[Senate Hearing 107-489]
[From the U.S. Government Publishing Office]
S. Hrg. 107-489
PENDING BENEFITS LEGISLATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 28, 2001
__________
Printed for the use of the Committee on Veterans' Affairs
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WASHINGTON : 2002
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COMMITTEE ON VETERANS' AFFAIRS
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BOB GRAHAM, Florida ARLEN SPECTER, Pennsylvania
JAMES M. JEFFORDS (I), Vermont STROM THURMOND, South Carolina
DANIEL K. AKAKA, Hawaii FRANK H. MURKOWSKI, Alaska
PAUL WELLSTONE, Minnesota BEN NIGHTHORSE CAMPBELL, Colorado
PATTY MURRAY, Washington LARRY E. CRAIG, Idaho
ZELL MILLER, Georgia TIM HUTCHINSON, Arkansas
E. BENJAMIN NELSON, Nebraska
William E. Brew, Chief Counsel
William F. Tuerk, Minority Chief Counsel and Staff Director
(ii)
C O N T E N T S
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June 28, 2001
SENATORS
Page
Hutchison, Hon. Kay Bailey, U.S. Senator from Texas.............. 8
Johnson, Hon. Tim, U.S. Senator from South Dakota................ 1
Prepared statement........................................... 3
WITNESSES
Daniels, Sidney, Deputy Director, National Legislative Service,
Veterans of Foreign Wars of the United States.................. 51
Prepared statement........................................... 53
Mackay, Leo, Ph.D., Deputy Secretary of Veterans Affairs;
accompanied by Joseph Thompson, Under Secretary for Benefits,
Department of Veterans Affairs; John H. Thompson, Deputy
General Counsel, Department of Veterans Affairs; and Robert
Epley, Assistant Deputy Under Secretary for Program Management,
Department of Veterans Affairs................................. 11
Prepared statement........................................... 13
Response to written questions submitted by:
Hon. Arlen Specter....................................... 25
Hon. Ben Nighthorse Campbell............................. 34
Surratt, Rick, Deputy National Legislative Director, Disabled
American Veterans.............................................. 56
Prepared statement........................................... 57
Tucker, David M., Senior Associate Legislative Director,
Paralyzed Veterans of America.................................. 63
Prepared statement........................................... 64
Vitikacs, John R., Deputy Director, National Economics
Commission, The American Legion................................ 44
Prepared statement........................................... 45
APPENDIX
Addlestone, David F. and Barton F. Stichman, Joint Executive
Directors, National Veterans Legal Services Program,
Washington, DC, letter dated July 23, 2001 to Hon. John D.
Rockefeller IV................................................. 82
Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, prepared
statement...................................................... 71
Gallegly, Hon. Elton, a U.S. Representative in Congress from the
State of California, prepared statement........................ 72
Griffin, Richard J., Inspector General, Department of Veterans
Affairs, prepared statement.................................... 73
Johnson, E. Keith, Legislative Liaison, Tennessee Educational
Association of Veterans Programs Administrators, prepared
statement...................................................... 75
Kramer, Kenneth B., Chief Judge, United States Court of Appeals
for Veterans Claims, Washington, DC, letter dated July 3, 2001
to Hon. John D. Rockefeller IV................................. 80
Manzullo, Hon. Donald, a U.S. Representative in Congress from the
State of Illinois, prepared statement.......................... 72
National Funeral Directors Association, prepared statement....... 81
Nichols, Denise, Vice Chairman, National Vietnam and Gulf War
Veterans Coalition, prepared statement......................... 84
(iii)
Stichman, Barton F. and David F. Addlestone, Joint Executive
Directors, National Veterans Legal Services Program,
Washington, DC, letter dated July 23, 2001 to Hon. John D.
Rockefeller IV................................................. 82
Sweeney, Donald, Legislative Director, National Association of
State Approving Agencies, prepared statement................... 86
PENDING BENEFITS LEGISLATION
----------
THURSDAY, JUNE 28, 2001
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10:29 a.m., in
room SR-418, Russell Senate Office Building, Hon. John D.
Rockefeller IV (chairman of the committee) presiding.
Present: Senators Rockefeller, Akaka, and Specter.
Chairman Rockefeller. We have a distinguished regular panel
with us today, but we also have some distinguished Senators who
are going to come and talk about individual areas of interest,
and I noticed one, Senator Tim Johnson from the State of South
Dakota.
STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM SOUTH DAKOTA
Senator Johnson. Thank you, Mr. Chairman, for accommodating
my time requirements. I will be very brief, but I do appreciate
this opportunity to thank you and Senator Specter for your
cooperation in your hearing today on veterans' benefits issues.
I also want to thank you for allowing me to speak briefly about
my legislation, called the Veterans' Higher Education
Opportunities Act, S. 131, that I have introduced with Senator
Susan Collins to improve the Montgomery GI Bill for our Nations
veterans, and I would ask consent that my full statement, along
with letters of support for S. 131, be included in these
records.
Chairman Rockefeller. It will be done.
Senator Johnson. As many of you know, this bipartisan
legislation has the support of Majority Leader Daschle,
Republican Leader Lott, former Congressman Sonny Montgomery,
the American Legion, the VFW, the DAV, and most of the higher
education organizations all across our Nation. The Montgomery
GI Bill has truly been one of the best investments our Nation
has ever made in recruitment of the best and brightest to serve
in our armed services. Since 1944, the GI Bill has allowed 21
million veterans to further their education, including 8
million each from World War II and the Vietnam War.
Unfortunately, GI Bill benefits have not kept pace with
increasing costs of higher education. The current monthly
benefit only covers about half of the education costs, and as a
result, only about 50 percent of the active duty men and women
who pay $1,200, and for them, that is a significant amount of
money, only half of those who pay in their $1,200 actually
benefit from it and take any use from the GI Bill.
Recently, the House of Representatives passed legislation
to increase the monthly benefit over the next 3 years, and
while I applaud the House for taking steps to improve the GI
Bill, I still believe that they are not quite all the way there
in terms of what needs to be done over the long haul.
The Veterans' Higher Education Opportunities Act would
immediately increase the GI Bill benefits to equal the average
cost of a commuter student attending a 4-year public college.
The House bill takes 3 years to get to that level, and by that
time, it is likely that the GI Bill will no longer, again,
fully cover the costs of higher education. This legislation
takes, I believe, a better approach than the House bill because
it also calls for GI Bill benefits to be updated annually,
indexed, that is, to cover increasing college costs. This will
ensure that veterans are not stuck in the current situation of
not having education benefits that meet their needs and having
the cost of higher education once again far outstripping the
level of benefits available under the GI Bill.
Mr. Chairman, I believe this is the year when Congress will
have the opportunity to make substantial and lasting
improvements to the Montgomery GI Bill. In 1999, the
Congressional Commission on Service Members and Veterans
Transition Assistance called for dramatic enhancements to the
Montgomery GI Bill to pay for the full tuition, fees, and cost
of books, along with a monthly subsistence allowance, for any
qualified veteran to attend any school. The chairman of that
commission is now Secretary of Veterans Affairs Tony Principi.
I applaud Secretary Principi on his longstanding support for
veterans' education benefits. Secretary Principi's leadership
on this issue is reflected in the administration's support for
an improved GI Bill.
As mentioned, the House of Representatives has also
expressed its support now for enhanced GI Bill benefits. I
believe it is time for the Senate to take our turn, to show our
support for America's veterans and our commitment to improving
recruitment and retention in the armed forces. The
administration and the House support improvements that are
needed, but still fail to address fully the problems with the
Montgomery GI Bill. With approval of S. 131, the Senate has the
opportunity to truly bring the Montgomery GI Bill into the 21st
century and ensure its viability for the future.
Once again, I want to thank you, Chairman Rockefeller, and
the entire committee for your leadership on veterans' issues
and for holding today's hearing. I look forward to working with
you and the committee on my legislation in order to have the
Senate act on GI Bill improvements as soon as possible. Thank
you, Mr. Chairman.
Chairman Rockefeller. Senator Johnson, thank you very much.
Senator Johnson. Thank you.
Chairman Rockefeller. That was crisp, to the point, on the
mark, and we thank you.
Senator Johnson. Thank you.
[The prepared statement of Senator Johnson follows:]
Prepared Statement of Hon. Tim Johnson, U.S. Senator From South Dakota
Chairman Rockefeller, I would like to thank you and Senator Specter
for holding today's hearing on veterans benefits and your continued
leadership on behalf of veterans nationwide. I appreciate the
opportunity to testify before the Senate Veterans Affairs Committee in
support of my bipartisan legislation to improve the Montgomery GI Bill.
For the past two years, I have worked with Senator Susan Collins and
others to modernize the Montgomery GI Bill and help veterans achieve
their goals of higher education. Our bill, the Veterans' Higher
Education Opportunities Act (S. 131), has received broad, bipartisan
support in Congress and among the veterans and higher education
communities. I look forward to hearing the committee's thoughts on this
legislation and encourage the committee to approve S. 131 this year.
The 1944 GI Bill of Rights is one of the most important pieces of
legislation ever passed by Congress. No program has been more
successful in increasing educational opportunities for our country's
veterans while also providing a valuable incentive for the best and
brightest to make a career out of military service. Over 21 million
veterans have taken advantage of GI Bill benefits since 1944, including
8 million each from World War II and the Vietnam War.
Unfortunately, the current GI Bill can no longer deliver these
results and fails in its promise to veterans, new recruits and the men
and women of the armed services. The Veterans' Higher Education
Opportunities Act will modernize the GI Bill and ensure its viability
as education costs continue to increase.
Over 96% of recruits currently sign up for the Montgomery GI Bill
and pay $1,200 out of their first year's pay to guarantee eligibility.
But only one-half of these military personnel use any of the current
Montgomery GI Bill benefits. This is evidence that the current GI Bill
simply does not meet their needs. The main reason why military
personnel no longer use the GI Bill is because GI Bill benefits have
not kept pace with increased costs of education.
There is consensus among national higher education and veterans
associations that at a minimum, the GI Bill should pay the costs of
attending the average four-year public institution as a commuter
student. The current Montgomery GI Bill benefit pays a little more than
half of that cost.
The Veterans' Higher Education Opportunities Act creates that
benchmark by indexing the GI Bill to the costs of attending the average
four-year public institution as a commuter student. This benchmark cost
will be updated annually in order for the GI Bill to keep pace with
increasing costs of education.
The Veterans' Higher Education Opportunities Act is truly a
bipartisan effort to address recruitment and retention in the armed
forces. Cosponsors of S. 131 include Majority Leader Tom Daschle and
Republican Leader Trent Lott, along with Senators: Harry Reid, Mary
Landrieu, Olympia Snowe, Tim Hutchinson, Jeff Bingaman, James Inhofe,
Joe Biden, Byron Dorgan, Ted Kennedy, Robert Torricelli, Jon Corzine,
Joe Lieberman, Debbie Stabenow, Blanche Lincoln, and Max Cleland. In
addition, the Veterans' Higher Education Opportunities Act has the
overwhelming support of the American Legion and the Partnership for
Veterans' Education a coalition of the nation's leading veterans groups
and higher education organizations including the VFW, the American
Council on Education, the Non Commissioned Officers Association, the
National Association of State Universities and Land Grant Colleges, and
The Retired Officers Association.
As the parent of a son who serves in the Army, these military
``quality of life'' issues are of particular concern to me. Making the
GI Bill pay for viable educational opportunity makes as much sense
today as it did following World War II. In fact, a study conducted on
beneficiaries of the original GI Bill shows that the cost to benefit
ratio of the GI Bill was an astounding 12.5 to 1. That means that our
nation gained more than $12.50 in benefits for every dollar invested in
college or graduate education for veterans.
Congress and the President took an important step last year by
passing into law the Veterans Benefits and Health Care Improvement Act
of 2000. This law increases the monthly education benefit to $650 and
increases educational benefits of veterans survivors and dependents.
The House of Representatives recently approved legislation to further
increase monthly education benefits over the next three years. While
the House action sends a strong signal of Congress' intent to improve
veterans' benefits, I am afraid it falls short of what is necessary to
truly modernize the Montgomery GI Bill. The House bill takes three
years to increase monthly education benefits to the level needed right
now to cover the costs of higher education. The House bill also fails
to include any provisions that would ensure GI Bill benefits keep pace
with increasing costs of higher education. The Veterans' Higher
Education Opportunities Act is the only bill that provides veterans
with education benefits that cover the costs of higher education now
and for the future.
The very modest cost of improving the GI Bill will help our
military and our society. I look forward to working with members of the
Senate Veterans Affairs Committee on passage of the Veterans' Higher
Education Opportunities Act this year, and I once again thank the
committee for holding today's hearing.
______
The American Legion,
Washington, DC,
February 22, 2001.
Hon. Tim Johnson,
U.S. Senate,
Washington, DC.
Dear Senator Johnson: The American Legion thanks you for authoring
S. 131, the Veterans' Higher Education Opportunities Act of 2001. The
American Legion fully supports this important legislation which seeks
to establish a benchmark for determining the annual basic benefit rate
of active duty educational assistance under the Montgomery GI Bill
(MGIB).
The educational benefits offered, to veterans consistently fail to
keep pace with the escalating costs of education in America. The
provisions contained in the current MGIB program cover only a fraction
of the cost of a contemporary education at an average four-year
college.
The American Legion believes S. 131 will help to transform the
current MGIB program into a true veterans' benefit that parallels the
quality of the original ``GI Bill of Rights''. A strong veterans
educational benefit program will not only strengthen the national
defense by improving recruitment, it will also prepare veterans for a
smooth transition into the civilian workforce.
Once again, The American Legion fully supports S. 131 and
appreciates your continued leadership in addressing the issues that are
important to veterans and their families.
Sincerely,
Steve A. Robertson,
Director, National Legislative Commission.
______
Department of South Dakota,
Disabled American Veterans, Inc.,
Sioux Falls, SD, May 1, 2001.
Senator Tim Johnson,
324 Senate Hart Office Bldg.,
Washington, DC.
Dear Senator Tim Johnson: Thank you for sponsoring The Veterans'
Higher Education Opportunities Act of 2001, S. 131. I very much
appreciate your recognition of the need to revise the basic benefit
program of the Montgomery GI Bill and the sacrifices made by our
Nation's servicemembers in the defense of our Country.
Raising the monthly benefit amount ``to the average monthly costs
of tuition and expenses for commuter students at public institutions of
higher education that award baccalaureate degrees'', will be extremely
helpful.
I ask that you work to insure that the Senate Budget Resolution
contain funding that will allow for the enactment of this important
legislation. Please let me know if I can help you in any way.
Thank you again for your support of veterans and their efforts to
reach their educational goals and for your cosponsorship of S. 131.
Sincerely,
Gene A. Murphy,
Adjutant, Disabled American Veterans.
______
Veterans of Foreign Wars of the United States,
Washington, DC,
April 4, 2001
Hon. Tim Johnson,
U.S. Senate,
Washington, DC.
Dear Senator Johnson: On behalf of the 1.9 million members of the
Veterans of Foreign Wars, we extend our deepest thanks to you for your
efforts in making veterans education a priority in S. 131, legislation
offered jointly by you and Senator Susan Collins.
The Montgomery GI Bill has lost ground over the last few years. It
is no longer able to meet the educational needs of today's veterans.
The funding level has not kept pace with the rising costs of higher
education. S. 131 abates the GI Bill's loss of value by creating an
index system so funding can be increased as higher education costs
rise.
We also thank you for your announced intention to offer an
amendment to the Senate Budget Committee to create a reserve fund for
veterans education. This amendment would provide the necessary funding
to implement S. 131, resulting in a significant increase in funding for
the Montgomery GI Bill.
The Montgomery GI Bill is in dire need of additional resources, and
we fully support your efforts, both in the original bill, and in the
amendment. We are committed to working with you to make this
legislation a success.
Sincerely,
Dennis Cullinan,
Director, National Legislative Service.
______
Air Force Sergeants Association,
Temple Hills, MD,
January 30, 2001.
Hon. Tim Johnson,
502 Hart Senate Office Building,
Washington, DC.
Dear Senator Johnson, On behalf of the 135,000 members of the Air
Force Sergeants Association, I thank you for introducing S. 131, the
``Veterans' Higher Education Opportunities Act of 2001.'' Your bill
recognizes the rising costs of higher education, and the need to cover
our veterans' out-of-pocket education expenses. If signed into law, S.
131 would help to alleviate the financial burden that many veterans
face while pursuing their degree.
Again, we commend you for taking the initiative to modify the
monthly benefit of the Montgomery G.I. Bill. As always, AFSA is ready
to support you on this and other matters of mutual concern.
Sincerely,
James D. Staton,
Executive Director.
______
National Association of State Approving Agencies, Inc.,
April 6, 2001.
Hon. Tim Johnson,
324 Hart Senate Office Building,
Washington, DC.
Dear Senator Johnson: I'm asking for your support on a veterans
issue.
The US Congress is considering restructuring the GI Bill by
increasing the educational benefits it affords veterans and other
eligible persons. I'm sure you are well aware of the tremendously
positive impact the original GI Bill had on higher education and the
nation as a whole following WW II.
It is a fact, the present Montgomery GI Bill (MGIB) falls far short
of offering the level of educational assistance that the original bill
provided, and doesn't compare favorably to either Korean or Vietnam era
GI Bills.
At present there are a number of proposals before Congress, H.R.
320 introduced by Evans and Dingell, H.R. 1280 a companion bill to S.
131 introduced by Mr. Ronnie Shaws, MI, and H.R. 1291 introduced by
Chairman Christopher Smith. In addition, Mr. Stump, former Chairman of
House Committee on Veterans Affairs and the present Chairman of House
Armed Services Committee, is expected to introduce a bill.
The one bill that has been introduced in the Senate is the Veterans
Opportunity Act S. 131. This bill was introduced by Tim Johnson, SD and
Susan Collins, ME. Co-sponsors include Tim Johnson, Susan Collins,
Byron Dorgan, James Inhofe, Mary Landrieu, Jeff Bingaman, Tom Daschle,
Tim Hutchinson, Edward Kennedy, Trent Lott, and Olympia Snowe.
Particularly important is your support of a budget resolution that
contains funding to improve the Montgomery GI Bill. This would ensure
that the necessary resources needed are available, no matter what
concept of improvement to the current GI Bill is adopted.
Furthermore, your support or co-sponsorship of the Senate Veterans
Opportunity Act S. 131 would very much be appreciated. In general, the
need to revise the Montgomery GI Bill is long overdue (see enclosure).
If the initiatives to revise the Montgomery GI Bill are successful,
veterans who might not be able to afford higher education after serving
their country will be given an opportunity to do so.
Thanks again for your support. If you have any questions, please
contact me at your convenience.
Sincerely,
James R. Bombard,
Chief, Bureau of Veterans Education, NYS Division of Veterans
Affairs.
President, National Association of State Approving Agencies.
Partnership for Veterans' Education
fulfilling america's promise
We the undersigned representatives of associations advocating on
behalf of veterans, uniformed servicemembers, and higher education urge
Congress to support a new model for the Montgomery GI Bill. Current
educational realities, the eroded value of the current GI Bill benefit,
and increasingly difficult challenges in meeting military recruiting
goals lead us to conclude that at least minimal reform must be enacted
and funded.
Our proposal is straightforward, provides meaningful educational
opportunity, helps military recruiting, strengthens military retention,
and has a realistic cost:
1. Establish a sensible, easily understood benchmark for the
GI Bill that represents the minimum required to provide the
education promised at recruitment. Base future stipends for all
veterans on that benchmark.
a. Average tuition and expenses for a commuter
student at a public four-year college is a reasonable
and acceptable benchmark.
b. This benchmark, updated annually by The College
Board, is $9229 for academic year 2000-01.
2. Provide the education that is promised at reasonable cost.
a. The GI Bill now provides nine monthly $650
stipends a year for four years. The total benefit is
$23,400.
b. Monthly stipends based dn the proposed benchmark
would have been $1025 for academic year 2000-01. The
new total benefit would be $36,900.
Post-war experience clearly demonstrates that better educated
veterans pay far more taxes and are more productive in the society and
economy. If budget estimates account for these well-known facts, the
benchmarking of the GI Bill benefit that we suggest will enjoy broad
support. We urge you to support it.
Three signature pages attached.
Air Force Assn.
Air Force Sergeants Assn.
American Assn. of Collegiate Registrars & Admissions Officers.
American Council on Education.
American Assn. of Community Colleges.
American Assn. of State Colleges & Universities.
American Military Retirees Assn.
AMVETS.
Army Aviation Assn. of America.
Assn. of Military Surgeons of the US.
Assn. of the US Army.
Blinded American Veterans Foundation.
Blinded Veterans Assn.
Catholic War Veterans.
Commissioned Officers Assn. of the U.S. Public Health Service, Inc.
CWO, & WO Assn., USCG.
Disabled American Veterans.
Enlisted Assn. of the National Guard.
Fleet Reserve Assn.
Gold Star Wives of America, Inc.
Jewish War Veterans of the USA.
Korean War Veterans Assn.
Marine Corps Reserve Officers Assn.
Marine Corps League.
Military Order of the Purple Heart.
National Assn. for Uniformed Services.
National Assn. of Independent Colleges & Universities.
National Assn. of State Approving Agencies.
National Assn. of State Universities & Land Grant Colleges.
National Assn. of Veterans Program Administrators.
National Guard Assn. of the US.
National Military Family Assn.
National Order of Battlefield Comm.
Naval Enlisted Reserve Assn.
Naval Reserve Assn.
Navy League of the US.
Non Commissioned Officers Assn.
Paralyzed Veterans of America.
Reserve Officers Assn.
The Military Chaplains Assn. of the USA.
The Retired Enlisted Assn.
The Retired Officers Assn.
The Society of Medical Consultants to the Armed Forces.
Tragedy Assistance Program for Survivors.
United Armed Forces Assn.
USCG CPO Assn.
US Army WO Assn.
Veterans of Foreign Wars.
Veterans' Widows Intl. Network, Inc.
Vietnam Veterans of America.
Chairman Rockefeller. There being no other Senators that I
can immediately see, we will proceed with my statement and then
we will go to the hearing. There will be, presumably, five or
six Senators on and off the committee coming in to present
legislative ideas, and as they do that, we will all just have
to accommodate them. Don't you think that would be wise? I
think that would be wise.
Anyway, I am very pleased that our witnesses are here
today, Dr. Leo Mackay, the Deputy Secretary of Veterans
Affairs, and representatives from four of our service
organizations. As I indicated, some Senators will come and we
will accommodate them, and hopefully they will be as short as
Senator Johnson.
We have a lot of bills to discuss and I want to make sure
that we have a chance to hear from all of our witnesses, so I
will be brief, although it occurs to me my statement isn't
brief. I have just said that I will be brief, but don't count
on my being brief. [Laughter.]
But I certainly urge our witnesses to be brief. We will be
reviewing some very important pieces of legislation that affect
virtually everything within the veterans' world--burial
benefits, home loan guaranties, the annual cost-of-living
increase in veterans' compensation, and on and on and on, and
there are a couple of items that I would like to highlight in
particular.
There has been a lot of energy, and Senator Johnson just
discussed it, surrounding the Montgomery GI Bill in the last
several years. I am enormously pleased about the strides that
we have taken toward improving the bill. At the same time, I am
cognizant of the current benefits of $650 a month. It pays for
about 63 percent of the average cost for a commuter student to
attend a traditional public 4-year university, and we have to
recognize that many veterans do not pursue traditional courses
of study.
So when we discuss where the GI Bill should go from here--
Senator Hutchison, we welcome you--we must ensure--please have
a seat, because I am going to call right on you--when we think
about the GI Bill, where it should go, we have to ensure that
the benefit evolves, as Senator Johnson said, to keep up with
the pace, with the career and educational choices that today's
veterans want and require.
I am very gratified, by the way, that Senator Specter
joined me in introducing MGIB legislation that will begin to
address the need for flexibility in the use of this benefit,
and I was going to go on, but Senator Hutchison, to accommodate
you, which I always try to do, I will stop this and call on you
for whatever comments you might have to make.
STATEMENT OF HON. KAY BAILEY HUTCHISON, U.S. SENATOR FROM TEXAS
Senator Hutchison. Thank you, Senator Rockefeller. I really
appreciate your holding this hearing and all the support that
you have given to the Persian Gulf veterans that my bill would
try to help. You have really been a leader in this and I am
hoping that my bill, along with Senator Durbin, would be a
follow-on to your efforts and that is why I have introduced it.
Let me just say that the Desert Storm disease has been very
controversial and many people don't think it actually exists.
My view is that when 100,000 of 700,000 men and women who went
to Desert Storm came back with symptoms that they did not have
before they left, such as chronic fatigue, muscle and joint
pain, memory loss, sleep disorders, depression, and
concentration problems, that we have a duty to make sure that
these people are taken care of and given the benefits of a
service-related illness.
Chairman Rockefeller. Senator Hutchison, you should be on
this committee. [Laughter.]
Senator Hutchison. Well, I would love to be on this
committee. I have not had that opportunity before, but I do
thank you for that.
The essence of our bill is that we are trying to extend the
presumptive period, which runs out December 31 of this year, to
December 31, 2001 so that we will have the time to continue the
research on this phenomenon. Frankly, I think there is research
that is beginning to show a causal connection between some of
the elements that were faced over there and the symptoms that
people are feeling.
Second, we define an undiagnosed illness. We expand it and
provide a list of the signs and symptoms that may be a
manifestation of an undiagnosed illness, such as fatigue,
muscle pain, joint pain, gastrointestinal signs and symptoms.
