[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
TWENTY FIVE YEARS AFTER THE PERSIAN GULF WAR: AN ASSESSMENT OF VETERANS
AFFAIRS' DISABILITY CLAIM PROCESS WITH RESPECT TO GULF WAR ILLNESS
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
joint with
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, MARCH 15, 2016
__________
Serial No. 114-59
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado CORRINE BROWN, Florida, Ranking
GUS M. BILIRAKIS, Florida, Vice- Minority Member
Chairman MARK TAKANO, California
DAVID P. ROE, Tennessee JULIA BROWNLEY, California
DAN BENISHEK, Michigan DINA TITUS, Nevada
TIM HUELSKAMP, Kansas RAUL RUIZ, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
JACKIE WALORSKI, Indiana KATHLEEN RICE, New York
RALPH ABRAHAM, Louisiana TIMOTHY J. WALZ, Minnesota
LEE ZELDIN, New York JERRY McNERNEY, California
RYAN COSTELLO, Pennsylvania
AMATA COLEMAN RADEWAGEN, American
Samoa
MIKE BOST, Illinois
Jon Towers, Staff Director
Don Phillips, Democratic Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATION
MIKE COFFMAN, Colorado, Chairman
DOUG LAMBORN, Colorado ANN M. KUSTER, New Hampshire,
DAVID P. ROE, Tennessee Ranking Member
DAN BENISHEK, Michigan BETO O'ROURKE, Texas
TIM HUELSKAMP, Kansas KATHLEEN RICE, New York
JACKIE WALORSKI, Indiana TIMOTHY J. WALZ, Minnesota
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
RALPH ABRAHAM, Louisiana, Chairman
DOUG LAMBORN, Colorado DINA TITUS, Nevada, Ranking Member
LEE ZELDIN, New York JULIA BROWNLEY, California
RYAN COSTELLO, Pennsylvania RAUL RUIZ, California
MIKE BOST, Illinois
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
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Tuesday, March 15, 2016
Page
Twenty-Five Years After The Persian Gulf War: An Assessment of
Veterans Affairs' Disability Claim Process with Respect to Gulf
War Illness.................................................... 1
OPENING STATEMENTS
Honorable Mike Coffman, Chairman................................. 1
Prepared Statement........................................... 32
Honorable Ann Kuster, Ranking Member............................. 2
WITNESSES
Mr. David R. McLenachen, Deputy Under Secretary for Disability
Assistance..................................................... 4
Prepared Statement........................................... 32
Accompanied by:
Mr. Bradley Flohr, Senior Advisor, Compensation Service,
Veterans Benefits Administration, U.S. Department of
Veterans Affairs
Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs
and Rehabilitation Divison, The American Legion................ 5
Prepared Statement........................................... 35
Mr. Aleksandr Morosky, Deputy Director, National Legislative
Service, Veterans of Foreign Wars.............................. 7
Prepared Statement........................................... 38
Mr. Rick Weidman, Executive Director for Policy and Government
Affairs, Vietnam Veterans of America........................... 9
Prepared Statement........................................... 40
Mr. Richard V. Spataro, Director of Training and Publications,
National Veterans Legal Services Program....................... 10
Prepared Statement........................................... 43
FOR THE RECORD
Anthony Hardie, Gulf War Veteran and Director, Veterans For
Common Sense................................................... 47
Ronald E. Brown, Gulf War Veteran and President, National Gulf
War Resource Center............................................ 53
TWENTY-FIVE YEARS AFTER THE PERSIAN GULF WAR: AN ASSESSMENT OF VETERANS
AFFAIRS' DISABILITY CLAIM PROCESS WITH RESPECT TO GULF WAR ILLNESS
----------
Tuesday, March 15, 2016
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Oversight
and Investigations,
Washington, D.C.
The Committee and Subcommittees met, pursuant to notice, at
10:30 a.m., in Room 334, Cannon House Office Building, Hon.
Mike Coffman [Chairman of the Committee] presiding.
Present: Representatives Coffman, Lamborn, Roe, Benishek,
Huelskamp, Walorski, Kuster, O'Rourke, Walz, Abraham, Zeldin,
Costello, Bost, and Ruiz.
OPENING STATEMENT OF CHAIRMAN COFFMAN
The Chairman. Good afternoon. This hearing will come to
order. I want to welcome everyone, especially our good friends
from the Subcommittee on Disability and Memorial Affairs, to
today's hearing regarding VA's handling of disability claims
for Persian Gulf War veterans.
As a preliminary matter, I would like to ask unanimous
consent that statements from three Gulf War veterans, and
advocates for the issues we will discuss today, be entered into
the record. The statements are found in each Members' packet.
Hearing no objection, so ordered.
This hearing is the second part of the Committee's two-part
series on the 25th Anniversary of the Persian Gulf War, a war
in which I served. Today, we will examine VA's own data that
reveals a 16 percent approval rate and an 84 percent denial
rate for claims of Gulf War veterans for undiagnosed illnesses
and chronic multi-symptom illnesses, both presumptive
conditions under current law.
VA often seems to deny these claims because it demands to
know the specific cause for the illness. Yet, under the law,
presumptive conditions do not require causality because they
are presumed to have been caused by service in the Gulf War.
The critical point to understand is that veterans cannot
receive VA care for symptoms of Gulf War illness when a
majority of those claims are denied by VA.
We will also discuss former Under Secretary Allison
Hickey's email citing her, ``concern that changing the name
from chronic multi-symptom illness to Gulf War illness might
simply imply a causal link for veterans who served in the
Gulf.''
Ms. Hickey's official email exposed VA's efforts to block
not only the use of the term recommended by the Institute of
Medicine for Gulf War illness, but also VA's practice of
requiring causality for GWI claims, even though, again,
presumptive conditions do not require causality. We also know--
we also want to know more about an internal VA email, which has
been provided to today's panel, that reveals claims evidence
that has been lost, even though VA's system told veterans that
such evidence was received. This is not particular to Gulf War
veterans, but important regarding claims processing in general.
I want to also mention that last Friday, March 11th, VA
held a community of practice call to discuss issues related to
our Subcommittee's hearing held on February 23rd. The call
included more than 50 participants, and it discussed how to
improve care for veterans suffering from Gulf War illness.
Unfortunately, the majority of the attention was given to a
presentation by Dr. David Kearney regarding chronic pain with
what seemed to be an emphasis on PTSD, and the use of
mindfulness as a method of treatment for Gulf War illness.
The call, coordinated by Dr. Stephen Hunt, shows that VA
still clings to its often criticized efforts, and it
contradicts his testimony from February 23rd, leading me to
believe veterans suffering from Gulf War illness will never
receive appropriate care while Dr. Hunt is at all connected to
the issue.
While the conversation during Dr. Hunt's call warrants
additional comments, I will save that for a later time. Before
I turn my--to my friend Ranking Member Kuster, I want to
highlight that the invitation for this hearing specifically
cited our interest in discussing, ``veterans who served in the
Persian Gulf War,'' and yet VA's testimony has lumped
information from 1990 with the current OIF, OEF veterans in an
apparent effort to reflect better statistics than those
specific to our issue today.
With that, I now yield to Ranking Member Kuster for any
opening remarks she may have.
[The prepared statement of Chairman Coffman appears in the
Appendix]
OPENING STATEMENT OF ANN KUSTER, RANKING MEMBER
Ms. Kuster. Thank you very much, Chairman Coffman, and
Chairman Abraham, and Ranking Member Titus, who will be with us
shortly, for holding this hearing on Gulf War veterans.
As I have said during our hearing on Gulf War illness last
month, in the 25 years since the end of the Gulf War, many
veterans have suffered from symptoms that are not readily
identifiable or well understood, and still struggle to receive
compensation for their illness.
During our hearing--the previous hearing, we heard from
medical experts, researchers, and Under Secretary Clancy, and
they all agreed that the symptoms of Gulf War illness vary and
that research must continue so that we can better understand
and treat our veterans suffering from unexplained medical
conditions associated with their Gulf War deployment.
In 1998, Congress passed the Persian Gulf War Veterans Act,
which granted veterans who served in the Persian Gulf during
the first Gulf War a presumption of service-connection for
their illnesses associated with their service. This gave our
Gulf War veterans compensation for their illness and access to
VA medical care to treat their symptoms.
This change reflects our belief that veterans should not be
denied disability compensation or access to VA health care
because their symptoms may vary, or because it is not fully
understood what caused Gulf War illness, or other unexplained
symptoms. But 18 years later, we continue to receive reports
that veterans suffering from Gulf War illness and other
unexplained medical conditions are improperly denied VA
compensation for not being able to establish a service-
connection when they were deployed to the Persian Gulf. Each
time this happens, another veteran is being denied the
compensation and health care that this Nation owes to them. And
this is simply unacceptable.
We have also received reports that as a cohort, Gulf War
veterans have a higher disability claim denial rate, higher
than her OEF and OIF veterans. This is why I am concerned about
the end of the Gulf War presumption of services connection this
year. I am concerned that veterans who may have been improperly
denied compensation and health care by the VA will not have a
chance to submit a claim after this point. I am also concerned
that veterans who became sick later in life due to their
deployment will be unable to receive compensation or VA health
care.
The VA has extended this presumption period once, but now
it is up to Congress to decide if another extension is
necessary. I look forward to hearing from our witnesses today
about whether another extension is warranted and necessary. And
I also want to know what needs to be done to improve the
disability claims process for Gulf War veterans.
I want to know if Veterans Benefits Administration
employees are properly trained to rate Gulf War veterans
claims, and how can we improve the quality of the claims rated
so that veterans are not forced to appeal their claim every
time. And with that, Chairman Coffman, I yield back.
Mr. Chairman. Thank you, Ranking Member Kuster. I ask that
all Members waive their opening remarks as per this Committee's
custom. Additionally, Chairman Abraham and Ranking Member Titus
will provide their statements at the conclusion of the hearing.
With that, I invite the first and only panel to the witness
table. Thank you. On the panel, for the Department of Veterans
Affairs we have Mr. David McLenachen, Deputy Under Secretary
for Disability Assistance. He's accompanied by Mr. Bradley
Flohr, Senior Advisor for the Compensation Service of the
Veterans Benefits Administration.
Also on the panel we have Dr. Zachary Hearn, Deputy
Director for Claims of the Veterans Affairs and Rehabilitation
Division of the American Legion. Mr. Alexandra Morosky, Deputy
Director for the National Legislative Service of the Veterans
of Foreign Wars. Did I pronounce that right?
Mr. Morosky. It's Aleksandr, sir.
Mr. Chairman [continued]. Aleksandr. Okay, I'm sorry. Mr.
Rick Weidman, Executive Director for Policy and Government
Affairs for the Vietnam Veterans of America, and Mr. Richard V.
Spataro, Director of Training and Publications for the National
Veterans Legal Services Program.
I ask for witnesses to please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Chairman. Please be seated. And let the record reflect
that all witnesses have answered in the affirmative.
Mr. McLenachen, you are now recognized for five minutes.
STATEMENT OF DAVID MCLENACHEN
Mr. McLenachen. Chairman Coffman, Chairman Abraham, Ranking
Member Kuster, and Members of the Subcommittees, thank you for
the opportunity to discuss VA's processing of claims for
disability benefits from veterans who served and, in some
cases, continue to serve in the Persian Gulf war.
I am accompanied today by Mr. Bradley Flohr, Senior Advisor
in our Compensation Service. We will discuss our efforts to
ensure that Gulf War veterans receive the benefits they have
earned, VA--VA's processing of these claims, its training and
quality assurance efforts, presumptive service-connection, the
statutory authority for establishing presumptions, and the
science and rationale behind such presumptions.
This year marks the 25th anniversary of the start of the
Gulf War. The initial conflict lasted from August 1990 until
February 1991. However, neither the President nor the Congress
has declared an end to the Gulf War. So men and women who serve
in the Southwest Asia theater of operations to this day remain
entitled to presumptions of service-connection based upon their
service.
As of the end of fiscal year 2015, almost 7.2 million
veterans served during the Gulf War era and over 1.8 million of
these veterans were in receipt of disability compensation,
which is the highest percentage of veterans in receipt of
compensation from any era, war time or peacetime. Gulf War
veterans who have received VA compensation average greater than
six service-connected disabilities. Again, more than any other
era. And Gulf War veterans now make up the majority of claims
that VA receives.
VA continues to improve the efficient, timely, and accurate
processing of Gulf War veterans' claims. It has reduced its
overall backlog of pending claims by approximately 86 percent
from its peak in March 2013 to the end of February 2016. VA has
also reduced the average days for waiting for a decision to 93
days, which is a 189-day reduction from its peak in March 2013.
The Veterans Benefits Administration is constantly looking
for ways to improve the service it provides to this cohort of
veterans. We closely review Gulf War issues with the Veterans
Health Administration, the Department of Defense, the Institute
of Medicine, and the National Gulf War Resource Center.
VBA has a national quality review staff as well as quality
reviewers in its local regional offices to ensure that
employees correctly process and decide claims for Gulf War
illness. Last year, VA conducted a special focused review of
decisions on claims for Gulf War-related illness which showed a
94 percent accuracy rate.
Although the science and medical aspects of undiagnosed
illnesses and multi-symptom illnesses are not yet fully
understood, VA continues to review scientific and medical
literature to gain a better understanding of the impact of
these illnesses on Gulf War veterans.
Presumptive service-connection fills a critical gap when
exposure to toxic substances or certain disabilities resulting
therefrom are not specifically documented in a Gulf War
veteran's service records. Service-connection for an
undiagnosed illness or multi-symptom illness requires service
in the Persian Gulf after August 2, 1990, and a qualifying
chronic disability that rises to a compensable level of
severity before December 31, 2016.
Service-connection is also warranted for veterans who
contract certain infectious diseases such as malaria, Q fever,
and West Nile virus after Gulf War service, and that includes
Afghanistan. The Secretary of Veterans Affairs has broad
authority under Section 501 of Title 38, United States Code to
establish presumptions.
To determine which diseases are associated with such
service, the Secretary takes into account reports from the
National Academy of Sciences, and all other sound medical and
scientific information that's available. Public Law 105-368
charges VA with the responsibility for notifying Congress of
NAS findings that might impact presumptions of service-
connection for diseases associated with service in the
Southwest Asia theater of operations during the Gulf War due to
exposure to biological, chemical, or other toxic agents,
environmental or wartime hazards, or preventive medicine, or
vaccines.
That concludes my opening statement, we are happy to answer
any questions that you might have. Thank you.
[The prepared statement of David R, McLenachen appears in
the Appendix]
Mr. Chairman. Mr. Hearn, you are now recognized for five
minutes.
STATEMENT OF ZACHARY HEARN
Mr. Hearn. Thank you. 9,358 days. 9,358 days have lapsed
since our Nation deployed nearly 700,000 brave men and women of
an all volunteer military to soundly defeat an aggressor and
secure the peace. Today, many of these veterans need our help,
and sadly, they have not been able to receive the benefits
associated with their service in Southwest Asia.
Chairman Coffman, Abraham, Ranking Members Kuster, Titus,
and distinguished Members of the Subcommittees on Oversight and
Investigation and Disability Assistance and Memorial Affairs,
on behalf of National Commander Dale Barnett, and the over 2
million members of the American Legion, we welcome the
opportunity to discuss the struggles that veterans with service
in Southwest Asia have faced in receiving disability benefits
associated with their Persian Gulf service.
According to VA's March 2014 update for Gulf War veterans,
37 percent of veterans that served during Operation Desert
Storm suffer from symptoms associated with Gulf War service.
Yet, in over 9,100 days since the final shots of Operation
Desert Storm were fired, approximately 80 percent of all claims
associated with Persian Gulf service were denied according to a
separate VA report.
The concept of the Department of Veterans Affairs
presumptively service-connecting conditions associated with
environmental exposures is not new to this generation of
veterans. Veterans that participated in nuclear testing have
conditions presumptively related to radiation exposure, and
veterans with exposure to herbicides such as Agent Orange have
a host of conditions that are presumptively related to their
military service.
So what separates the Gulf War generation from previous
generations of veterans? For veterans with service in Vietnam,
if they were diagnosed with conditions such as diabetes,
ischemic heart disease, or a variety of cancers, outside of
rare circumstances, they are presumptively service-connected
for these conditions. It is simply a process of receiving a
diagnosis and then determining the severity of the condition
affecting the veteran.
For veterans with service in Southwest Asia from August
2nd, 1990, to the present, gaining service-connection for
presumptive conditions is not as easily accomplished. Many of
these--many of these conditions or symptoms associated with
what VA has labeled as undiagnosed illness. The term is
inherently gray and confusing. Veterans must endure years of
medical testing and may even have multiple diagnoses associated
with their symptoms.
But here's the catch. The moment that the veteran is
diagnosed, it is virtually impossible to receive service-
connection on a presumptive basis because the condition is no
longer undiagnosed.
The American Legion has over 3,000 accredited
representatives located throughout the Nation. To ensure we
provide effective advocacy for veterans, we bi-annually hold
department service officer's school. During last month's
training, we specifically discussed concerns surrounding Gulf
War veterans and presumptive service-connection. Often, these
representatives state that via medical professionals will
assign symptoms to aging or, sadly, even malingering.
For those that ultimately gain service-connection, it only
comes after years of testing to exhaust the possibilities of
other diagnoses. This process often causes significant stress
for veterans and their families.
Beyond concerns surrounding VA, many veterans of our
National Guard and reserve components have an uphill fight
regarding their medical records. While Operation Desert Storm
serves as a first major conflict in the American Century with
an all volunteer military, it also served as the impetus for
frequent use of our guard and reserve forces.
Unfortunately for guard and reserve veterans, treatment
records become scattered between their duty station, mobility
center, and foreign hospitals. As a result, these veterans have
conditions that could be attributed to their military service,
but due to unavailable records, are never able to receive the
required positive nexus statement.
To help correct problems facing Gulf War veterans, the
American Legion believes that all of VA's disability benefits
questionnaire should include asking if, a) the veteran served
in Southwest Asia; and b) has the medical professional
considered the relationship between the sought symptoms and
conditions in Gulf War service.
Additionally, we continue to call for a full implementation
of the Virtual Lifetime Electronic Record. While VA has shown
progress, concerns surrounding obtaining records from the
Department of Defense continue to linger. Finally, there needs
to be an increase in education for medical professionals
regarding Gulf War veterans to decrease the delay in benefits
and an increase in outreach to veterans to improve their
knowledge regarding presumptive conditions associated with Gulf
War service.
Again, on behalf of National Commander Dale Barnett and the
millions of dedicated veterans that comprise the Nation's
largest veterans service organization, we thank you for having
the opportunity to speak today. I'll be happy to answer any
question--any of the Committee's questions. Thank you.
[The prepared statement of Zachary Hearn appears in the
Appendix]
Mr. Chairman. Thank you, Mr. Hearn. Mr. Morosky, you are
now recognized for five minutes.
STATEMENT OF ALEKSANDR MOROSKY
Mr. Morosky. Chairman Coffman and Abraham, Ranking Members
Kuster and Titus, and Members of the Subcommittee, on behalf of
the men and women of the Veterans of Foreign Wars of the United
States, I'd like to thank you for the opportunity to testify on
VA's disability claims process with respect to Gulf War
Illness.
Today's hearing is extraordinarily timely, as this year our
Nation recognizes the 25th anniversary of the Persian Gulf war.
While symbolic recognition is important, the VFW strongly
believes that the most meaningful way to honor the service of
Persian Gulf veterans is to ensure they have access to the
benefits they need and deserve.
All too often we find that this does not happen. This is
largely due to the fact that the signature condition associated
with the Persian Gulf war, commonly known as Gulf War Illness,
presents itself in a way that's not conducive to the
traditional VA disability claims process. Consequently, our VFW
service officers and appeal staff report that VA denies Gulf
War Illness claims at a consistently higher rate than other
types of claims.
Part of the challenge is that Gulf War Illness is an
inherently difficult condition to diagnose and treat. This is
because it presents itself as a host of possible symptoms
rather than a single condition that is clearly identifiable and
unmistakable.
What is certain is that more than 200,000 Persian Gulf war
veterans suffer from symptoms that cannot be explained such as
chronic widespread pain, cognitive difficulties, unexplained
fatigue, and gastrointestinal problems, just to name a few.
Instead of Gulf War Illness, VA uses the term medically
unexplained chronic multi-symptom illness, or simply
undiagnosed illness, to describe those symptoms. Although
undiagnosed illness is considered a presumptive condition for
Persian Gulf veterans, there are certain factors that prevent
them from receiving favorable decisions when claiming that
condition.
When claiming undiagnosed illness, the veteran lists the
symptoms he or she is experiencing. These symptoms are often
seemingly unrelated to one another, affecting multiple body
symptoms. As a result, VA assigns separate disability benefit
questionnaires, or DBQ's, for each symptom and separate exams
are scheduled.
