The Veterans Law and Benefits Blog

The Lewis B. Puller, Jr. Veterans Benefits Clinic

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The first intra-service Veterans Treatment Court is the Army’s Veterans Endeavor for Treatment Support (VETS Court)

Written by William & Mary Law Student Kendall Kemelek

Many military veterans suffer from a number of injuries that are physical, mental, and emotional in nature.[1] These injuries can be either directly or tangentially related to military service.[2] Our society recognizes this correlation in organizations like the Department of Veterans Affairs (VA), which provides proactive care to veterans toward the goal of a better quality of life following the personal sacrifices and at times, the physical, mental, and emotional harms that can be concomitant to military service.[3]

Some issues pertinent to veterans, however, may require a special kind of retroactive attention and assistance from organizations other than the VA. Within the spectrum of illnesses affecting a significant number of veterans are substance abuse and addiction.[4] Generally speaking, persons who use recreational drugs or abuse prescription drugs are more likely to commit crimes.[5] Because military bases are federal property, civilians who commit crimes on a military installation are subject to federal prosecution and penalties.[6] If a veteran were to commit a crime anywhere, including on base, it seems proper that any military service and injury nexus that exists and might have enhanced the likelihood of criminal behavior should receive some judicial consideration when a veteran becomes involved with the justice system.

Civilian entities have long recognized circumstance-based treatment of criminal behavior in other categories. Examples include juvenile courts, existing in many states throughout the U.S. where crimes committed by juveniles are tried separate from the adult court system,[7] and more recently, drug treatment courts purposed for rehabilitation of substance abusers in lieu of or in addition to traditional criminal punishment, such as fees, probation and imprisonment.[8]

The most recent iteration of special courts is the Veterans Treatment Court (VTC).[9] Like juvenile courts and drug treatment courts, veterans courts are specialty tribunals. VTCs are deployed to adjudicate matters involving veterans suspected of criminal conduct who may have acted illegally, but whose physical, mental, and emotional ailments, caused or made worse by reason of military service, may warrant a court’s consideration of extenuating circumstances warranting rehabilitation.[10]

The first Veterans Treatment Court was created in Buffalo, New York in 2008 as “a hybrid drug and mental health court” to “serve[] veterans who are struggling with addiction and / or mental illness by diverting them from the traditional criminal justice system into a specialized veterans court.”[11] Today, jurisdictions throughout the U.S. including Nevada, Texas, California, Minnesota, and New Hampshire employ the Veterans Treatment Court concept.[12]

In this same spirit of supporting veterans, the military itself – specifically, the Army – recently stood up its own Veterans Treatment Court at Fort Hood, Texas.[13] Fort Hood is the second largest Army installation in the world, and outside its gates lives a substantial number of Army veterans who access the post and who could be subject to federal penalty for commission of crime therein.[14] The VETS Court was created so that veterans suspected of misdemeanor offenses on base “such as driving while intoxicated, various types of assaults, property crimes and theft crimes” may, at their own behest, apply for entry into the VETS program that “will work to divert veterans with service-connected mental health or substance abuse disorders out of the court system and into enduring treatment solutions.”[15] VETS “offer[s] community supervision and treatment provided by the Department of Veterans Affairs as a alternative to federal convictions,” and will also set up a mentor-based support group for veterans who suffer from mental health and/or drug abuse.[16]

The Army and Fort Hood’s VETS Court was created in cooperation with the VA and the Western District of Texas, namely Federal Magistrate Judge Jeffrey Manske and U.S attorney for the Western District of Texas, Richard Durbin Jr.[17] Though started just a few months ago, the Army and Fort Hood VETS Court’s efforts could set a precedential alternative on military bases, sending a message that veterans support services should exist in its hallways of justice, too.

The Army’s Judge Advocate General and top lawyer, Lieutenant General Flora Darpino proclaimed her appreciation to the Federal Magistrate Court Program and “Judge Advocates detailed as Special Assistant United States Attorneys” for their role in making possible “the preservation of justice and our commitment to military communities.”[18] The VETS Court, she added, is a “great example of innovation and partnership with local military communities to support our veterans.”[19]

According to the Army’s press release, more information on the Fort Hood VETS Court is available via the Fort Hood Magistrate Court and the Texas Veterans Commission Military Veteran Peer Network.[20]

[1] E.g., Veterans and Military Health, MedlinePlus.Com (last visited Jan. 24, 2016).

[2] See id.

[3] See, e.g., U.S. Dep’t of Veterans Affairs, VA’s Mission, (last visited Jan. 24, 2016).

[4] See Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010) citing Office of Justice Programs/Bureau of Justice Statistics, Veterans in State and Federal Prison, 2004, U.S. Dep’t of Justice, May 2007. (“The Justice Department’s most recent survey of prison inmates found that an estimated 60% of the 140,000 veterans in federal and state prisons were struggling with a substance use disorder, while approximately 25% reported being under the influence of drugs at the time of their offense.”)

[5] Id.

[6] 18 U.S.C. § 1382.

[7] See, e.g., The History of Juvenile Justice, American Bar Assoc.Org (last visited Jan. 24, 2016).

[8] See Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010)

[9] See id.

[10] Id.

[11] Buffalo Veterans Treatment Court, www.buffaloveterans (last visited Jan. 24, 2016).

[12] Office of Nat’l Drug Control Policy, Veterans Treatment Courts Fact Sheet (Dec. 2010)

[13] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, (Dec. 22, 2015),

[14] Debbie Stevenson, Who’s the biggest of them all? Fort Hood, Killeen Daily Herald (Nov. 14, 2004, 12:00 PM),

[15] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, (Dec. 22, 2015),

[16] Id.