What we are trying to acknowledge is that the veterans were
exposed to a host of pharmaceuticals, chemicals, environmental
toxins. Some were exposed to oil well fires, dust and sand
particles that came from the places where the smoke was,
petroleum fuels, possible exposure to chemical warfare nerve
agents, biological warfare nerve agents, bromide pills to
protect against the organophosphate nerve agents, insecticides,
infectious diseases, and psychological and physiological
stress.
What we are trying to do with our bill is say that we
didn't document as much as we should have at Desert Storm what
our people were being exposed to, and when this many--if we
were talking about 50 people out of 700,000, I think we could
say maybe there was something else wrong and we couldn't put it
onto the service in Desert Storm. But one out of seven? Come
on. I just think we have an obligation to do more than we are
doing, and that is what our bill tries to do.
I consider our bill a follow-on to the bill that you
originally passed and which has been very helpful, but I think
we can't turn our backs on one in seven people who stepped up
to the plate to serve our country. Thank you.
Chairman Rockefeller. Thank you, Senator Hutchison. I know
that you have been to homes in Texas and you have seen what
happens to people who, over the years, when consulting with the
Department of Defense, have been told that it is in their heads
and been given some aspirin and told to go home. I mean, it is
one of the great scandals of the last quarter century. I really
appreciate your clear passion on the subject and the fact that
you have come to talk to us about it, and I thank you very,
very much.
Senator Hutchison. Thank you, Senator Rockefeller. I just
want to add one more thing for the record.
Chairman Rockefeller. Sure.
Senator Hutchison. Approximately 9,000 to 12,000 Persian
Gulf veterans who filed a claim under your law were denied
because the Veterans Administration did not believe the
symptoms met the definition of an undiagnosed illness. So I
just think we need to further clarify what an undiagnosed
illness is and define the compensation while we continue to do
the research, because I believe there is a causal connection
and I think the research is beginning to show that. Thank you
very much.
Chairman Rockefeller. Thank you very much. I very much
appreciate your coming.
If I can go on with my statement, I also want to thank
Senator Specter again, because we are both introducing a bill
that would remove obstacles for Vietnam veterans claiming
benefits related to Agent Orange exposure. Currently, Vietnam
veterans suffering from respiratory cancers can claim
disability benefits, but only if the disease manifested itself
within 30 years of their service in Vietnam. That is kind of
amazing. Our bill would eliminate this 30-year limit, recently
found to have no basis in science, and I think common sense
would tell us that anyway, and continue the scientific reviews
to help us understand the long-term effects of dioxin and Agent
Orange exposure, because the research part is necessary.
So, anyway, looking at our very ambitious agenda, I want to
be clear, listing a bill for consideration at this hearing,
even a bill which I introduced or Senator Specter introduced,
does not signal a position on my part about that bill. I want
that understood. The purpose of this hearing is to get
everything out. Introducing a bill is necessary for the
committee to provide an opportunity for public input. That is
important in the Veterans' Committee, so I look forward to
hearing from my colleagues as they wander in and from our
witnesses who are here.
When Senator Specter comes, I will ask that the two bills
that he talks about be added to the agenda as if originally
listed and ask that witnesses please submit supplemental views
if they wish to comment upon those bills.
Our first panel consists of representatives from the VA
itself. Dr. Leo Mackay, the Deputy Secretary of Veterans
Affairs, will be presenting VA's testimony today. He is
accompanied by Joe Thompson, the Under Secretary for Benefits,
and Jack Thompson, the Deputy General Counsel.
Let me say one more thing. Don't take this personally,
because I know the way the world works, but the comment needs
to be made. I had hoped that by providing advance notice of
this hearing, that we would have draft copies of bills to be
introduced, that the clearance process for VA's testimony, in
particular, would have been expedited, done, and complete.
Receiving VA's testimony in a timely fashion makes questions
and honest dialog a lot more efficacious.
It did not happen, though. We didn't get the testimony
until late yesterday afternoon. You have to give a lot of
testimony a lot of places, but we need that testimony. We need
it so we can read it, so our staff can read it, so we can
ingest it, digest it, and take what is said and what isn't
said. I recognize that OMB and all kinds of others have to
clear all kinds of things, and that is one reason I am glad I
don't serve in the executive branch of government. But
nevertheless, I want to put that on the record, that when we
have a hearing and we have folks from VA, we want the testimony
before us so that there can be better followup in terms of
questions than there otherwise might be.
Now, that having been said, Dr. Mackay, this is your first
time of many more to come and we welcome you, so let us get
down to business.
STATEMENT OF LEO MACKAY, PH.D., DEPUTY SECRETARY OF VETERANS
AFFAIRS; ACCOMPANIED BY JOSEPH THOMPSON, UNDER SECRETARY FOR
BENEFITS, DEPARTMENT OF VETERANS AFFAIRS; JOHN H. THOMPSON,
DEPUTY GENERAL COUNSEL, DEPARTMENT OF VETERANS AFFAIRS; AND
ROBERT EPLEY, ASSISTANT DEPUTY UNDER SECRETARY FOR PROGRAM
MANAGEMENT, DEPARTMENT OF VETERANS AFFAIRS
Mr. Mackay. Mr. Chairman, I also regret that the testimony
arrived late here. We are always working to constantly improve
our staff operation.
Chairman Rockefeller. It did not arrive late here. It was
sent late here.
Mr. Mackay. Sent late here, yes, sir. Omission noted, but
we will improve that because it is our aim to work closely with
you and your committee, sir.
I have a statement that times out at 5 minutes, an oral
statement. I would be happy to forego that to leave more time
for your questions.
Chairman Rockefeller. No, you go ahead.
Mr. Mackay. Well, good morning, Mr. Chairman and members of
the committee. I am pleased to appear before you today to
provide the Department's views on a number of pieces of
legislation currently before the committee. With me this
morning are our Under Secretary for Benefits, Mr. Joseph
Thompson; his Assistant Deputy Under Secretary for Program
Management, Mr. Bob Epley; and our Deputy Counsel, Mr. John
Thompson.
In the short time that I have available to me, I would like
to provide highlights of the administration's views on these
bills and would ask that my entire written statement be
submitted for the record.
We commend the committee for holding this hearing and I
thank you and your staffs for the cooperation shown to the
Department, to include a number of provisions that will clarify
existing law and improve the benefits that we provide to our
veterans and their dependents.
The committee has before it S. 1090, the Veterans'
Compensation Cost-of-Living Adjustment Act of 2001. The bill
would authorize a cost-of-living adjustment in VA compensation
and dependency and indemnity compensation rates. The
administration strongly supports this legislation and urges its
speedy adoption to meet the needs of our very deserving veteran
community.
S. 1091 would modify current law regarding presumption of
service connection for Vietnam veterans. VA is currently
studying the scientific merits of removing the 30-year
respiratory cancer presumption and we defer taking a position
pending the outcome of that review. We support the extension of
the National Academy of Sciences for providing biennial reports
to the Secretary on herbicide exposure.
S. 1088 would permit accelerated Montgomery GI Bill
payments for veterans training in high-tech courses----
Chairman Rockefeller. What was the 30-year review?
Mr. Mackay. We have a current----
Chairman Rockefeller. When did it start, does anybody know?
Mr. Epley. I believe within the last month, Senator.
Chairman Rockefeller. OK. Thank you. Proceed.
Mr. Mackay. In S. 1088, VA supports the concept of
acceleration of benefits for high-cost short-term courses, but
we do not believe that this should be limited to veterans in
high-tech courses.
S. 1093, the Veterans' Benefits Program Modification Act of
2001, contains a number of provisions that VA is pleased to
support. It would restrict compensation payments to prisoners
and fugitives. It would make needed clarifying changes to the
Veterans' Claims Assistance Amendments of 2000. It would remove
the current 500-veteran cap on the number of vocational
rehabilitation participants in a program of independent living.
S. 1093 would also raise the maximum home loan guarantee from
$50,750 to $63,175. Finally, it would make needed changes to
the law regarding VA's need-based pension program.
S. 131 would index monthly Montgomery GI Bill rates to the
average monthly cost of tuition and fees for commuter students
at 4-year colleges with annual adjustments. Mr. Chairman, VA
acknowledges that the monthly benefits need to be increased. We
prefer, however, the step increases found in H.R. 1291, which
the Secretary testified in the other body on behalf of, which
was recently passed by the House of Representatives.
S. 228 would make permanent the Native American Home Loan
Program. This program is slated to expire at the end of this
year. We support an extension of the program through fiscal
year 2005.
S. 781 would extend through fiscal year 2015 the authority
to guarantee home loans for members of the selected reserve. VA
also supports this bill.
S. 912 would increase various burial and plot allowances.
However, this bill would increase expenditures for this program
by more than three-fold, and consequently, we cannot support
the bill in its proposed form. We can, however, support an
increase from $1,500 to $2,000 for the burial allowance for
service-connected deaths.
S. 937 would amend the Montgomery GI Bill to permit service
members to transfer their entitlement to their dependents,
permit a limited form of accelerated benefits, make benefits
allowable for technological occupations, and permit separated
reservists to use Montgomery GI Bill benefits. Since DoD would
pay for the transfer of benefits and for reservists, we defer
to DoD on these two issues.
Mr. Chairman, there are three bills before the committee
today that VA is unable to support. S. 409, which statutorily
extends until December 31, 2011, the presumptive period for
undiagnosed illnesses suffered by Gulf War veterans. VA
currently has the authority to extend this period
administratively and that is the preferred method. This bill
would also redefine undiagnosed illnesses to include poorly
defined illnesses, such as fibromyalgia, chronic fatigue
syndrome, and a couple of others. VA has adequate authority
under existing law to establish presumptions for these
conditions should scientific and medical evidence support such
action.
S. 457 would establish a presumption of service connection
for hepatitis C for seven different categories of veterans. VA
opposes this because presumption would be overly broad and
necessarily result in compensating many veterans whose
hepatitis is due to illegal intravenous drug use.
S. 662 would authorize VA to provide headstones or markers
for previously marked graves of veterans. VA has great concerns
with this proposal. We believe the purpose of providing a
headstone or marker is to ensure that no veteran grave goes
unmarked, and we are particularly concerned with the concept of
placing a marker at an area appropriate for the purpose of
commemorating an individual. This bill represents a departure
from a longstanding policy of providing headstones and markers
for graves of veterans.
Mr. Chairman, this completes my opening statement. We will
be happy to answer your questions and those of the other
members.
[The prepared statement of Mr. Mackay follows:]
Prepared Statement of Leo Mackay, Ph.D., Deputy Secretary of Veterans
Affairs
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify today on several legislative items of great
interest to veterans. Accompanying me today is Joseph Thompson, Under
Secretary for Benefits, and John Thompson, Deputy General Counsel.
Before I discuss the many bills that the Committee is considering
today, I would like to note that, as you know, much of this legislation
would affect direct spending and receipts and would, therefore, be
subject to pay-as-you-go (PAYGO) rules. For all of the proposals and
bills that VA will support today, that support is contingent on
accommodating the proposals within the budget limits agreed to by the
President and the Congress. The Administration will work with the
Congress to ensure that any unintended sequester of spending does not
occur under current law or the enactment of any other proposals that
meet the President's objectives to reduce debt, fund priority
initiatives, and grant tax relief to all income tax paying Americans.
COMPENSATION COLA
The ``Veterans' Compensation Cost-of-Living Adjustment Act of
2001,'' S. 1090, would authorize a cost-of-living adjustment (COLA) for
fiscal year (FY) 2002 in the rates of disability compensation and
dependency and indemnity compensation (DIC). Section 2 of the draft
bill would direct the Secretary of Veterans Affairs to increase
administratively the rates of compensation for service-disabled
veterans and of DIC for the survivors of veterans whose deaths are
service related, effective December 1, 2001. As provided in the
President's FY 2002 budget request, the rate of increase would be the
same as the COLA that will be provided under current law to veterans'
pension and Social Security recipients, which is currently estimated to
be 2.5 percent. We estimate that enactment of this section would cost
$376 million during FY 2002, $7.1 billion over the period FYs 2002-2006
and $28.5 billion over the period FYs 2002-2011. Although this section
is subject to the PAYGO requirement of the Omnibus Budget
Reconciliation Act of 1990 (OBRA), the PAYGO effect would be zero
because OBRA requires that the full compensation COLA be assumed in the
baseline. We believe this proposed COLA is necessary and appropriate in
order to protect the benefits of affected veterans and their survivors
from the eroding effects of inflation. These worthy beneficiaries
deserve no less.
VETERANS COURT LEGISLATION
A bill under consideration by this Committee, S. 1089, would expand
temporarily the U.S. Court of Appeals for Veterans Claims (CAVC) so as
to facilitate staggered terms for judges on that court. VA defers to
the CAVC with respect to the merits of this change.
The bill would also eliminate the current jurisdictional limitation
on appeals to the CAVC based on the date of filing of a notice of
disagreement. Currently, for the CAVC to have jurisdiction over a case,
the administrative appeal underlying the action must have been
initiated by a notice of disagreement filed on or after November 18,
1988. See Veterans' Judicial Review Act of 1988, PL 100-687, Div. A,
Sec. 402, 102 Stat. 4105, 4122.
The requirement for filing of a notice of disagreement on or after
November 18, 1988, is continuing to be applied by the CAVC and to have
an impact on the number of cases heard by that court. Additional issues
could be pursued to the court in claims already pending before VA, and,
in addition, there would undoubtedly be a number of cases in which
claimants would challenge the finality of prior VA decisions, if the
impediment of the requirement for a notice of disagreement filed on or
after November 18, 1988, were removed. This would have the effect of
adding to the number of claims and issues pending before the court and
VA. We will advise the Committee of our position on this provision once
we have had the opportunity to more fully consider its potential
impact.
Another bill, S. 1063, the ``United States Court of Appeals for
Veterans Claims Administration Improvement Act of 2001,'' is designed
to improve the administration of the CAVC by allowing the CAVC to
impose a registration fee on active participants at judicial
conferences convened pursuant to 38 USC Sec. 7286 and by adding new
administrative authority. VA defers to the CAVC with respect to the
merits of this bill.
AGENT ORANGE
A bill under consideration by this Committee, S. 1091, would remove
the 30-year limitation on the period during which respiratory cancers
must become manifest to a degree of 10-percent or more in Vietnam
veterans exposed to herbicides during service in the Republic of
Vietnam in order for service connection to be granted on a presumptive
basis. At this time, the Department of Veterans Affairs (VA) is
reviewing the findings of the recent Institute of Medicine report,
Veterans and Agent Orange: Update 2000, on the issue of respiratory
cancer. We are considering the scientific merits of the 30-year period.
In addition, this bill would extend the presumption of exposure to
herbicides provided by 38 USC Sec. 1116 to any veteran who served in
the Republic of Vietnam during the Vietnam era. Currently, there is no
general presumption of exposure for all Vietnam veterans, either for
purposes of compensation or health-care eligibility. Pursuant to the
Agent Orange Act of 1991, VA has established presumptions of service
connection for ten categories of disease. See 38 C.F.R. Sec. 3.309(e).
A veteran who was exposed to herbicides in service and who develops one
of these diseases within the applicable presumption period, if any, is
presumed to have incurred the disease in service, without the necessity
of submitting proof of causation. In addition, 38 USC Sec. 1116(a)(3)
provides that, if a veteran served in the Republic of Vietnam during
the Vietnam era and has a disease that VA recognizes as being
associated with herbicide exposure, the veteran is presumed to have
been exposed to an herbicide agent during service.
This bill would also extend for ten more years the period over
which the National Academy of Sciences will transmit to VA reviews and
evaluations of the available scientific evidence regarding possible
associations between diseases and exposure to dioxin and other chemical
compounds in herbicides. As additional scientific and medical evidence
continues to be developed concerning the health effects of herbicide
exposure, such reviews may shed light on the effects of exposure on the
health of veterans. Accordingly, VA supports this provision. However,
we will inform the Committee of our position on and cost estimate for
this entire bill once our review is completed.
EDUCATION
Section 1 of S. 1088 would authorize an individual to elect an
accelerated payment of Montgomery GI Bill (MGIB) benefits for pursuit
of certain high-technology courses. The tuition and fees for the course
would have to exceed twice the aggregate basic MGIB education benefit
otherwise payable for the enrollment period in order for the individual
to qualify. The amount of the accelerated payment would be the lesser
of 60 percent of the established charges for the course or the
aggregate amount of basic MGIB educational assistance for which the
individual has remaining entitlement.
VA supports the accelerated-payment concept and we believe the
provisions of this section are a step in the right direction. For
example, many educational and training programs, including technical
certification programs such as those offered by Microsoft, Cisco, and
others, are of extremely high cost, but short duration. Under the
current benefit payment method, an individual may receive $650 to $1300
in monthly MGIB benefits for a program of a few months' duration that
costs $5000 to $10,000, or more. Plainly, in such a case, the benefit
pay-out is not structured in relation to course length, cost or value.
Thus, the individual's educational needs when pursuing such short-term,
high-cost courses frequently may not be met. The accelerated provision
contained in this bill would cover a substantially greater proportion
of the actual course cost to the veteran.
We have not yet estimated costs of the education-benefit
enhancements in S. 1088 or certain other bills on today's agenda, but
will gladly supply them for the record.
Section 2 of S. 1088 would amend the definition of ``educational
institution'' to include any entity that provides, directly or under
agreement, training required for a license or certificate in a vocation
or profession in a technological field. It would become effective the
date of enactment.
The law defines a ``program of education'' as a curriculum or
combination of unit courses or subjects pursued at an educational
institution which is generally accepted as necessary for the attainment
of a predetermined and identified educational, professional, or
vocational objective. A program of education may be offered at either
an institution of higher learning or a non-college degree school.
Presently, the law does not permit VA to award benefits for courses
offered by commercial enterprises whose primary purposes are other than
providing educational instruction. Certified Network Administrator
(CNA) and Certified Network Engineer (CNE) courses offered by Novell,
Microsoft, and other companies, for example, are offered either through
educational institutions or by designated business centers. Although
the courses are identical regardless of where offered, only those
veterans pursuing the courses at an educational institution may receive
educational assistance.
This bill would allow VA to award benefits to those veterans taking
these courses at a business site. This would permit approval of courses
offered by businesses only when the courses are needed to fulfill
requirements for the attainment of a license or certificate generally
recognized as necessary to obtain, maintain, or advance in employment
in a profession or vocation in a technological occupation. We believe
providing educational benefits for pursuit of these courses is fully
consonant with MGIB purposes, and, given the bill's conditions on VA's
approving the courses, adequate safeguards would exist against
potential abuse. Consequently, we would support this provision of the
bill.
Section 8 of S. 1093, the ``Veterans' Benefits Programs
Modification Act of 2001,'' would respond to the recent decision of the
United States Court of Appeals for Veterans Claims (Ozer v. Principi)
which held that the relevant statute placed no limit on the length of
time an eligible spouse had to use Survivors' and Dependents'
Educational Assistance under chapter 35 of title 38, United States
Code. First, this section would clarify the spouse's opportunity to
select the date from which his or her eligibility period for using
chapter 35 benefits would commence. Such date could be any date between
the effective date from which VA rated the veteran as having a total
service-connected disability permanent in nature and the date VA
notified the veteran of that rating. Second, the section would
expressly provide that the spouse would have a fixed ten-year period,
beginning on the selected date or otherwise applicable date, to use the
available chapter 35 benefits.
The stated intent of Congress in establishing the chapter 35
program was to assist eligible spouses and surviving spouses in
preparing to support themselves and their families at a standard of
living which the veteran, but for his or her service-connected death or
the total and permanent disablement from a disease or injury incurred
or aggravated in the Armed Forces, could have expected to provide for
his or her family. In view of the need for many spouses and surviving
spouses to train for a productive place in society, Congress provided
financial assistance for spouses and surviving spouses in training
programs above the secondary level.
The law contemplates providing such assistance to the spouse or
surviving spouse during the period following onset of the veteran's
disability or death in order to timely assist the eligible spouse in
adjusting to the loss of aid and support from the veteran. It is
appropriate, therefore, to direct and limit the availability of this
educational assistance to a period reasonably needed to achieve the
statutory purposes. We note that provisions applicable to other
eligible persons under chapter 35, as well as all veterans under the GI
Bill and vocational rehabilitation benefit programs administered by VA
limit benefit eligibility to a circumscribed period. We believe it is
fair and reasonable to do so here, particularly with the flexibility
that also would be afforded for the spouse to select, within an
appropriate range, the date when the eligibility period would begin.
Consequently, we support this section of the draft bill which would
apply a ten-year period for spouses to use their Dependents'
Educational Assistance benefits.
INCARCERATED PERSONS & FUGITIVE FELONS
The ``Veterans' Benefits Programs Modification Act of 2001,'' S.
1093, would limit the provision of benefits for fugitive and
incarcerated veterans. Section 7 of this bill would place a limit on
compensation payments for veterans incarcerated on October 7, 1980, for
felonies committed before that date who remain incarcerated for
conviction of that felony after the date of the enactment of this
provision. Section 5313 of title 38, United States Code, currently
provides for the reduction of service-connected disability compensation
for veterans confined in a Federal, State, or local penal institution
as a result of conviction of a felony. The law was enacted on October
7, 1980, and applies to those veterans who were convicted and
incarcerated for a felony committed after the date of enactment, as
well as those who were incarcerated on or after October 1, 1980, and
are awarded compensation after that date. VA recently became aware of
approximately 230 veterans who were incarcerated prior to enactment of
the 1980 law, who remain incarcerated, and who were drawing
compensation as of 1980. These veterans, who are not within the scope
of the current benefit-reduction provision, are receiving some $2.5
million per year in compensation benefits. These 230 veterans also do
not have in effect an apportionment of their award for support of their
dependents. Payment of benefits to these veterans, in our view, is
contrary to the purpose for which service-connected disability benefits
are awarded, since these veterans are being supported in prison by the
government and are not capable of gainful employment by reason of their
incarceration.
+We estimate annual PAYGO cost savings of approximately $2.2
million would be achieved and that there would be a one-time
administrative cost for the reduction of the benefits to the
approximately 230 incarcerated veterans who would be affected by this
provision.
Section 6 of this bill would prohibit the payment of certain
benefits for veterans who are fugitive felons. Under current law, a
fugitive is generally not subject to reduction of compensation,
pension, education, or vocational rehabilitation benefits under 38 USC
Sec. Sec. 1505, 3034, 3108, 3482, or 5313, as is the case with many
incarcerated veterans. A prohibition on payment of benefits for
fugitive felons would be a logical extension of the current limits on
payments to incarcerated felons. VA supports this provision.
We note, however, as a technical matter, that the draft bill would
not appear to authorize payment of benefits to a veteran's dependent by
apportionment, as is the case with veterans whose benefits are subject
to reduction by reason of incarceration. We note also that the draft
bill would bar the provision of life insurance benefits and benefits
under the home loan guaranty program under title 38, chapters 19 and
37, to fugitive felons, although incarcerated felons are not barred
from receipt of such benefits under current law. We recommend that
reference to chapter 19 and 37 benefits be deleted from section 6 of
the draft bill.
Because this proposal would raise unique information-development
issues, no data are available to establish cost-savings estimates. In
FY 1999, VA, working with the Bureau of Prisons, identified fewer than
1,000 cases where VA beneficiaries were incarcerated and subject to an
administrative reduction in their benefit payments. This translates to
less than one percent of the total Federal prison population. Based on
this experience, we expect that the number of fugitive felons who might
be identified as VA beneficiaries will be small.
CLAIMS ASSISTANCE ACT AMENDMENTS
The Veterans Claims Assistance Act of 2000 (VCAA), PL 106-475,
struck out sections 5102 and 5103 of title 38, United States Code,
added new sections 5100, 5102, 5103, and 5103A, and amended section
5107, relating to VA's duty to assist claimants in presenting claims
for benefits. Certain of the provisions, as enacted, raise questions
regarding congressional intent with respect to the handling of
incomplete applications and the applicability of the new provisions to
undecided claims filed prior to November 9, 2000, the date of enactment
of the VCAA, and claims not finally decided prior to November 9, 2000.
The issue regarding undecided claims was addressed in a precedent
opinion of the VA General Counsel, VAOPGCPREC 11-2000.
With respect to incomplete applications, prior section 5103(a)
provided that, if a claimant's application for benefits under the laws
administered by the Secretary of Veterans Affairs was incomplete, the
Secretary was required to notify the claimant of the evidence necessary
to complete the application. In addition, section 5103(a) provided, in
its second sentence, that, if the evidence requested was not received
within one year from the date of the notification, no benefits could be
paid or furnished by reason of the application. As added by section 3
of the VCAA, new section 5102(b) states that, if a claimant's
application for a benefit is incomplete, the Secretary shall notify the
claimant and the claimant's representative, if any, of the information
necessary to complete the application. However, no provision comparable
to the second sentence of former section 5103(a), regarding the effect
of a failure to provide evidence to complete an incomplete application,
was included in new section 5102 or elsewhere in chapter 51 as amended.
Thus, if a claimant were to submit an application for benefits and
receive notification from VA that the application is incomplete, it
does not appear that VA would be authorized to close or deny the claim
based on an applicant's failure to respond. Further, if the claimant
submits the requested information at any time in the future, and if a
benefit were granted, VA would be required to establish an effective
date for an award of benefits based on the date the incomplete
application was filed without regard to whether the applicant responded
to VA's request for further information to ``complete'' the application
in a timely fashion. We do not believe this result was intended by
Congress.
Section 4 of the ``Veterans' Benefits Programs Modification Act of
2001'' would remove the one-year period for the submission of
information from new section 5103 and restore it to new section 5102.