The current Gulf War DBQ asks the physician whether there's
a condition of each body system present, and then asks them to
complete the relevant DBQs. Only after that are questions about
undiagnosed illnesses asked. We find that this practice of
assigning separate DBQs for each symptom being claimed in
connection with undiagnosed illness has the effect of promoting
diagnoses even when those diagnoses are minimally supported.
Once a symptom receives a diagnosis, it's no longer
considered connected with undiagnosed illness, which, as its
name implies, requires that the illness be unexplained. Since
undiagnosed illness is ruled out for that condition, the
veteran no longer has the opportunity to be granted on a
presumptive basis. Often lacking any evidence of the condition
in the service treatment record, a nexus cannot be established,
and the claim is denied.
VFW staff at the Board of Veterans Appeals notes that
remands become numerous in these cases, and veterans often
receive several different diagnoses for the same symptom from
different doctors as a result. They believe that this is due to
minimal support for those diagnoses in the first place. It is
apparent to them that VA seems to go to great lengths to find
diagnoses for each symptom simply so that undiagnosed illness
can be ruled out.
The practice of parsing out symptoms has the additional
effect of preventing a holistic evaluation for undiagnosed
illness. When the claim is for an undiagnosed illness, the VFW
believes the physician should be asked more questions about the
cluster of symptoms, which could be one illness leading to
symptoms in multiple body symptoms rather than separate
conditions related to each symptom. Only if they're confirmed
diagnoses should separate DBQs be completed.
To improve the current system, the Gulf War DBQ should be
analyzed by a team of physicians, including those from a war-
related illness and injury study center. Additionally, VA
should grant veterans reasonable doubt when deciding whether or
not a veteran's symptoms should be considered undiagnosed
illness.
Mr. Chairman, we see this as the most significant barrier
for veterans seeking service-connection for Gulf War Illness.
As noted in my written statement, the VFW has several other
recommendations, including analyzing whether it would be better
to process Gulf War illness claims at a centralized location;
better tracking for Gulf War related BDD claims; enabling
contract physicians to conduct Gulf War Illness exams; and
training for claims adjudicators.
Mr. Chairman, this concludes my testimony. I'm happy to
answer any questions you may have. Thank you.
[The prepared statement of Aleksandr Morosky appears in the
Appendix]
Mr. Chairman. Thank you, Mr. Morosky. Mr. Weidman, you are
now recognized for five minutes.
STATEMENT OF RICK WEIDMAN
Mr. Weidman. Thank you, Mr. Chairman. No doubt each of you
are asking yourselves the obvious question is, given that we're
a single generation organization, why are we here today? And
the answer is, we are committed. Our founding principle is,
never again shall one generation of American veterans abandon
another, number one. But secondly, what is happening to the
Gulf War veterans is all too reminiscent of the way in which we
were bounced around on Agent Orange where they denied, denied,
and most Vietnam veterans who've been through this, it's almost
a truism that delay, deny until they die. And they're doing the
same thing to those who fought in the Persian Gulf War.
It is the sophistry involved in trying to break out the
symptoms in multi-symptom Gulf War illness, is--and then
forcing you to prove that what that is connected to is--the
reason why I say it's sophistry, is VA well knows that you
cannot pin down exact cause when you have a multi-toxin
environment, which is exactly what you had during the Gulf War.
And given that together, it is--it is something that what
we should be doing is doing epidemiological studies intensively
of this population compared with their peers in the military
and the same MOS who did not deploy to the Gulf, and their
civilian peers because it may be something about military life
in general.
So it is--having--having attended the IOM meeting recently,
I, for the first time really, understand the emotional impact
that they keep saying that there's nothing physically wrong
with you. I mean they'll beat around the bush on that, but
basically, that's what they're saying. And they keep running
in--that panel, as an example, was half neuropsychologists and
psychiatrists and half hard science.
So that they're--and the chair was a psychologist, so it's
little wonder that that panel recommended no more hard science
because that's too hard to figure out what has caused all of
this in order to, a) begin to come up with treatments that are
effective, and b) protect our troops in the future by not
exposing them in the same way to the same conditions.
So--and in regard to those who are applying now, they play
the game of divide and conquer on all this, and you're chasing
a rabbit hole about what one particular symptom, what is the
etiology of it, knowing full well that you can never pin that
down. And that's the game that they put individual veterans in
when they apply for benefits and file their claim for
compensation, and that's not just for compensation because you
have to be service-connected unless you are almost indigent in
order to have health care. So it is a denial of all of the
rights of these folks.
I was particularly shocked when I stumbled across this
little puppy, and it's called VA DoD Clinical Practice
Guideline, and it's from 2014. And in this, the whole--all of
this is--the only thing missing in this bit of sophistry is a
snake oil to wash it down, because it says nothing, produced
at, no doubt, at great expense by VA and DoD, but doesn't do a
darn thing to enlighten the individual clinician who is trying
to help that particular veteran. I could perhaps say that more
elegantly, but that's where it is.
We worked very hard with Chairman Benishek and with
Chairman Miller in bringing along the toxic research--Toxic
Exposure Research Act. And one of the reasons why we're so
committed to that bill is not just for children, but also
understanding that any one of these toxic bills has to be
multi-generational, that we've got to rationalize this process
if, in fact, we're going to get beyond the sturm und drung for
every generation.
The--we've already--we are going through it now on burn
pits, there was a major article that came out today that VA and
DoD are stopping any further research into the burn pits, and
they are blaming the Congress for not appropriating more monies
and vice a versa.
Whatever the upshot is this, we need more research that is
systematically, that is for real, into both toxicology, and
even more importantly, the epidemiology of how these toxins
manifest in the veterans' population.
I thank you for the opportunity, Mr. Chairman. I'd be happy
to answer any questions.
[The prepared statement of Rick Weidman appears in the
Appendix]
Mr. Chairman. Thank you, Mr. Weidman. Mr. Spataro, you are
now recognized for five minutes.
STATEMENT OF RICHARD SPATARO
Mr. Spataro. Thank you, Mr. Chairman, Mr. Chairman, Members
of the Subcommittees. I am pleased to have the opportunity to
testify on behalf of the National Veterans Legal Services
Program. There are two topics I'll be discussing today: VA's
handling of claims related to Gulf War illness, and the
extension of the end date for the period during which a
qualifying chronic disability must manifest in order to qualify
for presumptive service-connection.
NVLSP has vast experience with veterans claims for VA
disability compensation under 38 U.S.C. Section 1117, which
requires the VA to pay compensation to Persian Gulf War
veterans for 1) undiagnosed illnesses, 2) medically unexplained
chronic multi-symptom illnesses, and 3) diagnosed illnesses
that the Secretary determines warrant a presumption of service-
connection.
It has been over two decades since Section 1117 was added
to Title 38 of the U.S. Code, yet VA adjudicators still have
difficulty adjudicating claims for the first type of chronic
disability in particular: undiagnosed illnesses. In our
experience, there are four common types of errors that the VA
commits when adjudicating these claims.
The first type of error is VA failing to consider the
favorable rules for presumptive service-connection for an
undiagnosed illness when the veteran does not explicitly claim
benefits under that theory of service-connection. This type of
error typically occurs when the veteran claims entitlement to
service-connection for a particular diagnosis the veteran
thinks he or she has, but does not refer to Gulf War illness.
And the--if the evidence ultimately shows that the
veteran's chronic complaints cannot be attributed to a
diagnosis, the VA adjudicator sometimes denies the claim due to
the lack of a diagnosed disability, which is a requirement for
establishing service-connection under all other theories of
entitlement.
Although VA adjudicators have an affirmative duty to
consider all reasonably raised theories of service-connection,
they often fail to consider the theory of service-connection
for an undiagnosed illness when that theory of entitlement is
reasonably raised by the evidence.
The second type of error is VA erroneously attributing
symptoms that have not been associated with a diagnosed
condition to a diagnosed condition unrelated to military
service. VA then denies the claim on the basis that the veteran
does not have an undiagnosed illness.
We have seen several cases like this in which a careful
review of the medical evidence shows that contrary to the VA's
finding, not all of the symptoms identified by the veteran are
linked to a specific diagnosis.
The third type of error is VA denying the claim due to the
lack of medical nexus evidence. Under Section 1117, a Persian
Gulf War veteran is entitled to the presumption of service-
connection for a chronic undiagnosed illness if certain
requirements are met. In 2004, in Gutierrez v. Principi, one of
NVLSP's cases, the CAVC emphasized that the medical evidence
linking the disability to military service, or the Persian Gulf
War, is not one of those requirements.
The VA, however, continues to erroneously deny some claims
for service-connection for undiagnosed illnesses on the basis
that no medical expert has linked the veterans' symptoms to
Gulf War illness.
The fourth type of error is VA denying the claim due to the
absence of objective indications of a chronic disability
without considering non-medical indicators capable of
independent verification. One requirement for establishing
service-connection is that a veteran exhibit objective
indications of a chronic disability.
Objective indications include both signs in the medical
sense of objective evidence perceptible to an examining
physician, and other non-medical indicators that are capable of
independent verification. And that last part is the critical
part. We have seen cases in which the VA erroneously denied the
claim solely due to the lack of objective evidence perceptible
to a VA physician without considering other non-medical
indicators that are capable of independent verification.
Now I'll move on to the second topic. Under Section
1117(b), the Secretary must establish the period during which a
qualifying chronic disability must manifest following service
in Southwest Asia in order to qualify for presumptive service-
connection.
After initially establishing a two-year presumptive period,
VA has repeatedly extended the end date. Most recently, in
2011, VA extended the end date to December 31, 2016, due to
scientific uncertainty regarding the time period in which
Persian Gulf War veterans had an increased risk of suffering
from chronic illnesses, as well as the fact that National
Academy of Sciences reviews were still ongoing.
Little has changed with respect to the level of scientific
certainty regarding Gulf War illness. Due to this continued
state of uncertainty, VA should again extend the date of
presumptive service-connection during which symptoms of a
qualifying chronic disability must first manifest to at least
December 31st, 2021, if not indefinitely.
I'd be pleased to answer any questions you may have. Thank
you.
[The prepared statement of Richard V. Spataro appears in
the Appendix]
Mr. Chairman. Thank you, Mr. Spataro. The written
statements of those who have just provided oral testimony will
be entered into the hearing record and we will now proceed to
questioning.
Mr. McLenachen, based on testimony from many today, it is
apparent that VA is not doing justice to presumptive claims-
related to undiagnosed illnesses and chronic multi-symptoms,
and chronic multi-symptom illnesses. What good are your quality
reviews when, across the board, VA isn't correctly applying the
law?
Mr. McLenachen. I thank you for that question, Mr.
Chairman. I am not ever going to come to these Committees and
say that we are perfect in the work that we are doing, so I am
not going to tell you that. I will say that we have taken a lot
of steps to improve how we process these claims to include some
of the suggestions that you have heard today, such as improved
training, which we did just within this last fiscal year.
Training is now a part of our challenge training that we
provide to new adjudicators. All adjudicators were required to
take revamped Gulf War training beginning in October 2015,
which is mandatory. I have heard the message about the DBQs. I
intend to go back and look and see whether that is something we
can improve on based on the suggestions that you have heard
here today.
But we have extensive quality review programs, both locally
and nationally, where we do look at these claims, to include
something that we did in addition to those two programs, which
is to do the focused review that is discussed in my testimony.
So we do have a very robust quality review program where we
look at processing of these claims. Having said that, I intend
to look carefully at the testimony of the other witnesses, and
carefully consider their suggestions.
Mr. Chairman. In 2015, the Board of Veterans' Appeals
remanded about a fourth of these claims, nearly a fourth were
granted, only 6 percent were denied, and roughly half remained
unresolved. These same percentages are similar to 2016, so far.
This indicates a problem in the handling of these claims. We
want to know what you are going to do to immediately fix these
problems.
Mr. McLenachen. Mr. Chairman, I just want to challenge the
idea that a remand means that VA did something wrong. In fact,
due to the appeal process that we have, it is often because of
the passage of time. Again, having said that, the goal is
always to resolve the claim at the earliest point possible. And
we have had some discussions recently about how we can do that
better with the service organizations. If the Board points out
errors that make it back to the regional office, we try to
incorporate that in our training to the best that we can.
Mr. Chairman. Yeah. Well, Mr. McLenachen, will VA extend
the presumptive claims deadline?
Mr. McLenachen. We have a rule-making in progress that
addresses that. Before I can provide you a definitive answer,
we have to go through the rule-making process, but I can tell
you we got a new IOM report just recently, which the Veterans
Health Administration is looking at very carefully.
Mr. Chairman. Okay.
Mr. McLenachen. I agree with what was said here today that
the science has not really changed recently.
Mr. Chairman. Mr. McLenachen, according to Ron Brown,
president of the National Gulf War Resource Center, on August
17, 2015, VA stated it would ``do a statistically significant
review of completed Gulf War claims to determine if there is a
problem'' in processing such claims. What is the result of that
review?
Mr. McLenachen. I will let Mr. Flohr address that.
Mr. Chairman. Mr. Flohr.
Mr. Flohr. Thank you, Mr. Chairman. We did do that review.
It was approximately 360 claims, it was a statistically
significant number. We found that we had two claims which
actually were improperly denied. We have taken action to fix
those. And there were another 6, or a little more than 12 or
so, where we either had an examination that was not sufficient,
or an improper examination was done by VHA, and we are
returning those to have those corrected. So our rate there was
94 percent accuracy.
Mr. Chairman. Mr. Flohr, can you provide that information
to this Committee immediately upon completion of this hearing?
Mr. Flohr. Yes. We can do that, sir.
Mr. Chairman. Very well.
Ranking Member Kuster, you are now recognized for five
minutes.
Ms. Kuster. Thank you, Mr. Chairman. Well, it appears to me
that this is deja vu all over again. We are revisiting where we
were with the Vietnam veterans. And it was shortly after I came
to Congress that Secretary Shinseki worked on this presumption
about Agent Orange and I think it, hopefully, has made a
significant difference in the lives, certainly for veterans in
my district in New Hampshire, and I really believe in following
the science where it leads us, but sometimes we don't have it
in a timely way.
And so I appreciate you being with us, Mr. Weidman, and I
want to focus in on that, because it seems like we have a
couple of different catch-22s that I am trying to catch up with
and follow here.
One is that I am impressed by the data, and thank you for
providing it for my district, about the reduction in the
backlog on disability claims, the reduction in time that it
takes for an average claim, and the improvement in accuracy of
claims, but I am trying to reconcile that with this data that
the VA denies 80 percent of claims filed by Gulf War veterans
for conditions related to the war.
I mean, I meet veterans all the time that are trying to
cope with this constellation of symptoms and it is very
challenging, and so I am trying to determine if we believe in
this, if Congress passed this presumption, why are we having
such a hard time addressing, and is the 80 percent denial, is
that these are somehow malingerers that are coming forward? I
don't meet those people.
Mr. McLenachen. So Mr. Flohr has some of that more specific
data that we can provide to the Committee as far as actual
grants and denials, specifically for subsets of the Persian
Gulf war period. I just want to point out, however, that to
some extent I assume that the 80 percent figure that we are
talking about relates specifically to those Gulf War illness
presumptions. In many cases, the veteran is service-connected
for other disabilities that are diagnosed, and for that reason,
there may be a denial on the basis of the Gulf War presumption.
Ms. Kuster. I don't follow. I mean, if they are service-
connected for something else, why would you deny this?
Mr. McLenchen. Well, the condition may be diagnosable, is
what I am trying to say, rather than undiagnosed. And for that
reason--
Ms. Kuster. So I guess that is kind of the catch-22 that
keeps coming up in the testimony of our witnesses, is we have
defined this illness around chronic undiagnosed illness, but as
soon as they get a diagnosis, then they don't qualify. That
seems like really counterproductive to our goal, which is
servicing these veterans who so bravely and courageously fought
for us.
So I guess--let me cut to the chase. Do you need something
different from Congress? And this leads to this extension
because I am confused, you are talking about the VA, this is in
statute. I mean, we need to introduce a bill, right? You need a
statutory change to keep this going?
Mr. McLenachen. No, we don't. We have authority to
establish a delimiting date for the presumption. The current
delimiting date is that December 31st, 2016.
Ms. Kuster. Which is going to be coming up on us pretty
quickly. And what we learned from the situation with the
schematic--is that what it is--heart disease. Ischemic, excuse
me. That we didn't even know that, right? So I am concerned
there may be something that we don't even know. And
particularly with toxins, I have a big problem. And this isn't
on you, this is on us as Congress and on the DoD, about these
burn pits and the toxins that are--and I think one of our
witnesses said it best, I want to protect future troops. I want
to know what is happening.
So the science hasn't caught up with us. I am very
concerned about a fixed date of December 31st, 2016. And I just
want to make sure that if you don't get it done that we get it
done here because we don't even know the constellation of
illnesses that are out there and we want to serve our vets.
Mr. McLenachen. We will have the regulation done. The last
time that we extended the delimiting date, we did it by an
interim final rulemaking, which allowed us to put it out as a
final rule and then--
Ms. Kuster. In a timely way?
Mr. McLenachen. Yes.
Ms. Kuster. So that people aren't stressing out over it.
Mr. McLenachen. And we intend to do the same thing in this
case.
Ms. Kuster. And I do want to acknowledge the improvement
that is being made, and, you know, we want to work with you to
make sure that we are serving our veterans. So, thank you for
your testimony and thank you for the rest of you.
I yield back.
Mr. Abraham. Thank you very much, Representative Kuster. I
will now question the panel.
Mr. Morosky, in your written testimony, you note that part
of the challenge with these claims is that the Gulf War Illness
is an inherently difficult condition to diagnose and treat,
because it presents itself as a host of possible symptoms
common to many veterans that served in the Persian Gulf Region.
As a doctor, I can understand that VA examiners are more
familiar with evaluating a single condition that is clearly
identifiable and unmistakable, but that being said, how do you
suggest that the VA improve the quality of the examinations of
veterans who served in the Gulf War?
Mr. Morosky. Thank you, Mr. Chairman.
So, as it has been pointed out, it is a bit of a catch-22
for veterans who are claiming the undiagnosed illness because
it could be a host of symptoms that they are claiming. It could
be chronic pain, chronic fatigue, or gastrointestinal problems,
and these are all known symptoms that could be considered under
the chronic multi-symptom, undiagnosed illness. However, when
VA looks at the claim, instead of giving one disability
questionnaire to one physician to look at and consider whether
or not those symptoms are Gulf War Illnesses, they are parsed
out and one DBQ goes to a physician to look at the
gastrointestinal problem. Another physician gets the
questionnaire to look at the fatigue. Another physician gets
the questionnaire to look at the chronic pain.
And then, of course, when looking at them in a vacuum and
not looking at it globally, what doctors do, as you point out,
is to diagnose. So if the veteran comes back with diagnosis of
Crohn's disease, fibromyalgia, and depression for those, they
are no longer considered an undiagnosed disorder, and,
therefore, they can't be considered undiagnosed illness, so
they are not able to be adjudicated on a presumptive basis;
whereas, if they were considered undiagnosed, they would have
been adjudicated on an presumptive basis. So, since they are
not, the claims adjudicators look into the service record and
they don't see these there, and so they are denied.
Mr. Abraham. So, how do you suggest fixing it, a different
DBQ?
Mr. Morosky. Yeah. Sir, we would suggest a DBQ where, when
symptoms are claimed by a Persian Gulf War veteran that are
consistent when taken together with Gulf War Illness, that a
single Gulf War Illness DBQ be given to a single physician who
is trained to look for those symptoms and look at those
globally; look at them holistically, so that the physician can
then say, yes, this is consistent with Gulf War Illness. This
veteran has an event which is serviced during the Persian Gulf
War and then be able to grant on a presumptive basis in that
way. So, a holistic view versus parsing out the symptoms and
not looking at them individually.
Mr. Abraham. I understand.
Any other VSOs wish to comment? Mr. Hearn? Mr. Weidman? Any
suggestions as to how these examinations could be more
productive?
Mr. Weidman. Trying to parse it apart, when, in fact, you
cannot separate the multi-toxic environment in which they were
initially--had the problem originate is, you are never going to
pin down what that silver bullet is. It just doesn't exist in
environmental health science.
And VA knows that and that is why it is pulling it apart in
order to come up with the wrong answer. The real question is,
why haven't they done the epidemiological work on this
population in a serious way that would give us some of the
answers as comparing those who served in the Gulf versus those
with the same MOS who served elsewhere during that timeframe,
and they haven't done that in any kind of serious way. And once
they do that, a lot of this will become clearer.
