[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\
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\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).
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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\
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\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
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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\
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\4\ Opening statement, March 24, 2009.
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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\
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\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
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``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\
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\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
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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.
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\9\ H.R. Rep. No. 1157, 77 Cong., 1st Sess2 (1941)
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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\
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\10\ Opening Statement on March 24, 2009.
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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\
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\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.
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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\
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\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.
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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\
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\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.''