In other words, this provision has the effect of establishing a one-
year period for the submission of information necessary to complete an
application, while eliminating the one-year period for the submission
of information and evidence necessary to substantiate a claim.
Establishing a one-year period for the completion of applications,
rather than for the substantiation of claims, will allow VA to decide a
claim based on a claimant's failure to respond to a request for
information or evidence. This decision would be based on evidence VA
has obtained on behalf of the claimant. Essentially, this provision
restores the statute to its former status. This will enhance our
ability to process claims in a timely manner. VA supports this
modification. (We note as a technical matter that the new section
5102(c)(1), proposed to be added by section 4, contains an apparently
erroneous reference to ``section 5103(a)'' that should be changed to
``section 5102(a)''.)
Section 5 of the ``Veterans' Benefits Programs Modification Act of
2001'' would amend section 7 of the VCAA to require VA, upon the
request of a claimant or on the Secretary's own motion, to readjudicate
in accordance with the VCAA claims that did not become final prior to
November 9, 2000. Claimants whose claims did not become final prior to
November 9, 2000, would have two years from that date to request
readjudication, just as those claimants covered by current section 7(b)
whose claims were finally denied as not well grounded prior to November
9, 2000.
Section 7(a) of the VCAA may be construed to create an unlimited
duty on VA to locate and readjudicate claims filed before November 9,
2000, that were not finally decided by VA as of that date. Section
7(b)(4), by contrast, specifically states that VA is not obligated to
locate and readjudicate claims found to be not well grounded in which
VA's decision became final prior to November 9, 2000. Because section
7(a) does not contain such a limitation, this provision may be
interpreted as requiring VA to locate and readjudicate all claims in
which VA issued a decision that was not final prior to November 9,
2000. Because of the onerous consequences of such an interpretation, we
do not believe that Congress intended to impose a duty on VA to
undertake an unlimited review of these cases.
In FY 2000, VA adjudicated approximately 601,000 claims for service
connection, claims to reopen based upon new and material evidence,
increased rating claims, and claims alleging clear and unmistakable
error. In addition, VA rendered decisions regarding issues such as
dependency status, income adjustments, and eligibility for hospital
care in an additional 1 million claims in FY 2000. Also, in FY 2000, VA
processed 246,000 cases for purposes of appellate review, adjusting VA
benefits based upon a beneficiary's receipt of Social Security
benefits, review required by recently-enacted legislation, matching VA
records with Social Security records on deaths of beneficiaries, and
reviewing ongoing benefit awards to determine if they are correct. If
such a massive review of previously-decided claims were required, VA
would be unable to adjudicate claims in which a decision has not yet
been issued. The ultimate consequence of such an interpretation of
section 7(a) would be delayed payment of benefits to veterans and their
dependents. We therefore believe that a technical amendment to section
7 to clarify Congress' intent in this regard, as included in section 5
of the draft bill, is appropriate.
Also, section 7(a) of the VCAA currently specifies that section
5107 as amended applies to any claim filed on or after the date of
enactment of the VCAA or filed before that date but not finally decided
as of that date. However, the VCAA does not address the applicability
to newly filed or pending claims of the other provisions of title 38,
United States Code, created by that statute. The General Counsel has
concluded in a precedent opinion, VAOPGCPREC 11-2000, that all of the
provisions added by the VCAA apply to claims filed on or after November
9, 2000, and to claims filed before that date but not finally decided
as of that date. Nonetheless, we believe a technical amendment to
section 7 to clarify Congress' intent in this regard is appropriate.
VOCATIONAL REHABILITATION
Section 9 of S. 1093 would remove the cap on the number of
vocational rehabilitation participants in the ``independent living
services'' program under chapter 31 of title 38, United States Code.
The limitation of 500 veteran participants was set when the program was
being evaluated as a pilot. When the merit of the program subsequently
was established, Congress made it permanent. However, the limit on the
number of participants was not changed. The program has proved its
worth over time and we are proud of the successful independent living
outcomes achieved by participants who represent some of our neediest,
most deserving veterans. Consequently, we strongly support eliminating
the cap so that more qualifying veterans may receive this assistance.
If the cap is lifted, we project that, even though the number of
independent living cases will rise, net savings will accrue to VA and
other federally funded service providers effectively achieving cost
avoidance. Many of the veterans who completed programs of independent
living are able to move from institutionalization back to family life
or group homes. These individuals are able to maintain themselves in
the community with significantly less reliance on others and community
service providers.
VA estimates that, if enacted, this section would result in benefit
costs of about $7.4 million in FY 2002, with 5-year PAYGO costs of
about $15.6 million for FYs 2002-2006.
HOUSING LOANS
Section 10 of the ``Veterans' Benefits Program Modification Act of
2001'' would increase the maximum VA housing loan guaranty from $50,750
to $63,175. VA believes such an increase is justified and favors its
enactment.
Neither the law nor regulations set a maximum principal amount for
a VA guaranteed home loan, so long as the total loan amount does not
exceed the reasonable value of the property securing the loan, and the
veteran's present and anticipated income is sufficient to afford the
loan payments. As a practical matter, requirements set by secondary
market institutions limit the maximum VA loan to four times the
guaranty. The guaranty increase proposed by section 10 of the bill
would have the effect of increasing the maximum amount lenders are
willing to finance from the current $203,000 to $252,700.
The VA guaranty has not been increased since October 1994. Housing
prices have increased significantly during the past six-and-a-half
years. Today, in a number of higher-cost areas, such as Atlanta,
Anaheim/Santa Ana, Boston, Denver, Honolulu, Los Angeles, New York
City, San Diego, San Francisco, and Seattle, the median home purchase
price exceeds the effective VA maximum loan.
Increasing the effective maximum VA home loan to $252,700 is
consistent with recent increases in the loan limits for other housing
programs. For example, the limit for a loan insured by the Federal
Housing Administration of the Department of Housing and Urban
Development was increased this year to $239,250. The conventional
conforming loan limit for the Federal National Mortgage Association
(``Fannie Mae'') and the Federal Home Loan Mortgage Corporation
(``Freddie Mac'') was increased effective January 1, 2001, to $275,000.
VA estimates that, under the provisions of current law, increasing
the guaranty to $63,175 would increase the loan subsidy PAYGO costs to
the Veterans Housing Benefit Program Fund by $4.3 million in FY 2002,
and have 10-year subsidy PAYGO costs of approximately $140.9 million.
It is important to note that our cost estimate is based, in part, on
the fact that certain cost-saving provisions originally enacted as part
of the OBRA will expire on September 30, 2008. We fully expect that
these provisions will be extended prior to their scheduled expiration.
Assuming that those OBRA provisions are extended until at least
September 30, 2011, the 10-year subsidy PAYGO costs of the guaranty
increase would be $83.5 million.
PENSION
Section 2 of the ``Veterans' Benefits Programs Modification Act of
2001'' would add to 38 USC Sec. 1503(a) a new paragraph (11), which
would exclude proceeds of a veteran's life insurance policy, and a new
paragraph (12), which would exclude ``any other non-recurring income
from any source,'' from determinations of annual income for pension
purposes. Section 3(b) of this draft bill would amend subparagraph (A)
of 38 USC Sec. 5112(b)(4) to provide that the effective date of a
reduction or discontinuance of pension by reason of a change in
recurring income will be the last day of the calendar year in which the
change occurred, with the pension rate for the following year to be
based on all anticipated countable income. Section 3(a) of this draft
bill would repeal the provision of 38 USC Sec. 5110(d)(2) that provides
that the effective date of an award of death pension for which
application is received within 45 days from the date of the veteran's
death is the first day of the month in which the death occurred.
VA disability pension is payable to low-income wartime veterans who
cannot work due to permanent and total disability. Death pension is
payable to low-income surviving spouses and dependent children of
wartime veterans. Both programs are based on need, and VA improved
pension is offset dollar-for-dollar by income from other sources
(unless specifically excluded by statute). The current statute, 38 USC
Sec. 5112(b)(4)(A), requires improved pension to be reduced or
discontinued effective the last day of the month in which the
beneficiary's income increased. In addition, under current 38 USC
Sec. 5110(d)(2), an award based on a claim for death pension received
within 45 days of the veteran's death is effective the date of death.
An award based on a death pension claim received more than 45 days
after the veteran's death is effective the date of claim. This
effective date provision was added by the ``Deficit Reduction Act of
1984'', PL 98-369, Title V, 98 Stat. 494, 854-901, as a cost-saving
measure.
The practical effect of Public Law No. 98-369 in many cases has
been to exclude insurance proceeds from countable income for pension
claimants who file more than 45 days after the date of the veteran's
death. By waiting to file claims until after receipt of insurance
proceeds, those claimants can receive pension effective from the date
of claim, without regard to the recently received insurance proceeds.
However, claimants who receive insurance proceeds and then file pension
claims within 45 days of the veteran's death have those proceeds
counted as income for the following 12 months. We understand that
section 3(a) of the draft bill is intended to address this issue. We
understand that section 3(b) of the draft bill is intended to address
the concern that the existing end-of-the-month adjustment requirements
complicate beneficiary income and effective-date calculations and often
result in adjudication errors. Such errors occur most often in cases
involving frequent income changes and overlapping income counting
periods. We further understand that section 2 of the bill is intended
to reflect the principle that life insurance proceeds and other similar
types of non-recurring income are most appropriately addressed by
application of net worth limitations.
Certain aspects of the proposed amendments raise technical issues
with respect to income determinations. We would be pleased to work with
Committee staff on the technical aspects of these provisions to develop
mutually acceptable language.
S. 131
S. 131, the ``Veterans' Higher Education Opportunities Act of
2001,'' would provide for an increase in the education assistance
benefit rate under the MGIB to take effect on October 1, 2001. This
measure would provide that an MGIB participant whose obligated period
of service is three or more years would receive an education benefit
under that program equal to the average monthly costs of tuition and
expenses for a commuter student at a public college that awards
baccalaureate degrees. Service members with an obligated period of less
than three years would receive 75 percent of that amount.
VA would determine not later than September 30th each year the
average monthly costs of tuition and expenses for the succeeding fiscal
year based upon information obtained from the College Board provided in
its annual survey of institutions of higher education.
The President strongly supports the MGIB benefits program and
acknowledges its great importance to veterans and the Nation. The
President's FY 2002 Budget includes the annual cost-of-living increase
for education benefits for veterans and service members, but does not
include an additional MGIB benefit rate increase. However, the
President would support MGIB program improvements, to include a
reasonable increase in rates, if those improvements can be accommodated
within the overall budget limits agreed to by the President and
Congress. In this regard, the Secretary recently testified before the
House Veterans Affairs Subcommittee on Benefits that VA supports,
within the framework of those spending limits, the stepped increases
contained in H. R. 1291.
Our preliminary cost estimate indicates that S. 131, if enacted,
would result in PAYGO costs of about $777 million in FY 2002, with a 5-
year cost of about $4.6 billion for FYs 2002-2006 and a 10-year
projection of $12.4 billion.
S. 228
S. 228 would make permanent the direct loan program for Native
American veterans living on trust lands. VA strongly supports this
program, which currently has a sunset of December 31, 2001. We would
recommend, however, that the current program be extended until
September 30, 2005, rather than being made permanent.
The Native American veteran direct loan program, which was enacted
in October 1992, has enjoyed limited success. VA has made over 200
loans under this program to Native American veterans. The majority of
these loans have been to Native Hawaiians.
VA recently participated in the Executive Branch's One-Stop
Mortgage Initiative, which was an effort to develop a more consistent
approach to delivering home ownership opportunities to Native
Americans. VA is hopeful that this initiative will increase
opportunities and remove barriers to participation in the VA loan
program for Native American veterans living on trust lands. VA is also
aware of efforts by the Federal National Mortgage Association to
increase private-sector lender willingness to make loans on tribal
lands.
VA believes a four-year extension of the Native American veteran
direct loan program would give both the Executive Branch and the
Congress an opportunity to see how various initiatives regarding Native
American housing loans affect the ability of these veterans to obtain
VA financing, and whether further program modifications are indicated.
In addition, we urge the Committee to amend S. 228 to make the
following three changes to current law.
First, we recommend modifying the law to permit VA to make loans to
members of a Native American tribe that has entered into a memorandum
of understanding (MOU) with another Federal agency if that MOU
contemplates loans made by VA and the MOU conforms to the requirements
of the law governing the VA program. Current law requires a tribe to
enter into an MOU with VA before we can make loans to members of that
tribe.
We also suggest modifying the current requirement that all VA loan
and security instruments contain, on the first page of each such
document, in letters two-and-a-half times the size of the regular type
face used in the document, a statement that the loan is not assumable
without the approval of VA. We recommend that the law require that this
notice appear conspicuously on at least one instrument (such as a VA
rider) under guidelines established by VA in regulations.
Those two amendments would implement recommendations by the One-
Stop Initiative. These changes would reduce the administrative burden
on Indian housing authorities and bring more uniformity in federal loan
program processing procedures. Eliminating the requirement for a
separate MOU between each tribe and VA should expand the number of
Native American veterans eligible for VA financing. The extremely
strict loan assumption notice requirement in the current law has
prevented VA from approving the use of uniform loan instruments now
used in FHA, ``Fannie Mae,'' and ``Freddie Mac'' transactions.
Finally, we recommend repealing the requirement that VA outstation,
on a part-time basis, Loan Guaranty specialists at tribal facilities if
requested to do so by a tribe. We have consolidated loan processing and
servicing operations from 46 regional offices to nine Regional Loan
Centers, and do not have the resources to outstation loan personnel at
various tribal locations. VA continues to make periodic outreach visits
to all tribes, and provides training to tribal housing authorities. We
believe that we can provide all necessary services to Native American
veterans seeking VA housing loans without outstationing employees in
remote tribal locations.
We would be pleased to work with your staff in drafting language to
implement our suggested amendments.
We estimate that enactment of S. 228 would not require any
additional appropriation of loan subsidy. Public Law No. 102-389
appropriated $4.5 million ``to remain available until expended'' to
subsidize gross obligations for direct loans to Native American
veterans of up to $58.4 million. We estimate that sufficient funds
would be available to cover projected Native American veteran loan
volume until at least FY 2005.
S. 409
S. 409, or the ``Persian Gulf War Illness Compensation Act of
2001,'' would modify provisions in 38 USC Sec. Sec. 1117 and 1118
governing compensation for certain Gulf War veterans. We oppose the
enactment of this bill.
Currently, 38 USC Sec. 1117 provides that the Secretary of Veterans
Affairs may pay compensation to any Gulf War veteran suffering from a
chronic disability resulting from an undiagnosed illness (or
combination of undiagnosed illnesses) that became manifest during
active service in the Southwest Asia theater of operations during the
Gulf War or became manifest to a compensable degree within a
presumptive period (currently ending on December 31, 2001) as
determined by regulation. Section 1118 of title 38 provides for the
establishment of presumptive service connection for diagnosed and
undiagnosed illnesses associated with Gulf War service.
Section 3(a) of the bill would establish a statutory presumptive
period under 38 USC Sec. 1117 extending to December 31, 2011. The
Secretary of Veterans Affairs would be authorized to extend that date
by regulation. Section 3(b) would amend 38 USC Sec. 1117 by adding a
new subsection to clarify that the term ``undiagnosed illness'' for
purposes of presumption of service connection includes ``poorly
defined'' illnesses such as fibromyalgia, chronic fatigue syndrome,
autoimmune disorder, and multiple chemical sensitivity. Section 3(c)
would amend 38 USC Sec. 1118 to reflect the modification of the meaning
of the term ``undiagnosed illness.''
In our view, the current provision of 38 USC Sec. 1117(b)
authorizing the Secretary to prescribe by regulation the presumptive
period for undiagnosed illnesses associated with Gulf War service is
appropriate and should be retained. The Secretary's determinations
regarding the presumptive period are made following a review of any
available credible medical or scientific evidence and the historical
treatment afforded disabilities for which manifestation periods have
been established and take into account other pertinent circumstances
regarding the experiences of veterans of the Gulf War. We plan to
consider whether the current presumptive period should be extended
administratively based on these factors.
With regard to fibromyalgia, chronic fatigue syndrome, and
autoimmune disorder, as referenced in section 3(b) of this bill, under
current law, service connection may be established on a direct basis
for disability resulting from one of these conditions. With regard to
multiple chemical sensitivity, this condition is not recognized under
VA's schedule for rating disabilities. VA has adequate authority under
existing law to establish presumptions for these conditions should we
conclude that scientific and medical evidence support such action.
Under current 38 USC Sec. 1118, the Secretary may determine and
prescribe in regulations which diagnosed and undiagnosed illnesses
warrant such a presumption of service connection. Accordingly, we do
not support the inclusion of reference to these conditions in 38 USC
Sec. Sec. 1117 and 1118.
S. 457
S. 457 would amend 38 USC Sec. 1112 to establish a presumption of
service connection for certain veterans suffering from hepatitis C. We
oppose the enactment of this bill.
S. 457 would add a new subsection (d) to 38 USC Sec. 1112,
providing a presumption of service connection for certain veterans who
suffer from hepatitis C to a degree of disability of 10 percent or
more, notwithstanding that there is no record of such disease during
the period of active military, naval, or air service. The presumption
would apply where a veteran experienced one of the following during
service: (1) transfusion of blood or blood products before December 31,
1992; (2) blood exposure on or through the skin or a mucous membrane;
(3) hemodialysis; (4) needle-stick accident or medical event involving
a needle, not due to the veteran's own willful misconduct; (5)
unexplained liver disease; (6) unexplained liver dysfunction value or
test; or (7) service in a health-care position or specialty.
We recognize that, because there is such a prolonged period between
acute hepatitis C virus infection, which is typically asymptomatic or
results in mild illness, and the development of symptomatic liver
disease, it is difficult, in the absence of a medical history, to
determine the source of infection for hepatitis C. However,
epidemiologic research establishes that the highest incidence of
hepatitis C infection occurs in persons who placed themselves at risk
through destructive lifestyle choices. A May 1999 Centers for Disease
Control and Prevention (CDC) fact sheet, ``Hepatitis C Virus and
Disease,'' reports that injecting drug use accounts for about 60
percent of hepatitis C cases. According to an October 16, 1998, CDC
report, ``Recommendations for Prevention and Control of Hepatitis C
Virus (HCV) Infection and HCV-Related Chronic Disease,'' 47 Morbidity
and Mortality Weekly Report 5 (Oct. 16, 1998) (hereinafter ``CDC
Report''), injection of drugs currently accounts for a substantial
number of hepatitis C transmissions and may have accounted for a
substantial proportion of hepatitis C infections in the past. According
to the CDC report, after 5 years of injecting drugs, as many as 90
percent of users are infected with hepatitis C. Although the
contemplated presumptions would be rebuttable, in practice it would be
unlikely in most cases that reliable evidence of past intravenous drug
abuse would be readily available.
We feel strongly that veterans' disability compensation should not
be paid to individuals who incurred hepatitis C infection through drug
abuse. Yet creation of presumptions as contemplated by S. 457 would
certainly result in payment of compensation to persons who most likely
incurred hepatitis C infection in that manner.
The CDC report indicates that there is a very low risk of infection
associated with certain of the risk factors included in proposed new
subsection (d)(2) of 38 USC Sec. 1112. New subsection (d)(2)(B) would
provide a presumption of service connection if a veteran who has
hepatitis C was ``exposed to blood on or through the skin or a mucous
membrane.'' New subsection (d)(2)(G) would establish a presumption
based on service in a health-care position or specialty. The CDC report
indicates that hepatitis C is transmitted primarily through large or
repeated direct percutaneous, i.e., through the skin, exposures to
blood. According to the CDC, the prevalence of hepatitis C infection
among health-care workers, including orthopedic, general, and oral
surgeons, who are at risk for being infected as a result of exposure to
blood, is no greater than the general population. In addition, the CDC
reports that there are no incidence studies documenting transmission
associated with mucous membrane or nonintact skin exposures, although
transmission of hepatitis C from blood splashes to the conjunctiva
(membrane lining the eyelid) have been described. Thus, it appears
likely that hepatitis C infection would only occur if blood permeated a
veteran's skin, such as through an open wound or skin puncture. Based
upon this CDC data, we believe that the risk of hepatitis C infection
for veterans based upon exposure to blood on or through the skin or a
mucous membrane is so small as to make a presumption on this basis
unnecessary.
New subsections (d)(2)(E) and (d)(2)(F) would provide a presumption
of service connection for hepatitis C based on unexplained liver
disease or unexplained liver dysfunction value or test. We are unaware
of any evidence showing that, since testing became available for
hepatitis C, unexplained liver disease diagnosed during service or
unexplained liver dysfunction value or test performed during service
would indicate a veteran had an hepatitis C infection which was not
diagnosed while the veteran was on active service. We believe that
serology testing is routinely performed when a service member is
diagnosed with unexplained liver disease or has an unexplained liver
dysfunction value or test and that that testing would reveal at the
time whether the service member was infected with hepatitis C. As a
result, a presumption of service connection for unexplained liver
disease or liver dysfunction value or test is not warranted.
We acknowledge that accurate serologic testing was not available
until 1992. However, many causes of liver dysfunction value or test in
patients whose serologic tests are negative for hepatitis A and
hepatitis B are non-viral. These non-viral causes include liver toxins
(e.g., alcohol, prescription and non-prescription drugs), non-viral
infections (e.g., malaria, rickettsia), environmental factors (e.g.,
heatstroke), and malignancies.
The Seattle VA Epidemiologic Research Institute has initiated a
study involving 4000 veterans who receive care at 20 VA medical centers
that will allow a better understanding of the risk factors associated
with hepatitis C. Results of this study are expected in the summer of
2002.
We oppose S. 457 because it is overbroad and would undoubtedly
result in the payment of compensation to many individuals whose
hepatitis C infection resulted from drug abuse. Moreover, establishment
of a presumption of service connection for hepatitis C infection based
on certain risk factors identified in S. 457 cannot currently be
supported by medical or epidemiologic data. VA is committed to the
careful and compassionate adjudication of these claims, to include
assistance in the development of evidence to establish benefit
eligibility. Case-by-case determinations of entitlement based on the
merits of individual claims continue to be, with respect to hepatitis C
cases, preferable to adopting the broad presumptions called for by S.
457.
We do not currently have a cost estimate for S. 457, but would be
pleased to provide one to the Committee for the record. However, based
on a similar proposal, we estimate that PAYGO costs would be $168
million over the period FYs 2002-2006, at a minimum.
S. 662
S. 662 would authorize the Secretary of Veterans Affairs to furnish
headstones or markers for marked graves of certain individuals and to
allow placement at a location other than a gravesite. We oppose the
enactment of S. 662.
Section 1(a) of the bill would amend 38 USC Sec. 2306, to require
the Secretary of Veterans Affairs to furnish, upon request, a
Government headstone or grave marker for placement at the grave of a
veteran or other eligible individual, or at another area appropriate
for the purpose of commemorating the individual, regardless of whether
the individual's grave is currently marked with a privately purchased
headstone or marker. Under current law, Government headstones or
markers are furnished only for the unmarked graves of veterans and
certain other eligible individuals. Pursuant to section 1(b) of the
bill, the new requirement would be made applicable to burials occurring
``on or after November 1, 1990.''
We are particularly concerned with the concept of placing a marker
at an ``area appropriate for the purpose of commemorating'' an
individual. This provision represents an unwarranted departure from the
longstanding policy of providing headstones and markers for the
``graves'' of veterans. This purpose is reflected in 38 USC
Sec. 2306(a), which requires VA to furnish, upon request, appropriate
headstones or markers at Government expense for the unmarked ``graves''
of various classes of individuals. An exception to this policy is
reflected in 38 USC Sec. 2306(b)(1), which authorizes the provision of
a headstone or marker in a case in which the remains of an individual
are unavailable for interment. Pursuant to this authority, if the
remains of an individual are unavailable, an appropriate memorial
headstone or marker will be furnished for placement in a national
cemetery area reserved for that purpose, in a veterans' cemetery owned
by a State, or, for veterans only, in a State, local, or private
cemetery. In the context of this bill, we believe the requirement that
a marker be provided for placement in an ``area appropriate for the
purpose of commemorating the individual'' could be interpreted to
include areas not located at grave sites, or even within cemeteries,
which would be inconsistent with the current longstanding policy
regarding the provision of headstones and markers. We believe that an
individual's grave site is the appropriate area in which to memorialize
an individual by placement of a headstone or marker and that a cemetery
is the appropriate place to memorialize an individual whose remains are
unavailable.
We estimate the cost of enactment of S. 662, which includes
removing the ``unmarked'' restriction and is retroactive to November
1990, to be $6.6 million in FY 2002 and $20.7 million during the period
FY 2002-2006. Because this bill would affect direct spending and
receipts, it is subject to PAYGO requirements.
S. 781
S. 781 would extend the sunset for housing loan entitlement
currently granted to persons whose only qualifying service was in the
Selected Reserve, including the National Guard. Currently, housing loan
entitlement for reservists expires on September 30, 2007. This bill
would extend the expiration date until September 30, 2015. We favor the
enactment of this bill.
Extending home loan benefits to reservists recognized the important
role the Reserves play in our National Defense. Reservists are often
called upon to perform vital and dangerous missions all around the
world. The availability of these benefits serves as an important
recruiting incentive for the National Guard and Reserves.
Because reserve entitlement is now set to sunset in six years,
persons entering reserve service today have no assurance these benefits
will still be available once they have fulfilled their six years of
qualifying service. Therefore, an extension of the sunset at this time
is justified.