Let me just add that this--VA has the authority to have a
shut-off date. They did the same thing with lung cancer having
to do with Agent Orange and we finally took them to court and
they had to lift that delimiting date, because they had zero
scientific evidence--
Mr. Abraham. And let me interrupt you. I apologize. I want
your statement, but I want to ask one more question to Mr.
Flohr.
Given what you have just heard, Mr. Flohr, how is VBA
ensuring that the quality controls are sufficient to ensure the
raters are held accountable if they rely on inadequate
examination results for Gulf War veterans?
Mr. Flohr. Yes, thank you for your question.
As recently as the end of 2014, we actually revised our
training materials for our claims processors, with respect to
Gulf War Illness. We put into our training system, every one of
our claims processors, including not only rating specialists,
but the other--the initial people who review claims. We were
required to complete that by last September and they did so.
So we have updated it. We are always looking for ways to
update our training to make it better where we find that there
are problems with it.
By the same token, Veterans Health Administration revised
their training for examiners who do Gulf War Illness claims.
Mr. Abraham. And what about quality for purposes of STAR
for a rating review, what is going on there?
Mr. Flohr. Quality where? I am sorry, where?
Mr. Abraham. STAR review.
Mr. Flohr. STAR review?
Mr. Abraham. Yes.
Mr. Flohr. Do we know about our STAR review quality? It
is--our overall quality is like 92 percent.
Mr. Abraham. Okay. And I am out of time. I will ask some
follow-ups in a written questionnaire.
As a follow-up, what about the 90-to-91 group; what is
going on?
Mr. Flohr. I don't think we have that quality by group.
That is our overall quality rate.
Mr. Abraham. We would appreciate it for the record, please.
Mr. Flohr. Okay. Thank you.
Mr. Abraham. Mr. O'Rourke, you are recognized, sir.
Mr. O'Rourke. Thank you, Mr. Chairman.
I wanted to ask Mr. McLenachen to respond to Mr. Morosky's
suggestion that you have one DBQ handled by a single physician
to be able to look at this comprehensively, instead of breaking
it out into separately diagnosed symptoms.
Mr. McLenachen. It may have been before you joined us, I am
not sure, but I committed to going back and taking a look at
what we are using as far as a DBQ, to see if there are those
types of changes that we need to make, so I will go back and
take a look at that.
Mr. O'Rourke. Okay. So your commitment is to review it; you
are not necessarily committing to that process, which seems to
make a lot of common sense to me. If we are concerned about
what the Ranking Member referred to as a catch-22, that is, you
begin to diagnose these individual symptoms, you are no
longer--you no longer have an undiagnosed illness. That seems
to be the answer to me, so I am not sure--why don't you tell us
the factors that you will look at, as you consider the
proposal; in other words, I am wondering why you can't just
commit to adopting that as the way forward.
Mr. McLenachen. Well, I would like to show up here for a
hearing and have all the information I need to answer that type
of question, but I don't have all that information with me
right now. The best I can offer you is that I will go back and
look at that specific issue and the recommendation and see
whether that is something that we can and we should implement,
and that is my commitment to you.
Mr. O'Rourke. What is the argument against it?
Mr. McLenachen. Well, based on what I am hearing, first, we
have to confirm that that is the--that that is a real problem
that veterans are experiencing, and if it is, then it is
something that we need to fix. So, then, I would not disagree
that it's something we need to fix.
Mr. O'Rourke. Okay. And I am sorry to pursue you on this
one, but it seems as long as we have everyone here, we might as
well get to as close to the bottom of it as we can. You said
you want to substantiate that veterans are really having this
problem of these separate diagnoses. It seems like every single
person up here has confirmed that that is the case. I don't
think that you doubt their credibility on this.
Mr. McLenachen. Not at all.
Mr. O'Rourke. We don't, as the representatives of Gulf War
veterans, doubt the stories we are told by our constituents, so
that factor seems to have been eliminated.
I am very open to a counter-argument to the one proposed by
Mr. Morosky, but unless there is one, I think we have to move
forward. We can't, 25 years later, continue to extend deadlines
or talk about this at another hearing. I have only been here a
little over three years and it does not seem like we are making
a lot of progress on it.
Not because of any lack of commitment, necessarily, on your
part, but I do think we need to have a conclusion and a
solution to this. And this doesn't solve everything, but I
think gets to the catch-22 issue that so many of us have asked
about and so many of the VSO representatives have highlighted.
So, all speed possible on your decision and I, for one, am
sure, joined by the other Members of the Committee, would like
to hear your response to that and would like to share it with
the VSOs as soon as you have one. How long do you think it will
take for you to get an answer on that?
Mr. McLenachen. I will start looking into it today when I
get back.
Mr. O'Rourke. Okay. And when do you think we can hear back
from you?
Mr. McLenachen. I can't tell you exactly, but we are going
to owe some information after this hearing, as far as what we
have taken for the record. I think we can make it part of that.
Mr. O'Rourke. Mr. Hearn, a question on a separate topic. Do
you happen to know what the average age of a servicemember
during the Gulf War was, 20, 21, 22?
Mr. Hearn. In 1990 and 1991, I don't know that number off
the top of my head, but--
Mr. O'Rourke. Early 20s?
Mr. Hearn. I am sorry?
Mr. O'Rourke. Early 20s?
Mr. Hearn. Yeah, I would certainly say early 20s, but let's
think about it like this, if you do the math on it, a person
that was towards the tail end of their career could have served
in Vietnam. The son or daughter served in Iraq or during Desert
Storm or Desert Shield. And then the children of those people
from the Gulf War. So we are talking about three generations
now--three generations--of Americans.
And I saw this--there was an article that came out in
Fortune just this week--they said 25 percent of recruits that
had served in the military. So it is very possible that this
type of situation occurred. We are talking about three
generations of the same family could be impacted from serving
in the same area.
Mr. O'Rourke. Well, I wanted to ask you about a point Mr.
Weidman brought up, which is how long it took for Vietnam-era
veterans to have that presumptive condition awarded or
recognized. And I wonder if someone who, let's say, was 20
years old in 1991 is 45 today, or if they were at the tail end
of their career and they are in their mid-60s, if we are seeing
different symptoms--in other words, cancers--as they get older.
As this cohort ages, are we seeing more critical urgent issues
that need to be attended to, that the urgency that I think was
part of eventually recognizing the presumptive condition for
Vietnam-era veterans?
I am going to, unfortunately, have to take your answer for
the record, because I am out of time, but I am very interested
in how we can add additional urgency as this cohort ages, based
on the conditions that we are seeing.
Mr. Hearn. We will be happy to look into it and send it to
you then.
Mr. O'Rourke. Thank you.
I will turn it back to the Chair.
Mr. Abraham. Thank you, Mr. O'Rourke.
Dr. Benishek, you are recognized.
Mr. Benishek. Oh, thank you, Mr. Chairman.
Welcome. Actually, I want to do a little more follow-up on
what Mr. Weidman had to say. I think all of us here would like
to know what is going on with this Gulf War Syndrome a lot
better and, you know a physician doesn't like a vague
diagnosis. I mean you want to be able to do a blood test and
then a yes or no, right? We don't have that here.
And I think the point that he made is that more research
needs to be done is the critical one here. And do you all, or
are any of you are aware of what is going on in that
department? Mr. Weidman, you mentioned, physically, the
epidemiology studies that, you say, haven't been done. What is
going on in the research of this Gulf War Syndrome?
Mr. Weidman. The most useful research that is going on
today is the CDRMP, the Congressionally Directed Medical
Research Program, and the reason for that is that research and
development at VA simply wasn't concentrating on research that
would lead anywhere, if, in fact, they committed monies at all.
You know, it is real--if you decide you want to find nothing
and you work really hard at it, the likelihood is, you are
going to find nothing, and that is exactly what VA has done
here and in regard to other generations both, those who served
in the recent wars as well as Vietnam.
What the Institute of Medicine has repeatedly, time and
time and time again, has urged VA and DoD to start to mine the
mountain ranges of data they have on all of us and they don't
do it. And that is how you can really start to make a
difference.
Let me just give you one example from Vietnam vets. Some of
the most useful research that has been done was not directed
from Washington, was not funded by Washington; it was
individual clinicians in the field who were able to hustle some
graduate students and did epidemiological work of Vietnam
veterans who had served in Vietnam or Vietnam veterans who had
not served in Vietnam and who was more likely to have prostate
cancer, as an example. That is how we found out that prostate
cancer among those who served in-country was almost three times
that of the era vets.
That kind of work is simply not being done by VA for any
generation as a systematic thing.
Mr. Benishek. I appreciate your answer, but I just want to
get to a couple more items. Is there currently a registry for
people who complain of Gulf War Syndrome symptoms?
Mr. McLenachen. Yes, there currently is a registry program.
Mr. Benishek. I don't understand, though. Do you object,
personally, to extending the dates of eligibility for this, in
view of the fact that there is a lot of vagueness to the
diagnosis here, and that more time needs to be--I think more
research needs to be done, than to have this cutoff date be an
issue for people when there is so much uncertainty as to what
the real etiology is. I mean it could be that there is some
bacteria like TB or something that has just not been found that
could be really the answer here.
I don't know what it is, but there is a lot of uncertainty.
Mr. McLenachen. I have no personal objection. We have to go
through the rule-making process, but the reason why we did the
five-year delimiting dates was because of that uncertainty in
the medicine and the science. So, that still exists today, so
if that reassures you--
Mr. Benishek. Are there cutoff dates to other--is this a
common thing that VA does, to cut off dates for application for
eligibility?
Mr. McLenachen. No. The statute that we are dealing with
here gives the secretary authority to establish this particular
cutoff date.
Mr. Benishek. Does anyone else from the VSOs want to
comment on what is going on? Mr. Morosky?
Mr. Morosky. Sir, we absolutely agree that more research is
warranted here. Right now, the only presumptive disorders for
Gulf War Illness are either certain infectious diseases or you
have this chronic multi-symptom unexplained medical illness.
Under that, there are a lot of diagnoses, as I explained
earlier, that come out of those symptoms. We would like to see
research as to whether or not those diagnoses that are commonly
given for those symptoms ought to be presumptive conditions in
and of themselves. So if the gastrointestinal problems are
being diagnosed as IBS, maybe IBS should also be a presumptive
condition, which would lead to fewer denials, but that is what
research would be for.
Mr. Benishek. Mr. McLenachen seemed to indicate that a lot
of the people were denied the undiagnosed disability, but were
given a diagnosed disability. Is that the case? Or maybe I
better take that for the record, because I am obviously running
over time, but if you could give me the percentage of those
numbers for the record, I would like to know that.
Mr. Flohr. With respect to that, when the first Gulf War
veterans returned from the Gulf and started complaining of
multiple symptoms, for which a diagnosis could not be
established, VA had no way to compensate them because our
statutory authority is to provide compensation for disability
resulting from injury or disease. So we worked with Congress,
the Congressional staff, and that worked in the 1994
legislation that created Gulf War presumptions and the whole
Gulf War process.
Mr. Abraham. Mr. Flohr, we are going to interrupt you. The
time is out, but if you'll put that in for the written record,
we would appreciate that.
Mr. Flohr. Okay.
Mr. Abraham. Mr. Walz?
Mr. Walz. Thank you, Mr. Chairman, and thank you for all
being here.
I am going to go off this issue on the research and the
cutoff dates. I think a little history is warranted here. Last
summer when the Agent Orange Act was coming to expire, 53 of us
co-sponsored that and it ended with a whimper without even a
floor vote. And the argument we made was, is that the research
wasn't in yet and we needed a little more time.
That piece of legislation required the National Academy of
Sciences to do a meta-analysis of all the research that was
being done out there and compile that. I asked last summer, at
least extend it to March until that study came out. Well, it
came out last Thursday, again, with a whimper, and in that
study, it showed a connection to bladder cancer and thyroid
problems with Agent Orange.
My question is, now, because that expired and because there
is no authority of that piece of legislation, do you have,
under Title 38, to do presumptions now for bladder cancer?
Mr. McLenachen. Yes, the secretary has very broad authority
under Section 501 of Title 38.
Mr. Walz. Is it naive of me to think that after 25 years of
that and the biennial reviews by the National Academy of
Sciences, a meta-analysis of all the research that was out
there, did we just do a wonderful job of picking the last two
things they are going to find on the very last report that they
will do? Would it have not made sense to extend it on for five
more years to continue it--and I am going to segway into this
that he has that broad authority; that broad authority, then,
exists for Gulf War Illness.
Mr. McLenachen. So, for Gulf War Illness, there is actually
a public law, Public Law 105-368 that was enacted in 1998 that
requires both NAS and the secretary to report to the Congress
on scientific study results that would impact presumptions for
Gulf War veterans. That law still exists and the secretary
still considers that information in creating presumptions.
Mr. Walz. And I don't want you to speak for the secretary
on this, sir. I know your issue is where you are at and giving
us the answers.
What will it take now for Vietnam-era veterans, with
exposure to Agent Orange, to get bladder cancer and thyroid
issues, which are going to be multi-symptom, which aren't going
to be difficult, what will it take now for them to get that
covering that presumption done? What are the next steps
involved here?
Mr. McLenachen. So, the secretary is required to consider
all medical science to include the National Academy's
information that they provide, and based on the information
that he considers, there is a workgroup that is established in
the Department of Veterans Affairs whenever these presumptions
are considered; it includes VHA experts, legal experts, our
benefits experts. And they get together and prepare a
recommendation for the secretary.
Mr. Walz. And that is what happened with Parkinson's. We
did--that same process went through for Parkinson's and then
the Nehmer claims, they came following that.
Mr. McLenachen. Yes. Whenever a presumption is created, it
goes through this process and if the science is there to
support it, then the secretary will create a presumption as
to--
Mr. Walz. Am I hearing you right, that it is different for
the Gulf War, then, that it is for Agent Orange?
Mr. McLenachen. Well, you had a concern about the
expiration of the law that required us to go to NAS and then do
a rulemaking within a specific period of time. Now, that law
expired for the Agent Orange presumptions.
My message to you is, that the expired authority has no
real impact for us, because the secretary has separate
authority to do it on his own, as far as Gulf War veterans, we
are still required by law to receive those reports from NAS and
consider them. So that gap does not exist for Gulf War
veterans.
Mr. Walz. But I would suggest to my colleagues here, why
were we so willing to give up to the executive branch the
authority to make these decisions, and why we gave away our
power with the expiration of the Agent Orange Act. Now it makes
it very difficult for us to go back and make the case here so
that we can have a say, so that witnesses can have their input
into this in a more direct channel.
And this is no condemnation on you; you are following the
rules as they are written for you. This is a soliloquy maybe to
us that I think we need to take more of the lead on this. I
think we need to make sure, because I think as science moves
along, the research possibilities are still out there, and I
think we are shutting doors and around here, once a door is
shut, it is dang hard to get it back open again, and I think
that is a mistake that we have laid the groundwork for. And
this may give us the opportunity, through the Toxic Wounds Act,
Mr. Benishek and others, maybe is an opening to that.
So, I understand and I know you will do what is directed
and you want to care for the veterans. I think we need to give
you the tools to do that. I think the broad tools the secretary
has are wonderful and I cannot say enough when then-Secretary
Shinseki made the ischemic heart, the Parkinson's, it was the
right thing to do, but that was a long fight.
And now I feel like if you have bladder cancer and you are
listening to this and you have thyroid issues where you were
told it wasn't connected, as of Thursday, I am going to say it
was. And my suggestion is that I wish we, as a Congress, could
say it was. So, more of a clarification.
I thank the Chairman for your time.
Mr. Abraham. Thank you, Mr. Walz.
Mrs. Walorski?
Mrs. Walorski. Thank you, Mr. Chairman.
Mr. Spataro, I want to direct this question to you, but I
want to tell you a quick story about a veteran in my district.
She joined the Army in 1990 and was first deployed to the Gulf
as a part of Desert Storm and eventually was deployed to Desert
Storm. She eventually left the Army in 1993, but after leaving
the service, she began to have stomach pain, severe headaches,
muscle pain, irritable bowl syndrome, and trouble sleeping.
In order to cope with these issues, she took over-the-
counter meds, not thinking those conditions were a result of
her military service. Years passed before she realized that all
her medical issues were caused from her time serving in the
Army.
In 2011, she applied for benefits at the VA for Gulf War
Syndrome, but was denied about a year later. In 2014, two years
after her initial denial and appeals letters to the VA, she
finally got an exam for Gulf War Syndrome. After three years of
battling VA, she received partial benefits for her migraines
and irritable bowl syndrome, but not for the rest of her
medical issues.
Her issues have been so debilitating that she had to quit
her job. In her letter, she says, ``Finally, on February 25th,
2015, I walked away from my job, my source of income, and the
only source of reality that brought meaning to my life and
amidst of pain and hurt, besides my family.'' And this is--I am
going to quote her. Here's actually what she said to me in her
letter, ``I was more disappointed than surprised, after all, to
the VA, we, as veterans, are nothing but a money business. We
are numbers on a piece of paper with no face. The VA denies
claims or takes forever to answer them, hoping that we veterans
will die before they come up with an answer. A VA
representative advised me to write a letter to the VA telling
them of myself, hoping they would think of me as a person,
instead of a gold digger--and gold digger came from the person
at the VA.''
Our veterans should not feel like gold diggers when they
seek the help for the benefits they deserve. They shouldn't be
treated just like another number on a piece of paper. And I
wanted to tell you this story because it is what I hear from
veterans almost every day.
So, my question to you, Mr. Spataro is, in a case of this
veteran from my district, many of her debilitating issues were
denied by VA. Do you have an example of a case in which VA
erroneously attributed symptoms of an undiagnosed illness to a
diagnosed disability? And you kind of alluded to this before,
but can you kind of share a little bit more in reference to
this case?
Mr. Spataro. Yes, Congresswoman. It does seem like a fairly
common problem that we see. An example where VA has attributed
a symptom--an undiagnosed symptom to an illness, a case I had,
for example, the VA--the veteran had liver problems. Testing
showed--blood testing showed issues with his liver and the VA
actually found that the veteran had Hepatitis C and we were
flabbergasted.
The veteran told me, "I don't have Hepatitis C. Why was I
diagnosed--why is the VA saying I have Hepatitis C?" We
reviewed the record in the veteran's case, and we noticed that
there was another veteran with the veteran's same name who had
Hepatitis C. His records had been erroneously associated with
that veteran's claims file, and just carefully looking at it,
you would have seen that the medical record numbers, the Social
Security numbers were different, but that is the kind of error
where there might be incorrect medical records associated with
a claims file.
Other times, it just seems that the VA adjudicators are
very quick to overbroadly interpret medical records and medical
evidence without very carefully looking at and separating each
symptom and seeing if there is--that a doctor has specifically
attributed a diagnosis to each symptom.
Mrs. Walorski. Yeah, I appreciate it.
And Mr. McLenachen, did you recognize this issue? When you
came to this hearing today, did you expect this hearing to be
what you are hearing from Members of Congress, and even in my
case, a specific issue of veterans that we deal with every day,
or did you think it was going to be about something else? Were
you aware of the fact that this was going to be specifically
about all of these ``undiagnosed diseases'' and this Gulf War
Syndrome?
Mr. McLenachen. Yes, that was the subject of the hearing.
Mrs. Walorski. So, what do you do when you leave here? And
you hear all this information and testimony, we have questions,
we have numbers, we have all kinds of unanswered questions.
Many of us are I think left with this issue of how quickly can
you correct this?
Is there something that is correctable or is this something
that is going to take another action of Congress to fix?
Mr. McLenachen. Well, as I committed to Mr. O'Rourke, what
I do is, when I am here and I hear these issues, I go back and
I look into it. The DBQ is a good example. I wish--if that is
the problem, I wish we could fix it overnight, but it requires
coordination with VHA. We have to do the public notice that is
required through the Paperwork Reduction Act.
Mrs. Walorski. Do you think that it is something that can
be fixed, though, inside the VA without additional action from
Congress?
Mr. McLenachen. Yes.
Mrs. Walorski. Okay. I appreciate it.
Thank you, Mr. Chairman. I yield back.
Mr. Abraham. Thank you, Mrs. Walorski.
Dr. Roe?
Mr. Roe. I wish Mr. O'Rourke were still here. I went to Dr.
Google and found out that during the Persian Gulf, it was the
oldest Army that we have had since the Civil War, age 27, and
six years older than average Vietnam, because a lot of
reservists, I think, were called up as opposed to when I was in
the service, it was mostly drafted individuals.
I will start out by saying, you cannot have too much
information; it is impossible to have too much information. I
think you just extend the date, at least five years, or maybe
indefinitely to study this issue.
I would disagree with Mr. Weidman on one thing, though.
Environmentally, you can specifically find--we may never in
this case and probably won't--but you can find an environmental
substance that is the cause of certain problems. There is no
question. I have seen that over and over again.
