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STATEMENT SUBMITTED FOR THE RECORD

BEFORE THE U.S. HOUSE OF REPRSENTATIVES, COMMITTEE ON VETERANS’ AFFAIRS,

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS FOR THE

HEARING ON VETERANS’ MILITARY RECORDS DECEMBER 4, 2012

BY GULF WAR VETERAN ADVOCATES:

ANTHONY HARDIE AND PAUL SULLIVAN MORRIS BLAKEY

BRENT CASEY DAN FAHEY

WILLIAM FUZI JOEL GRAVES

ERIK K. GUSTAFSON MARGUERITE KNOX CHRIS KORNKVEN STEVE ROBINSON

CHARLES SHEEHAN-MILES DAVID K. WINNETT, JR. MICHAEL J. ZACCHEA

Thank you, Chairman Runyan, Ranking Member McNerney, and Members and staff of the Disability Assistance and Memorial Affairs Subcommittee for today’s important hearing on challenges related to veterans’ missing and destroyed military records, and for the opportunity to submit this testimony. Your enduring commitment to our nation’s veterans and the related oversight you provide are critical to keeping America’s promises made to its current and former service men and women.

Records lost by the U.S. Department of Defense (DOD) cause significant and long-term problems for our veterans, and their advocates, when seeking VA medical care or VA disability benefits.

Today, you shall hear compelling testimony from veterans and advocates regarding major failures in military recordkeeping relevant to Post-9/11 war veterans.

For example, from 2004 to 2007, “very few Operation Enduring Freedom records were saved anywhere, either for historians' use, or for the services' documentary needs for unit heritage, or for the increasing challenge with documenting Post Traumatic Stress Disorder (PTSD)."1

                                                                                                               1  U.S  Army  (AAMH-­‐ZC):  “Army  Operational  Records,  Data  Collection,  and  Readiness,”  February  20,  2009,  p.5.    

 

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We understand and empathize with those veterans. We want to make this point very clear: DOD’s poor record collection and improper record destruction began more than a decade before September 11, 2001.

Our statement for the record highlights the enduring and far reaching adverse effects that military recordkeeping failures have had for the veterans of a war today all but forgotten, the 1991 Gulf War. It is critically important to note that these recordkeeping failures will continue to negatively impact countless thousands of our nation’s veterans until Congress acts to ensure both remedial justice and substantive policy and procedural changes.

• First, military operational recordkeeping must immediately be remediated.

• Second, remedies must be created for veterans negatively impacted by the military’s chronic recordkeeping failures.

• Third, the many serious negative outcomes related to decades of military recordkeeping failures should be aggregated and preserved as a lasting testament of lessons learned regarding the irreparable damage, extraordinary costs, and wasted opportunities caused by these failures.

Military Recordkeeping: A Prolonged and Disastrous Decline

The 2009 Army review cited above shows that after a 1985 reorganization of recordkeeping responsibilities, “the previously robust system …. gradually weakened,” and Army “units .... soon realized that they could ignore many of their [recordkeeping] without any serious consequences.” The result was, “a prolonged and disastrous decline in Army record-keeping training and policy enforcement and a resulting decrease in the preservation of unit operational data.”2

Of course such unit data is often critical to veterans and their advocates later attempting to provide critical government-produced documents as evidence in order to substantiate service-connected disability claims filed against the U.S. Department of Veterans Affairs (VA), particularly in cases where personal medical and other substantiating individual records are unavailable or incomplete.

This same Army report doesn’t mince words with regards to the impact on unit records by the time of the 1991 Gulf War, when this, “first major operational experience after Vietnam …. highlighted the virtual collapse of the Army’s operational records system”. In brief, “records management fell by the wayside….”.3

This Army report also provides insight into why so many veterans of the 1991 Gulf War still struggle to substantiate their own VA disability compensation claims, a key prerequisite for many veterans seeking VA medical care for service-related medical conditions, especially toxic exposures.                                                                                                                2  ibid  (Army  2009)  3  ibid  (Army  2009)  

 

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“When reports of the so-called ‘Gulf War Syndrome’ began to surface shortly after the end of active combat, the mystery of its cause prompted Congress to direct the Army to investigate. To do so, the Army had to recreate as many of the lost, missing, or destroyed records to the extent possible. As a result of poor or non-existent records retention, many Army units were unable to accurately determine their locations, operations at given times, major incidents, and a host of other details.” 4

The systemic recordkeeping issues weren’t just limited to these administrative failures however. According to the Army report, “deployed historians even reported that they had come across units actively burning their entire collection of operations records rather than be bothered to haul them back to their home stations.”5

The problems didn’t end in 1991. The 2009 Army report assesses that, “the records management system remained broken,”6 for subsequent U.S. deployments to Somalia from 1992-94, Haiti from 1994-95, and Bosnia beginning in 1995.