S. 912
S. 912, the ``Veterans Burial Benefits Improvement Act of 2001,''
would increase the amount payable for several burial benefits for
veterans. Section 2(a) of the bill would amend 38 USC Sec. Sec. 2302(a)
and 2303(a)(1)(A) by increasing the burial and funeral-expense
allowance for nonservice-connected deaths from $300 to $1,135, and
amend 38 USC Sec. 2307 by increasing the burial and funeral-expense
allowance for service-connected deaths from $1,500 to $3,713. Section
2(b) would amend 38 USC Sec. 2303(b) by increasing the plot allowance
payable for veterans buried in State or private cemeteries from $150 to
$670. Section 2(c) would add a new section 2309, which would index
these amounts based on the percentage increases of the Consumer Price
Index. The initial increases in the various rates would be applicable
to deaths occurring on or after the date of enactment of this
legislation.
S. 912 would immediately increase expenditures for this program by
more than three-fold. In total the bill would increase spending by $680
million in FYs 2002-2006 and $1.5 billion over ten years. VA cannot
support this bill at this time. We believe that increases should
correlate to the overall burial program, and VA is conducting a program
evaluation and analyzing the report on burial benefits that was
submitted to Congress last February. Once this evaluation is complete,
we will offer further comment on increases to the burial program.
The Government has responded to veterans' burial needs in recent
years by establishing several new national cemeteries and by
significantly enhancing the grant program under which state veterans
cemeteries are established. The State Cemetery Grants Program now
provides up to 100 percent of the costs of construction associated with
the establishment, expansion, or improvement of state veterans
cemeteries. This partnership between VA and the states ensures meeting
our goal that 88 percent of veterans will live within seventy-five
miles of a burial option by 2006. Since the 1988 enactment of Public
Law No. 105-368, which in effect increased the permissible grant amount
from 50 to 100 percent of construction costs, there has been an
increased interest from the states in the program, as reflected in the
increased number of pre-applications received.
Given the expanding availability of burial options within both
national and state veterans cemeteries, and the competing demands for
scarce VA resources, we can at this time support only an increase to
$2,000 in the burial and funeral-expense allowance for service-
connected deaths. The last increase (from $1,000 to $1,500) occurred in
1988. The greatest obligation is owed to the families of those who have
paid the ultimate price for their service, and we believe such an
increase is warranted in their case. Once VA's evaluation and analysis
is complete, we will be able to comment further on other burial benefit
increases.
The Secretary previously expressed support for the $2,000 increase
in his testimony before the House Veterans' Affairs Committee on H.R.
801. We estimate the new burial allowance would cost $5.3 million in FY
2002 and $31.7 million over the 2002-2006 period. The new benefit would
increase direct spending and under the PAYGO provision of the 1990
Omnibus Budget Reconciliation Act would trigger a sequester if not
fully offset. Assuming offsetting savings are found to prevent a
sequester, VA would support this alternative increase.
S. 937
S. 937, the ``Helping Our Professionals Educationally (HOPE) Act of
2001,'' provides for several significant improvements to the MGIB. This
bill would permit service members to transfer MGIB entitlement to their
spouse and/or children, allow for accelerated payment of MGIB benefits,
make MGIB benefits available for technological occupations, and permit
certain members of the Selected Reserve to use MGIB benefits after
separation from the Reserve. Section 2 of S. 937 would amend the MGIB
to permit certain service members to elect to transfer up to one-half
of their entitlement to their dependent spouse and/or children. The
implementation of this provision would be at the discretion of the
Secretary of the military department concerned.
Service members who have a critical military skill, or are in
specialties requiring critical military skills and who agree to serve
four or more years could make an election to transfer no more than 18
months of entitlement. Individuals selected to use this option would
designate to whom and how much of the entitlement would be transferred.
Subject to the applicable delimiting date, a transfer of
entitlement could be made while the service member is on active duty or
after the individual's release from that duty. The terms of the
transfer could be modified or revoked by the service member at any
time. The spouse could use the transfer after the service member
completes six years of active duty. In the case of a child, the
transfer could be used after the service member completes ten years of
service and the child completes the requirements for a secondary school
diploma or equivalency certificate, or the child attains age 18. A
transfer to a child would end upon that child attaining the age of 26.
Further, under section 2 of S. 937, the dependent would receive the
same MGIB basic benefit as the veteran and the death of that veteran
would not interfere with the use of the transfer. The dependent and the
individual making the transfer would be jointly liable for
overpayments. If the individual failed to complete the terms of the
agreement, the amount of transferred entitlement used by the dependent
would be treated as an overpayment, unless the individual died or was
released from active duty for medical reasons.
Section 2 further would require that the Secretary of the military
department concerned approve transfers of entitlement only to the
extent that appropriations are available in a fiscal year and would
furnish an annual report on the use of such transfers to Congress. The
Department of Defense (DOD) would fund MGIB payments made to dependents
under this section and prescribe regulations for this purpose.
VA has not yet developed a PAYGO cost estimate for this bill, but
we will gladly supply one for the record, in conjunction with DOD.
Since this provision involves matters within DOD's jurisdiction and
would be funded by that Department, VA defers to DOD's views on this
section.
Section 3 of S. 937 would permit the election of an accelerated
MGIB payment in a lump-sum amount equal to the lesser of the initial
month plus the allowance for the succeeding four months; or the amount
payable for the entire quarter, semester, or term; or where applicable
for the entire course. VA favors accelerated payment of MGIB benefits.
However, we prefer a broader provision covering high-cost, short-term
courses.
VA estimates section 3 of S. 937, if enacted, would result in PAYGO
costs of approximately $307 million in the first year with no
additional costs in the out years.
Section 4 would amend section 3452(c) of title 38, United States
Code, to include in the term ``educational institution'' any entity
that provides directly or under an agreement with another entity, a
course to fulfill the requirements for the attainment of a required
license or certificate. This provision would become effective October
1, 2001.
This provision is similar to section 2 of S. 1088, which VA
supports. However, we suggest that the definition of ``educational
institution'' found in section 3501(a)(6) be included in this
amendment, as it is in section 2, so that the new definition could work
to the advantage of individuals receiving Dependents' Educational
Assistance under chapter 35.
Our preliminary estimate is that section 4 of S. 937 would result
in PAYGO costs of about $3.4 million in FY 2002, with 5-year costs of
about $17.6 million for FYs 2002-2006.
Section 5 of the bill contains an amendment to the chapter 1606
MGIB-Selected Reserve program that would extend the amount of MGIB
entitlement an individual who continues to serve in the Selected
Reserve would receive. Under current law, MGIB entitlement for an
individual in the Selected Reserve commences on the date the individual
makes a commitment to serve 6 years and expires at the end of a ten-
year period following the date of that commitment or the date the
individual is separated from the Reserve, whichever first occurs. This
section provides that the individual's entitlement would expire 5 years
after the individual is honorably separated from the Selected Reserve.
VA has not developed a PAYGO cost estimate for this bill, but we will
gladly supply one for the record, in conjunction with DOD. Since this
provision involves matters within DOD's jurisdiction and would be
funded by that Department, VA defers to DOD's views on this section.
The Veterans Benefits Administration estimates that enactment of
H.R. 3256 would result in an annual cost of $2.1 million during fiscal
year (FY) 2001 and $10.5 million over the period FYs 2001-2005.
The Veterans Benefits Administration estimates that enactment of
H.R. 3256 would result in an annual cost of $2.1 million during fiscal
year (FY) 2001 and $10.5 million over the period FYs 2001-2005.
Mr. Chairman, this concludes my statement.
______
Response to Written Questions Submitted by Hon. Arlen Specter to Leo
Mackay
s. 1113 and s. 1114
Question 1. I introduced two bills: S. 1113 and S. 1114. Please
provide me the Administration's views on each of these bills.
Answer. This will be supplied under separate cover.
[The information referred to follows:]
The Secretary of Veterans Affairs,
Washington,
October 26, 2001.
Hon. Arlen Specter,
Ranking Member,
Committee on Veterans' Affairs,
U.S. Senate,
Washington, DC.
Dear Senator Specter: I am pleased to provide the Committee with
the views of the Department of Veterans Affairs (VA) on S. 1113, 107th
Cong., a bill ``[t]o amend section 1562 of title 38, United States
Code, to increase the amount of Medal of Honor Roll special pension, to
provide for an annual adjustment in the amount of that special pension,
and for other purposes.'' VA supports enactment of S. 1113.
S. 1113 would amend section 1562 to increase the Medal of Honor
special pension from $600 per month to $1,000 per month. This bill
would also provide for annual increases in the rate of the pension, to
be effective December 1 of each year (not including 2001), based on the
rate of annual Social Security rate adjustments. VA supports the
increase in the special pension to $1,000 and annual increases based on
cost-of-living adjustments in Social Security.
The Medal of Honor is considered the highest decoration for valor
available to men in the Armed Forces, and was originally established
during the Civil War. H.R. Rep. No. 87-12, at 2, 3 (1961). In 1916,
Congress established the Army and Navy Medal of Honor roll, which was
to include the name of each surviving person ``who ha[d] served in the
military or naval service of the United States in any war, . . . who
ha[d] been awarded a medal of honor for having in action involving
actual conflict with an enemy distinguished himself conspicuously by
gallantry or intrepidity, at the risk of his life above and beyond the
call of duty, and who ha[d been] honorably discharged from service. . .
.'' Act of April 27, 1916, ch. 88, 39 Stat. 53. Each surviving person
whose name was entered on the Medal of Honor roll was entitled to
receive a special pension of $10 per month for life. Id., 39 Stat. at
54. The special pension was intended by Congress to serve as a
``recognition of superior claims on the gratitude of the country'' and
to ``reward[ ] in a modest way startling deeds of individual daring and
audacious heroism in the face of mortal danger when war is on.'' S.
Rep. No. 64-240, at 2, 8 (1916).
Pursuant to section 1562(a) of title 38, United States Code, this
special pension is paid ``monthly to each person whose name has been
entered on the Army, Navy, Air Force, and Coast Guard Medal of Honor
roll, and a copy of whose certificate has been delivered to the
[Secretary of Veterans Affairs] under [38 U.S.C. Sec. 1561 (c)].'' It
is a benefit that is payable ``in addition to all other payments under
laws of the United States.'' 38 U.S.C. Sec. 1562(b).
Congress has periodically increased the special pension in an
amount it has deemed to be appropriate for this benefit. In 1961, the
rate of pension was increased by Pub. L. No. 87-138 to $100 per month
from its original rate of $10 per month. Congress recognized that,
although ``it is impossible to place a price tag on valor, honor,
patriotism, or other virtues. . . . in some cases holders of this
highest award are in destitute circumstances and several have had to go
on relief or resort to applying for welfare payments from the States in
which they reside.'' H.R. Rep. No. 87-12, at 1-2 (11961). Congress
believed that ``this pension is fully warranted in view of the
outstanding, unusual, and distinguished service rendered to the Nation
by each and every holder of the Congressional Medal of Honor.'' Id. at
2.
The rate was increased to $200 from $100 in 1978, effective January
1, 1979, by Pub. L. No. 95-479. Congress recognized that the Consumer
Price Index had more than doubled since the previous increase in 1961
``and thus the enhancement which the special pension represents ha[d]
been seriously diminished.'' S. Rep. No. 95-1054, at 34 (1978).
The rate was then increased to $400 from $200 in 1993 by Pub. L.
No. 103-161. Congress believed the increase in this special pension to
$400 was ``justified in light of the changes in the purchasing power of
the benefit that ha[d] occurred since 1979,'' and recognized that the
``increase [wa]s consistent with increases that ha[d] been provided in
the average rates of service-connected disability compensation since
that time.'' H.R. Rep. No. 103-313, at 2 (1993).
The Medal of Honor pension was last increased in 1998 by Pub. L.
No. 105-368 from $400 to $600. Congress recognized that the increase,
though still quite modest, was more generous when adjusted for
inflation than the amount originally authorized in 1916. 144 Cong. Rec.
H10,399 (daily ed. Oct. 10, 1998) (statement of Rep. Quinn). One reason
Congress supported a more generous increase was to help defray some of
the costs incurred by living Medal of Honor recipients, who are often
asked to participate in patriotic ceremonies all over the country,
which they frequently do at their own cost. Id.
S. 1113 would increase the special pension rate monthly from $600
to $1,000 and annually based on cost-of-living adjustments. When you
introduced the bill on June 27, 2001, you expressed concern that, among
the 149 surviving Medal of Honor recipients, a number of the recipients
may be struggling financially and living near the poverty line. 147
Cong. Rec. S6999 (daily ed. June 27, 2001) (statement of Sen. Specter).
Moreover, taking into consideration the expenses borne by many Medal of
Honor recipients to ``make frequent trips to provide accounts of their
act of valor and, more importantly, to speak of the lessons learned in
battle and the vigilance that freedom requires to this day,'' you
opined that ``[t]he current $600 monthly amount is simply too small . .
. to afford a minimum standard of living for our Nation's heroes given
their expenses.'' Id. In light of your remarks, although we cannot
verify the financial status of the surviving Medal of Honor recipients,
VA shares your concerns and supports enactment of S. 1113.
The costs associated with the enactment of this bill would be
$715,200 for Fiscal Year (FY) 2002, $4 million for the five-year period
from FY 2002 through FY 2006, and $9.2 million for the ten-year period
from FY 2002 through FY 2011. These costs would be subject to the PAYGO
requirements of the Omnibus Budget Reconciliation Act of 1990.
For all of the proposals that VA supports, that support is
contingent on accommodating the proposals within the budget limits
agreed upon by the President and the Congress. The Administration will
work with the Congress to ensure that any unintended sequester of
spending costs does not occur under current law or the enactment of any
other proposals that meet the President's objectives to reduce debt,
fund priority initiatives, and grant tax relief to all income tax
paying Americans.
The Office of Management and Budget has advised us that, from the
standpoint of the Administration's program, there is no objection to
this submission of this report.
Sincerely yours,
Anthony J. Principi.
______
The Secretary of Veterans Affairs,
Washington,
September 7, 2001.
Hon. Arlen Specter,
Ranking Member,
Committee on Veterans' Affairs,
U.S. Senate,
Washington, DC.
Dear Senator Specter: Pursuant to your letter of June 28, 2001, I
am pleased to provide the Committee the views of the Department of
Veterans Affairs (VA) and our cost estimate on S. 1114, 107th Congress,
which would ``increase the amount of education benefits for veterans
under the Montgomery GI Bill.'' VA's answers to your questions for the
record will be sent to you under separate cover, as will our views on
S. 1113.
S. 1114 would provide for stepped education assistance benefit
increases under the Montgomery GI Bill (MGIB) for Fiscal Years 2002
through 2004. Individuals whose obligated period of active duty is
three or more years would receive full-time monthly benefits of $800
for 2002, $950 for 2003, and $1,100 for 2004. Individuals whose
obligated period of service is less than three years would receive
monthly benefits of $650 for 2002, $772 for 2003, and $894 for 2004.
Proportionately lesser amounts would be payable for less than full-time
training.
This measure, further, would suspend the statutory annual CPI-based
adjustment in MGIB rates beginning in Fiscal Year 2002 and would
reinstate that adjustment beginning in Fiscal Year 2005.
The President's FY 2002 Budget includes the annual cost-of-living
increase for education benefits for veterans and servicemembers, but
does not include an additional MGIB benefit increase. However, the
President would support MGIB program improvements, to include a
reasonable increase in rates, if they can be accommodated within the
overall budget limits agreed to by the President and Congress. In this
regard, as mentioned in my June 7, 2001, testimony before the House
Committee on Veterans' Affairs Subcommittee on Benefits, VA does
support, within the framework of those spending limits, the stepped
MGIB rate increases contained in H.R. 1291, a bill similar to S. 1114.
Enactment of S. 1114, as drafted, would result in an increase in
benefits cost subject to the pay-as-you-go (PAYGO) requirement of the
Omnibus Budget Reconciliation Act of 1990. VA estimates the benefits
cost increase at approximately $250 million in FY 2002, a 5-year total
of $3.2 billion over the period FYs 2002-2006, and a projected 10-year
total of $8.3 billion over the period FYs 2002-2011. We are enclosing a
detailed 10-year cost estimate, together with the assumptions and
methodology used in arriving at this estimate.
The Office of Management and Budget advises that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
Sincerely yours,
Anthony J. Principi.
Methodology
a) Identification--S. 1114.
b) Highlights--This proposal provides for increases to the
Montgomery GI Bill monthly benefit payments in Fiscal Years 2002, 2003,
and 2004, The full-time rates for a participant whose obligated period
of service is three or more years would increase from $650 to $800 in
2002, to $950 in 2003, and finally to $ 1,100 in 2004. For participants
with an obligated period of service of less than three years, the full-
time rate would increase from $528 to $650 for 2002, to $772 for 2003,
and $894 for 2004. Proportionally lesser amounts would be payable for
less than full-time training.
c) Estimated Benefit Costs and Trainee Estimate--
------------------------------------------------------------------------
Obligations
Trainees ($'s in
(suction) 000)
------------------------------------------------------------------------
2002.......................................... 800 $250,000
2003.......................................... 1,700 510,000
2004.......................................... 4,200 779,000
2005.......................................... 7,700 8,07,000
2006.......................................... 11,700 833,000
2007.......................................... 17,200 872,000
2008.......................................... 24,100 946,000
2009.......................................... 31,000 1,020,000
2010.......................................... 38,200 1,105,000
2011.......................................... 45,300 1,162,000
Five-Year Obligations......................... ........... 3,179,000
Ten-Year Obligations.......................... ........... 8,284,000
------------------------------------------------------------------------
d) Administrative Costs--We assume that any additional employment
requirements or administrative costs will be absorbed with current
resources.
e) Benefits Methodology--In costing this proposal, we increased the
2001 annual average rate shown in the 2002 Congressional Budget
submission by the proposed 23.1 percent rate increase (rounded to the
nearest dollar) to compute the revised annual average benefit payment
in 2002, by 18.8 percent in 2003, and 15.8 percent in 2004, in lieu of
automatic CPI adjustments. Commencing in fiscal year 2005, educational
rate increases would once again be tied to the CPI. To compute the
cost, we multiplied the revised annual average benefit payments by the
number of chapter 30 trainees included in the 2002 Congressional Budget
submission. The costs generated from this calculation were subtracted
from the costs that were already included in the 2002 budget submission
for the annual CPI increase to arrive at the additional monthly benefit
payments. To compute the additional trainees from suction (i.e., the
effect of new individuals being drawn into the program as a result of
the proposed increased benefits), we assumed that the trainees from the
2002 Congressional Budget submission would gradually increase as the
monthly benefit rose to make attending a four-year in-state public
institution of higher learning more affordable. In the first year, we
estimate that trainees would increase by .002 percent, with incremental
increases reaching 13 percent by 2011.
f) Other Assumptions--Enactment date October 1, 2001.
______
EDUCATIONAL ASSISTANCE BENEFITS INCREASES
Question 2. Yesterday, I introduced a bill which is identical to
H.R. 1291--a bill which passed the House on June 19, 2001. That bill--
as you know--would increase the basic Montgomery GI Bill benefits by
$150 per month in each of the next three years. The Administration has
stated that it supports my bill ``if [its benefits increases] can be
accommodated within the overall budget limits agreed to by the
President and the Congress.'' Is there any reason for you to believe
that those increases cannot be so ``accommodated?'' Is it not the case
that the budget resolution made room for precisely these increases?
Answer. It is our understanding that the House Budget Resolution
did make funding available for paying the stepped increases contained
in H.R. 1291 which, as you indicate, is the same as S. 1114. Provided
these funds are not withdrawn, there is no reason to think that the
increases contained in H.R. 1291 and S. 1114 cannot be accommodated.
Question 3. I have also co-sponsored a bill with Chairman
Rockefeller--S. 1088--which would authorize the payment of an
accelerated ``up-front'' benefit to assist veteran-students who wish to
take courses leading to ``high tech'' certifications that--I am told--
are ``tickets'' to high-paying computer industry jobs. Do you support
this measure? Should we enact it and a measure increasing the basic
monthly MGIB benefit?
Answer. We support the broad acceleration concept contained in S.
1088, but believe consideration should be given to high-cost courses,
not merely high-tech courses. Although providing for accelerated
payment would be a significant improvement to the MGIB, we believe
priority should be given to an appropriate rate increase that can be
accommodated within agreed budget limits.
Question 4. The Administration has stated that--subject to budget
limitations--it supports my proposed increase in Montgomery GI Bill
benefits, but I do not know whether the Administration believes that
the increases I have proposed--increases of $150 per month in the basic
benefit during each of the next three years--would be the preferred
course of action. Is an increase in the basic benefit what veterans
need? Would you devote all budgetary allowances available to us to
increases in the monthly benefit? Or do you believe that we should
reserve some of those allowances--if we cannot do all that we would
like to do--to enhance program flexibility by, for example, allowing
accelerated benefits for high technology courses?
Answer. As stated above, we believe it preferable that available
resources be used for monthly rate increases.
Question 5. The MGIB's monthly education benefit has been increased
substantially over the past four years. What has been the impact--if
any--of these increases on the percentage of veterans who use their
education benefits? Are more utilizing the benefit than before? Are
benefits increases the key to getting more veterans to use their
benefits?
Answer. Over the last four years or so, the usage rate has been as
follows: 49.0 percent in Fiscal Year 1996; 52.8 percent in Fiscal Year
1997; 54.0 percent in Fiscal Year 1998 and 55.6 percent in Fiscal Year
1999. Currently the usage rate is 55.1 percent. While there has been
some upward movement in the usage rate due to increased benefit rates,
we would have to say that it has not been substantial. More veterans
are using their benefits than before. We do believe that substantive
rate increases such as those contained in S. 1114 and H. R. 1291 would
have an impact on benefit usage. While benefit increases are important
to the use of benefits, other factors such as advertising and outreach
also play a role.
Question 6. Of those eligible to use the various GI Bill education
benefits we have had since the end of World War II, when were usage
rates the highest? Is the VA's goal to get usage rates for Montgomery
GI Bill eligibles up to that level? In your estimation, what would it
take to encourage more eligible veterans to use their benefit?
Answer. Since World War II, the greatest usage has occurred among
those with Vietnam Era Service between August 5, 1964, and December 31,
1976, for the period of time from June 1966 to September 1988. That
usage rate was 65.9 percent. We would like to return at least to that
level of usage and hopefully even higher. The proposed increases
contained in S. 1114 and H. R. 1291 would drive the usage rate toward
that level.
Question 7. What do you believe the appropriate education benefit
level should be for the survivors of service members killed in action?
Should education benefits for survivors be in the same amounts as those
we provide to veterans?
Answer. We believe it is only fair that these benefits should be at
the same level as those provided to veterans.
Question 8. Yesterday, I sent a letter to the GAO asking that it
provide me an analysis of the dollar value of the various educational
assistance benefits--Pell grants, student loans, Hope Scholarships, tax
deductions for tuition expenses and student loan interest payments,
etc.--provided to students (and students' parents) who have not served.
My thinking is that these are necessary and good programs--but the
benefits provided to those who have served ought to exceed--and exceed
by a substantial margin--the benefits provided to those who have not.
Do you agree with that thinking? Has VA ever attempted to calculate the
worth of assistance provided to ``ordinary'' students? Do the benefits
that VA administers offer sufficient reward for service--and sufficient
incentive to serve?
Answer. We strongly agree with the thinking that educational
assistance for those who have served in the military should exceed that
offered to those who have not served. We have not undertaken a
calculation of the worth of the assistance you describe that, although
generally available, is not strictly targeted to those who have served.
However, it is clear that MGIB benefits have not kept pace with
increases in education costs so that, at current levels, the program is
not optimally meeting its recruitment and readjustment objectives. At
this time, the current level of benefits does not offer sufficient
reward for service, nor are they sufficient incentive or reward for
service. We believe the stepped rate increases contained in S. 1114 and
S. 1291 would be a good first step toward improving this situation.
PERSIAN GULF VETERANS--UNDIAGNOSED ILLNESS
Question 9. As I understand it, a Persian Gulf War veteran who
suffers an ``undiagnosed illness'' is entitled to a legal presumption
of service-connection--i.e., he or she does not have to prove that the
illness was caused by service--but only if the malady has manifested on
or before December 31, 2001. Is that understanding correct?
Answer. Yes, that is correct.
Question 10. Does the Administration have authority to extend, by
regulation, the ``presumptive period'' applicable to Persian Gulf War
veterans who exhibit undiagnosed illnesses? If so, does VA intend to
use that authority to extend the presumptive period? Or if
legislation--such as S. 409 introduced by Senator Kay Bailey
Hutchison--necessary to extend that presumptive period?
Answer. Under 38 U.S.C. Sec. 1117(b), VA has the authority to
extend, by regulation, the ``presumptive period'' applicable to Persian
Gulf War veterans who exhibit undiagnosed illnesses. We are considering
whether the ``presumptive period'' should be extended by regulation,
and we will notify you and the other members of the Committee when we
complete our assessment of this issue.
Question 11. I am advised that three out of four claims for
service-connection based on an ``undiagnosed illness'' are denied by
VA. Is this so? If veterans are entitled to a legal presumption of
service connection (assuming their symptoms have appeared on or before
December 31, 2001) how can it be that three of four claims are denied?
Answer. As of January 15, 2001, in claims for service connection of
undiagnosed illness(es), service connection for at least one such
illness was granted in 26.12% of the cases, and service connection was
denied in 73.88% of the cases. Examples of the reasons for these
denials include:
No showing that the veteran has a current disability,
The veteran has a diagnosed, rather than undiagnosed,
illness (many of these veterans are service-connected for their
diagnosed illness), or
The veteran did not serve in the Southwest Asia theatre of
operations (e.g. served in Turkey).
