By C. Alexander Hewes, Jr., Esq. *
There are more than 50 million disabled Americans today; more than 500,000 of these live in Virginia and a growing number of them are men and women who have suffered disabling injuries in the defense of this country. Many of the latter have returned from combat with Post-Traumatic Stress Disorder (PTSD) and related mental health disorders.
A. Scope of the Problem
PTSD is a problem that was not readily known to senior military leaders, or accepted as such, until a decade or so ago. Compounding the problem of getting early diagnoses, has been the fact that the onset of PTSD symptoms may not be apparent for months, after the soldiers leave service and after the opportunity has passed for developing a record of circumstances that would support the award of benefits. The problem garnered national attention in 2015, when NPR and Colorado Public Radio revealed that, since 2009, more than 22,000 wounded soldiers, many diagnosed with mental health problems or brain injuries had been dismissed for misconduct. Many of them had been deprived of some or all of their benefits. Others experienced delayed diagnoses of PTSD because the symptoms were not readily apparent at the time of their separation from service.
At the urging of several Members of Congress, the Secretary of the Army directed the Assistant Secretary for Manpower to conduct a review of how the Army had been handling misconduct separations for soldiers with mental health problems or brain injuries. The review and final Army Report concluded that the Army had been following the letter of the law but that did not solve the problem.
B. Call to Action by Congress
Congress then passed a law requiring commanders to evaluate two issues whenever they are considering dismissing a soldier for misconduct: 1) whether that soldier had been diagnosed with traumatic brain injury or PTSD and 2) whether the soldier had deployed during the previous two years in a war zone or other contingency operation. Yet the law does not explicitly recognize other mental disorders.
Dr. Judith Broder, a psychiatrist who organized the Soldiers Project, a network of hundreds of psychotherapists and others who help troops and their families, reportedly said, “It’s mind boggling to exclude people because they don’t have one of those two diagnoses (brain injury or PTSD). Our experience at the Soldiers Project is that at least half maybe more than that, of the people who call us with mental health problems following their service have anxiety, depression, drug and alcohol problems, all of which directly flow from their experiences in combat.” Moreover, soldiers who were processed out before the change in the law remained excluded as well.
In 2010, the federal standard for evaluating PTSD cases was administratively lowered. The Department of Veterans Affairs (VA) amended its adjudication regulations governing service connection for PTSD by liberalizing… in some cases… the evidentiary standard for establishing the required in-service stressor.
The amendment eliminated the requirement for corroborating that the claimed in-service stressor occurred if 1) a stressor claimed by a veteran was related to the veteran’s fear of hostile military or terrorist activity and 2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted, confirmed that the claimed stressor was adequate to support a diagnosis of PTSD and 3) that the veteran’s symptoms were related to the claimed stressor, provided 4) that the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service. The Army reported that only 3,327 of the more than 22,000 soldiers initially identified met the more relaxed standard and the remaining 19,000 soldiers were left without remedy.
C. Changes in the Law Needed
More changes to the law are under consideration. H.R.918 was introduced by Congressman Mike Coffman (R-CO) in the House of Representatives on February 7, 2017. It has 28 co-sponsors. His Bill, titled the Veteran Urgent Access to Mental Healthcare Act, directs the VA to furnish to former members of the Armed Forces: (1) an initial mental health assessment; and (2) the mental health care services required to treat the member’s urgent mental health care needs, including risk of suicide or harming others.
The Bill defines a former member of the Armed Forces is an individual who:
- served in the active military, naval, or air service, was discharged or released under a condition less than honorable (except a dishonorable or bad conduct discharge), has applied for a character of service determination that has not yet been made, and is not otherwise eligible to enroll in the VA health care system by reason of such discharge or release; or
- while serving in the Armed Forces, was deployed in a theater of combat operations or an area at a time during which hostilities occurred in that area, participated in or experienced such combat operations or hostilities, or was the victim of a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment.
The Bill would also authorize the VA to provide such mental health care services at a non-VA facility if: (1) the receipt of mental health care services by an individual in VA facilities would be clinically inadvisable, or (2) VA facilities are not capable of furnishing such mental health care services to that individual economically because of geographical inaccessibility.
The Bill also would require the VA to seek to enter into a contract with an independent nongovernmental entity to study the effect that combat service has had on suicide rates and serious mental health issues among veterans. The Bill was referred out of the House Veterans’ Affairs Subcommittee on Health to the full Committee on Veteran Affairs, by voice vote on April 6, 2017, where it is now pending.
Summary: Role for the Diversity Conference
Virginia is home to some 840,000 veterans. Nearly half of these citizens served in the Gulf War era, according to the Virginia Department of Veteran Services. Only six other states have a larger veteran population, and only three others expect veteran populations to grow through 2017.
The Virginia State Bar (”VSB”), over the years, has had a robust presence in providing assistance to veterans with several programs, including one initiative that recruits lawyer-volunteers in order to provide military veterans and service members with greater access to legal assistance.
Several hundred VSB attorneys have joined the Veterans Pro Bono Volunteer List. Many of whom have donated their time and skills in handling cases; often times involving family law issues, for this large segment of Virginia’s population.
The Veterans Issues Task Force and other VSB groups have also coordinated educational programs; some offering CLE credit. The disabled military veterans are both a protected class under Federal and state law, and also an important component of the diversity spectrum. Their needs constitute an important component of the national discussion on diversity.
- Mr. Hewes is a former U.S. Senate staffer, who focused on the problem of poverty in America. He is also a former Federal prosecutor and served as outside counsel to American University. He is listed in Google Scholars and works closely with other VSB members in assisting the disabled in America’s military community.
 Daniel Zwerdling, Senators, Military Specialist Say Army Report on Dismissed Soldier is Troubling, December 1, 2016, aired on West Virginia Public Broadcasting, and Morning Edition.
 38 CFR Part 3, RIN 2900-AN32, Department of Veteran Affairs, effective July 12, 2010.