The VVA Veteran

The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

September/October 2005 GOVERNMENT RELATIONS
The PTSD And Veterans' Disability Benefits
A GOVERNMENT RELATIONS DEPARTMENT STAFF REPORT

If the rest of the federal government had acted as well as the Department of Veterans Affairs, the situation on the Gulf Coast in the wake of Hurricane Katrina would have been quite different. The one bright spot in the federal response was the VA.

The VA successfully evacuated all patients and staff from all VA facilities in the region, including the VA Medical Center in New Orleans, which is in sight of the Superdome. VA did this without the loss of a single life or any serious injury to patients or employees. All were accommodated by VA facilities elsewhere in the region.

In addition, all the residents of the Airman’s Retirement Home in Gulfport, Mississippi, which was flattened by the storm, were safely moved to the Soldier’s & Airman’s Retirement Home in Washington. Eight sick residents from Mississippi were immediately hospitalized at the Washington, D.C., VA Medical Center. The DC VAMC also provided outpatient care. More importantly, the VA communication, command, and control structure worked. Everything was done in an orderly, speedy, and fully coordinated manner.

The VA also arranged for Compensation and Pension payments to flow in an uninterrupted manner. Electronic deposits were made on time, and arrangements were made with the Federal Reserve so that those veterans who used New Orleans banks could gain access to their funds at any ATM in the country. Every VA facility was able to write emergency checks to those who usually received payments via checks sent through the mail.

In short, Secretary of Veterans Affairs James Nicholson and his senior management team, as well as VA employees at every level, performed in an exemplary manner in the face of adversity. While Vietnam Veterans of America does not hesitate to point out when the VA falls short of the mark, VVA is proud of the VA for its sterling performance in this tough situation. We congratulate Secretary Nicholson, Undersecretary for Health Jonathan Perlin, and the thousands of VA employees who worked around the clock to take care of veterans under the most difficult circumstances.

PTSD CLAIMS REVIEW

The VA is undertaking a review of approximately 72,000 awards of service connection and 100 percent ratings for Post-traumatic Stress Disorder (PTSD) that were adjudicated between 1999 and 2004. VVA has received many inquiries from veterans and family members deeply concerned about this review. The VA has not told VVA, nor any of the other veterans’ service organizations, any particulars regarding this process. There is a great deal of speculation, concern, and in many cases anger and anxiety by veterans, their families, and by advocates—including VVA.

In late 2004 and early 2005, Sen. Barack Obama (D-Ill.) expressed concern about the low rate of compensation awarded to veterans using the Chicago Regional Office of the Veterans Benefits Administration. This was followed by bipartisan action from the entire Illinois delegation to Congress in the form of a letter to the Secretary of Veterans Affairs and to the Inspector General of the VA asking for an investigation about why Illinois veterans were not being treated fairly. In response, the investigation was given to the Inspector General’s office, which was told to complete the study within 120 days.

On May 19, the VA Office of the Inspector General (OIG) issued an investigative report that contained the IG’s findings, conclusions, and recommendations following an “investigation” into the wide disparity between the average dollar amount of awards for VA grants of service connection and disability ratings among VA regional offices nationwide. As part of the investigation, 2,100 “randomly selected” awards of VA disability compensation for PTSD from seven VA regional offices were examined. The conclusion: Approximately 521 (25 percent) of the records did not document an in-service stressor to the VA’s satisfaction.

The IG attributed this to the “subjectivity” involved in adjudicating PTSD claims. This is a euphemism for inconsistent decision-making practices on the part of VA adjudicators at the Veterans Benefits Administration (VBA). VVA believes it is also a result of examining clinicians at the Veterans Health Administration (VHA) not being properly trained, not using the Best Practice Manual, and being forced by supervisors to spend 20-40 minutes or less for each examination as opposed to 3-6 hours to do the job properly. This is a gross failure of leadership and not a reflection on the overwhelming majority of adjudicators and clinicians who would do a good job if allowed to do so.