It should also be noted that the Gulf War cohort has a higher than
average percentage of veterans in receipt of VA service-connected
disability compensation. Additionally, Gulf War veterans have a higher
than average number of disabilities per veteran.
Question 12. Am I correct in concluding that VA is being
excessively stringent in processing Gulf War veterans' claims for
compensation based on ``undiagnosed illness?'' How else can you account
for a 75% denial rate in cases where the veteran has the benefit of a
legal presumption?
Answer. VA Service Centers' decisions in undiagnosed illness claims
for service connection involve relatively little discretion. We apply
the criteria in 38 U.S.C. Sec. 1117 and 38 C.F.R. Sec. 3.317 to the
facts of each case. As stated above, the Gulf War cohort has a higher
than average percentage of veterans in receipt of VA service-connected
disability compensation.
Question 13. By what standard does VA adjudicate claims for
compensation based on ``undiagnosed illness?'' Are those standards
consistently applied in the field? How does VA ensure the quality of
its medical examinations and decisions on these claims?
Answer. As stated above, we apply the criteria in 38 U.S.C.
Sec. 1117 and 38 C.F.R. Sec. 3.317 to the facts of each case. Our
Compensation and Pension Service reviews undiagnosed illness claims
decisions as part of its quality assurance program, known as the
Systematic Technical Accuracy Review (STAR). This process includes a
review of the adequacy of the medical examination done in each claim
reviewed. STAR not only allows VA to compare the performance of
Veterans Service Centers; it also allows VA to provide valuable
feedback to these Centers to help them avoid future errors. In addition
to STAR, we have also formed a joint VBA/VHA project to analyze and
improve the Compensation and Pension examination process.
VIETNAM VETERANS--LUNG CANCER
Question 14. S. 1091--a bill that I have cosponsored with Senator
Rockefeller--would eliminate the current requirement that respiratory
cancers manifest within 30 years of a veteran's departure from Vietnam
in order for such cancers to be presumed to have been caused by
exposure to Agent Orange. This legislation is based on the Institute of
Medicine's finding that the 30-year limitation has no scientific
foundation and that it was, therefore, arbitrary. Do you agree that we
should eliminate the 30-year ``delimiting period'' for Agent Orange-
induced lung cancer?
Answer. At this time, the Department is reviewing the findings of
the recent Institute of Medicine report, Veterans and Agent Orange:
Update 2000, on the issue of respiratory cancer. We are considering the
scientific merits of the 30-year period and we will notify you and the
other members of the Senate Veterans Affairs Committee when we complete
our assessment of this issue.
Question 15. How many claims for VA compensation based on post-
Vietnam lung cancer have been denied for failure to satisfy the 30-year
limit? Is there a way to identify these claimants? If we repeal the 30-
year limit, should we allow veterans who were denied compensation an
opportunity to re-file their claims for benefits? Should we award
denied benefits retroactively?
Answer. A search of VA databases identified 883 in-country Vietnam
living veterans whose claims for service connection for respiratory
cancer have been denied. VA does have the capability to identify the
883 claimants. Unfortunately, we do not have data regarding the denial
reason.
When claims for dependency and indemnity compensation are denied,
the claimed condition is not entered into VA databases, so this
information is not available. If the 30-year limit were repealed,
veterans who were denied would be permitted to re-file their claims,
under 38 U.S.C. Sec. 5110(g) and 38 C.F.R. Sec. 3.114. VA has not yet
had the opportunity to analyze the merits of the provision of S. 1091
which would call for retroactive awards of benefits.
Question 16. Are you aware of other ``presumptive period''
limitations within title 38 which--like the one applicable to Agent
Orange-induced lung cancer--lacks scientific foundation?
Answer. We are not aware of any limitations that lack a scientific
foundation.
Question 17. S. 1091 would, among other things, create an explicit
presumption of exposure to herbicide for veterans who served in
Vietnam. It had been my understanding that VA had already presumed
exposure. Was this not the case? If so, do we need to create a
statutory presumption now?
Answer. S. 1091 would expand the presumption of exposure to
herbicide agents to include all Vietnam veterans; the current statute
allows this presumption only for those Vietnam veterans who have one of
the diseases linked to herbicide exposure in Sec. 1116(a). VA does not
object to the expansion of this presumption. There appears to be no
basis for distinguishing veterans who have diseases not necessarily
recognized by VA as being associated with herbicide exposure for
purposes of determining whether they have been exposed to herbicides in
service.
Question 18. If a Vietnam veteran appears at a VA Regional Office
and provides proof of Vietnam service and proof of a presumptive
``Agent Orange'' disease--e.g., non-Hodgkins lymphoma or lung cancer--
does he need to prove that he was exposed to herbicides? If so, how can
he prove that?
Answer. As stated in response to question 17, a Vietnam veteran
with one of the presumptive Agent Orange diseases is presumed to have
been exposed to herbicides in Vietnam, and need not provide any proof
of exposure.
VIETNAM VETERANS--HEPATITIS C
Question 19a. What is VA's current practice on adjudicating claims
for service-connection where the veteran claims that he or she
contracted Hepatitis C virus while in service?
Answer. VA currently processes a claim for service connection for
hepatitis C as follows:
A. When VA receives a substantially complete application for
benefits based on hepatitis C infection, VA sends the claimant a letter
notifying him or her of the information and evidence necessary to
substantiate this claim. This notice is required by the Veterans Claims
Assistance Act of 2000. This letter informs the claimant of the
medically recognized risk factors for contracting hepatitis C.
B. In this notice letter to the claimant, VA informs the claimant
what information and evidence VA will try to obtain on the claimant's
behalf, and what information and evidence the claimant must submit. VA
requests that the claimant submit information describing which
medically recognized risk factors apply to him or her and the
circumstances related to how the claimant contracted hepatitis C, if
known. VA also requests that the claimant identify any medical
treatment received for hepatitis C, advising the claimant that VA will
request these medical records on the claimant's behalf to help
substantiate the claim. The claimant is also requested to submit any
evidence he or she may have relevant to this claim, including evidence
of current hepatitis C infection, evidence of risk factors or hepatitis
C infection in service, and evidence of any post-service treatment for
the condition.
C. VA makes reasonable efforts to obtain any evidence adequately
identified by the claimant from federal and non-federal records
custodians.
D. VA reviews records received and determines if service connection
can be granted on the evidence of record. This may be possible if the
evidence shows that the claimant currently has a confirmed diagnosis of
hepatitis C that was incurred in service (other than due to drug
abuse), or shows a confirmed medically-recognized risk factor for
hepatitis C infection (other than drug abuse) in service.
E. If a medical examination or medical opinion is necessary to
decide the claim, VA requests the examination or opinion. Examination
is necessary to determine the veteran's current diagnosis if the proper
confirmatory testing for hepatitis C is not of record. An examination
or medical opinion would be necessary when the evidence shows there are
conflicting risk factors--for example, blood transfusion in service as
well as a history of drug abuse or tattooing in service with history of
post-service blood transfusion--and there is no medical opinion in the
record as to which risk factor is ``at least as likely as not'' the
source of the hepatitis C infection. A VA medical examination would
also be necessary to evaluate the current status of a hepatitis C
infection if the evidence of record is inadequate to determine this.
F. Adjudicate the claim, determining if service connection is
warranted based on all the medical and lay evidence of record.
Question 19b. If Hepatitis C were presumed to have been caused by
exposure to certain risk factors--as is proposed by S. 457 now before
the Committee--what adjudication processing steps would no longer be
necessary?
Answer. A. In all claims, VA would still provide the notice
required by the Veterans Claims Assistance Act of 2000 upon receipt of
a substantially complete application for benefits based on hepatitis C
infection. This notice would notify a claimant of the information and
evidence necessary to substantiate this claim. If S. 457 were enacted,
VA would inform the claimant in this letter of the in-service risk
factors that are presumed to cause hepatitis C infection.
B. If S. 457 were enacted, this notice letter to the claimant would
still inform the claimant what information and evidence VA will try to
obtain on the claimant's behalf, and what information and evidence the
claimant must submit. VA would request that the claimant submit
information describing which risk factors, if any, apply to him or her
and the circumstances related to how the claimant contracted hepatitis
C, if known. VA would also request that the claimant identify any
medical treatment received for hepatitis C, advising the claimant that
VA will request these medical records on the claimant's behalf to help
substantiate the claim. The claimant would also be requested to submit
any evidence he or she may have relevant to this claim, including
evidence of current hepatitis C infection, evidence of risk factors or
hepatitis C infection in service, and evidence of any post-service
treatment for the condition.
C. If the claimant submits necessary information and evidence with
the substantially complete application for benefits or in response to
VA's notice letter, and the evidence confirms that the veteran was
exposed to one of the risk factors proposed by S. 457, VA may not have
to develop for further evidence. Alternatively, if the claimant
responds to VA's notice letter by identifying sources of evidence that
may confirm that he or she was exposed to one of the risk factors as
proposed by S. 457, VA would develop for those records.
D. If VA's review of these records confirms that the claimant was
exposed to one of the risk factors proposed by S. 457, then a medical
opinion on the etiology of any currently diagnosed hepatitis C may not
be necessary. A VA examination may still be necessary to establish the
current status of any hepatitis C infection.
Question 20a. Am I correct that intravenous drug use is the leading
cause of individuals newly infected with Hepatitis C?
Answer. Yes.
Question 20b. If that is so--and if Congress were to create a
presumption of Hepatitis C service-connection for veterans who, for
example, received a blood transfusion before December 31, 1992--how
would VA determine whether a veteran with post-service history of drug
use is entitled to compensation?
Answer. Service connection for hepatitis C due to blood transfusion
would be granted on a presumptive basis unless there was affirmative
evidence to the contrary to rebut the presumption (38 U.S.C. 1113),
which in the this example is the evidence of post-service history of
drug use. The source of hepatitis C infection is a medical
determination. If the source of hepatitis C infection is not apparent
in the medical evidence of record, a claims examiner schedules a VA
examination and asks the physician to give an opinion whether it is at
least as likely as not that the hepatitis C infection is due to the
blood transfusion rather than the post-service drug use.
Question 20c. Would he or she be denied the benefit of presumption?
Should he or she be denied that benefit?
Answer. The benefit of the presumption would be denied if the
medical evidence proves that the hepatitis C infection stems from drug
use rather than the in-service blood transfusion. VA must deny the
benefit of the presumption in such instance as directed by 38 U.S.C.
Sec. Sec. 1110, 1113 and 1131.
Question 21a. S. 457 would presume that Hepatitis C is service-
connected--and that the veteran, therefore, is entitled to
compensation--in cases where the veteran was tattooed or body-pierced
in service. Do you agree that Hepatitis C can be caused by tattooing or
body piercing?
Answer. Yes, but the risk of contracting hepatitis C due to
tattooing or body piercing is very minimal.
Question 21b. Do you think we should compensate persons for
diseases that have resulted from such activities?
Answer. In a case where it is shown that the veteran's hepatitis C
was the result of these activities in service (direct service
connection), VA would compensate the veteran. But we do not believe
these activities should be the basis for presumptive service
connection. According to the U.S. Centers for Disease Control and
Prevention, there are no studies in the United States demonstrating
that individuals with a history of tattooing or body piercing are at
increased risk for hepatitis C infection based on those risk factors
alone.
Question 22. I note your support for increasing the VA loan
Guaranty amount so that veterans in high cost areas can take advantage
of their home loan entitlement. Are there other enhancements which
could be made to the home loan program that would enable more veterans
to realize the dream of home ownership? Do you support the idea of
adding an adjustable rate mortgage feature to the program?
Answer. We believe that increasing the guaranty amount on VA loans
will help veterans in high cost areas realize the dream of home
ownership. We also believe that adjustable rate mortgages will help
more veterans use their home loan entitlement to become homeowners.
Under the provisions of 38 USC 3707, VA was authorized to conduct a
demonstration project to guarantee adjustable rate mortgages (ARMs)
during fiscal years 1993, 1994, and 1995. This authority was allowed to
expire for reasons of cost during a time when the Government was
running large budgetary deficits. VA supports restoring VA's authority
to guarantee ARMs, and also would support authorization for VA to
guarantee a relatively new mortgage product referred to as a hybrid
ARM.
Hybrid ARMs are mortgages having an interest rate that is fixed for
an initial period of more than 1 year. After the initial fixed rate
period ends, these mortgages are subject to interest rate adjustments,
typically on an annual basis and indexed to the corresponding term
treasury bond yield. The most popular hybrid ARMs are those with the
initial interest rate set for 3 years, 5 years, 7 years, or 10 years,
and annual adjustments afterwards. These loan products are referred to
in the mortgage industry as 3/1, 5/1, 7/1, and 10/1 ARMs, respectively.
Among these hybrid ARMs, the 5/1 and 10/1 products are the most
popular.
The availability of ARMs as a financial option would expand
veterans' ability to qualify for a mortgage, as some borrowers can
qualify for the lower initial payments on an ARM that could not qualify
for the payments on a fixed rate loan for the same dollar amount. The
availability of hybrid ARMs would give veterans the additional option
of having a fixed monthly payment for a certain number of years before
payment adjustment would be a possibility.
A VA-guaranteed ARM could be especially useful to a veteran who is
a first-time homebuyer unable to qualify for a fixed rate loan to
purchase the home of his or her choice. It would also be useful to
veterans purchasing homes when fixed interest rate loans are high, as
well as veterans who are buying in higher cost areas or who need to buy
a larger home to accommodate the needs of the family. Adjustable rate
loans are currently available through FHA and conventional mortgage
programs. Veterans should not be forced to choose between either using
their earned VA loan guaranty benefit or obtaining a loan with an
adjustable interest rate.
Question 23. By how much would the current VA backlog be reduced if
the Congress were to enact the various VA-requested clarifications
contained in Section 5 of S. 1091 of the Veterans Claims Assistance Act
of 2000? Of those claims where a previous decision had been made by the
Secretary prior to the enactment of that statute, how many have been
readjudicated using the new adjudication standard? Has the
readjudication of those claims resulted in decisions different than the
original decisions? If so, in how many claims?
Answer. The backlog of claims is, in part, due to the notice and
development provisions of the Veterans Claims Assistance Act (VCAA)
which the technical amendments proposed by VA do not address. However,
the technical amendments would clarify that the VCAA applies to claims
filed after the date of its enactment and to any claim VA had received
but had not adjudicated as of the date of enactment. They would change
current law by providing that VA would not be required to readjudicate
any claim already decided by a VA regional office but for which the
appeal period had not expired on the date of VCAA's enactment unless
the claimant requests readjudication, or the Secretary moves for it,
within two years of the date of the VCAA's enactment. Included within
this class of claims are many claims denied as not well grounded but
for which the appeal period had not expired on the date of VCAA's
enactment.
VA has made significant progress readjudicating these claims. VA
has identified more than 98,000 claims where at least one issue was
denied as not well grounded between the time period when the Morton v.
West decision was rendered and the date of enactment of the Veterans
Claims Assistance Act (VCAA). VA has completed the readjudication of
24,007 of these claims, and another 36,272 of these claims are
currently under review. VA will not stop readjudicating them even if
the technical amendments were enacted. However, the technical
amendments will allow VA to refrain from sending the VCAA notice and
development letters in claims which VA has fully developed and
adjudicated prior to the VCAA, even though they were ultimately denied
as not well grounded.
A preliminary review conducted by the Compensation and Pension
Service of 147 claims previously denied as not well grounded and
readjudicated under the VCAA show that 6 claims were granted after the
new procedures in the VCAA were applied to those claims.
In addition, the proposed technical amendment, which would remove
the prohibition on the payment of benefits if a claimant does not
submit evidence within one year of the date it was requested, would
remove an ambiguity in the current language. If the ambiguity were
resolved against VA, section 5103(b) could be interpreted as precluding
VA from deciding a claim before the expiration of one year from the
date it requested evidence. The proposed technical amendment prevents
this potential problem that would add to the backlog.
Question 24. How many loans have been made under the Native
American Veteran Direct Home Loan Program? Of those loans, how many are
in default?
Answer. Through Fiscal Year 2000, 233 loans were made under the
Native American Veteran Direct Loan Program. As of the end of April
2001, 24 of these loans were more than 90 days delinquent. VA has not
foreclosed on any loan made under this program.
______
Response to Written Questions Submitted by Hon. Ben Nighthorse Campbell
to Leo Mackay
Question 1. In 1998, Congress passed and the President signed into
law, an omnibus appropriations measure that gives the Secretary the
authority to determine what symptoms are compensable for illnesses that
the Secretary determines to warrant such a presumption based on
exposure to chemicals in service during the Persian Gulf War. And, the
law further allows the Secretary to make such determinations in
consultation with the National Academy of Sciences. Is it necessary to
pass S. 409 which would extend the presumptive period and further
define symptoms worthy of compensation? What steps are currently being
taken to make these determinations?
Answer. Currently, 38 U.S.C. Sec. 1117 provides that the Secretary
may pay compensation to any Gulf War veteran suffering from a chronic
disability resulting from an undiagnosed illness (or combination of
undiagnosed illnesses) that became manifest during active service in
the Southwest Asia theater of operations during the Gulf War or became
manifest to a compensable degree within a presumptive period (currently
ending on December 31, 2001) as determined by regulation. S. 409,
``Persian Gulf War Illness Compensation Act of 2001,'' would define
``undiagnosed illness'' as ``illness manifested by symptoms or signs
the cause, etiology, or origin of which cannot be specifically and
definitely identified, including poorly defined illnesses such as
fibromyalgia, chronic fatigue syndrome, autoimmune disorder, and
multiple chemical sensitivity''.
With regard to fibromyalgia, chronic fatigue syndrome and
autoimmune disorder service connection may be established on a direct
basis under current law. With regard to multiple chemical sensitivity,
this condition is not recognized under VA's schedule for rating
disabilities. VA has adequate authority under existing law to establish
presumptions for these conditions should [VA] conclude that scientific
and medical evidence support such action. Under 38 U.S.C. Sec. 1118,
the Secretary may determine and prescribe in regulations which
diagnosed and undiagnosed illnesses warrant such a presumption of
service connection. Therefore, VA does not support adding those
illnesses to 38 U.S.C. Sec. Sec. 1117 and 1118. Regarding S. 409's
inclusion of ``poorly defined illnesses'', this is a very vague term
and would result in great uncertainty regarding proper implementation.
In addition, we do not believe that current scientific or medical
evidence supports creation of a presumption of service connection for
such conditions. The Department is pursuing multiple research
initiatives intended to identify diseases or conditions that may be
associated with service in the Gulf War. The results of this research
will provide a scientific foundation for decisions on possible
presumptive service-connection of diseases or conditions found in
veterans of the Persian Gulf War.
S. 409 would also extend the presumptive period applicable to Gulf
War veterans' disabilities due to undiagnosed illnesses that became
manifest through December 31, 2011. Under 38 U.S.C. Sec. 1117(b), VA
has the authority to extend, by regulation, the presumptive period
applicable to Gulf War veterans who exhibit undiagnosed illnesses. We
are considering whether the presumptive period should be extended by
regulation, and we will notify you and the other members of the
Committee when we complete our assessment of the issue.
Question 2. I am a strong supporter of the Native American Veteran
Housing Loan Program. In fact I supported legislation to not only
extend the Demo Project but to require the VA to work with Indian
country in making loans. I know the VA cannot knock on every door in
Indian communities, but there are groups like the Native American
Housing Council (NAIHC) and the National Congress of American Indians
(NCAI) that can serve as conduits to Native Vets. What progress has
been made in actually making home loans to Native Veterans?
Answer. VA continues to make progress implementing the Native
American Veterans Housing Loan Program. As we reported in VA's Annual
Report to Congress for FY 2000, VA negotiated and entered into
Memoranda of Understanding (MOUs) with 2 more tribes, to bring our
total of participating governments up to 59. During FY 2000, VA field
offices issued commitments and/or closed 21 loans, for a total of 233
loans made under this pilot program since its inception.
VA also continues its efforts to develop positive working
relationships with Native American groups and tribes and relevant
government entities and to provide program information and materials to
these parties. VA field station personnel meet with tribal
representatives across the country to provide program information.
The Department actively participates in coordinated training and
outreach seminars for potential homeowners and tribal representatives
sponsored by the U.S. Department of Housing and Urban Development
(HUD)'s Office of Native American Programs (ONAP). In addition, VA
continues to distribute copies of its video, ``Coming Home; Native
American Veteran Home Loans''. This video shows Native American
veterans and tribal officials how the Native American Veterans Housing
Loan Pilot Program may be used to help them achieve their homeownership
goals.
The Department has also been an active participant in the One-Stop
Mortgage Center Initiative Task Force, created in 1998 to promote
homeownership in Indian country. This Task Force is working to identify
barriers that limit homeownership opportunities in Indian country, to
make recommendations for actions to address the barriers, and to
present a plan to implement the recommendations. The final report was
issued in October 2000. The Task Force continues its efforts to
implement its recommendations.
Chairman Rockefeller. Thank you. A couple of things. The
Montgomery GI Bill, $650, all kinds of things and suggestions
to be done with it. There are different requirements now for
service people who come home, become veterans, and they need
different kinds of training than they used to.
I wonder, Dr. Mackay, where you see the GI Bill going. What
should we be adjusting in order to serve the veteran better?
There is a traditional model, right----
Mr. Mackay. Yes, sir.
Chairman Rockefeller [continuing]. That we have all become
accustomed to over these past years and that model has to be
changing because the economy is changing and the job market is
changing. How do you see it evolving? I am not talking about a
price tag right now, I am talking about what people get to do.
Mr. Mackay. Right. Let me offer a few brief comments and
then I will ask Joe Thompson, as well.
The purpose of the GI Bill originally, and continues to be
the purpose of the Montgomery GI Bill, is, from our standpoint
at VA, the readjustment of the veteran. There is a great
opportunity cost involved with service. One obviously can't go
to a full-time educational institution. You can't avail
yourself of other opportunities. Once service is completed, the
purpose of this educational benefit is to aid in readjustment
and enhancement of the veteran as they go on to the subsequent
parts of their lives.
The original purpose of the GI Bill was to provide for 4-
year college, all the funds and books and tuition for that, and
that would certainly be a reasonable goal to seek to reinstate.
But as the work world changes and as people evolve and as
training courses become different, there are other
accommodations other than that strict 4-year higher educational
model that I think are appropriate, and a number of the bills
that are before this body recognize that, with features like
accelerated benefit payments to pay for high-cost short-
duration courses that lead to licenses or certificates or other
types of professional qualifications that pertain increasingly
to the high-technology sector, but to other sectors, as well.
VA supports----
Chairman Rockefeller. Well, if you do the high-technology
sector, sometimes that is going to mean a different way of
doing your training, different certification, different types
of test preparation, et cetera. Again, flexibility. I am
looking for flexibility.
Mr. Mackay. Right. That is certainly a key enhancement that
can come to the Montgomery GI Bill. Our priorities are in an
overall enhancement of the purchasing value of the benefit, and
I think as I stated in my statement, H.R. 1291 does a good job
of stepping up in a fairly aggressive manner, consistent with
the budget reconciliation, budget strictures that we have, to
increase those benefits. Accelerated payments, other things
that enhance flexibility, as you noted, are desirable to
enhance the Montgomery GI Bill.
Joe?
Mr. Joseph Thompson. I would have very little to add to
that. I think the two things that the bills contain primarily,
are an increase in the benefits so that education is more
affordable and more flexibility so that we can pay for the ways
people get educated in the year 2001.
Chairman Rockefeller. I have shattered protocol, which I am
going to explain in a minute and apologize for, but you would
also agree that this is going to cost more and that then
necessarily, because of the tax bill that we have just passed,
do you believe we are going to have more to spend on the
Montgomery GI Bill?
Mr. Mackay. Mr. Chairman, I know that one of the reasons
for the support, the Secretary's testimony in support of H.R.
1291 is that it can be reconciled within the budget strictures
that we have.
Chairman Rockefeller. Everything can be until it comes down
to all those things that have to be. Are you quite certain that
this one will be?
Mr. Mackay. That, of course, is left to the discretion of
this body and the other. It is a very high priority, I think.
One of the----
Chairman Rockefeller. No, it starts with you all. It is
what you are willing to fight for at the VA.
Mr. Mackay. Yes, sir. We certainly support----
Chairman Rockefeller. Support----
Mr. Mackay [continuing]. The provisions to enhance the
overall payment rates----
Chairman Rockefeller. The funding itself.
Mr. Mackay [continuing]. In the Montgomery GI Bill.
Chairman Rockefeller. OK.
Mr. Mackay. That is our testimony here today.
Chairman Rockefeller. And part of the test, I think, of you
all is how hard you fight for it. That is what I said to
Secretary Principi at the very beginning. I mean, my test of
anybody who works in the executive government, anybody that
works where Senator Akaka and I work, is how hard we fight for
what we are meant to be doing. So I will expect strong words
from you all.
Now, my horrifying breach of protocol is that I failed to
recognize my dear friend, Senator Akaka, when he came in, and I
should have interrupted and I have performed a breach of
protocol, but hopefully not a breach of friendship. If you have
any comments, Senator Akaka, we would be delighted to hear
them.
Senator Akaka. Thank you very much, Mr. Chairman. If it is
all right with you, I will make my opening statement here.
Chairman Rockefeller. Certainly.