The problem with this condition--and you have three doctors
up here--is headache, fatigue, chronic pain, and GI issues. I
mean we make our living seeing that and people never got near
the Persian Gulf.
And it is really hard--and I think, Mr. Weidman, you hit
the nail on the head when you say we have to look--there may be
a cohort of people in Iraq that you could study. There
certainly are a cohort of people who never deployed, who were
military age, who never deployed. And why we would stop
investigating that is beyond me, when we don't have a clear
ideology of what this is.
So, I am really going to strongly encourage the secretary,
if they have the discretion to do that, to do that, to extend
this date to get more information, because we want to get it
right. I think everybody said up here, look, you served the
country and if something in your service caused you a
disability, we need to compensate that disability. It is that
simple. If it didn't, we don't.
Right now we don't have the information to say one way or
the other, and to play semantics with words bothers me. Whether
you call it Gulf War or whether you call it whatever, you are
still talking about the same thing and to presume somebody--I
mean, to make a presumption based on how the verbiage is, may
be silly. I think it doesn't make sense to me.
I want to encourage us to do that. It is a very, very
difficult thing to pinpoint when you--and I am sure Dr. Abraham
and Dr. Benishek, too, will attest to this--two things that
made me the--that frustrated me the most in practice was if we
didn't know what was wrong with you, we just said you were
nervous or you had a virus, when we didn't know what the
problem was. And that is sort of what has happened with these
veterans, I think.
I think we need to study it, make the presumption open-
ended. I don't think we need to stop at the end of this year.
It makes no sense to me to do that.
So, until we get more information, that is really all I
wanted, and I am open to any comment from any of the panel
Members. You have been a great panel. Thank you for being here.
I mean, you are welcome to comment or I will yield back my
time.
Mr. Morosky. Thank you, Congressman.
You know, as you pointed out, there are a group of
disorders which can be common in the general public, as well. I
think the way we look at it is, when it is taken together and
put together with this event in service, which was service in
the Persian Gulf war, and you start to see it over and over
again as a cluster of symptoms, which is what we look at when
we talk about Gulf War Illness, as opposed to just parsing them
out.
And if you would use an example of say, TBI, we see a lot
of veterans--that is a signature of the current era war. You
might have a veteran who comes in and says, you know, I am
experiencing some dizziness, I have some memory loss and I have
some sleep problems. If you looked at those individually, you
might say, oh, you have vertigo or, you know, you have some
sort of a cognitive disorder. But when you look at them as a
cluster and then you look back in the record and say, oh, you
have blast exposure--
Mr. Roe. That is a little different, though--
Mr. Morosky. --then that makes sense.
Mr. Roe. --you can specifically point to an etiology there,
where the veteran was within 50 meters of a blast or wherever.
That is a lot easier than this one, than Gulf War Illness--
Syndrome. It is much easier, I think.
Mr. Morosky. I agree, but I just--the comparison is there,
if you were to look at service in the Persian Gulf War, if we
are going to assume, because there is already a presumptive
basis for chronic multi-symptom disorder, if you were to look
at that as an event in and of itself, but I agree with you that
it is not a perfect comparison.
Mr. Roe. Here is where Mr. Weidman is absolutely correct.
Here's a blast. That is definitive. We know it happened and
document it, no problem. There may be people who have those
symptoms that you--look, I probably have had all of those
symptoms at one time or another in my life and probably
everybody at the dais out there has also had most of those
symptoms. You could have those symptoms and be in Iraq and not
have Gulf War Syndrome. I mean that is the problem that you get
into, is that these are so common that it makes it--it is
extremely difficult of all the--even more so than Agent Orange,
this much more difficult to nail down, I think, than Agent
Orange is. Agent Orange, basically, I think we have the
science, as Mr. Weidman clearly pointed and Tim pointed out a
minute ago--Mr. Walz did. Here, we don't have that and that is
why it is foolish to stop studying this.
With that, I will yield back.
Mr. Abraham. Thank you, Dr. Roe.
And I am going to start a second round of questioning,
because I have a question and I want it answered. I will start.
Mr. McLenachen, you stated that one of the challenges faced
by the VA is making the call as to whether a diagnosis is
appropriate before granting an undiagnosed illness; however,
under Joyner v McDonald, it is inappropriate for VA to engage
in this type of process of elimination. So why is the VA
insisting that a diagnosis first be ruled out? I am a little
confused there.
Mr. McLenachen. Well, I guess the problem is we are talking
about different types of claims. I mean if VA gets a claim and
an individual doesn't specifically claim that these Gulf War
presumptions apply and we are looking at the totality of the
claim to grant what we can, it may be that that is what takes
us down that direction of granting something that is diagnosed.
Brad, do you have anything that you want to add?
Mr. Abraham. So, why does a veteran have to specify Gulf
War specifically? Again, I am somewhat in the gray there.
Mr. Flohr. If I may say, the problem with undiagnosed
illness is that--
Mr. Abraham. Well, all three areas of entitlement have to
be considered. You understand that, right?
Mr. Flohr. Of course.
Mr. Abraham. Okay.
Mr. Flohr. Yeah. But when we schedule someone for an
examination who claims various symptoms which have not been
diagnosed, the first thing doctors do, right, is try to figure
out what the diagnosis is, because if they can't, they don't
know how to treat it appropriately.
So, when they cannot come up with a diagnosis, then what we
are looking for is a VHA or a contract examiner to say the
veteran has an undiagnosed illness of the respiratory system,
of the cardiovascular system, whatever it may be. But if they
diagnose something, sinusitis, bronchial asthma, that becomes a
disability and then the standard rules of service-connection
apply. It has to be a current disability. It has to be
something that happened in service. And it has to have a
relationship between service and the current disability.
Mr. Abraham. When you start the exam, is that veteran
flagged as a Gulf War veteran or no? Yes?
Mr. Flohr. Oh, no. When they file their claim, we get their
service records. We have their DD214. We know they are a Gulf
War veteran.
Mr. Abraham. But does the examiner know that?
Mr. Flohr. They should, because they--I think so. On the--
when we schedule the exams, they have that information, yes.
Mr. Abraham. Okay. So why wouldn't the examiner consider an
undiagnosed illness in that case?
Mr. Flohr. If the veteran is only complaining of
constellation or several symptoms, rather than the veteran
claiming a specific disease--
Mr. Abraham. By my definition, that is an undiagnosed
illness if he has a myriad of symptoms, but you can't put a
diagnosis on it. Well, by definition, to me, that is an
undiagnosed illness.
Mr. Flohr. Correct. See, our claims processors are not
physicians. They are not scientists. They can't make that
diagnosis of an undiagnosed illness themselves. They need a
physician to tell them that. They need a physician to say, this
veteran has an undiagnosed illness. We can't do that ourselves.
Mr. Abraham. So, claims processors are just really not
quite sure how to handle the undiagnosed illness; is that what
you are saying?
Mr. Flohr. I am not saying we don't know how to handle it.
It is a problem because, generally, they end up being diagnosed
with a disability, rather than an undiagnosed illness.
Mr. Abraham. Is that appropriate in all cases?
Mr. Flohr. Not in all cases, but quite often, that is what
happens.
We used to get--under--former Under Secretary Hickey used
to get emails, 10, 15, 20 a day from Gulf War vets saying, I
don't know why I have been denied for my presumptive conditions
and they say I have got sinusitis, I have bronchial asthma.
Those are not undiagnosed illness. Those are diagnosed
illness and then they have to be associated somehow with their
service, rather than being a presumptive.
Mr. Abraham. Mr. Hearn, What is your take on that answer?
Mr. Hearn. Well, it is a little bit like the insurance
commercials when there is Tarzan and Jane and they say, well,
you know, swinging around the jungles that is what they do. It
is the same way with doctors to a certain extent, because it is
in your DNA, right; make a diagnosis. That is what you do.
Nobody wants to take their car to the mechanic and have the
mechanic come back and say, I don't know what it is. It is the
same way there.
But the other problem is, is that what we have seen time
and time again in doing our quality review checks is that there
really ought to be a culture of when the rater looks at it,
when the doctor looks at it, what can we do to get the benefit
to the veteran, not what does a veteran have? Those are two
different thought processes.
And a lot of times--there is nothing on the DBQ right now
that says, is this veteran a Gulf War veteran? They go to the
VBMS and it says that they would have to go all the way down--
assuming that the VBMS isn't mislabeled--and look for the 214
to show that the veteran has, you know, the Iraqi Campaign
Medal, the Kuwait Liberation Medal, the Expeditionary Medal.
So, there are all these parts that are going into this and it
is inherently gray, and that is what the problem is.
You know, I understand when they say that--and I guess I am
a little bit confused because VA has said that a lot of those
remands, that was time-constricted or that was because of the
lapsing of time. But remember that we are trying to get
something service-connected here, so I don't know where the
time lapse is going to cause the problem where you are going to
end up getting remanded.
Now, if it is an issue where we are trying to get an
increased rating, then, yeah, you have dated exams and you have
other things that are going into play.
So I think you have kind of got, you know, a mountain of
things that are happening here. One is that we need to train
the doctors. It is not right that veterans are being told by
doctors that they are malingering; that is not fair. And you
have to get them to get out of that DNA of diagnosing people,
you know. And I think from there, if we can start tackling that
issue, maybe we can start moving forward.
Mr. Abraham. Thank you, Mr. Hearn.
Ms. Kuster?
Ms. Kuster. I am just wondering--just to continue this
conversation--would it help if we changed the underlying
presumption? Like, we have created this catch-22. As a matter
of public policy, it sounds like it is an unintended
consequence of what my colleagues, before I got here, were
trying to do. We were trying to help Gulf War veterans who had
a constellation of symptoms and we didn't have the science and
the words to catch up with what that should be called.
And we have created--and we are putting the VA between a
rock and a hard place. We have asked them--we have defined it
as undiagnosed and then, I agree, when you have sinusitis or
something else, and you go to get the benefits based upon that,
that is no longer undiagnosed.
But the rest of the constellation, we still don't know the
where or why or how. We know the wherefore; something to do
with what was going on during that service. So, I guess it
seems to me the short-term solution is--and we have been
talking up here about a bipartisan letter urgency the secretary
to move toward this single DBQ, but we may need to also unravel
the catch-22 that we have created in our attempt to help Gulf
War veterans. Because I agree with Mr. Hearn, our goal is to
help them, but we have created these boxes where you start
checking and it creates a problem.
I want to get at, if we could, with either of our witnesses
from the VA, that the science behind this and what is helpful
to you. Who do you rely on and is the National Academy of
Sciences or anyone else starting to look into what Mr. Weidman
raised, which is, you know, my concern is going forward. We are
exposing our troops to toxic chemicals and waste that we do not
understand the significance of.
I have had a respiratory illness myself based upon a trip
to Alaska during a volcano, okay, and my doctor has had a hard
time analyzing that and determining that. But I knew I got on a
plane. I was in a volcano. I was in the--you know, I ingested
the ash, which is crushed glass. It got in my lungs and I was
sick; now, I am better.
So, who are we looking to? What is the state of the
science? And what could we be doing to encourage more science
to determine the causation on this?
Mr. McLenachen. Unfortunately, I think we are generally
going to have to defer to the Veterans Health Administration. I
know you had Dr. Clancy here a couple weeks ago and she
provided some testimony on that specific issue, so we will
defer to her on that.
However, Brad does have a close relationship with the
National Gulf War Resource Center. He meets with them every two
weeks or so, I believe, so he may be able to add some
additional information.
Ms. Kuster. Sure. Yeah, it would be helpful to know what
they are doing at this point.
Mr. Flohr. Yes, we do work with them. Frankly, we have bi-
weekly calls and meet with Ron Brown and Jim Bunker in person
quite often.
VA also has a--this is statutory, I believe--a Gulf War
Research Advisory Committee that meets regularly. They
recommend research and VHA has an Office of Research and
Development. They look at the recommendations. If they have
funding to do the research that is being requested, they do
that research.
So it is not a matter that we are sitting around not doing
anything.
Ms. Kuster. I am concerned about this decision of IOM to
recommend not researching it and it sounds as though the panel
might have been skewed toward, this is all in your head, which
is not where we are coming from.
Mr. Flohr. I know there was a lot of concern about that
among the Gulf War Community--
Ms. Kuster. I think it may be something that we can look
into in a bi-partisan way of whatever needs to be done to keep
this research moving forward, because, again, deja vu all over
again, what we went through with Agent Orange, there were
symptoms and parts of illnesses and new illnesses that we
didn't even know at the time. And I would have to believe that
there is something like that going on here, as well.
So, I will yield back, but I would love to work with my
colleagues on the Committee on that. Thank you.
Mr. Abraham. Agreed. Thank you, Ranking Member Kuster.
Chairman Coffman?
Mr. Coffman. Thank you, Mr. Chairman.
Mr. Weidman, as a Vietnam veteran, you are probably
familiar with the way Agent Orange claims were handled by VA.
As I recall, presumptive conditions were frequently denied
until VA was forced to resolve them under a Nehmer lawsuit; is
that about right?
Mr. Weidman. That is correct, sir.
Mr. Coffman. Mr. McLenachen, does VA need to be sued in
order for the department to properly address presumptive claims
pertaining to the 25-year-old Persian Gulf War?
Mr. McLenachen. I would not encourage that. No, I don't
think it is necessary.
I think we are dealing with something--I think the point
was made earlier that we are dealing with something a little
different here. Agent Orange presumptive conditions are
specific conditions and, yes, we have been operating under the
consent degree from the Nehmer Court for a long, long time, but
here, as I think we have all recognized in this hearing, we are
dealing with something that is much more difficult, which is
the undiagnosed illness issue.
Can we do better? I believe we always can, so we will try
to do that.
Mr. Coffman. Now, Mr. McLenachen, it seems to me that the
2004 Gutierrez case underscored this very issue, citing VA's
``clearly erroneous standard of review'' and that the veteran
was not required to produce evidence ``specifically linking his
disability to the presumptive condition in his claim.''
Are you familiar with this case?
Mr. McLenachen. I don't recall that case specifically.
Mr. Coffman. I am. So you are telling me that, as a former
general counsel, and the guy who is in charge of this entire
issue, you are not familiar with this court decision? If that
is the case, perhaps you are the wrong person for the job.
Are you really not familiar with this Court decision that
is foundational to this issue?
Mr. McLenachen. I assure you I will go back and refresh my
recollection.
Mr. Coffman. Okay.
Mr. McLenachen. Yes, I am the right person for the job.
Mr. Coffman. Well, Mr. Chairman, I just want to thank you
for and thank the staff for holding this joint Committee, and I
just want to say that as a Gulf War veteran, I am just really
disappointed that the law was passed that--by the Congress of
the United States, that a specific set of conditions was
supposed to be presumptive and yet the VA does not seem to be
following along.
I am disappointed, as well, as the fact that I don't think
the VA has made best efforts in terms of research on this
issue.
Mr. Chairman, I yield back.
Mr. Abraham. Thank you very much, Mr. Coffman.
Well, ladies and gentlemen, on behalf of the Oversight and
Investigations and Disability Assistance & Memorial Affairs
Subcommittees, I thank you for your testimony. I appreciate all
the witnesses coming here today to discuss what has turned out
to be a very, very important issue.
Unfortunately, the medical evidence indicates that some
Gulf War veterans are developing serious illnesses such as
brain cancer, multiple sclerosis, amyotrophic lateral
sclerosis, and Parkinson's disease at relatively young ages.
Moreover, the testimony we have heard today raises serious
concerns about whether VA is accurately processing claims for
veterans, who are suffering from Gulf War Illness, particularly
those veterans who served during the first Gulf War.
It is especially hard to understand why VA denies at least
80 percent of claims for undiagnosed illness and chronic multi-
symptom illness conditions, even though there is a presumption
of service-connection for those veterans who served in the
Southwest Asia theater of operations.
I intend to continue to work with the department, my
colleagues on both of these Subcommittees, and the stakeholders
who took their time to present these concerns today, to ensure
that veterans who are suffering from these serious diseases
receive the benefits that they have earned.
So, again, thanks to everyone for being here with us today.
As initially noted, the complete written statements of today's
witnesses will be entered into the hearing record. I ask
unanimous consent that all Members have five legislative days
to revise and extend their remarks and include extraneous
material. Hearing no objection, so ordered.
I thank the Members and the witnesses for their attendance
and participation today. This hearing is now adjourned.
[Whereupon, at 12:04 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Chairman Coffman
Good afternoon. This hearing will come to order.
I want to welcome everyone - especially our good friends from the
Subcommittee on Disability and Memorial Affairs - to today's joint
hearing regarding VA's handling of disability claims for Persian Gulf
War veterans. As a preliminary matter, I would like to ask unanimous
consent that a statement from Mr. Ronald Brown, Gulf War veteran &
President of the National Gulf War Resource Center be entered into the
record. Hearing no objection, so ordered.
This hearing is the second part of the committee's two part series
on the 25th Anniversary of the Persian Gulf War, a war in which I
served. Today we will examine VA's own data that reveals a 16% approval
rate and an 84% denial rate for claims of Gulf War veterans for
undiagnosed illnesses and chronic multi-symptom illnesses - both
presumptive conditions under current law. VA often seems to deny these
claims because it demands to know the specific cause for the illness,
yet under the law, presumptive conditions do not require causality
because they are presumed to have been caused by service in the Gulf
War. The critical point to understand is that veterans cannot receive
VA care for symptoms of Gulf War Illness when the majority of those
claims are denied by VA.
We will also discuss former Under Secretary Allison Hickey's email
citing her "concern that changing the name from [chronic multi-symptom
illness] to [Gulf War Illness] might imply a causal link.for veterans
who served in the Gulf." Ms. Hickey's official email exposed VA's
efforts to block not only the use of the term recommended by the
Institute of Medicine for Gulf War Illness, but also VA's practice of
requiring causality for GWI claims, even though, again, presumptive
conditions do not require causality.
We also want to know more about an internal VA email - which has
been provided to today's panel - that reveals claims evidence has been
lost even though VA's system told veterans that such evidence was
received. This is not particular to Gulf War veterans, but important
regarding claims processing in general.
I want to also mention that last Friday, March 11th, VA held a
Community of Practice call to discuss issues related to our
subcommittee's hearing held on February 23rd. The call included more
than fifty participants, and it discussed how to improve care for
veterans suffering from Gulf War Illness. Unfortunately, the majority
of the attention was given to a presentation by Dr. David Kearney
regarding chronic pain, with what seemed to be an emphasis on PTSD -
and the use of mindfulness as a method of treatment for Gulf War
Illness. The call, coordinated by Dr. Stephen Hunt, shows that VA still
clings to its often criticized efforts, and it contradicts his
testimony from February 23rd, leading me to believe veterans suffering
from Gulf War Illness will never receive appropriate care while Dr.
Hunt is at all connected to the issue. While the conversation during
Dr. Hunt's call warrants additional comments, I'll save that for a
later time.
Before I turn to my friend, Ranking Member Kuster, I want to
highlight that the invitation for this hearing specifically cited our
interest in discussing "veterans who served in the Persian Gulf War"
and yet, VA's testimony has lumped information from 1990 with the
current OIF/OEF veterans in an apparent effort to reflect better
statistics than those specific to our issue today.
With that, I now yield to Ranking Member Kuster for any opening
remarks she may have.
Prepared Statement of David McLenachen
March 15, 2016
Opening Remarks
Chairman Coffman, Chairman Abraham, ranking members Kuster and
Titus, and Members of the Committee, thank you for the opportunity to
discuss how the Department of Veterans Affairs (VA) processes Gulf War
Veterans' compensation claims. My testimony will provide an overview of
VA's processing of these claims, its training and quality assurance
efforts, presumptive service connection, the statutory authority for
establishing presumptions of service connection, and the science and
rationale behind such presumptions.
Gulf War Claims Processing
This year marks the 25th anniversary of the start of the Gulf War.
The initial conflict lasted from August 1990 until February 1991.
However, neither the President nor the Congress has declared an end to
the Gulf War, so men and women, who serve in the Southwest Asia theater
of operations, to this day remain entitled to presumptions of service
connection based upon their service.
As of the end of fiscal year (FY) 2015, almost 7.2 million Veterans
served during the Gulf War period. Through FY 2015, over 1.8 million
Gulf War Era Veterans were in receipt of disability compensation
(approximately 26 percent of Gulf War era Veterans receiving the
benefit), the highest percentage of Veterans in receipt of compensation
from any era, wartime or peacetime. Each Gulf War Era Veteran averages
greater than six service-connected disabilities, again, more than any
other era, wartime or peacetime. The most prevalent disabilities for
Gulf War Era Veterans include tinnitus, knee conditions, back
conditions, post-traumatic stress disorder (PTSD), migraines, and sleep
apnea. Claims from Gulf War Era Veterans now make up the majority of
claims received by VA.