As a result of these findings, the IG recommended that the VBA do a national review of PTSD rating decisions to “ensure” that evidence to support awards of disability compensation is fully developed and documented. Instead of recommending that the VA correct the deficiencies identified, the IG briefing contained the word “fraud” seven times. VVA strongly objects to blaming the VA’s problems on individual veterans.

VVA has since told Secretary of Veterans Affairs Nicholson and Undersecretary of Veterans Affairs for Benefits Daniel Cooper that most of the problems identified by the VA would be addressed if the VA used its own Best Practices Manual for Adjudication of PTSD Claims, which was completed in 2002, and train staff how to adjudicate such claims properly. VA officials often counter that it is “too expensive” to do such examinations and adjudications correctly. The consistent VVA reply is: “If you do not think you have the time and resources to do it right the first time, when exactly do you think you are going to have the time and resources to do it over again?”

The VA has not indicated that there will be any changes in the way it currently handles claims. Rather, the VA announced that it would review all awards of service connection for PTSD at the 100 percent rate, all PTSD awards of a total evaluation paid at the 100 percent level based on PTSD only, plus individual unemployability. Apparently only decisions made between 1999 and 2004 will be audited in this first round of reviews. The VA has begun the review process of 2,100 cases that the IG had previously reviewed. The VA plans to analyze its findings for use in evaluating the remainder of the approximately 72,000 affected cases, and to develop a protocol for development of the missing or inadequate evidence and other necessary action. Apparently, they plan to do this without an opportunity for public comment nor, given evidence thus far, even consultation with VSOs.

VVA understands that the initial phase of the VA’s review has been completed and that approximately 600 cases requiring the development of evidence to document a stressor or to otherwise support the rating decision have been referred to the regional office of original jurisdiction for corrective action. The VA has advised its public affairs people that where “deficiencies” are identified, it will “do everything possible to work with the veterans to obtain the evidence needed,” and that it is “likely that in order to correct the deficiencies in stressor documentation or to support the 100 percent disability evaluation assigned, some veterans will be asked to provide additional information and/or report for another psychiatric reexamination.”

It is worth noting that the VA has a legal obligation to assist veterans proactively in this regard, what is known as the “duty to assist” law.

The VA has chosen thus far not to confer or consult with the VSOs, even though the IG noted that veterans represented by VSO representatives had awards that were 68 percent higher than those who relied on the VA personnel for help. A reasonable person could conclude that the VSO representatives were generally better at this process or had more time to do their jobs properly. The VSOs, perhaps, could be very helpful in improving this process, making it more accurate and fair to the veteran, while insuring that a valid claim has been fully developed. Useful—that is—if accurate and fair adjudication is the real intent of this review.

In a June 14 letter to VA regional office directors, VA Undersecretary Cooper instituted a policy that any claims decisions that involve a grant of service connection for PTSD, a grant of a 100 percent rating according to the VA rating schedule for any condition, or a grant of a total evaluation based upon individual unemployability must be approved by the primary adjudicator and a concurring second adjudicator. On June 21, several members of the House Committee on Veterans’ Affairs sent a letter to VA Secretary Nicholson to express concern about this second-signature review requirement.

The House Committee on Veterans’ Affairs echoed a point that VVA leadership and staff have made to the VA, Congress, and the media on many occasions. If the VA is so concerned that its adjudicators have made so many errors in granting PTSD awards, why is the VA not investigating all of its denials of benefits in claims for PTSD to see if its adjudicators were equally mistaken in denying entitlement to benefits? Shortly after the Committee’s letter, the VA rescinded the Undersecretary’s directive and is proceeding with a more limited review.

VVA’S RESPONSE

VVA has been monitoring PTSD awards review since the issuance of the IG report. We have communicated with top VA officials, members of Congress and their staffs, our fellow VSOs, and legal consultants to express our dismay at this process and to explore responses. President John Rowan and the Board of Directors are determined that VVA will successfully lead this struggle to insure equitable treatment for veterans suffering from PTSD, as well as other conditions due to their military service. VVA at this point has a four-tiered plan.

