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April 01, 2008

Compromised Care: The Limited Availability and Questionable Quality of Health Care for Recent Veterans

Amy N. Fairweather

The assumption of an all-encompassing giveaway by the American government to military veterans is patently incorrect. Veterans are not all entitled to federal benefits, and those who are often find that securing the assistance that they are due is a daunting challenge, rife with bureaucratic pitfalls. If they qualify, veterans may be entitled to educational benefits, home loans, free medical care, pension and disability compensation, and free burial in nationally run cemeteries.

The Department of Veterans Affairs (VA) has been unable to keep up with its current caseload and has not responded well to the influx of wounded and ill service members returning from the wars in Iraq and Afghanistan. As of May 2008, over 830,000 Iraq and Afghanistan veterans have become eligible for VA services. Of those, 320,000 have sought VA health care and over 100,000 have been diagnosed with posttraumatic stress disorder (PTSD) or have other mental health needs. Compensation and disability claims for benefits are now backlogged by over 600,000 cases, with veterans waiting six to nine months for initial claims processing. This is due to the influx of new claims being processed by returning Iraq and Afghanistan veterans combined with an existing cohort of veterans who have yet to overcome the bureaucratic hurdles of processing their claim. Frankly, the system would simply collapse if the 1.7 million service members who have served in Iraq and Afghanistan were all to seek health care and benefits, given the present capacity shortfalls.

Primarily, veterans may be eligible for health care, pension and/or disability compensation, survivor, and educational benefits. In addition, a myriad of state-based benefits run the gamut from free fishing licenses to state university scholarships. For our purposes, this article concentrates on clarifying the nuts and bolts of federal health care and disability compensation. But before it does so, it must be noted that the Montgomery GI Bill education benefits are not free. Service members pay into the system and the maximum benefit amounts to approximately $1,200 per month. Even at a less expensive city or state college, because one pays for tuition, books, supplies, food, and lodging, obtaining a four-year college degree within the confines of the benefit is a nearly impossible task. Substantial improvements were signed into law in July 2008 that will become effective in August 2009. (See “The New GI Bill” on page 5.) The full impact of these changes has yet to be determined.

A Brief Historical Perspective

Our government has a history of steamrolling veterans even though they are among the most underserved citizens in our society. After World War I, veterans of the “Bonus Army”—a band of some 15,000 WWI veterans and their family members who protested during the spring and summer of 1932 in Washington, D.C.—fought long and hard for timely veterans aid. At the war’s end, soldiers had been promised a bonus for services rendered in Europe, in the form of certificates that would mature in 1945, a full twenty years from the date of issue. Needless to say, the Bonus Army veterans wanted and needed immediate cash assistance during the Depression.

Nevertheless, the Bonus Army remained a force and succeeded in advocating for the GI Bill of Rights, which finally passed in July 1944. Thus World War II veterans received significant and well-deserved federal assistance transitioning to civilian life and stepping up the socioeconomic ladder. Indeed, those benefits are credited with helping to build the American middle class and the years of prosperity following that war.

Since that time, veterans benefits have eroded considerably, along with the broader social safety net. Indeed, veterans account for 23 percent of our nation’s homeless and mentally ill. Swords to Plowshares and other attorneys are already providing services for homeless Iraq and Afghanistan veterans. Reports of divorce, family violence, drug abuse, unemployment, and suicide are on the rise. These attorneys hope to intervene early to prevent or mitigate the outcomes that Vietnam-era veterans still endure by providing legal representation and subsequent access to housing, employment and training assistance, mental health care, and peer support. Many of our newest veterans will fall through the cracks unless serious reforms are made in the provision of federal benefits.

The VA

The VA is an enormous bureaucracy with a quarter of a million employees. Chartered to “care for those who have borne the battle, their widows and orphans,” its three branches are the Veterans Health Administration, the Veterans Benefits Administration, and the National Cemetery Administration (which is not discussed in this article). The first two of these are separate entities with separate eligibility requirements. Enrollment in health care and recognition of service-connected injury does not automatically result in payment of disability compensation. This provides ample opportunity for veterans to fall through the cracks, suffer inappropriate denial of care, give up fighting and forego benefits, or literally die before benefits are granted.

These issues were recently challenged in the landmark lawsuit, Veterans for Common Sense v. Peake, Case No. 07-03758 (N.D. Cal.). The suit challenged the lack of timely mental health care as well as constitutional defects in the closed system of VA disability claims adjudication. Most importantly, perhaps, it has provided an opportunity to shed light on a system that has operated in the dark with unchecked discretion over the care and assistance delivered to our nation’s veterans. The trial judge’s decision laid out shortcomings in VA mental health care delivery and claims adjudication. However, the judge found that it was not within his jurisdiction to fashion a remedy.