[17] Id.

[18] Lieutenant General Flora D. Darpino, Facebook, (last visited Jan. 24, 2016).

[19] Id.

[20] Marcus Floyd, Veterans Court pilot program to start on Fort Hood, (Dec. 22, 2015),

Presidential Politics: Veterans, VA Reform, and the Campaign Trail

Written by 3rd year Law Student, Michael Collett

Presidential Politics:

Veterans, VA Reform, and the Campaign Trail


During the January 14, 2016, Republican presidential debate, Senator Ted Cruz (R- TX) stated “In any Republican primary, everyone is going to say they support the Second Amendment. Unless you are clinically insane, that’s what you say in a primary.”[1] Putting the Second Amendment issue aside, Senator Cruz could have made the exact same statement about Veterans Affairs [VA] issues. Few, if any, political issues are as universally embraced by both the Democrats and Republicans than VA reform and caring for military service members. To ignore this issue, or even worse, to actively campaign against VA reform would be, in the words of Senator Cruz, “clinically insane.”

If each presidential candidate campaigns on behalf of veterans and proposes VA reform, how are voters expected to differentiate between the candidates on this single issue? The following summaries (or lack thereof) are not intended to endorse any particular candidate, but rather to highlight the different methods by which presidential candidates seek to gain votes, and more importantly, assist veterans.

Jeb Bush. Bush unveiled his VA reform plan with “options for care outside the department without cutting funding for VA hospitals and medical staff.”[2] Bush claimed that money needed for such reforms would be appropriated though “cutting excess administrators (not caregivers)”[3] and by reducing “billions of dollars in waste, fraud, and abuse.”[4] This approach would include “more competitive bidding for department contracts and firing poorly performing employees.”[5] Bush expanded his proposal, stating “[a]mple resources exist within the VA budget to improve the quality and scope of care…In other government agencies, common-sense reforms have saved billions. The VA must get its house in order and send savings into improving veteran choice and veteran care.”[6]

Donald Trump. Trump outlined his VA reform plan with: “[t]he guiding principle of the Trump plan is ensuring veterans have convenient access to the best quality care.”[7] Trump makes several proposals, to include a provision that “all veterans eligible for VA health care can bring their veteran’s ID card to any doctor or care facility that accepts Medicare.”[8] Similar to Bush, Trump wants to fire any corrupt and incompetent VA executives while ending waste, fraud, and abuse.[9] Additionally, Trump plans to increase funding for post-traumatic stress disorder, traumatic brain injury, suicide prevention services, veteran job training and placement services, and veteran educational support and business loans.[10]

Hilary Clinton. In addressing VA reform, Clinton stated: “[VA] problems are serious, systemic and unacceptable…They need to be fixed, they need to be fixed now.”[11] However, Clinton took a hard stance against the Republican approach in offering privatized health care, “[a]s we work to improve the VA, I will fight as long and hard as it takes, to prevent Republicans from privatizing [VA health care]…Privatization is a betrayal, plain and simple, and I am not going to let it happen.”[12] Clinton proposes a fix to waitlist problems by combining medical evaluation boards from the Department of Defense and the VA.[13] Additionally, Clinton believes that the backlog of claims can be solved by approving overtime within the VA.[14] While Clinton does not support complete VA privatization, she would endorse a degree of coordination between the VA and insurance providers, allowing some degree privatized healthcare “when it makes sense to do so…[or]…when the VA cannot provide timely access to necessary care.”[15] Like Trump, Clinton plans to solve veteran issues outside of VA healthcare, in particular, an increase in funding for veteran homelessness and expanding the post-9/11 GI bill benefits to veterans and their families.[16]

Bernie Sanders. Clinton’s biggest rival, Sanders, may have the most VA experience of any candidate, as he served as the former Chairman and current member of the Senate Veterans’ Affairs Committee.[17] Through his position, Sanders passed the bipartisan Veterans Access, Choice and Accountability Act.[18] Sanders campaigns on five major points:

  1. Fully fund and expand the VA so that every veteran gets the care that he or she has earned and deserves.
  2. Substantially improve the processing of Veterans’ claims for compensation.
  3. Expand the VA’s Caregiver Program.
  4. Expand mental health service for Veterans.
  5. Make comprehensive dental care available to all Veterans at the VA.[19]

Presumably, Sanders’ plan would continue to expand on the Veterans Access, Choice and Accountability Act, through bipartisan support.

Although Republicans and Democrats may differ in their approach to privatizing (all or some) of VA healthcare, each of the candidates, to include those not listed above, agree that the current status quo cannot remain. Issues such as backlogged claims, appellate decision delays, and poor healthcare treatment threaten the welfare of generations of proud and patriotic veterans. As voters prepare for upcoming primary and general elections, veterans affairs should be one of the issues they consider when exercising their right to vote.

[1] William Saletan, Gun Nuts, Slate (January 15, 2016, 11:30AM),

[2] Leo Shane III, Jeb Bush unveils VA reform plan for presidential bid, Military Times (January 14, 2016, 1:15PM),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Veterans Administration Reforms That Will Make America Great Again, Donald J. Trump for President, Inc.,

[8] Id.

[9] Id.

[10] Id.

[11] Dan Merica, Hilary Clinton rolls out plan to reform VA, CNN (November 10, 2015, 6:37PM),

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Caring for our Veterans, Bernie 2016,

[18] Id. (“The law written by Sanders strengthens the VA health care system by authorizing 27 new medical facilities and by providing $5 billion to hire more doctors and nurses to care for the surging number of veterans returning from wars in Iraq and Afghanistan. It provides incentives to attract young doctors to the VA. It makes it easier for some veterans to see private doctors or go to community health centers, Department of Defense facilities or Indian Health Centers. It expanded VA educational benefits and improved care for survivors of sexual trauma while serving in the military.”)

