STATEMENT FOR THE RECORD WOUNDED WARRIOR PROJECT BEFORE THE SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS COMMITTEE ON VETERANS AFFAIRS

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1 STATEMENT FOR THE RECORD WOUNDED WARRIOR PROJECT BEFORE THE SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS COMMITTEE ON VETERANS AFFAIRS U.S. HOUSE OF REPRESENTATIVES APRIL 16, 2013 Chairman Runyon, Ranking Member Titus, and Members of the Subcommittee: Wounded Warrior Project (WWP) welcomes the opportunity to share views on two of the bills before the Subcommittee today, H.R. 894, the Veterans Fiduciary Reform Act of 2013, and H.R. 602, the Ruth Moore Act of Each raises issues of concern that we have addressed in our Policy Agenda this year. Caregiver-Fiduciaries: H.R. 894 WWP works closely with family members of severely wounded warriors who are both full-time caregivers and fiduciaries for those warriors. Almost three years ago, recognizing the sacrifices these family members have made to care for their loved ones as well as the emotional and financial toll associated with sustained caregiving, Congress established the Comprehensive Caregiver-Assistance Program in Public Law to provide them needed supports. The Veterans Benefits Administration (VBA), however, fails -- in administering the fiduciary program -- to recognize the extensive and regularly-ongoing oversight the Veterans Health Administration (VHA) mounts in determining initial and continuing eligibility for caregiverassistance services. As a result, while the Caregiver-Assistance law was aimed at lightening the family caregiver s burden, the additional, ongoing VBA scrutiny makes the caregiver-fiduciary s situation even more stressful.

2 For example, WWP has seen all too clearly that VBA s intensely detailed reporting requirements can be overwhelming to an already emotionally drained family member who is shouldering a young veteran s total-care needs and yet is left to feel that VA deems her suspect and distrusted. As one mother described it, we are probed yearly by a forensic accounting that seemingly investigates for murderous infractions, even requiring fiduciaries to line-item Walmart receipts. As an organization dedicated to the well-being of wounded warriors, we appreciate the importance of assuring responsible stewardship of veterans benefits and the protection of vulnerable beneficiaries and welcome the focus in H.R. 894 on adding safeguards to strengthen the program. But it is important to appreciate the unique circumstance of family members who have given up careers and depleted savings to care for their loved ones. These individuals are not unknown to VA. In fact, to qualify and win formal approval for support under the Caregiver- Assistance program, the family member of a seriously wounded warrior must undergo VA review, training, home-inspection, and a determination that the proposed arrangement is in the veteran s best interest. The caregiver must also undergo regular quarterly home-inspections and monitoring of the veteran s well-being to continue to receive VA assistance. Any red flags that might arise in the course of these home-inspections can result in revocation of approved caregiver-status. In short, Veterans Health Administration staff assist and work closely with family caregivers who in many instances are also fiduciaries and who have not only been screened before qualifying for the program, but whose care of the veteran is closely monitored. Surely that process and ongoing oversight provide ample evidence that these individuals are trustworthy, and do not pose a risk of misusing the veteran s benefits. WWP applauds the effort in H.R. 894 to tighten the fiduciary program, and we are not proposing that caregiver-fiduciaries have no accountability for management of the beneficiary s funds. But we do see a need to make provision in law for more balanced accountability and far less intrusive oversight under circumstances where caregiver-fiduciaries have demonstrated that they do not pose significant risk and have earned VA s trust. Dedicated caregiving, as evidenced through unblemished participation in VA s comprehensive caregiver assistance program, should be recognized as establishing that trust. In that regard, we appreciate that H.R. 894 includes language relating to caregiver-fiduciaries. 1 Unfortunately, that language -- directing the Secretary to ensure that care provided by a fiduciary is not worsened by the fiduciary complying with bill s reporting requirements -- falls short of resolving the underlying problem. First, the provision relates only to reporting, and not audits 1 As amended, section 5509(f) of title 38, U.S. Code would provide that In prescribing regulations to carry out this section [relating to reporting requirements], the Secretary, in consultation with the Under Secretary for Benefits and the Under Secretary for Health, shall ensure that the care provided by a fiduciary [who also provides care to the beneficiary pursuant to this title (including such care provided under section 1720G of this title] is not diminished or otherwise worsened by the fiduciary complying with this section. 2