Generally, combat and noncombat veterans are eligible for the same breadth of health and disability benefits. Exceptions for new combat veterans include a five-year presumptive eligibility for health care and access to Vet Center services, which provide readjustment counseling for combat veterans and survivors of military sexual assault. This contrasts with veterans of other eras, who must establish service connection successfully through filing a VA claim in order to be eligible for free services.

Lack of capacity and chronic underfunding remain serious hurdles to the delivery of services. The conflicts in Iraq and Afghanistan have created a unique set of stresses for veterans and their families. The level and pace of repeated deployments to urban combat areas will have long-lasting effects beyond their terms of service. During Vietnam, all service members were called upon to typically serve a single one-year tour, and after that year-long obligation personnel were not redeployed again unless they volunteered. Today, volunteer members of our regular armed services, as well as National Guard and Reservists, are being called back for two, three, and four tours in extremely hostile conditions. These repeated deployments subject service members and their families to a constellation of issues affecting their social and economic well-being and physical and mental health. Recently, the RAND Corporation discovered that at least 18.5 percent of veterans returning from Iraq and Afghanistan have PTSD and 19.5 percent have traumatic brain injury (TBI). Forty-one percent of Iraq and Afghanistan veterans (133,633) who have sought VA care have been diagnosed with mental health disorders. This excludes those people who are actively serving or have yet to be diagnosed.

Not surprisingly these stresses are having an enormous impact on the federal government’s ability to provide benefits and services. Sick and disabled veterans will languish until substantial changes are made in the adversarial process of filing claims and the federal government makes an investment in ensuring consistent, quality care.

Further, the VA provides no benefits or health services directly to families of veterans with the exception of survivor benefits and marginally higher disability benefits for veterans with dependants. Vet Centers and some VA facilities provide marriage and family counseling with the veteran as a conduit to care, but those centers are struggling with capacity and are decreasing the few services that are available. Thus, families themselves are at a loss when a veteran refuses to seek VA care or domestic abuse becomes an issue.

The Veterans Health Administration

The Veterans Health Administration is a national medical care system, split into twenty-two Veterans Integrated Service Networks comprised of hospitals, community-based outpatient clinics, and Vet Centers that provide peer-based transitional counseling. Generally, the VA’s provision of physical health care is very good and is ranked among the nation’s best. But access to timely care varies greatly from facility to facility, and access to quality mental health is extremely spotty. Iraq and Afghanistan veterans seeking treatment for PTSD or other mental health conditions report waiting months for professional care. When they receive it, the quality and continuity is dependent on whether they live near a VA facility that provides mental health care. These shortfalls have reached a crisis point; with substance abuse, homelessness, family dissolution, and suicide at unacceptable levels. Recent news of suicides, including that of Minnesota Marine Jonathan Schultze, who committed suicide days after being turned away for mental health care, has focused public and congressional scrutiny on the VA. In fact, the VA has acknowledged at least 1,000 suicide attempts every month by veterans of all eras. But for all of the proposals and investigations, real change is barely perceptible. To be fair, the many social work, mental health care, and Vet Center staffers are struggling mightily to meet the need, but resources and lack of consistent care leave life-and-death shortfalls.

Not all veterans are eligible for VA health care. Eligibility is based on discharge status; length of active duty (generally twenty-four months of continuous active service); financial need; and whether the veteran has “service-connected” status, that is, has a condition that occurred or began during active service. Service connection need not be related to combat duty or any official duty; it is sort of a 24/7 workers compensation for conditions connected to the term of the service members’ contract.

New combat veterans now have a presumption of service-connected eligibility and may enroll for five years after separation from the military and are placed in Priority Group Six unless otherwise qualified for a higher priority group. In February 2008, Congress extended the window of presumptive eligibility from two to five years in the Defense Authorization Act of 2008, 38 U.S.C. § 1707. This is a significant improvement but not sufficient enough, considering the fact that PTSD and some physical ailments associated with combat can take many years to manifest.

The Veterans Benefits Administration

Once again, not all veterans are eligible for monetary benefits that generally fall into pension (based on age and length of service) and disability compensation (based on a recognized level of service-connected disability). Levels of disability and corresponding monetary benefits are based on service-connected ratings, in increments of ten, from 0 to 100 percent. For those who cannot work, the difference can be a lifetime of bare economic stability (with benefits topping out at about $2,500 per month for a single veteran with no dependants) or abject poverty (a 50 percent disability will net a veteran about $725 a month).