Senator Akaka. But before I do that, I just want to tell
our witnesses that usually the Senate, whenever we have two
similar names, we name what State they are from, you know,
whether it is Thompson from Illinois or Thompson from Utah. It
is difficult if I said J. Thompson. We have two Js here, so I
hope we will have some distinction. Otherwise, we can say
counsel or Secretary.
Mr. Chairman, it is an honor for me to join you and my
colleagues on the committee at this hearing. I would like to
welcome all of you and your colleagues from the Department and
representatives of veterans' service organizations.
Earlier this month, President Bush signed into law a
limited bill to improve veterans' benefits. Among other things,
the legislation expands health insurance coverage for survivors
and dependents of veterans with service-connected disabilities
and extends life insurance coverage to the spouses and children
of service members. While I appreciate the expeditious
enactment into law of legislation to assist survivors of
service members and veterans, there remain a number of pending
measures which strive to enhance other benefits and programs
administered by the Veterans' Benefits Administration.
In particular, I am pleased that today's agenda includes
two bills that I introduced, VA home loan programs. S. 228
would permanently authorize the Native American Veteran Housing
Loan Program. This program has enabled Native American veterans
who reside on trust lands to qualify for VA home loan benefits.
The authority to issue new loans under this successful program
will end on December 31, 2001.
The other measure is S. 781, which would extend the
authority of the VA Home Loan Guarantee Program to issue home
loans to members of the selected reserve. The program has made
it possible for thousands of reservists to fulfill their dream
of home ownership. Since authority for the program expires on
September 30, 2007, this benefit can no longer be used as a
recruiting incentive, since reservists must serve for at least
6 years to qualify for the program. S. 781 would extend the
program's authority through September 30, 2015, so that this
benefit can continue to serve as a recruiting incentive.
I look forward to receiving your testimony. It is important
to hear from our veterans and the organizations that serve them
in order to ensure that benefits address the needs of veterans.
Our Nation's veterans deserve no less.
Mr. Chairman, I look forward to working with you, as I have
always done, and other members of the committee on legislation
that will provide our Nation's veterans with the benefits they
deserve. Thank you very much, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Akaka.
Before I continue my questioning, and you may have some
questioning yourself, Senator, I want to say to any staff
members of Senators of this committee who belong to this
committee but are not here, if they are writing letters or
making telephone calls or whatever in their offices, they ought
to be here. I think that Senator Specter and I are going to
keep up a drum beat. I have done this with Senator Simpson. I
have done this with Senator Murkowski. It is the overall
question which needs to be addressed firmly and frankly--why is
it that Senators do not turn out for the Veterans' Committee?
Everybody gives the lip service. Senator Akaka is always
here. Senator Wellstone is usually here. Senator Thurmond often
comes, and Senator Specter is here. But we share a mutual
frustration in the lack of attendance. We have had meetings
with staff, trying to figure out how we can do this. Can we
threaten people? Can we plant devices in their offices? I mean,
what is it that we need to do?
But the point is, we need to get Senators that belong to
this committee to come to this committee, because if they don't
come to this committee, what they are saying is that what
they--and if they are chairing some other committee or
whatever, that is fine--but there is just a pattern here of
attendance which has been for 17 years distressing to me. I am
sometimes guilty of it myself, but not as much as others. It is
not appropriate, it is not respectful, and it is not
professional.
We are going to keep count of who comes, and we may from
time to time put out lists of hearings and those who showed up
and those who didn't. There is nothing like a little
accountability to catch people's attention, not only
internally, but also the veterans organizations and the rest of
it. We are serious about this, we have talked about it, and we
are tired of dealing with empty chairs and good witnesses.
Senator Specter is here and I would welcome, sir--I have
already put your bills in the record, but I would welcome
hearing whatever you have to say, as well as your description
of your bills, or anything else you want to say.
Senator Specter. Thank you very much, Mr. Chairman. I
concur with your sentiments about the difficulties on
attendance. For 4\1/2\ years, I chaired the committee and you
were ranking member, and it was the same problem then. One of
the grave difficulties on the Senate side, unlike on the House
side, is that we have three major committees, really four major
committees. Right now, the Senate is very heavily engaged in
the Patients' Bill of Rights, a subject which will impact very
substantially on veterans, as the citizenry generally. I am
trying to work out a complex amendment on Federal versus State
court jurisdiction, and our other colleagues have other
assignments as well. But it is a relative rarity that there is
anybody here beyond the chairman and the ranking member;
Senator Rockefeller is correct about that.
The legislation which I have proposed now relates to the GI
Bill. The GI Bill has been an enormous boom to America, from
the education of World War II veterans to the present. Not too
many people in this room, as I look around, are World War II
veterans. I had GI Bill benefits from service during the Korean
War, and I visited a community college in Harrisburg a couple
of weeks ago and it is really gratifying to see so many
veterans there. Of a student body of about 600, about 400-and-
some are claiming GI Bill benefits, and those benefits do not
stretch far enough. The House has taken the lead on this, and I
think GI Bill improvements would be a way to show veterans that
there really is recognition of their service. And it would be a
way to add to the educational level of the American citizenry,
and to the Nation's productivity.
I have also introduced legislation patterned after a bill
introduced by Congressman Weldon which relates to Congressional
Medal of Honor winners. Such veterans have achieved the
Nation's highest accolade, but they receive very little
monetary compensation. We had a good legislative package last
year; Senator Rockefeller, Senator Akaka, and some of our other
colleagues have been very attentive to our veterans' interests.
We have been successful in increasing the amounts which the
administration, both Democrat and Republican, have put up. So
to that extent, veterans' interests have been protected.
I talk with some frequency about the first veteran I knew,
my father, Harry Specter, who was disappointed when they broke
their promise to give him a $500 bonus during the Depression. I
note one of the blackest days in American history was when the
veterans marched on Washington; today, if there is a
demonstration, they roll out the red carpet. Then, they rolled
out the cavalry and a major named George Patton with sabers
drawn and they killed some veterans that day. So things are not
as bad as they used to be, but they need to be a lot better.
There is a lot more I could say, Mr. Chairman, but let that
suffice for the moment.
Chairman Rockefeller. Well, that is pretty potent. Let me
continue with the line of questioning.
The question of compensating Gulf War veterans for their
disabilities has been around for a long time, and the question
of scientific evidence and all the rest of it. We went through
the same thing with Agent Orange in the Vietnam war, and
frankly, it wasn't scientific evidence that tipped the balance,
it was when Admiral Zumwalt came up when his son got cancer and
changed the political dynamic of the situation, and all of a
sudden people started paying attention.
So, yes, I recognize the importance of scientific evidence.
I also recognize the people I see, in West Virginia, the
people's homes I go into, and Senator Specter and Senator Akaka
see the same. You have kind of a catch-22 at work under our
current laws. Doctors are trained to assign a diagnosis, but a
diagnosis makes the veteran ineligible for benefits. That is
more than a catch-22, that is sort of a contradiction.
For example, a veteran who is found to have headaches or a
muscle ache would be eligible for benefits under the
undiagnosed illness authority. However, a veteran diagnosed
with migraines or fibromyalgia would not be eligible. Those are
fairly serious conditions. What do we do about that kind of
situation?
Mr. Mackay. Mr. Chairman, that is a wonderful question and
an excellent exposition. The predicament we find ourselves in
with regard to Persian Gulf veterans is, indeed, regrettable.
We are $150 million and 10 years in medical research down the
path, and still we do not have--it has been elusive to be able
to get the kind of credible scientific and medical evidence
that we need, in conjunction with the consideration of other
circumstances, that would allow us to service-connect these
disabilities, these illnesses.
We have, as you noted, taken the step to compensate people
based on disabilities, real disabilities, real hardships in
their lives that are manifested by undiagnosed illnesses. I am
in the same quandary that you are, but our approach has been,
and the approach that we support is that we have adequate
authorities in existing statute to service-connect these
illnesses--fibromyalgia, chronic fatigue, the others that you
mentioned and that are contained in S. 409 whenever and
wherever the scientific and medical evidence presents itself
and the research bears fruit and establishes a causal link.
We have received one report from the National Academy of
Sciences last year. There will be ongoing biennial reports from
the Institute of Medicine, which has a very active research
program with regard to Persian Gulf illnesses.
I would ask our Under Secretary, Mr. Thompson, to comment
further.
Mr. Joseph Thompson. Mr. Chairman, we have the authority
within law to service-connect on a direct basis those
conditions, fibromyalgia and the rest of them. We also have
done, I think, some pretty comprehensive reviews of the claims
we have received to this point. Now, for Gulf War veterans who
file claims for undiagnosed illnesses, about 26 percent of them
have been granted service connection on that basis. About
another 28 percent have been found to be entitled to some
compensation or pension on other grounds. So more than half
that have come to us receive either compensation or pension.
I think there is a misperception that the agency is perhaps
not being as attentive as it needs to be to veterans of the
Gulf War or the Gulf War era. That cohort of veterans receive
compensation at a greater rate than veterans of any other war
in the 20th century. They are, we believe, being given a fair
shake by the agency and the administrative claims process.
Chairman Rockefeller. Yes, I think the three Senators here
might probably add at this point that a lot of that came from
some unrelenting pushing, shoving, anger on the part of this
committee, embarrassment of the Department of Defense of an
unprecedented nature, which I think had an effect on all of
you. The registry got going. We discovered children and spouses
of returning veterans, et cetera. All of these things, I think,
encouraged that, and that is the way government is meant to
work. The branches of government are meant to work together.
For me, a diagnosed illness not being compensated is just a
very interesting concept when you are dealing with a veteran
and not a very pleasant one.
My time is up. Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
I am interested to hear that a higher percentage of Gulf
War veterans are being compensated. What do you base that
statistical conclusion on, Mr. Thompson?
Mr. Joseph Thompson. Those are the statistics from our
payment system. If I can, and I am going from memory on some of
this, around 5 percent of all Korean veterans receive
compensation. The numbers for Vietnam and World War II are very
close, around 9 to 10 percent. The numbers for the Gulf are
between 16 and 17 percent.
Senator Specter. Well, the Department of Defense has a
spotty record, at best, in responding to veterans' claims. But
it was particularly bad for the Gulf veterans, for the
exposures to chemicals at Khamisiyah. This committee ran a
major investigation, brought in outside counsel, and an
enormous number of claims were made and many of them could not
be documented.
I had a series of hearings in my State and we had hearings
here on Gulf War syndrome and trauma. One of the really serious
things we learned was that many officials ridiculed the claims.
It was very hard to establish that the Gulf War veterans had
been exposed to chemical substances at Khamisiyah. It was
really sort of a fluke that it was discovered. We found the
Department of Defense had just not told the truth about that.
And when we have very laboriously created these
presumptions, it has been quite a battle. When I was elected in
1980, the big issue was Agent Orange. Nobody could prove
causation. But those people had been subjected to very adverse
conditions--they had been subjected to a lot of Agent Orange--
and so we created the presumptions. And it was very difficult
to see people who had served being scoffed at.
What about the question as to the level of proof which is
required for a veteran to claim compensation, illustrative of
Agent Orange in Vietnam or exposure to chemicals at Khamisiyah?
If veterans have to fight those cases out, the Department of
Defense and the Veterans' Administration can always find a
bigger, better battery of doctors who will say that there is no
causation. They will say that they don't know, but in the
absence of affirmative proof, to what extent, Dr. Mackay,
should the traditional burden of proof be on the veteran to
prove that a specific exposure caused a specific ailment?
Mr. Mackay. My understanding, and I acknowledge that we are
proceeding in a broadly similar vein with respect to Persian
Gulf illnesses that we did with Agent Orange, we have now,
subsequent to the Agent Orange Act of 1991, we have established
ten different categories of disease where the presumption holds
that if these diseases are manifested in the prescribed period,
that Agent Orange is presumed to be the cause. That was
established by, it is my understanding, through scientific and
medical evidence with the Institute of Medicine, using fairly
lenient standards of causality.
Senator Specter. Of presumption?
Mr. Mackay. To establish the presumption.
Senator Specter. Well, when you establish a presumption, it
means you don't require any proof.
Mr. Mackay. But in order to establish a presumption, you
have to establish that there is some causality, that exposure
to Agent Orange causes these diseases.
Senator Specter. I don't think you do. When you establish a
presumption, you say that it will be presumed that X caused Y,
not that it is proved that X caused Y.
Mr. Mackay. Perhaps Under Secretary Thompson can explain
this better than I can, but my understanding----
Senator Specter. I will turn it over to you, Under
Secretary Thompson.
Mr. Joseph Thompson. I will take a shot. I think the
difference is how you go about deciding that a condition is a
presumptive condition, that standard versus a veteran who now
presents symptoms that would be a presumptive service-connected
condition, and I think----
Senator Specter. I can't understand you.
Mr. Joseph Thompson. Dr. Mackay, we have standards on when
you put a particular disease as a presumptive condition. For
example, next month, diabetes, type two diabetes will become a
presumptive condition under the Vietnam veterans dioxin
regulations. We had to meet a standard----
Senator Specter. Meaning it is presumptively caused by
what?
Mr. Joseph Thompson. Exposure to dioxin. That will be
effective July 9?
Mr. Epley. Correct.
Mr. Joseph Thompson [continuing]. So that regulation is
almost there. But you need a standard to decide which
disabilities rise to that level, to become a presumptive
condition, and I believe that is what Dr. Mackay was referring
to. What is the standard----
Senator Specter. What is that standard?
Mr. Joseph Thompson. Positive association, I believe, is
the standard.
Mr. Epley. Significant statistical association.
Senator Specter. What did you say, Mr. Epley?
Mr. Epley. I am sorry. Significant statistical association
is the standard that we used for Vietnam veterans.
Senator Specter. Statistical association?
Mr. Joseph Thompson. Right.
Senator Specter. How high does the statistical association
have to be to warrant a presumption?
Mr. Epley. The scenario that is in existence came about
under the Agent Orange Act and under litigation for Vietnam
veterans and exposure to Agent Orange. We have set up a system
with the National Academy of Science where they review the
literature and look to try to estimate a level of association.
There are four or five levels that they try to categorize it
in, based on their findings, which they submit to VA. A
determination is made by the Secretary as to whether or not it
rises to the level of a presumption.
Senator Specter. So you are saying there is no fixed
standard?
Mr. Epley. The standard is based on a court case back in
the early 1990's, the Nemor case, which told us that the causal
effect standard that we had been using at VA was too strict and
told us that we should abide by a significant statistical
association, which is----
Senator Specter. That significant statistical association
is determined by the National Academy----
Mr. Epley. That is what they use----
Senator Specter [continuing]. As they review the number of
those exposed and the number who contracted a given ailment?
Mr. Epley. Yes, sir, and the earlier reference to
legislation passed within the last 2 years for Gulf War was
paralleled on the Agent Orange Act and the arrangement that we
have with the National Academy.
Senator Specter. OK. Thank you very much. I am glad that
Senator Alan Simpson is no longer a member of this committee.
[Laughter.]
Chairman Rockefeller. Senator Akaka?
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Secretary, I am glad to hear your testimony. In
particular, I want to focus on S. 228. I am happy to know that
the VA strongly supports this program. I knew the data that
there were more Hawaiians who were taking advantage of the
program than other Native Americans, but that was the reason
for this bill.
Several years ago, I was amazed to learn that no Native
American veteran applied for housing. And, of course, the
question was why, and we discovered that, apparently, there was
no mechanism for them to do this because they were living on
trust lands, so that was a problem. So we put forth this bill
to take care of that and it has worked to some extent. It has
worked well for the Hawaiian veterans, but it has not worked
well for the other Native Americans and that is my question.
You point out here in your statement that efforts are made
to outreach to Native Americans. That causes me to wonder why,
then, are the statistics so low for Native Americans who are
taking advantage of the program? So my question to you is, what
outreach efforts are being made at this time toward Native
American veterans in this program?
Mr. Mackay. Senator, that is a good question. I am going to
have to--I am not cognizant of that and I am going to have to
ask Joe to answer your question.
Mr. Joseph Thompson. Senator, on the first part, as to why
the rate is low, among other things, one of the major
contributors, of course, is the difficulty of building on
tribal land because the ownership of the land issues tend to
present difficulties in a lot of places.
We do try to outreach. We make a number of efforts, working
through the tribal communities. Last year, we produced a film
trying to capsulize how you would go about securing a home loan
on tribal lands. We also are really making some more
significant efforts to work with other government agencies that
have agreements with tribes. We are trying to capitalize on
those agreements. Instead of VA going in and negotiating
memorandums of understanding with each tribe, we will use the
ones that HUD has negotiated, for example, as long as they are
consistent with our laws.
So we are expanding it. It still is not what it should be.
I think we do need to continue to make efforts in that regard.
But we are trying to increase Native American home ownership.
Senator Akaka. Can you also make a comment about out-
stationing? In the statement, it is suggesting that out-
stationing would be based on the tribe requesting services.
Mr. Joseph Thompson. Right now, that is very difficult for
us in the home loan program. We have been shrinking
considerably in terms of staff. We have now in fact,
consolidated what used to be in virtually every State to nine
regional loan centers. So out-basing is a very expensive
proposition for us in that regard. But we do believe that we
make people available whenever a tribe expresses a need to have
some VA employee there to help them with whatever aspect of
home loan guarantee they may be concerned about. If there are
issues where needs aren't being met, we are very open to
hearing from anyone and we will see what we can do to expand
that.
Senator Akaka. I think you know the reason why more
Hawaiians are requesting the program. It is because we have
lands, trust lands that belong to the State that they can work
out, so that works well.
Mr. Joseph Thompson. Right.
Senator Akaka. But for the American Indians, as you point
out, we have those problems. But I am hoping that we can
continue to outreach and try to help increase that number.
Mr. Joseph Thompson. I think there are some initiatives
that the U.S. Government is approaching in a more collective
way, instead of every branch that is in the housing industry
going about it in their own way. I think that may bear some
fruit.
Senator Akaka. My time is up, Senator Specter.
Senator Specter [presiding]. Thank you very much, Senator
Akaka.
Thank you very much, Dr. Mackay, Mr. Thompson, Mr.
Thompson, Mr. Epley.
Senator Specter. We will turn now to the second panel, Mr.
John Vitikacs, Mr. Sidney Daniels, Mr. Rick Surratt, and Mr.
David Tucker, if you gentlemen would come forward.
Our first witness is Mr. John Vitikacs. He began his
service with the American Legion on November 1, 1982. He was a
field service representative with the National Veterans'
Affairs and Rehabilitation Commission. He was born in
Frederick, MD, and graduated from Brownsville High School in
Pennsylvania. He served on active duty. He has a master's
degree in public administration from George Mason. Thank you
for joining us, and the floor is yours.
STATEMENT OF JOHN R. VITIKACS, DEPUTY DIRECTOR, NATIONAL
ECONOMICS COMMISSION, THE AMERICAN LEGION
Mr. Vitikacs. Good morning, Mr. Chairman. Mr. Chairman, to
my left at the table with me is Mr. C. Smithson, who is our
Assistant Director for the American Legion Task Force for
Persian Gulf Veterans, and Mr. Smithson will be available to
answer any technical issues related to the Persian Gulf and S.
409.
Mr. Chairman, in the interest of time, I would be willing
to forego my written oral remarks this morning and go straight
to questions, but I will leave that up to the chair.
Senator Specter. OK, that would be fine.
[The prepared statement of Mr. Vitikacs follows:]
Prepared Statement of John R. Vitikacs, Deputy Director, National
Economics Commission, The American Legion
Mr. Chairman and Members of the Committee:
The American Legion appreciates the opportunity to provide
testimony on various veterans' benefit legislation and several draft
bills that directly affect the 24 million veterans--past, present and
future. The American Legion continues to be deeply concerned about the
future of veterans' earned entitlements and deeply appreciate the
leadership of this Committee for addressing these important issues.
S. 131--the Veterans' Higher Educational Opportunities Act of 2001,
would amend title 38, United States Code, to modify the annual
determination of the basic benefit of active duty educational
assistance under the Montgomery GI Bill (MGIB). The measure would
change the amount of veterans' educational assistance allowance under
MGIB from a fixed amount adjusted for inflation to an amount equal to
the average monthly costs of tuition and expenses for commuter students
at public institutions of higher education that award baccalaureate
degrees (75 percent of such amount for veterans whose initial obligated
period of active duty is two years). The proposal requires the
Secretary of Veterans Affairs to determine such average monthly costs
each year and to publish such amounts in the Federal Register.
The American Legion commends the Committee for its most recent
actions, which resulted in improvements to the current Montgomery GI
Bill (MGIB) through enactment of Public Law 106-419. In particular, the
provision on licensure and credentialing greatly enhances the benefits
available under the MGIB. Nonetheless, a stronger MGIB is necessary to
provide the nation with the caliber of individuals needed in today's
armed forces. S. 131 is a good starting point to address the overall
recruitment and retention needs of the armed forces and to focus on
current and future educational requirements of the All-Volunteer Force.
Over 96 percent of recruits currently choose to enroll in the MGIB
and pay $1,200 out of their first year's pay to guarantee eligibility.
However, only one-half of these military personnel use any of the
current MGIB benefits. This is due in large part because current MGIB
benefits have not kept pace with the increasing costs of education.
Costs for attending the average four-year public institution as a
commuter student during the 1999-2000 academic year were nearly $9,000.
Public Law 106-419 recently raised the basic monthly rate of
reimbursement under MGIB to $650 per month for a successful four-year
enlistment and $528 for an individual whose initial active duty
obligation was less than three-years. The current educational
assistance allowance for persons training full-time under the MGIB--
Selected Reserve is $263 per month. Although extremely useful, the MGIB
educational allowance improvements enacted under Public Law 106-419
have not addressed the fundamental shortcomings of the program. Data
today suggests that only one-fourth of all enlistees, who enroll in
MGIB, actually complete a four-year degree of higher education.
The Servicemen's Readjustment Act of 1944, the original GI Bill,
provided millions of members of the armed forces an opportunity to seek
higher education. Many of these individuals may not have taken
advantage of this opportunity without the generous provisions of that
law. Consequently, these servicemen and servicewomen made a substantial
contribution not only to their own careers, but also to the well being
of the nation. Of the 15.6 million World War II veterans eligible for
the original GI Bill, 7.8 million took advantage of the education and
training provisions. The total education costs of the original GI Bill
(terminated on July 25, 1956) were estimated to be approximately $14.5
billion. The Department of Labor estimated that the federal government
actually made a profit because veterans earned more income and
therefore paid higher taxes. Today, a similar concept applies. The
educational benefits provided to members of the armed forces must be
sufficiently generous to have an impact. The individuals who use MGIB
educational benefits are not only taking the necessary steps to enhance
their own careers, but also, by doing so, will make a greater
contribution to their community, state, and nation.
In determining the costs of tuition and expenses under S. 131, the
Secretary would take into account tuition and fees, the cost of books
and supplies, the cost of board, transportation costs, and other non-
fixed educational expenses.
The American Legion strongly supports the provisions of S. 131.
Increasing the educational benefit available through the MGIB will
provide a better incentive to veterans to complete a program of higher
education. Conversely, several important enhancements are not
incorporated into the bill. Among these are eliminating the required
$1,200 ``buy-in'' payment. The American Legion believes that veterans
earn this benefit through the risks, sacrifices, and responsibilities
associated with military service. Eliminating the ``buy-in'' provision
would automatically enroll veterans' in the MGIB. Veterans would become
eligible to receive the earned benefit through meeting the terms of
their enlistment contract and by receiving an honorable discharge.
The American Legion is concerned that S. 131 does not increase the
rate of educational benefits earned by members of the Select Reserves.
Today, the All-Volunteer military relies on the National Guard and the
Reserves to meet its force requirements. Individuals serving in the
Select Reserves can be activated to duty at a moment's notice.
Oftentimes, these units reinforce the active-duty military around the
globe, as is presently the case in the Balkans. The American Legion
believes that members of the National Guard and the Reserves should
also receive a substantial increase in MGIB educational benefits.
Additionally, The American Legion supports House Veterans' Affairs
Committee Chairman Chris Smith's veterans' education bill, H.R. 1291--
the 21st Century Montgomery GI Bill Enhancement Act. The provisions
contained in H.R. 1291 which seek to raise the monthly rate of GI Bill
entitlements to $1,100 by 2004 will help bring current entitlements
closer to the actual cost of education in America today. While The
American Legion supports both S. 131 and H.R. 1291, it is our hope that
efforts will continue to restore the benefits afforded through the
Montgomery GI Bill to the level of the original Servicemember's
Readjustment Act of 1944.
The American Legion advocates that the following provisions must
become part of any successful overhaul of the current MGIB:
The dollar amount of the entitlement should be indexed to
the average cost of a college education including tuition, fees,
textbooks, and other supplies for a commuter student at an accredited
university, college, or trade school for which they qualify. The
American Legion supports indexing the monthly MGIB payment to the
average costs of a college education or trade school tuition. The MGIB
would then be adjusted on an annual basis to include tuition, and other
associated costs, and includes a separate monthly stipend. With these
provisions, veterans would be provided educational benefits on par with
the first recipients of the original GI Bill.
The educational cost index should be reviewed and adjusted
annually. The Chronicle of Higher Education Almanac annually publishes
the average costs at four-year public and private colleges for commuter
students and at two-year colleges.
A monthly tax-free subsistence allowance indexed for
inflation must be part of the educational assistance package. Veterans
must receive a monthly income stipend in addition to tuition
assistance.
Service members would no longer have to elect to enroll in
the MGIB upon enlistment. Enrollment in the MGIB would become automatic
upon commencement of active duty service, or active duty service for
training purposes. Veterans would still have to meet the MGIB
eligibility criteria in order to receive educational benefits.