[19] Id.

Veterans Turn to Meditation alongside Medication to Ease PTSD Symptoms

Written by William & Mary Law Student Leonard Simmons

With over 500,000 veterans receiving disability compensation for post-traumatic stress disorder (PTSD), it is no surprise that the United States Department of Veterans Affairs has extended its curative focus into areas outside of traditional medicine.[1] Of special note, the Veterans Affairs website now features information on the “clinical utility of mindfulness for treatment following trauma.”[2] However it is labeled, the message is clear: mindfulness and meditation practices have been shown to reduce the severity of PTSD in combat veterans.[3]

Most of the clinical trials on PTSD and mindfulness have involved researchers recruiting a small group of veterans, half of whom are introduced to mindfulness practices while the remaining group is taught relaxation or coping strategies. In one group of veterans who were exposed to eight separate 2.5 hour meditation sessions and one day-long retreat, 49% reported “a dramatic reduction in PTSD symptoms”, compared to 28% of those in the control group.[4] Another study of sixty Marine reservists in the midst of pre-deployment training found that the participants practicing focused breathing meditation “reported significantly lower levels of stress and anxiety.” The same study found that the practice increased the soldiers’ working memory and capacity to retain new information.[5] Yet another study focused on empirical measurements rather than self-reports, and found that twenty-one Iraq and Afghanistan veterans who participated in a breathing-based yoga practice experienced notable reductions in “eye-blink responses to loud noises” and respiration rates.[6]

Despite the mounting evidence gaining recognition from the Department of Veterans Affairs, very few VA medical centers offer mindfulness as a treatment option. Some locations such as Washington D.C.’s Walter Reed Medical Center offer a program called iRest, an hour-long meditation program designed specifically for service members and veterans with mental trauma.[7] The regiment is so successful that some veterans travel up to two hours each week to participate.[8]

Most meditation practices call for individuals to begin with a basic breathing exercise. This exercise first calls for participants to find a comfortable and relaxed seated position. Next, the individual breathes normally, paying special attention to the sensation of the breath from the abdomen to the nose or mouth. As thoughts arise, the individual non-judgmentally allows them to pass, bringing focus back to the breath. Veterans have reported substantial benefits coming from this practice, even when undertaken for only fifteen or twenty minutes each day.[9]

According to the Veterans Affairs website, mindfulness assists individuals with allowing thoughts and feelings to pass by without labeling them as “good” or “bad” or prompting impulsive actions.[10] The site also notes that mindfulness therapies can focus coping with stresses in daily living, chronic pain, negative thinking patterns, and drug abuse.[11]

[1] See David Wood, Veterans Find Comfort in Meditation Therapy, Huffington Post (Feb. 20, 2015, 10:23 AM),

[2] Potential of Mindfulness in Treating Trauma Reactions, U.S. Department of Veterans Affairs (Aug. 17, 2015),

[3] See id.

[4] Lisa Rapaport, Mindfulness-based therapy eases veterans’ PTSD symptoms, Reuters (Aug. 4, 2015, 5:03 PM),

[5] David Kohn, Mindfulness and meditation training could ease PTSD symptoms, researchers say, The Washington Post (Feb. 18, 2013),

[6] Clifton B. Parker, Stanford scholar helps veterans recover from war trauma, Stanford (Sep. 5, 2014),

[7] Wood, supra note 1. Those seeking further information on iRest can contact the Integrative Restoration Institute at

[8] See id.

[9] See Kohn, supra note 5.

[10] See Mindfulness Practice in the Treatment of Traumatic Stress, U.S. Department of Veterans Affairs (Aug. 14, 2015),

[11] See id.

Vote Online to Support William & Mary Law School’s Veterans Benefits Clinic!

The innovative Military Mondays program created by William & Mary Law School’s Lewis B. Puller, Jr. Veterans Benefits Clinic and Starbucks Armed Services Network has been selected as a nominee for the ABA’s Louis Brown Award for Legal Access. The “Brown Select” recognition will be given to the nominee that receives the most online votes from the general public by noon (central time) on Friday, January 8. Read about it here and CAST YOUR VOTE for the “Brown Select” honor!–starbucks-military-mondays-vote-online-innovation-honor.php


2015 in review

The stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 10,000 times in 2015. If it were a concert at Sydney Opera House, it would take about 4 sold-out performances for that many people to see it.

Click here to see the complete report.

Virginia Accomplishes White House Challenge for Veteran Homelessness, Despite Slumping National Progress

Written by William & Mary Law Student Joshua Rice

As noted in the November 30 blog post, homelessness among veterans is perhaps one of the most dire issues affecting our nation’s heroes. However, with care, effort, and funding, the United States is moving ever closer to solving the problem. In fact, Virginia is ahead of the curve, functionally solving its veterans’ homelessness issues well ahead of the federal benchmark.