The VA characterizes the claims process as nonadversarial, but this is clearly not the case. Veterans may not pay an attorney to assist them in filing an initial VA disability claim. The Veterans Benefits Administration acts as arbiter and opposing party in the process and may rely on its professional legal staff at any stage of the process. Veterans may seek pro bono assistance and receive assistance from congressionally chartered veteran services officers, such as county veteran service officers and agents of the Disabled American Veterans. These service agents are generally not attorneys, and the quality of services varies greatly.

The initial claims procedure is very complicated, beginning with a daunting sixteen-page form. Many disabled veterans, particularly those with PTSD and TBI, are ill-equipped to handle the process successfully. In addition, the veteran is denied basic due process, including meaningful discovery and the ability to challenge evidence. Other complications include strict technical requirements such as filing dates, which if missed may disqualify the claim regardless of its underlying merit. It takes an average of 183 days for a veteran to receive an initial decision, after which he or she may file a notice of disagreement and hire an attorney to assist with administrative appeals.

Consider the difficulty of this process for any layperson. Now add PTSD, TBI, or even the depression and difficulty concentrating associated with normal readjustment. Further, in PTSD cases, the veteran must prove they have PTSD, and they must present evidence that it is the result of trauma endured during service. This requires preparing a stressor statement describing the traumatic incident backed up either by military documentation of the incident or by two “buddy statements” attesting to the trauma. Telling the story and marshalling evidence related to what is often the most horrific experience in one’s life is often a trigger for PTSD symptoms and a prime reason why veterans abandon claims.

Recently, the chair of the Senate Committee of Veterans’ Affairs, Senator Daniel Akaka, requested that combat veterans with a military diagnosis of PTSD not bear the burden of further proving combat-related trauma. Secretary of Veterans Affairs James Peake agreed, but many service members are loath to seek mental health treatment within the military or those institutions they view affiliated with the military, such as the VA. Veterans participating in Swords to Plowshares Iraq Veteran Project focus groups repeatedly state that they would never seek military care for PTSD due to the rampant stigma. They would be ostracized and punished, accused of trying to get out of duty, and as officers, careers would be toast.

Not surprisingly, many of these first attempts result in denials or inappropriately low ratings. Too many deserving veterans walk away at that point and do not question or challenge the outcome. But the easiest and most effective way to ensure relatively timely and fair benefits is to have the assistance of a competent attorney from the initial stages. Repairing a poorly crafted claim is difficult and time consuming and can leave the veteran without proper compensation for years. The appeals process is overly complicated, with cases traveling back and forth between the appellate and administrative levels time and again, causing unacceptable delays. Swords to Plowshares legal staff have represented veterans in appeals lasting five years or more. If successful, these veterans are entitled to retroactive payment of benefits, but the damage wrought by years of limited income and denial cannot be redeemed.

Prior to 2007, veterans were barred from hiring attorneys at any stage in the claim until, and unless, the claim was heard in the U.S. Court of Appeals for Veterans Claims. While veterans may now hire attorneys to assist them in their administrative appeals, very few attorneys have any level of expertise in this area. In addition, the legislation authorizing paid legal services directed the VA to establish rules for representation that are daunting at best. The proposed rules would require attorneys who wish to represent veterans to take veteran-specific continuing legal education and include overwhelming reporting requirements. The final rules have yet to be published, but if many of the regulations proposed in the draft rules stand, few attorneys will seek to qualify. Further, even though attorneys may collect part of the retroactive award in fees, no one is going to get rich in this area of practice.

Other Obstacles to Benefits

Other obstacles to veterans securing health care and benefits include the stigma associated with seeking help in the military culture, a general distrust of government, lack of knowledge regarding available benefits, and geographical barriers. Veterans who live in rural areas often have to travel for hours to reach the nearest VA facility. In some cases, services may be contracted out to local providers, but this is a process with no guarantees of success.

Enormous obstacles stem from the stigma associated with seeking help. In the military one is supposed to “suck it up.” Seeking help, particularly mental health care, is anathema to military culture. In addition, many veterans think that the military and the VA are connected and fear health care or disability information appearing on military records. Many veterans who intend to stay in the Reserves, Guard, or go into police work fear that a mark of mental health need would be a career ender.

Far too many veterans have little idea of the benefits to which they are entitled. The VA is also barred from advertising, which would be the most obvious way to inform veterans of available resources. This is especially true of Guard and Reserve members who return to civilian life, far from the advice and support of the military or veterans communities. Far fewer Reserve and Guard personnel file for disability benefits, and they are two times more likely as their active duty peers to be denied disability benefits. The VA has established the Office of Seamless Transition to help ease the path from military to VA care, but this office is playing catch-up, rejiggering a hopelessly confusing process on the fly.