3 and other oversight. But even at that, these self-sacrificing loved ones will not allow the veteran s care to diminish under any circumstances; as such a do-no-harm-to-care provision fails to provide real protection. In our view, where VHA has already screened and approved a family member as a caregiver, and has carried out home visits that demonstrate that care is being well maintained, a level of trustworthiness has surely been established. Under those circumstances, that at a minimum should warrant much less detailed and more userfriendly reporting, and more balanced, much less intrusive oversight. Unfortunately, the bill does not yet achieve that. At the same time, its reporting requirements are actually more demanding than under current law requiring annual reporting in place of the discretion afforded under existing law and expanding the scope of such reporting to include an accounting of benefits and income from sources other than VA. Consistent with the bill s recognition that caregiver-fiduciaries merit special consideration, we ask that the Subcommittee refine the language to more effectively accommodate family caregivers. We would be happy to work with the Subcommittee to develop language to address these concerns. H.R. 671 H.R. 671, the Ruth Moore Act, highlights another important issue, military sexual assaults. As the Department of Defense has stated unequivocably, military sexual assault is a crime that may forever change the live of its victims. 2 Yet it is also a significantly underreported crime. 3 Victims of military sexual trauma (MST) often not only do not readily disclose these traumatic events, but delay seeking treatment for conditions relating to that experience. 4 Yet in-service sexual assaults have long-term health implications, including post-traumatic stress disorder, increased suicide risk, major depression and alcohol or drug abuse. 5 A comprehensive review of individuals seeking VA care found that those who experienced MST were three times more likely to receive a mental health diagnosis of some type, almost nine times more likely to be diagnosed with PTSD, and twice as likely to be diagnosed with a substance abuse issue. 6 Researchers report that the effects of sexual assault on health are similar to those for combat. 7 2 Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2011 (April 2012), 1. 3 Id., 7. 4 Rachel Kimerling, et al., Military-Related Sexual Trauma Among Veterans Health Administration Patients Returning From Afghanistan and Iraq, Am J Public Health, 100(8), (August 2010), M. Murdoch, et al., Women at War, Journal of General Internal Medicine, vol. 21, Issue S3 (March 2006) accessed at 6 Rachel Kimerling, Kristian Gima, Mark Smith, et al. The Veterans Administration and Military Sexual Trauma, American Journal of Public Health 97, no. 12 (2007) Id. 3

4 VA reports that some 1 in 5 women and 1 in 100 men seen in its medical system responded "yes" when screened for military sexual trauma (MST). 8 Though rates of MST are higher among women, there are almost as many men seen in VA that have experienced MST as there are women. 9 While researchers cite the importance of screening for military sexual trauma and associated referral for mental health care, many victims do not seek VA care. Indeed researchers have noted frequent lack of knowledge on the part of women veterans regarding eligibility for and access to VA care, with many mistakenly believing eligibility is linked to establishing service-connection for a condition. 10 Compounding this misperception is the difficulty individuals experience in attempting to establish service-connection for mental health conditions resulting from in-service sexual trauma. VA s regulation governing service-connection for PTSD does reflect an attempt to address some of the difficulties veterans face in light of the general requirement that there be credible supporting evidence that the claimed stressor occurred. 11 The regulation specifies that, in the case of a claim based on in-service personal assault, evidence from sources other than the veteran s service records may corroborate the veteran s account, and it provides examples of such evidence, to include evidence of behavior changes following the claimed assault. But with the overwhelming percentage of military assault-incidents going unreported, the unique circumstances of the military experience heighten the likelihood of such an incident going undetected, and subsequently eluding efforts to provide corroborating evidence. Military training and culture foster a spirit of comradeship, teamwork, and loyalty that is critical to success in battle. A sexual assault is a profound violation of those principles. In the experience of many MST victims, being sexually assaulted by a fellow servicemember creates intense feelings of betrayal, confusion and shame. Military culture strongly values servicemembers keeping their pain and distress to themselves. As described in one journal report, unit cohesion may create environments where victims are strongly encouraged to keep silent about their experiences, have their reports ignored, or are blamed by others for the sexual assault. 12 Given all these circumstances, it is very common for victims to experience such profound fear or shame regarding a military sexual assault that they remain silent and cover up or hide the attack for years. As one report noted, despite the pervasiveness of military sexual trauma, many clinicians fail to recognize as many as 95% of cases among veterans and active duty personnel Department of Veterans Affairs National Center for PTSD, Military Sexual Trauma fact sheet, accessed at 9 Id. 10 See Donna Washington, et al., Women Veterans Perceptions and Decision-Making about Veterans Affairs Health Care, Military Medicine 172, no. 8 (2007): C.F.R. sec (f) 12 Kimerling R, Gima K, Smith M, Street A, Frayne S; The Veterans Health Administration and Military Sexual Trauma, American Journal of Public Health, vol. 97, no. 12 (December 2007), Sharon Valente and Callie Wight, Military Sexual Trauma: Violence and Sexual Abuse, Military Medicine, vol. 172, no. 3 (March 2007), pp

