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Witness Testimony of Rachel Natelson, Esq., Service Women's Action Network, Legal Advisor

Mr. Chairman and Members of the Subcommittee:

Thank you for the opportunity to present the views of the Service Women’s Action Network (SWAN) concerning the rising backlog of VA benefits claims.

SWAN is a nonprofit service organization founded to improve the welfare of current U.S. servicewomen and to assist all women veterans. SWAN offers personal support and guidance from fellow women veterans, provides legal and counseling services from military law experts and caseworkers, recommends sound policy reform to government officials, and educates the public about servicewomen’s issues through various media outlets.  Conceived as a support network by and for women veterans, SWAN serves all military women, regardless of era, experience, or time in service.

Background

Under current law, the VA claims application process is a uniquely time-consuming one, hobbled by requirements that exist at neither the Social Security Administration nor private insurance companies. As this Subcommittee knows, the agency requires all applicants to prove by documentary evidence not only that they are disabled but also that their disabilities stem directly from military service.  As labor-intensive for reviewers as for claimants themselves, this system has yielded an application process that routinely lasts for years, culminating in the existing backlog of over a million claims.

While the claims process imposes a toll on all veterans seeking benefits, its burden falls with particular weight on those with Post-Traumatic Stress Disorder (PTSD), who must identify the specific stressor that triggered their condition, even if they have already been diagnosed and referred to treatment.  Deeming the symptoms of PTSD “relatively easy to fabricate,” the VA Clinician’s Guide directs examiners to base the validity of claims on elaborate documentation from claimants’ family and friends concerning changes from pre- to post-service status.[1] 

To date, the agency has defended this system as a precaution against fraud.  According to one VA spokeswoman, eliminating the proof requirement “would be a travesty for veterans—an assault to the pride of honest soldiers when other vets scammed the system.”[2] 

Such cynicism, however, hardly seems justified by actual numbers; not only are 50 percent of rejected claims reversed at the first level of appeal, but 90 percent of claims that reach the final stage of review are ultimately approved.  Similarly, studies indicate that existing evidence fails to support the assumption that veterans would misreport or exaggerate PTSD symptoms in order to receive compensation.

In recent years, a number of veterans groups have sought relief from the VA in federal court, arguing that the agency’s failure to issue claim decisions within a reasonable time frame violates the Administrative Procedure Act as well as Constitutional due process rights.  When confronted with this charge, the VA has countered that given the dictates of current law—most notably the proof requirement—the adjudication and appeals process cannot help but take as long as it does.  It is urgent, therefore, that the existing legislative framework for VA benefits be reassessed.

Special Challenges for Women Claimants

Although the benefits application process is labor-intensive and emotionally taxing for all claimants, women veterans face particular challenges in obtaining disability compensation from the VA.  To begin, studies indicate an institutional bias in favor of claimants with combat experience, an advantage which disproportionately favors men.  Not only do claim processors fail to understand the degree to which women are effectively, if not nominally, serving in combat positions, but they also fail to appreciate the extent to which servicemembers in non-combat occupations and support roles are exposed to traumatic events.

Among the most pervasive stressors experienced by military women are incidents of sexual assault and harassment.  The prevalence of sexual assault in the military is hardly news, and has been the subject of a number of recent Congressional hearings and Pentagon reports.  By some accounts, nearly a third of female veterans report episodes of sexual assault during military service, while 71 to 90 percent report experiences of sexual harassment. These experiences are closely associated with PTSD in a variety of studies; in fact, military sexual assault is a stronger predictor of PTSD among women veterans than combat history.[3]  Likewise, studies indicate that sexual harassment causes the same rates of PTSD in women as combat does in men.[4]

In spite of this correlation, the VA grants benefits to a significantly smaller percentage of female than male PTSD claimants.[5]  This disparity stems largely from the difficulties of substantiating experiences of military sexual assault, especially in a combat arena.  Under military regulations, for example, sexual harassment investigations are only retained on file for two years from the close of each case.[6]  While criminal investigations of sexual assault are better documented, 80 percent of assault victims fail to report the offense and over 20 percent of those who do file reports opt for a “restricted” mode that precludes official investigation.[7] 

Although training and reference materials for raters provide a great deal of guidance on how combat medals and commendations may be used to support PTSD claims, they make little mention of how to address the challenges of documenting military sexual assault as an in-service stressor.  As a result, reviewers tend to rely on a limited group of behavior changes in determining the validity of MST claims, often denying them if they fail to conform to a rigid set of expectations.  Many raters, for example, deny MST claims from veterans with distinguished service records based on the assumption that assault victims invariably decline in their job performance.