First, VVA will publicize the review and our concerns about it to our members, to veterans and their families, to veterans advocates, and to the public through press releases, The VVA Veteran, our website, and outreach to our nationwide network of accredited veterans service representatives. We will also provide suggestions as to what can be done to stop the current VA review or insure that damaging results are limited.

Second, VVA will continue its efforts to work with Congress to curtail an attempt to use this review as a pretext to cut spending for VA benefits and health care. The IG report went far afield from the stated purpose to recommend lump-sum payments to veterans to eliminate further liability of the government for compensation or treatment, as well as to claim that veterans who receive 100 percent ratings just stop seeking treatment.

Most shamelessly, the VA is aware that the furor over this issue will cast a chilling effect on returning Iraq and Afghanistan veterans from seeking treatment or filing legitimate claims for PTSD.

Congress should conduct hearings and investigate this process thoroughly before the VA proceeds. Rep. Steven Buyer (R-Ind.), chair of the House Veterans Affairs’ Committee, has scheduled a hearing for late September.

Third, VVA will continue to work with the other VSOs to present a unified front to the administration and Congress with respect to our concern over the potential for abuse to this process.

All veterans are against claims that are fictitious. But all evidence indicates that those are very few in number. In fact, the IG report raised the possibility of fraud in only 12 of the 2,100 cases reviewed. This is hardly a finding that justifies the innuendo in the IG report. That is less than six tenths of one percent; hardly cause for a wholesale meat cleaver approach to this issue.

Fourth, VVA will pursue all legal options. VVA has arranged with the National Veterans Legal Services Program (NVLSP) for the review of any VA decision either to sever or reduce benefits based upon the VA’s audit of PTSD-related awards. Meritorious cases will be appealed to the Board of Veterans’ Appeals and, if warranted, to the federal courts. We also are consulting with NVLSP and other attorneys concerning the feasibility of other—possibly preemptive—legal action, including equitable relief in the form of a restraining order.

NATIONAL VIETNAM VETERANS LONGITUDINAL STUDY

More than five years ago, Congress mandated that the VA replicate the National Vietnam Veterans Readjustment Study (NVVRS) by returning to the same veterans and control groups who participated in that study 20 years ago and look at their psychosocial and physical status today. The replication of the study, using the same participants as 20 years ago, is called the National Vietnam Veterans Longitudinal Study, and will tell us much about the long-term effects of PTSD in regard to mental and physical health, as well as overall psychosocial readjustment over time.

The VA canceled its contract with the Research Triangle Institute (RTI), which performed the work on the previous study, due to what VA claimed to be exorbitant cost overages. There were problems with the contract, but they were due to poor supervision and shoddy work on the part of the VA. That was more than a year ago. The excuse for not proceeding is that the IG is performing a study, or “investigation,” of the RTI contract.

Done correctly with the addition of a simple physical, this study will give us what will probably be the closest we will ever get to a longitudinal study that also can be used to estimate the effects of the toxic exposures of Agent Orange and other herbicides and toxins on the health of those who served in Vietnam. The Institute of Medicine of the National Academies of Science has repeatedly called for such a study to be able to do its job correctly pursuant to the Agent Orange Act of 1991.

Without the NVVRS, the federal government will continue to be in a crisis every year in regard to the need for funds and resources to meet veterans’ medical needs that are directly due to their military service—particularly PTSD.

In the meantime, the report mandated by Congress is due this year, and there is not even a contractor in place to do the work. A new draft protocol is ready for final approval, but VA continues to be dilatory in this regard.

It is time for the Secretary of Veterans Affairs to do the right thing and get this study funded and underway. VVA President John Rowan has written to the Secretary regarding this matter, and VVA will follow up with VA and Congress until this study gets done, and done properly.

