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Ronald E. Brown, Gulf War Veteran & President, National Gulf War Resource Center

March 15, 2016

STATEMENT FOR THE RECORD OF RONALD E. BROWN, GULF WAR VETERAN & PRESIDENT, NATIONAL GULF WAR RESOURCE CENTER

BEFORE THE U.S. HOUSE OF REPRESENTATIVES,

COMMITTEE ON VETERANS’ AFFAIRS,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

FOR A March 15, 2016 HEARING ENTITLED:


“PERSIAN GULF WAR: An Assessment OF VA’s Disability Claim Process with Respect to Gulf War Illness.

     Thank you, Chairman Coffman, Ranking Member Rep. Ann McLane Kuster, Rep. Dr. Ralph Abraham, Rep. Dina Titus, and Members of the House Veterans’ Affairs Subcommittee on Oversight and Investigations. I thank you for holding this joint investigative hearing on the VA’s Disability Claim Process with Respect to Gulf War Illness claims.

     My name is Ronald Brown; I’m President of the National Gulf War Resource Center (NGWRC). The NGWRC is a small 501 (c) (3) non-profit veteran service organization, which is comprised of sick Persian Gulf War veterans who volunteer our time to advocate for our fellow veterans suffering from the complexities of modern warfare. We specialize in Gulf War Illness claims, we work with veterans to educate and assist them in the claims process. We also work with policy makers inside the VA, in an attempt to accomplish two goals: first, to insure clinicians are better trained about conditions facing this group of veterans to insure the veterans receive the best health care possible.  Secondly, we are working to address and correct issues affecting this group of veterans, such as the high denial rate of Gulf War illness related claims.

     This year marks the 25th anniversary of the liberation of Kuwait.  Of the nearly 700,000 U.S. military personnel that served in the 1990-1991 Persian Gulf War (Operation Desert Storm) studies indicate that approximately 25-32% of these veterans became ill with what is now referred to as Gulf War Illness.  These U.S. Warfighters face a higher denial rate than any other era veteran.

     In May 2015 the VBA provided the NGWRC data on Gulf War claims. The data wasn’t exactly what we had asked for but it did show some very disturbing numbers. Out of 193,436 Undiagnosed Illness (UDX) or Chronic Multi-Symptom conditions claimed only 32,631 was approved service connection leaving 160,805 conditions denied. That’s an approval rate of 17% and a denial rate of 83%.  The VBA has stated that the denial rate is actually around 70%-74%. 

     This data shows that Desert Storm veterans are compensated for direct service connection conditions (50,523) equivalent to other era veterans.  Emphatically, this data revealed disturbing data that showed most Gulf War veterans are denied presumptions of service connection for illnesses (CMI) associated with service in the Persian Gulf Theater.

     The NGWRC asked the VBA for clarification.  The VBA provided us with data in July 2015 that shows the reasons for denials of first time claims filed from 2011 through 2015. 

     This data is for denials of claims for the diagnosable but medically unexplained chronic multisymptom illness (CMI) conditions such as Chronic Fatigue Syndrome, Fibromyalgia, and Functional gastrointestinal conditions which are presumed by Congressional intent (See: U.S.C 38 § 1118) to be caused by service in the Southwest Asia Theater of operations.  This data shows that a total of 18,218 veterans filed claims for 22,863 conditions that were denied.

     The data is broken down by specific categories with the number of claims denied in each category, they are as follows:

  • No Causation - 8 conditions.
  • No Diagnosis – 9,710 conditions.
  • Not aggravated by service - 25 conditions.
  • Not Established by Presumption – 2,176 conditions.
  • Not in Country - 10 conditions.
  • Not Caused/Incurred by Service – 10,568 conditions.
  • Not Secondary - 344 conditions.
  • Not Well Grounded - 1 condition.
  • Not in Line of Duty - 3 conditions.

     The NGWRC finds two of these categories extremely troubling and evidence of systemic problems within the Veterans Benefit Administration (VBA) in regards to Gulf War Illness claims.   The categories “Not Established by Presumption – 2,176 conditions denied” and “Not Caused/Incurred by Service – 10,568 conditions denied”.  These two categories account for 57% of the 22,863 conditions that were denied.  These two categories absolutely make no sense given the fact that by statue (U.S.C 38 § 1118) these conditions are presumptions of service connection for illnesses associated with service in the Persian Gulf War.  Congressional intent is such that these illnesses “shall be considered to have been incurred in or aggravated by service notwithstanding that there is no record of evidence of such illness during the period of such service”.