VA has made considerable progress in its claims processing
performance, including claims from Gulf War Veterans. It has reduced
its backlog of pending claims by approximately 86 percent, from its
peak of 611,000 in March 2013 to 83,226 as of the end of February 2016.
VA has also reduced the average days waiting for a decision to 93 days,
which is a 189-day reduction from a 282-day peak in March 2013.
Training and Quality Assurance
The Veterans Benefits Administration (VBA) is constantly looking
for ways to improve the service it provides to this cohort of Veterans.
We work with the Veterans Health Administration (VHA) in reviewing the
research done by its Offices of Public Health and Research and
Development, as well as the Institute of Medicine's biennial update on
Gulf War issues. We also work with VHA and the Department of Defense in
joint workgroups that research occupational and environmental hazards
coincident with military service. We collaborate with VHA to update
training for its medical examiners, as well as VBA's contract medical
examiners. Finally, VA continues to collaborate with the National Gulf
War Resource Center (NGWRC) in bimonthly meetings.
VBA has a national quality review staff, as well as quality
reviewers in its local regional offices, to ensure that the employees
correctly process and decide claims for Gulf War illness. As agreed
with NGWRC, VA conducted a special-focused review of decisions on
claims for Gulf War-related illnesses for fiscal year 2015. This review
showed a 94-percent accuracy rate. In the last year, VBA updated
training for claims processors on Gulf War illness, including such
topics as medical examinations, evaluating disabilities, assigning
effective dates, and awarding special monthly compensation. Beginning
in October 2015, we required all decision makers and quality assurance
staff to complete these training modules.
VA has implemented a number of other initiatives to improve Gulf
War claims processing. VA has developed special tracking to
specifically account for Gulf War claims. VA has also amended its Gulf
War General Medical Examination template to include information for
examiners on undiagnosed and chronic multi-symptom illnesses, as well
as information on environmental exposures in the Gulf War.
Gulf War Illnesses
Service connection for undiagnosed illnesses or multi-symptom
illnesses requires service in the Persian Gulf after August 2, 1990,
and a qualifying chronic disability that rises to a compensable level
of severity before December 31, 2016.
A medically unexplained chronic multi-symptom illness means a
diagnosed illness without conclusive pathophysiology or etiology. The
objective signs and symptoms of these disabilities, as well as
undiagnosed illnesses, include fatigue, skin conditions, headaches,
muscle pain, joint pain, sleep disturbances, and cardiovascular
symptoms, among others. The term "medically unexplained chronic multi-
symptom illness" also covers diagnosed illness defined by a cluster of
signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and
functional gastrointestinal disorders (excluding structural
gastrointestinal diseases).
Service connection is also warranted for Veterans who contract
certain infectious diseases, such as malaria, Q fever, and West Nile
virus. In addition to Gulf War service, service in Afghanistan may
qualify a Veteran for a presumption of service connection under this
provision.
Processing these types of claims requires a careful review of
service treatment records, military personnel records, and post-service
treatment records. Claims processors must carefully review the claimed
disabilities and symptoms to determine if a presumption will
potentially apply. Medical examinations are generally required where VA
identifies these disability patterns to determine whether there is a
medical explanation of the disabilities.
Should VA determine that a Gulf War Veteran does not have a
presumptive disease/disability, he or she may establish direct service
connection by showing the three elements described below.
Overview of Presumptive Service Connection
Direct service connection requires three elements: (1) evidence of
a current disability; (2) an injury, disease, or event during active
duty military service; and (3) medical or, in certain cases, lay
evidence establishing a link or nexus between the two. A presumption
relieves Veterans of the burden of producing evidence that directly
establishes at least one of the elements they need to substantiate
their claims. A presumption regarding exposure may establish the
occurrence of an event in the military based on service in specific
locations. The law may also presume a medical nexus or relationship of
a disease to a presumed exposure.
A presumption, whether based on location of service or medical
relationship, provides a legal basis for establishing service
connection for disabilities where a factual basis may not exist in the
Veteran's individual service and/or medical record.
For example, presumptions regarding location of service provide a
legal basis for establishing an in-service event, such as a toxic
exposure, where factual documentation of the actual exposure event does
not exist. Under the provisions of section 1118 of title 38, United
States Code, and section 3.317 of title 38, Code of Federal
Regulations, VA presumes any Veteran who served in Southwest Asia since
August 2, 1990, and who develops a disease associated with certain
environmental hazards was exposed to those environmental hazards in
service (in the absence of conclusive evidence otherwise).
VA may also establish presumptions for the purpose of establishing
relationships between certain events in service and certain diseases
and conditions, even where specific factual documentation may not
exist. For example, 38 C.F.R. Sec. 3.317 establishes malaria as a
presumptive condition for Veterans who served in the Gulf War. In the
absence of affirmative evidence of a cause outside of military service,
including willful misconduct, VA presumes a Veteran's malaria resulted
from this military service and provides compensation for that
disability if it manifests to a compensable level of severity within a
certain time.
Authority
The Secretary of Veterans Affairs has broad authority under section
501 of title 38, United States Code, to establish presumptions. To
determine which diseases are associated with such service, the
Secretary takes into account reports from the National Academy of
Sciences (NAS) and all other sound medical and scientific information
available. If the Secretary determines a presumption of service
connection is warranted, he may issue proposed regulations setting
forth his determination. VA issues a proposed regulation for public
notice and comment outlining the presumption to be established. In
proposing the regulation, VA outlines the scientific and/or medical
basis for the presumption as well as the eligibility criteria for the
presumption. VA then drafts a final regulation taking into account the
public comments it received.
Scientific Bases
Public Law 105-368 charges the Secretary of Veterans Affairs with
the responsibility for notifying Congress of findings of NAS that might
impact presumptions of service connection for diseases associated with
service in the Southwest Asia theater of operations during the Gulf War
due to exposure to biological, chemical, or other toxic agents,
environmental or wartime hazards, or preventive medicine or vaccines.
In preparing its reports for Gulf War health issues, NAS committees
conduct comprehensive searches of all medical and scientific studies on
the health effects of the environmental exposure being reviewed. In the
course of this literature search and review, it is not uncommon for
these committees to cover thousands of abstracts of scientific and
medical articles, eventually narrowing their review to the hundreds of
the most relevant and informative peer-reviewed journal articles. NAS
then scores the strength of the total medical and scientific evidence
available by utilizing broad categories of association such as
"inadequate or insufficient evidence of an association," "limited or
suggestive evidence of an association," or "sufficient evidence of an
association." NAS does not directly recommend new presumptions.
Upon receipt of the finished NAS reports, VA establishes work
groups comprised of experts in medicine, disability compensation,
health care, occupational and environmental health, toxicology,
epidemiology, and law. These work groups, along with senior VA leaders,
review in detail the NAS reports and all available scientific and
medical information before recommending to the Secretary any
presumptions. These recommendations to the Secretary are based in the
strength and preponderance of the medical and scientific evidence.
Closing Remarks
VA continues to improve the efficient, timely, and accurate
processing of claims involving service in the Gulf War. Presumptive
service connection fills a critical gap when exposure to toxic
substances or certain disabilities resulting therefrom are not
specifically documented in a Gulf War Veteran's service records.
Although the science and medical aspects of undiagnosed illnesses and
multi-symptom illnesses are not yet fully understood, VA continues to
review scientific and medical literature to gain a better understanding
of the impact of these illnesses on our Gulf War Veterans.
This concludes my testimony. I am pleased to address any questions
you or other Members of the Committee may have.
Prepared Statement of Zachary Hearn
MARCH 15, 2016
In the summer of 2014, long held suspicions of The American Legion
were confirmed by figures indicating an alarming trend in denial of
Gulf War Illness related claims at the Department of Veterans Affairs
(VA) - about 80 percent of those claims , 4 out of 5 veterans filing
for service connection for the unexplained aftereffects of their
service overseas in the Persian Gulf, were being denied service
connection. \1\ This figure stands out, because it is out of step with
the overall denial rates for veterans overall in the VA system. Why is
the system letting down these veterans, who answered the call and
served, defeating an aggressor and liberating a nation within 100 hours
of the use of ground forces?
---------------------------------------------------------------------------
\1\ "VA denies 4 in 5 Gulf War illness claims, new data show," -
Patricia Kime, Military Times (June 5, 2014)
---------------------------------------------------------------------------
The reasons are as varied as the symptoms faced by the veterans who
suffer from Gulf War Illness. Medical professionals are unsure how to
address undiagnosed illness, some Veterans Benefits Administration
(VBA) employees may not understand the rules regarding the treatment of
such claims in the VA disability benefits process, and the massive
reliance on National Guard and Reserve component service members to
fight and win the Gulf War still contributes to problems with
transmittal of military records to VA. These are challenges that must
be met and overcome, with the same aggression and determination shown
by the men and women who fought and served halfway around the world
from their homes a quarter century ago.
Chairmen Coffman, Abraham, Ranking Members Kuster, Titus, and
distinguished members of the Subcommittees on Oversight and
Investigations (O&I) and Disability and Memorial Affairs (DAMA), on
behalf of National Commander Dale Barnett and The American Legion; the
country's largest patriotic wartime service organization for veterans,
comprising over 2 million members and serving every man and woman who
has worn the uniform for this country; we thank you for the opportunity
to testify regarding The American Legion's position on "Twenty Five
Years After the Persian Gulf War: An Assessment of VA's Disability
Claim Process with Respect War Illness".Background
The American Legion has long been at the forefront of advocacy for
veterans exposed to environmental hazards. Whether the hazard is Agent
Orange, radiation, chemicals used during Project Shipboard Hazard and
Defense, Gulf War Illness or conditions related to burn-pit exposure in
Iraq and Afghanistan, The American Legion's position has been to:
Treat the affected veterans.
Study effects to improve treatment and protect future
generations.
Fully fund research and publicly disclose all instances
of contact so affected veterans can seek treatment.
VA currently identifies dozens of medical conditions that are
presumptively related to Gulf War service. Assigning medical conditions
due to environmental exposures is not a new concept for VA. Conditions
such as diabetes, ischemic heart disease, and a variety of cancers are
presumptively related to herbicide exposure in Vietnam. Additionally,
veterans of the era of atomic weapons and radiation testing have had
multiple conditions presumptively ascribed to radiation exposure in
service.
For Persian Gulf veterans, they face a unique set of challenges in
their quest to gain benefits derived from their military service.
Unlike herbicide and radiation exposed veterans, many Persian Gulf
veterans must prove they suffer from symptoms or clusters of symptoms
and endure years of medical tests to indicate that they suffer from an
undiagnosed illness.
"Undiagnosed illness" is a frustrating explanation to a complicated
medical situation. Numerous medical studies have revealed that veterans
returned from Persian Gulf service to face serious health concerns
following their deployments. However, a generation removed from
Operation Desert Storm, and the medical community still is uncertain of
how to properly diagnose or treat these veterans.
According to a February 2011 report published by the Department of
Veterans Affairs (VA), over 1.12 million servicemembers deployed to the
Persian Gulf between August 2, 1990 and September 10, 2001 \2\; over 17
percent of those serving during these 11 years experienced a deployment
to the Persian Gulf. A 2013 RAND Corporation report indicates 74
percent of the Army's active components had been deployed to either
Iraq or Afghanistan through 2011 \3\.
---------------------------------------------------------------------------
\2\ Gulf War Era Veterans Report: Pre-9/11(August 2, 1990 to
September 10, 2001)
\3\ http://www.rand.org/content/dam/rand/pubs/research--reports/
RR100/RR145/RAND--RR145.pdf
---------------------------------------------------------------------------
It is easy to get blinded by statistics associated with veterans
suffering from conditions associated with their service in the Persian
Gulf. However, as the nation's largest veterans' service organization,
The American Legion, we regularly hear the painful stories of veterans
negatively impacted by clusters of symptoms that is believed to have
manifested due to their Persian Gulf service.
One veteran contacted The American Legion and discussed how he
entered the United States Marine Corps as a "poster recruit". He was
healthy, physically and mentally sharp. Upon returning from his
deployment to the Persian Gulf in support of Operation Desert Storm, he
began suffering weakness and malaise. No longer was he able to
withstand standing in formation, and a once easy three-mile run became
an impossible task. Headaches and gastrointestinal issues manifested.
Sadly, the veteran's rapidly declining health limited his academic
pursuits. Throughout this process, VA medical professionals failed to
properly treat this veteran, suggesting he was malingering.
This is not the way veterans should be treated by the disability
claims process.
Problems With Gulf War Claims
The American Legion has over 3,000 accredited representatives
located throughout the nation. Through their dedicated efforts, The
American Legion was able to represent over 775,000 veterans in Fiscal
Year 2015. During our bi-annual training conducted in February 2016,
over 130 accredited representatives were asked to discuss issues facing
Gulf War veterans when seeking benefits. The problems highlighted by
the experienced service officers could be grouped into three main
clusters:
Problems with diagnoses
Problems with medical records for Guard and Reserve
service members
Problems in the VA system
Diagnoses:
By far the largest complicating factor for Gulf War Illness is that
in dealing with "undiagnosed illness" medical professionals and claims
adjudicators are operating outside the normal parameters they are used
to working with. American Legion service officers note that it is quite
common for medical professionals to hesitate to connect conditions to
Persian Gulf service because they cannot identify a clear condition.
Other obstacles include attributing symptoms to aging, suggesting the
veteran is malingering as the veterans is "too young to be experiencing
these symptoms," or to send the veteran for multiple tests to different
doctors, only to receive many different diagnoses, further confusing
the veteran's medical file.
Medical professionals, doctors and examiners, by their nature are
used to providing clear, defined diagnoses. Gulf War Illness defies
this trend and creates as much confusion for the doctors as it does for
the veteran who is experiencing the symptoms. Due to the complexity of
Gulf War Illness, a veteran's diagnosis may have changed multiple times
during the course of their claim. VA raters are not medical
specialists; often, they are unaware that the rapidly changing
diagnoses are all essentially descriptions of the same condition.
Moreover, the situation is further complicated by the fact that a
medical professional rendered a diagnosis; once a diagnosis is
provided, by definition, it is no longer an undiagnosed illness and
therefore not subject to the regulations created to help Gulf War
veterans obtain service connection.
One solution to this problem could be better usage of VA's
disability benefits questionnaires (DBQs). DBQs are a standardized form
utilized by medical providers to evaluate the level of disabilities
suffered by veterans; both VA and private sector medical professionals
have the ability to access the forms.
Because many veterans are denied compensation benefits related to
Persian Gulf related conditions upon receiving a diagnosis, even if the
diagnosis changes over the course of months or years. This lack of
access to benefits can provide an extraordinary hardship to veterans
and their family members; meanwhile, their health continues to
deteriorate. If VA would identify veterans with Persian Gulf service
and allow medical professionals to opine on DBQs if the sought medical
conditions could at least as likely as not be related to Persian Gulf
service despite having diagnosis, it provides the necessary outlet to
medical providers, VA, and most importantly, our veterans, to finally
receive their VA disability compensation. Through this, examiners and
VA would have the necessary latitude to provide benefits.
Guard and Reserve Medical Records:
The American Legion has spoken at length about concerns with the
implementation of the Virtual Lifetime Electronic Record (VLER) for
veterans. While there is some progress on the VA side, there are still
issues with obtaining Department of Defense (DOD) records. Even
whatever meager progress the DOD has made does not begin to address the
serious problems tracking down records for Guard and Reserve component
service members. Veterans' claims for environmental exposures require
proof of duty station, yet this is absent from medical records, and
must be included in a veteran's file for the record to be considered
complete for benefits. Veterans' claims for disability rely on the
ability to prove events or symptoms manifested during a veteran's
period of service. This becomes impossible in the absence of records.
The Persian Gulf War, beginning with Desert Shield and Desert
Storm, represented a massive reliance on Guard and Reserve component
service members. Unlike Vietnam, which saw little use of this portion
of the force structure, the post Reagan drawdown of forces placed the
military in a position where proper troop strength was not achievable
utilizing solely the active duty components. The men and women of the
National Guard and Reserve answered the call and have been doing so as
a major and critical component of United State military strength ever
since, right through the Global War on Terror. The quality and
character of the service of these components has been excellent in the
field.
However, reliance on these reserve elements has led to problems
obtaining military records. Each National Guard component relies not
only on federal combined records maintained by DOD, but also state
record keeping which can vary from state to state. Service members who
deploy as part of an activated National Guard unit may find portions of
their records in DOD files in St. Louis, portions in their state
archives, portions in field hospitals in Kuwait, Iraq, or elsewhere
overseas, and portions in the military posts such as Fort Bragg, Fort
Dix, or Fort McCoy where the parent unit mobilized for deployment.
Often there is little to connect these distributed files.
Both the veteran and the claims adjudicator may not know that the
critical information to prove the claims exists in one of these
distributed files because they have some government records, so there
is no reason to believe they don't have all the relevant information.
In this way a veteran's file may be incomplete and there is not always
an easy way to discover that fact.
The way this must be fixed is to ensure better consolidation of
records. There has to be a better way to ensure all players - VA, DOD,
Guard and Reserve units, forward hospitals in the field - communicate
freely and continuously update a veteran's file to ensure a complete
record. Without a complete record, veterans have little chance of a
successful claim.
Systemic Problems:
Some of the systemic problems have already been addressed. VA
employees who don't know to look for clusters of symptoms diagnosed
several different ways within a veteran's file would never be able to
see the pattern necessary to establish service connection. Other
systemic problems involve improving outreach and understanding for
veterans.
Some of the problems involve perception amongst veterans. There is
a belief among many Gulf War veterans, communicated to service
officers, that "VA is more interested in helping the Vietnam veterans
and the current crop of veterans than those of us who fought the first
Gulf War." While this is unlikely to be an accurate representation of
the policy of VA, the fact that the perception is out there amongst
veterans means there is work to be done. This is not uncommon or
unprecedented. As a wartime service organization that has served
members of all wars since our inception following the conclusion of
World War I, The American Legion has seen some of this same perception
among Korean War veterans, who feel lost between World War II and
Vietnam. This is not the first "forgotten war." Better outreach and
education can help these veterans.
Other veterans struggle with their claims just from dealing with
the sheer weight of fighting such a long battle. For nearly a quarter
century they have been passed from one doctor to another repeated told
it was all in their head, repeatedly given conflicting diagnoses,
repeatedly given more questions than answers. The whole time they are
kept locked out of VA treatment because they cannot obtain service
connection. This lack of access to benefits can provide an
extraordinary hardship to veterans and their family members; meanwhile,
their health continues to deteriorate.
It is a long, very difficult road for Gulf War veterans, and the
lack of answers and widespread confusion related to their suffering
makes it all the more difficult. The American Legion appreciates the
level of difficulty associated with claims pertaining to Persian Gulf
service; however, veterans have now suffered up to 25 years. VA's
continuous reliance upon the medical community to discover the etiology
and defined conditions have cost many veterans years of disability
compensation. We call upon a liberalization of the manner Gulf War
claims are adjudicated and provide an opportunity for our Gulf War
veterans to finally receive the benefits they have earned their
honorable service. \4\
---------------------------------------------------------------------------
\4\ Resolution No. 127: GULF WAR ILLNESS - AUG 2014, Charlotte, NC
---------------------------------------------------------------------------
Conclusion:
There have to be better answers for the men and women who served
and continue to serve in the Persian Gulf region. There are some
solutions that can and should see immediate implementation -
improvements to VLER to include Guard and Reserve records, improvements
to the DBQs to better educate medical professionals on how to evaluate
veterans for undiagnosed illnesses, better training for VA employees to
recognize the hidden patterns of Gulf War diagnoses in claims. Other
solutions, such as improved outreach and better inclusion of the
service members from the first Gulf War era will require more
thoughtful responses and plans from VA. As with all plans to address
concerns, they will be best formulated when they include all the
stakeholders - VA, Congress and importantly the veterans themselves
through the Veterans Service Organizations. Through this partnership we
can find solutions to help address this dreadful denial rate for the
men and women who have suffered without answers for far too long.
The American Legion thanks this committee for their diligence and
commitment to our nation's veterans on this topic. Questions concerning
this testimony can be directed to Warren J. Goldstein, Assistant
Director in The American Legion Legislative Division (202) 861-2700.
Prepared Statement of Aleksandr Morosky
March 15, 2016
Chairmen Coffman and Abraham, Ranking Members Kuster and Titus and
members of the Subcommittees, on behalf of the men and women of the
Veterans of Foreign Wars of the United States (VFW) and our
Auxiliaries, I would like to thank you for the opportunity to testify
on VA's disability claims process with respect to Gulf War Illness.
