignant to say the Pledge for 
me having just come back from Afghanistan and Iraq.
    I will have you know that the latest report from the front 
when asked in Kandahar what their greatest needs were--I had 
lunch with members of our Armed Forces from New York and I 
wanted to know what their top priorities were so I could come 
back here and represent them. They said bandwidth so that web 
sites and e-mail would download faster. I said, okay, I got 
that. And showers so the water stays hot longer and the 
pressure is stronger. So, I am back here with a mission.
    But, at any rate, today we are here to consider 
legislation, ``The Compensation Owed for Mental Health Based on 
Activities in Theater Post-Traumatic Stress Disorder Act'' or 
the acronym, ``The COMBAT PTSD Act,'' H.R. 952.
    During the 110th Congress and most recently during an 
oversight hearing held on March 24th, 2009, the Subcommittee on 
Disability Assistance and Memorial Affairs revisited Congress' 
intent in establishing presumptive provisions to provide 
compensation to combat veterans under section 1154(b) of title 
38.
    We have heard testimony on how Congress in 1941, when it 
adopted the original provisions under section 1154 seemed to 
explicitly express its desire to overcome the adverse effects 
of not having an official record.
    Moreover, they wanted it to be liberal, and by that, I mean 
more inclusive, in its service pension law by extending full 
cooperation to the veteran when it enacted this position.
    I ask permission to insert the following reports and public 
law of Congress from 1941 into the record. Without objection, 
so ordered.
    [The public law and reports appear on p. 53.]
    Mr. Hall. Based on this Subcommittee's review, however, it 
seems that the U.S. Department of Veterans Affairs (VA) has 
acted to thwart the Congressional intent of section 1154(b) 
with its internal procedures for adjudication, primarily those 
contained in its M21-1s and General Counsel opinions.
    This results in VA being more restrictive in its 
application of section 1154(b) by placing an unnecessary burden 
on veterans diagnosed with post-traumatic stress disorder, 
PTSD, and other conditions to prove their combat stressors.
    Instead of helping these veterans reach an optimal point of 
social and emotional homeostasis as described in the RAND 
Report, ``Invisible Wounds of War,'' VA's procedures are an 
obstacle to this end, inflicting upon the most noble of our 
citizens a process that feels accusatory and doubtful of their 
service.
    We also know from the RAND Report that one out of every 
five servicemembers who served in Operation Enduring Freedom 
(OEF) or Operation Iraqi Freedom (OIF) suffers from symptoms of 
PTSD. A large portion of these claims unnecessarily comprise 
VA's claims backlog as VBA personnel labor to corroborate the 
stressors of our Nation's combat veterans.
    As the Institute of Medicine stated in 2007 in its seminal 
report on PTSD, the process to adjudicate disability claims is 
complex, legalistic, and protracted, and particularly difficult 
for veterans because of the stresses and uncertainties involved 
while facing skeptical and cynical attitudes of the VA staff.
    As I think most will agree, this statement goes double for 
veterans filing PTSD claims, which require additional evidence 
of exposure to a stressful event while serving in combat.
    Given these facts, the other well-known challenges facing 
its current system and the seriousness of the rising level of 
suicide among our servicemembers and veterans, I think it is 
disingenuous and short-sighted for VA to refer in its testimony 
that H.R. 952 would detract from the overall efficiency and 
integrity of the claims adjudication process.
    Nonetheless, I am glad that VA is being responsive to this 
bill and now seems aware of the need to examine its own 
processes in this area to the benefit of veterans.
    I look forward to hearing more about its regulatory 
amendment that would relax the requirement for corroborating 
evidence in some situations that a claimed in-service stressor 
occurred, particularly about the ``some situations'' portion.
    I also want to hear more from the Department's witness on 
how the provisions of H.R. 952 could be better tailored to meet 
its evidentiary needs to properly adjudicate claims while 
alleviating the often overwhelming evidence burdens that stymie 
so many of our combat veterans through no fault of their own.
    I reintroduced my bill, ``The COMBAT PTSD Act,'' H.R. 952, 
to try to rectify this injustice that has gone on six decades 
too long.
    We have had case work in our office in New York's 19th, for 
instance, a World War II veteran who was misdiagnosed and 60 
years later, fortunately, was still alive to see his claim 
granted.
    So this is not just about OIF/OEF. It is a problem that has 
persisted through many conflicts and the aftermaths thereof.
    This bill would clarify and expand the definition of 
``combat with the enemy'' found in section 1154(b) of title 38, 
United States Code, to include a theater of combat operations 
during a period of war or in combat against a hostile force 
during a period of hostilities.
    This language is consistent with other provisions of title 
38 and with those contained within the ``National Defense 
Authorization Act.''
    I also firmly believe that this bill is consistent with the 
original intent of Congress in 1941 and should not be viewed as 
adding a new entitlement.
    I am grateful to my 42 colleagues who are already 
cosponsors of H.R. 952 and to the numerous groups who have 
endorsed it.
    I ask unanimous consent to enter the letters of support 
into the record from Iraq and Afghanistan Veterans of America 
(IAVA); Veterans of Foreign Wars (VFW); The American Legion; 
Veterans for Common Sense; the National Veterans Legal Services 
Program; Disabled American Veterans (DAV); and the Fleet 
Reserve Association. Without objection, so ordered.
    [The letters of support appear on p. 57.]
    Mr. Hall. I am glad to welcome to this hearing the veterans 
service organization and the veterans legal service 
organizations who can shed more light on the difficulties the 
current interpretation of section 1154(b) by the Department of 
Veterans Affairs creates for so many of our men and women whose 
service in combat theaters goes unrecognized and the impact the 
denials of their claims have had on their lives.
    I am particularly honored to have a constituent of mine and 
famed author Norman Bussel join us today. Norman is an ex-POW 
from World War II, and a volunteer service officer for the 
American Ex-Prisoners of War, who has firsthand knowledge of 
the hardships that many of his fellow veterans face when filing 
PTSD and other claims for disability benefits.
    The 111th Congress shares the same responsibility to 
disabled veterans as did its colleagues of the 77th Congress. 
The vision then was to ease the bureaucratic burdens placed on 
returning war veterans so that they would receive the benefits 
they deserve. My hope is that we will enact H.R. 952 to restore 
this noble end.
    I now would yield to Ranking Member Lamborn for his opening 
statement.
    [The prepared statement of Chairman Hall appears on p. 35.]

             OPENING STATEMENT OF HON. DOUG LAMBORN

    Mr. Lamborn. Thank you, Chairman Hall, for yielding.
    Chairman Hall, as I have stated before, I commend you for 
your compassion toward our veterans. Your bill is based on the 
best of intentions. But as I have stated previously, I believe 
it would result in unintended consequences that could harm the 
integrity of the VA claim system.
    I also want to clarify for those who may not be familiar 
with this issue that I am completely supportive of veterans, 
any veteran receiving treatment for PTSD. However, healthcare 
benefits are not the issue. Veterans who have or believe they 
have PTSD can receive treatment and counseling today without 
establishing service-connection. But to draw disability 
compensation, a veteran must meet this threshold requirement.
    Also, any veteran does have the opportunity to establish 
service-connection for PTSD with a physician's diagnosis that 
links it to a verifiable stressor that occurred during service.
    The standard of evidence for combat veterans and victims of 
sexual assault has been lowered to give the benefit of the 
doubt to such veterans.
    Mr. Hall's bill would provide this liberalization to any 
veteran who was in a theater of operations. The theater of 
operations is an immense global area that might encompass areas 
most people would feel safe traveling to.
    I believe such a loose standard diminishes the bravery and 
service of those who faced the fire up close. And even if I 
agreed with Mr. Hall's bill, it would not go anywhere unless 
PAYGO standards were waived.
    Our Subcommittee passed Mr. Hall's bill last session, but 
it floundered because there was nowhere to offset the spending 
or a waiver of the rules Congress established.
    In previous hearings, I pointed out that I am not in favor 
of offsetting the cost in some other area of veterans' benefits 
which would be required by PAYGO, and not just the cost factor 
to which I am opposed. I believe that any veteran should have 
access to healthcare and treatment for PTSD. And I have full 
support for the funding of such treatment.
    Mr. Chairman, I extend my thanks to you for holding this 
hearing and I look forward to hearing the testimony of the 
witnesses on our panel today. And I yield back.
    [The prepared statement of Congressman Lamborn appears on 
p. 36.]
    Mr. Hall. Thank you, Congressman Lamborn.
    I would like to welcome all witnesses testifying before the 
Subcommittee today and remind you that your complete written 
statements have been made a part of the hearing record.
    Please limit your remarks so that we may have sufficient 
time to follow-up with the questions once everyone has had the 
opportunity to provide their testimony. There is a clock as 
usual, with the red, yellow, and green markers. So each witness 
will have 5 minutes to testify.
    On our first panel, I would like to invite up to the 
witness table Mr. John Wilson, Associate National Legislative 
Director for Disabled American Veterans; Mr. Bart Stichman, 
Joint Executive Director for the National Veterans Legal 
Service Program; Mr. Norman Bussel, National Service Officer 
for the American Ex-Prisoners of War; and Mr. Richard Paul 
Cohen, Executive Director for the National Organization of 
Veterans' Advocates, Inc.
    Welcome to all of our witnesses. You are familiar with 
this, I am sure, but you probably have a green button to push 
to turn your microphone on and then we can all hear you and you 
will be recorded for posterity.
    Mr. Wilson, you are now recognized for 5 minutes.

   STATEMENTS OF JOHN WILSON, ASSOCIATE NATIONAL LEGISLATIVE 
DIRECTOR, DISABLED AMERICAN VETERANS; BARTON F. STICHMAN, JOINT 
 EXECUTIVE DIRECTOR, NATIONAL VETERANS LEGAL SERVICES PROGRAM; 
NORMAN BUSSEL, NATIONAL SERVICE OFFICER, AMERICAN EX-PRISONERS 
 OF WAR; AND RICHARD PAUL COHEN, EXECUTIVE DIRECTOR, NATIONAL 
           ORGANIZATION OF VETERANS' ADVOCATES, INC.

                    STATEMENT OF JOHN WILSON

    Mr. Wilson. Thank you. Good morning, Mr. Chairman.
    Mr. Chairman and Members of the Subcommittee, on behalf of 
the DAV, I am pleased to address H.R. 952, ``Compensation Owed 
for Mental Health Based on Activities in Theater Post-Traumatic 
Stress Disorder Act,'' or ``The COMBAT PTSD Act,'' under 
consideration today.
    The Act provides a clarification of the definition of 
combat with the enemy. We agree that such clarity is essential 
provided it does not compromise the integrity of VA's benefits 
delivery system.
    The definition of what constitutes combat with the enemy is 
critical to all veterans injured in a combat theater of 
operations whether the issue is service-connection for PTSD or 
other kinds of conditions resulting from combat.
    The current high standards required by the Department of 
Veterans Affairs' internal operating procedures for verifying 
veterans who engaged in combat with the enemy are impossible 
for many veterans to satisfy whether from current or past wars.
    A practical example of the problems associated with the 
current burden of proof required to determine who ``is engaged 
in combat with the enemy'' can be found with the U.S. Army's 
Lioness Program in Iraq.
    Despite a U.S. Department of Defense (DoD) policy banning 
women from direct ground combat, U.S. military commanders have 
been using women as an essential part of their ground 
operations in Iraq since 2003.
    The female soldiers who accompany male troops on patrols to 
conduct house-to-house searches are known as Team Lioness and 
have proved to be invaluable. Their presence not only helps 
calm women and children, but Team Lioness troops are also able 
to conduct searches of the women without violating cultural 
strictures.
    Against official policy and at times without the training 
given to their male counterparts and with the firm commitment 
to serve as needed, these dedicated young women have been drawn 
on to the front lines to some of the most violent counter 
insurgency battles in Iraq.
    Independent Lens, an AME award winning independent film 
series on PBS, documented their work in a film titled, 
``Lioness,'' which profiled five women who saw action in 
Iraqi's Sunni Triangle during 2003 and 2004. I will discuss the 
experiences of Rebecca Nava.
    Then Specialist Nava was a supply clerk for the 1st 
Engineering Battalion in Iraq. Not trained for combat duty, she 
unexpectedly became involved with fighting in the streets of 
Ramadi on a particular mission. In my conversations with her, 
she recounts several incidents. This is one.
    Specialist Nava was temporarily attached to a Marine unit 
to provide Lioness support as a patrol of the streets of 
Ramadi. Before she knew it, the situation erupted into chaos 
and they came under enemy fire. She had no choice but to fight 
alongside her male counterparts to suppress the enemy. No one 
cared that she was a female nor did they care that she was a 
supply troop. Their lives were all on the line and they opened 
fire. The enemy was taken out. This and other missions resonate 
with her to this day.
    When she filed a claim with the VA for hearing loss and 
tinnitus, she was confronted with disbelief about her combat 
role in Iraq. Specialist Nava was told that she did not qualify 
for a service-connection for her hearing loss and tinnitus. The 
logistic career field was deemed one without inherent noise 
exposure issues.
    She also indicated she was not awarded service-connection 
for PTSD because she had no documented combat stressor. Since 
she does not have a combat action badge, she cannot easily 
prove her participation in combat missions which impacted her 
loss of hearing and tinnitus and her psychological health.
    The combat action badge or CAB was approved by the U.S. 
Army on May 2nd, 2005, to provide special recognition to 
soldiers who personally engaged or are engaged by the enemy and 
may be awarded by a commander regardless of the branch and 
military occupational specialty.
    Specialist Nava was not awarded the CAB despite her combat 
role. This lack of recognition for her combat role can be 
multiplied countless times for other veterans also caught in 
the fog of war.
    The VA's current internal instruction requires proof by 
official military records that can be viewed as exceeding the 
law since the law does not require this level of documentation.
    To provide better assistance to veterans of this and other 
conflicts, the VA could rely on the proper application of the 
current legislation. If VA applied Section 1154 properly, the 
problems this Act targets would effectively be resolved.
    As we move carefully toward liberalizing the law concerning 
service-connection for disabilities arising from combat with 
the enemy, perhaps the best course is to designate the theater 
of operations as the combat zone. Using Iraq as an example, 
that country would be so designated and personnel assigned 
there who transit through as part of their duties are 
considered to have engaged in combat for VA benefits' purposes.
    Logistical staging and resupply points such as those found 
in Kuwait and Qatar, although tax-free zones, have not been the 
scene of combat operations and thus personnel assigned to these 
areas would not be considered to have engaged in combat for 
benefits' purposes.
    With such a designation, veterans must still provide 
satisfactory lay events, however, consistent with their 
service. This is a complex issue that is worthy of the time and 
careful consideration that this Committee has invested.
    The last area that I would like to briefly address has to 
do with the title of the bill itself. I would request the 
Committee's consideration for renaming of this legislation, one 
with a broader context that reflects the impressive intent of 
clarifying the very definition of combat with the enemy. The 
current title, ``Combat PTSD Act,'' does focus on this 
important condition, yet the legislation language addresses the 
relationship between combat with the enemy and all service-
connected disabilities.
    That concludes my testimony. I would be happy to answer any 
questions that you may have.
    [The prepared statement of Mr. Wilson appears on p. 37.]
    Mr. Hall. Thank you, Mr. Wilson.
    Mr. Stichman, you are now recognized for 5 minutes.

                STATEMENT OF BARTON F. STICHMAN

    Mr. Stichman. Thank you, Mr. Chairman and the rest of the 
Subcommittee. I am pleased to have this opportunity to present 
the views of the National Veterans Legal Services Program.
    You are dealing today with one of the most vexing problems 
in the VA benefit system, how to properly adjudicate claims for 
service-connected disability benefits for post-traumatic stress 
disorder.
    It is the type of claim that takes a long time and a lot of 
labor for the VA to decide and it is the type of claim that 
veterans have been having a hard time winning for many years.
    And the main culprit is the VA requirement of a 
corroboration of the stressful event. That requirement exists 
regardless of the lay testimony of the veteran and perhaps 
others that the incident occurred and despite the fact that a 
physician has determined that the veteran is suffering from 
post-traumatic stress disorder and the post-traumatic stress 
disorder according to the mental health professional is due to 
a stressful event that occurred during service.
    Despite all that, in most cases, the VA has imposed a 
requirement for independent corroboration of the stressor, 
usually by military records.
    Section 1154, as the Chairman mentioned, was meant to help 
alleviate that problem, but it is clear that that current 
legislation as interpreted by the VA does not go far enough.
    The General Counsel opinion, one of them that I am sure the 
Chairman was referring to in his opening remarks, in order to 
get the benefit of not having to have corroborating evidence, 
the veteran has to have participated in events constituting an 
actual fight or encounter with a military foe or hostile unit 
or instrumentality.
    Now, this is especially problematic in our current war in 
Iraq and Afghanistan where the battle is not--there are no 
clear areas of combat. People see dead bodies and are exposed 
to improvised explosive devices (IEDs) when they are not in 
combat with the enemy. And they have experienced all these 
stressful events in a way that does not qualify under the VA's 
rules for elimination of the corroboration requirement.
    H.R. 952 is a reasonable step to deal with that problem. I 
would like to spend a few moments discussing whether it would 
be inconsistent with the integrity of the VA disability system 
as some have said.
    We have a system here. We are trying to deal with hundreds 
of thousands of claims. You cannot have a trial on each claim 
and spend a lot of resources. We do not have enough money to 
pay for that. And so it is consistent with the disability 
system to have general rules that work to the benefit of 
veterans to ensure that people with worthy claims are not left 
behind.
    A couple examples. Nobody believes that everybody who 
served in the Republic of Vietnam was exposed to Agent Orange. 
Yet, we have a statute and regulations that requires the VA to 
presume that everybody who served in Vietnam was exposed to 
Agent Orange.
    Why do we have such a liberal rule? We have such a liberal 
rule because if you had a trial to determine who was exposed 
and who was not exposed, it would be an administrative 
nightmare. And so it makes practical sense to assume that 
everybody who served in Vietnam was exposed to Agent Orange.
    Another example. Pension benefits for wartime veterans. 
There is a requirement that the disability be permanent and 
total in order to qualify for pension. If you are 65 years or 
older, the VA now presumes that you are permanently and totally 
disabled.
    Now, everybody knows that all veterans over 65 years old 
are not permanently and totally disabled. But for pension 
purposes, we assume that so you do not have to go through a 
long administrative process of gathering evidence, et cetera, 
to prove it.
    This is another example of that, H.R. 952. It makes a 
presumption that if you looked at every case and you had a 
camera as to what went on, some people might get benefits who 
would not deserve it.
    But what the system currently now is it works to deny 
claims of deserving veterans because they do not have 
corroborative evidence because the military records do not 
exist to corroborate it. There is not good medical records kept 
in Iraq and Afghanistan and that is what this bill addresses.
    It has protections in it. The statute has protections in it 
against wrongful grants of benefits. First of all, the statute 
retains the requirement or the part of the statute that clear 
and convincing evidence to the contrary will override the 
presumption that the event occurred.
    Secondly, if you look at the VA's clinicians guide, they 
say that post-traumatic stress disorder is very hard to fake, 
that mental health professionals who are trained in this area 
can tell whether a person is faking the symptoms or really has 
it.
    So you have a number of protections against wrongful 
grants, against violations of the integrity of the disability 
system already in place.
    I note finally that in the VA testimony, the VA argues give 
us the discretion to and promulgate regulations to deal with 
this problem rather than legislate the answer to the problem. 
That is a road we have gone down before, not just with Section 
1154, but many other examples where the VA interprets 
Congressional legislation too restrictively.
    Here is an opportunity to lay down the law precisely in a 
way that the VA cannot misinterpret it. And H.R. 952 would do 
that.
    [The prepared statement of Mr. Stichman appears on p. 39.]
    Mr. Hall. Thank you, Mr. Stichman.
    Mr. Bussel, you are now recognized for 5 minutes.

                   STATEMENT OF NORMAN BUSSEL

    Mr. Bussel. Thank you, Chairman Hall and Members of the 
Subcommittee, for the opportunity to testify before you today 
in support of H.R. 952, a bill designed to conclusively define 
compensation owed for mental health based on activities in 
theater post-traumatic stress disorder.
    As a volunteer National Service Officer accredited by the 
VA to file benefit claims for veterans, I find it so unfair 
when clients I represent, clients who served in combat zones, 
clients who fought and endured enemy attacks, clients diagnosed 
with PTSD by VA psychologists have their claims denied by the 
VA because their job titles did not reflect their combat 
experience.
    A cook, a Seabee, a supply sergeant are no more immune from 
injury or death than anyone else in the combat zone.
    I would like to present two classic examples of Vietnam 
veterans, both of whom are my clients, whose claims were 
unfairly turned down by the VA because of their specific 
training which did not suggest a role in combat.
    The first example is about a Seabee named Bob. Bob served 
two tours in Vietnam, the first tour on board a ship and the 
second on land in a combat zone. Following is a diagnosis from 
his psychologist, a nationally recognized specialist, who has 
served in a VA medical center for more than 32 years.
    He talked of events that he was able to describe vividly 
that reinforce the feeling that he could never feel safe and 
that he could have been dead many times. These intrusive 
thoughts have become worse over the past year and that is the 
main reason he entered treatment.
    He had tried to bury most of his PTSD problems over the 
years by working hard and by drinking alcohol heavily. His 
increasing symptoms are also associated with the increase in 
coverage of soldiers' deaths in Iraq. This brings him right 
back to Vietnam.''
    As further proof of Bob's combat role, I submit as 
evidence, the following excerpts from a letter, one of many 
that Bob wrote to his wife while serving in Vietnam in 1968. 
The letters are still in their original postmarked envelopes.
    ``September 1968, it started at two o'clock in the morning 
with a blast that almost threw me out of the rack and then all 
hell broke loose. They were not Vietcong this time. They were 
North Vietnamese regulars. They blew up a medical warehouse, 
two buildings across the street, one building in the next 
compound, and about ten rounds in the street in front of our 
compound. Again, no one was hurt here. We must have some kind 
of good luck charm.
    ``There is still an NV body in the street out front. He has 
two homemade bombs on his body, but I left him alone. I wonder 
how long he will lay there before someone moves the body. I 
found an NV hand grenade across the street near the body. I did 
not disarm it.
    ``I would say at least 200 rounds came into the city last 
night, most of them on this side of town. I do not mind telling 
you that I about messed in my pants last night. I do not mind 
telling you that the small arms, if they were near enough to 
hit you, you can hit them. The big stuff cannot be stopped and 
there is no protection from it.''
    Hear in Bob's own words, is his reprise of his life since 
Vietnam: ``My long battle with PTSD has led to divorce, 
strained relations with my children, estrangement from my 
family, and loneliness that resulted from my antisocial 
behavior. No one could understand my pain and I prefer to be 
alone.
    ``The fact that my claim for compensation was denied by the 
VA even after a psychologist at the VA mental health facility 
diagnosed me with PTSD weighs heavily on my mind. If I had been 
killed in Vietnam, and every day I spent there I was in danger 
of that happening, would my sacrifice have been less because I 
was in a construction battalion? I hope that this injustice 
will soon be rectified.''
    The second example is from Joe who was trained as a cook in 
the Marines and served in Vietnam from June 1967 until June 
1968. When he arrived at his assignment in Vietnam, he was told 
that there was no mess hall, so he was handed a weapon and 
became a combat Marine.
    Here are some excerpts from his statement in support of 
claim: ``We were overrun in Happy Valley. We were in bunkers 
and guys were being killed all around us. I was checking the 
perimeter a little later when we came under fire and were 
pinned down for about 8 hours. It took medevac helicopters to 
evacuate us.
    ``I lost a couple of real good buddies from snipers and 
incoming rocket fire. I had nightmares after that. You can 
never relax, particularly at night, since we were always 
subject to incoming fire. It led to a situation when I was 
always on edge.
    ``Of course, when I returned, it was impossible to leave my 
feelings behind. I still cannot go to the Vietnam Memorial in 
Washington. I am on medications for seizures, mood swings, 
anxiety, and to help me sleep. I still suffer from night 
sweats, nightmares, and flashbacks. I have to sit facing a door 
in any room or restaurant since I must always have a means of 
escape. My hypervigilance never goes away.''
    Although treatment reports from a VA hospital show a 
diagnosis of PTSD, Joe was denied compensation. Here is a 
portion of the VA report.
    ``Post-traumatic stress disorder questionnaire dated August 
31st, 2006, showed two incidents, both of which involved combat 
patrols, which would be unlikely for a cook. A search of unit 
records show your units were not involved in combat.
    ``Treatment reports, VA medical center, Hudson Valley 
Healthcare System from August 24, 2005, through April 18th, 
2008, show a diagnosis of post-traumatic stress disorder.''
    Additionally, the VA acknowledges that on October 6, 2007, 
a letter was received from a buddy who served with Joe in 
Vietnam and he did observe his fellow Marine with his combat-
ready equipment, vest, helmet, and weapons, and he could see 
him on a six-by-six truck with his unit below on the road to 
Happy Valley.
    Decisions such as this are deplorable and I know how they 
affect veterans.
    Sixty-five years ago this month, my B-17 bomber exploded 
over Berlin and I lost four of my crew who were as close to me 
as my brother. I have struggled with PTSD ever since and 
survivor guilt is one of my strongest stressors.
    There is no cure for PTSD, but the VA offers counseling and 
medications that make improvement almost a given and vast 
improvement is commonplace.
    To refuse PTSD compensation to veterans because their job 
titles are not synonymous with combat is unconscionable. There 
is more than money involved. Even more important is the 
colossal insult in telling a combat veteran he did not fight 
for his country. That is an unnecessary stressor to his or her 
already overflowing load of emotional baggage.
    Pass H.R. 952. Eliminate the practice of forcing combat 
veterans diagnosed with PTSD by one branch of the VA, and the 
task of battling another branch in order to obtain their 
rights.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Bussel appears on p. 41.]
    Mr. Hall. Thank you, Mr. Bussel.
    Welcome, Mr. Cohen. You are now recognized for 5 minutes.