Veterans who are discharged from the military under other than honorable discharges have limited eligibility for federal benefits. In particular, bad conduct discharges are a bar to receiving disability benefits or health care. This is a particularly cruel outcome for many veterans of the current wars who suffer from PTSD and are kicked out of the military for behavior stemming from their combat injury. It is common for the performance of service members with TBI or PTSD to suffer, whether from diminished capacity, self-medicating substance issues, or reckless or reclusive behaviors symptomatic with these injuries. In other cases, veterans are precluded from care because they have been discharged with personality disorders that are considered a preexisting condition. Veterans have little recourse under these circumstances. They may pursue the difficult process of a discharge review by the military or a change in character of service claim with the VA.

Where to from Here?

Thankfully, VA services have witnessed some improvement. Congress mandated new programs, most recently in the Defense Authorization Act of 2008, 38 U.S.C. § 1707, including the extension of VA health care eligibility from two to five years. Other provisions are generally directed to streamlining TBI care, the “seamless transition” of seriously wounded, guaranteeing a mental health appointment within thirty days of request, and increased outreach to the National Guard and Reserve.

As veterans advocates, Swords to Plowshares praise and rely on the VA for fine services for our clients. That said, we criticize structural shortfalls in the VA system that cause untenable delays and denials in disability compensation and access to timely care. For too long the VA has operated in a vacuum and has been largely ignored by those outside of the military and veterans communities. The Government Accountability Office, House Veterans’ Affairs Committee staff, and the VA’s own Inspector General have come out with report after report cataloguing shortfalls in the expenditure of funds and delivery of services. Each of these reports has been largely ignored.

Veterans should be enrolled in the VA when they enter the military. Disability claims should be presumptively approved then audited to ensure no veteran languishes or falls into poverty while waiting for financial assistance, the VA should be able to advertise, and attorney representation should be available from the earliest claims stage. The disability adjudication process should be scrutinized, ensuring due process and the timely disposal of claims, and ensuring that the VA is accountable to the veterans who have served our nation as well as the greater public who invest in their well-deserved care.

The New GI Bill

On June 30, 2008, President George W. Bush signed into law the Post 9/11 Veterans Educational Assistance Act, 38 U.S.C. § 3301 et seq. This new GI bill is intended to provide veterans of the Iraq and Afghanistan conflicts with educational benefits similar to those received by World War II veterans.

These benefits include

  • full tuition and fees for thirty-six months (four academic years) up to the value of the most expensive public university in the state of enrollment, paid at the beginning of each term;
  • a monthly housing stipend, paid monthly, based upon local rates;
  • an annual stipend for books, supplies, and equipment—up to $1,000;
  • tutoring costs up to $100 per month for twelve months;
  • costs for professional licensing or job certification exams up to $2,000; and
  • additional, matching tuition funds for schools that offer scholarship funds to GI bill participants under a new Yellow Ribbon GI Education Enhancement Program.

The benefits are available to (1) active duty personnel, (2) activated National Guard and Reserve, and (3) veterans who served at least thirty-six cumulative months on active duty after September 11, 2001, or who were discharged for a service-related injury after at least thirty days of continuous service. Service members who have spent less than thirty-six months on active duty are eligible for a pro rata share of benefits, from 90 percent for those who served at least thirty cumulative months on active duty down to 40 percent for those who served at least ninety days on active duty after September 11, 2001. Months served in satisfaction of an already existing obligation—e.g., a military academy or Reserve Officers’ Training Corps—do not count toward accumulation of the benefit.

The benefits can be used at

  • four-year public or private colleges,
  • two-year community colleges,
  • business or technical schools,
  • job training and apprenticeships,
  • flight training, or
  • online and correspondence courses approved by the VA.

Veterans who attend school part time will receive proportional benefits. All benefits expire fifteen years from the date of discharge.

The old Montgomery GI Bill provided up to $9,000 per year for up to four years and exhausted ten years after discharge. It also required service members to enroll in the program and to make contributions out of their military salaries while on active duty. Benefits were paid out as reimbursements rather than up front or during the course of the educational program. The new payment system will give service members far more flexibility and choice of educational programs.

Amy N. Fairweather

Amy N. Fairweather is an attorney with significant experience in public policy related to trauma and trauma survivors. She is the director of Swords to Plowshares Iraq Veteran Project—a project established in 2005 to survey the issues facing the newest generation of combat veterans, to identify gaps in services, and to promote programs and policies to better meet their needs.