25 Years After the Persian Gulf War: An Assessment of VA's Disability Claims Process with Respect to Gulf War Illness

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? 

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].

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]

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.