Perhaps most frustrating is the tendency of claim processors to ignore or second-guess the evaluations of treating physicians within the VA health system, particularly with respect to mental illness.  Despite the fact that the majority of my own clients have submitted MST diagnoses from VA counselors, most have received decisions indicating that they have failed to establish the condition, much less connect it to their service history.  By refusing to recognize the soundness of VA medical provider reports, reviewers both protract the application timeline and compromise the healing process for claimants. 

To quote one veteran who recently contacted SWAN about an MST claim she filed four years ago and for which she has yet to receive a hearing date, “I was raped twice while on active duty… I understand that this is a waiting game, but every day I think about giving up… I feel as though through this process I am being raped for a third time.”  Moreover, just as claim denial can undermine the efficacy of treatment, studies have indicated that approval tends to result in increased use of mental-health services.[8] 

Recommendations

The Institute of Medicine Committee on Veterans’ Compensation, a panel of experts convened by the VA to examine PTSD compensation issues, has proposed a number of sound recommendations based on its research.  The Committee has suggested that the agency: 1) collect gender-specific data on MST claim decisions, 2) develop additional MST-related reference materials for raters, and 3) incorporate training and testing on MST claims into its rater certification program.[9]  The VA should implement these proposals in order to sensitize claim reviewers to the needs of assault and harassment victims.

In light of plans to create a comprehensive electronic records system for military personnel, the Department of Defense and the VA have an unusual opportunity to address the problem of documenting in-service incidents of sexual assault and harassment.  In order to ensure that records of harassment and assault complaints may be accessed in support of VA claims, the military should incorporate, upon request, such investigative files into the proposed Joint Virtual Lifetime Electronic Record.  While such a step would not address the issue of under-reporting, it would at least improve the accessibility of existing records.

The VA should also establish a presumption of soundness for the diagnoses of its own treating physicians and counselors.  Claim reviewers should not have the authority to second-guess evaluations by agency medical professionals or to discount VA treatment records in favor of one-time Compensation and Pension (C&P) exam results.  According to the IOM committee, C&P examiners have reported feeling particular pressure to limit the time they devote to PTSD and MST evaluations, sometimes to as little as 20 minutes.[10]

SWAN also supports H.R. 952, which would create a statutory presumption of service-connection for OEF and OIF veterans with PTSD and Traumatic Brain Injury (TBI).  However, since statistics suggest that servicewomen are more likely to be sexually assaulted outside of combat zones than during deployment, we would propose extending such a presumption to all veterans who suffer from a traumatic event while in service.  According to the Pentagon’s 2008 Sexual Assault Prevention and Response Office (SAPRO) report, fewer than 10 percent of the assault incidents reported last year occurred in combat zones.[11]

Finally, SWAN proposes revising the current VA work credit system, which paradoxically prolongs the adjudication process by privileging speed over accuracy in initial claim determinations.  By measuring employee productivity strictly by number of cases processed, the VA offers reviewers an incentive to take any shortcut necessary to clear their desks of pending claims.  The resulting combination of too much work and too little time ultimately gives rise to premature—and inaccurate—determinations, setting in motion years of appeals.  In order to encourage accurate determinations at the Regional Office level and remove the incentive to recycle claims, the agency should award work credit only after the final stage of review.

Thank you very much for your attention.  I would be happy to answer any questions that the Subcommittee might have.


[1] See, VA Clinician’s Guide, 14.10 (2002).

[2] Joshua Kors, “How the VA Abandons Our Vets,” The Nation, Sept. 15, 2008, p.15.

[3] Murdoch Murdoch, et al., “Gender Differences in Service Connection for PTSD,” Medical Care 41, no. 8 (2003), 950-961.

[4] Murdoch Murdoch, et al., “The Association between In-Service Sexual Harassment and Posttraumatic Stress Disorder among Compensation-Seeking Veterans,” Military Medicine 171, no. 2 (2006), 166-173.

[5] Committee on Veterans’ Compensation for Posttraumatic Stress Disorder, Institute of Medicine and National Research Council of the National Academies, PTSD Compensation and Military Service (Washington DC: The National Academies Press, 2007),  p. 192.

[6] Army Regulation 600–20, EO/Sexual Harassment Complaint Processing System, p. 97.

[7] U.S. Department of Defense, FY08 Report on Sexual Assault in the Military, p. 6.

[8] Committee on Veterans’ Compensation for Posttraumatic Stress Disorder, PTSD Compensation and Military Service, p. 179.

[9] Ibid., 194.

[10] Ibid., p. 178.

[11] U.S. Department of Defense, FY08 Report on Sexual Assault in the Military, p. 41.