     To date the Veterans Benefit Administration (VBA) has not been able to provide a rational explanation as to why these two categories warrant denials given the statue.  I addressed this issue with former Under Secretary of Benefits Allison Hickey who acknowledged a potential problem and stated that she would have VBA randomly pull a statistical portion of these claims to check for accuracy.  She stated that she would have the results by October or November 2015.  Her replacement, Danny Pummill, has also promised to get us the results from this accuracy check but as of today we still do not have the results.

     The Veterans Benefit Administration (VBA) has worked with us to update both their training and procedure manual, the M21-1.  They did an outstanding job, the new changes to their M21-1 provides sufficient guidance to enable C&P examiners to provide accurate Gulf War Illness exams and it provides VA adjudicators all the necessary information to accurately decide these claims.

     Unfortunately, the Veterans Benefit Administration (VBA) has been ineffective in getting the front line raters at the regional Benefits offices to do the training or use the updated M21-1 manual.  This is evident by recent denials of chronic multisymptom illness (CMI) claims in which the adjudicator or the C&P examiner imposed a nexus requirement and denied the veteran’s claim because “no record or evidence of such illness was found in the veteran’s military medical records”.  The front line adjudicators are not following statue, VA regulations, VA procedure (M21-1) and U.S. Court of Appeals for Veterans’ Claims case law.

     The NGWRC has been very successful in winning appeals at the Regional Benefits Office level, by simply pointing out the statue, VA regulation (38 CFR 3.317), the appropriate section in the M21-1 procedure manual, and the U.S. Court of Appeals for Veterans’ Claims case Gutierrez v. Principi, 19 Vet.App.1 (2004) in which the court upheld U.S.C 38 § 1118 and determined that a Gulf War veteran does not have to prove any link to the veteran service and his or her current CMI condition.

     The NGWRC has also been successful working with policy makers inside the Veterans Benefit Administration (VBA).  We are very thankful to these policy makers for the positive changes made to the M21-1 manual, yet we find ourselves awestruck by the VBA’s inability to train the front line adjudicators on these types of claims.  As positive as the changes are to the M21-1, these changes are useless if the examiners and raters aren’t using and following the regulations highlighted in the manual.

     The only hope Gulf War Veterans have to fix the high denial rate of Gulf War illness related claims is for the Veterans Benefit Administration to first recognize the problem and provide ongoing training to the front line adjudicators in all Regional Benefits Offices.  This training would further serve to reduce the growing number of appeals.

Recommendations:

  • Training.   Training the front line adjudicators concerning Gulf War illness related claims would be the most effective tool in solving the high denial rate of Gulf War illness related claims.  Gulf War illness related claims make up 29% of the current back log.  This training would further serve to reduce the growing number of appeals.  If the policy makers in the Central office are serious about fixing the high denial rates of Gulf War illness related claims, they need to ensure that each regional office around the country is doing mandatory training.
  • The upper management in the Central office should direct the directors of each Regional Benefits Office to ensure their front line adjudicators are using the M21-1 manual.  This manual provides the adjudicators all the references needed to accurately adjudicate claims.  References in this manual include U.S. code, VA Regulation (CFR) and related U.S. Court of Appeals for Veterans’ Claims cases.  This manual is an excellent tool if used.
  • Transparency, the VBA must continue to provide Veteran Service Organizations with data on these types of claims.  This ensures that VSO organizations can monitor and keep tract of denial and approval rates as well as provide critical information to the veterans they represent.
  •   I think it would help if VA also provided more specificity to veterans on why their claims are denied.  For example, VA doesn’t always inform the veteran about what exactly could be done to help move the claim – but I believe the following is critical for veterans to know so they can meet the 10% threshold: 
  • The veteran must specifically indicate the condition is “due to Gulf War;”
  • The veteran must describe the symptoms related to the condition and its existence of more than 6 months;
  • The veteran should provide any medical or nonmedical evidence (such as personal statements from family on the impact of the condition to the veteran, family, etc.

Respectfully,

Ronald E. Brown

President

National Gulf War Resource Center