Homelessness among veterans is a troubling issue, one that deserves the attention it commands, and probably demands more. However, more than attention, the problem deserves action. Thankfully, in the past few years, between the 25 Cities Initiative and The Mayors Challenge, both promulgated by the VA and or the U.S. Department of Housing and Urban Development (HUD), homelessness in veterans has decreased at least by 33% since 2010.[1] When observing the homeless numbers since 2010, the situation may seem bright, or even under control, steadily heading toward the lofty goal to end homelessness among veterans. However, the problem is actually more salient than the numbers suggest. Progress has slowed considerably since 2014, and the goal to end homelessness by 2015 seems unreachable at this point.[2] Between 2013 and 2014, the United States saw an estimated 5,846 homeless veterans find a place to live, which amounts to eleven percent.[3] Obviously, critics may point to the slow rates of change as an issue the VA and HUD need to address, but there is good news in the meantime. Despite any criticism, Virginia has eliminated homelessness in its veteran population, based on national guidelines. Therefore, there is hope for increased national progress, and states may look to Virginia for guidance on how to accomplish such

Just this week, Virginia announced that it had ended homelessness in its veteran population, beating the deadline of the year’s end. Following in line, cities such as New Orleans and Houston have also found complete solutions to their veterans’ homelessness issues.[4] Though these successes fall short of the aforementioned national goal, they are an encouraging step forward. Most importantly, they offer something in the way of guidance for other states and cities to help solve their respective homelessness crises. Through careful administration and planning, it appears that while the end of 2015 may no longer be a realistic deadline on which the United States seeks to end homelessness among veterans, the overarching goal is still attainable. States and cities seeking to reduce homelessness among veterans are lucky, as they may now look to Virginia and other example locations for guidance on how to proceed.

In the past year, Virginia has housed over one thousand homeless veterans, in cooperation with the United States Interagency Council on Homelessness, the HUD, and the VA.[5] Homeless veterans in Norfolk are, on average, able to “find housing and other solutions” in almost half the time that the Council on Homelessness set as a standard. Specifically, Virginia may now boast that it has “functionally ended” homelessness in its veteran population.[6] This announcement means all veterans who were offered housing and did not decline are no longer homeless.[7] While critics may point out that there is still technically a population of homeless veterans in Virginia, the simple truth is that those specific veterans pose an issue the current administration cannot solve with current policy. Virginia’s government has anticipated such a response, and has offered the following statement:

[A]ny veteran who becomes homeless will move into permanent housing within an average of 90 days of connecting with a community based homelessness response system that includes supportive services that can assist in sustaining the veteran’s housing.[8]

Additionally, states will now have access to millions of dollars in federal funding for these programs.[9] On November 10, the HUD and VA announced a massive fund of over ten million dollars, all available to almost eighty agencies assisting homeless veterans, across many states. This new influx of money may be exactly what the VA and HUD need to approach the goal of ending homelessness among veterans. The new monetary initiative may be what ends the recent slowness in progress. Between Virginia finding a solution, and new money available for states to put toward their veterans, the government seems to have reoriented their path to ending homelessness on a more stable road.

[1] U.S. Department of Housing and Urban Development, HUD, VA, AND USICH ANNOUNCE 33% DROP IN VETERAN HOMELESSNESS SINCE 2010, August 26, 2014,

[2] Leo Shane III, Military Times,

[3] U.S. Department of Housing and Urban Development, The 2014 Annual Homeless

Assessment Report (AHAR) to Congress, October 2014, at 1

[4] Bryce Covert, This State Just Became The First To House All Its Homeless Veterans, November 12, 2015,

[5] Associated Press and 13News Now Staff, Virginia helped 1,400 homeless veterans in past year, November, 11, 2015,

[6] Virginia Office of the Governor, Virginia is the First State in the Nation to Functionally End Veteran Homelessness, November 11, 2015,

[7] Eleanor Goldberg, Virginia Is First State To ‘Functionally’ End Veteran Homelessness, November 20, 2015,

[8] See Homeward VA, Frequently Asked Questions, November 11, 2015 at 2.


A Conceptual Difference Between SSA Disability and VA Disability: What Veterans Should Consider Before Filing Social Security Disability Compensation Claims

The Federal Government is a huge place, with a wide range of regulatory authority. Think about agriculture, transportation safety, education policy, or energy regulation. Matters involving such areas, much like veterans benefits and social security insurance matters, are enforced by different executive and independent agencies.[1] By and large, each agency covers its own area. Sometimes, however, matters overlap. For example, imagine a twenty-eight year old armed services veteran that developed severe PTSD resulting from her service. Maintaining gainful employment is difficult for her. Indeed, coping with ordinary, on-the-job, tasks is nearly impossible. She sincerely believes that, as a result of her condition, she is unable to support herself financially.   Now, imagine that she’s right.[2] Would the Veterans Administration (“VA”) agree? Would the Social Security Administration (“SSA”)? Suppose the VA does agree. Then, shouldn’t SSA agree as well? Not necessarily.

Many veterans are discovering—unfortunately, the hard way—that SSA examiners follow a different disability compensation review standard than the VA does. This short post is intended to raise awareness about that SSA standard by sharing two observations pertaining to SSA disability law. My hope is that veteran SSA disability (“SSA-D”) claimants—especially those that are unfamiliar with the SSA—read this post, and are inspired to conduct further individual research, or to seek legal advice before submitting their SSA-D claim(s).

Although several differences exist between the SSA and VA review standards, I decided to highlight the following two. I do this because I believe they represent much of where the confusion arises among veteran SSA claimants that are surprised by their denial of SSA-D benefits:

(1) Same Words, Different Meaning “Disabled” is an agency-specific term of art. Therefore, SSA and VA examiners must interpret the term differently, as provided by their respective, governing regulations.[3]

(2) “Disabled” Implies “Totally Disabled” Unlike VA, partial disability ratings do not exist for SSA-D. I will elaborate below; but the punchline is that SSA-D compensation is reserved for claimants (veteran or civilian) with ailments so debilitating that they are confirmed unable to obtain employment sufficient to support themselves financially.

