VVA Testimony VVA Testimony
VVA Testimony

Vietnam Veterans of America

Submitted By

Thomas J. Berger
Senior Analyst for Veterans’ Benefits &
Mental Health Issues
Before the
U.S. House of Representatives Committee on Veterans Affairs
Subcommittee on Disability Assistance & Memorial Affairs
Regarding H.R. 952
March 24, 2009

Mr. Chairman, Ranking Member Lamborn, Distinguished Members of the House Veterans’ Affairs Committee’s Subcommittee on Disability Assistance & Memorial Affairs, and honored guests, Vietnam Veterans of America (VVA) thanks you for the opportunity to present our statement for the record surrounding the Department of Veterans Affairs (VA) application of the provisions found in Title 38 United States Code 1154, the definition of “engaged in combat with the enemy” and its effect on processing claims for veterans suffering from Post-traumatic Stress Disorder (PTSD).

Background: VVA reminds the Chairman and the distinguished Members of this Subcommittee that the Veterans Claims Assistance Act (VCAA) became effective in November 2000. Designed to codify VA’s long-standing practice of assisting veterans (at least in theory) in developing their claims for benefits, Congress promulgated this statute “to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary…” In other words, the enactment of the VCAA in November 2000, in conjunction with its implementing regulations, was supposed to render mandatory assistance to all veteran-claimants upon submission of a claim, and in this way, it “defined VA’s obligation to fully develop the record…” And while the VCAA imposes a substantial duty on the VA to assist the veteran-claimant in obtaining evidence in support of a claim, it also obliges the claimant to aid in this process by providing “enough information to identify and locate the existing records including the custodian or agency holding the records; and the approximate time frame covered by the records…”.

VA fought proper implementation of the VCAA for several years, and only after losing in court did they move to at least in theory implement the VCAA according to the Congressional intent and eliminate the usually misapplied requirement to present a “well-grounded” claim before the VA would assist a veteran with his or her claim. Prior to passage of the VCAA, 38 U.S.C.S. 5107(a) stated:

Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Section 5107 as revised by the VCAA eliminates the words well-grounded and simply states: CLAIMANT RESPONSIBILITY Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.

Enactment of the VCAA ended the confusion, unnecessary expenses, premature denials and improper adjudications caused by the interpretation of the words “well-grounded claim.” Essentially, ten years of CAVC and U.S. Court of Appeals for the

Federal Circuit case law dealing with the well-grounded claim requirement no longer has relevance because that requirement has been eliminated by the 2000 VCAA law.

It is clear now that the intent of the Congress is for the VA to assist almost every claimant with the development of their claim, except for those who have no reasonable possibility of obtaining benefits. (In effect, the well-grounded claim requirement has been replaced with the no reasonable possibility standard.) It is also clear that the VA is obligated to explain to all claimants just what evidence is necessary to substantiate their claims before a final adjudication can be promulgated.

The VCAA does not however change any of the rules governing what a claimant needs to prove to be granted a VA benefit. Nor does the VCAA change the burden of proof or the standard of proof that the VA must apply to a claim. The burden of proof is generally on the claimant and the rule in existence both before and after the VCAA requires the VA to grant a claim if either (1) a preponderance of the evidence supports the claim or (2) the weight of the evidence in support of the claim is approximately equal to the weight of the evidence against the claim.

In filing a PTSD claim the veteran is required to have proof that he or she experienced a “stressor” event in service; that is, a traumatic event that involves experiencing, witnessing, or confronting an event or events that involve actual or threatened death and/or serious injury, or encountering a threat to the physical integrity of others, and responding with intense fear, helplessness or horror. Subsequently, the medical evidence must reflect a diagnosis of PTSD at any time during or after service and a link between the current diagnosis and the in-service stressor event, which may involve combat or non-combat-related events.

