4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

Evan Seamone, PhD, a former major in the Army, served as a legal and policy advisor to the national Veterans Justice Commission until his death on July 25, 2023. When he died, he was just completing a project researching why the Department of Veterans Affairs, VA, does not provide much-needed medical and psychological care to incarcerated veterans.

Essentially, ignoring decades of history where health care was provided to veterans behind bars, the VA enacted a regulation prohibiting VA medical care for veterans in jails and prisons in 1999. And it did so in an arguably devious way.

This article will look at what Dr. Seamone found. The full report can be found at: "Healing on the inside: A history of healthcare for incarcerated veterans." Council on Criminal Justice. https://counciloncj.org/healing-on-the-inside-a-history-of-healthcare-for-incarcerated-veterans/

After World War I

As early as 1922, newspaper editorial boards wrote that veterans suffering from shell shock [what we now call post-traumatic stress disorder or PTSD] were often not in a position to tell right from wrong. In 1923, a survey in Wisconsin indicated that more than one fifth of its incarcerated veterans "were made criminals by their war service." A New York survey found that every one of its 48 incarcerated veterans was suffering from shell shock.

The first director of the Veterans Bureau [what was later called the Veterans Administration and is now called the Department of Veterans Affairs or VA], Col. Charles Forbes, wrote: "Where we find beneficiaries in penitentiaries and jails, you must remember that there is nothing in the law to prevent them from having care, treatment and compensation." The second director oversaw pilot programs where VA physicians would be allowed to visit jailed veterans to consider the possibility of placing them in government hospitals.

After World War II

In 1948, Col. John N. Andrews, who worked at the VA, wrote that veterans benefits are not denied to a veteran serving a prison sentence. Further, Andrews said: "It had been Congress's view that what a veteran did after he got out of service shouldn't affect his right to veterans' benefits unless he was convicted of aiding and assisting the enemy. It felt that the benefits were rights earned before he got into trouble with civilian authorities; that any wrong-doing in civilian life shouldn't have any bearing on honorable military duty served previously." His rationale was that Congress had made it clear that benefits were earned prior to a veteran's legal involvement, and thus acts that occurred after military service could not change this compensation.

A 1951 survey of 11 prisons in the Midwest found that one-third of those incarcerated were veterans of World War II. In 1957, Congress suspended veteran pensions between the 61^st day, suspensions that continue today. The reasoning was that incarcerated veterans did not have living expenses during confinement. Despite limiting pensions, Congress left disability and medical benefits while incarcerated untouched.

Sentiments changed after Vietnam

By the late 1970s, more than a quarter of all people in United States prisons had served in the military, constituting between 58,000 and 125,000 veterans. Most thought they lost all their veteran benefits due to their incarceration.

In a 1978 memo, President Jimmy Carter mandated the identification and publication of the incarceration rate for veterans and reminded Congress that incarcerated veterans were entitled to education, health, employment and other benefits from the federal government.

Congress held hearings in 1979. Witnesses provided evidence that VA hospitals were not meeting the unique needs of Vietnam veterans, whose mental health issues and substance abuse conditions were poorly understood in earlier eras. Witnesses also described the many difficulties with bringing VA doctors into prisons and jails, including logistical issues related to the far-flung locations of most correctional facilities, challenges with collaborating with wardens and other administrators, and concerns that pulling doctors into correctional facilities might result in delayed services for veterans seeking VA services in the community. 

Congress urged operators of the VA's newly formed community-based counseling centers, known as Vet Centers, to offer services to incarcerated veterans - specifically to those who had served in Vietnam. This call was heeded, and by 1993, approximately one third of all Vet Centers provided assistance inside correctional facilities.

Son of Sam

The public was outraged when it realized serial killer David Berkowitz was receiving Social Security disability payments while incarcerated. That resulted in extra scrutiny of all public benefits given to incarcerated persons, including veterans.

In 1986, Congress enacted a law stating that the VA was not obligated to provide health care to veterans who were under the supervision of another government agency that had a duty to furnish health care. 38 U.S.C. § 1710(h) Jails and prisons have a duty to furnish health care to inmates.

Congress gave the VA a choice, and the VA chose to deny health care to incarcerated veterans

The 1986 statute did not function as a prohibition on providing health care to incarcerated veterans. Rather it said the VA did not have an obligation to provide such care.

Veteran Bruce Wood was denied health care by the VA while he was a prisoner in New York state. He had been consulting with a social worker for years about PTSD resulting from his service in Vietnam. The VA required specific information about the trauma-inducing events that resulted in his "alleged" PTSD -- information Wood was unable to supply. He twice wrote to the Army, but no details were forthcoming. The United States Court of Veterans Appeals affirmed the denial of health care by the VA to Wood. Nonetheless, that court specifically stated about incarcerated veterans: "Such individuals are entitled to the same care and consideration given to their fellow veterans." (Wood v. Derwinski, 1 Vet.App. 190 (1991.)

Seeking to formalize the holding in Wood v. Derwinski, Congress considered legislation to mandate the treatment of veterans in federal prisons through Vet Centers. The bill failed, in part due to VA objections.

In 1999, the VA created the regulation that excluded incarcerated veterans from receiving health care. The agency changed procedures that existed since its founding days as the Veterans Bureau. Veterans behind bars would be restricted from receiving VA medical care.

The regulation

The regulation that prevents VA health treatment to veterans who are incarcerated is found at 38 C.F.R. Section 17.38 (c)(5). It states that medical benefits do not include "Hospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services."

In his research project, Dr. Seamone noted the exclusion was housed within a massive rulemaking petition. He said it was created through the VA rulemaking process rather than through a more visible congressional mandate. The final regulation was issued without supportive analysis or input from incarcerated veterans, congressional representatives, or veteran organizations.

Consequences of the regulation

Ramifications resulting from the regulation were immediately evident. For example, the Rutherford County Adult Detention Center in Murfreesboro, TN had been regularly transporting an average of ten to 15 incarcerated veterans every month to the York VA Medical Center for care ranging from mental health treatment to treatment for a heart condition. Another 15 to 20 veterans in the detention center received medications from the VA each month. Following the rule change, transported veterans were turned away at the facility's door and informed that they could no longer receive treatment. In addition, only medical prescriptions written prior to the directive were henceforth to be filled, while new prescriptions and refills were not provided.

Appeals were soon brought by the Rutherford County Sheriff's Department, noting that medication expenses alone ranged from $200 to $300 per month per incarcerated veteran. A congressman argued that interrupting VA care was not beneficial for the community or the veteran, while prison psychologists claimed that the new policy was dangerous. 

Conclusion

It is profoundly sad that veterans who were physically or mentally damaged as a result of serving in the military are deprived of the medical benefits they earned while protecting their country.

The VA's regulation might be reasonable if care of the inmate involves a bone fracture or an emergency appendectomy. But when the prisoner has Traumatic Brain Injury resulting from an explosion, or PTSD following combat or after being raped, how is the typical prison doctor or nurse capable of appropriately responding? Ask the same question about a small-town jail and the whole notion is preposterous.

Someday, most incarcerated veterans will be released into the free world. Their chances of making successful transitions would be much better if they were treated for their war injuries by the best experts in the field before they are released.

The VA's regulation, leaving it up to the jails and prisons to provide care, might make sense from a fiscal standpoint. But from a moral stance, it's disgraceful.