It’s helpful to consider both parts together. Collectively, they suggest that a well-developed, or even previously successful, VA disability claims may not convince an SSA review board that a veteran claimant is eligible for SSA-D benefits. In other words, claim development strategies for VA claims are not necessarily interchangeable for SSA-D claims. Why? Because the entire concept of disability is treated differently by both agencies.

At VA, a distinction is carefully drawn among the varying degrees of “disabled”[4] and “totally disabled”[5] status. The threshold question that VA claim examiners ask, following a proper showing of service-connection, is “which disability rating does the evidence suggest is proper? Is the veteran 10% disabled? 30%? 50%, etc.?” This inquiry is a reflection that VA recognizes partial, or non-total, disabilities as compensable (if service-connected). At SSA, however, benefits are only compensable for total disability. This means that at SSA, the disability determination significantly narrows and focuses on a claimant’s inability to work as a result of total disability. The following questions are routine:

Can claimant perform the work she did before becoming disabled?

If yes, then, despite her symptomatology, she is not “disabled” and her claim should be denied.[6]

Is she unable to adjust to comparable work because of her medical condition?

If yes, claim denial should occur.[7]

How long will the medical condition impair her ability to work?

If shorter than one year, and unlikely to result in death, claim denial should occur.[8]

If these questions remind you of the VA’s total disability/individual unemployability (TDIU) standard, than your intuition is spot on. That is because both disability review standards evaluate total disabilities bearing on unemployability. That said, one approach to developing responsive SSA-D claims involves making a slight mental shift. Consider total disability, and only total disability. Try to place the notion of a graduated disability rating scale (like rungs on a ladder) out of your mind. Veterans able to evaluate their SSA-D claim(s) in such a way are that much closer to the mindset of an SSA-D examiner. My highest recommendation is to consult a social security benefits attorney or your local legal aid office for assistance. Doing so before submitting an initial SSA-D claim is the safest bet.

[1] See Office of Information & Regulatory Affairs’ entire list of administrative agencies, available at

[2] “Right” meaning that she gathered medical evidence suggesting that her condition was indeed as severe as she believed.

[3] Compare 20 C.F.R. Chapter III (SSA), and 38 C.F.R. Chapter I.

[4] See e.g. 38 C.F.R. § 4.71(a).

[5] See 38 C.F.R. § 4.15.

[6] See 20 C.F.R. § 404.1560(b).

[7] See 20 C.F.R. § 404.1520(h).

[8] See 20 C.F.R. §§ 404.1560(b), 404.1520(e), and 404.1545.

Study Shows Strong Correlation between PTSD and Sleep Apnea

Written by William & Mary Law student Chris Capurso


For those of us who work with veterans regarding their disability claims, sleep apnea is not an unusual claim to come across. Sleep apnea—and more specifically obstructive sleep apnea (OSA)—is a blockage of the airway that causes a person to stop breathing while sleeping. For someone with even moderate sleep apnea, these pauses in breathing can occur over 15 times an hour on average.[1] In order to remove the blockage from the airway, those who suffer from sleep apnea are prescribed a continuous positive airway pressure (CPAP) device.

For veterans, this disorder may be one of the highest ratings they can get from the Department of Veterans Affairs (VA), and veterans and their representatives are taking notice. From 2009 to 2014, claims for sleep apnea increased nearly 150 percent.[2] Further, 9 of 10 veterans who receive compensation are rated at 50 percent[3] when they are also prescribed the use of a CPAP machine.[4] Sleep apnea  leads to an increased risk of high blood pressure, high cholesterol, diabetes, and stroke.[5] However, a new study shows that sleep apnea may be itself the result of a dangerous disease.

In May of 2015, the Journal of Clinical Sleep Medicine released the findings of a study that it conducted with veterans.[6] The study centered on 195 Iraq and Afghanistan veterans who were evaluated at VA outpatient PTSD clinics to determine whether there was a link between PTSD and sleep apnea.[7] The results were eye-opening: 69.2 percent of the veterans evaluated had a high risk of sleep apnea, and every clinically significant increase in PTSD symptom severity brought with it a 40 percent increase in the probability of screening as high risk for sleep apnea.[8]

In response to these findings, it would be advisable for veterans with PTSD to be screened for sleep apnea.[9] Getting checked out and possibly being diagnosed with sleep apnea may even help to alleviate some of the issues veterans with PTSD face. Common symptoms of sleep apnea include excessive daytime sleepiness, morning headaches, and impaired emotional and mental functioning.[10] The effects of PTSD are obviously not completely remedied through  better sleep, but improved sleep may remove at least some roadblocks for a veteran coping with PTSD.

This study can also be useful to veterans who are having difficulty proving their PTSD claim. Certain symptoms of PTSD overlap with sleep apnea, including impaired emotional and mental functioning. A veteran struggling to prove PTSD should see a sleep specialist to determine if their symptoms may overlap and be indicative of both PTSD and sleep apnea, or one or the other. Knowing the strong correlation between PTSD and sleep apnea should encourage veterans to seek evaluation if they are having difficulty sleeping; they may find they are suffering from another serious problem they may not have even known they have; sleep apnea is a serious problem that can have mortal consequences later in life.

[1] Getting a Diagnosis, American Sleep Apnea Association, (last visited November 7, 2015).

[2] Tom Vanden Brook, Veterans’ claims for sleep apnea soar, USA Today (May 21, 2014, 2:05 AM),

[3] Id.

[4] 38 C.F.R. § 4.97 (2006).

[5] Mitchell Miglis, What Untreated Sleep Apnea Means for Your Blood Pressure, Huffington Post (July 25, 2013, 8:16 AM),

[6] American Academy of Sleep Medicine, High risk of sleep apnea in young veterans with PTSD, ScienceDaily (May 19, 2015),

[7] Id.