Today's hearing is extraordinarily timely, as this year our nation
recognizes the 25th anniversary of the Persian Gulf War. While symbolic
recognition is important, the VFW strongly believes that the most
meaningful way to honor the service of Persian Gulf veterans is to
ensure that they have access to the benefits they need and deserve. All
too often, however, this does not happen. This is largely due to the
fact that the signature condition associated with the Persian Gulf War,
commonly known as Gulf War Illness, presents itself in a way that is
not conducive to the traditional VA disability claims process.
Consequently, our VFW service officers and appeals staff report that VA
denies disability compensation claims for conditions associated with
Gulf War service at a consistently higher rate than other types of
claims.
Part of the challenge is that Gulf War Illness is an inherently
difficult condition to diagnose and treat. This is because it presents
itself as a host of possible symptoms common to many veterans that
served in the Persian Gulf region, rather than a single condition that
is clearly identifiable and unmistakable. What is certain is that more
than 200,000 Persian Gulf War veterans suffer from symptoms that cannot
be explained by medical or psychiatric diagnoses, such as chronic
widespread pain, cognitive difficulties, unexplained fatigue, and
gastrointestinal problems, to name a few. Since these conditions also
exist in the general public, Persian Gulf veterans often have a
difficult time proving the nexus between their conditions and their
service necessary for VA to establish service connection.
Instead of Gulf War Illness, VA uses the term "medically
unexplained chronic multisymptom illness" (MUCMI) to describe those
symptoms. Although MUCMI is considered a presumptive condition for
Persian Gulf veterans, there are certain factors that prevent many
veterans from receiving favorable decisions when claiming that
condition. MUCMI claims prove to be problematic for a number of
reasons. When claiming MUCMI, the veteran lists the symptoms he or she
is experiencing. These symptoms are often seemingly unrelated to one
another, affecting multiple different body systems. As a result, VA
assigns separate disability benefits questionnaires (DBQ) for each
symptom, and separate exams are scheduled. The current Gulf War DBQ
asks the physician whether there is a condition of each body system
present, and then asks them to complete the relevant DBQs. Only after
that are MUCMI questions asked.
We find that this practice of assigning separate DBQs for each
symptom being claimed in connection with MUCMI has the effect of
promoting diagnoses, even when those diagnoses are minimally supported.
Once a symptom receives a diagnosis, it is no longer considered
connected with MUCMI, which requires that the illness be undiagnosed.
Since MUCMI is ruled out for that condition, the veteran no longer has
the opportunity to be granted on a presumptive basis. Often lacking any
evidence of the condition in the service treatment record, a nexus
cannot be established, and the claim is denied.
VFW staff at the Board of Veterans Appeals notes that remands
become numerous in these cases, and veterans often receive several
different diagnoses for the same symptoms from different doctors. They
believe that this is due to the minimal support for those diagnoses in
the first place. It is apparent to them that VA seems to go to great
lengths to find diagnoses for each symptom, simply so MUCMI can be
ruled out.
The practice of parsing out symptoms has the additional effect of
preventing a holistic evaluation for MUCMI. When the claim is for an
undiagnosed illness, the physician should be asked more questions about
the cluster of symptoms, which could be one illness leading to symptoms
in multiple body systems, rather than separate conditions related to
each symptom. Only if there are confirmed diagnoses should separate
DBQs be completed. To improve the current system, the Gulf War DBQ
should be analyzed by a team of physicians including those from War
Related Illness and Injury Study Center. Additionally, VA should grant
veterans reasonable doubt when deciding whether or not a veteran's
symptoms should be considered MUCMI.
Another common problem anecdotally reported by VFW service officers
is inconsistency in the way Gulf War claims are decided from one
Regional Office to the next. To correct this, we suggest that VA should
be required to provide current statistics on how many veterans are
service connected for undiagnosed illnesses, and for Gulf War
Presumptive Conditions, broken down by Regional Office of adjudication
to analyze consistency. There are specific diagnostic codes used for
these, so the numbers should be easy to obtain. Statistics should be
compared to other toxic exposures claims that are decided at a
centralized location versus those that are decentralized. A good
example would be Agent Orange claims (decentralized) and Agent Orange
C-123 claims (centralized). Future decisions about distributing work in
the National Work Queue could be informed by this analysis.
VFW service officers report that there are two types of Gulf War
claims that are consistently granted at a normal rate. The first are
claims for presumptive conditions other than MUCMI. These include
certain infectious diseases and amyotrophic lateral sclerosis (ALS).
Since these conditions are relatively easy to identify, veterans with
those diagnoses need only prove that they served in the Persian Gulf
theater in order to receive favorable ratings. Unlike with MUCMI, a
clear diagnosis of a known condition benefits their claims.
The second category that is regularly granted is benefits delivery
at discharge (BDD) claims. Since BDD examinations are conducted prior
to separation, any diagnoses are necessarily linked to service and
service connection may be granted on a direct basis. Because of this,
however, conditions that are presumptively related to Persian Gulf
service are not indicated by VA as being presumptive. VFW BDD service
officers report that VA decisions sometimes say that the condition is
not presumptive, simply because the veteran did not have a Gulf War
Registry exam.
While direct service connection often produces more favorable
results, the VFW believes that these claims should be tracked as being
associated with service in Southwest Asia, to form a more comprehensive
database of which medical conditions are related to deployments to
those locations. In addition, separating service members should be
offered Gulf War Registry exams, if they have deployed to Southwest
Asia at any point in their careers. These could be provided at DOD
facilities as part of the separation physical. Once the fully
integrated health record is implemented, VA would easily be able to see
which conditions should be considered presumptive for tracking
purposes.
More troublingly, VFW service officers report that, on at least two
occasions, veterans were contacted by VA staff encouraging them to drop
their BDD claims for MUMCI. It was explained that those exams could not
be completed by QTC contract physicians, and it would take longer to
process their claims. Instead, they were advised to refile these claims
after separation so that a VA physician could perform the exam, and
they would receive the same effective date, so long as they did so
within the first year of separation from service. While the VFW cannot
speculate on why BDD contract examiners are forbidden from conducting
MUCMI exams, we believe that asking the veteran to refile separately is
not only overly burdensome, but also undermines the entire purpose of
the BDD system. For this reason, we believe that the Gulf War DBQ and
proper training on how to complete those exams should be provided to
all examiners VA utilizes, including contract physicians and those
located abroad.
Finally, we note that VA recently updated the M21-1 adjudication
procedures manual section on Gulf War Illness. With that in mind, we
ask that Congress exercise oversight to ensure VA continuously provides
proper training on Gulf War Illness to all those involved in
adjudicating these claims.
Mr. Chairman, this concludes my testimony and I will be happy to
answer any questions you or the Committee members may have.
Information Required by Rule XI2(g)(4) of the House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, the VFW
has not received any federal grants in Fiscal Year 2016, nor has it
received any federal grants in the two previous Fiscal Years.
The VFW has not received payments or contracts from any foreign
governments in the current year or preceding two calendar years.
Prepared Statement of Richard Weidman
March 15, 2016
Good afternoon Mr. Chairman, Ranking Member Kuster, and
distinguished Members on the Subcommittee on Oversight & Investigation,
House Committee on Veterans Affairs. On behalf of VVA National
President John Rowan and all of our officers and members, we thank you
for the opportunity for Vietnam Veterans of America (VVA) to appear
here today to share our views on the adjudication of Compensation
claims of Persian Gulf War Veterans by the Department of Veterans
Affairs. I ask that you enter our full statement in the record, and I
will briefly summarize the most important points of our statement.
No doubt you are each asking yourselves the obvious question:
"Since Vietnam Veterans of America (VVA) is a single generation
organization, what are you doing here? Did you get lost and wander in
here?" The answer to this question is several-fold.
First, the Founding principle of VVA is "Never again shall one
generation of American veterans abandon another." We take that
principle as words to live by, both individually and as an
organization. The buttons you see me and some others wearing this
morning, "Leave no veteran behind" is merely a shortened version of
that founding principle that will fit on a button.
Second, the parallels of what the Persian Gulf War veterans have
been going though in regard to Gulf War Illness is all too familiar to
those of us who have had similar experiences with the VA and with DOD
in regard to Agent Orange, Agent Blue, Agent White, Agent Pink, SHAD or
Shipboard Hazards and Decontamination, Project 112 in all of its
multiple machinations, all of it presided over by Dr. J. Clifton
Spendlove, located in the arid high country at Deseret, Utah. Trying to
winnow out the baloney thrown out by both the Department of Defense and
VA to try and prevent us from making any progress was (and still is)
just shameful.
The DOD kept (and still keeps to this day) much of the material
that documented what toxins in what quantities American service members
had been exposed to in the period that went at least from 1962 through
1973 classified as Secret or Top Secret. This was not done to protect
the nation (al Qaeda, ISIS, and other assorted bad guys already had
this information because our military gave it to the Iraqis in their
war against Iran, and from there became available to the world wide
networks of terrorists of various flavors).
No, this material is being kept classified to keep it from the
American public and from the patriotic service members injured by one
or another of a number of toxic substances. This is being done so that
DOD can shirk their responsibility, as well as to avoid any liability
or culpability.
It is worth noting, by the way, that the herbicide program was by
1962 part of Project 112. There were two principle purposes to the
herbicide program, which were crop destruction and defoliation to deny
the enemy cover. In late 1969 Kissinger had the herbicide program
removed from Project 112, which was for all chemical and biological
weapons programs. Kissinger did not want to go to the upcoming sessions
to re-negotiate the Geneva Accords on the Rules of Warfare with the
herbicides under the command of the Chemical & Biological command of
the US Army.
That was when the "D" in SHAD was changed from `decontamination' to
"defense" so that they could claim that this was all to test defenses,
and not to test offensive weapons. Similarly, there was a concerted
effort from that point on to only stress herbicides was to deny the
enemy cover, inasmuch as destruction of the civilian food supply was
specifically outlawed under the Geneva Accords. (The North Vietnamese
Army (NVA) and the Viet Cong or National Liberation Front (NLF) taxed
the farmers in areas they controlled for a percentage of their civilian
food supply crops in order to feed their troops.)
That level of lying by DOD went on for the next 45 years, up to
this day, and we still see no sign that the lies are going to stop
until both DOD and VA clean out the rat's nest of the arrogant spinners
of mendacity from both the key sections of VA, (both VHA and VBA), and
from DOD.
The DOD/VA "Management of Chronic Multi-symptom Illness" is a real
study in how to cloak claims that there are no physical cause(s) of
Gulf War Illness, but rather symptoms that cannot be tracked to any
exposures in the Gulf. In fact, however, there is clear evidence that
multitudes of troops were exposed to a variety of toxins. All of that
is disregarded in this little bit of clever doublespeak.
All that is missing from this so-called "clinical practice
guideline" is the snake oil to wash down this pseudo-prescriptive
pabulum of puerile prognostications masquerading as a serious clinical
guide.
The fact is that VA has never really tried to do serious research
work into the causes of Gulf War Illness. It is all too reminiscent of
the lack of serious research into the long term adverse effects of the
herbicides used in Vietnam or of the organic phosphates pesticides used
in the Vietnam War and in the Persian Gulf War, as well as in the Iraq
and Afghanistan wars that continue to this day.
Given the fact that there are VBA policy people who think that a
hack who has never published any article in a reputable peer reviewed
scientific journal is the pre-eminent scientific expert on Agent Orange
and other herbicides in the whole world, it should surprise no one that
VA continues to drag its feet on the epidemiological studies that IOM
and others have strongly recommended for year, or that there is almost
no real work into looking at toxicological research looking seriously
into the various toxins that our troops were exposed to during Vietnam.
The same dearth of serious scientific effort is now being
perpetuated against Persian Gulf War veterans, as well as the troops
who served in the current wars.
It is no wonder that 80% of all Gulf War illness claims are denied,
given the science denier motif of some of the key permanent staff
members in VBA. At VVA we were astonished at the sham of ensuring that
in the latest IOM review of Gulf War Illness, that half of the panel,
including the Chairwoman, were mental health clinicians. Is it any
wonder that this bunch recommended abandoning any "hard" science
investigations into the cause(s) of Gulf War Illness? The mental health
clinicians on that panel may all be very good mental health clinicians,
but it is the manipulation of the process by the VA that is maddening.
If you set out to make sure that you find nothing, and you
structure the process to find no physical cause, and you work
assiduously toward ensuring you find nothing, then it should be no
surprise that you indeed find nothing. That would sum up the latest IOM
panel on Gulf War Illness, which has the effect of setting science on
its head.
As you know, Mr. Chairman, VVA has worked very hard with Chairman
Benishek and with Chairman Miller on the Toxic Exposures Research Act
of 2016 which we need to enact as soon as possible this year. It will
force VA to do the research it should have been doing right along
regarding toxic exposures and toxic wounds. Secretary McDonald has said
that he does not need any additional authority to do what HR 1769
directs him to do. That is technically true, but VA has done nothingin
the way of funding serious research regarding the ionizing radiation
that so dramatically affected the health of so many in the World War II
generation, and those who came right behind them.
Nor has the VA funded serious research into the adverse health
impact of Agent Orange and other toxins used in Vietnam. Virtually all
of the useful studies utilized in the biennial reviews were from the
countries of the Pacific Rim such as Japan, Taiwan, New Zealand,
Australia, or from Europe.
Similarly, VA has not funded any serious work on the toxins that
have affected Persian Gulf War Veterans, nor research into the toxins
that affect Iraq and Afghanistan veterans. In fact, I cannot recall any
useful research into toxic exposures by VA that the Congress did not
specifically mandate the VA to do, and then follow up with assiduous
oversight. I would point out, Mr. Chairman that I have been at this for
a day or two, so that observation covers a bit of a time span.
It is not only time to pass the Toxic Exposures Act, but to utilize
any and all means that will force the VA to stop wasting money and
time, and get on with the business of ensuring veterans get the
assistance they need, when it will still do some good.
Thank you, Chairman Coffman and Ranking Member Kuster, for this
opportunity to share some of these observations of Vietnam Veterans of
America with you and your distinguished colleagues. I will be pleased
to answer any questions.
VIETNAM VETERANS OF AMERICA
Funding Statement
March 15, 2016
The national organization Vietnam Veterans of America (VVA) is a
non-profit veteran's 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 Senate
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 for Policy and Government Affairs
Vietnam Veterans of America.
(301) 585-4000, extension 127
Richard F. Weidman
Richard F. "Rick" Weidman is Executive Director for Policy and
Government Affairs on the National Staff of Vietnam Veterans of
America. As such, he is the primary spokesperson for VVA in Washington.
He served as a 1-A-O Army Medical Corpsman during the Vietnam War,
including service with Company C, 23rd Med, AMERICAL Division, located
in I Corps of Vietnam in 1969.
Mr. Weidman was part of the staff of VVA from 1979 to 1987, serving
variously as Membership Service Director, Agency Liaison, and Director
of Government Relations. He left VVA to serve in the Administration of
Governor Mario M. Cuomo as statewide director of veterans' employment &
training (State Veterans Programs Administrator) for the New York State
Department of Labor.
He has served as Consultant on Legislative Affairs to the National
Coalition for Homeless Veterans (NCHV), and served at various times on
the VA Readjustment Advisory Committee, the Secretary of Labor's
Advisory Committee on Veterans Employment & Training, the President's
Committee on Employment of Persons with Disabilities - Subcommittee on
Disabled Veterans, Advisory Committee on Veterans' Entrepreneurship at
the Small Business Administration, and numerous other advocacy posts.
He currently serves as Chairman of the Task Force for Veterans'
Entrepreneurship, which has become the principal collective voice for
veteran and disabled veteran small-business owners.
Mr. Weidman was an instructor and administrator at Johnson State
College Vermont) in the 1970s, where he was also active in community
and veterans affairs. He attended Colgate University (B.A., 1967), and
did graduate study at the University of Vermont.
He is married and has four children.
Prepared Statement of Richard V. Spataro
Executive Summary
National Veterans Legal Services Program (NVLSP) has two main areas
of concern with respect to the VA's disability claim process related to
Gulf War Illness. First, the Department of Veterans Affairs (VA)
repeatedly commits certain types of errors when adjudicating Persian
Gulf War veterans' claims for disability compensation for chronic
undiagnosed illnesses. Second, the VA should extend the end date of the
period during which symptoms of a qualifying chronic disability must
first manifest in order to qualify for presumptive service connection.
VA's Handling of Claims Related to Gulf War Illness. The VA
frequently commits errors when adjudicating claims for disability
compensation for a chronic disability resulting from an undiagnosed
illness. The four most common types of errors NVLSP sees VA
adjudicators commit are:
1) failing to consider the favorable rules for presumptive service
connection for an undiagnosed illness under 38 U.S.C. Sec.
1117(a)(2)(A) and 38 C.F.R. Sec. 3.317(a)(2)(i)(A), when a Persian
Gulf War veteran does not explicitly claim benefits for Gulf War
Illness, but that theory of entitlement is reasonably raised by the
evidence;
2) erroneously attributing a symptom that has not been medically
linked to a diagnosed disability with a diagnosed disability unrelated
to military service;
3) denying the claim due to the lack of medical nexus evidence,
when medical nexus evidence is not required to establish entitlement to
service connection under 38 U.S.C. Sec. 1117 and 38 C.F.R. Sec.
3.317; and
4) denying the claim due to the absence of "objective indications"
of a chronic disability, without considering non-medical indicators
capable of independent verification, which are sufficient to satisfy
the "objective indications" requirement for establishing service
connection under 38 U.S.C. Sec. 1117 and 38 C.F.R. Sec. 3.317.
Extension of the Date by Which an Undiagnosed Illness or Medically
Unexplained Chronic Multi-Symptom Illness Must Manifest to a Disabling
Degree of 10 percent. Under 38 U.S.C. Sec. 1117(b), the Secretary of
Veterans Affairs must establish the period during which a qualifying
chronic disability must manifest to a disabling degree of at least 10
percent following service in the Southwest Asia theater of operations
during the Persian Gulf War in order to qualify for presumptive service
connection. After initially establishing a 2-year presumptive period,
the VA has repeatedly extended the end date of the presumptive period,
which is currently December 31, 2016. The scientific community is still
uncertain about the cause of illnesses suffered by Persian Gulf War
veterans and the time period during which symptoms of such illnesses
might first manifest. NVLSP, therefore, believes that the VA should
again extend the end date of the presumptive period during which
symptoms of a qualifying chronic disability must first manifest, if not
indefinitely, to at least December 31, 2021.
Messrs. Chairmen and Members of the Committees:
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
represented thousands of claimants before the Department of Veterans
Affairs (VA), the United States Court of Appeals for Veterans Claims
(CAVC), and other federal courts. NVLSP's efforts over the last 35
years have resulted in billions of dollars in VA disability and death
benefits for veterans and their families.
NVLSP also recruits and trains volunteer attorneys, and trains
service officers from such veterans service organizations as The
American Legion, Military Order of the Purple Heart, and Vietnam
Veterans of American. NVLSP has trained thousands of these veterans
advocates in veterans law. NVLSP publishes numerous advocacy materials
that thousands of veterans advocates regularly use as practice tools to
assist them in their representation of VA claimants. On behalf of The
American Legion, NVLSP conducts local outreach and quality reviews of
VA regional office claims adjudications.
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. NVLSP attorneys also mentor the Pro Bono Program's
volunteer attorneys.
I. VA's Handling of Claims Related to Gulf War Illness
NVLSP has vast experience with veterans' claims for VA disability
compensation under 38 U.S.C. Sec. 1117, the statute that provides for
presumptive service connection of qualifying chronic disabilities in
Persian Gulf War veterans, and VA's associated regulation, 38 C.F.R.
Sec. 3.317. We have represented many veterans with such claims before
the CAVC, the Board of Veterans' Appeals, and VA regional offices. We
have mentored attorneys in their representation of veterans with such
claims before the VA though our Lawyers Serving Warriors program. We
have mentored attorneys representing veterans with such claims at the
CAVC through the Veterans Consortium Pro Bono Program. Nearly all of
our representation and mentoring has occurred after the VA denied the
claim. Our work on these cases has revealed that the VA frequently
commits errors when adjudicating Gulf War Illness claims.
38 U.S.C. Sec. 1117 requires the VA to pay compensation on a
presumptive basis to Persian Gulf War veterans for three types of
chronic disabilities: (1) undiagnosed illnesses; (2) medically
unexplained chronic multi-symptom illnesses, such as chronic fatigue
syndrome, fibromyalgia, and irritable bowel syndrome; and (3) diagnosed
illnesses that the Secretary of Veterans Affairs determines warrant a
presumption of service connection, which presently consist of
brucellosis, campylobacter jejuni, coxiella burnetii (Q fever),
malaria, mycobacterium tuberculosis, nontyphoid salmonella, shigella,
visceral leishmaniasis, and West Nile virus. See 38 C.F.R. Sec. 3.317.
