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Testimony Executive
Director Before
the Subcommittee
on Benefits October
26, 1999 I. Introduction
Chairman,
members of the subcommittee, on behalf of the 60 organizations
represented by the National Gulf War Resource Center, I appreciate the
opportunity to testify again regarding Department of Veterans Affairs
(VA) benefits available to Gulf War veterans. In the audience is
Charles Sheehan-Miles, our National Secretary, who testified before
your subcommittee in 1996. The
work of this subcommittee remains critical.
The NGWRC notes with concern that more than 43 percent of Gulf
War veterans eligible for VA benefits are seeking healthcare, an
unusually high percentage given the excellent health we enjoyed in
1990. Almost one-third of
us are ill enough to seek compensation.
The NGWRC believes this is an alarmingly high rate worthy of
the immediate attention of this subcommittee. Here
are two other highly distressing statistics: first, 72 percent of the
claims for undiagnosed illnesses were denied; and, second, 72 percent
of the claims for undiagnosed illnesses to reach the Board of Veterans
Appeals (BVA) were either granted or remanded.
These figures show a very serious error rate at the regional
office level. Congress did not intend these results, and the NGWRC finds
these results unacceptable. Sadly,
there are more than 130,000 U.S. Gulf War veterans receiving VA
compensation, and at least 9,000 confirmed veteran deaths.
There are also more than one million military and civilian
deaths in Iraq as a result of the continuing nine-year Gulf War. We
wish to thank VA Undersecretary of Benefits Joe Thompson for inviting
the NGWRC to his quarterly briefings on VA claims.
In general, we support his efforts to streamline VA claims
using computers, the Internet, and improved training. II. VA Gulf War Statistics as of July
15, 1999
4,028,915
Gulf War “era” veterans, August 2, 1990 until present 1,131,859
Gulf War “theater” veterans, August 2, 1990 until present 696,621
Gulf War “conflict” veterans, August 2, 1990 until July 31, 1991 579,210
“conflict” veterans eligible for VA benefits 251,000
“conflict” veterans sought VA healthcare – 43% of those eligible 182,004
“conflict” veterans filed claims against the VA – 31% of those
eligible -
132,891 with one or more S/C conditions – 73% of claims filed -
89,016 claims approved, 10% or more compensation – 49% of
claims filed -
3,694 claims receiving pension (with & w/o S/C) – 2% of
claims filed -
40,524 claims approved, but zero compensation – 22% of claims
filed -
29,510 claims pending – 16% of claims filed -
19,260 claims denied in full – 11% of claims filed 10,403 Undiagnosed illnesses claims (PL 103-446) -
2,566 approved, 10% or more compensation – 25% -
318 approved, but zero compensation – 3% -
7,519 denied – 72% III. VA Narrowly Interprets PL 103-446
The
undiagnosed illnesses benefits law, PL 103-446, allows for the VA to
compensate veterans with undiagnosed or not clearly defined illnesses,
many possibly associated with Gulf War toxic exposures. Last year, as
part of PL 105-368, Congress extended benefits for undiagnosed
conditions through December 31, 2001. However,
according to figures provided by the VA, as of June 1999, only 25
percent of the claimants for undiagnosed illnesses received
compensation. The high
denial rate is unconscionable, as it penalizes those with the most
difficult to diagnose medical conditions.
It is unreasonable that three-quarters of the claims were
rejected. Clearly, this
contrasts sharply with the intent of Congress in 1994 when this law
was passed. The
NGWRC believes the VA narrowly interprets PL 103-446, to the detriment
of Gulf War veterans who have earned service-connected benefits,
because in most cases, medical treatment is contingent upon a veteran
receiving VA service-connected status for each condition needing
treatment. In most cases,
the denial of a claim results in a denial of medical care and endless
appeals. The NGWRC
believes the VA does this by: 1.
Denying claims for not “clearly defined” conditions, such
as chronic fatigue, multiple chemical sensitivity, amyotrophic
lateral sclerosis (a motor neuron disease known as Lou Gehrig’s disease or ALS), and fibromyalgia, to name a few.
Because these diagnoses are not well defined, they may fall
within the standards of evidence needed to grant an undiagnosed or not
“clearly defined” illnesses claim. 2.
Denying claims for undiagnosed illnesses when a doctor is
unable to diagnose the veteran. This
has happened even when the veteran has verified and objective
symptoms, such as unusual laboratory results. 3.
Denying claims possibly misdiagnosed as limited to only
psychological or psychiatric issues.
This may result from an unfamiliarity of various Gulf War toxic
exposures by VA medical professionals as well as miscommunication
regarding symptoms between the veteran and the VA physician performing
the Compensation and Pension (C&P) exam.