                STATEMENT OF RICHARD PAUL COHEN

    Mr. Cohen. Thank you, Mr. Chairman.
    Thank you, Members of the Subcommittee, for the opportunity 
to testify here today. I am here representing the National 
Organization of Veterans' Advocates, a membership association 
of almost 300 attorneys and nonattorney practitioners who are 
accredited to represent veterans. We know what it is like to be 
in the trenches fighting for veterans' rights.
    My testimony today will do four things. One, to show our 
support for H.R. 952 because it will clarify the original 
intent of 1154(b). Second, to show the need and justification 
for this clarification. Number three, to show the cost of not 
passing this legislation and the last, to show the need to 
expand the presumption of 1154(b) to include not only the 
incurrence but actual service-connection.
    First off, it is clear that 1154(b) was written at a time 
in 1941 where the rules of war were considerably different than 
they are today. Today someone can be involved in combat without 
being in the front lines. Legislation to change 1154(b) to 
include presence in the theater of operations is consistent 
with the original intent and should be passed.
    I would like to remind those who are concerned about the 
justification for a change in 1154(b) that in the area of 
criminal law, we have a presumption of innocence. The reason 
why we have that presumption is because we consider it to be 
intolerable to have an innocent person convicted. We would 
prefer to have some guilty people go free.
    Yet, in VA law, we do not want to have an expanded 
presumption to make sure that everyone who is entitled to 
benefits should get those benefits. Rather we fear that maybe 
one or two people who are not entitled to benefits will get 
them. That is wrong.
    The costs of not amending 1154(b) are huge. There are 
hidden costs to the VA and hidden human costs. When you take 
someone, such as one like Mr. Bussel was talking about in his 
testimony, someone who has been exposed to combat and has been 
told he has not been exposed to combat, the VA is essentially 
calling that veteran a liar. They are doubting the veteran. 
They deny the claim. When that happens, the VA then begins the 
campaign to develop the claim and adjudicate the claim.
    Development and adjudication result in tremendous costs in 
manpower, paper, and backlog. A presumption decreases those 
costs. If there is any doubt that a change in 1154(b) would 
reduce costs, I would call your attention to the March 2009 
amendment to 3.304(f) which eliminates the need for 
corroboration of stressors in the case of a diagnosis of PTSD 
in service.
    According to the VA, that liberalization of the rule 
reduced costs. Similarly, I think the Congressional Budget 
Office did not consider all the hidden costs and did not 
indicate what reduction of costs would result from the lack of 
further adjudication if 1154(b) were expanded.
    The cost to the veteran and the country is huge every time 
a meritorious claim is denied. You have heard justice delayed 
is justice denied. Well, justice denied increases frustration 
among our combat veterans, increases their anxiety, increases 
their depression, increases their anger, and increases their 
sense of betrayal from the VA and by extension from the whole 
country.
    If the VA disbelieves the diagnosis, and disbelieves the 
stressor, then the veteran may not get the treatment for PTSD 
because the veteran may be diagnosed with anxiety or depression 
not related to combat, and therefore be ineligible for the PTSD 
Program.
    The veteran, him or herself, may give up, refuse treatment, 
and then stop being a productive member of society. The veteran 
may tell friends and family ``do not join,'' ``do not engage in 
combat because if you do, your country and the VA will turn 
their back on you.'' In this way, the country loses support, 
and loses productive citizens. We cannot win the war without 
the support of the country.
    I would suggest, however, that 1154(b) be expanded to 
create a rebuttable presumption that a combat veteran is 
entitled to service-connected benefits for any injury or 
disease incurred in or aggravated during combat.
    The following is a real life example: During World War II, 
a veteran got hit in the left temple with shrapnel. His 
treating doctor said he got a resulting brain tumor. VA doctor 
said, no, it was congenital. VA denied the claim. Although the 
VA admitted that the combat related shrapnel injury occurred, 
it denied the claim for failure of medical nexus saying that 
the preponderance of the evidence was against the claim.
    If 1154(b) were to be amended, a claim like that would 
result in benefits for the veteran because the VA could not 
prove by clear and convincing evidence that the tumor was not 
the result of the shrapnel.
    The following is a similar situation: An ambush and a 
firefight result in a PTSD diagnosis, but the VA says it is 
anxiety and depression, not combat related, and denies the 
claim based on preponderance of the evidence.
    If the 1154(b) presumption were expanded, the VA would have 
to show clear and convincing evidence to defeat that claim 
based on PTSD.
    A final example is what you are going to be seeing a lot of 
these days, an IED explosion, resulting in symptoms of 
irritability, frustration, and anger. Treating doctor may 
diagnose traumatic brain injury (TBI), and suggest treatment 
for TBI. The VA examiner may conclude, however, that it is 
situational anxiety and depression, not TBI. In that situation, 
the veteran does not get TBI treatment, never becomes a 
productive citizen, and never gets the benefits he is entitled 
to.
    The changes which I suggest can really make a difference in 
the lives of veterans and can make a difference in the VA's 
operational system, can save them money and cut their backlog, 
even though they oppose it.
    Thank you.
    [The prepared statement of Mr. Cohen appears on p. 42.]
    Mr. Hall. Thank you, Mr. Cohen.
    Thank you to all of our witnesses.
    I am going to wait for my question. Although Mrs. 
Kirkpatrick was our early bird today, I wanted to ask your 
permission to allow Mrs. Halvorson to speak first for a reason 
that you will see.
    Mrs. Kirkpatrick. Absolutely.
    Mr. Hall. Mrs. Halvorson.
    Thank you.

         OPENING STATEMENT OF HON. DEBORAH L. HALVORSON

    Mrs. Halvorson. Thank you, everybody on the Committee, for 
your indulgence.
    And thank you, panel, for everything.
    I just want to tell you a little story. I just returned 
this weekend from Afghanistan, Kuwait, and Germany. Our mission 
was to talk to the soldiers basically about PTSD and to talk 
about their healthcare and everything.
    And, I have to tell you I am a tough cookie. There is not 
anything that scares me. But I spent a night on Bagram Air Base 
in the barracks with the rest of--there were five of us from 
the Congress. And I slept fully clothed with my shoes on 
because of everything that was going on. And I was a little on 
edge. We had a knock at the door, and, were informed that there 
was a soldier who was killed by an IED. They had to bring that 
soldier in.
    Bagram Air Base also was where the level three health 
center is. Those medics are absolutely tremendous. They are not 
in combat, but they see the worst of the worst every day and 
they get people ready to go to Landstuhl.
    You know, it is especially emotional because we see our 
young people who are serving our country. They may not be in 
combat, but they are right there in it and they are strong and 
their morale is high and they want to be there for everybody.
    But, you know what? They go home and they want to say they 
are perfectly fine, but they are suffering. And, we need to do 
whatever it takes to be there for them.
    But, I found out I was not so tough because that was rough 
being there and not being in combat, but knowing that a soldier 
had been killed. And coming back to the air base, that is not 
an easy thing to do. And the soldiers are there every day.
    So, I believe that everybody serving there needs to be 
taken care of and H.R. 952 has got to pass. I am so glad that 
you all are here to talk about it. I will do whatever it takes 
to help make sure that that happens.
    And I again want to thank all of you on the Committee for 
your indulgence. I appreciate that.
    And, again, if you have not been there in Afghanistan on 
the bases, take it from me, it is tough on them. You do not 
have to be in combat to feel the pain.
    Thank you.
    Mr. Hall. Congresswoman, would you like to use your last 2 
minutes and a half or come back later to ask questions?
    Mrs. Halvorson. If I can, thank you. I yield back, or I 
reserve the balance of my time for later.
    Mr. Hall. Very good.
    Mr. Bilbray.
    Mr. Bilbray. Thank you, Mr. Chairman.
    You know, I have to say coming from not only a military 
family and born and raised, actually literally born on a naval 
air station and raised in the family, this is one of those 
things that we talk a lot about.
    It also kind of brings back the fact that when I was a 
young Mayor in my twenties, we had this big issue of 
presumption with public safety officers, issues of firefighters 
being presumed that any respiratory problem was specifically 
tied to their profession, stress related, anyone involved in, 
you know, firefights with criminals and stuff in law 
enforcement.
    I have seen where good intentions have backfired and that 
is my concern here. It is not enough just, you know, to care 
and want to do something right. It is not enough to mean well 
when we do these implementations. What really matters is what 
is the outcome.
    And I will give you an example with presumption respiratory 
problems with firefighters. Even if they were chain smokers 
where we ended up rather than confronting them with the fact 
that they needed to avoid risk, we sort of ignored the reality 
and did what felt good at the time.
    And I will just tell you something. One of those 
firefighters was a little league coach of mine back then. And 
later, we had a conversation about how we wished we would have 
been a little more hard-nosed about getting our firefighters 
into a safety thing and long term rather than just pandering to 
the fact that we want to take care of them.
    And I guess, Mr. Stichman, you brought up the point. I am 
an author on changing the regulations on an issue called mark 
to market that has created crisis in this country. And we have 
got legislation on this. And you brought up this issue of the 
fact that the VA has not addressed this regulatorily and that 
is why we need to look at legislation.
    Even those of us that are authors of this bill are hoping, 
and actually using, the bill as a way to try to stimulate the 
Administration to go back and do what has been ignored by two 
Administrations now and that is redefining this thing and doing 
it regulatorily.
    Would you not agree that if things worked the way they 
should, our incentive here should be in stimulating the 
Veterans Department to go back and restructure the rules on 
this issue in a perfect world or do you think that legislation 
is the best option in the long run?
    Mr. Stichman. Yes, I do. I have been in veterans' affairs 
for 30 years and I see time and again, even when Congress, I 
think the legislation is clear, the VA interprets it very 
restrictively. And so the successful legislation is legislation 
that is clear and specific and is difficult to misinterpret.
    If you just give them a blanket direction to just look at 
the issue without telling them how to come out, you may spend a 
couple years getting new regulations that do not change 
anything.
    I remember when, just take the Agent Orange issue, the 
Congress passed precisely the type of legislation you are 
talking about in 1985. For the first time, Congress mandated 
the VA to study the science and legislate as to what conditions 
are related to Agent Orange.
    Prior to that, the VA's position was only chloracne, a skin 
condition, is related to Agent Orange. They did a rule-making 
proceeding, had an advisory group of scientists, and guess what 
the regulation said in 1986 that they promulgated after that 
legislation? Only chloracne, a skin condition, is connected 
with exposure to Agent Orange, the exact same unpublished rule 
they had been operating under for 7 years. That legislation did 
nothing. It did not change anything.
    So if you just give them general instructions, you are not 
going to get change. This has been a complaint that has been on 
the books for many, many years. Just giving them general 
instructions, taking past history as a lesson, is not going to 
do the job.
    Mr. Bilbray. Well, you know, I spent 18 years trying to 
administer Federal regs and one of the things I ran into so 
often, though, was the fact that the problem in Washington is 
not that we try new things or that we mean well, but that when 
we make mistakes, this town never can go back and try to 
correct it.
    What, it took us 30 years to try to go back and correct 
welfare. I mean, when a term welfare can be a negative just 
shows you how bad it got before we were willing to address it.
    My question is, when we get into that problem of trying to 
correct it, is the Veterans Department so full of people that 
have animosity against those who have served? Is this a 
bureaucracy that is anti-military? I mean, because the way it 
comes across is like there is an adversarial relationship here 
and almost, you know, an anti-service mentality coming out of 
the Department.
    Mr. Stichman. Read the decisions. Read the decisions of the 
Board of Veterans Appeals. All these witnesses can give you 
decisions of the Board on these cases and you can view for 
yourself whether you think it is adversarial or not. I think 
you will come to the conclusion if you read those decisions 
that it is adversarial, that the decision makers have the mind 
set we are here to protect the public fisc. We do not want 
anybody to get benefits who does not deserve it and we are 
going to err on the side of denial.
    Mr. Bilbray. Maybe we can hire these guys who run our 
welfare system and get our welfare workers to work on the 
veterans and maybe things would balance out a lot better.
    Thank you very much, Mr. Chairman.
    Mr. Hall. Mr. Bilbray, thank you.
    If you do not mind, I will ask Mr. Wilson if he would like 
to answer that same question.
    Mr. Wilson. Yes. Thank you. I appreciate an opportunity to 
respond.
    It is an interesting circumstance we find ourselves placed 
in. When I look on the one hand at the statistics that the VA 
provides, I note that they have had a substantial increase in 
the number of post-traumatic stress disorder diagnoses than 
they have had over the past several years and in times past.
    Yet, I can also point to those particular cases, Specialist 
Nava, for example, who had a team following her about in her 
duties in Iraq, Independent Lens there doing this documentary. 
She has these incidents she talks about on camera, and they 
showed the four other people who she was also deployed with who 
saw that and other violence. Yet, she was denied.
    In my conversations with her, she indicates she was denied 
her claim for post-traumatic stress disorder. She has 
experienced the impact of these particular issues: instability 
in her home life, difficulty maintaining relationships now, 
other kinds of stressors, financial difficulties, all these 
things.
    But I think looking at it from an objective perspective, 
these issues would be an indication of post-traumatic stress 
disorder. But she has no combat action badge. So we have a 
troop. We have a camera following her around in Iraq. She is 
not given a combat action badge which can be granted to her by 
her commander, but she is, again, outside of that combat 
specialty.
    So if that is the case in modern day with a team of 
videographers following her about, how much more is this a 
problem for other veterans who do not have the level of 
visibility that she had? So it is a concern.
    So, yes, I think the VA has worked very diligently to try 
and improve its outreach programs. The healthcare they provide 
is next to none when it comes to that particular area. The 
compensation issues have been enhanced substantially by better 
diagnostic techniques, but more could be done. Even one error 
is not acceptable, I believe, in granting service-connected 
benefits for veterans.
    Mr. Hall. Thank you, Mr. Wilson.
    Mrs. Kirkpatrick.
    Mrs. Kirkpatrick. Thank you, Mr. Chairman. And I thank you 
for bringing forward this legislation.
    I just spent 2 weeks in my district meeting with veterans 
and there is so much anger about how they are being treated by 
the Administration.
    And specifically with regard to PTSD, you know, I have met 
with veterans who said how difficult it was to show the 
service-connection.
    One veteran in particular was a Vietnam veteran and he told 
me how painful it was to try to track down his patrol, finding 
out that so many of them had died since their days in the 
service. I finally was able to locate someone across the 
country who could validate the service-connection.
    The other problem is also the lack of trained mental health 
professionals specific to PTSD in some of these communities. 
And, again, they said please take back to your Committee our 
request that we have trained mental health counselors in PTSD 
in the Department of Veterans Affairs how specific that is to 
their treatment, even those who qualify.
    My concern, my question, I guess, is for you, Mr. Wilson. 
For a veteran who has PTSD or thinks they may have it and 
cannot show the service-connection, where do they go for 
treatment? What services are there for them?
    Mr. Wilson. That is a good question. While I was in the 
field, I also had veterans come through with the same issues, 
Vietnam era in particular, some World War II, their entire team 
wiped out. So where do they go to for the particular support 
for their claim?
    No letters from the front as we were talking about here. 
And this gentleman provided letters, postmarked, from someone 
overseas at the time. Excellent evidence typically. Why that 
claim was denied, I am unsure. It would have, I think, 
normally, I would hope it would be granted.
    It is a difficult circumstance, as I said, and I have 
encouraged such individuals to find their reunion web sites or 
people who may be a part of that unit to provide perhaps some 
sort of corroborating statement of, yes, I saw Johnny there on 
that truck going to that combat zone all geared up. Those kinds 
of things may all be a benefit, but it is nonetheless very 
difficult.
    In the fog of war, how is it that you are going to appoint 
a stenographer or a court reporter, a videographer to accompany 
each person on that combat? You cannot. It is a very difficult 
circumstance.
    I would contend that the VA does have the means before it 
in order to grant those benefits by looking at the lay evidence 
that a veteran submits and looking for the times, places, and 
circumstances of that particular event. They should, in fact, 
be able to grant the service-connection, but it nonetheless is 
a problematic condition.
    Mrs. Kirkpatrick. And for those people who cannot show the 
connection, are there other places they can go for help?
    Mr. Wilson. Ma'am, I wish I could find those. None that I 
am aware of.
    Mrs. Kirkpatrick. Mr. Chairman, let me just make one other 
comment. I asked the veterans I was meeting with if they were 
concerned about people applying for PTSD treatment who may not 
really qualify. And they said no, no.
    The risk really is that those who need treatment are not 
going to seek it out because of the current system. And they 
emphasized over and over again that they were promised medical 
treatment for life when they enlisted and that that promise has 
been broken.
    So thank you. I yield back the balance of my time.
    Mr. Hall. Thank you, Congresswoman.
    Mr. Rodriguez, you are now recognized.