NVLSP has seen relatively few problems with the VA's adjudication of
claims for service connection of the second and third types of chronic
disabilities-medically unexplained chronic multi-symptom illnesses and
diagnosed disabilities that the Secretary has determined warrant a
presumption of service connection. In our experience, however, the VA
frequently commits errors when adjudicating claims for disability
compensation for a chronic disability resulting from an undiagnosed
illness.
As background, it is important to know the requirements a Persian
Gulf War veteran must satisfy to establish service connection for a
chronic disability resulting from an undiagnosed illness. As the CAVC
explained in Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004), a case in
which the veteran was represented by NVLSP, in order to establish
service connection for a chronic disability resulting from an
undiagnosed illness under 38 U.S.C. Sec. 1117 and 38 C.F.R. Sec.
3.317, the veteran must present evidence that he or she:
(1) exhibits objective indications;
(2) of a chronic disability such as those listed in paragraph (b)
of 38 C.F.R. Sec. 3.317 [fatigue, signs and symptoms involving skin,
headache, muscle pain, joint pain, neurologic signs or symptoms,
neuropsychological signs or symptoms, signs or symptoms involving the
respiratory system, sleep disturbances, gastrointestinal signs or
symptoms, cardiovascular signs or symptoms, abnormal weight loss, and
menstrual disorders];
(3) which became manifest either during active military, naval, or
air service in the Southwest Asia theater of operations during the
Persian Gulf War, or to a degree of 10% or more not later than December
31, 2006 [later extended by the VA to December 31, 2016]; and
(4) such symptomatology by history, physical examination, and
laboratory tests cannot be attributed to any known clinical diagnosis.
It has been over two decades since Sec. 1117 was added to Title 38
of the Unites States Code, yet VA adjudicators still have a difficult
time adjudicating "undiagnosed illness" claims. Although not the only
types of errors committed by the VA when adjudicating "undiagnosed
illness" claims, in our experience, the following are the most common
errors:
A. Failing to address the veteran's entitlement to service
connection for an undiagnosed illness
One of the most common errors we see is VA adjudicators failing to
consider the favorable rules for presumptive service connection for an
undiagnosed illness under 38 U.S.C. Sec. 1117(a)(2)(A) and 38 C.F.R.
Sec. 3.317(a)(2)(i)(A), when a Persian Gulf War veteran does not
explicitly claim benefits under that theory of service connection. This
type of error typically occurs when the veteran claims entitlement to
service connection for a particular diagnosis the veteran thinks he or
she has (for example, "knee arthritis"), or more generally describes
the anatomical area of the disability (for example, "a shoulder
disability"), but does not refer to Gulf War Illness. In such cases, if
the evidence ultimately shows that the veteran's chronic complaints
cannot be attributed to a known diagnosis, the VA adjudicator sometimes
denies the veteran's claim due to the lack of a diagnosed disability,
which is a requirement for establishing service connection under all
other theories of entitlement. Although VA adjudicators have an
affirmative duty to consider all reasonably raised theories of service
connection (see, e.g., Robinson v. Mansfield, 21 Vet. App. 545, 552
(2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009)), they often fail to consider service connection for an
undiagnosed illness under 38 U.S.C. Sec. 1117(a)(2)(A) and 38 C.F.R.
Sec. 3.317(a)(2)(i)(A), when that theory of entitlement is reasonably
raised by the evidence.
Similarly, we sometimes see cases in which the VA fails to consider
a Persian Gulf War veteran's entitlement to service connection for an
undiagnosed illness manifested by symptoms of chronic fatigue under 38
U.S.C. Sec. 1117(a)(2)(A) and 38 C.F.R. Sec. 3.317(a)(2)(i)(A), when
the veteran claims entitlement to service connection for "chronic
fatigue" or "chronic fatigue syndrome," but is ultimately found not to
meet the full diagnostic criteria for chronic fatigue syndrome. Persian
Gulf War veterans are entitled to presumptive service connection for
chronic fatigue syndrome as a medically unexplained chronic multi-
symptom illness under 38 U.S.C. Sec. 1117(a)(2)(B) and 38 C.F.R. Sec.
3.317(a)(2)(i)(B). However, if the veteran suffers from symptoms of
chronic fatigue that are not attributable to a diagnosed illness such
as chronic fatigue syndrome, the veteran is likely entitled to service
connection for an undiagnosed illness manifested by symptoms of chronic
fatigue. We have seen multiple VA adjudicators deny a veteran's claim
solely on the basis that he or she is not diagnosed with chronic
fatigue syndrome, without addressing the veteran's entitlement to
service connection for an undiagnosed illness manifested by the symptom
of chronic fatigue.
B. Attributing symptoms that have not been associated with a
diagnosed condition to a diagnosed condition.
VA adjudicators often erroneously attribute a symptom that has not
been medically linked to a diagnosed disability with a diagnosed
disability unrelated to military service. The VA then denies the claim
on the basis that the veteran does not have an undiagnosed illness,
because all of the veteran's disability symptoms are associated with
known diagnoses. We have seen several cases like this in which a
careful review of the medical evidence shows that, contrary to the VA's
finding, not all of the symptoms identified by the veteran are linked
to a specific diagnosis. In some cases, the medical evidence is
equivocal regarding the cause of the symptom. In other cases, the
medical evidence attributes some, but not all of the veteran's symptoms
to a diagnosed disability, and the VA adjudicator over-broadly
interprets the medical evidence as showing that all of the veteran's
symptoms are attributable to the diagnosis, even those not specifically
listed by the medical expert. In one of our cases, the VA denied the
veteran's claim for an undiagnosed liver disability on the basis that
he was diagnosed with hepatitis C. The only medical record that
provided the hepatitis diagnosis, however, was for a different person
and had been erroneously associated with the veteran's claims file.
There are many possible reasons why VA adjudicators commit this type of
error, but the most likely is simple lack of attention to detail.
C. Denying the claim due to the absence of medical nexus evidence
or the presence of negative nexus evidence
Under 38 U.S.C. Sec. 1117 and 38 C.F.R. Sec. 3.317, a Persian
Gulf War veteran is entitled to the presumption of service connection
for a chronic undiagnosed illness if certain requirements are met. In
2004, the CAVC emphasized that medical evidence specifically linking
the disability to military service or the Persian Gulf War is not one
of those requirements. See Gutierrez v. Principi, 19 Vet. App. 1, 19
(2004). Rather, as noted above, service connection is warranted if the
veteran: (1) exhibits objective indications; (2) of a chronic
disability such as fatigue, headache, muscle pain, joint pain, etc.;
(3) which became manifest either during active military, naval, or air
service in the Southwest Asia theater of operations during the Persian
Gulf War, or to a degree of 10% or more not later than December 31,
2016; and (4) such symptomatology by history, physical examination, and
laboratory tests cannot be attributed to any known clinical diagnosis.
See Gutierrez, 19 Vet. App. at 7.
The VA, however, continues to deny some claims for service
connection for undiagnosed illnesses under 38 U.S.C. Sec. 1117 and 38
C.F.R. Sec. 3.317, due to the erroneous imposition of a medical nexus
requirement. We have seen VA decisions stating that symptoms for which
a medical explanation has not been found must be linked by a medical
expert to an undiagnosed illness. We have seen claims denied because
the veteran did not present medical evidence of a relationship between
his symptoms and an undiagnosed illness or service in Southwest Asia.
We have seen decisions in which the VA denied the claim because a
medical expert expressed an opinion that the symptoms were less likely
than not related to the veteran's Persian Gulf War service, without
offering a diagnosis or alternative etiology for the symptoms. All of
these denials were erroneous, because medical nexus evidence is not
required to establish entitlement to service connection under 38 U.S.C.
Sec. 1117 and 38 C.F.R. Sec. 3.317.
D. Denying the claim due to the absence of "objective indications"
of a chronic disability, without considering non-medical indicators
capable of independent verification.
As noted above, in order to establish entitlement to service
connection for an undiagnosed illness, the veteran must exhibit
"objective indications" of a chronic disability. "Objective
indications" include "both `signs,' in the medical sense of objective
evidence perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification." 38 C.F.R.
Sec. 3.317(a)(3) (emphasis added). We have identified multiple cases
in which the VA erroneously denied the veteran's claim for entitlement
to service connection for an undiagnosed illness on the basis that the
veteran did not exhibit "objective indications" of a chronic
disability, solely due to the lack of objective evidence perceptible to
a VA physician at a Compensation and Pension examination, without
considering other, non-medical indicators that are capable of
independent verification. In these cases, the VA adjudicators relied on
the findings in the VA Compensation and Pension examination report. The
adjudicators, however, ignored corroborating lay statements about the
veteran's observable symptoms, such as joint swelling, twitching, and
complaints of pain; and ignored records showing that the veteran sought
medical treatment for the symptoms. Such lay statements and medical
treatment records are "indicators that are capable of independent
verification" sufficient to satisfy the "objective indications"
requirement for establishing service connection under 38 U.S.C. Sec.
1117 and 38 C.F.R. Sec. 3.317.
II.Extension of the Date by Which an Undiagnosed Illness or
Medically Unexplained Chronic Multi-Symptom Illness Must Manifest to a
Disabling Degree of 10 percent.
In 38 U.S.C. Sec. 1117(b), Congress directed the Secretary of
Veterans Affairs to prescribe by regulation the period of time
following service in the Southwest Asia theater of operations during
the Persian Gulf War that the Secretary determines is appropriate for
the presumption of service connection for qualifying chronic
disabilities. The Secretary initially established a 2-year post-Persian
Gulf War service period during which symptoms of an undiagnosed illness
needed to manifest to a degree of 10 percent in order to qualify for
presumptive service connection. See Compensation for Certain
Undiagnosed Illnesses, 60 Fed. Reg. 6660 (Feb. 3, 1995). In 1997, the
Secretary updated 38 C.F.R. Sec. 3.317 to require manifestation of the
symptoms no later than December 31, 2001. See Compensation for Certain
Undiagnosed Illnesses, 62 Fed. Reg. 21,138 (Apr. 29, 1997) (Interim
Final Rule). In 2001, the VA extended the end date of the presumptive
period to December 31, 2006. Extension of the Presumptive Period for
Compensation for Gulf War Veterans' Undiagnosed Illnesses, 66 Fed. Reg.
56614 (Nov. 9, 2001) (Interim Final Rule). In 2006, the VA extended the
end date of the presumptive period to December 31, 2011. Extension of
the Presumptive Period for Compensation for Gulf War Veterans, 71 Fed.
Reg. 75669 (Dec. 18, 2006) (Interim Final Rule).
Most recently, in 2011, the VA extended the end date of the
presumptive period to December 31, 2016. Extension of Statutory Period
for Compensation for Certain Disabilities Due to Undiagnosed Illnesses
and Medically Unexplained Chronic Multi-Symptom Illnesses, 76 Fed. Reg.
81,834 (Dec. 29, 2011) (Interim Final Rule). The VA noted that the
scientific and medical literature available at that time suggested that
"while the prevalence of chronic multi-symptom illness may decrease
over time following deployment to the Gulf War, the prevalence remains
significantly elevated among deployed veterans more than a decade after
deployment. At present, there is not a sufficient basis to identify the
point, if any, at which the increased risk of chronic multi-symptom
illness may abate." Id. at 81835. The VA concluded that extension of
the presumptive period was warranted because "scientific uncertainty
remains as to the cause of illnesses suffered by Persian Gulf War
veterans and the time period in which such veterans have an increased
risk of chronic multi-symptom illness" as well as the fact that
National Academy of Sciences reviews were ongoing. Id.
A review of the most recent report of the Institute of Medicine of
the National Academies of Science, Engineering, and Medicine, Gulf War
and Health, Volume 10, Update of Health Effects of Serving in the Gulf
War, 2016 (prepublication copy), reveals that little has changed with
respect to the level of scientific certainty regarding the cause of
illnesses suffered by Persian Gulf War veterans and the time period
during which symptoms of such illnesses might first manifest. Due to
this continued state of uncertainty in the scientific community, NVLSP
believes that the VA should again extend the end date of the
presumptive period during which symptoms of a qualifying chronic
disability must first manifest to a disabling degree of at least 10
percent. NVLSP believes that end date should be extended indefinitely,
but at the very least to December 31, 2021.
I would be pleased to answer any questions you may have.
Thank you.
Statements For The Record
ANTHONY HARDIE
Thank you, Chairmen Coffman and Abraham, Ranking Members Kuster and
Titus, and Members of the Committee for today's hearing and for this
opportunity to present this information to you.
I'm Anthony Hardie, a 1991 Gulf War and Somalia veteran, and
Director of Veterans for Common Sense. VCS and I have provided
testimony on many previous occasions, most recently my testimony as a
witness at your February 23, 2016 hearing on Gulf War veterans' health
outcomes on the 25th anniversary of the 1991 Gulf War.
1998 PERSIAN GULF WAR VETERANS LEGISLATION
As I noted in my testimony of February 23, it took almost eight
years after the war before Gulf War veteran' major legislative victory,
with the enactment of the Persian Gulf War Veterans Act of 1998 (Title
XVI, PL 105-277) and the Veterans Programs Enhancement Act of 1998 (PL
105-368, Title I-"Provisions Relating to Veterans of Persian Gulf War
and Future Conflicts") - two landmark bills that set the framework for
Gulf War veterans' healthcare, research, and disability benefits.
For those of us involved in fighting for the creation and enactment
of these laws, they seemed clear and straightforward, with a
comprehensive, statutorily-mandated plan that would guarantee research,
treatments, appropriate benefits, and help ensure that lessons learned
from our experiences would result in never again allowing what happened
to us to happen to future generations of warriors.
The legislation included a long list of known Gulf War exposures.
VA was to presume our exposure to all of these, and then, with the
assistance of the National Academy of Sciences (NAS), evaluate each
exposure for associated adverse health outcomes in humans and animals.
In turn, the VA Secretary would consider the reports by the NAS's
Institute of Medicine (IOM), "and all other sound medical and
scientific information and analyses available," and make determinations
granting presumptive conditions. There was a new guarantee of VA health
care. There would also be a new national center for the study of war-
related illnesses and post-deployment health issues, which would
conduct and promote research regarding their etiologies, diagnosis,
treatment, and prevention and promote the development of appropriate
health policies, including monitoring, medical recordkeeping, risk
communication, and use of new technologies. There was to be an
effective methodology for treatment development and evaluation, a
medical education curriculum, and outreach to Gulf War veterans.
Research findings were to be thoroughly publicized. To ensure the
federal government's proposed research studies, plans, and strategies
stayed focused and on track, VA was to appoint a research advisory
committee that included Gulf War veterans - presumably those who were
ill and affected - and their representatives.
Instead, we learned that enactment of those laws was just another
battle in our long war.
From the beginning, VA officials fought against implementing these
laws, dragging their feet and upending their implementation.
In addition to the failures I noted in my February 23 testimony,
the process for determining presumptions has failed to yield new
presumptions without Congressional intervention. And, the laws aimed at
providing at clear path for Gulf War veterans' compensation by VA while
awaiting the development of effective treatments has been not just
problematic, but with extraordinarily high denial rates, as VA's own
data shows and as will be discussed below.
For Gulf War veterans, getting VA to approve a disability claim for
a presumptive condition has been nearly impossible for most. And, as
with all denied VA claims, the backlog of appealed claims is daunting
and adds years to the process.
DESPITE REPEATED VA INTERVENTIONS, VA'S GULF WAR VETERAN CLAIMS DENIAL
RATES ARE WORSENING OVER TIME
The rates of VA's denial of Gulf War veterans' presumptive claims -
for "undiagnosed illness" and for the "chronic multisymptom illnesses"
such as Fibromyalgia, Irritable Bowel Syndrome/Functional
Gastrointestinal Disorders, and Chronic Fatigue Syndrome - have been
getting worse over time.
This worsening has been despite repeated high-level interventions
by VA - interventions made ostensibly to improve VA's review processes
for Gulf War veteran's presumptive claims.
2007 VA Denial Rate of
Gulf War Veterans'
Presumptive Undiagnosed
Illness Claims
In 2007 and 2008, I did a series of presentations about Gulf War
veterans' severe challenges with VA research, healthcare and benefits.
The presentations were made to a number of national and regional groups
around the country and were entitled, "Lost in the Shuffle". Among the
data presented was VA's abysmal claims failures for Gulf War claims:
Based on a May 2007 report from VA's Gulf War Information System
(GWVIS), out of 696,842 Gulf War veterans, 280,623 had filed service-
connected disability claims. Of those, 13,027 were "undiagnosed illness
claims" (what VA terms "UDX" claims), just 3,384 had been approved - a
74 percent denial rate.
2010 VA Intervention
According to a February 4, 2010, "All VA Regional Offices Training
Letter," (10-01), with the subject, "Adjudicating Claims Based on
Service in the Gulf War and Southwest Asia,":
"The chronic disability patterns associated with these Southwest
Asia environmental hazards have two distinct outcomes. One is referred
to as "undiagnosed illnesses" and the other as "diagnosed medically
unexplained chronic multisymptom illnesses" that are without conclusive
pathophysiology or etiology. Examples of these medically unexplained
chronic multi-symptom illnesses include, but are not limited to: (1)
chronic fatigue syndrome, (2) fibromyalgia, and (3) irritable bowel
syndrome."
This letter preceded regulatory amendments and provided guidance to
VA claims examiners to more appropriately adjudicate Gulf War veterans'
claims.
2014 VA Denial Rate of Gulf War Veterans' Presumptive Claims
Data provided by VA to the office of then-Congressman Kerry
Bentivolio on March 28, 2014 showed a nearly 80% denial rate for what
VA termed in the response, "a Gulf War-related illness". It appears
that this is the cumulative VA denial rate of all presumptive
undiagnosed illness and presumptive chronic multisymptom illness
(Fibromyalgia, Irritable Bowel Syndrome; Chronic Fatigue Syndrome)
claims by Gulf War veterans.
Key findings (2014)
80% Gulf War Illness Claims Denial Rate. Of 54,193 Gulf
War-related illness claims filed with VA, four out of five - nearly 80
percent (80%) - were denied.
52% of the denied for something else. A full 52 percent
of the denied Gulf War-related illness claims were approved by VA for
something else, implying a VA bias against approving Gulf War Illness
claims.
38% denied for everything. A full 38 percent (38%) of
veterans' claims for Gulf War-related illness were had their claims
denied entirely, both for Gulf War-related illness and other
conditions.
By the Numbers (2014)
696,842 Veterans: The total number of veterans deployed to the
Persian Gulf theatre of operations during the 1991 Gulf War.
54,193 GWI Claims: The number of Gulf War-related illness claims
veterans have filed with VA, to March 2014. [VA notes this figure
represents original claims for service-connection; it does not include
reopened claims or claims for an increased disability rating.]
11,216 Approved: The number of Gulf War Illness claims that VA
granted. [VA notes that due to data limitations, this figure does not
include some Veterans who have been granted service connection on a
direct basis (meaning that the disability became manifest during active
service) rather than under the provisions of 38 C.F.R. Sec. 3.317.]
42,977 Denied: The total number of Gulf War-related illness VA has
denied.
20% Approved: The percentage of Gulf War-related illness that VA
granted (11,216 approved out of 54,193 filed = 20.7%).
80% Denied: The percentage of Gulf War-related illness VA has
denied (42,977 denied out of 54,193 filed = 79.3% denial rate).
22,470 Approved for Something Else: The number of veterans filing
Gulf War-related illness claims that were denied but VA approved the
veterans' claims for some other condition(s).
42% Denied for GWI but Approved for Something Else: The percent of
veterans filing Gulf War-related illness claims that were denied but VA
approved their claims for some other condition(s) (22,470 approved for
something else out of 54,193 total Gulf War-related illness claims
filed = 41.5%).
52% of the Denied were Approved for Something Else: The percent of
denied Gulf War-related illness claims approved for some other
condition. (22,470 approved for something else out of 42,977 denied
Gulf War-related illness claims = 52.3%)
20,507 Denied for all Conditions: The number of veterans filing
Gulf War-related illness claims that were denied for GWI and not
receiving compensation for other conditions. (54,193 Gulf War-related
illness claims filed minus 22,470 claims approved for something else =
20,507)
38% Denied for all conditions: The percent of all Gulf War-related
illness claims filed that were denied for Gulf War-related illness and
also not receiving compensation for other conditions (20,507 denied out
of 54,193 = 37.8%)
67% Average Disability Rating: The average disability rating
granted by VA for Gulf War-related illness claims filed.
