On January 26, 2009, Veterans for Common Sense (VCS) wrote the Department of Veterans Affairs (VA) and requested new regulations, based on new scientific findings, to streamline the processing of post traumatic stress disorder (PTSD) claims.  On August 24, 2009, VA published proposed new regulations in the Federal Register.  On October 14, 2009, VCS sent our comments to VA.  The official comment period ends on October 23, 2009.

Sent via FAX to: (202) 273-9026 and submitted online at: www.regulations.gov

October 14, 2009

Mr. Robert McFetridge, Director
Regulations Management (02REG)
Department of Veterans Affairs
810 Vermont Avenue, NW, Room 1068
Washington, DC 20420

RE:  RIN 2900-AN32
Stressor Determinations for Post Traumatic Stress Disorder

Dear Director McFetridge:

Veterans for Common Sense (VCS), a non-profit advocacy organization focusing on the readjustment needs of our military veterans, provides the following comments about the Department of Veterans Affairs’ (VA) proposed regulation regarding post traumatic stress disorder (PTSD), published in the Federal Register on August 24, 2009.

VCS applauds VA's recognition of the mental health needs of our veterans reflected in this proposed regulation.  We are encouraged by VA’s expanding recognition of PTSD, as this may lessen the stigma – the discrimination – often associated with PTSD that prevents some veterans from seeking medical care, according to recently published scientific studies (Colonel Charles Hoge, MD, 2004 and 2006).

We understand and appreciate VA’s efforts to simplify PTSD claim regulations with the goal of expediting PTSD claim processing and reaching more consistent and accurate decisions.  However, VA’s proposed regulations do not directly address the problems with the current claims processing system.  As a result, VA’s proposed regulation requires significant additional strengthening before it becomes final.

Problem: PTSD Claim Tidal Wave

A VA healthcare use report obtained by VCS using the Freedom of Information Act (FOIA) shows that of 1.1 million Iraq and Afghanistan War veterans eligible for VA medical care, approximately 134,000 were already diagnosed by VA mental health professionals with PTSD (“VA Facility Specific OIF/OEF Veterans Coded with Potential PTSD Through 2nd Qt FY 2009”).

A VA claims activity report also obtained by VCS using FOIA reveals only 58,000 of those veterans were granted service-connected disability compensation benefits by VA (“VA Benefits Activity: Veterans Deployed to the Global War on Terror, July 2009).

This means less than half (43 percent) of the veterans diagnosed by VA with PTSD receive disability benefits for PTSD.  VCS finds VA’s PTSD claim adjudication outcome absolutely unacceptable, and this salient fact is cause for immediate action by VA.

Two recent studies provide strong evidence of additional PTSD claims in the near future:

• RAND estimated 18.5 percent of deployed service members may have PTSD.  This means approximately 350,000 veteran PTSD cases among nearly 1.9 million service members cumulatively deployed to the Iraq and Afghanistan war zones (“Invisible Wounds: Mental Health and Cognitive Care Needs of America’s Returning Veterans,” 2008).

• Stanford University estimated a PTSD rate as high as 35 percent for the same population.  This means as many as 665,000 potential PTSD patients and claims flooding into VA.  The higher rate is based on repeated deployments (nearly 40 percent deployed twice or more) and the delayed onset of PTSD among deployed veterans (“A Dynamic Model for Post Traumatic Stress Disorder Among U.S. Troops in Operation Iraqi Freedom,” 2009). 

The expected range of PTSD patients and claims caused by the two current wars is between 350,000 and 665,000.  Therefore, VCS believes the issue of accurately and consistently processing PTSD and other mental health claims remains an urgent priority so VA can provide prompt healthcare and economic safety nets to our veterans.  New, streamlined regulations may prevent the backlog of disability claims from increasing at VA’s Veterans Benefits Administration (VBA) and VA’s Board of Veterans Appeals.

News reports and VA data also confirm a surge of PTSD and mental health claims by veterans of other deployments, especially the Vietnam War.  Combined, VA faces the prospect of hundreds of thousands of PTSD claims in the near future, thus highlighting the urgent need for improved regulations plus training, oversight, and monitoring.

VCS Offers Specific Items to Strengthen VA’s Proposed Regulation

VCS has serious concerns about the details of the proposed regulations.  In order to understand the impact of the proposed regulation, VCS reviewed Congressional testimony, scientific reports, VA reports about PTSD, and the comments submitted by veterans’ organizations, veterans, veterans’ family members, and the public.  VCS asks VA to address these four concerns before implementing any regulatory changes.

1. Cite Salient Scientific Foundation

In the summary of the final rule, VA should cite the most salient passage from the report by the Institute of Medicine (IOM), Gulf War and Health, Volume 6: Physiologic, Psychologic, and Psychosocial Effects of Deployment-Related Stress (2008, p 319):

The epidemiologic literature on deployed vs nondeployed veterans yielded sufficient evidence of an association between deployment to a war zone and psychiatric disorders, including post traumatic stress disorder (PTSD), other anxiety disorders, and depression; alcohol abuse; accidental death and suicide in the first few years after return from deployment; and marital and family conflict, including interpersonal violence (emphasis added).

The key phrase in IOM’s conclusion is deployed.  Scientists linked several serious adverse mental health outcomes to the broader definition of deployment rather than the more narrow current definition of “engaged in combat with the enemy.”   This specific sentence in IOM’s scientific finding is more important because there are no front lines in the Iraq and Afghanistan occupation war zones – every service member is a potential enemy target facing death throughout their entire year-long deployment. 