VETERANS DISABILITY COMPENSATION COMMISSION

At the fourth meeting of the Veterans’ Disability Benefits Commission on August 26, Chairman James Terry Scott made a great effort to assure everyone that the commission would do a “thorough, objective, impartial analysis” of the issues concerning the appropriateness of various benefits, the scope of benefits, and eligibility for benefits. Scott seemed to be saying that, contrary to what many believe, he and his fellow commissioners do not have an agenda.

Scott also noted that the issues before the Commission comprise “a living, fluid list” for which detailed papers will be prepared. He said that the commission invites public comment that will address “issues that have been festering for decades.” The preferred format for comments may be found on the commission web site, www.va.gov/vetscommission

VVA and the other five major VSOs commented on the topics for research, comment, and discussion at the September 16 hearing.

Three committee reports followed. Retired Marine Gen. Jim Livingston, who heads the transition coordination and readjustment committee, gave examples of the issues that he is looking into, including:

• The lack of support by the VA for helping troops transition from active duty to veteran status
• The coordination between the VA and DoD to meet the needs of new veterans, particularly service-disabled veterans
• The extent to which training programs in the VA, DoD, and the Department of Labor actually help active-duty military, members of the National Guard, and members of the Reserves as they re-enter the civilian workforce.

John Holland Grady, who heads the Compensation Committee, also posited a dozen issues that require study. Among them are:

How well do benefits to disabled veterans and their survivors meet the intent of Congress? How do these benefits meet the implied intent of Congress for quality-of-life issues, not simply lost earnings—and what if lost earnings and quality-of-life issues were to be adjudicated separately? How do benefits assist incentives for military recruiting?

On the first panel, members discussed the historical basis for benefits to veterans. Members and commissioners went back and forth on the question of whether or not the definition of “line of duty” injuries and illnesses should be changed. Mary Ellen McCarthy, a nurse and attorney who is on the Democratic staff of the House Committee on Veterans’ Affairs, warned of the “potentially devastating effect” if the standard is changed.

Ed Wyatt, who served as a corpsman in Vietnam, argued that the VA needs more adjudicators with legal expertise. Pat Ryan, former counsel to Rep. Chris Smith (R-N.J.) when he chaired the House committee, cautioned that the commission needs to agree on what the compensation program is.

As the interaction evolved, questions emerged: Should the VA provide lump-sum payments to veterans rated 20 percent or lower? If so, should the payments be elective or mandatory? How should the VA balance concerns over “best interest” and “freedom of choice”? To what extent, if any, should policies related to the establishment of presumptive conditions be changed?

The afternoon session featured two PTSD panels, from the VA and the Department of Defense. The VA panel focused on the historical perspectives in this disease. This panel traced the understanding and study of PTSD to the present, including its inclusion in the Diagnostic Statistical Manual. In 2004, the VA treated some 204,000 veterans for PTSD.

The DoD sent only one man, Col. Bob Ireland, program director for mental health policy in the Office of the Assistant Secretary of Defense Health Affairs. Col Ireland gave a technical presentation on how the DoD classifies mental trauma: Combat Operational Stress Reaction (lasts two to four days), Acute Stress Disorder (lasts two days to four weeks), and PTSD (lasts longer than four weeks).

Commissioner Jennifer Carroll asked of the VA: “Are the raters properly trained?” In a convoluted answer, Mark Shelhorse acknowledged that the VA and DoD IT systems “don’t talk with one another,” because DoD’s information, written up in the field, is not computerized in any form recognizable by VA computers.

Commissioner Grady asked: “Is the benefits program hurting veterans with PTSD by not requiring them to get treatment?” Would it be more “compassionate,” he asked, “to give veterans temporary benefits?” Grady apparently does not know that veterans with PTSD claims are routinely called back for periodic reviews every three to five years. He also is apparently unaware of the severe shortage of clinical staff to provide PTSD treatment at VA Medical Centers.

When Ray Wilburn, the staff director for the commission, asked if the VA does any outreach, he was informed, “We’re getting better at outreach. We’re doing okay in outreach.”

The Official Voice of Vietnam Veterans of America, Inc. ® An organization chartered by the U.S. Congress

The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress