Wednesday, July 1, 2009
A THREE-PART SERIES: PART II
The nation’s response was swift and sweeping. Americans made it clear to Congress, the Pentagon and the White House that they expected nothing less than the best possible care for military men and women recovering at the Army’s flagship medical center. The nation also made clear it expected its two most imposing bureaucracies – DoD and VA – to unite to help wounded warriors become disabled veterans, not warehouse them or set up hurdles between them and their benefits. Soon after a Pulitzer Prize-winning Washington Post series drew attention to problems at Walter Reed Army Medical Center in February 2007, transition-assistance programs for wounded warriors sprang up across the country. Compassionate care for war-wounded Iraq and Afghanistan veterans climbed the agendas of military officials, politicians, nonprofit organizations, corporations and hundreds of community groups. In September 2007, Walter Reed christened a new $10 million state-of-the-art rehabilitation center for the severely wounded, complete with top-of-the-line physical therapy equipment, an indoor track, prosthetics specialists, counselors, therapists and nurses. Planned since 2004, the facility housed two high-tech ranges – one for automatic-weapons target practice, another for learning to walk again. The Army launched a Family Covenant program to expand care to affected loved ones. The Marine Corps enhanced its Wounded Warrior Regiment and Marine for Life outreach programs. VA and DoD were compelled to work more closely than ever. Wounded warriors were soon offered everything from baseball tickets to weekend getaways at mountain resorts. The American Legion launched Heroes to Hometowns, a grassroots program to connect newly disabled veterans with Legionnaires in local communities. Walter Reed provided the Legion with office space to help soldiers in transition. Job programs, family counseling services, extreme sports outings, fishing trips, golf tournaments and cycling excursions were just a few ways that help is now offered for wounded warriors home from combat. “There was such an outpouring of reaction (because) this is a broken promise,” says Washington Post reporter Dana Priest, who shared journalism’s highest award with reporter Anne Hull and photographer Michael du Chille for the article on Walter Reed. Two weeks after it appeared, all the injured soldiers were moved out of Building 18, a former motel next to the post. President Bush delivered a personal apology and appointed a blue-ribbon commission to find solutions. “There will be no excuses, only action,” Vice President Dick Cheney promised. A presidential commission chaired by former U.S. Sen. Robert Dole, R-Kan., and former Health and Human Services Secretary Donna Shalala visited 23 DoD, VA and private medical centers, and polled health-care professionals, veterans experts and injured servicemembers. By July 2007, the Dole-Shalala Commission issued a crisp, six-point blueprint for reform. The second action item, in particular, resonated with veterans: “We don’t recommend merely patching the system, as has been done in the past. Instead, the experiences of these young men and women have highlighted the need for fundamental changes in care management and the disability system .... The tendency to make systems too complex and rule-bound must be countered by a new perspective grounded in an understanding of the importance of patient-centeredness.” A half-century earlier, Gen. Omar Bradley delivered an astonishingly similar report of his own commission’s three-year investigation into problems that disabled World War II veterans faced in the transition from DoD to VA, arguing in 1956 that it is a national responsibility “to do justice by those who were injured or disabled as a consequence of their military service.” That responsibility is just as pressing today, Dole says. “Nothing has changed. The bottom line is, you have an obligation. It came from Abraham Lincoln. We need to care for our veterans.” When the former Kansas senator and presidential candidate came home from Italy with combat injuries that cost him the use of his right arm, the nation was dealing with millions of World War II veterans. Today, Dole says, DoD and VA are grappling with thousands, albeit many with severe and complex injuries. “Is it money?” Dole asks. “Let’s appropriate it. If it’s personnel, let’s find them.” Many of the Dole-Shalala Commission’s recommendations were well received and put into place, including comprehensive recovery plans for seriously injured servicemembers, and federal recovery care coordinators to help patients and families get a full continuum of care throughout their lives. Other proposals have stalled. Veterans organizations worry that the recommendation to revamp the disability claims system could ultimately reduce benefits and create additional hurdles for veterans. The American Legion hailed the Dole-Shalala Commission’s plan for a patient-centered approach to wounded warrior care that also considers the needs of veterans’ families. But the Legion has cautioned that there are problems with some recommendations that may oversimplify the process. “Beware of simplification efforts,” the Legion reported in 2007. “They usually are attempts to make it easier for the bureaucrats to process (claims) while making it tougher for veterans to obtain benefits.” And so it remains – this ever-swelling mountain of claims, appeals, remands and unresolved cases that came to national attention in 2007 (though it had been with veterans for decades) and stands as one of the highest priorities of new VA Secretary Eric Shinseki. During his first five months in the Obama cabinet, the retired Army general was cautious with specifics but clear in his philosophy about the backlog. “Our veterans deserve and demand a Department of Veterans Affairs that remains relevant over time, that is responsive to individual and changing needs, and that cares enough about them to undertake this challenging transformation,” he said. “That’s the 800,000-pound gorilla in the room,” says U.S. Rep. Bob Filner, D-Calif., chairman of the House Veterans Affairs Committee. Until VA gets rid of its backlog of benefits claims – which some estimates place at 800,000 – Filner says it will be hard to put energy into a new system. Lost in the Shuffle. Thousands of claims are lost or rejected each year amid this staggering backlog. The most outrageous revelation to surface since the Walter Reed story is that VA employees were hiding or destroying veterans’ claims. The claims ranged from widows’ requests for help with burial expenses to disability applications from veterans of the wars in Iraq and Afghanistan. The misconduct came to light last fall when VA’s inspector general found nearly 500 documents wrongly sent to shredder bins at 41 of VA’s 57 regional offices and centers. Two VA employees were fired after a criminal investigation, but the U.S. Department of Justice declined to file charges. As the investigation widened, the IG discovered that some VA regional offices hold “mail amnesty” periods to encourage employees to turn in unprocessed mail and other documents without reprisal. Nearly 16,000 pieces of unopened mail were turned over at the Detroit VA office during a July 2007 amnesty period. The unopened envelopes contained 700 veterans claims and 2,700 medical records and other documents. “Had we not discovered this situation, some veterans claims may have languished with no action, or been inappropriately denied,” the IG reported last spring. VA significantly changed its shredding policies as a result of the investigation. Hiding mail and shredding documents “go totally against the responsibilities we have as public servants,” said Michael Walcoff, VA’s deputy undersecretary for benefits. Winning back the trust of veterans, he added, “will not be easy. We are committed to doing whatever we can to accomplish this.” The document debacle received considerably less media attention than Walter Reed, but veterans say the consequences are equally significant. “Veterans across the country believe (this) is an extension of the ‘deny, deny, until they die’ mentality of senior (VA) and Veterans Benefits Administration officials,” Air Force veteran Kurt Priessman of Vernon, Texas, told the House Committee on Veterans Affairs in a hearing last spring. “These were not the misdeeds of a few bad apples; they are not symptoms. They are the results of efforts by senior management and supervisors to meet a quota set by a very poor work-credit system.” Filner has been vocal in his frustration. “VA was unable to convince me that more documents have not been shredded in the past, and I honestly do not know how many records have been destroyed and how many files lost over the past decades. What was maddening last year is now possibly criminal.” VA’s efforts to speed up claims decisions may be part of the problem, Filner says. “If you’ve got a quota system, or you are being measured by the number of cases you do, it’s far easier to deny. If you tell me I’ve got to do eight, and I can only do six, I’m going to throw two of them away instead of saying I can only do six. They want to keep the institution looking good, even if it means sacrificing the people they are supposed to serve.” Reforming or abolishing the work-credit system has been one of The American Legion’s top priorities for years. More than half of VA claims staff interviewed both by the VA inspector general and American Legion staff say they can’t meet their work quotas if they take the time to “adequately develop claims and thoroughly review the evidence before making a decision,” said Steve Smithson, deputy director for the Legion’s Veterans Affairs & Rehabilitation Division. As a result, the quota system pits the rights and needs of veterans against the awards and bonuses VA employees receive for meeting their quotas – “a built-in incentive to take shortcuts,” Smithson testified at a congressional hearing. Shortcuts can result in errant decisions that clog the system with appeals. Some 70 percent of claims taken to the Veterans Claims Court are sent back to VA for more work, or to be redone. Ironically, VA’s quota system allows staff and managers to take credit for the claims they redo. The result: “Denying a claim three or four times in the course of a year, before granting the benefit sought, allows for a total of five end-product work credits,” Smithson explained on Capitol Hill. Courts have ordered VA to pay $52 million in legal fees over the past decade for lost cases. That does not include the cost of reprocessing the claims or rewarding managers for meeting work quotas that caused the initial problem. VA vigorously defends its work-credit system as a necessary tool for keeping claims processing on track. “You have to have a system in place that holds employees accountable,” VA’s Walcoff says. But there’s not an incentive just to crank through claims, because VA holds employees accountable for both “quality and for the amount of work they produce,” he says. Signs of improvement began to appear before Bush left office, a trend the Obama administration appears committed to continuing. Congress has increased VA funding more than $16 billion in the past two years, to hire and train more than 3,000 additional claims specialists to reduce the backlog. “I think we’re on the right track,” VA’s Walcoff says. “But I feel we have a long way to go.” Dole agrees. He said the commission may have ended, but that won’t stop him or Shalala from pressing for an overhaul of the disability claims system and make good on the nation’s promise to care for veterans. “We’re not satisfied,” Dole says. “Both Shalala and I want to go back to Congress this year. You don’t get it all done the first year, or maybe not the second year, or even the third year. But you can’t give up.” A 20-Year War. Leroy Comer’s began seeking VA disability assistance for severe post-traumatic stress disorder in 1988, representing himself most of the way. As the Dole-Shalala Commission was delivering its report in July 2007, the U.S. Court of Appeals for Veterans Claims rejected a request from Comer to be compensated for an 11-year period, in which VA denied his PTSD claim despite a diagnosis. The court ruled that a single letter of support in 2003 from Disabled American Veterans – well after VA’s original error – absolved VA of its legal duty to view Comer’s case sympathetically. A law firm that asked to take Comer’s case on a contingency basis retreated soon after the ruling. “They just did a cursory brief,” Comer says. “They thought they had something they could make money off of easily. Once they found they had to do a little thinking and a little research, they didn’t want to go any farther.” Comer suffered debilitating nightmares and flashbacks after coming home from Vietnam in 1970, where he had guarded an ammunition dump that was under frequent mortar attack. He was unable to keep a job, ended up living on the streets, and used alcohol and drugs. He filed his first disability compensation claim in 1988, upon advice from a VA psychiatrist. The VA regional office in Waco, Texas, concurred that Comer had PTSD but would not acknowledge his service in Vietnam was the cause. As far as VA was concerned, Comer was a parts packer who had never seen combat. Penniless, homeless and depressed, the veteran was admitted to a VA medical center in 1993 and filed a second PTSD claim. VA again acknowledged that he suffered from the disorder, again rated him 30-percent disabled, and again denied his request for benefits. Veterans whose claims are denied can take their cases to the Board of Veterans Appeals, and then the Court of Appeals for Veterans Claims. Appeals beyond that go to the U.S. Court of Appeals for the Federal Circuit, a unique branch of the judiciary that only hears patent, international trade, government contracts and veterans cases. In rare instances, cases advance to the U.S. Supreme Court. Still representing himself, Comer dug in and fought to reopen his claim. He eventually landed before the Board of Veterans Appeals, which gave him his first break in 2001. The board ruled there was significant new evidence for VA to reopen his case, adding that it believed there was a strong link between Comer’s PTSD and his tour in Vietnam. Two years later, VA agreed to provide a small amount of monthly compensation, retroactive to February 1999. Comer received nothing for the 11 years he was denied compensation, despite his PTSD diagnosis. The reason: Comer was required to file a separate claim if he wanted benefits retroactive to 1988. Such a course of events is a common complaint from veterans who find VA regulations so complex that they unknowingly fail to submit all of the required paperwork. Yet, VA has a legal duty to assist veterans in filing their best possible claims. That duty can be overlooked or ignored by VA employees overwhelmed by hundreds of thousands of claims. The American Legion certifies and employs a corps of specially trained service officers throughout the country to help veterans successfully obtain their benefits. The assistance is free. Veterans who go it alone, however, often suffer years of frustration. Most give up. By the time Comer landed before the veterans court, VA had rejected 17 requests to increase his PTSD rating, despite the fact that several physicians rated his Global Assessment of Functioning – a gauge of someone’s ability to deal with daily life – as low as 21. A normally functioning person’s GAF score ranges from 71 to 100. Even then, the court rejected Comer’s claim, citing a lack of evidence, then zeroed in on the 2003 letter from the veterans service organization. In the eyes of the court, that letter meant Comer had received the equivalent of full legal representation. That, in turn, allowed VA to disregard its legal obligation to view Comer’s claim in the most sympathetic light, and help him obtain all the benefits he was due. Comer figured he had reached the end of the road. Wearily, he hand-wrote one last letter to the U.S. Court of Appeals for the Federal Circuit. “I felt like I was right,” he says. “But I had been denied so many times, I didn’t think I’d get a remedy.” A pair of intellectual property attorneys named Dion Messer and Edward Reines discovered the letter and set out to find Comer, whose last known address was the tiny town of Crockett, Texas. Ken Olsen is a freelance writer living in Oregon.
View Part I as it appeared in The American Legion Magazine.
View Part II as it appeared in The American Legion Magazine.
View Part III as it appeared in The American Legion Magazine.