          OPENING STATEMENT OF HON. CIRO D. RODRIGUEZ

    Mr. Rodriguez. Thank you, Mr. Chairman.
    Let me first of all ask permission to submit my statement 
for the record.
    Mr. Hall. So granted.
    Mr. Rodriguez. And let me also just add that the same 
people that might suffer from post-traumatic stress disorders 
initially are the same ones that might not even be aware of the 
fact that they are suffering it. And a lot of time, that is not 
acknowledged until much later and after a lot of difficulties.
    It is like getting burned out at work and you are not sure 
why. An example in my experience working with the mentally ill, 
staying there until seven, eight o'clock at night, taking the 
work back home with me, and then all of a sudden telling them, 
no, I cannot see you, it is after five. There is something 
wrong and it does not dawn on you until very much later in 
terms of what is happening to you.
    The same thing applies with post-traumatic stress disorder 
and the system is not equipped to handle or to even reach out 
to those individuals that are not even aware that they are 
suffering from that and being able to be aggressive, and to be 
able to reach out and work with some of the individuals.
    Your testimony, one of you mentioned the fact that a lot of 
them deal with it indirectly by going to prescription drugs and 
going to alcohol and perhaps illegal drugs in terms of coping 
with it. Somehow we have got to get the system to be more 
responsive.
    H.R. 952 directly addresses the stereotypes by, helping to 
relax the evidentiary standards to deployment to a combat area. 
The first two soldiers that were caught, I think it was in 
Afghanistan, a young lady who was a cook, and the other one, 
who was a mechanic, and they were the ones who were captured.
    It is hard when you get into those situations, especially 
what we have in Afghanistan and Iraq that at any given time, 
you will be asked to do other things besides your so-called 
duties while there. Some of those duties might not be 
transcribed so that you will not be able to justify them in the 
future.
    So, we need to give them the benefit of the doubt under 
those circumstances. I know a colleague just talked about going 
to Afghanistan, and I have been there also. In just the setting 
itself, and the fact that we had to do certain maneuvers in 
order to be secure and a couple of other things, but just 
witnessing some of the atrocities there, that in itself can be 
sufficient. Even within the same group of people, certain 
things occur and happen that certain people witness and others 
don't; some are engaged while others are not.
    I could go further, and I am not sure how PTSD is directly 
defined, I stopped doing mental health work some time ago, 
although it has worked for being in the U.S. House, but let me 
just say that there could be a combination of incidents that 
have occurred and not just one direct incident that could be 
factors.
    So, I am hoping that we have become a little more open 
about it, but our society as a whole, and my colleague was 
making those comments, our society as a whole has not been that 
receptive to mental illness and mental health problems because 
it is not as visible and people look like they are normal. And 
in most cases, they are, but they do suffer from post-traumatic 
stress disorder.
    Anyone that goes through any kind of, and I would apply 
that to policeman, a fireman, anyone that goes through some 
serious situations, you have got to be impacted by what you 
witness and what you encounter and it has a direct impact on 
you. In some cases, for the rest of your life. So, we need to 
be a little more responsive. Thank you.
    [The prepared statement of Congressman Rodriguez appears on 
p. 36.]
    Mr. Stichman. Mr. Chairman, could I just add a comment?
    Mr. Hall. You may, Mr. Stichman.
    Mr. Stichman. Thank you.
    The point you made about people not recognizing they have 
post-traumatic stress disorder or being in denial about it, I 
think, relates to this legislation. A lot of people do not 
realize they have it for a long time and then they get 
treatment and then they apply for benefits. So it may be years, 
many years after they finish their military service.
    And so in order to win benefits for post-traumatic stress 
disorder in a situation where the VA does not believe that they 
served in combat with the enemy at that point in time, they are 
going to have to go out and get corroborative evidence which is 
very difficult. The length of time affects their ability to do 
that.
    Mr. Rodriguez. Mr. Chairman, I know I have gone over my 
time, but----
    Mr. Hall. Do you have another question?
    Mr. Rodriguez. Just comment. What you have indicated is so 
true and that is one of the things that the system has to be 
responsive to in terms of meeting those needs.
    As a person goes through denial, you go through a process 
where you don't even acknowledge certain things that might have 
occurred that other people there will tell you, no, this and 
this transpired, because you might be going through guilt and 
other things, or that you might have not responded as 
appropriately as you should have and those kind of things. And, 
sometimes that is not cleared up until you have had a chance to 
go through those memories and be able to think about what 
actually occurred.
    So thank you.
    Mr. Hall. Thank you, Congressman.
    I will now recognize myself for 5 minutes.
    Mr. Wilson, DAV previously testified that VA had 
circumvented the law by conducting improper rule making through 
its Office of General Counsel and the adjudication procedures 
outlined in the M21-1MR by requiring proof of combat in 
official military records.
    Can you explain this contention further and whether you 
have asked VA to respond to the DAV's position?
    Mr. Wilson. I can briefly. I would like to respond more 
officially after this hearing, if I could. But briefly for now 
the rule-making issue gets to when VA promulgates its rules 
regarding, say, section 1154, in M21 in this particular case. 
What do they do to open it up for public comment?
    To my understanding and having talked with my peers at 
work, there has not been that opportunity for public comment.
    So there was no opportunity for Disabled American Veterans, 
NOVA, other organizations represented here today in this room 
to have an opportunity to comment and, therefore, get a 
response back as to the structure of that particular regulation 
and how they want to apply that.
    That is our concern. We think by not doing so, it goes 
against what the legislation is seeking. We think if the 
Veterans Administration would provide for a proper rule-making 
forum to occur for this and other areas of its M-21 
regulations, these particular issues could be resolved more 
readily.
    Mr. Hall. Thank you, sir.
    Mr. Stichman, would you please elaborate on your concerns 
that VA may interpret the presumption created by H.R. 952 to 
apply only to veterans who both served in a combat zone and 
alleged that the event in question occurred during combat with 
the enemy? How do you suggest we avoid this pitfall?
    Mr. Stichman. Well, the possibility is raised by the 
General Counsel opinions and VA regulations dealing with the 
current 1154(b). They require two hoops for the veteran to jump 
through to get the benefit of the current 1154. One, it has to 
be a combat veteran and we have talked here about the problems 
with that. But even if you are a combat veteran, you have to 
allege that the event occurred during combat with the enemy.
    So if you were a combat veteran but the event did not occur 
during combat with the enemy, then it has the same 
corroboration requirement as any other veteran would have.
    So it is possible, although I do not think it would be a 
proper interpretation of your legislation as written, that the 
VA could take the position that, yes, you served in a combat 
zone, but since we are interpreting the language combat with 
the enemy, if you do not even allege that the event took place 
during hostile, an actual fight or encounter with a military 
foe or hostile unit, you still do not win the benefit of the no 
corroboration requirement.
    And so maybe it is excess caution that makes me suggest 
that you make it even clearer that the allegation of the event 
does not have to be during what the VA would say today is 
combat with the enemy.
    Mr. Hall. Thank you, sir.
    One of the purposes of this hearing is to take any 
suggestions, clarifications, or amendments to the proposed 
legislation.
    Mr. Cohen, for instance, in your testimony, you talked 
about clarifying the title of the bill. Could you elaborate on 
that, please?
    Mr. Cohen. Yes. What we are suggesting is that this should 
not only be restricted to PTSD but should be allowed to 
encompass traumatic brain injury, getting hit by shrapnel.
    And what we are suggesting is indicating that there would 
be a presumption of actual service-connected benefits if an 
incident happened while you were in a war zone or in the 
theater of combat.
    And in response to what was questioned before of whether we 
could wait for the VA to propose regulations, there are two 
reasons not to do that. First of all, this is Congressional 
legislation, 1154(b), which is now obsolete. And so it should 
be Congress' role to make it current.
    Second thing is we cannot count upon the VA to make 
regulations that would solve this problem. We have a burning 
issue now and Congress needs to deal with it now.
    Mr. Hall. And in your opinion, would clarifying title 38, 
section 1154 damage the integrity of the VA claims adjudication 
system in any way?
    Mr. Cohen. No. To the contrary, it would add integrity to 
the system because there is no integrity in a system where 
someone who was, in fact, involved in combat and did get 
injured whether by PTSD or by an IED is denied benefits because 
they cannot prove it.
    When we question the integrity of our veterans and their 
credibility, there is no integrity in the system.
    Mr. Hall. Mr. Stichman, again, if I may ask you about this. 
There is some concern that there are over 100,000 more veterans 
in treatment for PTSD than service-connected for it. Granted 
that there are many causes of PTSD and we do not know how many 
have or have not applied for compensation. We do not know, for 
instance, who might have applied or enlisted for service having 
already been traumatized by some earlier event in their life 
and it was not picked up during their entry examination.
    Does DAV have a sense of how many veterans are being denied 
out of this 100,000 who are in treatment, but not being 
compensated? How many are being denied because of legal hurdles 
and not because they were not exposed to wartime trauma?
    Mr. Stichman. I do not have enough knowledge of all of 
those cases to tell you the answer to that question. I think 
the 100,000, that figure, you are referring to are people in 
treatment by the VA now?
    Mr. Hall. People who are in treatment, have the diagnosis, 
but have not been service-connected.
    Mr. Stichman. All right. And I know that the VA says there 
are about 54,000 who are receiving service-connection for post-
traumatic stress disorder which would leave----
    Mr. Hall. That is from OEF and OIF?
    Mr. Stichman. Yes. About 44,000 who are not currently 
service connected. And I cannot speak to that issue about why 
they are not.
    Mr. Hall. Well, if you have any further information, 
perhaps you could get it to us later.
    Mr. Bussel, your testimony, like the DAV's, provides us 
with some real cases of veterans who have fallen through the 
cracks. Of course, that is what we are concerned about and it 
is in the tens of thousands if not the hundreds of thousands 
apparently.
    What happens to these veterans when they are denied and 
what effects have you seen on their lives from being left 
without that service-connection?
    Mr. Bussel. Let me say first that no one comes through a 
combat experience without some emotional baggage. You are going 
to bring that home and the degree depends on the individual and 
the experience. It could be 10 percent. It could be 50 percent. 
It could be 90 percent.
    But the American veteran does not come in for treatment 
because he feels there is a stigma and he is ashamed of the way 
he feels. And the ones who are coming in for treatment in our 
hospital, which is a mental health facility, are really in 
horrendous shape before they finally come in.
    So, there is not going to be a great influx of people 
coming in who are imposters. It is just not going to happen 
because American veterans are not that way.
    With regard to what happens with the people who are 
refused, they are affected very adversely. They feel like, as 
someone mentioned, they are being called liars. Their combat 
experience is denied.
    I know myself from World War II, my records did not catch 
up with me and they were never completed as a POW until many 
months afterward. So you are not going to find records that 
prove that you were in combat, because those kinds of records 
are just not kept in Iraq and Afghanistan and especially when 
you go back farther to Vietnam or Korea.
    But they are very badly affected, the ones who are denied. 
And some of them even stop coming in for treatment and that is 
very sad because there is a collateral damage that affects 
their families and their relationships. And it is sad and it 
really needs to be remedied.
    Mr. Hall. Thank you, sir.
    I just would like to say for the record, in response to 
comments that my friend, the Ranking Member, made that I do not 
intend by this legislation nor do those who support it to mean, 
is to minimize or cast aspersions somehow on the value and the 
bravery of those who have fought in direct combat in intense 
firefights who signed up for and served as Special Forces. 
Those who have seen combat of the most intense type obviously 
are deserving. Any kind of injury that results, is deserving of 
compensation and treatment.
    My concern has more to do with either incidents that are 
traumatic, but are not recorded on that individual's record 
because they were not attached to the unit officially, because 
they were classified as females as not being officially in 
combat roles. As we have heard today, a cook, a clerk, a supply 
sergeant, a Seabee or someone who unofficially has a role that 
is not supposed to put them in combat, but finds themselves 
either in combat, or witnessing the aftermath of it. They then 
suffer a human reaction to seeing and experiencing immediate 
danger and human events unfolding before their eyes, traumatic 
and dehumanizing events, and are expected to come back here and 
rejoin their families if they have families, rejoin the 
workforce and adjust. We need to do more than have a parade or 
two and send you on your way; have a nice life. So, I just want 
you to know that is the intention we have in bringing this bill 
forth.
    I would ask you each if you would like to summarize maybe 
in 1 minute each starting with Mr. Wilson if you have any last 
words for this panel.
    Mr. Wilson. Yes. Thank you, Mr. Chairman.
    I would just like to say that in my time doing field work 
and seeing the impact of PTSD turning veterans' lives on its 
head, spousal abuse, alcohol abuse, drug abuse, suicide 
attempts, divorce, isolation, standing on patrol of their homes 
at night with weapons, anticipating someone is coming to attack 
their particular dwelling, those particular behaviors I have 
seen on some occasions with some of the most severely wounded 
veterans seeking compensation for the disabilities that they 
have.
    And then, somehow, once again acting in the bravest of 
ways, bringing that very vulnerability forward to a care 
provider to then try and get assistance. Then, once again 
having to recount and relive those particular issues, issues 
when they file a claim for service-connection is difficult, 
sometimes impossible for some of our most fragile veterans to 
come to terms with. And these are the veterans I think you are 
seeking to assist today as well.
    And I thank you for this legislation.
    Mr. Hall. Thank you, sir.
    Mr. Stichman.
    Mr. Stichman. H.R. 952 is very needed, long overdue. I 
encourage you to resist the efforts of those who argue let us 
just allow the VA to conduct rule-making proceedings because 
that will just delay the end result that is necessary which is 
legislation mandating a change in 1154(b)'s interpretation. The 
interpretation has been on the books for a long time and I 
think it is long overdue that Congress step in.
    Mr. Hall. Thank you, sir.
    Mr. Bussel.
    Mr. Bussel. Over the years, POWs have gotten presumptives 
which are for illnesses that they are unable to prove the 
stressor from. It was just too long ago and the Germans and 
Japanese and the Vietnamese did not provide medical records, of 
course.
    So we have the good fortune to have presumptives declared 
so that these conditions are accepted as presented and that is 
why H.R. 952 should be accepted also as a presumptive. If you 
were in the combat zone and you come back with PTSD or you 
claim that you do and the VA psychologists agree that you do 
have it, there should be no question that you should be granted 
your claim.
    Mr. Hall. Thank you, sir.
    Mr. Cohen.
    Mr. Cohen. Thank you, Chairman Hall.
    I will urge you to think about those veterans who are, in 
fact, getting treatment but are not getting benefits. And one 
veteran I would like you to think about when you are 
considering passing this bill, which should be passed, is a 
combat engineer from Vietnam who is presently receiving 
treatment at Vet Centers every week but cannot receive any 
treatment at the VA med center because the VA med center has 
decided as has the VA that he has noncombat depression and 
anxiety, not PTSD.
    So here is somebody who is very frustrated. He is getting 
his treatment at the Vet Center, but he cannot go to the VA 
because they do not recognize it. This is an abomination that 
should be corrected and can be corrected.
    Mr. Hall. Thank you, Mr. Cohen.
    Thank you to all of our first panel for your most helpful 
testimony. You are now free to enjoy the rest of your day with 
our gratitude.
    We will have the changing of the guard and welcome our 
second panel consisting of Mr. Bradley G. Mayes, the Director 
of Compensation and Pension Service for the Veterans Benefits 
Administration, U.S. Department of Veterans Affairs; 
accompanied by Richard Hipolit, Assistant General Counsel, the 
U.S. Department of Veterans Affairs.
    Gentlemen, make yourselves comfortable. As usual, your full 
statements are entered into the record.
    Welcome again, Mr. Mayes. Thank you for coming before this 
Subcommittee again. You have the floor for 5 minutes. It is all 
yours.

   STATEMENT OF BRADLEY G. MAYES, DIRECTOR, COMPENSATION AND 
    PENSION SERVICE, VETERANS BENEFITS ADMINISTRATION, U.S. 
DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RICHARD HIPOLIT, 
  ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. 
                 DEPARTMENT OF VETERANS AFFAIRS

    Mr. Mayes. Mr. Chairman, thank you for the opportunity to 
testify today on H.R. 952, ``The COMBAT PTSD Act.'' I also 
would like to acknowledge your leadership in helping our 
veterans with post-traumatic stress disorder.
    Mr. Hall. Thank you.
    Mr. Mayes. The short title of the legislation we are 
discussing today indicates that the intent behind it is 
principally to ease the burden on veterans in proving their 
service-connection claims based on PTSD, which is a goal that 
the Department shares. However, we are concerned about the 
scope of the bill and also believe it would unduly complicate 
the adjudication process.
    In furtherance of our mutual objective of simplifying the 
adjudication of wartime veterans' PTSD claims, the Department 
currently has under development an amendment to our regulations 
to liberalize in certain cases the evidentiary standards for 
establishing an in-service stressor for purposes of service-
connecting PTSD.
    This amendment would relax in some situations the 
requirement for corroborating evidence that a claimed in-
service stressor occurred. We also recently completed a rule 
making that eliminated the requirement for evidence 
corroborating the occurrence of a claimed in-service stressor 
if PTSD is diagnosed in service.
    I would like to point out that we did that along with a 
couple of other amendments on our own accord to relax the 
evidentiary burden for veterans.
    Because the scope of H.R. 952 is so broad and its 
implications so far reaching, VA strongly prefers regulation 
rather than any legislation at this time. This more focused 
approach enables VA to target the unique challenges associated 
with post-traumatic stress disorder without detracting from the 
overall efficiency and integrity of the claims adjudication 
process.
    Current law at section 1154(b) of title 38, the United 
States Code provides a relaxed evidentiary standard that 
facilitates a combat veteran's establishment of service-
connection for disease or injury alleged to have been incurred 
in or aggravated by certain active service.
    Specifically, section 1154(b) provides that in the case of 
any veteran who engaged in combat with the enemy in active 
service during a period of war, campaign, or expedition, VA 
shall accept as sufficient proof of service-connection of any 
claimed disease or injury satisfactory lay or other evidence of 
service incurrence or aggravation if consistent with the 
circumstances, conditions, or hardships of such service 
notwithstanding the absence of an official record of such 
incurrence or aggravation.
    In short, this provision allows a combat veteran to 
establish the incurrence or aggravation of a disease or injury 
in combat service by lay evidence alone. However, to be 
afforded this relaxed evidentiary standard, the veteran must 
have engaged in combat with the enemy. I want to point out that 
is the exact language in the statute.
    Furthermore, the relaxed evidentiary standard does not 
apply to the predicate fact of engagement in combat. The reason 
for relaxing the evidentiary requirements for combat veterans 
was that official documentation of the incurrence or 
aggravation of disease or injury was unlikely during the heat 
of combat. Combat veterans should not be disadvantaged by the 
circumstances of combat service in proving their benefit claim.
    H.R. 952 would extend the relaxed evidentiary standard to 
certain veterans who did not engage in combat with the enemy 
during a period of war. It would require that a veteran who 
served on active duty in a theater of combat operations during 
a period of war be treated as having engaged in combat with the 
enemy for purposes of establishing service-connection for 
disease or injury alleged to have been incurred in or 
aggravated by such service. This bill would also require that 
VA, in consultation with the Department of Defense, define what 
constitutes a combat theater of operations.
    Service in a theater of combat operations does not 
necessarily equate to engaging in combat with the enemy and 
does not in many cases present the same difficulties 
encountered by combat veterans when later pursuing compensation 
claims.
    So while we share the goals of this legislation to improve 
the processing of PTSD claims, we are concerned that it would 
extend the relaxed evidentiary standard to veterans regardless 
of whether the circumstances of their service were the kind 
that would inhibit official documentation of incurrence or 
aggravation of injury or disease.
    We are also uncertain of the scope of H.R. 952 which is 
broader than just PTSD claims and would provide a relaxed 
evidentiary standard for all types of physical and 
psychological diseases and injuries allegedly incurred in or 
aggravated by service in a theater of combat operations.
    Finally, H.R. 952 may unduly complicate the adjudication 
process by requiring separate determinations of whether a 
veteran served on active duty in a theater of combat operations 
during a period of war or served on active duty in combat 
against a hostile force during a period of hostilities, 
questions that VA typically does not address in the current 
process.
    The need to make such determinations may, in fact, delay 
claims processing for all veterans.
    For these reasons, we prefer our regulatory approach and 
look forward to working with this Committee and this 
Subcommittee in particular as we develop these initiatives and 
improve treatment for our veterans with PTSD.
    We did not have sufficient time before this hearing to 
prepare an estimate of the cost and with your permission, we 
would provide that estimate to the Subcommittee in writing for 
the record.
    And that concludes my testimony, Mr. Chairman.
    [The prepared statement of Mr. Mayes appears on p. 46.]
    Mr. Hall. Thank you, Mr. Mayes.
    While you are at it, in providing a cost estimate, would 
you be willing to also provide a preliminary draft of the 
regulations of which you speak or the changes in the 
regulations of which you speak? That would help us with our 
decisions.
    [The information was provided in the response to Question 
#2 in the post-hearing questions and responses for the record, 
which appears on p. 62.]
    Mr. Mayes. Dick, do you want to respond to that?
    Mr. Hipolit. Mr. Chairman, we had hoped to be able to say 
more about the regulation at this point because it is a 
positive thing for veterans and for VA, but we are not at the 
stage of the executive clearance process where we are able to 
share details of the regulation.
    We hope to be able to do that in the not too distant future 
and we would be pleased to work with the Committee to brief you 
on what is happening with the regulation. We are not at that 
stage yet where we are able to share the details, 
unfortunately.
    Mr. Hall. Well, perhaps you or Mr. Mayes would answer this 
question. What is the expected timeline for completion of these 
new changes?
    Mr. Hipolit. Okay. At this point, we are fairly far along 
in our internal VA processes. We have something on paper that 
has been agreed to between my office and the Veterans Benefits 
Administration. It is out for internal concurrence, and 
internal concurrence is pretty far along. We will be able to 
get it to the Office of Management and Budget in the very near 
future. Then there will be some time required for executive 
branch concurrence through that process as well.
    Mr. Hall. Who are the principals at VA who are involved 
with this effort?
    Mr. Mayes. Well, the Secretary has asked us to look at, you 
know, alleviating the burden on veterans who are serving 
overseas today for proving the stressor related to a PTSD 
claim. So at the very highest levels, we are interested in 
helping to streamline the process for assigning service-
connection in PTSD claims.
    Mr. Hall. Can you tell me if they would apply to just OIF/
OEF or retroactively to all conflicts?
    Mr. Mayes. At this point in time, generally we are looking 
at reducing the evidentiary burden for all veterans. It would 
not just be OEF/OIF veterans.
    And I would like to point out, Mr. Chairman, and I know Mr. 
Cohen and Mr. Stichman pointed out that left to our own 
devices, we would not promulgate regulations making the process 
easier. I would like to point out for the record that we have 
actually done that in a number of instances.
    We did that when we discovered that veterans were being 
diagnosed while still on active duty. And we understood that 
that presented a dilemma in our regional offices. So we 
modified the regulations at 3.304(f) to accept a diagnosis as 
prima facie evidence of the disease incurring in service 
barring any evidence to the contrary.
    We modified the regulations at 3.304(f) when we discovered 
that we had personal trauma situations in the military. So we 
relaxed the evidentiary burden for veterans who suffered from 
personal trauma. We did that on our own.
    And, finally, for American ex-POWs, we made changes to 
those regulations on our own at 3.304(f) to accept on its face 
a PTSD claim where the stressor from an American ex-POW is 
being incarcerated. We do not verify those stressors with the 
exception of verifying that an individual was interned by the 
enemy.
    So we have made changes to the regulations to relax the 
evidentiary burden and we are in the process of doing that 
again because this is a disease that we know is a signature 
injury of this conflict and that many veterans suffer from.
    Mr. Hipolit. If I might add to that, the direction we are 
going on this, and we recognize that there are veterans that 
have an increased risk of PTSD due to the circumstances of 
their service and may have trouble corroborating that, is that 
we are looking to maybe expand the situations where we can 
accept the veteran's testimony as establishing what happened in 
service, possibly looking at noncombat situations that are not 
currently considered combat situations, and seeing if we can do 
something for those veterans. That is the direction we are 
going.
    Mr. Hall. Well, I commend you for that and thank you for 
your efforts in the rule-making side of things. I spoke with 
both President Obama and Secretary Shinseki who both expressed 
a desire to work with us on this bill and achieve the same 
goals.
    However we achieve them, my concern has to do with 
rulemaking which in many departments of the Executive Branch 
can be changed in a future Administration under a future 
Secretary.
    Do you think that is something that should be a 
consideration as to whether this change is made in law or by 
regulatory means?
    Mr. Mayes. I do not believe and I have not observed 
administrations rolling back rights that have been granted 
veterans through regulation. For example, the relaxed 
evidentiary burdens that we have published in 3.304(f), I have 
not heard any discussion about rolling back those rights for, 
for example, veterans suffering from personal trauma or 
American ex-POWs. I just cannot envision that. If we regulate 
this and relax the standard, I cannot imagine rolling that back 
on the backs of veterans.
    Mr. Hall. That is good. Thank you.
    I would guess the same thing, but if you see what goes on 
in EPA or other agencies, like Interior, it seems like a change 
in Executive Branch can result in rule-making changes that do 
not involve Congress.
    So whatever we do here, I want to make sure that it is 
something that can be counted on by our veterans in the future.
    On page 3 of your testimony, Mr. Mayes, you cite in order 
to be afforded this relaxed evidentiary standard, the veteran 
must have ``engaged in combat with the enemy,'' which is the 
reason for this bill, to provide a definition of combat that 
allows for those circumstances that seem now to allow veterans 
to fall through the cracks.
    The clause about being engaged in hostilities or in an area 
of hostilities is there to cover, for instance, Cambodia where 
we officially were not, but we all know now that we were. In 
fact, at the time, especially those who were serving in 
Cambodia knew that even though the official policy of the 
United States was that we were not there that they were there 
and they were involved in combat.
    Today, we may have been in Kazakhstan or occasional cross-
border incidents into Pakistan, I do not know. We probably will 
not know for some time all of the efforts that have been 
undertaken to try to help our mission succeed and the effect it 
had on those in uniform who carried them out. So we are trying 
to make this broad enough to include them and include those 
clerks, nurses, truckdrivers, and women who were in combat 
situations de facto, when they were officially not supposed to 
be and other folks who have been denied service-connection 
because of that word combat.
    So do you have any suggestions? We heard a suggestion about 
the title being amended. But in terms of that phraseology in 
particular, putting aside your preference for rule making as a 
solution, if we were to go ahead with a bill like this, do you 
have any suggestions to improve that language?
    Mr. Mayes. Well, first of all, if we were to go forward and 
if you were to go forward with this bill, I would offer our 
assistance. But you raise an excellent point and it is one that 
I want to make sure is not lost on the Committee, the 
Subcommittee, and that is that if this bill goes forward, the 
Secretary will be in the position of having to define a theater 
of combat operations.
    Well, what is a theater of combat operations? Is it Iraq 
and Afghanistan proper? Is it Kuwait? Is it naval service 
offshore? Is it in Vietnam, those places that you described?
    I will tell you the President signed an Executive Order 
defining the combat zone for the first Gulf War and it includes 
the Persian Gulf, the Red Sea, the Gulf of Oman, the Gulf of 
Aden, a portion of the Arabian Sea, and the total land areas of 
Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and the 
United Arab Emirates. And that is used as a definition in the 
IRS Tax Code.
    But my point here is this. We would have to define a 
theater of combat operations and then we would have a two-
pronged adjudication process. We would have to determine did 
the veteran engage in combat. If the answer is no, did they 
serve in a theater of combat operations, which is complicated, 
in order to apply the relaxed evidentiary burden.
    By engaging in rule making directed at PTSD, we can just 
reduce the evidentiary burden for proving the stressor without 
the process being overly complicated by unintended consequences 
resulting from what I believe is a very genuine desire to make 
it easier for veterans.
    Mr. Hall. That is correct. I appreciate your acknowledging 
that our objective is to simplify it rather than to complicate 
it.
    How many of our current or what percentage of our current 
backlog of claims, of disability claims are for or include a 
claim for PTSD roughly?
    Mr. Mayes. I would have to get that for you, Mr. Chairman. 
I can provide that in writing following the hearing.
    [The information was provided in the response to Question 
#1 in the post-hearing questions and responses for the record, 
which appears on p. 62.]
    I would like to correct some numbers though. In my 
testimony, it is slightly more than 50,000. That is OEF/OIF 
servicemembers who have been granted service-connection. There 
are somewhere in the neighborhood of 350,000 American veterans 
on the rolls receiving compensation for post-traumatic stress 
disorder.
    And I mentioned this at our last hearing on this subject. 
At the end of 1999, there were 120,000 on the rolls. That is a 
188-percent increase in a 10-year period of veterans on the 
rolls for PTSD.
    So we are granting service-connection for PTSD. And that 
increase is much greater than the total number of veterans on 
the rolls for all disabilities which is about 10 percent.
    Mr. Hall. I appreciate that is a step forward. It may be 
compared to those who are actually suffering.
    I will take another disease, for instance, Lyme disease. It 
is estimated by medical professionals that only 10 percent of 
those infected have been diagnosed and had their cases reported 
to CDC or to local health authorities.
    Given what we hear and figures that are developed or 
published by other sources somewhere around a third of the 
claims at least that are pending, the backlog, if you will, 
involve a claim for PTSD.
    Does that sound like--and it may be higher. I doubt if it 
is lower from what I have heard. I am wondering if that seems 
consistent with what you know.
    Mr. Mayes. I would be hesitant to offer an estimate on the 
record without really taking a look at it.
    I will tell you that post-traumatic stress disorder is one 
of the top ten disabilities that we grant service-connection 
for in the OEF/OIF cohort of veterans.
    Mr. Hall. Okay. Well, once again going back to the size of 
the backlog on page 3 of your testimony, you are concerned 
about this legislation detracting from the overall efficiency 
and integrity of the claims process. We have been working very 
hard to try to improve the efficiency.
    Mr. Mayes. Yes, sir.
    Mr. Hall. You know, the integrity is generally something 
that I think we acknowledge, certainly your efforts, if not the 
results. But, efficiency is something that with a backlog of 
more than 6 months for claims and depending on how you count, 
800,000, 900,000 and still climbing at last that I heard of, it 
would seem to me this would make it more efficient, not less, 
and that the area of hostilities with the enemy is something 
that would not take a whole lot of time for--in fact, I do not 
think should even rise to the level of the Secretary himself 
having to make those decisions. That should be something that 
should be established at a lower level.
    But to move to another topic, would you elaborate on what 
you mean in your testimony that service in a theater of combat 
operations does not necessarily equate to engaging in combat 
with the enemy and does not in many cases present the same 
difficulties encountered by combat veterans when pursuing 
compensation claims? What are the implications of this 
statement to the bill in question?
    Mr. Mayes. I am going to go ahead and defer that to Mr. 
Hipolit who has been involved in trying to define the words in 
the statute engaged in combat with the enemy.
    Mr. Hipolit. The term theater of combat operations is a 
fairly broad one. It is one that is not currently well-defined. 
The Defense Department does define theater of operations, and 
that is something that is fairly broad in scope and includes 
not just people who are directly engaged where there might be 
enemy encounters but also support personnel as well, some of 
whom may be in locations that may be distant from where there 
is actual engagement with the enemy.
    So theater of operations is a broad term. Even if we limit 
it to theater of combat operations, that still would encompass 
a lot of people who were not closely engaged with the enemy. 
There would be some who are, some who are not, some who may not 
have been in danger, and some who were. So I think it is a very 
broad term that encompasses a lot of people who may or may not 
have been in dangerous situations.
    Mr. Hall. I just want to point out what I think is true is 
that any of the prospective servicemen or women who would apply 
under this law or under the existing law or under the new 
regulations that you are describing have to have the diagnosis 
first. Without a psychiatrist's or psychologist's diagnosis, 
they are not under consideration to begin with.
    I understand your concern that theater of operations could 
be interpreted to mean one-third of the surface of the Earth. 
It can be very big.
    So last year, I believe the original language was war zone 
as defined by the Secretary of Defense or maybe should have 
been and/or an area of hostilities with the enemy to provide 
for those cases I just talked about where we are not supposed 
to be, or also to cover those who are not in a combat role.
    At a Subcommittee hearing on March 24th, we had two 
witnesses from DoD who testified that the Department of Defense 
follows the medical community's standards for diagnosing and 
assessing PTSD. DoD does not require further documentation of a 
stressor the way that VA does to prove combat-related PTSD.
    Besides the different mission of these organizations, 
please explain why VA follows a different proof protocol than 
DoD does for PTSD claims.
    Mr. Mayes. Well, Mr. Chairman, I cannot speak to what DoD 
does. I can tell you what we do with respect to the legal 
determination regarding service-connection for post-traumatic 
stress disorder. And we do not question the diagnosis made by 
the examining psychiatrist or psychologist.
    When we get a claim for post-traumatic stress disorder, we 
really need three elements and we need a diagnosis. And that 
typically will come from a VA psychiatrist or psychologist on 
exam, on a compensation and pension exam. We need credible 
supporting evidence of the stressor.
    And that evidence, the evidentiary threshold is lower for 
combat veterans. That is the provisions of 1154(b). It is lower 
for American ex-POWs. It is lower in claims where personal 
trauma is a stressor. And it is lower for cases where the 
diagnosis is in service.
    But we need credible supporting evidence of the stressor 
and then we need a medical link between the two. And that is 
really made by the examiner.
    So from a legal point of view, that is what we need to make 
a link because, remember, the whole foundation of the 
disability compensation program is that the disability or the 
disease is somehow related to military service. Either it is 
related to an injury while on active duty or it is related to 
the manifestation of disease while on active duty. That is why 
we are looking for the credible supporting evidence of the 
stressor in service. That provides the link.
    PTSD is unique in that it is typically diagnosed many years 
after. And, in fact, when the regs were first created, we had 
to do it that way because PTSD did not exist until DSM-III in 
1980 and we were seeing Vietnam veterans having the disease 
many years after the end of the Vietnam War. That is why we 
wrote those regulations.
    There was no way they could have been diagnosed in service. 
And in many cases today they are not diagnosed in service.
    Mr. Hall. You heard the first panel, one of the witnesses 
on the first panel talk about Agent Orange and the presumption 
of service-connection for Agent Orange, the presumed stressor 
for prostate cancer, among other things.
    Was he accurate in saying that it was simpler and, if I 
recall correctly, cheaper for the Department to grant claims 
for Agent Orange than to try to go back and have the normal 
adjudication process and develop the case evidence and so on 
for Vietnam veterans?
    Mr. Mayes. There is no question that extending the--there 
are two presumptions really with Agent Orange claims. There is 
the presumption of exposure for veterans who stepped foot in 
Vietnam. And the reason for that presumption is because the 
records are not adequate for us to put a veteran in a spot, in 
a coordinate in Vietnam where Agent Orange was used. So we have 
extended that presumption of exposure to any veteran who served 
in Vietnam.
    The second element to that presumptive process is that as 
we become aware of diseases related to exposure to Agent 
Orange, then we have added those to the list of presumptive 
diseases at 3.309.
    So, yes, because of the recordkeeping and the difficulty in 
establishing that a veteran was in a specific spot where Agent 
Orange was used, it has facilitated the adjudication of those 
claims.
    Mr. Hall. Would I be correct then in assuming that it has 
saved VA personnel time and saved money as well to grant those 
claims for Agent Orange simply because the service man or woman 
served in Vietnam during that period of time?
    Mr. Mayes. I believe, yes, that your assertion is correct 
that it facilitates the expedient processing of claims for 
veterans who served in Vietnam as we have defined service in 
Vietnam in our regulations.
    Mr. Hall. So would I also be correct in assuming that it 
would speed the time for processing a claim and get the veteran 
compensation sooner, cost the Department less person hours of 
work involved and possibly save money as well to do the same 
thing for PTSD in, say, Iraq and Afghanistan?
    Mr. Mayes. I think for me the difficulty in extending a 
presumption of service-connection for post-traumatic stress 
disorder is because the disease with Agent Orange in Vietnam, 
we know Agent Orange was sprayed in the Republic of Vietnam and 
actually there was some limited use in the demilitarized zone 
in Korea, which is also covered in our regulations.
    But with PTSD, the difficulty in trying to define what 
parts of the world at different times in our history where 
veterans have served defining those locations that then we 
would extend the presumption of service-connection to. And that 
is really why we are more interested in attacking this in a 
different manner by focusing strictly on PTSD and not just----
    Mr. Hall. The definition.
    Mr. Mayes [continuing]. You know, the provision at 1154, 
which, by the way, would reduce the evidentiary burden for 
claims of all disabilities, whether they be physical, mental, 
or PTSD. It would relax that evidentiary burden such that a 
veteran's lay statement alone would be sufficient to establish 
that a disease or an injury occurred. There would be no 
requirement for records in the service treatment records, 
review of the service treatment records.
    Mr. Hall. Mrs. Halvorson spoke about the trauma center in 
Balad, which I also visited the week before last.
    Are you aware of any medical service specialists who file 
for and are granted claims for PTSD having served in a hospital 
like Balad?
    Mr. Mayes. Yes. If I may, I would like to read just a 
portion of our procedures manual, and this is available for 
public review.
    We state in our procedures manual that corroboration of 
every detail including the claimant's personal participation in 
a claimed stressful event is not required. The evidence may be 
sufficient if it implies a veteran's personal exposure to the 
event.
    Further, we list potential noncombat-related stressors. We 
say potential noncombat-related stressors include, but are not 
limited to, plane crash, ship sinking, explosion, rape or 
assault, duty on a burn ward, in a grave's registration unit, 
or involving liberation of internment camps, witnessing the 
death, injury, or threat to the physical being of another 
person not caused by the enemy, actual or threatened death or 
serious injury or other threat to one's physical being not 
caused by the enemy.
    That is in there today and we grant service-connection for 
veterans who were involved in the combat area of operations 
providing treatment to veterans who have been injured as a 
result of combat.
    Mr. Hall. So they were not engaged in ``combat with the 
enemy'' but they are covered under the regulations?
    Mr. Mayes. That is correct. And that is an important point 
because PTSD is not just a combat disorder. We can grant 
service-connection for PTSD for many reasons, many of them 
unrelated to combat. It is only engaged in combat with the 
enemy that reduces the evidentiary burden for proving a 
stressor.
    Mr. Hall. I just wanted to remark on a case, Suozzi v. 
Brown, regarding the degree of stressor corroboration required 
in which it appears that corroboration of every detail 
including the claimant's personal participation in the claimed 
stressful event is not required, the evidence may be sufficient 
if it implies personal exposure.
    The quote from the decision is when considered as a whole, 
evidence consisting of a morning report, radio log, and 
nomination for a Bronze Star may be sufficient to corroborate a 
veteran's account for an event even if it does not specifically 
include mention of the veteran's name.
    Mr. Mayes. And, Mr. Chairman, that is exactly what I just 
read to you out of our procedures manual. We cite Suozzi v. 
Brown in our procedures manual, as well as Pentecost v. 
Principi where we had a veteran who was in a unit that was 
subjected to mortar attacks in Vietnam. We account for those 
types of stressors in our procedures manual.
    Mr. Hall. I guess the problem arises when the records of 
those mortar attacks do not exist.
    I just have two more questions for you, if you would be so 
kind.
    As the Congress 1941 stated in its report on this issue, 
much of the interest in more liberal service pension laws is 
believed to be stimulated because of the inability of veterans 
to establish service-connection of a disability which they have 
sound reason to believe was incurred in ``combat with an enemy 
of the United States.''
    At the March hearing, you agreed that the nature of combat 
has changed greatly since the 1941 statute was written. Why 
would it not follow that if circumstances that we are 
addressing have changed that the statute should not need to 
change to mirror those circumstances?
    Mr. Mayes. I think that I did agree at the hearing and I 
firmly believe the nature of combat has changed. And that is 
what we are trying to do is take into account--the way the 
statute reads is it says that we must take into account the 
time, place, and circumstances in promulgating our regulations. 
And that is why we want to change the regulations dealing with 
PTSD, because we do believe that the nature of combat has 
changed.
    Mr. Hall. Well, I thank you both for being here again, yet 
again, and for the work that you are doing and request that you 
will at the soonest time that you can send us the proposed 
revisions to the regulations. And, I think you were going to 
provide us an estimate of a couple of things----
    Mr. Mayes. Yes, Mr. Chairman.
    Mr. Hall [continuing]. Involving cost of the bill itself if 
it were to pass and also the number of those under treatment 
who have filed a claim and of those, how many have been 
granted. And I am talking about----
    Mr. Mayes. I think it was the number of claims pending you 
had asked for, Mr. Chairman?
    Mr. Hall. Right. Well, our information is, I believe, 
roughly 100,000 soldiers currently being treated or currently 
having been diagnosed with PTSD, but something less than half 
of that, I believe, actually have been granted service-
connection.
    So, the question is, if you could tell us what those 
figures actually are and what conclusion you draw from that, 
whether there is a pattern of exclusion or reasons for 
exclusion that might be related to the topic that this bill 
addresses.
    I have a hard time believing that 50,000 or 100,000 or 
200,000 or however many men and women from this country 
enlisted in the Armed Forces are already suffering from PTSD. 
It may be possible, but I doubt that it is actually the case. I 
suspect that those who are coming back--and, once again, I 
think it is under-reported. I do not think it is over-reported. 
We have heard other witnesses say the same thing from the 
mental health professions. They believe that this is seen as a 
stigma and that most of our servicemen especially, but also 
women, but men in particular are inclined--as you yourself 
said, it may not manifest itself for many years just as Agent 
Orange did not manifest itself as a 30-year latency for most 
prostate cancers.
    So, this may be another case, although it is not a chemical 
involved. It is an experience involved, but it may be that it 
needs to be treated in the same way and that it would be 
actually more efficient to provide this presumed stressor.
    Would the Minority Counsel like to ask any questions on 
behalf of the Ranking Member?
    Mr. Lawrence. I have no questions.
    Mr. Hall. Okay. Well, with that, thank you again for being 
here and thanks for the work you are doing for our Nation's 
veterans. You are now excused.
    This hearing is adjourned.
    Mr. Mayes. Thank you, Mr. Chairman.
    [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