Recordkeeping Failures: The 1991 Gulf War

As but one example of the importance of military recordkeeping, piecing together these Gulf War records, had, according to the Army report cited above, “become critical when it was suspected that Iraqi nerve agents and mustard gas were accidentally blown up along with other captured munitions at the Khamisiyah ammunition depot shortly after the ceasefire. The resulting plume of smoke was suspected of containing toxins that might have been the cause of many of the symptoms of Gulf War Illness.”7

However, despite extensive – and expensive – DOD efforts to develop Khamisiyah plume troop exposure models, a 2004 GAO review rated the DOD and Central Intelligence Agency efforts as failures. The GAO’s conclusions, made in response to a bipartisan, bicameral Congressional request by U.S. Senator Robert Byrd and Representative Chris Shays, were summarized in the report’s title, DOD’s Conclusions about U.S. Troops’ Exposure Cannot be Adequately Supported.8

This GAO review also identified other Gulf War chemical exposure events and chemical agents, including, “17 discrete Coalition aerial bombings of the Muhammadiyat munitions storage facility,” and that chemical warfare agents could have been similarly released from a number of other facilities. “Available evidence….suggests that troop

                                                                                                               4  ibid  (Army  2009)  5  ibid  (Army  2009)  6  ibid  (Army  2009)  7  ibid  (Army  2009)  8  U.S.  General  Accounting  Office,  “DOD’s Conclusions about U.S. Troops’ Exposure Cannot be Adequately Supported,” June 2004. Retrieved from the Internet 11/29/2012: http://www.gao.gov/new.items/d04159.pdf  

 

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exposure may be far more widespread than that projected from the CIA and DOD modeling of the Khamisiyah release alone.”9

The damage to the credibility of the U.S. Government, particularly DOD, VA, and CIA, cannot be overemphasized. Veterans struggling with serious health issues sought and gained the justified support of Congress, only to see their efforts thwarted at nearly every juncture by DOD and VA minimization, delay, and outright denial. Some of these issues continue to the present, with a long list of very serious and still unaddressed problems described in a June 19, 2012, report by the Congressionally chartered Research Advisory Committee on Gulf War Veterans’ Illnesses, which finds many of its efforts similarly thwarted.

Since at least the 1991 Gulf War, Congress clearly directed specific military recordkeeping. For example, in the National Defense Authorization Act of 1998, Congress directed that, “Not later than March 1, 1998, the Secretary of Defense shall submit to Congress a report containing a plan for collecting and maintaining information regarding the daily location of units of the Armed Forces, and to the extent practicable individual members of such units, serving in a theater of operations during a contingency operation or combat operation.”10

Recent examples from Iraq and Afghanistan show clear disregard for the intent of Congress related to effective military recordkeeping, and the apparent necessity of ongoing Congressional oversight.

Gulf War veterans have had insult added to injury. In many cases, field records were not kept, became lost, or were destroyed. Unit location data is especially problematic for troops attached to units other than their unit of assignment, who served in ad hoc units created uniquely for the Gulf War, or who served in widely roving Special Operations and similar units. In some cases, individual records, including health and vaccination records, were marked classified, were destroyed, or have been lost.

1998 Gulf War Acts: Circumvented Until Expiration

In late 1997, the House Committee on Government Reform and Oversight found, “the status of [federal] efforts on Gulf War issues … to be irreparably flawed.” The Committee went on to say, “We find those efforts hobbled by institutional inertia that mistakes motion for progress. We find those efforts plagued by arrogant incuriosity and a pervasive myopia that sees a lack of evidence as proof. As a result, we find current approaches to research, diagnosis and treatment unlikely to yield answers to veterans’ life-or-death questions in the foreseeable, or even far distant, future.” “Sadly, when it comes to diagnosis, treatment and research for Gulf War veterans, we find the Federal Government too often has a tin ear, a cold heart and a closed mind.” “Those denials and