[8] Id.

[9] Id.

[10] Harvey Simon, Obstructive sleep apnea, Univ. Md. Med. Ctr. (Sept. 19, 2012),

Achieving Justice for Veterans with PSTD and “Bad Paper”: Some Progress but a Long Way to Go

Written by William & Mary student Maddie Krezowski

“Bad conduct,” “other than honorable,” and “dishonorable” discharges—that is, discharges that are less than fully honorable—are often called “bad paper.” Bad paper can have a lifetime of consequences for impacted veterans. Veterans with bad paper may be ineligible for many of the benefits usually available to veterans, including educational assistance, employment services, disability compensation, memorial and burial services, and healthcare.[1] In some cases, bad paper can create difficulties in gaining employment and often carry stigma and shame. This outcome is particularly unjust when the misconduct that lead to the discharge was caused by one or more symptom of PTSD caused by trauma experienced in the veteran’s time in service. Until recently, veterans who were discharged with bad paper due to misconduct that was a symptom of their PTSD fared poorly before the Boards for the Correction of Military Records (BCMRs) in getting their discharge status corrected.

On November 2, 2015, Vietnam Veterans of America (VVA) and the National Veterans Council for Legal Redress released a report[2] written by students of Yale’s Veterans Legal Services Clinic investigating the impact of Defense Secretary Hagel’s September 2014 memorandum to give “liberal consideration” to petitions for discharge upgrades related to PTSD symptoms.[3] The report showed a twelve-fold increase in the rate of discharge upgrades granted from the Army Board for the Correction of Military Records (ABCMR) for PTSD-based discharge upgrade applications.[4] The Navy and Air Force failed to respond to Freedom of Information Act requests and court orders for data.[5] In the year following the issuance of the memorandum, 45 percent of PTSD-based claims before the Army Board were successful.[6] In contrast, between 1998 and 2013 the Army Board granted only 3.7 percent of applications for discharge upgrades due to PTSD.[7]

Although the increase in corrections is promising, the investigation showed that only about 200 veterans out of potentially tens of thousands of eligible veterans had even applied for an upgrade.[8] None of the service branches have performed meaningful outreach to veterans who could potentially benefit from the new policy.[9] A further issue that the report identifies is that out of the applications that did apply, only applications with a medical diagnosis of PTSD were granted.[10] This means that a veteran who suffers from undiagnosed PTSD and is ineligible for VA healthcare benefits due to their discharge status and unable to afford medical care to get a diagnosis will be unlikely to get a discharge upgrade. This issue touches veterans across generations.

The issue of bad paper due to PTSD symptoms has been especially salient for Vietnam veterans, because PTSD was not recognized as a medical diagnoses until 1980, fully five years after the end of the Vietnam War.[11] During and after the Vietnam War, roughly 260,000 Vietnam veterans were discharged with bad paper.[12] How many of these discharges were caused by symptoms of PTSD is unknown. The number, however, is likely to be sizeable because the VA has estimated that about 30 percent of Vietnam veterans have had PTSD in their lifetime[13] and studies have shown that troops with TBI and PTSD are twice as likely to be kicked out of the military for misconduct.[14] In fact, 67 percent of applications for discharge upgrades since the Hagel memorandum were from Vietnam veterans.[15]

The majority of applications may be from Vietnam veterans, but the issue is likely to be one that the military and BCMRs will have to deal with long into the future. The VA’s National Center for PTSD estimates that about 11 to 20 percent of veterans of Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF) have PTSD in any given year.[16] In a Pulitzer Prize winning investigation, The Gazette reported that between 2006 and 2013, 76,000 soldiers were kicked out of the Army for misconduct; some for offenses that the Army acknowledges may have been symptoms of TBI or PTSD.[17] The 25 percent rise in misconduct discharges mirrored the rise in the wounded.[18] Moreover, media reports have raised concerns that congressionally mandated PTSD screenings are often perfunctory and that screeners may be unduly influenced by commanding officers simply wanting to discharge wounded soldiers to get rid of the issues they bring , rather than wait for the soldiers to be discharged through the lengthy medical discharge process.[19] The pressure to push these service members out through the shorter processes available for solider misconduct is only going to grow with the troop drawdown. The Army is planning to cut its force by 40,000 troops in the next three years.[20] Because of this claims of inequity and error in PTSD related discharge upgrade applications are likely to be ongoing for BCMRs.

The work Yale’s Veterans Legal Services Clinic has done and attention they have brought to this issue is laudatory. The low number of applications and issues raised by the report, however, show that continued and concerted efforts on this issue are needed from organizations serving veterans now and into the future to make sure that veterans who served our country get the care and benefits they earned. BCMRs are changing how they review applications based on PTSD and applicants are starting to see at least some success. Veterans organizations should continue to push the Navy and Air Force to release their data and in the meantime use the decisions released from the Army Board over this past year to analyze what makes a successful application. But perhaps the most important next step is to get the word out to eligible veterans to apply.


[1]See Umar Moulta-Ali & Sidath Viranga Panangala, Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility, Cong. Res. Serv. 2 (2015).

[2] See Sundiata Sidibe & Francisco Unger, Unfinished Business: Correcting “Bad Paper” for Veterans with PTSD (2015).

[3] Memorandum from Chuck Hagel, Sec’y of Def., to Secretaries of the Military Dep’ts (Sept. 3. 2014).

[4] See Sibide & Unger, supra note 2, at 2.

[5] See id. at 6-7.

[6] See id. at 2.

[7] See id.

[8] See id.

[9] See id. at 8-9.