           Prepared Statement of Hon. John J. Hall, Chairman,
       Subcommittee on Disability Assistance and Memorial Affairs

    Good Morning Ladies and Gentleman:
    Would you please rise for the Pledge of Allegiance? Flags are 
located in the front and back of the room.
    Today we are here to consider legislation, the ``Compensation Owed 
for Mental Health Based on Activities in Theater Post-Traumatic Stress 
Disorder Act,'' or the COMBAT PTSD Act, H.R. 952. During the 110th 
Congress and most recently during an oversight hearing held on March 
24, 2009, the Subcommittee on Disability Assistance and Memorial 
Affairs revisited Congress' intent in establishing presumptive 
provisions to provide compensation to combat veterans under Section 
1154(b) of title 38.
    We have heard testimony on how Congress in 1941, when it adopted 
the original provisions under section 1154, seemed to explicitly 
express its desire to overcome the adverse effects of not having an 
official record. Moreover, that it wanted to be more liberal in its 
service pension law by extending full cooperation to the veteran when 
it enacted this provision.
    However, based on this Subcommittee's review, it seems that VA has 
acted to thwart the congressional intent of section 1154(b) with its 
internal procedures for adjudication, primarily those contained in its 
M-21-1s and General Counsel opinions. This has resulted in VA being 
more restrictive in its application of section 1154(b) by placing an 
unnecessary burden on veterans diagnosed with Post-traumatic stress 
disorder--PTSD and other conditions--to prove their combat stressors. 
Instead of helping these veterans reach an optimal point of social and 
emotional homeostasis, as described in the RAND Report, Invisible 
Wounds of War, VA's procedures are an obstacle to this end--inflicting 
upon the most noble of our citizens a process that feels accusatory and 
doubtful of their service.
    We also know from the RAND report that one out every five 
servicemembers who served in OEF or OIF suffers from symptoms of PTSD. 
A large portion of these claims unnecessarily comprise VA's claims 
backlog as VBA personnel labors to corroborate the stressors of combat 
veterans. As the Institute of Medicine stated in 2007 in its seminal 
report on PTSD: the process to adjudicate disability claims is complex, 
legalistic and protracted, and particularly difficult for veterans 
because of the stresses and uncertainties involved while facing 
skeptical and cynical attitudes of VA staff. As I think most will 
agree, this statement goes double for veterans filing PTSD claims, 
which require additional evidence of exposure to a stressful event 
while serving in combat.
    This is an injustice that has gone on six decades too long. The 
hoops and hassles veterans must endure today appear to be far beyond 
Congress' imagination when it authorized the 1933 and 1945 Rating 
Schedules, which simply required the notation of an expedition or 
occupation for a combat presumption to have existed.
    That is why I reintroduced my bill the COMBAT PTSD Act, H.R. 952 to 
try to rectify this wrong. My bill would do so by clarifying and 
expanding the definition of ``combat with the enemy'' found in section 
1154(b) to include a theater of combat operations during a period of 
war or in combat against a hostile force during a period of 
hostilities. This language is consistent with other provisions of title 
38 and those contained within the National Defense Authorization Act. I 
also firmly believe that this bill is consistent with the original 
intent of Congress in 1941 and should not be viewed as adding a new 
entitlement. I am grateful to my 42 colleagues who are already 
cosponsors of H.R. 952.
    I am glad to welcome to this hearing the veteran service 
organizations and legal representatives who can shed more light on the 
difficulties the current statute interpretation creates for so many of 
our men and women whose service in combat theaters goes unrecognized 
and the impact denials have had on their lives. I am particularly 
honored to have famed author and my constituent Norman Bussel join us 
today. Norman is an ex-POW from World War II and a volunteer service 
officer for the American Ex-Prisoners of War who has first-hand 
knowledge of the hardships that many of his fellow veterans face when 
filing PTSD and other claims for disability benefits.
    I also look forward to hearing more from the Department's witness 
on how this provision could be better tailored to meet its evidentiary 
needs to properly adjudicate claims while alleviating the often 
overwhelming evidence burdens that stymie many of our combat veterans 
through no fault of their own.
    The 111th Congress shares the same responsibility to disabled 
veterans as its colleagues of the 77th Congress. The vision then was to 
ease the bureaucratic burdens placed on returning war veterans, so that 
they would receive the benefits they deserve. My hope is that we will 
enact H.R. 952 to restore this noble end.
    I now yield to Ranking Member Lamborn for his Opening Statement.

                                 
  Prepared Statement of Hon. Doug Lamborn, Ranking Republican Member,
       Subcommittee on Disability Assistance and Memorial Affairs

    Thank you, Chairman Hall for yielding.
    Chairman Hall, as I have stated before, I commend you for your 
compassion toward our veterans.
    Your bill is based on the best of intentions, but as I have stated 
previously, I believe it would result in unintended consequences that 
could harm the integrity of the VA claims system.
    I also want to clarify for those who may not be familiar with this 
issue that I am completely supportive of veterans, any veteran, 
receiving treatment for PTSD.
    However, health care benefits are not the issue.
    Veterans who have, or believe they have, PTSD can receive treatment 
and counseling today without establishing service connection, but to 
draw disability compensation, a veteran must meet this threshold 
requirement.
    Also, any veteran has the opportunity to establish service 
connection for PTSD with a physician's diagnosis that links it to a 
verifiable stressor that occurred during service.
    The standard of evidence for combat veterans and victims of sexual 
assault has been lowered to give the benefit of the doubt to such 
veterans.
    Mr. Hall's bill would provide this liberalization to any veteran 
who was in a theatre of operations.
    The theatre of operations is an immense global area that might 
encompass areas most people would feel safe travelling to.
    I believe such a loose standard diminishes the bravery and service 
of those who faced the fire up close.
    Even if I agreed with Mr. Hall's bill, it would not go anywhere 
unless PAYGO standards were waived.
    Our Subcommittee passed Mr. Hall's bill last session but it 
foundered because there was nowhere to offset the spending or a waiver 
of the rules Congress established.
    In previous hearings, I pointed out that I am not in favor of 
offsetting the cost in some other area of veterans' benefits (as 
required by PAYGO) and not just the cost factor to which I am opposed.
    I believe that any veteran should have access to health care and 
treatment for PTSD, and I have in full support of funding for such 
treatment.
    Mr. Chairman, I extend my thanks to you for holding this hearing 
and I look forward to hearing the testimony of the witnesses on our 
panel today. I yield back.

                                 
              Prepared Statement of Hon. Ciro D. Rodriguez

    The current system used for determination has resulted in a large 
number of veterans to be denied their rightful claims. Claims are often 
denied based on the supposed ``improbability'' of a member having 
served in the capacity they claimed, either because they were female, 
they were not in a combat specific career field, they weren't 
permanently assigned to the right type of unit, they didn't receive a 
specific award for their actions, or they weren't listed properly in 
rosters.
    These are the very reasons the law allows for ``lay or other 
evidence'' provided by the member. It has always been the case, in 
every war, that non-combat unit troops somehow end up in combat. Troops 
are constantly pulled into a convoy or patrol at the last minute, with 
no documentation of attachment to the patrol, due to necessity and 
immediate need at the moment. Troops do their duty regardless of 
whether or not it's documented. Likewise it has always been the case 
that women somehow end up in combat. Under the current system the many 
women who fought alongside their artillerymen husbands in the 
Revolutionary War would have been denied claims because they were 
female, not assigned to the right unit, or it was just unlikely that 
they really were there. We must eliminate the prejudice that only 
certain troops will end up in combat. It is a very real possibility for 
any serviceman or woman to have to fight in combat.
    We also must ensure that the invisible wounds of our servicemen and 
women are recognized and believed. One doesn't have to be in a physical 
fight or pulling a trigger to have wounds from service. Many of our 
troops see the aftermath of a fight, or the resulting carnage, and 
develop PTSD without ever having been in combat. The results of war 
seen by our medical profession in the forward hospitals has no doubt 
caused many medical professionals to have PTSD, even they only saw this 
carnage in an operating room rather than on the battlefield.
    One doesn't even have to be in a combat zone to develop PTSD. 
Military Sexual Trauma, war simulation training exercises, vehicle 
accidents on convoy training while in the United States, or any other 
traumatic event can result in PTSD. And all of these situations may 
very well be directly connected to service. We must be very careful not 
to disregard someone's claim simply because it doesn't meet our 
preconceived notions of what proof is needed or what demographic 
stereotypically is or is not in certain situations.
    H.R. 952 directly addresses these stereotypes by relaxing the 
evidentiary standard to deployment to a combat theater in order to 
presume service-connection of a claim injury or illness. I am open to 
hearing suggestions about how this bill may be improved upon, but this 
bill is the right direction in ensuring all of our servicemen and 
women, and the veterans who have served before them, are finally 
assumed to be telling the truth when they make a claim about an injury 
or illness. They are honest people. That should be our starting 
assumption.

                                 
   Prepared Statement of John Wilson, Associate National Legislative
                  Director, Disabled American Veterans

    Mr. Chairman and Members of the Subcommittee:
    I am pleased to have this opportunity to appear before you on 
behalf of the Disabled American Veterans (DAV) to address H.R. 952, 
``Compensation Owed for Mental Health Based on Activities in Theater 
Post-traumatic Stress Disorder Act'' or the ``Combat PTSD Act'' (the 
Act) under consideration today. In accordance with our congressional 
charter, the DAV's mission is to ``advance the interests, and work for 
the betterment, of all wounded, injured, and disabled American 
veterans.'' We are therefore pleased to support this measure insofar as 
it falls within that scope.
    The definition of what constitutes combat with the enemy is 
critical to all veterans injured in a combat theatre of operations, 
whether the issue is service connection of posttraumatic stress 
disorder (PTSD) or other conditions resulting from combat. The current 
high standards required by the Department of Veterans Affairs' (VA) 
internal operating procedures for verifying veterans who ``engaged in 
combat with the enemy'' are impossible for many veterans to satisfy, 
whether from current or past wars.
    The reasons for this are many. Possible scenarios include: 
Unrecorded traumatic events taking place on the battlefield as 
operations expand and contract; unrecorded temporary detachments of 
servicemembers from one unit to another while in a combat theater of 
operations; field treatment for injuries that become problematic later 
but not in the circumstances and conditions of combat when 
servicemembers are compelled to return to duty by commitment to fellow 
servicemembers and country; and other occasions when it simply may come 
down to poor recordkeeping.
    A practical example of the problems associated with the current 
burden of proof required to determine who ``engaged in combat with the 
enemy'' can be found with the U.S. Army's Lioness Program in Iraq. 
Despite a Department of Defense policy banning women from direct ground 
combat, U.S. military commanders have been using women as an essential 
part of their ground operations in Iraq since 2003. The female soldiers 
who accompany male troops on patrols to conduct house-to-house searches 
are known as Team Lioness, and have proved to be invaluable. Their 
presence not only helps calm women and children, but Team Lioness 
troops are also able to conduct searches of the women, without 
violating cultural strictures. Against official policy, and at that 
time without the training given to their male counterparts, and with a 
firm commitment to serve as needed, these dedicated young women have 
been drawn onto the frontlines in some of the most violent 
counterinsurgency battles in Iraq.
    ``Independent Lens,'' an Emmy award-winning independent film series 
on PBS, documented their work in a film titled ``LIONESS'' which 
profiled five women who saw action in Iraq's Sunni Triangle during 2003 
and 2004. As members of the U.S. Army's 1st Engineer Battalion, Shannon 
Morgan, Rebecca Nava, Kate Pendry Guttormsen, Anastasia Breslow and 
Ranie Ruthig were sent to Iraq to provide supplies and logistical 
support to their male colleagues. Not trained for combat duty, the 
women unexpectedly became involved with fighting in the streets of 
Ramadi. These women were part of a unit, made up of approximately 20 
women, who went out on combat missions in Iraq. Female soldiers in the 
Army and Marines continue to perform Lioness work in Iraq and 
Afghanistan.
    I would like to highlight the issues faced by Rebecca Nava as she 
seeks recognition of her combat experience and subsequent benefits for 
resulting disabilities. Then U.S. Army Specialist Nava was the Supply 
Clerk for the 1st Engineering Battalion in Iraq. In conversations with 
her and as seen in the film ``Lioness'' she recounts several incidents. 
Two of those incidents are noted in my testimony today.
    The first is the rollover accident of a 5-ton truck that was part 
of a convoy to Baghdad. In this accident, the driver was attempting to 
catch up with the rest of the convoy but in doing so lost control of 
the vehicle. The 5-ton truck swerved off the road and rolled over, 
killing a Sergeant who was sitting next to her, and severely injuring 
several others. Specialist Nava was caught in the wreckage. She had to 
be pulled through the fractured windshield of the vehicle. While not 
severely injured in the accident, she did suffer a permanent spinal 
injury.
    Another incident occurred wherein she was temporarily attached to a 
Marine unit and her job for this mission was to provide ``Lioness'' 
support for any Iraqi women and children the unit contacted. It was a 
routine mission patrolling the streets of Ramadi. Before she knew it, 
the situation erupted into chaos as they came under enemy fire. She had 
no choice but to fight alongside her male counterparts to suppress the 
enemy. No one cared that she was a female--nor did they care that she 
had a Supply MOS--their lives were all on the line--she opened fire. 
The enemy was taken out. During this firefight she also made use of her 
combat lifesaver skills and provided medical aid to several injured 
personnel.
    This and other missions resonate with her to this day. When she 
filed a claim with the VA, she was confronted with disbelief about her 
combat role in Iraq as part of Team Lioness. Specialist Nava filed a 
claim for service connection for hearing loss and tinnitus but was told 
that she did not qualify because of her logistics career field. Since 
she does not have a Combat Action Badge, she cannot easily prove that 
the combat missions occurred which impacted her hearing.
    The Combat Action Badge (CAB) was approved, according to the U.S. 
Army's website (http://www.army.mil/symbols/combatbadges) on May 2, 
2005, by the U.S. Army Chief of Staff to provide special recognition to 
soldiers who personally engage, or are engaged by the enemy. The CAB 
may be awarded by a commander regardless of the branch and Military 
Occupational Specialty (MOS). Assignment to a Combat Arms unit or a 
unit organized to conduct close or offensive combat operations, or 
performing offensive combat operations is not required to qualify for 
the CAB. However, it is not intended to award all soldiers who serve in 
a combat zone or imminent danger area. It may be awarded to any soldier 
performing assigned duties in an area where hostile fire pay or 
imminent danger pay is authorized. The soldier must be personally 
present and actively engaging or being engaged by the enemy, and 
performing satisfactorily in accordance with the prescribed rules of 
engagement.
    Specialist Nava was not awarded the CAB despite her combat role. 
This lack of recognition for her combat role can be multiplied 
countless times for other veterans also caught in the fog of war. The 
VA's current internal instruction (M21 Manual) requires proof by 
official military records that can be viewed as exceeding the law since 
the law does not require this level of documentation. To provide better 
assistance to veterans of this and other conflicts, the VA could rely 
on the proper application of current legislation. If VA applied section 
1154 properly, the problems this Act targets would effectively be 
resolved.
    However, we must proceed with consideration given the complexity of 
defining what is combat related in face of the morphing lines of battle 
inherent in any conflict, whether it be major campaigns along 
supposedly clear lines of battle or urban warfare where enemy 
combatants do not wear uniforms and the battle lines move from street 
to rooftop in quick succession.
    As we move carefully toward liberalizing the law concerning service 
connection for disabilities arising from ``combat with the enemy'' 
perhaps the best course is to designate the ``theatre of operations'' 
as the combat zone. Using Iraq as an example, that country would be so 
designated and personnel assigned there, or who transit through as part 
of their duties, are considered to have engaged in combat for VA 
benefits purposes. Logistical staging and resupply points such as those 
found in Kuwait and Qatar, although tax free zones, have not been the 
scene of combat operations and thus personnel assigned to these areas 
would not be considered to have engaged in combat for benefits 
purposes. With such a designation, veterans must still provide 
satisfactory lay evidence consistent with their service.
    This is a complex issue that is worthy of the time and careful 
consideration that this Committee has invested. An incorrect definition 
lends itself to too broad an interpretation that may bestow hard won 
benefits to a small number who have significant injuries but not of a 
combat related nature. Too narrow a definition may prevent those who 
have truly borne the battle to not be properly compensated.
    The last area that I would like to briefly address has to do with 
the title of the bill itself. I would request the Committee's 
consideration for the renaming of this legislation for one with a 
broader context that reflects the impressive intent of clarifying the 
very definition of combat with the enemy. The current title ``Combat 
PTSD Act'' does focus on this important condition, yet the legislative 
language addresses the relationship between combat with the enemy and 
service-connected disabilities.
    Mr. Chairman, this concludes my testimony. I will answer any 
questions you or the Subcommittee may have.