While the veteran need not prove that s/he incurred an in-service disease or physical injury, the record must nevertheless contain “credible supporting evidence” to establish the existence of the claimed stressor event, with the only exceptions being if the veteran engaged in combat or was a prisoner of war and the claimed stressor was related to that combat or captivity. Combat exposure verification is based on the receipt of certain military decorations verified within service personnel records, and the VA has recognized that a “number of citations appear to be awarded primarily or exclusively for circumstances related to combat”, including for example, the Medal of Honor, Navy Cross, and Combat Infantryman’s Badge. In addition, the United States Court of Appeals for Veterans Claims (CAVC) has also eased the burden on veterans by finding that personal participation in combat need not be established.

Therefore, although the veteran with verified combat service has no burden to verify his or her claimed stressor (having instead only the burden to verify that s/he participated in combat), the veteran for whom combat participation is not established in the record is not so fortunate. His or her claim must have “credible supporting evidence” or face denial. Non-combat stressors typically include, but are not limited to, exposure to or involvement in aircraft crashes, vehicle crashes, ship wrecks, explosions, rape or assault, witnessing a death, duty on a burn ward, and/or service with a graves registration unit. The non-combat stressor may be experienced alone or with a group of people and is not necessarily limited to just one single episode. In addition, in personal trauma cases such as in-service sexual assault, alternative sources may be used to verify the stressful event and can include documents from rape crisis centers, counselors, clergy, health clinics, civilian police reports, medical records immediately following the incident, and/or diaries or journals, or other credible evidence. Herein lies a major problem in our view, because the VA does not necessarily accept or apply these criteria uniformly and consistently.

In addition, if the veteran provides sufficient detail, the VA can submit a referral to the U.S. Army & Joint Services Records Research Center (JSRRC) to conduct a records search to verify the in-service stressor. These requests are supposed to be sent through the VA’s Personnel Information Exchange System (PIES) using codes. Once the request is submitted through PIES, there is an interface process from the Defense Personnel Records Information Retrieval System to the appropriate military service records information management system (which may utilize a completely different coding system) whereupon it is then sent to the JSRRC electronically.

The JSRRC does not search through records in an attempt to identify an in-service stressor, but rather to verify the stressor. Some of the difficulties with the JSRRC include the fact that not every event that occurred during the course of the veteran’s service is recorded, and service records do not typically chronicle the specific experiences of individual service members. In addition, most of the records searched by the JSRRC are not stored electronically and must be searched manually. Typically, the staff will bring out one to a dozen boxes of written material, and the JSRRC staff member has 30 minutes to go through this mass of material. Obviously, more often than not, the majority of the data available is not combed, even in a cursory manner, because there is not time to so. The Committee should be aware that reportedly there are only 13 staff members to do this work, and they are more than 4,000 requests in arrears. Moreover, there is no master index of subjects or names, and military records are often incomplete. The JSRRC is under the control of DOD, as are all the unit and individual records. Therefore the VA cannot control this essential step in the current process.

If the Congress is looking for very useful ways to stimulate the economy, and to accomplish much needed work at the same time, then working with your colleagues on the Armed Services Committee to start the long needed process of computerizing and indexing these key military records would be a most useful thing to do. The DOD can utilize the Temporary (up to one year) Schedule A hiring authority issued by the President earlier this month to hire disabled young veterans to start this work immediately. We would note that the latest Bureau of Labor Statistics (BLS) reported that the unemployment figure for our youngest veterans is 11.2%, which in and of itself cries out for immediate meaningful action by the Congress.

In summary, an appropriate process already exists for VA PTSD claims processing as mandated by the Congress back in 2000. However, it doesn’t work, because the VA has again failed to provide for the consistency, uniformity and efficiency that are necessary to ensure that this process works in a timely fashion for all veteran-claimants. Further, DOD has been dilatory in doing its part to supply needed information in a complete, thorough, and timely manner.

Obviously, something needs to be done to render what has become an intolerable chronic problem for veterans who are legitimately seeking service connection compensation and access to quality medical services for their very real neuro-psychiatric wounds.