                                                                                                               9  GAO,  p.21  10  Sec. 767, PL 105-85.  

 

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delays are symptomatic of a system content to presume the Gulf War produced no delayed casualties, and determined to shift the burden of proof onto sick veterans to overcome that presumption. That task has been made difficult, if not impossible, because most of the medical records needed to prove toxic causation are missing or destroyed. Nevertheless, VA and DOD insist upon reaping the benefit of any doubts created by the absence of those records.”11

The seminal Gulf War Acts of 1998 were created in part based on this overt recognition by Congress of military recordkeeping failures. One was the Persian Gulf War Veterans Act of 1998 (Title XVI, PL 105-277), the other contained in Title I of the Veterans Programs Enhancement Act of 1998 (PL 105-368). Under the latter, National Academy of Science (NAS) was required to identify: (1) the agents, hazards, or medicines to which Gulf War veterans may have been exposed; (2) the illnesses associated with such agents, hazards, or medicines; and (3) the illnesses for which there is scientific evidence of a higher prevalence among Gulf War veterans. Under the former, NAS was required to review potential exposures, illnesses in Gulf War veterans, and statistically and scientifically assess the relationship between the exposures and veterans’ illnesses.

However, under neither Act was there a requirement to create service-connected presumptives based upon the conjunction of a known exposure and known outcomes of that exposure. For example, there was no obligation for the creation of respiratory illness presumptives based on widespread oil well fire fine particulate (PM2.5) exposures or Khamisiyah-related low-level mustard gas and chemical warfare agent exposures.

Successive IOM review committees discussed these issues in their finding. For example, in 2000, “The [IOM Gulf War] committee soon learned that, because of extremely poor medical recordkeeping practices and limited environmental monitoring, it is not possible to document the exposure of individual Gulf War soldiers, with a few exceptions (e.g., soldiers with retained fragments of depleted uranium in their tissues). ... The limitations imposed by poor troop monitoring and inadequate recordkeeping have been quite frustrating for the [IOM] committee, as it will also be for the veterans. Yet our country has an obligation to understand illnesses that occur in those whom it asks to go to war. Past conflicts, from the Civil War to the Gulf War, have taught us that some veterans experience long-term health effects. Some of those health effects physicians will not find in a textbook of medicine. The military must lay the groundwork for understanding the health effects of future wars. It must carefully monitor the health of deployed forces and, concomitantly, nondeployed troops who could serve as controls. It must develop reliable methods for measuring exposure to potentially harmful agents. It must learn how to keep good medical records. For environmental exposures, the military must find ways to measure the dose experienced by individual soldiers. These tasks are technologically feasible. For this committee, one of the most important lessons of the Gulf War is the

                                                                                                               11  U.S. House of Representatives, Committee on Government Reform and Oversight, House Report 105–388: Gulf War Veterans’ Illnesses: VA, DOD Continue to Resist Strong Evidence Linking Toxic Causes to Chronic Health Effects, November 7, 1997. Retrieved from the Internet 11/29/2012: http://www.gpo.gov/fdsys/pkg/CRPT-105hrpt388/pdf/CRPT-105hrpt388.pdf  

 

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need for accurate recordkeeping of what happens to soldiers in war.”12

Thus, since enactment of the Gulf War Acts of 1998, only an unfortunately small and limited number of presumptives have been granted. Inexplicably, not a single presumptive has been granted related to known chemical warfare agent exposures, including but not limited to sarin, cyclosarin, and mustard recognized by DOD as having been released at low levels in the Khamisiyah munitions depot demolitions and exposing many or most U.S. Gulf War troops. Not a single presumptive has been granted based on exposure to the controversial anthrax vaccine or pyridostigmine bromide (PB) pills of the time, or the fine particulate matter (PM2.5) from the hundreds of Kuwaiti oil well fires, or inhaled or ingested depleted uranium (DU) particulates.

Notwithstanding the limitations of this legislation, it is disappointing that key provisions have been allowed to expire, including requirements for ongoing NAS review related to Gulf War veterans’ health and the requirement that VA provide healthcare to Gulf War veterans, “notwithstanding that there is insufficient medical evidence to conclude that such condition is attributable to such service.”13

We strongly recommend the expired provisions be reviewed, strengthened, and renewed as they have yet to fulfill their purpose – helping ill and suffering Gulf War veterans.