                                 
  Prepared Statement of Barton F. Stichman, Joint Executive Director,
                National Veterans Legal Services Program

    Mr. Chairman and Members of the Subcommittee:
    I am pleased to have the opportunity to submit this testimony on 
behalf of the National Veterans Legal Services Program (NVLSP). NVLSP 
is a nonprofit veterans service organization founded in 1980 that has 
been assisting veterans and their advocates for 29 years. Since its 
founding, NVLSP has represented thousands of claimants before VA 
regional offices, the Board of Veterans' Appeals and the Court of 
Appeals for Veterans Claims (CAVC). NVLSP has trained thousands of 
service officers and lawyers in veterans benefits law, and has written 
educational advocacy publications that thousands of veterans advocates 
regularly use to assist them in their representation of VA claimants. 
On behalf of The American Legion, NVLSP conducts quality reviews of VA 
regional office decisionmaking. Finally, NVLSP is one of the four 
veterans service organizations that comprise the Veterans Consortium 
Pro Bono Program, which recruits and trains volunteer lawyers to 
represent veterans who have appealed a Board of Veterans' Appeals 
decision to the CAVC without a representative.

                               Background

    As this Subcommittee knows, there is a high incidence of Post 
Traumatic Stress Disorder (PTSD) among those who have served in our 
Nation's wars. Last year, the Rand Corporation conducted a study of 
military personnel who had served in Operation Iraqi Freedom or 
Operation Enduring Freedom and found that one out of every five 
servicemembers who served in OIF or OEF--over 300,000 people--suffers 
from symptoms of PTSD.
    The VA is currently receiving more disability benefit claims than 
it has ever received, and there is a huge backlog of cases pending for 
decision. A significant percentage of these claims involve disability 
claims for PTSD.
    Under current law, VA has to expend more time and resources to 
decide PTSD claims than almost every other type of claim. A major 
reason that these claims are so labor intensive is that in most cases, 
VA believes that the law requires it to conduct an extensive search for 
evidence that may corroborate the veteran's testimony that he 
experienced a stressful event during military service. According to the 
VA, an extensive search for corroborating evidence is necessary even 
when the medical evidence shows that the veteran currently suffers from 
PTSD, and mental health professionals attribute the PTSD to stressful 
events that occurred during military service.
    Often there is no corroborative evidence that can be found--not 
because the in-service stressful event did not occur--but because the 
military did not and does not keep detailed records of every event that 
occurred during periods of war in combat zones. Based on our review of 
thousands of VA regional office and BVA decisions, discussions with 
service officers and senior officials from several veterans service 
organizations, and discussions with VA regional office and VA Central 
Office officials, NVLSP believes that the end result is that (1) VA 
expends a relatively great deal of time attempting to obtain 
corroborative evidence in PTSD cases, and (2) after these extensive 
efforts, VA ends up denying many claims that are truly meritorious 
simply because no evidence exists to corroborate the stressful events.
     The Scope of Past Congressional Efforts to Remedy This Problem
    In order to address the problem discussed above, Congress enacted 
38 U.S.C. Sec. 1154(b). As VA interprets that statute, the VA may grant 
service connection for PTSD without corroborative evidence that the 
veteran experienced a stressful event during the period of service if 
(1) the veteran is a combat veteran, and (2) the stressful event took 
place during combat with the enemy.
    The VA regulations implementing 38 U.S.C. Sec. 1154(b) appear in 38 
C.F.R. Sec. 3.304. Section 3.304(d) states:

       (d) Combat. Satisfactory lay or other evidence that an injury or 
disease was incurred or aggravated in combat will be accepted as 
sufficient proof of service connection if the evidence is consistent 
with the circumstances, conditions or hardships of such service even 
though there is no official record of such incurrence or aggravation. 
[Emphasis added].

    Thus, VA interprets the statute to mean that not only must the 
veteran prove that he engaged in combat, the veteran must further 
allege that the stressful event took place during combat. This reading 
is corroborated by 38 C.F.R. Sec. 3.304(f)(1), which states, in 
relevant part that service connected will be awarded ``[i]f the 
evidence establishes that the veteran engaged in combat with the 
enemy'' and the claimed stressor ``is related to that combat . . .''
    Thus, if the evidence establishes that the veteran engaged in 
combat with the enemy and the claimed stressor is related to that 
combat, in the absence of clear and convincing evidence to the 
contrary, and provided that the claimed stressor is consistent with the 
circumstances, conditions, or hardships of the veteran's service, the 
veteran's lay testimony alone may establish the occurrence of the 
claimed in-service stressor.
    These rules help veterans seeking service connection for PTSD if 
they were awarded a Purple Heart or received a specific combat 
decoration or badge (such as the Combat Infantryman Badge). But it 
leaves other veterans with meritorious claims unable to secure service 
connection for PTSD. In other words, as currently worded, 38 U.S.C. 
Sec. 1154(b) does not go far enough in eliminating the need for 
corroboration of a stressful event.
    The problem with the limited reach of scope of 38 U.S.C. 
Sec. 1154(b) is most pronounced with regard to those who served in OIF 
and OEF. Because there are no set battlefield areas in Iraq and 
Afghanistan, and because of the tactics of the insurgents, there is no 
defined area of combat. Quite often, servicemembers in non-combat 
occupations and support roles are subjected to enemy attacks and 
otherwise exposed to traumatic events. These incidents are rarely 
documented in military records, which makes them extremely difficult to 
verify. For example, under the current statute, a soldier traveling in 
a convoy who witnesses an IED attack and is traumatized by dead bodies 
and the sight of body parts, would have to have corroborative evidence 
that the event happened. His sworn testimony and medical diagnoses of 
PTSD would not be enough.

                                H.R. 952

    Because NVLSP knows how difficult it is for deserving veterans to 
prove that these events happened, NVLSP supports a legislative change 
to the entitlement criteria for PTSD. NVLSP supports legislation 
creating a presumption that a veteran suffered from a stressful event 
during service if the veteran served in a combat zone and submits a 
sworn statement that he or she suffered from a stressful event while in 
that combat zone.
    H.R. 952 expands the definition of combat with the enemy to include 
service on active duty in a theater of combat operations (as determined 
by the Secretary in consultation with the Secretary of Defense) during 
a period of war. H.R. 952 would therefore permit OIF and OEF veterans 
to benefit from the favorable presumption of 38 U.S.C. Sec. 1154(b) in 
support of PTSD and other disability claims. For example, a veteran who 
claims he had an accident in Iraq and now suffers from a knee 
disability as a result would not have to prove he suffered trauma to 
his or her knee in Iraq. Also, an OEF veteran who alleged he saw a dead 
civilian while on patrol (not being shot at or shooting at the enemy) 
could also take advantage of the favorable presumption. NVLSP supports 
H.R. 952.
    NVLSP is concerned, however, that VA may interpret the presumption 
created by H.R. 952 to apply only to a veteran who both served in such 
a combat zone and alleges that the event in question occurred during 
combat with the enemy. In our view, this would not be a proper 
interpretation of H.R. 952. Nonetheless, it is possible that VA will 
not see it this way since VA currently interprets the statute that H.R. 
952 would amend to require an allegation that the event in question 
took place during combat with the enemy. In order to avoid the 
possibility of wrongful benefit denials and needless litigation, NVLSP 
recommends that H.R. 952 be amended to make even more clear that the 
presumption of service connection applies when the event in question 
occurred in a combat zone, and regardless whether it occurred during 
formal combat with the enemy.
    Thank you. I would be pleased to answer any questions the 
Subcommittee may have.

                                 
     Prepared Statement of Norman Bussel, National Service Officer,
                      American Ex-Prisoners of War

    Thank you, Chairman Hall and Members of the Subcommittee, for the 
opportunity to testify before you today in support of H.R. 952, a bill 
designed to conclusively define ``Compensation Owed for Mental Health, 
Based on Activities in Theater Post Traumatic Stress Disorder.''
    As a volunteer National Service Officer, accredited by the VA to 
file benefit claims for veterans, I find it so unfair when clients I 
represent: clients who served in combat zones, clients who fought and 
endured enemy attacks, clients diagnosed with PTSD by VA psychologists, 
have their claims denied by the VA because their job titles did not 
reflect their combat experience. A cook, a Seabee, a supply Sgt. are no 
more immune from injury or death than anyone else in a combat zone.
    I would like to present two classic examples of Vietnam veterans, 
both of whom are my clients, whose claims were unfairly turned down by 
the VA because their specific training did not suggest a role in 
combat.
    The first example is about a Seabee named Bob. Bob served two tours 
in Vietnam, the first tour on board a ship and the second on land in a 
combat zone. Following is the diagnosis from his psychologist, a 
nationally recognized specialist who has served in a VA Medical Center 
for more than 32 years:

         ``He talked of events that he was able to describe vividly, 
that reinforced the feeling that he could never feel safe and that he 
could have been dead many times. These intrusive thoughts have become 
worse over the past year and that is the main reason he entered 
treatment. He had tried to bury most of his PTSD problems over the 
years by working hard and by drinking alcohol heavily. His increase in 
symptoms are also associated with the increase in coverage of soldiers' 
deaths in Iraq. This brings him right back to Vietnam.''

    As further proof of Bob's combat role, I submit as evidence the 
following excerpts from a letter, one of many that Bob wrote to his 
wife while serving in Vietnam in 1968. The letters are still in the 
original, postmarked envelopes.
September 1968
         ``It started at two o'clock in the morning with a blast that 
almost threw me out of the rack; then all hell broke loose. They were 
not Viet Cong this time; they were North Vietnamese Regulars. They blew 
up a medical warehouse, two buildings across the street, one building 
in the next compound and about ten rounds in the street in front of our 
compound. Again, no one was hurt here; we must have some kind of good 
luck charm. There is still an N.V. body in the street out front. He has 
two home made bombs on his body, but I left them alone. I wonder how 
long he will lay there before someone moves the body. I found a N.V. 
hand grenade across the street near the body. I didn't disarm it. I 
would say at least two hundred rounds came into the city last night, 
most of them on this side of town, I don't mind telling you I about 
messed in my pants last night. I don't mind the small arms; if they are 
near enough to hit you, you can hit them. The big stuff can't be 
stopped and there is no protection from it.''

    Here, in Bob's own words is his reprise of his life since Vietnam:

         ``My long battle with PTSD has led to divorce; strained 
relations with my children; estrangement from my family and the 
loneliness that resulted from my anti-social behavior. No one could 
understand my pain and I preferred to be alone. The fact that my claim 
for compensation was denied by the V.A., even after a psychologist at a 
V.A. Mental Health Facility diagnosed me with PTSD weighs heavily on my 
mind. If I had been killed in Vietnam, and every day I spent there I 
was in danger of that happening, would my sacrifice have been any less 
because I was in a Construction Battalion? I hope that this injustice 
will soon be rectified.''

    The second example is from Joe, who was trained as a cook in the 
Marines and served in Vietnam from June 1967 until June 1968. When he 
arrived at his assignment in Vietnam, he was told there was no mess 
hall, so he was handed a weapon and became a combat Marine. Here are 
some excerpts from his Statement in Support of Claim:

         ``We were overrun in Happy Valley. We were in the bunkers and 
guys were being killed all around us. I was checking the perimeter a 
little later, when we came under fire and were pinned down for about 8 
hours. It took Medivac helicopters to evacuate us.
         I lost a couple of really good buddies from snipers and 
incoming rocket fire. I had nightmares after that. You could never 
relax, particularly at night since we were always subject to incoming 
fire. It led to a situation when I was always on edge. Of course, when 
I returned, it was impossible to leave the feelings behind. I still 
can't go to the Vietnam Memorial in Washington.
         I'm on medication for seizures, mood swings, anxiety and to 
help me sleep. I still suffer from night sweats, nightmares and 
flashbacks. I have to sit facing a door in any room or restaurant, 
since I must always have a means of escape. My hypervigilance never 
goes away.''

    Although treatment reports from a VA hospital show a diagnosis of 
PTSD, Joe was denied compensation. Here is a portion of the VA report:

         ``Post traumatic stress disorder questionnaire dated August 
31, 2006 showed 2 incidents both of which involved combat patrols which 
would be unlikely for a cook. A search of unit records show your units 
were not involved in combat. Treatment reports, VA Medical Center 
Hudson Valley Health Care System, from August 24, 2005 through April 
18, 2008 show a diagnosis of post traumatic stress disorder.''

    Additionally, the VA acknowledges that on October 6, 2007, a letter 
was received from a buddy who served with Joe in Vietnam and: He did 
observe his fellow Marine with his combat ready equipment (vest, helmet 
and weapons.) He could see him on a six by six truck with his unit 
below on the road to Happy Valley.
    Decisions such as this are deplorable and I know how they affect 
veterans. Sixty-five years ago this month, my B-17 Bomber exploded over 
Berlin and I lost four of my crew who were as close to me as my 
brother. I've struggled with PTSD ever since and survivor guilt is one 
of my strongest stressors. There is no cure for PTSD, but the VA offers 
counseling and medications that make improvement almost a given and 
vast improvement is commonplace.
    To refuse PTSD compensation to veterans because their job titles 
are not synonymous with combat is unconscionable. There's more than the 
money involved. Even more important is the colossal insult of telling a 
combat veteran that he didn't fight for his country. That is an 
unnecessary stressor to stuff into his or her already overflowing load 
of emotional baggage.
    Pass H.R. 952. Eliminate the practice of forcing combat veterans 
diagnosed with PTSD by one branch of the VA, from the task of battling 
another branch in order to obtain their rights.
    Thank you very much, Mr. Chairman.

                                 
     Prepared Statement of Richard Paul Cohen, Executive Director,
           National Organization of Veterans' Advocates, Inc.

    MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
    Thank you for the opportunity to present the views of the National 
Organization of Veterans' Advocates, Inc. (``NOVA'') concerning the 
provisions of H.R. 952, which is also known as `` The COMBAT PTSD Act'' 
and which would amend 38 U.S.C. Sec. 1154(b).
    NOVA is a not-for-profit Sec. 501(c)(6) educational and membership 
organization incorporated in 1993. NOVA is dedicated to training and 
assisting attorneys and non-attorney practitioners who are accredited 
by the Department of Veterans Affairs (``VA'') to represent veterans, 
surviving spouses, and dependents before the VA and who are admitted to 
practice before the United States Court of Appeals for Veterans Claims 
(``CAVC'') and the United States Court of Appeals for the Federal 
Circuit.
    The positions stated in this testimony have been approved by NOVA's 
Board of Directors and represent the shared experiences of NOVA's 
members, as well as my own experience in representing veterans for the 
past 16 years.
                    Sec. 1154(b) NEEDS TO BE AMENDED
    1.  The ``combat presumption'' does not presently provide the 
intended assistance in establishing combat stressors.

      38 U.S.C. Sec. 1154(b) provides as follows:

       In the case of any veteran who engaged in combat with the enemy 
in active service with a military, naval, or air organization of the 
United States during a period of war, campaign, or expedition, the 
Secretary shall accept as sufficient proof of service-connection of any 
disease or injury alleged to have been incurred in or aggravated by 
such service satisfactory lay or other evidence of service incurrence 
or aggravation of such injury or disease, if consistent with the 
circumstances, conditions, or hardships of such service, 
notwithstanding the fact that there is no official record of such 
incurrence or aggravation in such service, and, to that end, shall 
resolve every reasonable doubt in favor of the veteran. Service-
connection of such injury or disease may be rebutted by clear and 
convincing evidence to the contrary. The reasons for granting or 
denying service-connection in each case shall be recorded in full.

    Although section 1154(b) was intended to ease the burden of proof 
imposed upon veterans seeking compensation for injuries, illnesses or 
diseases resulting from combat, not all veterans who were involved in 
combat benefit from this legislation. This is because the VA typically 
bases its determination of whether a veteran engaged in combat by the 
information provided on his or her DD Form 214 (the veteran's discharge 
paper). As a result, a veteran's combat experience is oftentimes 
overlooked because his military occupational specialty (``MOS'') listed 
on his DD Form 214 is not recognized by the VA as a ``combat'' MOS. 
Similarly, a veteran's combat experiences may be overlooked if the 
veteran's DD Form 214 fails to list badges, medals, or decorations 
awarded to the veteran, such as the Combat Infantryman Badge, Combat 
Action Badge or Purple Heart, which the VA readily recognizes as 
signifying combat service. \1\
---------------------------------------------------------------------------
    \1\ See, VA Adjudication Procedures Manual M21-1 Manual Rewrite, 
(Manual M21-1MR), Part IV, Subpart ii, 1.D.13 (d); West v Brown, 7 Vet. 
App. 70,76 (1994).
---------------------------------------------------------------------------
    A servicemember's MOS and medals do not always convey a veteran's 
entire military experience, including incidents involving combat 
exposure. Indeed, engineers, mechanics, clerks and quartermasters 
frequently followed their units into battle to provide support, 
underwent deadly mortar or rocket attacks at their bases, or carried 
out non-MOS duties, such as convoy and security details, all which 
exposed them to hostile fire. After a battle, servicemembers, 
regardless of their MOS, handled shattered and lifeless bodies of their 
comrades. In reviewing U.S. presence in Vietnam, observers noted that, 
``it appeared that the whole country was hostile to American forces. 
The enemy was rarely uniformed, and American troops were often forced 
to kill women and children combatants. There were no real lines of 
demarcation, and just about any area was subject to attack.'' \2\ The 
same is true in the combat theaters of Iraq and Afghanistan in that 
there are virtually no non-combat assignments and almost all 
servicemembers deployed are attacked, shot at with small arms, and 
receive incoming artillery, rocket or mortar fire. \3\
---------------------------------------------------------------------------
    \2\ Williams, Tom, Psy. D., Editor, Post-Traumatic Stress 
Disorders: a handbook for clinicians, Disabled American Veterans, 1987.
    \3\ Hodge, Charles W., et al, Combat Duty in Iraq and Afghanistan, 
Mental Health Problems, and Barriers to Care, New England Journal of 
Medicine, Vol. 351, No.1, July 2004, Table 2, p.18
---------------------------------------------------------------------------
    As Chairman Hall aptly observed, ``The nature of wartime service 
has changed'' since the 1945 Rating Schedule required a wartime service 
injury to have been received ``in actual combat in an expedition or 
occupation . . . (now) no place is safe.'' \4\
---------------------------------------------------------------------------
    \4\ Opening statement, March 24, 2009.
---------------------------------------------------------------------------
    Ignoring the changing nature of wartime service and the remedial 
intent of 1154(b), the VA continues to consider evidence of 
participation in a particular ``operation'' or ``campaign'' to be 
insufficient to ``establish that a veteran engaged in combat.'' \5\ 
Additionally, the VA views the absence from a veteran's service records 
of any ``ordinary indicators of combat service'' as sufficient to 
``support a reasonable inference that the veteran did not engage in 
combat.'' \6\
---------------------------------------------------------------------------
    \5\ See, VAOPGCPREC 12-99, October 18, 1999.
    \6\ See, VAOPGCPREC 12-99, October 18, 1999, discussion point 19.

    2.  There is ample justification for clarifying the definition of 
---------------------------------------------------------------------------
``combat with the enemy'' in section 1154(b).

    NOVA supports H.R. 952, which proposes to amend section 1154(b) so 
that the ``combat presumption'' would apply to all servicemembers who 
have been deployed to a combat zone. For example, the VA denied the 
``combat presumption'' to a veteran, with a MOS of Field Wireman, who 
claimed to have come under fire while part of a Forward Observer Team 
assigned to the 159th Field Artillery Battalion in Korea, during the 
Korean war. Under the proposed legislation, the veteran would receive 
the combat presumption because he served within the combat zone during 
the Korean war. The amendment is long overdue because the current 
version of 1154(b) does not define ``theater of combat operations'', 
nor does the traditional concept of ``theater of combat'' apply to the 
current wars in Iraq and Afghanistan.
    When Ivan De Planque testified on behalf of the American Legion, he 
graphically described a situation for which this amendment is 
desperately needed. \7\ A soldier stationed in the Green Zone in Iraq, 
without a combat MOS, may permanently disable her knee running for 
cover during a mortar attack, but lack sufficient service records to 
document the injury. Under the current statute, this servicemember 
would be denied the combat presumption and, thus, benefits for her knee 
injury. Furthermore, scientific studies show many servicemembers suffer 
from PTSD due to their service in a combat zone, regardless of whether 
or not they served in the traditional roles accepted by the VA as 
indicative of combat service. \8\
---------------------------------------------------------------------------
    \7\ Testimony, March 24, 2009, House Committee on Veterans' 
Affairs, Subcommittee on Disability Assistance and Memorial Affairs.
    \8\ Institute of Medicine of the National Academies, Gulf War and 
Health, Volume 6, Physiologic, Psychologic, and Psychosocial Effects of 
Deployment-Related Stress, 2008, page 319

    3.  H.R. 952 should also amend section 1154(b) to create a 
statutory presumption of service connection by eliminating the need for 
---------------------------------------------------------------------------
proof of medical nexus.

    Amending section 1154(b), as proposed by H.R. 952, is one large 
step in the right direction. As discussed above, the amendment will 
broaden the traditional definition of ``combat'' to include ``theater 
of combat operations,'' thereby easing the burden of proof for 
servicemembers who incur or aggravate an injury or illness while on 
active duty in a theater of combat operations. But to genuinely aid 
servicemembers, section 1154(b) must undergo additional amendments to 
eliminate other key impediments to veterans.
    For example, as it currently exists or with the changes H.R. 952 
would bring, section 1154(b) does not provide a presumption of service 
connection for any combat-related injuries, illness, or diseases. For 
the VA to grant direct service-connected compensation for a veteran's 
claimed disabilities, three elements must be established: (1) the 
veteran has a current disability; (2) there was an in-service incident 
or injury; and (3) there is a medical link between the current 
disability and the in-service event.
    Unfortunately, Congress is understood to have stated, with respect 
to the enactment of Section 1154(b), that ``a statutory presumption of 
service-connection is not intended.''\9\ In accordance with that 
declaration, section 1154(b) has been interpreted as relieving the 
veteran's evidentiary burden only as to the second element--in-service 
incurrence of an incident or injury and not to the third requirement 
for a medical nexus. Collette v. Brown, 82 F.3d. 389,392 (Fed. Cir. 
1996); Dalton v. Nicholson, 21 Vet. App. 23 (2006). In short, 1154(b) 
creates a presumption of service incurrence, but no presumption of 
service connection. As a result, many veterans' meritorious claims are 
denied.
---------------------------------------------------------------------------
    \9\ H.R. Rep. No. 1157, 77 Cong., 1st Sess2 (1941)
---------------------------------------------------------------------------
    To this day, the reality is that the VA routinely denies claims for 
benefits based on PTSD filed by veterans who, during a time of war, 
served in a theater of combat and were repeatedly ambushed and 
subjected to repeated mortar attacks because there is no medical 
opinion using specific ``buzz words'' and linking his present diagnosis 
and treatment for PTSD to in-service combat-related stressors that are 
not clearly documented in his military record. Similarly, a veteran, 
who opted to defer his discharge exam and who is unable to persuade a 
doctor to provide a medical nexus opinion, will receive from the VA 
initial and repeated denials of his claim for benefits based on a 
permanent orthopedic disability. His claim is not improved by evidence 
that he injured his ankle while engaging in combat during an ambush in 
Vietnam, and that he was patched up by an un-named medic in the field 
because he lacks medical nexus evidence.
    To avoid these injustices, NOVA suggests that section 1154(b) be 
amended to read as follows:

       (1) In the case of any veteran who engaged in combat with the 
enemy in active service with a military, naval, or air organization of 
the United States during a period of war, campaign, or expedition, the 
Secretary shall accept as sufficient proof of the incurrence or 
aggravation of such injury or disease, if consistent with the 
circumstances, conditions, or hardships of such service, 
notwithstanding the fact that there is no official record of such 
incurrence or aggravation in such service, and, to that end, shall 
resolve every reasonable doubt in favor of the veteran.

       (2)(A) Service-connection of any present injury or disease 
alleged to be incurred or aggravated during combat with the enemy shall 
be presumed without the necessity of further proof of medical nexus or 
proof of connection to injury or disease incurred or aggravated during 
combat with the enemy. (B) Such service connection may be rebutted by 
clear and convincing evidence to the contrary. (C) The reasons for 
granting or denying service-connection in each case shall be recorded 
in full.

       (3) For the purposes of this subsection, the term `combat with 
the enemy' includes service on active duty--(A) in a theater of combat 
operations (as determined by the Secretary in consultation with the 
Secretary of Defense) during a period of war; or (B) in combat against 
a hostile force during a period of hostilities.

    4.  The proposed amendments to section 1154(b) should result in a 
cost savings to the VA, rather than in additional costs, and would not 
damage the integrity of the system.

    Ranking Republican Member, Doug Lamborn has raised concerns about 
damage to the integrity of the system and the CBO's 2008 estimate that 
the legislative amendment to section 1154(b) would cost over four 
billion dollars. \10\
---------------------------------------------------------------------------
    \10\ Opening Statement on March 24, 2009.
---------------------------------------------------------------------------
    In March 2009, the VA announced amendments to 38 C.F.R. 
Sec. 3.304(f) which, effective October 29, 2008, eliminated the 
requirement that a veteran submit evidence corroborating the occurrence 
of a claimed in-service stressor in connection with those situations in 
which PTSD had been diagnosed in service. \11\ In the announcement of 
the final rule, the VA observed that this would allow the agency to 
``more quickly adjudicate claims for service connection for PTSD for 
those veterans.'' This final rule was also reported as a non-
significant regulatory action under Executive Order 12866.
    The VA should be able to realize even greater cost savings by 
implementing the suggested amendments to section 1154(b). The 
amendments will increase efficiency in the adjudication of claims, 
eliminate administrative costs associated with appeals of wrongly 
denied claims, eliminate the need for many VA medical examinations, and 
eliminate the costs and time involved in obtaining records to confirm 
that veterans were indeed involved in combat with the enemy while they 
served, for example, in the jungles of Vietnam or in the Green Zone in 
Iraq. \12\
---------------------------------------------------------------------------
    \11\ Federal Register, Vol.74, No. 60, Tuesday, March 31, 2009, 
p.14491
    \12\ See, requirements set forth in Statement of Dean G. 
Kilpatrick, Ph.D., Committee on Veterans' Compensation for Post 
Traumatic Stress Disorder, IOM, testimony on March 24, 2009.
---------------------------------------------------------------------------
    Additionally, our veterans who served in a theater of combat 
operations deserve a benefits system that adjudicates their claims 
promptly. They answered the call to duty; now so must we. If the VA 
were to promptly grant a combat veteran's service-connection claim for 
their combat-related disabilities, the resulting appropriate treatment 
and financial compensation for that veteran will lower his frustration 
and anxiety levels, will lessen his need to self-medicate with alcohol 
and drugs, will improve his willingness to receive VA medical 
treatment, and might even lessen the likelihood of suicide. \13\
---------------------------------------------------------------------------
    \13\ Kang, Han K., Dr. P.H., et al, The Risk of Suicide and Other 
Traumatic Deaths among U.S. Veterans of Operations Iraqi Freedom and 
Enduring Freedom,2007; Alvarez, Lizette, After the Battle, Fighting the 
Bottle at Home, July 8, 2008, New York Times.
---------------------------------------------------------------------------
    Allegations that amendments will result in fraudulent claims are 
unfounded. The data suggest just the opposite. There is evidence that 
receiving benefits for service-connected PTSD actually encourages 
veterans to seek mental health treatment; there is little direct 
evidence that receipt of compensation has secondary gain effects on 
PTSD treatment outcomes; and there is no evidence of significant 
misreporting or exaggeration of PTSD symptoms by veterans. \14\
---------------------------------------------------------------------------
    \14\ Veterans' Disability Benefits Commission, Honoring the Call to 
Duty: Veterans' Disability Benefits in the 21st Century, October 2007, 
pages 149,151.

                                 
           Prepared Statement of Bradley G. Mayes, Director,
  Compensation and Pension Service, Veterans Benefits Administration,
                      U.S. Department of Veterans

    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to testify today on H.R. 952, the ``COMBAT PTSD Act.'' I 
also would like to acknowledge the Chairman and his leadership in 
helping our veterans with posttraumatic stress disorder (PTSD).
    VA continues to develop and enhance its nationally recognized PTSD 
treatment and research programs, and to improve the quality of VA 
health care. VA's National Center for PTSD works to advance the 
clinical care and social welfare of veterans through research, 
education and training on PTSD. Those advances are used to guide 
clinical program development in collaboration with the Office of Mental 
Health Services. VA recently launched a new website at 
www.oefoif.va.gov/familysupport.asp to provide consolidated information 
for returning combat veterans and their families. VA also offers 
treatment for veterans with PTSD in VA medical centers, clinics, 
inpatient settings, and residential rehabilitation programs. Vet 
Centers offer a variety of programs to help veterans cope with issues 
related to their military experiences in war, which include specialized 
counseling, outreach and referral services.
    All initial disability claims filed by returning combat veterans 
are given priority handling by our regional offices. PTSD is the third 
most frequently service-connected disability for these veterans. As of 
the end of February of this year, 53,079 veterans of the current 
conflicts are service connected for PTSD.
    The short title of the legislation we are discussing today 
indicates that the intent behind it is principally to ease the burden 
on veterans in proving their service-connection claims based on PTSD, 
which is a goal that the Department shares. However, we are concerned 
about the scope of the bill and also believe it would unduly complicate 
the adjudication process.
    In furtherance of our mutual objective of simplifying the 
adjudication of wartime veterans' PTSD claims, the Department currently 
has under development an amendment to our regulations to liberalize in 
certain cases the evidentiary standards for establishing an in-service 
stressor for purposes of service connecting PTSD. This amendment would 
relax in some situations the requirement for corroborating evidence 
that a claimed in-service stressor occurred. We also recently completed 
a rulemaking that eliminated the requirement for evidence corroborating 
the occurrence of a claimed in-service stressor if PTSD is diagnosed in 
service.
    Because the scope of H.R. 952 is so broad and its implications so 
far reaching, VA strongly prefers regulation rather than any 
legislation at this time. This more focused approach enables VA to 
target the unique challenges of conditions such as PTSD without 
detracting from the overall efficiency and integrity of the claims 
adjudication process. Moreover, regulation allows greater efficiency 
and flexibility as we gain further insight into how best to respond to 
the conditions and circumstances experienced by our returning veterans.
    Current law, section 1154(b) of title 38, United States Code, 
provides a relaxed evidentiary standard that facilitates a combat 
veteran's establishment of service connection for disease or injury 
alleged to have been incurred in or aggravated by certain active 
service. Specifically, section 1154(b) provides that, in the case of 
any veteran who engaged in combat with the enemy in active service 
during a period of war, campaign, or expedition, VA shall accept as 
sufficient proof of service connection of any claimed disease or injury 
satisfactory lay or other evidence of service incurrence or 
aggravation, if consistent with the circumstances, conditions, or 
hardships of such service, notwithstanding the absence of an official 
record of such incurrence or aggravation. In short, section 1154(b) 
allows a combat veteran to establish the incurrence or aggravation of a 
disease or injury in combat service by lay evidence alone. However, to 
be afforded this relaxed evidentiary standard, the veteran must have 
``engaged in combat with the enemy.'' Furthermore, the relaxed 
evidentiary standard does not apply to the predicate fact of engagement 
in combat with the enemy.
    Historically, evidence of combat engagement with the enemy required 
evidence of personal participation in events constituting an actual 
fight or encounter with a military foe or hostile unit or 
instrumentality. Presence in a combat zone or participation in a 
campaign alone did not constitute engagement in combat with the enemy 
for purposes of the relaxed evidentiary standard.
    The reason for relaxing the evidentiary requirements for combat 
veterans was that official documentation of the incurrence or 
aggravation of disease or injury was unlikely during the heat of 
combat. Combat veterans should not be disadvantaged by the 
circumstances of combat service in proving their benefit claims. Under 
the relaxed requirements, satisfactory lay or other evidence, if 
consistent with the circumstances, conditions, or hardships of the 
veteran's service, is sufficient to establish that a disease or injury 
was incurred in or aggravated by combat service.
    H.R. 952 would extend the relaxed evidentiary standard to certain 
veterans who did not engage in combat with the enemy during a period of 
war. It would require that a veteran who served on active duty in a 
theater of combat operations during a period of war or in combat 
against a hostile force during a period of hostilities be treated as 
having ``engaged in combat with the enemy'' for purposes of 
establishing service connection for disease or injury alleged to have 
been incurred in or aggravated by such service. H.R. 952 would also 
require that VA, in consultation with the Department of Defense (DoD), 
determine what constitutes a theater of combat operations. DoD defines 
theater of operations broadly to encompass geographic operational areas 
of significant size defined for the conduct or support of specific 
military operations. An area designated as a theater of combat 
operations in consultation with DoD would encompass all veterans who 
served on active duty in that theater during a period of war, whether 
or not they were actually involved in combat.
    Service in a theater of combat operations does not necessarily 
equate to engaging in combat with the enemy and does not in many cases 
present the same difficulties encountered by combat veterans when later 
pursuing compensation claims. So while we share the goals of this 
legislation to improve the processing of PTSD claims, we are concerned 
that it would extend the relaxed evidentiary standard to veterans who 
served in a theater of combat operations regardless of whether their 
service involved combat or was even near actual combat and regardless 
of whether the circumstances of their service were of the kind that 
would inhibit official documentation of incurrence or aggravation of 
injury or disease.
    We also are uncertain of the scope of H.R. 952, which is broader 
than PTSD claims and provides a relaxed evidentiary standard for all 
types of physical and psychological diseases and injuries allegedly 
incurred in or aggravated by service in a theater of combat operations. 
In this regard, the subjective psychiatric symptoms associated with a 
traumatic experience are not always immediately manifested or apparent 
and thus are not subject to ready documentation. For example, a veteran 
who witnesses a traumatic event may show no immediate observable signs 
of the mental trauma resulting from the in-service incident. On the 
other hand, a physical injury is more readily observable to lay 
witnesses and more likely to have been documented even in a combat 
theater.
    Finally, H.R. 952 may unduly complicate the adjudication process by 
requiring separate determinations of whether a veteran served on active 
duty in a theater of combat operations during a period of war or served 
on active duty in combat against a hostile force during a period of 
hostilities, questions that VA typically does not address. The need to 
make such determinations may delay claim processing for all veterans.
    For these reasons, we prefer our regulatory approach and look 
forward to working with this Committee, and this Subcommittee in 
particular, as we develop these initiatives and improve treatment for 
our veterans with PTSD.
    We did not have sufficient time before this hearing to prepare an 
estimate of the cost of enactment of H.R. 952. With your permission, we 
will provide our estimate to the Subcommittee in writing for the 
record.

                                 
            Statement of Robert Kavana, Croton-on-Hudson, NY

    Chairman Hall and Members of the Subcommittee, I want to thank you 
for giving me the privilege of speaking to you today about an issue 
that affects many combat veterans, myself included. The Department of 
Veterans Affairs has been denying compensation for post traumatic 
stress disorder, PTSD, to veterans who served in combat zones, fought 
and endured enemy attacks, yet had their claims turned down because 
their jobs did not classify them as fighting troops.
    For example, I was in a U.S. Naval Mobile Construction Battalion in 
Vietnam and although I came under attack frequently, the VA disallows 
my claim of being in combat. This flies in the face of the statement by 
my psychologist, Dr. Kenneth Reinhard, who has more than 32 years of 
service with the VA, and is Chief of Anxiety Disorders at the Montrose, 
NY VA Medical Center. I would like to quote briefly from Dr. Reinhard's 
notes on my condition:

       ``Focus of session is a cognitive/behavioral approach to reduce 
acute PTSD symptoms and increase patient's quality of life. He talked 
of events that he was able to describe vividly that reinforced the 
feeling that he could never feel safe and that he could have been dead 
many times. These intrusive thoughts have become worse over the past 
year and that is the main reason he entered treatment. He had tried to 
bury most of his PTSD problems over the years by working hard and by 
drinking alcohol heavily. His increase in symptoms are also associated 
with the increase in coverage of soldiers deaths in Iraq. This brings 
him right back to Vietnam.''

    In its most recent denial of my claim requesting service connection 
for my PTSD, the explanation given was, ``The available evidence is 
insufficient to confirm that the veteran was actually engaged in combat 
or was a prisoner of war. The service department was not able to 
corroborate the stressors.'' Also ``the service medical records were 
negative as to any chronic nervous condition.'' Active service 
personnel almost never report anxiety disorders while serving, 
particularly in a combat zone. The stress is constant and universal. 
There is no point in reporting it. This bill would help those of us who 
were exposed to combat conditions no longer have our legitimate medical 
and psychological claims summarily rejected.
    Now, I would like to read a note from the National Service Officer 
who filed my claim with the VA, Norman Bussel, who was a POW in Germany 
during World War II and has battled PTSD for 65 years. He also includes 
three excerpts he selected from letters I sent home to my wife from 
Vietnam in 1968:
    ``In filing PTSD claims for combat veterans, National Service 
Officers are obligated to elicit information from the veteran that 
details how the stressors that he experienced in combat led to the PTSD 
symptoms he suffers from today.
    ``In filing the Statement of Claim, we must ask the veteran to 
revisit the combat situations that triggered the psychological trauma 
which resulted in his PTSD diagnosis by V.A. mental health 
professionals at Montrose VAMC. This is a forced walk through the 
valley of hell for the veteran and many simply cannot endure the pain 
of revisiting these horrible scenes. That is why some statements are 
more lengthy than others.
    ``In Mr. Kavana's case, we have a very modest individual who 
refused to portray himself as hero and gave us an unadorned reprise of 
the stressors he experienced. Fortunately, he was able to locate 
letters written to his wife more than forty years ago and they are far 
more graphic in describing his time in combat in the earthy language of 
a member of the U.S. Navy.
    ``I submit as evidence the following excerpts from letters Robert 
Kavana wrote to his wife while serving in Vietnam in 1968.''

                               __________

    November 19, 1968

       ``Last night the Viet Cong decided they could not pass up 
another Saturday night in town. Not one round hit within fifty yards of 
us and they left the hospital along for a change. I was awake when it 
started about two forty-five, they kept it up until sunup. The whole 
area was pretty hard hit . . . I would have a couple of drinks to see 
if it would help me sleep, but Charlie may be back tonight. I am sure 
he didn't use all his new supplies last night. Last night I had 
everyone up in about 2 minutes. There is rifle fire every night, but 
when the VC come in force, you can tell even before the rockets come, 
but the increased small arms fire.''

    September 1968

       ``Boy, when they say we are going to get it, they mean it. I 
almost got my VC, but I could not tell the good guys from the bad until 
the sun came up and then they were too far away. They just now flushed 
a VC out from across the street. The firing is still going on. I think 
the hospital took a couple of rounds, rocket or mortar. . . They blew 
an ambulance and killed a guard at the hospital. An Army Medic came 
running out and told us to stay away because there were two plastic 
charges under two other trucks. I went to disarm them.''

    September 1968

       ``It started at two o'clock in the morning with a blast that 
almost threw me out of the rack; then all hell broke loose. They were 
not Viet Cong this time; they were North Vietnamese Regulars. They blew 
up a medical warehouse, two buildings across the street, one building 
in the next compound and about ten rounds in the street in front of our 
compound. Again, no-one was hurt here, we must have some kind of good 
luck charm. There is still a N. VA body in the street out front. He has 
two home made bombs on his body, but I left them alone. I wonder how 
long he will lay there before someone moves the body. I found a N.V.A. 
hand grenade across the street near the body. I didn't disarm it. I 
would say at least two hundred rounds came into the city last night, 
most of them on this side of town, I don't mind telling you I about 
shit in my pants last night. I don't mind the small arms; if they are 
near enough to hit you, you can hit them. The big stuff can't be 
stopped and there is no protection from it.''

    My long struggle with PTSD has led to divorce; strained relations 
with my children; estrangement from my family and the loneliness that 
resulted from my anti-social behavior. No one could understand my pain 
and I preferred to be alone. The fact that my claim for compensation 
was denied by the V.A., even after a psychologist at a VA Mental Health 
Facility diagnosed me with PTSD weighs heavily on my mind. If I had 
been killed in Vietnam, and every day I spent there I was in danger of 
that happening, would my sacrifice have been any less because I was in 
a Construction Battalion? I hope that this injustice will soon be 
rectified. Time is growing short. I thank you for hearing me.