A thorough scientific foundation describing the nature of PTSD might also assuage the concerns of some people who provided comments about this regulation by explaining the logical and sound basis for the regulation.  Furthermore, VA should take care to describe in the summary of the final rule that VA also evaluates the level of each veteran’s individual disability, ranging from ten percent to 100 percent, with most veterans only mildly or moderately impaired.

2. Cite Legal Foundation

In the summary of the final rule, VA should provide a legal foundation for the proposed regulation.  VA should have cited “The Persian Gulf Veterans Act of 1998” (Public Laws 105-277 and 105-368) as the basis for the proposed regulation.  The IOM review cited here was mandated by the 1998 law.  Conditions IOM found associated with deployment can be used by VA to promulgate regulations.

Except for Gulf War, Iraq War, Afghanistan War, and other veterans deployed to a war zone after November 11, 1998, VA should explain that veterans must have a VA-approved PTSD disability claim before receiving free VA healthcare.  According to a briefing presented to the IOM in 2006 by VA’s National Center for Post Traumatic Stress Disorder:  “Longitudinal studies show that claim approval is associated with increased participation in [Mental Health] treatment” (bold red color emphasis in the original).

Access to mental health care remains an essential high priority as soon as possible in order to mitigate the well-documented increases in divorce, crime, alcohol and drug abuse, homelessness, and suicide among veterans with untreated PTSD.

3. Provide Retroactive Benefits

VA’s proposed new regulations remain silent on the issue of the effective date of new benefits.  VA should use the date most favorable to veterans:  either the date of the original claim, or the date of passage for the “Persian Gulf Veterans Act of 1998” (October 1998).

4. Allow Non-VA Diagnoses

VA’s proposed new regulations limit diagnoses for PTSD to VA physicians.  VCS urges VA to allow PTSD diagnoses from VA as well as other government and private mental health professionals.   VCS endorses the expert comments provided by the National Organization of Veterans’ Advocates and other veterans’ groups challenging this specific portion of the proposed regulations.

Additional Notes

If VA publishes regulations for mental health conditions associated with deployment to a war zone, then VCS asks VA to:

• Work more closely with the Department of Defense (DoD) to obtain reliable, consistent, and complete information to corroborate veterans’ deployment and medical conditions. 

• VA should mount an aggressive outreach effort about the new regulations.  VA should search VBA databases and notify veterans and beneficiaries with pending or denied claims for PTSD.  Furthermore, VA should notify veterans diagnosed with PTSD in Veterans Health Administration (VHA) databases where there is no VBA claim activity.

• Educate the veterans and public about PTSD as part of an overall anti-stigma campaign.  VA should emphasize the fact that VA found no fraud among 2,000 approved claims reviewed, according to a November 2005 VA press release (“No Across-the-Board Review of PTSD Cases – Secretary Nicholson”).   This also includes mention of two other IOM studies validating the existence of PTSD and the need to increase disability payments to veterans diagnosed with PTSD based on the loss of quality of life (PTSD Compensation and Military Service, 2007; and Treatment of PTSD: An Assessment of The Evidence, 2007).

• Monitor the number of claims received and adjudicated under this new regulation so VA leaders, Congress, veterans’ advocates, and oversight agencies may evaluate the impact of this new regulation.  Longitudinal information collected should include the number of veterans and beneficiaries; the number of claimed conditions for PTSD, anxiety, depression, and suicide; the outcome of those claims, such as service-connected (including the percentage rating), nonservice-connected, pending, re-opened, and on appeal; the approximate dollar amounts paid to veterans and beneficiaries, including retroactive payments; and any other demographic information deemed appropriate by VA or Congress.

• VA should consider promulgating new proposed regulations to cover anxiety disorders, depression, and suicide as medical conditions associated with deployment to a war zone based on the overwhelming evidence in the 2008 IOM study.  Given the well-documented suicide epidemic among our returning veterans, some of whom never sought VA medical care or VA disability benefits, a new regulation including suicide would open the door for survivors of veterans who might otherwise be left destitute by the unexpected and sudden passing of a veteran due to suicide.
 
Conclusion: Amendments Needed Before Issuing Final Regulations

VCS thanks VA for responding to our January 2009 letter requesting streamlined PTSD regulations.  We hope Chairman John Hall’s October 7, 2009, round table meeting with veterans’ advocates continues this new era of cooperation and collaboration by Congress, VA, and veterans’ advocates to forge pragmatic and progressive solutions in the best interests of our veterans and their families.

VCS asks VA to quickly promulgate final regulations creating a presumption for PTSD. For VA’s consideration, we offer this draft language developed during the Round Table for revising 38 Code of Federal Regulations 3.304(f):

A veteran will be found to have service connected posttraumatic stress disorder, in the absence of clear and convincing evidence to the contrary, if a stressor or stressors claimed by a veteran is related to the veteran’s deployment to an area of hostilities and a psychologist, psychiatrist or licensed therapist, counselor or social worker who has treated or examined the veteran confirms that, assuming the report of the stressor(s) to be accurate, the veteran has posttraumatic stress disorder related to the claimed stressor(s).

For future proposed regulations, VA should consider similar language for anxiety, depression, and suicide.

VCS thanks VA for this opportunity to comment on VA’s proposed regulations.

Sincerely,

Paul Sullivan
Executive Director