While some veterans do have psychological disabilities, there
are some toxic exposures that result in neurological damage that may
appear similar. 4.
Failing in the duty to assist veterans by developing their
claims, as we believe is incumbent upon the VA.
We understand there is a backlog when requesting military
records, from six months to twelve months or longer.
The NGWRC believes the VA must go the extra mile to assist Gulf
War veterans with these exceptionally difficult undiagnosed illnesses
claims, as Congress intended. We
note that undeveloped claims occur most frequently when the veteran
has no advocate. Because
of the shortfalls, 72 percent of claims for undiagnosed illnesses
benefits are denied at the regional office level – then 72 percent
are allowed or remanded at the BVA.
As a result of these findings, the NGWRC asks Congress to ask
the VA to readjudicate every undiagnosed illnesses claim that was
denied in whole or in part. Claims
made by Gulf War veterans are 28 percent more likely to be denied when
compared to those who served at the same time but not in the conflict.
Those in the conflict are 39 percent more likely to receive VA
compensation than those who did not deploy - a clear indication of
significant medical event(s) during Desert Storm. The NGWRC agrees
with Chairman Bob Stump's letter to VA Secretary Togo West dated June
3, 1998. The VA must
adopt more uniform standards to adjudicate Gulf War claims, with the
clear note that the VA must find, when there is reasonable doubt, in
favor of the veteran. The NGWRC believes
that many Gulf War claims are under-rated, with many veterans
receiving a ten percent rating when a more proper may adjudication
call for a higher rating. These lower ratings result in many more appeals, further
clogging the VA. The
NGWRC thanks Congress for passing the “Persian Gulf War Veterans Act
of 1998,” PL 105-277, and we urge the House Veterans Affairs
Committee to hold hearings on the implementation of this landmark
benefits legislation. The
NGWRC believes hearings are vital, as many new benefits may become
available as the National Academy of Sciences releases reports on
illnesses the NAS finds may be associated with more than 30 toxins,
and oversight may be needed. Until
the NAS completes their work, which is expected to last ten years or
more, undiagnosed illnesses benefits available under PL 103-446 should
have an open-ended presumptive period.
Ending undiagnosed illnesses benefits before the NAS completes
their task would be premature and possibly deny benefits to tens of
thousands of deserving Gulf War veterans. IV. NGWRC Proposals
There
are three main players in every claim brought by a veteran against the
VA: the veteran, the veteran's advocate, and the VA.
Each must be as trained or as informed as is possible in order
for the system to work properly. Our
mutual goal should be for veterans to submit a properly prepared
claim, especially for undiagnosed illnesses, with the assistance of a
veterans service representative, so the VA may promptly and accurately
adjudicate the claim. Then
the veteran may obtain healthcare, our main mission, plus
compensation, as needed. The
NGWRC believes Morton v. West (1999) does not apply to
undiagnosed illnesses claims because such claims do not require a
diagnosis, and because the law clearly states that a veteran’s claim
of symptoms represents a well-grounded claim.
The NGWRC believes the VA, in order to avoid a completely
adversarial system, must have a strong duty to assist veterans with
filing claims. This
difference in Gulf War claims requires specific training for VA
adjudicators and veterans service representatives as well as outreach
to Gulf War veterans. With
training, the number of initial mistakes is reduced, thus lowering the
number of improper denials and appeals, and possibly shrinking the
huge backlog of claims at the VA A.
GAO Investigation of Gulf War Claims Toward
that end, the NGWRC proposes Congress task the General Accounting
Office (GAO) to investigate the apparent discrepancy between the
intent of Congress and our view of the less than optimal
implementation of PL 103-446. Congress may want to ask the GAO to suggest ways to improve
the undiagnosed illnesses claims process.
Plus, if solid, reliable statistics are developed, this may
serve as a baseline to determine the effectiveness, if any, of any
proposed training program that may be implemented. Such
a probe may want to focus on: a.
the reasons for denials cited by VA (such as presumptive
period, not well grounded, failure to assist or develop, or having an
existing diagnosis) b.
the number of each type of condition claimed (such as “x”
number of diagnosed conditions and “y” number of undiagnosed
conditions) c.
variables within the veterans population (such as service
branch, gender, age, race, rank, deployment dates, and deployment
locations, and the number and type of diagnosed and undiagnosed issues
in each claim) d.
the impact of VSOs on the claim (such as the approval, denial,
appeal, and pending claims rates with and without VSO representation) e.
the level of development (such as did a VSO, the VA, or both
assist the veteran with development) f.
the number of VA personnel fully qualified to adjudicate such
claims (such as determining if there are enough, and do Gulf War
claims require additional time) B.