                                 
                Statement of Rebecca I. Nava Kileen, TX

    My name is Rebecca I. Nava, and I am an Army veteran who was part 
of Team Lioness in Ramadi, Iraq in 2003-2004. I served with the 1st 
Engineer Battalion, 1st Infantry Division out of Fort Riley, Kansas. I 
was in the Army for 8 years as a 92Y, a Unit Supply Specialist.
    I joined the Army for college money because my parents couldn't 
afford to send two kids to college at the same time. I also wanted to 
do something different than everybody else. I was born and raised in 
New York City, and my parents are from Puerto Rico. I have a daughter 
who just turned three.
    My Military Occupational Specialty (MOS) consisted of ordering 
supplies, and maintaining accountability and serviceability of 
sensitive military equipment. During my career I only went to a couple 
of places, unlike others. I have been to Ft. Irwin at the National 
Training Center and to Camp Carol, Korea, Ramadi, Iraq, and back to 
Fort Riley, Kansas.
    During my tour in Iraq, we did the jobs that we were trained to do. 
We also did convoys to pick up supplies for our unit or to transport 
soldiers, conducted raids with our male counterparts and we did the 
Lioness missions. We were there from September 2003 through September 
2004. When we would go out on Lioness missions, we would go out in 
teams of two with about 6-12 guys each, sometimes more. We would try 
not to get too overwhelmed over these missions, but sometimes I was 
deeply touched by the living standards of the Iraqi people and how they 
are dressed, asking for food and water. But we would go out on these 
missions to help the guys out as far as looking for the insurgents. We 
would help calm the women and children. We would search them because 
American men couldn't search them due to Islamic culture. We would give 
the children candy, toys, school supplies and other things to calm them 
down so that the women would calm down and we could search them. At 
times they would fight us. I guess they still weren't sure if we were 
females due to the uniforms and gear we were wearing. We would take our 
Kevlar off and they would be surprised. Then they would try to talk to 
us or just be so surprised with our skin, hair, and everything else, 
because as American women we looked so different from them.
    On December 31st, 2003, New Years Eve, we went out on a Lioness 
Mission, in which we did a Traffic Control Point (TCP) on a road in the 
middle of Ramadi, and after that we did a short ``knock and greet.'' I 
came back to our billet so I could get a couple of hours of sleep 
before I had to get back up and go on a convoy to Baghdad International 
Airport (BIOP) to take and pick up soldiers from leave. But I didn't 
make it to the airport because my vehicle, a 6x6, 5 ton, M923 cargo 
truck, ended up flipping over. My driver, who was my supervisor, was 
driving and lost control of the vehicle because we had a slinky motion 
going on within the convoy. She was trying to catch up to the convoy 
but the road wasn't one of the best. It was full of pot holes.
    There were three in the cab of the vehicle; myself, my supervisor, 
Sgt. Patricia Moreno, and Sgt. Dennis Corral. There were about 13 
people in the back of the truck, with gear and weapons getting ready to 
go on R&R leave. When Sgt. Moreno started to lose control of the 
vehicle, we went off into the desert and started to do a couple of 
360's donuts in the desert. She fell out of the vehicle and sustained 
some minor injuries; however, Sgt. Corral and I, along with the people 
in the back, were still inside the vehicle. We started to flip, and I 
can remember that Sgt. Corral started to scream ``ROLL OVER!'' ``ROLL 
OVER!'' I could hear the people in the back screaming and equipment 
flying around. I remember seeing my life flash before my eyes, and 
hearing Sgt. Corral screaming ``Please help me, Please help!'' Then I 
felt him squirming, trying to see if he could get out, but he kept 
hurting me during that process. Then it got quiet in the cab. Later, I 
felt the truck being lifted up to help the people in the back to get 
out and to let a female out who was pinned down by the side rails of 
the 5-ton cargo truck. The personnel helping us out of the vehicle had 
to cut my seatbelt off to be able to get me out of the cab. My weapon 
was damaged during this, as were most of the others. I had the imprint 
of the sappi plates on my back. My legs were over my shoulders; 
literally my feet were on the back of my head as I was told. I had 
busted my eyebrow, for which I had to receive some stitches. I had no 
feeling in my legs for a couple of days. I believe it was the day after 
the accident, I was trying to call my husband, who was in my unit, in 
the 1st Engineer Battalion, same base camp (Camp Junction City) just a 
different company, to let him know that I was still alive and ok and to 
call my mom. Anyway, since I couldn't get in touch with my husband, I 
decided to call my unit and talk to my chain of command and let them 
know where I was and that I was still alive. That's when they told me 
that Sgt. Corral had passed away shortly after the accident. I had 
noticed that his body was blue already when they pulled him out of the 
vehicle. During the time I was in the hospital in Baghdad, I saw a 
Commander, a 1st Sgt., the operations Sgt., and one of the mechanics 
from our Bravo Co. being wheeled in after a Vehicle Borne Improvised 
Explosive Device (VBIED). It was traumatizing for me, on top of the 
accident, because I knew these people pretty well.
    I was with that unit for about a month before I went back to my 
unit due to my vehicle breaking down at a check point. They told me to 
get my vehicle fixed and catch the next convoy. The next convoy was 
with our Bravo Co., and that's where those people that died during the 
VBIED were from.
    During my stay at the hospital, I told them that I had lots of back 
pain, leg pain, that I had no feeling in my legs; they felt numb. My 
right hip had pain also, and they kept me pretty well medicated to 
relieve the pain. Shortly after my discharge from the hospital back to 
my unit, I got off the medication so that I wouldn't become dependent 
on it and kept taking it easy until I recovered. The stress of combat I 
saw and my accident made it impossible for me to go back to work in my 
supply room, or to deal with my Supply Sgt., due to the nightmares I 
was having about the roll over.
    To this day, a little over 5 years now, I still have nightmares 
about the accident and I have Sgt. Corral's last words playing in my 
mind. When I do, I wake my husband up and we talk about it, unless he 
is not home since he is still active duty. If he isn't there, I turn on 
the television since I can't sleep afterward.
    About a month after the rollover accident, I was in a logistical 
Convoy to Camp Anaconda, a Theater Distribution Center in Balad, Iraq. 
We never got to make it up there due to our convoy being ambushed by 
the enemy. Because my vehicle was the first vehicle after the gun 
trucks, we got hit. The enemy threw grenades at our convoy and hit our 
vehicle with AK-47 rounds and various other weapons. When one of the 
rounds hit the vehicle, a piece of metal came off and ended up hitting 
my driver, Sgt. Osvaldo Nuin, a fellow Supply Sgt., in the hand. He 
received a couple of pieces of shrapnel in his left hand and, once we 
got out of the kill zone, I patched him up and tried to control the 
bleeding until we could get a medic to come and help him. I was only 
trained as a Combat Life Saver (CLS), to render basic aid until an 
official medic could take care of the servicemember.
    While we were receiving all the shooting, the gunner and the driver 
for the gun truck in front of my vehicle also received some shrapnel 
and had some bleeding, and I patched them up until they could get some 
better aid from the actual medic. Once I finished doing that, I started 
to hear some more gun shots moving closer and closer to where we were 
separated from the rest of the convoy. Then we saw the enemy pop up and 
start shooting at us and we started to shoot back at him. We were 
shooting back at this person, seeking cover and doing everything 
possible to protect ourselves and the others with us. Shortly after we 
started shooting at the enemy, he fell. We don't know who actually 
killed him due to multiple people shooting. We were just glad that we 
were all alive after that! After all that we did, we regrouped with the 
rest of the convoy and called for a medivac for the people who needed 
it. We went back to the base camp to turn in our vehicles to 
maintenance due to all the bullet holes and everything, complete our 
sworn statements, and do round count.
    I kept on doing Lioness missions after that. We would go out with 
the Infantry Battalion or the Field Artillery battalion. During these 
missions, we would see all types of things: women being treated so 
horrible, kids living in horrible conditions. Toward the end, we went 
to one house and we, as females, were at the end of the stack of 
military personnel going into the house. Well, we knew this house was 
occupied and, shortly after we busted down the door, we saw this guy 
having sex with his daughters. He had a few daughters and they were 
lined up against the wall, I guess waiting for their turn. We made him 
stop and get off the young girl and told her to get dressed. We 
searched the house and asked questions. I don't remember if we took him 
in or not.
    April 2004 was one of the worst months of our deployment. That's 
when we had the most injuries and deaths. Our battalion had the most 
deaths in the entire Brigade. We had a total of 10 deaths. We would get 
ready for missions as back support and would sit listening to the radio 
to find out what was going on out in the battle field. We would go out 
on Lioness missions during this time and do patrols with the guys for 
hours through the town in which we handed out flyers in Arabic.
    I have nightmares and trouble sleeping due to what I saw and heard 
and went through during this deployment. I would talk to my husband, my 
family and other people in my unit and we would try to console each 
other and try to help each other out during rough moments. We did the 
best we could.
    After I got out of the military in March 2008, I applied for VA 
disability and I am currently on my third appeal. When I received the 
paperwork back from VA, it stated that they are still only giving me a 
20 percent total disability rating; 10 percent for my feet and 10 
percent for my back. VA indicated that most of the stuff I put down on 
my claim is not service related. They told me that they can't give me 
anything for my hearing problems because I was a logistician, or for 
Post Traumatic Stress Disorder because I never received a Combat Action 
Badge (CAB) due to the fact that the person who was collecting them for 
one of my incidents shafted me and took my statements and used them for 
himself.
    I was talking to my husband about the response I received from VA 
on my appeal. I was wondering how they could tell me that I don't have 
this or suffer from that. I was thinking to myself that they didn't 
deploy with us, they didn't go through the same thing that I went 
through in Iraq, and they didn't see the same things that I saw. Some 
of them never were in the military!
    I am currently still appealing my claim and working to be 
compensated for my disabilities. I am also working on getting an MOS 
identifier to be added to female's MOS's for participating in the 
Lioness program.
    This concludes my testimony. Thank you for this opportunity to tell 
some of my story.

                                 
   Statement of Paul J. Tobin, President and Chief Executive Officer,
             United Spinal Association, Jackson Heights, NY
                                          United Spinal Association
                                                Jackson Heights, NY
                                                     April 27, 2009
    Expanding Opportunities for Veterans and All Paralyzed Americans
The Honorable Bob Filner
Chairman
U.S. House Committee on Veterans Affairs
335 Cannon House Office Building
Washington, DC 20515
                     By Facsimile and Regular Mail
Re: Support for H.R. 952, The COMBAT PTSD Act of 2009

Dear Chairman Filner:

    As a national veterans service organization, United Spinal 
Association and its veterans service program, VetsFirst, we wish to 
express our strong support for the Compensation Owed for Mental Health 
Based on Activities in Theater Post-traumatic Stress Disorder Act of 
2009 (the COMBAT PTSD Act, H.R. 952). The passage and implementation of 
this legislation will dramatically improve the lives of in-country 
veterans of all eras who suffer from mental disabilities incurred as 
the result of their military service, as well as those of their loved 
ones.
    Currently, VA regulations make it unduly burdensome for veterans 
without documentary evidence of combat service to prevail in claims for 
service connection for PTSD. Even with a confirmed diagnosis of PTSD 
and medical nexus evidence that such PTSD is the result of a stressor 
during military service, if there is no official documentation to 
corroborate a veteran's assertion that he or she was involved in a 
combat situation, service connection will be denied. Without an award 
of service connection, veterans with PTSD remain ineligible for VA 
mental health care, as well as disability compensation and ancillary VA 
benefits.
    The Act would amend 38 U.S.C. Sec. 1154(b), which currently 
provides that in the case of a veteran ``who engaged in combat with the 
enemy'' the VA must accept as proof of service connection the veteran's 
assertion of the incident(s) that resulted in the incurrence or 
aggravation of any disease or injury, provided that the asserted 
stressor is consistent with the ``circumstances, conditions, or 
hardships of such service''. In such cases, the absence of official 
records to corroborate the incident(s) will not preclude an award of 
service connection. The problem has been the VA's narrow construction 
of ``engaged in combat with the enemy''. Under this construction, the 
VA requires that in order for a veteran to receive the benefit of the 
application of Sec. 1154(b), there must be documentary evidence that 
the veteran was involved in a confrontation with hostile forces. Such 
evidence is generally in the form of a military occupational specialty 
or other designation that necessarily implies combat (e.g., 
infantryman), an award or decoration that signifies combat service 
(e.g., Combat Infantryman Badge, Combat Action Ribbon, Purple Heart or 
Bronze/Silver Star), or the statement of a buddy who served alongside 
the veteran in direct combat. Where a veteran who alleges a combat-
related stressor cannot produce this kind of evidence, the VA 
invariably denies the application of Sec. 1154(b) and, ultimately, the 
veteran's claim for service connection for PTSD.
    H.R. 952 would expand the definition of ``combat with the enemy'' 
to include active duty service in a theater of combat operations during 
a period of war. This legislation will help to break down often 
insurmountable barriers facing veterans who experienced combat 
circumstances, but who do not have a combat designation, decoration or 
corroboration from a buddy. Nevertheless, we believe that the expansion 
envisioned by H.R. 952 will not necessarily eliminate these barriers. 
The legislation needs to go further.
    Section 1154(b) does not provide a presumption that a veteran is 
entitled to service connection for a disease or injury (including 
PTSD), even if the VA is required to concede that he or she had engaged 
in combat with the enemy. Rather, the U.S. Court of Appeals for 
Veterans Claims has interpreted Sec. 1154(b) as providing a presumption 
of service incurrence. This means that the veteran must still provide 
medical evidence that his or her PTSD is etiologically related to his 
or her military service. See, e.g., Dalton v. Nicholson, 21 Vet.App. 23 
(2006). Given the delay that may occur between the occurrence of a 
stressor and the onset of PTSD and the subjective nature of a person's 
response to an event, it is often difficult to provide such medical 
nexus evidence. We therefore recommend the following in addition to the 
expansion of the term ``combat with the enemy'' contemplated by section 
2(a)(2) of the COMBAT PTSD Act:

       (3) In the case of a veteran who has been diagnosed with PTSD 
subsequent to active military service and who has engaged in combat 
with the enemy as defined in sub-section (2) above, a connection 
between PTSD and the veteran's active military service shall be 
presumed and may be rebutted only by clear and convincing evidence to 
the contrary.

    A presumption of service connection for PTSD in these situations 
will clearly benefit both veterans and the VA. According to a recent 
study by the RAND Corporation, the Nation's largest independent health 
policy research program, nearly 20 percent of military servicemembers 
who have returned from Iraq and Afghanistan report symptoms of PTSD and 
related disorders. Claims for disability compensation and health care 
have already begun to flood the VA. Historically, the extensive delays 
associated with the adjudication of PTSD claims have been caused by the 
VA's stringent evidence requirements. A presumption of service 
connection of PTSD for veterans who have a confirmed diagnosis and who 
served in combat zones would eliminate the need for tortuous searches 
on the part of both the VA and the veteran for stressor and medical 
nexus evidence. The VA would be freed from its statutory duty to assist 
veterans by scheduling Compensation and Pension Service examinations 
for nexus opinions as well. Consequently, PTSD claims would be 
adjudicated much more quickly and backlogs of these claims would 
dramatically decrease.
    We thank you for your outstanding leadership on behalf of our 
Nation's veterans. United Spinal Association and VetsFirst stand ready 
to assist the Committee and Congress in any way in furtherance of our 
shared mission.
            Sincerely,
                                                      Paul J. Tobin
                                                  President and CEO

                                 
                   MATERIAL SUBMITTED FOR THE RECORD

                       77TH CONGRESS, 1ST SESSION
                             PUBLIC LAW 361
                        Signed December 20, 1941
                              [H.R. 4905]

                                 AN ACT
To facilitate standardization and uniformity of procedure relating to 
    determination of service connection in injuries or diseases alleged 
    to have been incurred in or aggravated by active service in a war, 
    campaign, or expedition.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the Administrator 
of Veterans' Affairs is hereby authorized and directed to include in 
the regulations pertaining to service connection of disabilities 
additional provisions in effect requiring that in each case where a 
veteran is seeking service connection for any disability due 
consideration shall be given to the places, types, and circumstances of 
his service as shown by his service record, the official history of 
each organization in which he served, his medical records, and all 
pertinent medical and lay evidence.
    In the case of any veteran who engaged in combat with the enemy in 
active service with a military or naval organization of the United 
States during some war, campaign, or expedition, the Administrator of 
Veterans' Affairs is authorized and directed to accept as sufficient 
proof of service connection of any disease or injury alleged to have 
been incurred in or aggravated by service in such war, campaign, or 
expedition, satisfactory lay or other evidence of service incurrence or 
aggravation of such injury or disease, if consistent with the 
circumstances, conditions, or hardships of such service, 
notwithstanding the fact that there is no official record of such 
incurrence or aggravation in such service, and, to that end, shall 
resolve every reasonable doubt in favor of such veteran: Provided, That 
service connection of such injury or disease may be rebutted by clear 
and convincing evidence to the contrary. The reasons for granting or 
denying service connection in each such case shall be recorded in full.
    Approved, December 20, 1941.

                               __________

                       77TH CONGRESS, 1ST SESSION
                        HOUSE OF REPRESENTATIVES
                            Report No. 1157

FACILITATING STANDARDIZATION AND UNIFORMITY OF PROCEDURE RELATING TO 
    DETERMINATION OF SERVICE CONNECTION OF INJURIES OR DISEASES ALLEGED 
    TO HAVE BEEN INCURRED IN OR AGGRAVATED BY ACTIVE SERVICE IN A WAR, 
    CAMPAIGN, OR EXPEDITION
  August 12, 1941.--Committee to the Whole House on the state of the 
                    Union and ordered to be printed.
 Mr. Rankin of Mississippi, from the Committee on World War Veterans' 
                  Legislation, submitted the following
                                 REPORT
                       [To accompany H. R. 4905]

    The Committee on World War Veterans' Legislation, to whom was 
referred the bill (H. R. 4905) to facilitate standardization and 
uniformity of procedure relating to determination of service connection 
of injuries or diseases claimed to have been incurred in or aggravated 
by active service in a war, campaign, or expedition, having considered 
the same, report favorably thereon with the recommendation that the 
bill be passed without amendment.

                          ENDORSEMENT OF BILL

    The report of the Veterans' Administration states that the bill as 
drafted is not considered to be objectionable from an administrative 
standpoint, and would give legislative sanction to the policy of 
resolving every reasonable doubt in favor of the veteran. It is further 
stated that in view of the extended consideration given this matter and 
the desire of your Committee to have provisions included in the law 
such as those incorporated in the bill, the Veterans' Administration 
would offer no objection to the enactment of H. R. 4905 in its present 
form. Advice was received by the Veterans' Administration from the 
Bureau of the Budget that there would be no objection by that office to 
the submission of the report to your Committee.

                          PURPOSE OF THE BILL

    The bill would authorize and direct the Administrator of Veterans' 
Affairs to include in the regulations pertaining to service connection 
of disabilities additional provisions in effect requiring due 
consideration to places, types, and circumstances of the veterans' 
service as shown by official records, official history of the 
organization with which he served, medical records, and pertinent 
medical and lay evidence. As to veterans who engaged in combat with the 
enemy in Federal active service during some war, campaign, or 
expedition the Administrator is authorized and directed to accept as 
sufficient proof of service connection of a disease or injury claimed 
to have been incurred in or aggravated by service in such war, 
campaign, or expedition, satisfactory lay or other evidence of service 
incurrence or aggravation if consistent with the circumstances, 
conditions, or hardships of such service notwithstanding the fact that 
there is no official record of such incurrence or aggravation in such 
service, and, to that end, shall resolve every reasonable doubt in 
favor of such veteran. Service connection of such injury or disease may 
be rebutted by clear and convincing evidence to the contrary. The 
reasons for granting or denying service connection in each such case 
are to be recorded in full.
    It is the purpose of the bill to place in brief legislative form 
the service policy of the Veterans' Administration governing 
determination of service connection, with particular reference to 
determinations of fact pertaining to those persons who engaged in 
combat with the enemy in active service with a military or naval 
organization of the Untied States during some war, campaign, 
expedition. The language of presumption in connection with 
determination of service connection is not intended. The question as to 
whether any disability was or was not incurred in active military 
service is recognized as a question of fact to be determined upon the 
evidence in each individual case. It is desired to overcome the adverse 
effect of a lack of official record of incurrence or aggravation of a 
disease or injury and treatment thereof.
    The Committee has conducted hearings on various bills during the 
past few years pertaining to the subject of service connection. During 
the Seventy-sixth Congress, H. R. 6450 was favorably reported by your 
Committee (Rept. No. 2982, to accompany H. R. 6450) and passed the 
House of Representatives September 30, 1940, but that bill failed of 
enactment during the Seventy-sixth Congress. H. R. 156, Seventy-seventh 
Congress, which is identical with H. R. 6450, Seventy-sixth Congress, 
was introduced January 3, 1941, and referred to our Committee. During 
the hearings conducted by your Committee May 7, 8, 9, 13, 15, 16, and 
22, 1941, consideration was given to H. R. 156, and also H. R. 1587, H. 
R. 2652, and H. R. 4737. The principles contained in these various 
bills were thoroughly discussed from the Administrator of Veterans' 
Affairs, and representatives of the American Legion, Veterans of 
Foreign Wars, Disabled American Veterans of the World War, and World 
War Combat Veterans Association.
    As revealed by the printed hearings and information discussions it 
was difficult, if not impracticable, to reconcile the stated policy of 
the Veterans' Administration as contained in regulations and 
instructions with the disallowances of service connection in individual 
cases particularly those of veterans who served in combat. Your 
Committee is impressed with the fact that the absence of an official 
record of care or treatment in many of such cases is readily explained 
by that conditions surrounding the service of combat veterans. It was 
emphasized in the hearings that the establishment of records of care or 
treatment of veterans in other than combat areas, and particularly in 
the States, was a comparatively simple matter as compared with the 
veteran who served in combat. Either the veteran attempted to carry on 
despite his disability to avoid having a record made lest he might be 
separated from his organization or, as in many cases, the record made 
lest he might be separated from his organization or, as in many cases, 
the records themselves were lost.
    The difficulties which were encountered in assembling records of 
combat veterans have been repeatedly placed before your Committee and 
are a matter of record in the hearings. In many cases it is the 
Committee's belief that this has been a major obstacle to the veteran 
obtaining a service-connected rating.
    It is the opinion of this Committee that the enactment of this bill 
into law will have a salutary effect. The Committee realizes that the 
Administration has made pronouncements and set forth policies which are 
substantially the same as the procedures made mandatory by this bill; 
but believes that considerable difficulty has been encountered in 
securing uniform application of such policies and procedures. The bill 
is intended to insure a more nearly uniform application of the 
principles involved.
    It is the intention of this Committee that this legislation should 
make a matter of law the pronounced policies of the Veterans' 
Administration and make clear the obligation of employees engaged upon 
duties pertaining to determination of service connection the necessity 
for the fullest consideration of all evidence and formulation of 
decisions in line with the policies to which this bill, if enacted, 
will give legislative sanction. Such policies will be for application 
in any cases reviewed as well as in new claims.
    This Committee also has had under consideration numerous bills 
which would grant service pensions on a scale as liberal as that 
provided in the disability allowance law of July 2, 1930, which was 
repealed by the act of March 20, 1933, Public, No. 2, Seventy-third 
Congress, and in some instances such bills, would provide more liberal 
service pension than that provided by the disability allowance law.
    Much of the interest in more liberal service-pension laws is 
believed to be stimulated because of the inability of many veterans to 
establish service connection of a disability which they have sound 
reason to believe was incurred in combat with an enemy of the United 
States. It is believed that by more direct action to insure the 
granting of service connection in any case where that action can be 
taken upon the evidence submitted, or which may be submitted, and by 
extending full cooperation to the veteran, compensation will be awarded 
to those who meritoriously should be on the rolls under existing law, 
and there will result a more general understanding that the policy as 
set forth in this bill has been administered as effectively as 
possible. This does not mean that the granting of service connection in 
meritorious cases will remove the necessity for possible legislation 
granting service pensions, as for example, H. R. 4845, which was 
reported by this Committee and passed the House of Representatives, but 
it is believed that the Committee should not be required to consider in 
connection with service-pension legislation those cases wherein 
service-connected benefits should or could be granted.

                               __________

                            Calendar No. 938
                       77TH CONGRESS, 1ST SESSION
                                 SENATE
                             Report No. 902

STANDARDIZATION AND UNIFORMITY OF PROCEDURE RELATING TO DETERMINATION 
    OF SERVICE CONNECTION OF INJURIES OR DISEASES ALLEGED TO HAVE BEEN 
    INCURRED IN OR AGGRAVATED BY ACTIVE SERVICE IN A WAR, CAMPAIGN, OR 
    EXPEDITION
               December 12, 1941.--Ordered to be printed
Mr. Clark of Missouri, from the Committee on Finance, submitted to the 
                               following

                                 REPORT

                       [To accompany H. R. 4905]
    The Committee on Finance, having considered the bill (H. R. 4905) 
to facilitate standardization and uniformity of procedure relating to 
determination of service connection of injuries or diseases claimed to 
have been incurred in or aggravated by active service in a war, 
campaign, or expedition, report back to the Senate and recommend that 
the bill do pass.
    The purpose of the bill is set out in the report of the Committee 
on World War Veterans' Legislation (H. Rept. No. 1157), August 12, 
1941, which reads as follows:

               [H. Rept. No. 1157, 77th Cong. 1st sess.]

    The Committee on World War Veterans' Legislation, to whom was 
referred the bill (H. R. 4905) to facilitate standardization and 
uniformity of procedure relating to determination of service connection 
of injuries or diseases claimed to have been incurred in or aggravated 
by active service in a war, campaign, or expedition, having considered 
the same, report favorably thereon with the recommendation that the 
bill be passed without amendment.

                          ENDORSEMENT OF BILL

    The report of the Veterans' Administration states that the bill as 
drafted is not considered to be objectionable from an administrative 
standpoint, and would give legislative sanction to the policy of 
resolving every reasonable doubt in favor of the veteran. It is further 
stated that in view of the extended consideration given this matter and 
the desire of your Committee to have provisions included in the law 
such as those incorporated in the bill, the Veterans' Administration 
would offer no objection to the enactment of H.R. 4905 in its present 
form. Advice was received by the Veterans' Administration from the 
Bureau of the Budget that there would be no objection by that office to 
the submission of the report to your Committee.