Operation Enduring Injustice: When a Gulf War Veteran Is Not a Gulf War Veteran

While not a military recordkeeping issue per se, there is another enduring injustice for some Gulf War veterans directly related to the need for updating and renewing the Gulf War Acts of 1998.

Under VA law and regulations, the Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations, starting on August 2, 1990, and continuing until ended by Presidential Executive Order or by an act of Congress.14 VA healthcare and benefits for Gulf War veterans are restricted to service in these areas.

However, due to an incorrect and incomplete definition of the war zone, an unknown number of veterans of the 1991 Gulf War remain excluded from VA Gulf War veteran healthcare and benefits despite their award of the Southwest Asia Service Medal (SWASM) for their Gulf War service.

                                                                                                               12    Institute  of  Medicine,  National  Academy  of  Sciences,  Gulf  War  and  Health,  Volume  1:  Depleted  Uranium,  Pyridostigmine  Bromide,  Sarin,  Vaccines,  2000,  pp.  viii-­‐ix.      13  Sec.  102,  PL  105-­‐368.  14  38 USC 101(33); 38 CFR 3.317(e)(2).    

 

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According to federal regulations governing the award of the SWASM (32 CFR 578.27(b)), “Members of the Armed Forces of the United States serving in Israel, Egypt, Turkey, Syria, and Jordan (including the airspace and territorial waters) between January 17, 1991 and April 11, 1991, will also be eligible for this [SWASM] award. Members serving in these countries must have been under the command and control of U.S. Central Command or directly supporting military operations in the combat theater.” However, these Gulf War veterans remain unjustly excluded from VA Gulf War veteran healthcare and benefits.

Congress should promptly enact legislation with a complete definition of the war zone and thereby correct this enduring injustice for these Gulf War veterans so these long forgotten Gulf War veterans qualify for all applicable Gulf War veteran healthcare and benefits laws.

Military Recordkeeping Failures: Other Impacts

As has been noted elsewhere, there are many negative consequences related to these military recordkeeping failures, including sharply limiting the future ability to learn important lessons though researchers’ reviews of military operational records. However, we are especially concerned about the impact on our nation’s veterans.

With some exceptions, in order for a veteran to successfully prosecute a disability compensation claim against VA, and thus receive monthly payments and access to covered VA healthcare, a veteran must provide VA evidence of 1) a current medical condition, 2) an event in service, and 3) a competent medical opinion associating the current medical condition to the event.

As part of the evidence for the onset of a condition during service or an event during service, VA almost always requires individual military medical and personnel records. For some Gulf War veterans, those records were lost or destroyed, including vaccination records reported by some veterans to have been classified. In cases where individual records are not available, trained claims service officers and other advocates may rely on unit records to help substantiate the veteran’s claim, a fallback made impossible when military operational records have been never been created, or have been destroyed or lost.

At best, veterans in these cases find their claim denied, hampered, and severely delayed for years, often tangled in VA’s already overburdened claim processing system. At worst, countless Gulf War veterans may lack the necessary evidence to substantiate their claim, resulting in denial of service-connected VA benefits they earned de facto but lost through no fault of their own.

In short, veterans are penalized, not for their own failings, but for the failures of the federal government agencies on which these veterans are forced to rely but over which they and their advocates ultimately have no control. Veterans are forced into a Catch-22: a requirement to provide evidence that the government kept and later destroyed, or that the government failed to keep at all.

 

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Military recordkeeping failures also have a negative impact on later medical research aimed at providing treatments to veterans left chronically debilitated as the result of environmental and other hazards. Without accurate troop location and exposure data, medical researchers can only make educated guesses. For example, the Khamisiyah cohort has been used as the subject of various Gulf War illnesses studies. However, a 2004 GAO report15 recommended that this identified cohort not be used for future studies because it was unclear how many troops in the cohort were not actually exposed to the Khamisiyah plume, nor how many troops outside the cohort were in fact exposed.

Furthermore, military recordkeeping failures mean that many Gulf War veterans exposed to toxic agents, and their health care providers, remain unaware of probable Gulf War exposures, though they are acutely aware of their debilitating chronic health conditions.