The current military payroll deduction ($1200) requirement
for enrollment in MGIB must be terminated. The MGIB would rightly
become an earned benefit rather than a participatory benefit.
If a veteran enrolled in the MGIB acquired educational
loans prior to enlisting in the Armed Forces, MGIB benefits may be used
to repay existing educational loans.
If a veteran enrolled in MGIB becomes eligible for
training and rehabilitation under Chapter 31, of Title 38, United
States Code, the veteran shall not receive less educational benefits
than otherwise eligible to receive under MGIB.
If a veteran becomes eligible for vocational
rehabilitation training, they would not receive less educational
assistance than under the provisions of Chapter 30 of Title 38, United
States Code.
A veteran may request an accelerated payment of all
monthly educational benefits upon meeting the criteria for eligibility
for MGIB financial payments, with the payment provided directly to the
educational institution.
Separating servicemembers and veterans seeking a license
or credential must be able to use MGIB educational benefits to pay for
the cost of taking any written or practical test or other measuring
device. The American Legion commends the action taken in Public Law
106-419 that enables veterans to use MGIB eligibility to enroll in
certified education courses to obtain state licenses and certification
in specialty occupations.
The American Legion strongly encourages Congress to
increase the rate of MGIB payments to members of the National Guard and
the Reserves. Today's Total Force Concept places a greater reliance on
the National Guard and the Reserves. Citizen soldiers who choose to
enlist in the Select Reserves must be provided additional compensation
to further their individual education.
The American Legion believes that all of these provisions are
equally important to providing the appropriate and necessary
enhancements to the current MGIB.
S. 228--would amend section 3761 of title 38, United States Code,
to make permanent the Native American veterans housing loan program,
which currently terminates on December 31, 2001. The purpose of such
loans is to permit Native American veterans who are located in a
variety of geographic areas and in areas experiencing a variety of
economic circumstances to purchase, construct, or improve dwellings on
trust land.
The American Legion recognizes the sacrifices made by Native
American veterans and has no objection to permanently extending the
Native American housing loan program. Every man and women who has worn
the uniform in honorable service to this country deserves the rights
afforded them through that service.
S. 409--the Persian Gulf War Illness Compensation Act, would
clarify the standards for compensation for Gulf War veterans suffering
from certain undiagnosed illnesses and to extend Gulf War compensation
presumption.
Shortly after returning home from the 1991 Gulf War, thousands of
Gulf War veterans began complaining of unexplained multiple symptom
illnesses that alluded diagnosis or clear definition. At the time, VA
was precluded from compensating veterans for service-connected
disabilities unless the claimed condition had been clearly diagnosed.
Aware that thousands of disabled Gulf War veterans were ineligible for
disability compensation because Gulf War veterans' illnesses remained
ill defined and poorly understood, Congress developed legislation that
would permit VA to compensate these veterans. In 1994, hallmark
legislation in the form of PL 103-446 was enacted to ensure
compensation for ill Gulf War veterans suffering from unexplained
conditions commonly referred to as Gulf War veterans' illnesses. Yet
most Gulf War veterans who have filed a claim for undiagnosed illness
compensation have been denied service connection for those conditions.
PL 103-446 looked good on paper, but a dismal seventy-five percent
denial rate is the current reality for our sick Gulf War veterans
trying to receive VA service connection for Gulf War-related
undiagnosed illness.
Although the final product contained ambiguities in the language
that permitted VA to write regulations (38 C.F.R. Sec. 3.317) narrowly
interpreting section 1117 of Title 38, floor statements and hearing
transcripts from the period during which PL 103-446 was crafted make
clear that Congress intended for VA to compensate Gulf War veterans
suffering from disabilities that were likely related to their Gulf War
service, regardless of how these illnesses would be labeled by a
physician. The original intent of Congress and the spirit of the law
were also addressed in a June 3, 1998, letter from House Veterans'
Affairs Committee Chairman Bob Stump to Department of Veterans Affairs
Secretary Togo D. West. VA's response in the form of General Counsel
Opinions and Congressional testimony make it quite clear that it will
take legislative action to correct the deficiencies and injustice
caused by the vagueness of PL 103-446.
Conditions that fall under the umbrella of Gulf War veterans'
illnesses share many symptoms and can be labeled several different ways
by physicians. Among the common labels are chronic fatigue syndrome
(CFS) and fibromyalgia (FM). Although technically diagnosed, such
conditions are not well understood by the medical community and are
considered poorly defined because their exact causes remain unknown.
Moreover, researchers investigating Gulf War veterans' illnesses
recognize that the pattern of symptoms reported by Gulf War veterans
overlap with recognized but poorly defined illnesses such as FM and CFS
(this point was further discussed and supported earlier this year at a
government sponsored Gulf War veterans' illness research conference
held in Alexandria, Virginia). Despite this, a veteran with such a
diagnosis will be denied compensation under the current undiagnosed
illness law.
It must also be kept in mind that physicians undergo years of
rigorous training in order to diagnose and treat illness. Yet VA
compensates veterans who are examined by physicians who are unable to
diagnose their illness. As a result, many disabled Gulf War veterans
are left in a very precarious situation. If their examining physician
labels their illness, they are ineligible for compensation. If the
physician does not, the veteran becomes eligible for compensation. This
scenario would be comical if it did not result in the continued
suffering of ill Gulf War veterans. Additionally, there is a growing
body of evidence found in the medical literature which suggests that
the symptoms of CFS and FM so overlap with each other that these
illnesses are sometimes indistinguishable to physicians. CFS and FM are
often diagnoses that physicians arrive at after they excluded other
diseases. Patients with these illnesses do not test positive on any
available medical tests. For example, one does not test positive for
fatigue on a blood test. Although a physician may diagnose these
illnesses after spending a great deal of time with a patient, the very
nature of such conditions often results in different examining
physicians of the same patient diagnosing one or the other, or even
none, of these illnesses in the same patient.
As you can see Mr. Chairman, there are many uncertainties and
unanswered questions that encompass the multiple unexplained physical
symptoms experienced by many Gulf War veterans. To date, research into
the possible causes and long-term health effects from the multitude of
toxic agents and other hazards Gulf War veterans were exposed to during
the war, has been mostly inconclusive. Uncertainty and confusion have
also plagued effective treatment and definitive diagnosis, hindering a
proper treatment regimen and also, often times, adversely impacting the
veteran's undiagnosed illness claim, precluding the veteran from
rightfully deserved compensation. This is why it is imperative that the
law allowing compensation for such illnesses recognize the
uncertainties and limitations in Gulf War research and treatment in
order to establish a fair and just means of compensation for ill Gulf
War veterans.
Clarifying the definition of ``undiagnosed,'' for VA purposes under
the law, to include poorly defined conditions such as CFS, FM and other
such conditions is necessary in order to recognize both the original
intent of Congress and the complexities involved with Gulf War-related
research and treatment. Doing so would serve to correct the
deficiencies in the current law and help to ensure that ill Gulf War
veterans receive the compensation to which they are entitled.
Mr. Chairman, the presumptive period for undiagnosed illness claims
is set to expire at the end of this year. However, Gulf War-related
research to date, as highlighted by a September 2000 Institute of
Medicine (IOM) report on the long-term health effects of exposures
during the Gulf War, has been inconclusive. Research is ongoing and IOM
is scheduled to release several additional reports on long-term health
effects in the future. Therefore, due to the inconclusive nature of
Gulf War research and the resulting uncertainties, it would be
unconscionable to allow the presumptive period to expire at the end the
year. The nature of Gulf War veterans' illnesses and limitations and
problems with Gulf War research, as cited by IOM, warrant, at the very
least, a ten year extension of the presumptive period.
S. 457--would establish certain presumptions, which would apply to
claims for service connection by veterans suffering from hepatitis C.
Under this legislation, if a veteran is diagnosed with hepatitis C and
was exposed to one or more enumerated risk factors while on active
duty, there will be a presumption of service connection. The
presumption would apply to those veterans, who, while in service:
Received a transfusion of blood or blood products;
Were exposed to blood on or through the skin or mucous
membrane;
Underwent hemodialysis;
Experienced a needle-stick accident or medical event
involving a needle, not due to the veteran's willful misconduct;
Were diagnosed with unexplained liver disease;
Experienced an unexplained liver dysfunction or;
Served in a health-care position or specialty under such
circumstances, as the Secretary shall prescribe.
Mr. Chairman, hepatitis is not a new disease. The prevalence of the
hepatitis C virus in the veterans' population and the long-term adverse
health consequences are now recognized as a major public health issue.
It is an easily transmitted blood-borne virus, which can result in
potentially fatal health problems years or decades after being
contracted. The circumstances of military training, combat and other
related activities in locations around the world offer many
opportunities for contact with infected blood or blood products. VA
estimates that ten to twenty percent of all veterans have hepatitis C,
as compared with fewer than two percent for the general population.
Study data indicates that Vietnam veterans appear to be the group most
affected. Many of these veterans, both men and women, unknowingly
contracted the hepatitis C virus 25 or 30 years ago and may only now
become symptomatic with severe liver disease and other related
problems. Medical studies have established that this virus can remain
dormant in a person's system for their entire lifetime or, in other
individuals, it can become active at some point and attack various
organs, particularly the liver. According to VA, fifty-two percent of
liver transplant recipients have hepatitis C.
Mr. Chairman, there is sufficient and compelling scientific
evidence of a link between certain risk factors inherent in many types
of activities and duties associated with military service and the
numbers of veterans with a current diagnosis of hepatitis C. In light
of the available information, The American Legion wrote to former
Secretary of Veterans Affairs Togo D. West in August, 1999 urging him
to promulgate regulations establishing hepatitis C as a presumptive
disease for the purpose of entitlement to service connected disability
compensation and VA medical care. Although proposed regulations have
been developed, they have not been published in the Federal Register
for public comment.
Under the current law and regulations, it is very difficult for a
veteran to receive favorable action on a claim for service connection
for hepatitis C or a related medical problem, because of a general
inability to prove that the virus was, in fact, acquired during
military service. Claims by many hepatitis C veterans who may have been
treated for what was described as acute hepatitis in service are also
denied by VA. Again, because they cannot prove the current condition is
related to exposure to hepatitis C in service. Even though it is clear
that VA intends to amend the regulations and provide certain
presumptions in cases involving hepatitis C, these regulations have yet
to be issued. Preliminary indications are that the number and scope of
these presumptions will be limited.
Mr. Chairman, The American Legion believes the broad presumptions
in S. 457 would remove an often insurmountable legal hurdle to VA
compensation and medical care for veterans who are disabled from
hepatitis C and related medical problems. Once service connection is
established, they would become eligible for vocational rehabilitation
benefits and assistance. We believe action on this legislation is
essential to ensuring the welfare and wellbeing of thousands of
veterans who were unknowingly exposed to the hepatitis C virus as a
result of service in the armed forces.
S. 662--would amend section 2306 of title 38, United States Code,
to authorize the Secretary of Veterans Affairs to furnish headstones or
markers for marked graves of, or to otherwise commemorate, certain
individuals.
The American Legion continues to support this measure. It is proper
and correct to afford all veterans equal application of burial
benefits. All too often, veterans and their families are unaware that
purchasing and erecting a private grave marker voids all rights to
obtaining a government headstone. This is particularly distressing in
those instances when the veteran's spouse precedes him or her in death,
or when the veteran purchases a gravesite in advance of their death to
ease the burdens that later fall on the family. The American Legion
understands the original intent of the law that placed the restriction
on obtaining a government marker for the veteran's privately marked
gravesite. It is time to end this unfairness.
The American Legion supports the entitlement for all honorably
discharged veterans to receive an appropriate grave marker provided by
the Department of Veterans Affairs, without regard to any other private
marker or headstone that may be in place at the time of application.
S. 781--would amend section 3702(a)(2)(E) of title 38, United
States Code, to extend until September 30, 2015, the authority for
housing loans for members of the Selected Reserves who have honorably
completed at least six years of such service or who were discharged or
released from the Selected Reserve before completing six years because
of a service-connected disability.
In the current era of military downsizing and increased operations
tempo, Guard and Reserve troops are being tasked more than ever to
augment the active duty force. The American Legion recognizes the
sacrifices made by members of the Guard and Reserve forces and supports
extending the authority for housing loans to eligible members of the
Selected Reserve.
S. 912--the Veterans' Burial Benefits Improvement Act of 2001,
would increase the authorized allowance for burial and funeral expenses
for deceased veterans who: (1) at the time of death were in receipt of
veterans' disability compensation or veterans' pension benefits; or (2)
were veterans of any war or were discharged or released from active
military service for a service-connected disability and for whom there
is no next of kin or sufficient resources to cover funeral or burial
costs. The measure also increases the burial plot allowance for
veterans who, at the time of death, were receiving hospital or nursing
home care in or through the Department of Veterans Affairs. The
proposal authorizes the annual adjustment of such allowances based on
increases in the Consumer Price Index.
The American Legion views the proposed increases in certain burial
benefits as recognition that inflation has eroded the value of these
important benefits. The service-connected death benefit has remained at
$1,500 since the late 1970s. The American Legion recommends that the
service-connected death benefit should be at the least doubled.
The American Legion supports an increase in the veterans' burial
and plot allowance, and believes these benefits should apply to all
eligible veterans. Prior to OBRA 1990, all honorably discharged
veterans were eligible for these benefits. Since these benefits were
eliminated in the spirit of deficit reduction, with significant
budgetary surpluses, Congress should finally restore these benefits. A
proposed increase in the burial plot allowance will be welcomed by all
states that participate in VA's State Cemetery Grants Program. However,
the burial plot allowance paid to individual states should apply to all
veteran burials, not just those who served during a period of war.
S. 937--Helping Our Professionals Educationally (HOPE) Act of 2001,
would amend Chapter 30 of title 38, United States Code, to permit the
transfer of entitlement to educational assistance under the MGIB by
members of the Armed Forces.
Provisions of the HOPE Act include:
Each military service would choose whether to participate.
Each participating service would choose which Military
Occupational Specialties (MOS) would be eligible for benefits.
Participating service members must meet existing MGIB
criterion.
Participating service members must have completed at least
six years of service and agree to serve at least four more years.
Participating service members may transfer up to fifty
percent (50%) of their total MGIB benefit entitlement.
Spouses may use HOPE benefits after six years of service.
Children may use HOPE benefits after ten years of service.
Children must use HOPE benefits between the ages of 18 and
26.
At this time, The American Legion has no official position on the
transferability of MGIB benefits and is currently evaluating the
provisions of S. 937.
Mr. Chairman, The American Legion is pleased to provide comments on
pending legislation that seeks to improve veterans' earned
entitlements.
Draft legislation has been developed proposing a cost-of-living
adjustment (COLA) in the monthly rates of compensation for service-
disabled veterans, including the annual clothing allowance, and
Dependency and Indemnity Compensation (DIC) to surviving spouses and
dependent children of veterans who died of a service-connected
disability. The percentage of increase in these benefits would be the
same as the COLA authorized for beneficiaries under Social Security and
would be effective December 1, 2001. The President's proposed budget
for the Department of Veterans Affairs for FY 2002 included a cost-of-
living adjustment of 2.5 percent, based on the projected increase in
the consumer price index.
The American Legion supports the proposal to provide an appropriate
COLA for veterans receiving disability compensation and individuals in
receipt of DIC benefits. We believe it is important that this Committee
take the required action to ensure the continued welfare and wellbeing
of disabled veterans and their families by enacting periodic
adjustments in their benefits, which reflect the increased cost-of-
living. The American Legion also believes that annual congressional
hearings on such legislation provide an important forum to discuss
issues of concern relating to the compensation and DIC programs, which
might not otherwise be available.
Mr. Chairman, The American Legion fully supports legislation to
repeal the 30-year limit currently in place for respiratory cancers
presumptively associated with Agent Orange exposure in Vietnam. The
American Legion has long opposed this arbitrary statutory limit.
Available evidence, including recent reviews of peer-reviewed
literature by the Institute of Medicine (IOM), does not indicate that
the potential harmful effects of herbicide exposure simply cease after
30 years. As the number of veterans reaching this scientifically
unsupported limit increases with each passing day, it is imperative
that legislation correcting this great injustice be enacted in order to
stop the hardship this unjust limit has already caused for many ailing
Vietnam veterans.
It has been more than 25 years since the cessation of hostilities
in Vietnam and we still do not fully understand the ramifications of
the herbicides used during that war. Even today, as highlighted by the
recent IOM findings regarding Type 2 diabetes and acute myelogenous
leukemia (AML), research is uncovering associations between diseases
and herbicide exposure that were previously unknown. This means that
although science does not support a relationship between a certain
condition and exposure to herbicides today, tomorrow may be a different
story.
The current system recognizes the ever-changing nature of Agent
Orange research by allowing veterans diagnosed with a condition not
currently recognized by VA as associated with Agent Orange exposure to
obtain service connected compensation if the veteran submits medical
evidence linking the claimed condition to herbicide exposure in
Vietnam. Such claims are decided on a case by case basis and hinge on
medical evidence, usually in the form of expert medical opinions,
linking a particular condition in an individual to the exposure.
Currently, the law presumes exposure to herbicides for veterans who
served in Vietnam if they have been diagnosed with one of the
conditions officially recognized as associated with herbicide exposure.
However, precedent decisions from the appellate court system have held
that the law does not afford this presumption to veterans in cases
where the claimed condition is not officially recognized, even if the
veteran has submitted credible medical evidence supporting an
association between the claimed condition and herbicide exposure. In
cases such as this, the veteran has the added burden of proving actual
exposure to herbicides, requiring additional development of the claim
and often resulting in unnecessary delay and further hardship for the
veteran.
Mr. Chairman, legislation amending the current law, by removing
language that limits the presumption of herbicide exposure to cases in
which the claimed condition is officially recognized, is warranted.
Health care professionals are only just beginning to understand the
long-term health effects associated with exposure to herbicides. The
reports generated by the National Academy of Sciences (NAS) have played
a crucial role in both our understanding of health effects from
herbicide exposure and the VA compensation process regarding these
conditions. Based on where we stand today with respect to Agent Orange
research and where we need to be, The American Legion fully supports
legislation to extend NAS reviews and reports pertaining to herbicide
exposure from 10 years to 20 years. Such legislation must also extend
VA's authority to take appropriate compensation-related action based on
the findings of these reports.
The American Legion is pleased to comment on the draft bill to
amend title 38, United States Code, to facilitate the use of
educational assistance under the MGIB for education leading to
employment in the field of high technology.
Section 1 of the measure would provide accelerated payments of
educational assistance under MGIB for education leading to employment
in the high technology industry. The American Legion supports this
provision. The American Legion policy resolution on the MGIB makes no
distinctions as to what courses of study should qualify for advanced
educational assistance. Instead, we support providing advanced
educational assistance under MGIB, as required to all eligible
veterans, with the payment provided directly to the educational
institution.
Section 2 of the draft bill would amend section 3452(c) and
3501(a)(6) of title 38, United States Code, to recognize certain
private technology entities in the definition of educational
institutions. The American Legion recommends that any technology entity
providing a course of study to veterans under MGIB be subject to the
same standards and requirements as any educational institution subject
to regulation by the State Approving Agencies.
Contained in Section 10 of a separate draft bill is language that
would amend section 3703(a)(1) of title 38, United States Code, to
raise the home loan guaranty limit from $50,750 to $63,175. The
provision would increase the amount of a veteran's home loan guaranteed
by the United States from $203,000 to $252,700. The American Legion
supports this provision. However, there are locations where the
increased home loan amount will still require qualified veterans to
live significant distances from their place of employment. For
instance, a guaranteed home loan amount of $252,700 may be appropriate
in Birmingham, Alabama or Salt Lake City, Utah, but insufficient in
Washington, D.C. or Sacramento, California. The American Legion
believes that VA should study the feasibility of adjusting the amount
of government-backed loans obtained through the VA home loan guaranty
program for local economic housing conditions.
Mr. Chairman, that completes my testimony. Again, I thank you for
allowing The American Legion to provide comments on these important
issues. The American Legion looks forward to working with the members
of this Committee to improve the lives of all of America's veterans.
Senator Specter. We turn now to Mr. Sidney Daniels,
appointed Director of the VFW Action Corps and Deputy Director
of the National Legislative Service in August 1997, after
serving 6 years as Director of Veterans' Employment. He has a
B.S. degree in political science from Florida A&M in
Tallahassee. He has been with the VFW Washington Office since
1985. Welcome, Mr. Daniels, and we look forward to your
testimony.
STATEMENT OF SIDNEY DANIELS, DEPUTY DIRECTOR, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED
STATES
Mr. Daniels. Thank you, Mr. Chairman. On behalf of the over
two million members of the Veterans of Foreign Wars, I
appreciate the opportunity to participate in today's hearing
and to share our views with respect to the numerous legislative
bills under consideration.
Mr. Chairman, the first bill I would like to discuss is S.
1090, the Veterans' Compensation Cost-of-Living Adjustment Act
of 2001. We welcome the introduction of this measure, which
would increase the rate of compensation for veterans with
service-connected disabilities and the rates of dependency and
indemnity compensation paid to survivors of certain disabled
veterans. We especially welcome language in the measure that
provides that the rate of increase paid by the VA shall be
equal to the percentage rates payable under Title II of the
Social Security Act.
The VFW, therefore, strongly supports each of the
provisions of this bill, with the exception of language found
in Section 2, Subparagraph 3. We oppose the language that
states, ``Each dollar amount increased pursuant to Paragraph 2
shall, if not a whole dollar amount, be rounded down to the
next lower whole dollar.'' It is our understanding that the
practice of rounding down VA compensation to the next whole
dollar was introduced following the passage of the Omnibus
Budget Reconciliation Act of 1990, also known as OBRA.
While we certainly understand the importance of OBRA law in
terms of assisting government mangers in working toward a
balanced budget, it is the view of the VFW that our veterans
have done more than their fair share to help balance the
Federal budget and this need not continue in this day of budget
surpluses. We, therefore, oppose the permanent extension of
OBRA provisions that permit rounding down compensation
payments.
Mr. Chairman, with respect to S. 1093, the Veterans'
Benefits Program Modification Act of 2001, we concur with all
provisions of this measure but recommend a modification to
Section 3 pertaining to effective dates of awards and
reductions and discontinuance of benefits. The VFW supports the
repeal of the 45-day rule. Under the current law, widows and
widowers are required to file a claim within 45 days of the
veteran's death, while still grieving from the loss of a loved
one and at the time when they are least able to conduct
business. So we welcome the change in the 45-day rule.
But with this change, with the proposed repeal of the 45-
day rule, another result is the effective date for payment of
death pension would now become the date of claim. We recommend
that Section 5110(a) be amended to allow the effective date to
be the first date of the month in which the veteran dies,
provided VA received a claim within 1 year of the date of
death.
On a related note, Mr. Chairman, we also urge the inclusion
of language in this measure that would allow the reinstatement
of eligibility for death pension for remarried surviving
spouses upon determination of a remarriage. Under P.L. 105-178,
reinstatement of benefits for DIC compensation recipients was
accomplished, but similar provisions were not provided for
death pension recipients.
The VFW strongly supports the Veterans' Higher Education
Opportunities Act of 2001. S. 131 is progressive legislation
which, if enacted, would adequately provide for the education
needs of this nation's service members and veterans. This
measure is simple and straightforward. Every year, it indexes
MGIB, Montgomery GI Bill, payments to the average monthly cost
of tuition and expenses for a commuter student at a 4-year
public university or college. This legislation would reduce the
ever-increasing gap between what the MGIB pays out and the high
cost of attending college.
We believe that it will greatly assist recruiting efforts.
An increased MGIB benefit would make the program competitive
with the other forms of financial aid available so that
military service can become a more attractive option for our
nation's high school graduates. Simply put, more high school
graduates will be open to military service. If this legislation
is enacted, it would bring the MGIB program in line with the
other great educational programs from the World War II era,
Korea, and Vietnam. It will also advance the idea that a nation
would pay for a service member's education as a sign of
gratitude for their dedication and service to this country.
Mr. Chairman, we also support S. 937, the Helping our
Professionals Education Act of 2001. S. 937 would permit the
transfer of Montgomery GI Bill education entitlements by
members of the armed forces to their families.
Senator Specter. Mr. Daniels, your red light is on, so if
you could summarize, your full statement will be made a part of
the record.
Mr. Daniels. Yes, sir. I can conclude at that point, Mr.
Chairman. I would be happy to take questions. Thank you.
Senator Specter. Thank you very much.
[The prepared statement of Mr. Daniels follows:]
Prepared Statement of Sidney Daniels, Deputy Director, National
Legislative Service, Veterans of Foreign Wars of the United States
Mr. Chairman and members of the committee:
On behalf of the over 2 million members of the Veterans of Foreign
Wars of the United States, I appreciate the opportunity to participate
in today's hearing and to share our views with respect to the numerous
legislative bills under consideration.
the veterans compensation cost of living adjustment act of 2001
Mr. Chairman, we welcome the introduction of this legislation,
which would increase the rates of compensation for veterans with
service-connected disabilities, and the rates of dependency and
indemnity compensation paid to the survivors of certain disabled
veterans. We especially welcome language in this measure that provides
that the rate of increase paid by the VA shall be equal to percentage
rates payable under Title II of the Social Security Act.
The VFW, therefore, strongly supports each of the provisions of
this bill with the exception of language found on page 3, lines 21
through 23. The language we object to indicates that ``each dollar
amount increased pursuant to paragraph (2) shall, if not a whole dollar
amount, be round down to the next lower whole dollar amount''.