VA and VSO Training & Gulf War Veteran Outreach The
NGWRC believes a current VA training manual, A Guide to Gulf War
Veterans’ Health, published in April 1998, overemphasizes
stress, neglects toxic exposure research, and neglects claim
verification reporting procedures for undiagnosed conditions.
The NGWRC has confirmed several incidents where VA physicians,
many involved with Gulf War Registries or C&P exams, who are
unfamiliar with the VA’s Guide. Further,
the NGWRC proposes the VA undertake to develop and implement, within
the next year, a new training program with the cooperation of VSOs and
Gulf War veterans. As
part of reaching out to veterans, the NGWRC began distributing more
than 20,500 free copies of our Guide for Gulf War Illnesses in 1996.
Our on-line version has been visited more than 200,000 times. The
VA, in addition to their occasional newsletter, should consider
outreach at the local level, such as with the Persian Gulf Family
Support Program that expired in 1994, as there appears to be a
‘disconnect’ between policies originating from the VA Central
Office and local regional offices. To
the best of our limited ability, the NGWRC performs outreach,
including training for veterans representatives working for the
Vietnam Veterans of America. Veterans,
VSOs, legislators, the public, and the press find our Guide
highly informative and very helpful. The
first piece of advice given to veterans in our Guide is that
veterans should seek help from a professional veterans advocate.
We also believe our Guide is an important first step in
the process of making undiagnosed illnesses claims a smoother process. V. Six Other Benefits Issues Related
to the Gulf War
1.
The NGWRC urges Congress to amend 38 CFR Section 3.317 and
allow claims by U.S. veterans who served exclusively in Israel and
Turkey since August 2, 1990. The
DoD defines these two nations as the Gulf War theater, but the VA does
not. This creates
confusion in the claims process, as many of these veterans experienced
toxic exposures, and some have undiagnosed conditions. The VA's
actions have resulted in unreasonable denials for benefits. 2.
The NGWRC urges Congress to pass legislation to re-classify as
“former prisoners of war” approximately twenty U.S. veterans who
were taken prisoner by Iraq and held between August 1990 until as late
as December 1990, thus making them eligible for expanded VA benefits.
At present, the DoD classifies them as “beleaguered.”
This does not reflect they were held by Iraq's military during
the Gulf War as defined by PL 102-25. 3.
The NGWRC urges Congress to extend the part of PL 103-446
calling for medical evaluations of spouses and children.
As the GAO found last year, the VA is slow to implement this
program, which expires December 31, 1999.
The NGWRC believes ending the program is premature.
The data generated, in conjunction with recent DoD admissions
of multiple, widespread toxic exposures, may prove essential. 4.
The NGWRC thanks Congress for requesting a GAO probe into
depleted uranium exposures and Gulf War illnesses.
The NGWRC urges Congress to hold hearings on this matter when
the GAO releases their report early next year.
The NGWRC believes many Gulf War veterans may be denied VA
benefits for depleted uranium exposures due to the DoD's failure to
follow many regulations in place during the Gulf War. 5.
In a related manner, the NGWRC notes with alarm how the
Department of Energy apologized to DoE workers for DU exposures.
The DoE offered safety training, healthcare, and compensation
to exposed DoE workers. In
stark contrast, there is no verified DoD training for DU hazards, the
DoD refuses to consider medical research, there is no known
standardized reporting method for documenting or evaluating DU
exposures, and there is certainly no compensation. The NGWRC urges Congress to consider asking the secretaries
of Defense, Veterans Affairs, and Energy to comment on this disparity
between those who work or worked for the military and those who work
or worked for the Department of Energy. 6.
The NGWRC thanks the House for passing the “Gulf War
Veterans’ Iraqi Claims Protection Act of 1999” as part of the
Embassy Security Act. The
legislation is pending in a House-Senate Conference.
If enacted, this will allow veterans and families to file
claims against an estimated $1.45 billion in assets seized from Iraq
after Iraq invaded Kuwait in August 1990.
Until a distribution plan is enacted, veterans (many who had
their claims denied for undiagnosed illnesses) will not have access to
this one-time additional source of benefits.
The NGWRC urges Congress to include the “Claims Protection
Act” in any final conference language enacted this year. VI.
Conclusion
I
ask permission to introduce a few documents for the record.
First, our Self Help Guide for Gulf War Illnesses.
Second, our Depleted Uranium Exposures Case Narrative.
And, third, a few research articles and some correspondence
between the NGWRC and the Administration. The
NGWRC is pleased to be a resource to your staff on issues related to
the Gulf War. Chairman, that concludes my comments.
I will be happy to answer any questions. EndBack to Witness List |