RECOMMENDATIONS

We call on the Committee to develop and ensure the enactment of legislation to:

1) Reauthorize the expired provisions of the Gulf War Acts of 1998 [Persian Gulf War Veterans Act of 1998 (Title XVI, PL 105-277); Title I of the Veterans Programs Enhancement Act of 1998 (PL 105-368)]

2) Explicitly and directly grant exposure-based service-connection presumptions to known, suspected, or plausible Gulf War exposures including: a) Sarin (GB)

b) Cyclosarin (GF) c) Sulfur Mustard (HD)

d) Tabun (GA) e) Lewisite (L)

f) Soman (GD) g) VX nerve agent

h) Particulates (PM2.5: sub-2.5 micrometer in size, which are respirable and too small to be removed by the lungs’ natural exfoliating processes)

i) Pyridostigmine Bromide (PB) nerve agent protective pills (NAPP) j) Anthrax vaccine

k) Depleted Uranium (DU) l) Chemical pesticides

                                                                                                               15  U.S.  General  Accounting  Office,  “DOD’s Conclusions about U.S. Troops’ Exposure Cannot be Adequately Supported,” June 2004. Retrieved from the Internet 11/29/2012: http://www.gao.gov/new.items/d04159.pdf  

 

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3) Grant exposure-based service-connection presumptions for exposures in (2) above for all U.S. servicemembers who served anywhere in the Southwest Asia theater of operations (38 CFR 3.317) or were awarded the Southwest Asia Service Medal (32 CFR 578.27) for service between January 16, 1991 and the end of 1991. {Note: last oil well fire put out “by November” 1991}.

4) Require VA to contract with the Institute of Medicine of the National Academy of Sciences to identify a comprehensive listing of health conditions and symptoms, including chronic and delayed onset, which are associated in humans or animals with exposure to acute, subacute, and low levels for each of the named exposures in (2) above and explicitly and directly require VA to include each of these conditions as presumptives for Gulf War veterans as described in (3) above. The review should be explicitly required to include data from a comprehensive review of the medical literature, and to also include: a) 1993 IOM report on WWII veteran Mustard/Lewisite experimentation survivors

b) Medical literature assessing long-term health effects of the cohort of Iranian mustard-exposed veterans of the 1980-88 Iran-Iraq War

c) Classified and unclassified published and unpublished research by the federal government, federal contractors, and federally funded entities into acute and long-term health effects of even low levels of the above named exposures

d) Animal studies

5) Ensure the perpetuity, without expiration, of adding new presumptive conditions as described in (4) above as they become identified by medical research.

6) Expand the definition of the Southwest Asia theater of operations, for purposes of all VA benefits including healthcare, to include service qualifying for the award of the Southwest Asia Service Medal.

7) Establish permanent eligibility by law for Priority Group 6 VA healthcare for veterans who have been awarded the Southwest Asia Service Medal.

8) Require DOD to monitor, develop and retain accurate and detailed records regarding future troop hazardous exposures.

Final Conclusions

Today, as we have for many years, we know a list of hazards to which Gulf War troops were exposed.

We know far more today than we did even a few years ago about the health effects on humans and animals of even low levels of some of these exposures.

We know that an estimated 250,000 of the roughly 697,000 veterans of the 1991 Gulf War are suffering from chronic multisymptom illness – commonly known as Gulf War Illness – or roughly one in every three Gulf War veterans.

 

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Despite all this knowledge, Gulf War veterans continue to experience serious challenges related to their claims for VA service connection, which is also the gateway to covered VA healthcare.

And despite well-intentioned legislation in 1998, VA has yet to produce even a single service-connection presumption based on exposure to any of the toxic hazards of the 1991 Gulf War.

Due in significant part to failed military recordkeeping, we will never know accurate military troop locations down to the individual level, severely hampering efforts at exposure estimates or determination of association between those who are ill and the specific exposures they experienced

Lessons that could have been learned have not been. Lessons that have been learned have been forgotten and repeated. Countless resources have been squandered in ultimately futile attempts at recreation. For too long, veterans were ignored. More recently, Gulf War veterans have been all but forgotten, with many remaining needs and national obligations to them unmet.

These last decades of veterans’ suffering, wasted resources, and lost opportunities for lessons learned must never again be allowed to occur. Congress must prevent these issues from recurring. Veterans must not be made to suffer any longer for the failures of federal agencies. The benefit of the doubt should finally and definitively be given to veterans, not the current burden of proof made impossible for them by military recordkeeping failures.

Again, thank you for this hearing on this important and regrettably enduring issue, and for the opportunity to provide this testimony and our recommendations. We all remain ready to assist you.