[10] See id. at 5.

[11] See Rebecca Izzo, In Need of Correction: How the Army Board for Correction of Military Records is Failing Veterans with PTSD, 123 Yale L.J. 1587, 1593 (2014).

[12] See Sibide & Unger, supra note 2, at 3.

[13] See PTSD: National Center for PTSD, How Common is PTSD?, U.S. Dep’t for Veterans Affairs, (2015),

[14] See Dave Philipps, Disposable: Surge in Discharges Includes Wounded Soldiers, The Gazette, May 19, 2013, http://cdn.csgazette.bix/soldiers/day1.html.

[15] See Sibide & Unger, supra note 2, at 2.

[16] See PTSD: National Center for PTSD, How Common is PTSD?, U.S. Dep’t for Veterans Affairs, (2015),

[17] See Philipps, supra note 14.

[18] See id.

[19] See Dave Philipps, Pattern of Misconduct: Psychological Screenings Prompt Call for More Reforms, The Gazette, October 7, 2013,

[20] See C. Todd Lopez, Army to Realign Brigades, Cut 40,000 Soliders, 17,000 Civilians, Army News Service, July 9, 2015,

Traumatic Brain Injury: The Current Conflict “Signature Injury” with Silent Complications

Traumatic Brain Injury (“TBI”) is one of the most commonly occurring injuries found in veterans serving in today’s American military. In fact, health researchers are labeling TBI as the “signature wound” of Operation Enduring Freedom (“OEF”) and Operation Iraqi Freedom (“OIF”).[1] With the advancements in warfare technology including IEDs, Kevlar body armor, and life-saving medical innovations, TBI will likely continue to climb as the prevalent injury sustained by many current conflict service-members seeking compensation from the Department of Veterans Affairs (“VA”).

However, TBI is not unique to veterans. The Brain Injury Association of America classifies TBI as “an alteration in brain function, or other evidence of brain pathology, caused by an external force.”[2] Comparatively, the VA defines TBI as “any traumatically induced structural injury and/or physiological disruption of brain function as a result of an external force. . .” which manifests itself through specified symptoms like loss of consciousness, memory, alteration in mental state, neurological deficits, or intracranial lesions.[3] TBI can result from falls, traffic accidents, or any situation in which the head strikes a foreign object.[4] For veterans, these external forces can come from anywhere including surviving an IED blast, or simply bumping their heads on the roof of the Humvee while navigating impossible terrain. Within the United States population, over 1.7 million people experience an event leading to a TBI each year,[5] but of those 1.7 million, the number of veterans living with TBI is unknown.[6] However, it is estimated in 2011 alone, over 32,000 service-members sustained some form of TBI, diagnosed or not.[7]

The reason for this uncertainty rests with the TBI diagnosis: TBI symptoms manifest in unique ways making the injury difficult to diagnose consistently. Symptoms include headaches, sensitivity to light, insomnia, disturbances in attention, memory, or language, and mood changes including depression, anxiety, impulsiveness, and emotional outbursts.[8] Some of these symptoms even overlap with other mental infirmities like post-traumatic stress disorder, causing further confusion in diagnosis.[9]

Diagnosis is not the only complication related to TBIs. Despite the sometimes-crippling symptoms, which can lead to full-fledged personality changes, TBIs have positive causal links to suicide. Additionally, due to the impairment in brain function, TBI patients struggling through physical and psychological symptoms typically find recovery difficult.[10] For many veterans, their TBI is not the only injury sustained during service; many veterans lose sight, hearing, or physical functioning of limbs in addition to head trauma. The brain injury’s effects on mood and cognitive functioning complicate TBI rehabilitation.[11] As Dr. Louis French, a neuropsychologist working as the clinical director of the Defense and Veterans Brain Injury Center noted, “[i]f you’re trying to do blind rehab and you’re relying on auditory memory . . . your auditory memory had better be intact.”[12]

Despite overcoming the emotional struggle associated with TBI symptoms, patients are also at increased risk to develop a brain disease known as Chronic Traumatic Encephalopathy (“CTE”).[13] This disease is particularly alarming because to date, it can only be definitively diagnosed after death.[14] CTE has recently garnered attention from researchers due to its association with professional football players sustaining repeated head injuries during their careers.[15] Notable NFL players posthumously diagnosed with CTE include Javon Belcher, of the Kansas City Chiefs, who tragically shot and killed his girlfriend just hours before committing suicide in the Chiefs’ practice facility in front of team officials in December 2012.[16] Dave Duerson, of the Chicago Bears, committed suicide in 2011 by shooting himself in the chest “reportedly to preserve his brain for examination.”[17] Junior Seau, of the San Diego Chargers, was also diagnosed with CTE following his suicide in 2012.[18]

Researchers with the Department of Veterans Affairs have conducted studies on deceased football players, including those mentioned above. These studies identified CTE in 96 percent of NFL players posthumously tested and 79 percent of football players overall.[19] Researchers believe CTE is caused by repetitive head trauma, which causes abnormal proteins called “tau” to build up inside the brain.[20] Tau forms tangles around blood vessels in the brain, strangling and killing the nerve cells.[21] As these nerve cells die, the brain begins to deteriorate and lose function; as a result, the individual begins to experience symptoms of mood disorders, intermittent rage, confusion, memory loss and even advanced dementia.[22]

Researchers have found that veterans experiencing only one single head trauma, like an IED blast, also develop CTE resulting from TBI.[23] The brain can be damaged so extensively by a single IED blast because service-members experience both the initial shock of the blast, as well as the secondary “blast wind.”[24] A blast wind occurs when the enormous volume of displaced air following the explosion floods back at a high pressure to the point of origin, sometimes at speeds twice as high as a category 5 hurricane.[25] Compared to the immensely pressurized wind forces, military helmets provide little protection.[26] Even though the service-member may only experience one incident of head trauma leading to a TBI, this is sufficient to significantly increase his risk for developing CTE.

