VETSFIRST TELLS CONGRESS TO PASS THE COMBAT PTSD ACT

| April 29, 2009

In a letter to House Veterans’ Affairs Committee Chairman Bob Filner, VetsFirst urged Congress to pass the Compensation Owed for Mental Health Based on Activities in Theater Post-traumatic Stress Disorder Act of 2009 (the COMBAT PTSD Act, H.R. 952). The proposed legislation would expand the VA’s definition of “engaged in combat with the enemy” and make it easier for veterans who have a diagnosis of PTSD and who served in a theater of combat operations to receive VA compensation and health care, even if there is no official military documentation to prove that they were actually involved in a combat situation.

Currently, the law and VA regulations require veterans whose military records do not reflect combat service, and who assert that their diagnosed PTSD is related to a combat experience, provide documentary proof that the alleged experience actually occurred (e.g., official military records or a statement from someone who shared the experience with the veteran). This kind of proof is often very difficult or impossible to obtain.

The COMBAT PTSD Act would change the law to include service in a combat theater of operations to trigger the VA’s obligation to accept the veteran’s assertion of the incident(s) that resulted in the onset or aggravation of any disease or injury (including PTSD) as proof of service connection, provided that the asserted stressor is consistent with the “circumstances, conditions, or hardships of such service”. Veterans without documented combat service would no longer have to provide proof of their combat-related experience if they served in a combat zone.

VetsFirst strongly supports the COMBAT PTSD Act, but we believe that the bill, as written, will not eliminate the barriers to VA benefits and health care that still exist for these veterans. Even with the expansion of the definition of “engaged in combat with the enemy”, veterans without documented combat service who served in a combat zone will still have to provide medical evidence that their PTSD is related to their military service. Given the delay that may occur between the occurrence of a stressor event and the onset of PTSD, as well as the subjective nature of the individual’s response to a stressor event, it is often very difficult to obtain this kind of evidence as well, since it must be provided by a health care professional usually years after the event.

Consequently, VetsFirst urged Congress to establish a legal presumption of service connection for PTSD where a veteran has a current diagnosis of PTSD and served in a theater of combat operations. Since the VA would be required to accept the veteran’s assertion of a combat experience, and a diagnosis of PTSD includes a medical finding that the stressor event triggered PTSD, it is logical for the VA to conclude that the combat experience is related to the veteran’s PTSD. A presumption of service connection would allow the VA to do that by eliminating the need for medical evidence of a connection between the veteran’s military service and his or her PTSD. Such a presumption could only be rebutted by clear and convincing evidence to the contrary (e.g., the VA provides credible evidence that the claimed combat-related event did not occur or medical evidence that the veteran’s PTSD was caused by an independent post-service stressor event).

A presumption of service connection for PTSD in these situations would save the veteran and the VA the time, effort and expense of trying to uncover proof that the veteran experienced a combat-related event and medical evidence that such an event caused the veteran’s PTSD. With the large number of veterans returning from the wars in Iraq and Afghanistan with diagnoses or symptoms of PTSD, the COMBAT PTSD Act and a presumption of service connection will allow these veterans to receive VA disability benefits and health care much more quickly than they would otherwise.

VetsFirst Letter

April 27, 2009

The Honorable Bob Filner
Chairman, U.S. House Committee on Veterans Affairs
335 Cannon House Office Building
Washington, D.C. 20515

Re: Support for H.R. 952, The COMBAT PTSD Act of 2009

Dear Chairman Filner:

As a national veterans service organization, United Spinal Association and its veterans service program, VetsFirst, we wish to express our strong support for the Compensation Owed for Mental Health Based on Activities in Theater Post-traumatic Stress Disorder Act of 2009 (the COMBAT PTSD Act, H.R. 952). The passage and implementation of this legislation will dramatically improve the lives of in-country veterans of all eras who suffer from mental disabilities incurred as the result of their military service, as well as those of their loved ones.

Currently, VA regulations make it unduly burdensome for veterans without documentary evidence of combat service to prevail in claims for service connection for PTSD. Even with a confirmed diagnosis of PTSD and medical nexus evidence that such PTSD is the result of a stressor during military service, if there is no official documentation to corroborate a veteran’s assertion that he or she was involved in a combat situation, service connection will be denied. Without an award of service connection, veterans with PTSD remain ineligible for VA mental health care, as well as disability compensation and ancillary VA benefits.

The Act would amend 38 U.S.C. § 1154(b), which currently provides that in the case of a veteran “who engaged in combat with the enemy” the VA must accept as proof of service connection the veteran’s assertion of the incident(s) that resulted in the incurrence or aggravation of any disease or injury, provided that the asserted stressor is consistent with the “circumstances, conditions, or hardships of such service”. In such cases, the absence of official records to corroborate the incident(s) will not preclude an award of service connection. The problem has been the VA’s narrow construction of “engaged in combat with the enemy”. Under this construction, the VA requires that in order for a veteran to receive the benefit of the application of § 1154(b), there must be documentary evidence that the veteran was involved in a confrontation with hostile forces. Such evidence is generally in the form of a military occupational specialty or other designation that necessarily implies combat (e.g., infantryman), an award or decoration that signifies combat service (e.g., Combat Infantryman Badge, Combat Action Ribbon, Purple Heart or Bronze/Silver Star), or the statement of a buddy who served alongside the veteran in direct combat. Where a veteran who alleges a combat-related stressor cannot produce this kind of evidence, the VA invariably denies the application of § 1154(b) and, ultimately, the veteran’s claim for service connection for PTSD.

H.R. 952 would expand the definition of “combat with the enemy” to include active duty service in a theater of combat operations during a period of war. This legislation will help to break down often insurmountable barriers facing veterans who experienced combat circumstances, but who do not have a combat designation, decoration or corroboration from a buddy. Nevertheless, we believe that the expansion envisioned by H.R. 952 will not necessarily eliminate these barriers. The legislation needs to go further.

Section 1154(b) does not provide a presumption that a veteran is entitled to service connection for a disease or injury (including PTSD), even if the VA is required to concede that he or she had engaged in combat with the enemy. Rather, the U.S. Court of Appeals for Veterans Claims has interpreted § 1154(b) as providing a presumption of service incurrence. This means that the veteran must still provide medical evidence that his or her PTSD is etiologically related to his or her military service. See, e.g., Dalton v. Nicholson, 21 Vet.App. 23 (2006). Given the delay that may occur between the occurrence of a stressor and the onset of PTSD and the subjective nature of a person’s response to an event, it is often difficult to provide such medical nexus evidence. We therefore recommend the following in addition to the expansion of the term “combat with the enemy” contemplated by Section 2(a)(2) of the COMBAT PTSD Act:

(3) In the case of a veteran who has been diagnosed
with PTSD subsequent to active military service and who has
engaged in combat with the enemy as defined in sub-section (2)
above, a connection between PTSD and the veteran’s active
military service shall be presumed and may be rebutted only
by clear and convincing evidence to the contrary.

A presumption of service connection for PTSD in these situations will clearly benefit both veterans and the VA. According to a recent study by the RAND Corporation, the nation’s largest independent health policy research program, nearly 20 percent of military service members who have returned from Iraq and Afghanistan report symptoms of PTSD and related disorders. Claims for disability compensation and health care have already begun to flood the VA. Historically, the extensive delays associated with the adjudication of PTSD claims have been caused by the VA’s stringent evidence requirements. A presumption of service connection of PTSD for veterans who have a confirmed diagnosis and who served in combat zones would eliminate the need for tortuous searches on the part of both the VA and the veteran for stressor and medical nexus evidence. The VA would be freed from its statutory duty to assist veterans by scheduling Compensation and Pension Service examinations for nexus opinions as well. Consequently, PTSD claims would be adjudicated much more quickly and backlogs of these claims would dramatically decrease.

We thank you for your outstanding leadership on behalf of our nation’s veterans. United Spinal Association and VetsFirst stand ready to assist the Committee and Congress in any way in furtherance of our shared mission.

Sincerely,

Paul J. Tobin
Paul J. Tobin
President and CEO

Category: Health Care & Benefits, News

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