                          PURPOSE OF THE BILL

    The bill would authorize and direct the Administrator of Veterans' 
Affairs to include in the regulations pertaining to service connection 
of disabilities additional provisions in effect requiring due 
consideration to places, types, and circumstances of the veteran's 
service as shown by official records, official history of the 
organization with which he served, medical records, and pertinent 
medical and lay evidence. As to veterans who engaged in combat with the 
enemy in Federal active service during some war, campaign, or 
expedition the Administrator is authorized and directed to accept as 
sufficient proof of service of a disease or injury claimed to have been 
incurred in or aggravated by service in such service, notwithstanding 
the fact that there is no official record of such incurrence or 
aggravation in such service, and to that end, shall resolve every 
reasonable doubt in favor of such veteran. Service connection of such 
injury or disease may be rebutted by clear and convincing evidence to 
the contrary. The reasons for granting or denying service connection in 
each such case are to be recorded in full.
    It is the purpose of the bill to place in brief legislative form 
the policy of the Veterans' Administration governing determination of 
service connection, with particular reference to determinations of fact 
pertaining to those persons who engaged in combat with the enemy in 
active service with a military or naval organization of the United 
States during some war, campaign, or expedition. The language of the 
bill has been carefully selected to make clear that a statutory 
presumption in connection with determination of service connection is 
not intended. The question as to whether any disability was or was not 
incurred in active military service is recognized as a question of fact 
to be determined upon the evidence in each individual case. It is 
desired to overcome the adverse effect of a lack of official record of 
incurrence or aggravation of a disease or injury and treatment thereof.
    The Committee has conducted hearings on various bills during the 
past few years pertaining to the subject of service connection. During 
the Seventy-sixth Congress, H.R. 6450 was favorably reported by your 
Committee (Rept. No. 2982, to accompany H.R. 6450) and passed the House 
of Representatives September 30, 1940, that that bill failed of 
enactment during the Seventy-sixth Congress, H.R. 156, Seventy-seventh 
Congress, which is identical with H.R. 6450, Seventy-sixth Congress, 
was introduced January 3, 1941, and referred to your Committee. During 
the hearing conducted by your Committee May 7, 8, 9, 13, 15, 16, and 
22, 1941, consideration was give to H.R. 156, and also H.R. 1578, H.R. 
2652, and H.R. 4737. The principles contained in these various bills 
were thoroughly discussed in the hearings and testimony in connection 
therewith was received from the Administrator of Veterans' Affair, and 
representatives of the American Legion, Veterans of Foreign War, 
Disabled American Veterans of the World War, and World War Combat 
Veterans' Association.
    As revealed by the printed hearings and informal discussions, it 
was difficult if not impracticable, to reconcile the stated policy of 
the Veterans' Administration as contained in regulations and 
instructions with the disallowances of service connection in individual 
cases, particularly those of veterans who served in combat. Your 
Committee is impressed with the fact that the absence of an official 
record of care or treatment in many of such cases is readily explained 
by the conditions surrounding the service of combat veterans. It was 
emphasized in the hearings that the establishment of records of care or 
treatment of veterans in other than combat areas, and particularly in 
the States, was a comparatively simple matter as compared with the 
veteran who served in combat. Either the veteran attempted to carry on 
despite his disability to avoid having a record made lest he might be 
separated from his organization or, as in many cases, the records 
themselves were lost.
    The difficulties which were encountered in assembling records of 
combat veterans have been repeatedly placed before your Committee and 
are a matter of record in the hearings. In many cases it is the 
Committee's belief that this has been a major obstacle to the veteran 
obtaining a service-connected rating.
    It is the opinion of this Committee that the enactment of this bill 
into law will have a salutary effect. The Committee that the 
Administration has made pronouncements and set forth policies which are 
substantially the same as the procedures and set forth policies which 
are substantially the same as procedures made mandatory by this bill, 
but believes that considerable difficulty has been encountered in 
securing uniform application of such policies and procedures. The bill 
is intended to insure a more nearly uniform application of the 
principles involved.
    It is the intention of this Committee that this legislation should 
make a matter of law the pronounced policies of the Veterans' 
Administration and make clear the obligation of employees engaged upon 
duties pertaining to determination of service connection the necessity 
for the fullest consideration of all evidence and formulation of 
decisions in line with the policies to which this bill, if enacted, 
will give legislative sanction. Such policies will be for application 
in any cases reviewed as well as in new claims.
    This Committee also has had under consideration numerous bills 
which would grant service pensions on a scale as liberal as that 
provided in the disability allowance law of July 2, 1930, which was 
repealed by the act of March 20, 1933, Public, No. 2, Seventy-third 
Congress, and in some instances such bills would provide more liberal 
service pension than that provided by the disability allowance law.
    Much of the interest in more liberal service-pension laws is 
believed to be stimulated because of the inability of many veterans to 
establish service connection of a disability which they have sound 
reason to believe was incurred in combat with an enemy of the United 
States. It is believed that by more direct action to insure the 
granting of service connection in any case where that action can be 
taken upon the evidence submitted, or which may be submitted, and by 
extending full cooperation to the veteran, compensation will be awarded 
to those who meritoriously should be on the rolls under existing law, 
and there will result a more general understanding that the policy as 
set forth in this bill has been administered as effectively as 
possible. This does not mean that the granting of service connecting in 
meritorious cases will remove the necessity for possible legislation 
granting service pensions, as for example, H.R. 4845, which was 
reported by this Committee and passed for House of Representatives, but 
it is believed that the Committee should not be required to consider in 
connection with service-pension legislation those cases wherein 
service-connected benefits should or could be granted.

                                 
                                                The American Legion
                                                    Washington, DC.
                                                   February 4, 2009
Honorable John Hall, Chair
Subcommittee on Disability Assistance & Memorial Affairs
Committee on Veterans' Affairs
United States House of Representatives
335 Cannon House Office Building
Washington, DC 20515-6335

Dear Mr. Chair:

    The American Legion fully supports your draft legislation, which 
would amend title 38, United States Code, to clarify the meaning of 
``combat with the enemy'' for the purposes of service-connection of 
disabilities.
    The American Legion applauds your efforts to provide this much 
needed clarification. This crucial change recognizes the nature of 
combat and enemy action on the modern battlefield and, in doing so, 
limits the Department of Veterans Affairs' ability to be overly 
restrictive in applying the combat presumptions afforded under the 
current law.
    Once again, The American Legion fully supports this draft 
legislation and we appreciate your continued leadership in addressing 
the issues that are important to America's veterans--Active Duty, Guard 
and Reserve--and their families.

            Sincerely,

                                          Steve Robertson, Director
                                    National Legislative Commission

                               __________

                                         Disabled American Veterans
                                                    Washington, DC.
                                                  February 10, 2009
The Honorable John Hall
United States House of Representatives
1217 Longworth House Office Building
Washington, DC 20515

Dear Chairman Hall:

    I am writing on behalf of the Disabled American Veterans (DAV), a 
congressionally chartered national veterans' service organization with 
1.3 million members, all of whom were disabled while serving on active 
duty in the United States armed forces. The DAV works to rebuild the 
lives of disabled veterans and their families.
    Chairman Hall, we have once again discussed your groundbreaking 
legislation that, if enacted would clarify certain standards to 
determine combat-veteran status. We continue to support this important 
legislation during this new session of Congress as we did during the 
last session.
    Service connection for PTSD still requires a veteran to show combat 
exposure via official military records, except in certain 
circumstances, such as a diagnosis during service. For many veterans, 
providing such documentation remains a virtual impossibility because of 
poor military recordkeeping, poor VA claims' development procedures, or 
both.
    As VBA updates its rating criteria to incorporate a 21st century 
understanding of PTSD, it too must update its ability, whether through 
application or through presumption, to determine who is, or is not, 
considered a combat veteran. Your legislation brings attention to the 
reality of having to deny compensation to a veteran suffering from PTSD 
because his/her government refuses to accept that he/she actually saw 
combat with the enemy. Nothing could be more demoralizing to a combat 
veteran.
    The DAV looks forward to working with this session of Congress on 
this important legislation. Chairman Hall, with careful stewardship, 
this legislation will improve the lives of disabled veterans for years 
to come.

            Sincerely,

                                                     KERRY L. BAKER
                            Assistant National Legislative Director

                               __________

                                          Fleet Reserve Association
                                                    Alexandria, VA.
                                                     March 16, 2009
The Honorable John J. Hall
U.S. House of Representatives
1217 Longworth Office Building
Washington, DC 20515

Fax: 202-225-3289

Dear Representative Hall:

    The Fleet Reserve Association (FRA) supports ``The Combat PTSD 
Act'' (H.R. 952) that would make it easier for veterans with Post 
Traumatic Stress Disorder (PTSD) to receive disability benefits and 
treatment. Specifically the bill will remove the burden from the 
veteran diagnosed with PTSD to prove that a specific incident during 
combat caused his or her PTSD, and make it possible for any veteran 
diagnosed with PTSD who served in combat to automatically have the 
ability to get treatment.
    The Association appreciates your attention to this important issue 
and stands ready to assist you in passing this legislation in the 111th 
Congress. The FRA point of contact is John Davis, FRA's Director of 
Legislative Programs at the above numbers or ([email protected]).

            Sincerely,

                                                   JOSEPH L. BARNES
                                        National Executive Director

                               __________

                           Iraq and Afghanistan Veterans of America
                                                      New York, NY.
                                                  February 20, 2009
The Honorable John Hall
1217 Longworth House Office Building
Washington DC, 20515

Dear Congressman Hall,

    Iraq and Afghanistan Veterans of America (IAVA) is proud to offer 
our support for H.R. 952, the ``Combat PTSD Act''; clarifying the 
meaning of ``combat with the enemy'' for the purposes of establishing a 
service-connected disability with the Department of Veterans Affairs.
    H.R. 952 clearly defines ``combat with the enemy'' as service in a 
combat theater, ensuring that servicemembers receive the benefits that 
they deserve. By ensuring that service in a combat zone is enough to 
establish service connection, servicemembers returning with Post 
Traumatic Stress Disorder will be spared the unnecessary stress of 
justifying their service to the VA and will be instead moved directly 
to treatment.
    Ensuring that returning servicemembers are able to receive the 
treatment they need is critical to the readjustment process. We are 
proud to offer our assistance and thank you for this meaningful 
legislation. If we can be of help, please contact Tom Tarantino, at 
(202) 544-7692 or [email protected].

            Sincerely,

                                                     Paul Rieckhoff
                                                 Executive Director

                               __________

                           National Veterans Legal Services Program
                                                    Washington, DC.
                                                   February 6, 2009
The Honorable John J. Hall
Chairman
Subcommittee on Disability Assistance and Memorial Affairs
U.S. House of Representatives
Committee on Veterans' Affairs
337 Cannon House Office Building
Washington, DC 20515

Dear Chairman Hall:

    The National Veterans Legal Service Program (NVLSP) commends you 
and your Subcommittee for drafting H.R. 6732, a bill that would clarity 
the meaning of ``combat with the enemy'' for purposes of service-
connection of disabilities. This bill is long overdue and will provide 
many disabled American veterans and their families with the justice 
that they have been lacking.
    Tit1e I, section 101 provides a definition of the term ``combat 
with the enemy'' (used in section 1154(b)), that would help many 
veterans establish credible evidence of a stressor for PTSD purposes as 
well as provide evidence that could support claims for service 
connection for other disabilities. NVLSP suggests, however, that the 
phrase ``campaign, or expedition'' be inserted after ``war'' on line 19 
to make certain that non-declared wars are covered.
    Please feel free to contact us if we can be of any further 
assistance.

            Sincerely,

                                                   Ronald B. Abrams
    Barton F. Stichman
                                           Joint Executive Director
    Joint Executive Director

                               __________

                                          Veterans for Common Sense
                                                    Washington, DC.
                                                  February 10, 2009
The Honorable John Hall
Chairman
Subcommittee on Disability Assistance and Memorial Affairs
Veterans' Affairs Committee
U.S. House of Representatives
1217 Longworth House Office Building
Washington, DC 20515

Dear Chairman Hall:

    Veterans for Common Sense (VCS) strongly endorses your legislation 
designed to clarify the definition of combat, and thereby make it 
easier for veterans to receive disability compensation benefits from 
the Department of Veterans Affairs (VA) for post traumatic stress 
disorder (PTSD).
    Under the current VA claims system, nearly every veteran must 
individually prove their combat service and specific incidents known as 
``stressors'' before receiving VA disability benefits for PTSD. The 
burdensome and adversarial VA regulations consistently cause delays of 
months, and often years, needlessly increases the economic distress 
suffered by veterans already trying to cope with PTSD.
    In 2008, the Institute of Medicine concluded that deployment to a 
war zone is linked to the development of PTSD. This type of strong and 
overwhelming scientific evidence has been accepted by the government in 
connection with illnesses associated with Agent Orange poisoning among 
Vietnam War veterans.
    Your superb bill seeks to cut the red tape and allow valid 
disability claims to be more easily processed by VA. This is 
exceptionally important because of our current economic recession. Your 
legislation should have a profound impact on Iraq and Afghanistan war 
veterans. Of the 105,000 recent war veterans diagnosed by VA with PTSD, 
only 42,000 received disability benefits from VA for PTSD. That means 
up to 63,000 Iraq and Afghanistan war veterans may see prompt relief 
with the passage of your landmark legislation. Tens of thousands of 
veterans from prior wars also await answers from VA for their PTSD 
claims. In this time of recession and high unemployment among veterans, 
our veterans should not be forced to fight an adversarial VA system for 
assistance for debilitating war-related psychological injuries.
    Based on scientific evidence, a prompt move by Congress to properly 
define combat and thereby cut the red tape on PTSD claims will also 
serve as a strong message to reduce stigma. An official recognition of 
PTSD evidences public support for our veterans and families trying to 
readjust after fighting in combat. We have already contacted VA 
Secretary Eric Shinseki in support of streamlining PTSD claims.
    On behalf of our 14,400 members, we offer our heartfelt thanks and 
appreciation for your new bill. We also thank you for your leadership 
last year passing landmark legislation to streamline the overall VA 
disability claims process.

            Sincerely,

                                                     Thomas Bandzul
                                                  Associate Counsel

                               __________

                      Veterans of Foreign Wars of the United States
                                                    Washington, DC.
                                                  February 11, 2009
The Honorable John Hall
United States House of Representatives
1217 Longworth House Office Building
Washington, DC 20515

Dear Congressman Hall:

    On behalf of the 2.3 million members of the Veterans of Foreign 
Wars of the United States and its Auxiliaries, I would like to offer 
our support for your bill, the Compensation Owed for Mental Health 
Based on Activities in Theater Act to grant a presumptive service 
connection to veterans who suffer from Post Traumatic Stress Disorder 
(PTSD) and have actively served in a designated theater of combat. This 
will relieve the burden faced by many veterans who are forced to prove 
the events they faced while serving our Nation are the direct cause of 
their PTSD.
    This important legislation will make it possible and much easier 
for many veterans to start the important treatment necessary for their 
successful reintegration into civilian life. Too many veterans face 
additional obstacles in recovery when forced to prove their PTSD is 
indeed related to combat events experienced during their service, thus 
further delaying the healing process. Your legislation will establish a 
presumptive service connection for PTSD and guarantee that veterans 
receive the necessary medical attention promptly and with as little 
additional stress as possible.
    Congressman Hall, this legislation is a great opportunity to honor 
and give back to those who have so honorably served this country. Thank 
you for concentrating on changes that can make a difference in the 
lives of our veterans. The VFW commends you, and we look forward to 
working with you and your staff to ensure the passage of this important 
legislation.
    Thank you for your continued support for America's veterans.

            Very truly yours,

                                                 0Robert E. Wallace
                                                 Executive Director

                                 
          POST-HEARING QUESTIONS AND RESPONSES FOR THE RECORD
                                     Committee on Veterans' Affairs
         Subcommittee on Disability Assistance and Memorial Affairs
                                                    Washington, DC.
                                                        May 7, 2009
Bradley Mayes
Director, Compensation and Pension Service
Veterans Benefits Administration
U.S. Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420

Dear Mr. Mayes:

    Thank you for testifying at the House Committee on Veterans' 
Affairs' Subcommittee on Disability Assistance and Memorial Affairs 
legislative hearing on: ``Compensation Owed for Mental Health Based on 
Activities in Theater Post-Traumatic Stress Disorder'', H.R. 952, held 
on April 23, 2009. I would greatly appreciate if you would provide 
answers to the enclosed follow-up hearing questions by Monday, June 8, 
2009.
    In an effort to reduce printing costs, the Committee on Veterans' 
Affairs, in cooperation with the Joint Committee on Printing, is 
implementing some formatting changes for material for all Full 
Committee and subcommittee hearings. Therefore, it would be appreciated 
if you could provide your answers consecutively on letter size paper, 
single-spaced. In addition, please restate the question in its entirety 
before the answer.
    Due to the delay in receiving mail, please provide your responses 
to Ms. Megan Williams by fax at (202) 225-2034. If you have any 
questions, please call (202) 225-3608.

            Sincerely,

                                                       John J. Hall
                                                           Chairman

                               __________

                        Questions for the Record
                      Hon. John J. Hall, Chairman
       Subcommittee on Disability Assistance and Memorial Affairs
                  House Committee on Veterans' Affairs
  Compensation Owed for Mental Health Based on Activities in Theater 
                                 Post-
                  Traumatic Stress Disorder, H.R. 952
                             April 23, 2009

    Question 1: In your testimony and at the hearing, VA informed the 
Committee that it currently is developing an amendment to its 
regulations to liberalize the evidentiary burdens for establishing a 
combat stressor for the purposes of PTSD service connection. Can you 
provide an update on this regulation?
    Response: Veterans Benefit Administration (VBA) worked closely with 
the Office of General Counsel (OGC) and the Board of Veterans' Appeals 
(BVA) to modify the regulations at 38 CFR Sec. 3.304(f) governing the 
evidentiary requirements for establishing service connection for post 
traumatic stress disorder (PTSD). The draft proposed rule, currently in 
the Department of Veterans Affairs' (VA) concurrence process, more 
closely reflects Diagnostic and Statistical Manual-IV (DSM-IV) criteria 
for the diagnosis of PTSD and is consistent with findings in the 
recently published Gulf War and Health: Volume 6, Physiologic, 
Psychologic, and Psychosocial Effects of Deployment-related Stress 
(2008) by the National Academies' Institute of Medicine. VA is working 
to get internal and external concurrences on the proposed rule. Once 
concurrences are received, VA will publish the proposed rule in the 
Federal Register.
    Question 2: At the hearing, there was also a request for data 
regarding the number of veterans service-connected for PTSD versus 
treatment, the number of veterans who are denied, and the percentage of 
PTSD claims that are part of the current inventory. There was also a 
request for a cost estimate for H.R. 952. Please provide that data. 
What conclusions does VA draw from this information?
    Response: The number of Veterans treated for PTSD is larger than 
the number of Veterans who file a claim for PTSD because the treatment 
numbers include all Veterans for whom a diagnosis of PTSD was recorded 
at a clinical encounter, including those receiving counseling services 
in the informal settings of a Vet Center. These encounter-recorded 
diagnoses do not represent confirmed diagnoses among Veterans who use 
the Veterans Health Administration (VHA) services. Many seeking help in 
adjusting to the stresses of combat do not develop chronic PTSD--and 
therefore do not file a claim for disability compensation for the 
condition.
    At the end of fiscal 2008, there were 344,533 Veterans who were 
service connected for PTSD, and 233,265 Veterans who had been denied 
service connection for PTSD. As of June 16, 2009, VA has 410,909 claims 
pending. Of those, approximately 66,000 have PTSD as an issue.
    The purpose of H.R. 952 is to clarify the meaning of `combat with 
the enemy' for service connection of disabilities. This bill would 
amend title 38 USC section 1154(b) by providing that the term `combat 
with the enemy' includes active duty in a theater of combat operations 
as defined by VA in consultation with the Department of Defense (DoD), 
or active duty in combat against a hostile force during a period of 
hostilities. We are unable to provide a cost estimate for this bill, as 
we are not able to estimate the number of Veterans who would apply for 
compensation as a result of the relaxed evidentiary burden, which would 
apply to Veterans filing claims for any disability, or the number of 
Veterans previously denied service connection for PTSD who would re-
apply.
    Question 3: PTSD has been a diagnosis in the Diagnostic and 
Statistical Manual (DSM) of Mental Disorders since 1980 and the DoD has 
followed protocols since that time to make that diagnosis. Please 
inform why it took VA almost 30 years to recognize a need for a new 
regulation to allow in-service diagnoses to be rated without further 
development?
    Response: VA initially promulgated regulations that contemplated 
service connection for PTSD where the diagnosis was rendered years 
after military service. This was necessary given the fact that PTSD was 
not included as a mental disorder until the publishing of DSM-III in 
1980, 5 years following the end of the Vietnam War. The regulation 
provided a means to establish a medical link between a current 
disability and a stressor that occurred many years earlier during 
military service. The prevalence of a diagnosis while on active duty 
did not increase until the recent conflicts along with an increased 
awareness of PTSD. The new regulation was in response to these 
developments and intended to make it easier for Veterans to prove their 
claim of service connection for PTSD.
    Question 4: During the hearing, you testified that it would be too 
cumbersome for the DVA Secretary in consultation with the DoD Secretary 
to define a theater of combat operations. Please inform why this 
standard would be more problematic than adjudicating each case 
separately?
    Response: It is likely that a definition of ``theater of combat 
operations'' arrived at by VA in consultation with DoD would be 
unsatisfactory to many of our stakeholders. Some would be dissatisfied 
with limits provided in the definition, while others would consider any 
limits to be too expansive. A broad approach that included all 
geographical areas of military support activity adjacent to the 
location of actual combat operations, such as the Middle East nations 
and bodies of water where little threat of hostilities exist, could be 
criticized as losing sight of the original statutory intent of 
recognizing the hardships of actual combat participation and the 
difficulties involved with recordkeeping during combat operations. 
However, definitions limiting the theater of combat operations to a 
specific nation or geographical location could also be criticized as 
too restrictive and not taking into account potential hostilities faced 
by support troops. Therefore, any attempt to define a theater of combat 
operations and adopt its use as a means to evaluate disability claims 
would likely generate criticism and would be a cumbersome task. On the 
other hand, evaluating a Veteran's combat engagement under the current 
evidentiary standards on a case-by-case basis has led to fair and 
equitable results in the vast majority of claims.
    Further, VA claims processing personnel would face the prospect of 
making findings of fact concerning a Veteran's duty locations 
throughout his or her military career to determine whether the relaxed 
evidentiary standard would be for application. This fact finding would, 
in many cases, be as complex as determining whether a Veteran engaged 
in combat with the enemy and would add an unnecessary administrative 
burden.
    Question 5: At the March and April 2009 DAMA hearings, VA agreed 
that the nature of combat has changed and recognized a need for a 
paradigm shift. However, the VA General Counsel categorized a theater 
of combat operations as too broad a term. But, it is the same term used 
in statute by the Veterans Health Administration for determining 
eligibility for other benefits, such as health care enrollment and Vet 
Center usage. So, why is it that VA can apply the term for those 
purposes, but not for compensation?
    Response: Under the provisions of 38 USC Sec. 1712A, VHA is 
required to provide readjustment counseling to a broad range of 
Veterans who served in a theater of combat operations during and after 
the Vietnam era, including areas where hostilities occurred after 
November 11, 1998. Presumably, the Congressional intent was to provide 
as many Veterans as possible with assistance in readjusting to civilian 
life. However, providing counseling and related mental health services 
to an expanded cohort of Veterans does not fall within the statutory 
requirements for the provision of disability compensation found in 
title 38, chapter 11. In order for service-connection to be provided, a 
Veteran must have sustained a disability resulting from injury or 
disease incurred in or aggravated by active military service. Whereas 
readjustment counseling under chapter 17 may be provided to a limited 
number of Veterans who served in a theater of combat operations, 
compensation under chapter 11 is provided to a Veteran of any period or 
place of active service for disability incurred in or aggravated by 
such service.
    Question 6: At the hearing, we heard from service officers who 
represented veterans who served in Vietnam or Iraq and whose claims for 
PTSD were denied--multiple times--and yet they have been diagnosed and 
in treatment with the VA for the same disorder and have provided 
letters and lay statements as evidence in their claims. So, why is VA 
not accepting their lay statement as evidence of combat, to corroborate 
their stressor or the medical evidence in the treatment record as 
outlined under current law in Section 1154(b)?
    Response: Section 1154(b) does not require VA to accept lay 
evidence as establishing that a Veteran engaged in combat with the 
enemy. The provisions of 38 USC Sec. 1154(b) require that, if the 
record establishes that a Veteran ``engaged in combat with the enemy'' 
during service, VA will accept ``satisfactory lay or other evidence of 
service incurrence or aggravation'' of an injury or disease alleged to 
have been incurred or aggravated in combat service. It is critical that 
the evidence show the Veteran ``engaged in combat'' before these 
provisions apply. VA accepts all forms of evidence, to include lay 
statements, in every determination made. However, lay statements alone 
may not be sufficient to establish that a Veteran engaged in combat.
    Although a Veteran may receive a diagnosis and undergo treatment 
for PTSD, if he or she cannot establish that the Veteran engaged in 
combat to invoke application of these provisions and there is no other 
credible supporting evidence of an in-service stressor, lay statements 
alone may not be sufficient to grant service-connection.
    Question 7: What is the VA's response to the veteran service 
organizations', most recently the DAV's contention that VA has 
circumvented the law by conducting improper rulemaking through its 
Office of General Counsel and the adjudication procedures in the M-21-1 
by requiring proof of combat in field military records?
    Response: The law in question is 38 U.S.C. Sec. 1154(b), which 
provides a lowered evidentiary standard of ``satisfactory lay or other 
evidence'' to establish the incurrence or aggravation of a disease or 
injury in combat service. VA has not circumvented this law or conducted 
improper rulemaking. The lowered evidentiary standard is intended to 
establish that a claimed disease or injury was incurred or aggravated 
while the Veteran was engaged in combat; it is not intended as a way 
for a Veteran to establish ``proof'' of combat participation when there 
is no other evidence of record showing combat participation. In order 
to trigger this lowered evidentiary standard, there must be some 
credible evidence of record to establish combat participation. When 
such evidence exists and the Veteran alleges that a disease or injury 
was incurred in or aggravated by such service, the Veteran's statement 
alone can establish the incurrence or aggravation of the injury or 
disease for purposes of service-connection. Regarding the use of 
official military records, it is the incurrence or aggravation of a 
disease or injury during combat that does not require an official 
record. This is distinctly different from stating that there is no need 
for an official record or other credible evidence showing combat 
participation. Furthermore, the M21-1MR procedural manual does not 
state that proof of combat must come from official military records. 
Rather, the manual provides:
    ``There are no limitations as to the type of evidence that may be 
accepted to confirm engagement in combat. Any evidence that is 
probative of (serves to establish the fact at issue) combat 
participation may be used to support a determination that a veteran 
engaged in combat.''

                                  
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