VSO Response to 2014 Denial Rates
In a July 16, 2014 letter from two of the largest veterans service
organizations (VSOs), AMVETS and VVA, to then-Acting VA Secretary Sloan
Gibson highlighted the newly released VA claims denial information and
provided insight into why this was being allowed within VA:
"VA acknowledges that 250,000 suffer from Gulf War illness. (The
recent VA `Gulf War Review,' for example, states that nearly 700,000
U.S. troops deployed to the 1991 war and that VA's major 2005 study
showed that 37% of those (roughly 250,000) have chronic multisymptom
illness, VA's term for Gulf War illness. The 2010 report of the
Institute of Medicine also found 250,000 veterans were ill and that
their illness was associated with Gulf War service.
"Yet, VA's own most recent statistics, provided in response to a
Congressional inquiry this Spring, show that only 11,216 Gulf War-
related illness claims have been granted and 80% of such claims are
denied. (See VA report to Congressman Bentivolio, attached.) Even
including all claims approved for other conditions, the total number of
Gulf War veterans approved for care and benefits is only 36,000, out of
the 250,000 afflicted.
"VA hides that damning fact in its official statements. The April
2014 VA Gulf War `Fact Sheet' states that "currently, nearly 800,000
Gulf War era Veterans are receiving compensation benefits for service-
connected issues." What VA doesn't say is that their definition of the
`Gulf War era' includes every veteran who has served from 1990 to the
present, not just 1990-1991 Gulf War veterans. (See Fact Sheet
attached.)
"Recent statements by Undersecretary for Benefits Allison Hickey
provide the answer why VA is hiding this information. An April 22, 2014
article in Military Times reported that she was concerned that even
using the term `Gulf War illness' `might imply a causal link between
service in the Gulf and poor health which could necessitate legislation
for disability compensation for veterans who served in the Gulf.' And
on December 13, 2013, she testified that VA would be able to meet its
2015 goal of processing claims within 125 days, barring `something like
we experienced in Agent Orange [when we added] 260,000 claims in our
inventory overnight in Oct. 2010. That will kill us.'"
Recent Rates of VA Denial of Gulf War Veterans' Presumptive Claims
Despite the latest VA intervention in 2010, the rate of denial of
Gulf War veteran presumptive claims has been steadily worsening, year
by year, as showna by data provided by VA for fiscal years 2011 through
the first half of 2015. These claims include two types: chronic
multisymptom illness claims (Fibromyalgia; Irritable Bowel Syndrome/
Functional Gastrointestinal Disorders; Chronic Fatigue Syndrome); and,
undiagnosed illness claims authorized under 38 U.S.C. 3.317.
A. VA Denials of Presumptive Chronic Multisymptom Illness Claims
The rate of denial of Gulf War veteran presumptive chronic
multisymptom illness claims (Fibromyalgia; Irritable Bowel Syndrome/
Functional Gastrointestinal Disorders; Chronic Fatigue Syndrome) has
been steadily worsening, year by year. By the first half of FY15, VA
was denying these claims at a rate of nearly four-out-of-every-five.
FY2011: 72.5%
FY2012: 72.1%
FY2013: 75.3%
FY2014: 77.0%
FY2015 Q1, Q2: 79.2%
"CMI = Chronic Multisymptom Illness (fibromyalgia 5025, IBS 7319,
and chronic fatigue syndrome 6354) in either the hyphenated or primary
code. If condition is both UDX and CMI, it is included in UDX counts."
(G) = Total Conditions Granted ("Vets")
(D) = Total Conditions Denied ("Vets")
(T) = Total Conditions Granted or Denied ("Vets")
Formulas: (G) + (D) = (T); (D)/(T) = denial rate
FY2011: 743 (G) + 1,961 (D) = 2,704 (T); 1,961 (D) / 2,704 (T) =
72.5% CMI denial rate
FY2012: 1,114 (G) + 2,877 (D) = 2,704 (T); 2,877 (D) / 3,991 (T) =
72.1% CMI denial rate
FY2013: 1,638 (G) + 5,002 (D) = 2,704 (T); 5,002 (D) / 6,640 (T) =
75.3% CMI denial rate
FY2014: 1,300 (G) + 4,341 (D) = 2,704 (T); 4,341 (D) / 5,641 (T) =
77.0% CMI denial rate
FY2015 Q1,Q2: 746 (G) + 2,849 (D) = 2,704 (T); 2,849 (D) / 3,595
(T) = 79.2% CMI denial rate
B. VA Denials of Presumptive Undiagnosed Illness Claims
VA's denial of Gulf War veteran presumptive undiagnosed illness
claims is at even higher rates than VA's denial of presumptive chronic
multisymptom illness claims.
The rate of denial of Gulf War veteran presumptive undiagnosed
illness claims has also been steadily worsening, year by year. By the
first half of FY15, VA was approving only 14.7 percent of these claims
- approaching the limited odds of winning a scratch-off lottery.
FY2011: 80.5%
FY2012: 78.4%
FY2013: 78.6%
FY2014: 83.1%
FY15 Q1, Q2: 85.3%
"UDX = Undiagnosed Illness, defined as diagnostic codes containing
88xx in either the hyphenated or primary code."
Formulas: (G) + (D) = (T); (D)/(T) = denial rate
FY2011: 480 (G) + 1,977 (D) = 2,457 (T); 1,977 (D) / 2,457 (T) =
80.5% UDX denial rate
FY2012: 628 (G) + 2,278 (D) = 2,906 (T); 2,278 (D) / 2,906 (T) =
78.4% UDX denial rate
FY2013: 925 (G) + 3,402 (D) = 4,327 (T); 3,402 (D) / 4,327 (T) =
78.6% UDX denial rate
FY2014: 627 (G) + 3,086 (D) = 3,713 (T); 3,086 (D) / 3,713 (T) =
83.1% UDX denial rate
FY2015 Q1,Q2: 339 (G) + 1,970 (D) = 2,309 (T); 1,970 (D) / 2,309
(T) = 85.3% UDX denial rate
C. VA Denials of Gulf War Presumptive Claims (Chronic Multisymptom and
Undiagnosed Illness Combined):
FY2011: 76.3%
FY2012: 74.7%
FY2013: 76.6%
FY14: 79.4%
FY2015 Q1, Q2: 81.6%
Formula: [(CMI D) + (UDX D)] / [(CMI T) + (UDX T)] = denial rate
FY2011: [1,961 (CMI D) + 1,977 (UDX D)] / [2,704 (CMI T) + 2,457
(UDX T)] = 76.3% CMI+UDX denial rate
FY2012: [2,877 (CMI D) + 2,278 (UDX D)] / [3,991 (CMI T) + 2,906
(UDX T)] = 74.7% CMI+UDX denial rate
FY2013: [5,002 (CMI D) + 3,402 (UDX D)] / [6,640 (CMI T) + 4,327
(UDX T)] = 76.6% CMI+UDX denial rate
FY2014: [4,341 (CMI D) + 3,086 (UDX D)] / [5,641 (CMI T) + 3,713
(UDX T)] = 79.4% CMI+UDX denial rate
FY2015 Q1, Q2: [2,849 (CMI D) + 1,970 (UDX D)] / [3,595 (CMI T) +
2,309 (UDX T)] = 81.6% CMI+UDX denial rate
VA Intervention:
Amending the M21-1
It appears that VA has made a new intervention by amending the M21-
1 "Veterans Benefits Manual," which is supposed to be used for rating
VA claims. However, it is not clear whether VA rating staff are aware
of, let alone utilizing this manual to rate Gulf War veterans' claims.
With no new Gulf War claims data released since the second quarter
of FY15, it is unclear whether this intervention has had any positive
effect on improving VA's terrible denial rates for Gulf War veterans'
UDX and CMI claims.
Given VA's past record, it is unclear whether this latest
intervention will be just one more in a long line of ineffective
"solutions". Past VA "solutions" have done nothing to quell VA's
extraordinarily high denial rates of these veterans' claims.
Claims Denial Conclusions
In short, VA's denial rates for Gulf War UDX and CMI claims
remained high over time. In recent years, VA's denial rates have been
increasing for these Gulf War veterans' claims.
This is in complete contravention to the intent of the 1998 laws
passed to improve Gulf War veterans' ability to get their claims
approved, while prioritizing treatments was made an even higher
priority - but not by VA.
CLAIMS DATA RECOMMENDATIONS
VA Needs to Track, Analyze, and Regularly Report VA Utilization Data
for 1990-91 Gulf War Veterans.
In 2010, VCS Director Paul Sullivan testified, "In 2002, VA staff
conducted a thorough review of granted and denied claims among Gulf War
veterans at the diagnostic code level. VA staff concluded that VA
regional offices with large claim backlogs and without training on UDX
claims under 38 CFR 3.317 approved few (about 4 percent) of Gulf War
veterans claims. In contrast, VA regional offices with small backlogs
that received training from VA Central office approved far more UDX
disability benefit claims (about 30 percent). At present, VA has no
idea how many UDX claims have been granted or denied."
Today, it is unclear whether VA is consistently tracking UDX claim
denials and approvals. Certainly, VA is not publicly reporting that
data, at least not in any way that is regularly and readily accessible
to Gulf War veterans or the veterans advocacy community.
VA must return to the regular public reporting of carefully
collated and analyzed Gulf War veterans' claims and VA usage data.
VA must return to the regular public reporting of carefully
collated and analyzed Gulf War veterans' claims and VA usage data. VA
must be held accountable for its actions, and without easy public
access to this VA data, accountability will remain difficult to
achieve.
CONCLUSIONS
If we measure VA's success by how it has approved Gulf War
veterans' claims twenty-five years after the war, VA has failed most
ill and suffering Gulf War veterans. VA has circumvented or ignored
most of the aims of the 1998 laws. Despite various high-level
interventions by VA to improve the claims process, the denial rates
remain unacceptably high and are getting worse each year.
In twenty-five years, VA has made little progress in finding
effective, evidence-based treatments for Gulf War Illness, denied Gulf
War veterans disability claims nearly across the board, and relegated
these veterans to the realm of mental health interventions.
VA has the authority to develop new presumptives for these ill and
suffering veterans, but unlike with Agent Orange, has failed to
identify any new conditions beyond a set of rare endemic infectious
diseases that affect almost no one. The latest report by the Institute
of Medicine, shaped by VA's contract, argues that individual Gulf War
exposures are forever unknowable. We knew that when seeking the 1998
legislation, aimed at connecting generic exposure data with health
outcomes. VA has stymied those efforts.
Twenty-five years later, ill Gulf War veterans are still in pain.
They are suffering. They have been begging for help for years and
years. As I noted in my February 23 testimony, the letter, the spirit,
and the intent of the 1998 Persian Gulf War laws have yet to be
achieved.
On this 25th anniversary of the war, our Gulf War veterans are
still waiting for VA to provide effective, evidenced-based treatments
for Gulf War Illness. Given their level of disability, the least we can
do is to cause VA to approve their presumptive, service-connected
disability claims.
Please help fix these serious issues, once and for all.
****
ADDITIONAL INFORMATION
Public Law 102-1, enacted in January 1991, authorized the President
to start the Persian Gulf War, known at the time as Operation Desert
Shield and Desert Storm. Offensive U.S. military action against Iraq
began on January 17, 1991 local time (the evening of January 16 in the
United States).
Public Law 102-25, enacted in April 1991, retroactively established
the start date of the Gulf War as August 2, 1990, the date Iraq invaded
Kuwait. Neither Congress nor the President have ever ended the Gulf
War, and the conflict continues through to the present. According to 38
CFR 3.317(e)(2), "The Southwest Asia theater of operations refers to
Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi
Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of
Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea,
and the airspace above these locations. (Authority: 38 U.S.C. 1117,
1118)."
Public Law 102-85, enacted in November 1992, authorized the
creation of the Gulf War Registry as well as the Gulf War Veterans
Information System (GWVIS). VA began preparing GWVIS reports in 2000,
and VA ceased producing the reports in 2008 after VCS observed that
VA's GWVIS reports were incomplete. VA has since confirmed that it
failed to update computer programming to identify all disabled Gulf War
veterans.
Public Law 103-210, enacted in December 1993, required VA to
provide healthcare on a priority basis (Priority Group 6).
Public Law 103-446, enacted in November 1994, expanded access to VA
disability benefits so ill Gulf War veterans could obtain VA medical
care under for the undiagnosed illnesses. The law included a long list
of toxins to which Gulf War veterans were presumably exposed, including
depleted uranium, fumes and smoke from military operations, oil well
fires, diesel exhaust, paints, pesticides, depleted uranium, infectious
agents, investigational drugs and vaccines, indigenous diseases, and
multiple immunizations.
Public Law 105-277, enacted in 1998, significantly expanded the
list of toxins it presumed Gulf War veterans were exposed to during
deployment to Southwest Asia, and mandated contracts between VA and the
National Academy of Science (which ultimately was conducted by NAS's
Institute of Medicine (IOM)) to determine association between Gulf War
exposures and Gulf War veterans' health conditions.
Public Law 105-368, enacted on Veterans Day 1998, expanded Public
Laws 103-210 and 103-446. It also directed the creation of the the
Research Advisory Committee on Gulf War Veterans' Illness (RAC), which
VA failed to create the RAC until 2002 - more than three years after
the statutorily mandated deadline.
RONALD E. BROWN
Thank you, Chairman Coffman, Ranking Member Rep. Ann McLane Kuster,
Rep. Dr. Ralph Abraham, Rep. Dina Titus, and Members of the House
Veterans' Affairs Subcommittee on Oversight and Investigations. I thank
you for holding this joint investigative hearing on the VA's Disability
Claim Process with Respect to Gulf War Illness claims.
My name is Ronald Brown; I'm President of the National Gulf War
Resource Center (NGWRC). The NGWRC is a small 501 (c) (3) non-profit
veteran service organization, which is comprised of sick Persian Gulf
War veterans who volunteer our time to advocate for our fellow veterans
suffering from the complexities of modern warfare. We specialize in
Gulf War Illness claims, we work with veterans to educate and assist
them in the claims process. We also work with policy makers inside the
VA, in an attempt to accomplish two goals: first, to insure clinicians
are better trained about conditions facing this group of veterans to
insure the veterans receive the best health care possible. Secondly, we
are working to address and correct issues affecting this group of
veterans, such as the high denial rate of Gulf War illness related
claims.
This year marks the 25th anniversary of the liberation of Kuwait.
Of the nearly 700,000 U.S. military personnel that served in the 1990-
1991 Persian Gulf War (Operation Desert Storm) studies indicate that
approximately 25-32% of these veterans became ill with what is now
referred to as Gulf War Illness. These U.S. Warfighters face a higher
denial rate than any other era veteran.
In May 2015 the VBA provided the NGWRC data on Gulf War claims. The
data wasn't exactly what we had asked for but it did show some very
disturbing numbers. Out of 193,436 Undiagnosed Illness (UDX) or Chronic
Multi-Symptom conditions claimed only 32,631 was approved service
connection leaving 160,805 conditions denied. That's an approval rate
of 17% and a denial rate of 83%. The VBA has stated that the denial
rate is actually around 70%-74%.
This data shows that Desert Storm veterans are compensated for
direct service connection conditions (50,523) equivalent to other era
veterans. Emphatically, this data revealed disturbing data that showed
most Gulf War veterans are denied presumptions of service connection
for illnesses (CMI) associated with service in the Persian Gulf
Theater.
The NGWRC asked the VBA for clarification. The VBA provided us with
data in July 2015 that shows the reasons for denials of first time
claims filed from 2011 through 2015.
This data is for denials of claims for the diagnosable but
medically unexplained chronic multisymptom illness (CMI) conditions
such as Chronic Fatigue Syndrome, Fibromyalgia, and Functional
gastrointestinal conditions which are presumed by Congressional intent
(See: U.S.C 38 Sec. 1118) to be caused by service in the Southwest
Asia Theater of operations. This data shows that a total of 18,218
veterans filed claims for 22,863 conditions that were denied.
The data is broken down by specific categories with the number of
claims denied in each category, they are as follows:
No Causation - 8 conditions.
No Diagnosis - 9,710 conditions.
Not aggravated by service - 25 conditions.
Not Established by Presumption - 2,176 conditions.
Not in Country - 10 conditions.
Not Caused/Incurred by Service - 10,568 conditions.
Not Secondary - 344 conditions.
Not Well Grounded - 1 condition.
Not in Line of Duty - 3 conditions.
The NGWRC finds two of these categories extremely troubling and
evidence of systemic problems within the Veterans Benefit
Administration (VBA) in regards to Gulf War Illness claims. The
categories "Not Established by Presumption - 2,176 conditions denied"
and "Not Caused/Incurred by Service - 10,568 conditions denied". These
two categories account for 57% of the 22,863 conditions that were
denied. These two categories absolutely make no sense given the fact
that by statue (U.S.C 38 Sec. 1118) these conditions are presumptions
of service connection for illnesses associated with service in the
Persian Gulf War. Congressional intent is such that these illnesses
"shall be considered to have been incurred in or aggravated by service
notwithstanding that there is no record of evidence of such illness
during the period of such service".
To date the Veterans Benefit Administration (VBA) has not been able
to provide a rational explanation as to why these two categories
warrant denials given the statue. I addressed this issue with former
Under Secretary of Benefits Allison Hickey who acknowledged a potential
problem and stated that she would have VBA randomly pull a statistical
portion of these claims to check for accuracy. She stated that she
would have the results by October or November 2015. Her replacement,
Danny Pummill, has also promised to get us the results from this
accuracy check but as of today we still do not have the results.
The Veterans Benefit Administration (VBA) has worked with us to
update both their training and procedure manual, the M21-1. They did an
outstanding job, the new changes to their M21-1 provides sufficient
guidance to enable C&P examiners to provide accurate Gulf War Illness
exams and it provides VA adjudicators all the necessary information to
accurately decide these claims.
Unfortunately, the Veterans Benefit Administration (VBA) has been
ineffective in getting the front line raters at the regional Benefits
offices to do the training or use the updated M21-1 manual. This is
evident by recent denials of chronic multisymptom illness (CMI) claims
in which the adjudicator or the C&P examiner imposed a nexus
requirement and denied the veteran's claim because "no record or
evidence of such illness was found in the veteran's military medical
records". The front line adjudicators are not following statue, VA
regulations, VA procedure (M21-1) and U.S. Court of Appeals for
Veterans' Claims case law.
The NGWRC has been very successful in winning appeals at the
Regional Benefits Office level, by simply pointing out the statue, VA
regulation (38 CFR 3.317), the appropriate section in the M21-1
procedure manual, and the U.S. Court of Appeals for Veterans' Claims
case Gutierrez v. Principi, 19 Vet.App.1 (2004) in which the court
upheld U.S.C 38 Sec. 1118 and determined that a Gulf War veteran does
not have to prove any link to the veteran service and his or her
current CMI condition.
The NGWRC has also been successful working with policy makers
inside the Veterans Benefit Administration (VBA). We are very thankful
to these policy makers for the positive changes made to the M21-1
manual, yet we find ourselves awestruck by the VBA's inability to train
the front line adjudicators on these types of claims. As positive as
the changes are to the M21-1, these changes are useless if the
examiners and raters aren't using and following the regulations
highlighted in the manual.
The only hope Gulf War Veterans have to fix the high denial rate of
Gulf War illness related claims is for the Veterans Benefit
Administration to first recognize the problem and provide ongoing
training to the front line adjudicators in all Regional Benefits
Offices. This training would further serve to reduce the growing number
of appeals.
Recommendations:
Training. Training the front line adjudicators concerning
Gulf War illness related claims would be the most effective tool in
solving the high denial rate of Gulf War illness related claims. Gulf
War illness related claims make up 29% of the current back log. This
training would further serve to reduce the growing number of appeals.
If the policy makers in the Central office are serious about fixing the
high denial rates of Gulf War illness related claims, they need to
ensure that each regional office around the country is doing mandatory
training.
The upper management in the Central office should direct
the directors of each Regional Benefits Office to ensure their front
line adjudicators are using the M21-1 manual. This manual provides the
adjudicators all the references needed to accurately adjudicate claims.
References in this manual include U.S. code, VA Regulation (CFR) and
related U.S. Court of Appeals for Veterans' Claims cases. This manual
is an excellent tool if used.
Transparency, the VBA must continue to provide Veteran
Service Organizations with data on these types of claims. This ensures
that VSO organizations can monitor and keep tract of denial and
approval rates as well as provide critical information to the veterans
they represent.
I think it would help if VA also provided more
specificity to veterans on why their claims are denied. For example, VA
doesn't always inform the veteran about what exactly could be done to
help move the claim - but I believe the following is critical for
veterans to know so they can meet the 10% threshold:
The veteran must specifically indicate the condition is
"due to Gulf War;"
The veteran must describe the symptoms related to the
condition and its existence of more than 6 months;
The veteran should provide any medical or nonmedical
evidence (such as personal statements from family on the impact of the
condition to the veteran, family, etc.
Respectfully,
Ronald E. Brown
President
National Gulf War Resource Center