For victims of CTE, there is hope. Researchers at UCLA have begun conducting successful studies with both veterans and football players to identify tau protein buildup during life.[27] Researchers have injected study participants with radioactive “tracers” which latch onto tau and light up during PET scans.[28] Dr. Julian Bailes, one of the researchers leading this study in conjunction with UCLA and the co-director of the NorthShore Neurological Institute, notes that being able to diagnose CTE in “living people is paramount to being able to help them, treat them, and to find some way to keep them out of progressing into a terminal problem.”[29]

TBI and CTE should be of growing concern to the VA in coming years. With more than 30,000 service members suffering from TBI in any given year, the estimated economic cost of care could reach over $76.5 billion.[30] Studies have even estimated the total lifetime cost of severe TBIs sustained in OIF veterans alone will be $16 billion.[31] This is well over the $1 billion approved by the 2014 Veteran’s Access, Choice, and Accountability Act passed to improve VA healthcare.[32]

Because TBI is the “signature” injury for veterans returning from the current conflicts, the VA will need to look ahead to prioritize resources in order to care for service-members developing these injuries. The veterans afflicted by these injuries are younger, their recovery is made more difficult due to their damaged coping abilities, and for diseases like CTE there is no cure. TBIs have severe long-term health and socio-economic consequences.[33] Prevention is the only sure-fire treatment; Dr. Bailes notes that without a “concussion pill” we have to take the individuals out of harm’s way to “allow[] the brain to heal.”[34] Due to repeated deployments with little time for recovery between them, such healing time is increasingly rare. Part of that healing also includes providing correct diagnosis and support for TBI patients. For many veterans, it matters a great deal that their symptoms “are the result of a brain injury, instead of the inability to cope with the emotional fallout of trauma.”[35] The more successful VA health care providers can be in properly diagnosing and providing an appropriate course of rehabilitation for TBI victims, the more successful veterans with this signature injury will be in functioning in civilian life.

[1] Erin Bagalman, Traumatic Brain Injury Among Veterans, Congressional Research Service, 1 (Jan. 4, 2013).

[2] Brain Injury Association of America, “BIAA Adopts New TBI Definition,” press release, February 6, 2011,

[3] Traumatic Brain Injury, Veterans Health Initiative, Dept. of Veterans Affairs, 5 (April 2010),

[4] Erin Bagalman, Traumatic Brain Injury Among Veterans, Congressional Research Service, 2 (Jan. 4, 2013).

[5] Id. at 2.

[6] Id. at 4.

[7] Traumatic Brain Injury: Lessons Learned from Our Nations Athletes and Military, Univ. of Missouri, School of Law, Nov. 11, 2015,

[8] Susan Okie, Traumatic Brain Injury in the War Zone, 352;20 N. Engl. J. Med. 2045-46 (2005).

[9] Okie – pg. 2046

[10] Id. at 2046.

[11] Id.

[12] Id.

[13] Jason M. Breslow, 76 of 79 Deceased NFL Players Found to Have Brain Disease, Frontline, Sept. 20, 2014,

[14] Id.

[15] Jason M. Breslow, New: 87 Deceased NFL Players Test Positive for Brain Disease, Frontline, Sept. 18, 2015,

[16] Jason M. Breslow, 76 of 79 Deceased NFL Players Found to Have Brain Disease, Frontline, Sept. 20, 2014,

[17] Id.

[18] Id.

[19] Jason M. Breslow, New: 87 Deceased NFL Players Test Positive for Brain Disease, Frontline, Sept. 18, 2015,

[20] Jason M. Breslow, New: 87 Deceased NFL Players Test Positive for Brain Disease, Frontline, Sept. 18, 2015,; see also Ann C. McKee, et. al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy following Repetitive Head Injury, 68(7) J. Neuropathology & Experimental Neurology (July 2009),

[21] Ann C. McKee, et. al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy following Repetitive Head Injury, 68(7) J. Neuropathology & Experimental Neurology (July 2009),

[22] Jason M. Breslow, New: 87 Deceased NFL Players Test Positive for Brain Disease, Frontline, Sept. 18, 2015,; see also Ann C. McKee, et. al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy following Repetitive Head Injury, 68(7) J. Neuropathology & Experimental Neurology (July 2009),

[23] Larry Greenemeier, Self-Worth Shattering: A Single Bomb Blast Can Saddle Soldiers with Debilitating Brain Trauma, Scientific American, May 16, 2012,; see also Lee E. Goldstein, et. al., Chronic Traumatic Encephalopathy in Blast-Exposed Military Veterans and a Blast Neurotrauma Mouse Model, 4 (134) Science Translational Medicine (2012),

[24] Larry Greenemeier, Self-Worth Shattering: A Single Bomb Blast Can Saddle Soldiers with Debilitating Brain Trauma, Scientific American, May 16, 2012,

[25] Id.

[26] Id.

[27] Sandee LaMotte, Could veterans have concussion-related CTE?, CNN, April 14, 2015,

[28] Id.

[29] Id.

[30] Traumatic Brain Injury: Lessons Learned from Our Nations Athletes and Military, Univ. of Missouri, School of Law, Nov. 11, 2015,

[31] Id.

[32] Id.

[33] Id.

[34] Sandee LaMotte, Could veterans have concussion-related CTE?, CNN, April 14, 2015,

[35] Id.

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