VVA Position on H.R. 952:

VVA can support the proposed legislative change as outlined in H.R. 952 if the intent is that it be applied to veterans with a valid diagnosis (i.e., in the manner called for as noted in the 2006 I.O.M. report at http://iom.edu/CMS/3793/32410.aspx) of PTSD, and if the intent is that any veteran who served in a combat zone be taken at their word that the event or incident which occurred in service gave rise to their disability. The criteria recommended by the Institute of Medicine or the National Academies of Sciences should be taken as the definitive methodology. Incidentally, that methodology, which includes testing and intense analysis largely mirrors that contained in the “Best Practices..” PTSD manual. The problem, of course, is that VA does not do it, despite the 3,800 new clinicians they have hired ostensibly to better treat PTSD. VVA has come to learn that a similar legislative change has been proposed on the Senate side by Senator Charles Schumer of New York.

It would of course be useful if VA used their own “Best Practices” manual in the adjudication of PTSD claims…but they do not. In fact, the only place that one can get a copy of that 2002 manual, produced at great expense, is from VVA. So the VA does not properly train their physicians nor do they properly train the folks who are adjudicators.

If need be, VVA offers its assistance in developing clearer language in the proposed legislative change because we believe the proposed H.R. 952 to be well-intended and most considerate for those of our veterans suffering from PTSD and who face interminable delays and denials in their VA compensation claims under the current claims process and procedures. VVA thanks this committee for the opportunity to submit its views and testimony on this important veterans’ issue.

Thomas J. Berger, Ph.D.
Dr. Tom Berger is a Life Member of Vietnam Veterans of America (VVA) and founding member of VVA Chapter 317 in Kansas City, Missouri. After serving as chair of VVA’s national PTSD and Substance Abuse Committee, he recently joined the staff of the VVA national office as Senior Analyst for Veterans’ Benefits & Mental Health Issues. As such, he is a member and Chair of the Veterans’ Healthcare Administration’s (VHA) Consumer Liaison Council for the Committee on Care of Veterans with Serious Mental Illness (SMI Committee), the Executive Committee of the Mental Health Quality Enhancement Research Initiative Depression Work Group (MHQUERI), and the South Central Mental Illness Research and Education Clinical Center (SC MIRECC).

In addition, Dr. Berger holds the distinction of being the first representative of a national veterans’ service organization to hold membership on the VHA’s Executive Committee of the Substance Use Disorder Quality Enhancement Research Initiative (SUD QUERI). Dr. Berger also serves as a reviewer of research proposals for DOD’s “Congressionally Directed Medical Research Programs”. He is a member of VVA’s national Health Care, Government Affairs, Agent Orange and Toxic Substances and Women Veterans committees. Dr. Berger served as a Navy Corpsman with the 3rd Marine Corps Division in Vietnam, 1967-68. Following his military service and upon the subsequent completion of his postdoctoral studies, he held faculty and administrative appointments at the University of Kansas in Lawrence, the State University System of Florida in Tallahassee, and the University of Missouri-Columbia, as well as program administrator positions with the Illinois Easter Seal Society and United Cerebral Palsy of Northwest Missouri. His professional publications include books and research articles in the biological sciences, wildlife regulatory law, adolescent risk behaviors, and post-traumatic stress disorder.

Dr. Berger now devotes his efforts full-time to veterans’ advocacy at the local, state and national levels on behalf of Vietnam Veterans of America. He presently resides in Silver Spring, Maryland.

Funding Statement
March 24, 2009

The national organization Vietnam Veterans of America (VVA) is a non-profit veterans' membership organization registered as a 501(c) (19) with the Internal Revenue Service. VVA is also appropriately registered with the Secretary of the Senate and the Clerk of the House of Representatives in compliance with the Lobbying Disclosure Act of 1995.

VVA is not currently in receipt of any federal grant or contract, other than the routine allocation of office space and associated resources in VA Regional Offices for outreach and direct services through its Veterans Benefits Program (Service Representatives). This is also true of the previous two fiscal years.

For Further Information, Contact:
Executive Director of Policy and Government Affairs
Vietnam Veterans of America.
(301) 585-4000, extension 127

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