5 For veterans who file claims for service connection for PTSD based on MST, 14 the challenges both of providing or identifying evidence to support the claim and of meeting the inherently subjective requirement that that evidence be deemed credible can be monumental. WWP warriors and benefits staff tell us that most victims of MST have no hard evidence on which to rely. The VA s regulation invites consideration of corroborative evidence of behavioral changes in service, but markers of such changes may be subtle or nonexistent. Moreover, it has been observed that many adjudicators handling these cases look for obvious, blatant, concrete evidence that is more likely to be in the claims file, rather than subtle, nuanced evidence. 15 As other commentators have observed, even cases with strong corroborating evidence may still be denied (citing YR v. West, 11 Vet. App. 393 (1998), where evidence included detailed testimony from the victim s sister reporting observable physical injuries just two days after a reported inservice assault). 16 WWP believes that the uniquely troubling circumstances associated with MST, the health risks it holds, and the heavy burden on the victim of corroborating a widely-unreported traumatic experience, merits easing that evidentiary burden. H.R. 671 sets the right evidentiary standard, in our view, in providing that the veteran s lay statement may establish the occurrence of the claimed military sexual trauma, absent clear, convincing evidence to the contrary and if consistent with the circumstances of the veteran s service. (Acceptance of the lay statement as establishing in-service trauma is, of course, only one element in establishing service-connection for PTSD.) As commentators have aptly noted, VA has the authority to ease the evidentiary burden of establishing service-connection for PTSD, 17 and has exercised that authority as recently as In that most recent rulemaking, VA established a framework under which the evidentiary requirement for corroboration of a stressor would be eliminated in claims for PTSD due to fear of hostile military activity, 18 just as in claims involving a combat stressor. 19 Despite marked differences, the trauma associated with combat, exposure to hostile military activity, and military 14 In WWP s experience, some warriors are unwilling to relive the trauma and simply elect not to initiate claims of service connection for PTSD based on sexual trauma. 15 Jennifer C. Schingle, A Disparate Impact on Female Veterans: The Unintended Consequences of Veterans Affairs Regulations Governing the Burdens of Proof for Post-traumatic Stress Disorder Due to Combat and Military Sexual Trauma, William & Mary Journal of Women and the Law, vol. 16: 155 (2009), Id., See Schingle, ibid; Moomey, ibid; Brianne Ogilvie and Emily Tamlyn, Coming Full Circle: How VBA Can Complement Recent Changes in DoD and VHA Policy Regarding Military Sexual Trauma, Veterans Law Review, vol 4 (2012). 18 Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39, 846 (July 13, 2010). With that rulemaking, VA provided that where a VA psychiatrist or psychologist confirms (1) that a claimed stressor related to fear of hostile military or terrorist activity is adequate to support a PTSD diagnosis, and (2) the veteran s symptoms are related to that stressor, the claimant s lay testimony alone may establish the stressor s occurrence (provided the stressor is consistent with the places, types, and circumstances of the veteran s service) C.F.R. sec (f)(5) 5

6 sexual assault are all strong predictors of PTSD. And each presents great difficulties for the veteran to provide corroborative evidence of that trauma. Since VA has the requisite authority to remedy this problem administratively and there are compelling policy reasons, in our view, to exercise that authority, we urge the Committee to press the Department to do so. That course would be preferable, in our view, to the Committee s having to find savings to offset any direct spending deemed to be associated with enactment of H.R Ultimately, such regulatory reform would be an important step toward healing a deep wound many have suffered. Thank you for your consideration of our views. 6