It is our understanding that the practice of rounding down
compensation to the next whole dollar was introduced following the
passage of the Omnibus Budget Reconciliation Act of 1990 (OBRA). While
we certainly understand the importance of the OBRA law in terms of
assisting government managers work towards a balanced budget, it is the
view of the VFW that our veterans have done more than their fair share
to help balance the federal budget, and this need not continue in this
day of budget surpluses. We, therefore, oppose the permanent extensions
of the OBRA provision that permits rounding down compensation payments.
VETERANS BENEFITS PROGRAM MODIFICATION ACT OF 2001
SEC. 2. EXCLUSION OF CERTAIN ADDITIONAL INCOME FROM DETERMINATION OF
ANNUAL INCOME FOR PENSION PURPOSES
The VFW concurs with each provision under this section.
SEC. 3. EFFECTIVE DATES OF AWARDS AND REDUCTIONS AND DISCONTINUANCES OF
BENEFITS
The VFW supports the repeal of the 45-day rule. Under the current
law, widows and widowers are required to file a claim within 45 days of
the veteran's death while still grieving from the loss of a loved one
and at a time when they are least able to conduct business.
On a related note, Mr. Chairman, we also urge the inclusion of
language in this measure that would allow the reinstatement of
eligibility for death pensions for remarried surviving spouses upon
termination of a remarriage. Under PL 105-178, reinstatement of
benefits for dependency and indemnity compensation was accomplished,
but similar provisions were not provided to possible death pension
recipients.
SEC. 9. REPEAL OF FISCAL YEAR LIMITATION ON NUMBER OF VETERANS IN
PROGRAMS OF INDEPENDENT LIVING SERVICES AND
ASSISTANCE
The VFW strongly supports repeal of current language that limits
the number of veterans who may participate in a program of independent
living services.
SEC. 10. INCREASE IN HOME LOAN GUARANTY AMOUNT FOR CONSTRUCTION AND
PURCHASE OF HOMES
The VFW agrees with the language in this section to amend the
current law by raising the VA home loan guaranty to $63,175, a level
that is comparable to the guaranty provided by the Federal Housing
Administration.
S. 131, THE VETERANS' HIGHER EDUCATION OPPORTUNITIES ACT OF 2001
The VFW strongly supports the Veterans' Higher Education
Opportunities Act of 2001. S. 131 is progressive legislation which, if
enacted, would adequately provide for the educational needs of this
nation's servicemembers and veterans. This measure is simple and
straightforward. Every year, it indexes MGIB payments to the average
monthly cost of tuition and expenses for a commuter student at a 4-year
public university or college. This legislation would reduce the ever-
increasing gap between what the MGIB pays out and the high costs of
attending college.
We believe that it will greatly assist recruiting efforts. An
increased MGIB benefit will make the program competitive with the other
forms of financial aid available so that military service can become a
more attractive option for our nation's high school graduates. Simply
put, more high school graduates will be open to military service.
If this legislation is enacted, it will bring the MGIB program in
line with the other great programs from WWII, Korea, and Vietnam. And
it will advance the idea that a nation will pay for a servicemember's
education as a sign of gratitude for their dedication in service of
this country.
S. 937, THE HELPING OUR PROFESSIONALS EDUCATIONALLY ACT OF 2001
The VFW supports S. 937. We believe passage of this measure with
its authority to transfer entitlements to family members will have a
major positive impact on military retention.
We strongly favor the language in section 4, which establishes that
MGIB benefits may be used for training in technological occupations
offered by non-traditional institutions.
A BILL TO AMEND SECTION 1116 OF TITLE 38, UNITED STATES CODE, TO MODIFY
AND EXTEND AUTHORITIES ON THE PRESUMPTION OF SERVICE-CONNECTION FOR
HERBICIDE-RELATED DISABILITIES OF VIETNAM ERA VETERANS, AND FOR OTHER
PURPOSES.
Mr. Chairman, the VFW greatly appreciates your efforts in drafting
this legislation, to repeal the 30-year limitation on the manifestation
of respiratory cancers as related to herbicide exposure. The VFW
supports this legislation.
There is no scientific evidence that warrants a 30-year cutoff.
That number is basically arbitrary. In April, the national Institute of
Medicine (IOM) released its Agent Orange Update 2000 report and found
that there is a growing amount of evidence that suggests that there is
an association between exposure to herbicides and cancers of the lung,
bronchus, and trachea. Further, the report found that ``the greatest
relative risk [of developing cancer] might be in the first decade after
exposure, but until further follow-up has been carried out for some of
the cohorts, it is not possible to put an upper limit on the length of
time these herbicides could exert their effect.'' (Emphasis Added)
Because current science cannot accurately forecast an end-point,
the 30-year limit on the presumption of service connection should be
unlimited, so that we can be sure that all veterans receive the
compensation they are entitled to, and the treatment they deserve.
S. 409, THE PERSIAN GULF WAR ILLNESS COMPENSATION ACT OF 2001
The VFW supports this legislation to clarify the standards used for
compensation of Persian Gulf Undiagnosed Illness. Under the current
interpretation of PL 103-446, some veterans are being denied the
compensation to which they may be entitled. For a veteran to be
eligible for compensation for an undiagnosed illness, one of the
criteria is that no known clinical diagnoses can exist that would
explain the veteran's condition.
The problem is that Persian Gulf Illness has symptoms that
frequently overlap with other illnesses, making it easy for a doctor to
misdiagnose Persian Gulf Illness. As a result, one veteran may be
granted compensation for undiagnosed illness for chronic fatigue while
the other veteran, who has similar symptoms of fatigue, may be
diagnosed with chronic fatigue and is denied compensation for
Undiagnosed Illness.
This bill will ensure the proper implementation of PL 103-446 by
refining the definition of undiagnosed illness that, in turn, will
allow Persian Gulf veterans to receive compensation in a more efficient
and convenient manner.
S. 912, THE BURIAL BENEFITS IMPROVEMENT ACT OF 2001
The VFW supports the intent of The Burial Benefits Improvement Act
of 2001 that would provide increases in burial and funeral expenses of
certain service connected veterans. The VFW further supports more
expansive legislation that also provides assistance to the spouses of
those veterans who die from non-service connected conditions.
Specifically, we recommend $1,000 for veterans who die from a non-
service connected condition. In addition, we recommend the burial plot
allowance be increased to $1,000.
Finally, we strongly support Section 2309 of this measure, which
would annually adjust the amount of burial benefits according to the
Consumer Price Index.
S. 662, TO AMEND TITLE 38, UNITED STATES CODE, TO AUTHORIZE THE
SECRETARY OF VETERANS AFFAIRS TO FURNISH HEADSTONES OR MARKERS FOR
MARKED GRAVES OF, OR TO OTHERWISE COMMEMORATE, CERTAIN INDIVIDUALS
We support this legislation to authorize the VA Secretary to
provide headstones or markers for marked graves or otherwise
commemorate certain individuals.
We are concerned, however, over the language in subsection (f) that
states ``a headstone or marker furnished under subsection (a) shall be
furnished, upon request, for the marked grave or unmarked grave of the
individual or at another area appropriate for the purpose of
commemorating the individual.'' We are concerned with the word
``appropriate''. However, we believe that the VA can clarify its
meaning when they write the implementing regulations.
S. 781, TO AMEND SECTION 3702 OF TITLE 38, UNITED STATES CODE, TO
EXTEND THE AUTHORITY FOR HOUSING LOANS FOR MEMBERS OF THE SELECTED
RESERVE
We strongly favor this measure that would amend section 3702 of
Title 38, United States Code, to extend the authority for housing loans
for members of the Selected Reserve.
S. 457, TO AMEND TITLE 38, UNITED STATES CODE, TO ESTABLISH A
PRESUMPTION OF SERVICE-CONNECTION FOR CERTAIN VETERANS WITH HEPATITIS
C, AND FOR OTHER PURPOSES.
We support this measure without further comment.
s. 1063, united states court of appeals for veterans claims
administration improvement act of 2001 and s. 1089, a bill to amend
section 7253 of title 38, united states code, to expand temporarily the
united states court of appeals for veterans claims in order to further
facilitate staggered terms for judges on that court
We support both of these measures without further comment.
Mr. Chairman, this concludes our testimony. I would be happy to
answer any questions that you, or the committee, may have.
Senator Specter. We turn now to Mr. Rick Surratt. In 1967,
he was wounded by shell fragments. He was named Deputy National
Legislative Director of the million-member Disabled American
Veterans in 1998. He has a very distinguished record with DAV's
professional staff going back to 1976. Thank you for joining
us, Mr. Surratt, and we look forward to your testimony.
STATEMENT OF RICK SURRATT, DEPUTY NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Surratt. Thank you, Mr. Chairman. I am Rick Surratt
with the Disabled American Veterans. In our written statement,
we have commented on the provisions in each of the 14 bills
before you today. I will just briefly highlight our position on
the matters of primary importance to the DAV here.
We support S. 409, which would extend for an additional 10
years the presumptive period for service connection of the
undiagnosed illnesses suffered by Persian Gulf war veterans.
Another bill before you, S. 1091, would replace the 30-year
presumptive period for respiratory cancers due to Agent Orange
exposure with an open-ended presumptive period because there is
no scientific evidence to support the 30-year limitation. We
support that provision in S. 1091 and its other provisions to
reinstate the presumption of exposure to herbicides for all
Vietnam veterans and to extend the period for adding new
diseases to the presumptive list.
For the same reason that S. 1091 would remove the 30-year
limitation for respiratory cancers, you should extend the
presumptive period for undiagnosed illnesses. Because we still
do not know the causes and exact nature of these undiagnosed
illnesses, we have no way of knowing how long after service in
the Persian Gulf it takes for them to appear. Your laws
authorize service connection to be presumed in instances where
circumstances suggest that a particular disease is due to
military service, but where circumstances also make it unlikely
that evidence will be available to prove it.
That is the case with hepatitis C, because the disease,
which is transmitted by infected blood, such as blood
transfusions for combat wounds, does not appear for many years
after the infection, thus preventing veterans from proving its
existence during service. Therefore, we support S. 457, which
would authorize a presumption of service connection for
hepatitis C.
We support. S. 662, which would allow government headstones
or markers for graves, regardless of whether they were marked
by other means.
We also believe increases in the burial and plot allowances
are long overdue. Without any adjustment for increasing costs
for several years, their value has been severely diminished.
We, therefore, support S. 912.
Of course, we appreciate and support. S. 1090, which would
provide an annual cost-of-living increase in disability
compensation, dependency, and indemnity compensation, and the
clothing allowance.
S. 1093, among other things, makes amendments to the
effective date provisions of last year's Veterans' Claims
Assistance Act. We are unsure of the practical effect of these
amendments. However, we would rather see an amendment that
would make the duty to assist provisions in that Act apply to
all cases in which veterans were erroneously denied VA
assistance by reason of the erroneous interpretation of law by
the courts.
We also would like to see a provision added that would
permit veterans to waive additional assistance under the Act.
The Court of Appeals for Veterans Claims is using this new law
to remand cases without a decision, even where the veteran
objects to the remand, in instances where the veteran knows
additional assistance from VA will not strengthen the factual
support for his or her case. Thus far, the court has refused to
let veterans waive their rights to additional assistance under
the Act.
We support provisions in S. 1093 that would remove the
limitation on participation in programs for independent living
to 500 veterans annually. While this limitation may have been
appropriate when this was a pilot program, it is not
appropriate now.
We support the provision in S. 1093 to increase the maximum
VA home loan guarantee to reflect increases in housing costs.
The current VA maximum is not high enough to support a loan for
the average-priced housing in some areas of the nation. The
increase from the current $50,750 maximum to $63,175 will give
veterans access to home ownership in these areas.
We also believe that Native American veterans living on
tribal lands should have the same opportunities for home
ownership as other veterans. We, therefore, support. S. 228,
which would change the current program for direct housing loans
to Native American veterans from a temporary pilot program to a
permanent one.
There is no question that the enhancement in these bills
for the Montgomery GI Bill are good and beneficial and should
be reported by this committee, so we hope to see that happen,
also.
Mr. Chairman, that completes my testimony and I will, as
did my other colleagues, be happy to answer any questions you
may have.
Senator Specter. Thank you very much, Mr. Surratt.
[The prepared statement of Mr. Surratt follows:]
Prepared Statement of Rick Surratt, Deputy National Legislative
Director, Disabled American Veterans
Mr. Chairman and Members of the Committee:
I am pleased to appear before you on behalf of the more than one
million members of the Disabled American Veterans (DAV) and the members
of its Women's Auxiliary to provide our views on several pieces of
legislation before the Committee.
These several bills cover a range of issues important to veterans
and servicemembers, and their families. The DAV is an organization
devoted to advancing the interests of service-connected disabled
veterans, their dependents, and their survivors. Among these bills, are
several provisions of importance to the DAV's membership. We fully
support most of these provisions, but for the reasons we state below,
we oppose or have concerns about a few.
s. 1093--veterans' benefits programs modification act of 2001
Section 2 of this bill would exclude from annual income for
nonservice-connected pension entitlement life insurance proceeds and
non-recurring income. Nonservice-connected pension is a needs-based
benefit. Entitlement and the amount of the benefit are therefore
governed by annual income and the beneficiary's net worth. While the
DAV has no mandate from its membership on this issue, stability of
pension rates and other equitable and practical considerations make
this a meritorious change. We believe, however, that the proceeds of
these types of income should also be exempted from net worth
calculations under section 1522 of title 38, United States Code, and
sections 3.274 and 3.275 of title 38, Code of Federal Regulations.
Otherwise, the beneficial purposes of this legislation may be defeated.
Section 3(a) of the bill would repeal the requirement that death
pension claims be filed within 45 days of the veteran's death to be
eligible for an award of death pension effective the first day of the
month in which the death occurred. Because the entire text of section
5110(d)(2) of title 38, United States Code, would be stricken, this
appears to leave no rule in place by which the effective date of the
award would be the first day of the month of death. Before the 45-day
rule was enacted, awards of death pension were effective the first day
of the month of death if the application was filed within 1 year from
the date of death. While we, again, have no mandate from our membership
on this issue, we suggest that what is now section 5110(d)(1), to
become 5110(d) under this bill, be amended to again apply to death
pension as it did before the 45-day rule was enacted and codified at
section 5110(d)(2).
Section 3(b) would replace the ``end-of-the-month'' rule for
reductions and discontinuances in pension awards based on increases in
income with an end-of-the-year rule. Under this amendment, any change
in entitlement to or the rate of pension consequent to an increase in
income would be the end of the calendar year in which the income
increased rather than the end of the month in which the income
increased. We have no mandate from our membership on this issue, but
this amendment appears beneficial for pension recipients and practical
for the Department of Veterans Affairs (VA).
Section 4 of this bill amends section 5102 of title 38, United
States Code, to impose a 1-year time limit upon a claimant's submission
of information necessary to complete an application for benefits, other
than Government life insurance benefits. We have no objection to this
amendment. It also amends section 5103 of title 38, United States Code,
by removing the 1-year time limitation for the submission of
information or evidence necessary to perfect a claim for benefits. This
amendment appears to remove the 1-year time limit for the submission of
evidence necessary to perfect a claim. If the Committee were to deem
the retention of such or some other requirement advisable, we suggest
that the time limit include a ``good cause'' exception. Such exception
is now included in VA's regulation, section 3.109(b), title 38, Code of
Federal Regulations. Section 3.109(a)(2) specifies the types of claims
to which the time limit applies and makes an exception for evidence
that a claimant might submit to support the credibility of a witness or
to authenticate documentary evidence timely filed. When a disposition
has become final under section 3.158 or sections 3.160(d), 20.1103,
20.1104 of title 38, Code of Federal Regulations, ``evidence to enlarge
the proofs and evidence originally submitted'' are not admissible in
that claim. Section 3.109 implemented the provisions of section 5103 in
effect before the amendments made by the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475 (VCAA). VCAA made only minor,
nonsubstantive changes in the language of the 1-year time limit.
In addition, any time limitation on the submission of evidence
should expressly indicate it is subject to other provisions that
suspend the finality of VA decisions. For example, under section
7105(c) of title 38, United States Code, an appeal initiated with a
notice of disagreement suspends the finality of a VA decision. Thus,
under VA regulations, evidence submitted before a decision becomes
final by expiration of the 1-year appeal period or submitted during the
pendency of an appeal has the same effect as if it were submitted with
the application for benefits. See 38 C.F.R. Sec. Sec. 3.156(b),
3.400(q)(i), 20.1304(b) (2000). Thus, the 1-year rule does not operate
when finality is suspended and a claim continues to be open and
pending.
The section heading indicates that section 5 of the bill clarifies
the date the VCAA modifications in the duty to assist become effective.
In amending section 7(a)(2) of VCAA, section 5(a)(1)(B) of the bill
appears to narrow the category of claims to which the VCAA applies
under section 7(a)(2). Section 7(a)(2) now applies to claims ``filed
before the date of the enactment of this Act and not final as of that
date.'' Section 5(a)(1)(B) of this bill strikes ``and not final as of
that date'' and inserts in its place, ``in which a decision had not
been issued by the Secretary of Veterans Affairs before that date.''
Because decisions are not final when issued, this gives the appearance
of excluding from VCAA's provisions claims which were decided but not
final before enactment of VCAA. However, section 5(a)(2) of this bill
appears to include these claims under section 7(b) of VCAA. Section
7(b)(2)(A) of VCAA makes it applicable to claims in which the denial or
dismissal ``became final during the period beginning on July 14, 1999,
and ending on the date of the enactment of this Act. . . .'' These
claims were finally denied between July 14, 1999, and the enactment
date of VCAA specifically on the basis that they were not ``well
grounded.'' This bill retains this language, merges old subparagraph
(B) into (A) and adds a new subparagraph (B), which seems to make VCAA
applicable to all claims not finally denied before enactment of VCAA.
The DAV believes that any claimant who received a denial of
benefits by reason of the erroneous interpretation of the well-grounded
claim requirement should be entitled to a new adjudication under the
clarification of the law by VCAA. The time in which the claim was
denied itself has no bearing on the merits of the claim or the
corresponding degree of injustice consequent to misapplication of the
law, and the time of denial should not be the basis of an arbitrary
rule which denies or affords justice for similarly situated aggrieved
claimants. For that reason, the DAV proposes language that would make
VCAA more equitably cover all claims denied because of this erroneous
interpretation of law. The first precedent decision of the Court of
Veterans Appeals, now the Court of Appeals for Veterans Claims, that
misconstrued the law as requiring claimants to prove their claims were
well grounded as precondition for VA assistance was issued on October
12, 1990. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In our proposed
language we include a provision to permit claimants to waive the duty
to assist provisions of VCAA as a way of avoiding unnecessary
prolongation of the proceedings:
Applicability and waiver:
(a) This Act shall apply to
(1) any claim denied by the Department of Veterans Affairs,
the Court of Appeals for Veterans Claims, or Court of Appeals
for the Federal Circuit on or after October 12, 1990, on the
ground that such claim was not well grounded if the claimant
requests that the Secretary readjudicate such claim within two
years from the date of enactment of this act or review is
initiated on the Secretary's own motion within such period; and
(2) any claim pending on, or filed on or after the date of
enactment of this act.
(b) The enhanced duty to assist and notice provisions of this Act
shall not apply in any case where the claimant waives those provisions
of the Act.
New subsection (b) is required to prevent the Court of Appeals for
Veterans Claims (``Court'') from remanding essentially all appeals,
even over the objections of appellants. Appellants often make specific
assignments of legal error, or clearly erroneous fact finding, in their
appeals to the Court. The Court has adopted the position that it
generally need not either consider or decide any such assignments of
error in cases where the Veterans Claims Assistance Act of 2000
(``VCAA'') applies or is potentially applicable. Rather, the Court
follows a practice of piecemeal litigation, and this practice severely
harms appellants.
The Court has concluded that where a Board decision must be
remanded because of the Board's failure to consider or apply the VCAA
the appeal is at an end. E.g., Mahl v. Principi, No. 99-1678 (U.S. Vet.
App. June 7, 2001). For example, an appellant raises alleged legal
errors committed by the Board in an appeal to the Court. The Court,
either on its own motion or at the urging of the Secretary, concludes
that a remand is required for further proceedings before the VA
pursuant to the VCAA. The Court will decline to consider the
assignments of alleged legal error advanced by the only party entitled
to invoke the Court's jurisdiction, the claimant. Mahl v. Principi.
Rather than resolve the legal dispute that caused the appeal to be
brought to the Court, the Court remands the case to the Board with the
disputed issue(s) of law entirely unsettled. When the Board then
discharges any additional duty it may owe to the claimant under the
VCAA, the Board has no reason to revise its treatment of the case with
respect to the claimant's alleged errors. The Court has not overturned
the Board's prior decision. The claimant has no recourse other than to
appeal a second time, thereby having lost a significant amount of time
and potentially legal fees associated with the original appeal, the
remand to the Board, and the second appeal to the Court.
The VCAA grants additional rights to those claiming benefits from
the VA. To many, however, the benefit of VCAA is only theoretical
because VA assistance or more thorough notices will not materially
affect the outcome of their claims. Such claimants should be permitted
to waive their rights when they determine such a waiver is in their
overall interest. The Court should not be permitted to use VCAA as a
pretense to summarily remand cases to the Board. In short, VCAA should
not become a tool to delay justice. The Court has strongly indicated
that it will not permit such a waiver and has to date not allowed a
waiver even though a number of appellants have attempted to waive their
rights under the VCAA. The VCAA has become a heavy burden rather than a
benefit to some claimants at the hands of the Court. Congress should
act now to relieve that unnecessary burden.
Section 6 of the bill would prohibit the payment or provision of
specified veterans' benefits in the case of a veteran who is a fugitive
felon. We infer that the public policy reasons for this section would
be that felons, assuming they could somehow receive and expend their
veterans' benefits while fugitives, should not be given government
assistance while they are fleeing the justice system of that government
and should not have VA benefits to aid in their evasion of the
authorities. It is doubtful, we believe, that a fugitive would be able
to receive and use most of these benefits, for example, a home loan. We
particularly object to the denial of these benefits to dependents.
Under current law, the compensation of an imprisoned veteran can be
apportioned to dependents. The loss of earnings consequent to
disability adversely effects dependents, and compensation is intended
to make up for the loss of earnings. Dependents of veterans, especially
children, are in no less need of the compensation they rely on for the
necessities of life when a veteran is imprisoned. If compensation were
discontinued upon the veteran's incarceration, innocent dependents
would be twice harmed by the actions of the veteran. The same is true
with respect to depriving dependents of compensation when the veteran
is fleeing justice and unavailable to support them. If this provision
is enacted, it should be applicable only to the fugitive veteran.
Section 7 of the bill extends to veterans incarcerated for felonies
committed before October 7, 1980, the same limitation on payment of VA
benefits applicable to veterans incarcerated for felonies committed
after that date. The DAV has no position on this provision of the bill
except to note that it would appear to give retroactive effect to a
measure that could be viewed as punitive.
Section 8 of the bill would override a judicial interpretation of
section 3512(b) of title 38, United States Code. Under section 3501(a)
of title 38, United States Code, a spouse becomes eligible for
educational benefits when the veteran's service-connected disability is
rated permanent and total, the veteran dies while so rated, or the
veteran dies of a service-connected disability. The Court of Appeals
for Veterans Claims held that the plain language of section 3512(b)
provides that the 10-year delimiting period for a spouse's use of
educational benefits ends 10 years after the latest of any of those
three events. Under existing law, the spouse of a veteran who died
while rated permanent and total would have already become eligible when
the permanent and total rating was assigned, but the death while so
rated begins a new 10-year delimiting period. While the effect of this
bill is somewhat unclear to us, it appears to make the law more
restrictive. It appears to provide that the 10-year period will end 10
years from the first event by which the spouse became eligible, unless
the spouse elects an alternative later date as specified in the bill.
It has always been congressional intent that laws governing veterans'
benefits be liberally applied in favor of beneficiaries. In this
instance, the Court followed the plain language of the law to give it
an effect favorable to veterans' spouses. Under existing law, an
eligible spouse would always automatically be entitled to the latest
possible delimiting date, as it should be. Based on our understanding
of the bill before us, we prefer existing law and therefore oppose this
part of the bill.
Section 9 of the bill would remove the limitation on the number of
veterans who, during a fiscal year, may participate in programs of
independent living. For service-connected disabled veterans who are
incapable of rehabilitation to achieve a vocational goal, VA may
provide a program of independent living services and assistance to
enable the veteran to achieve maximum independence in daily living.
This program began as pilot, and, as such, was limited to 500
participants each fiscal year. When the program was made permanent,
this limitation was retained in section 3120 of title 38, United States
Code, with priority given to veterans whose inability to achieve a
vocational goal was solely attributable to the effects of the service-
connected disability. The change in this bill would replace the
numerical limitation and priority with the priority only.
We understand that this program--beyond the independence and
incidental benefits afforded some of our most seriously disabled
veterans--also results in cost savings for the Government. It saves the
Government the high costs of nursing home care for those veterans who,
but for this program, would enter nursing home care and those veterans,
who by reason of this program, are able to leave nursing home care to
live independently in their communities. The DAV fully supports section
9 of this bill.
Section 10 of the bill would increase the maximum amount of the VA
home loan guaranty to $63,175. To make home ownership easier for
eligible veterans and other persons, the VA home loan guaranty program
creates conditions in which lenders extend credit under terms more
favorable than they do to the general population. VA's guaranty of
repayment allows lenders to make loans without borrower down payments
and other safeguards that would generally be necessary under
conventional lending practices. Under mortgage industry standards, at
least 25% of the total mortgage loan must be covered by the guaranty to
adequately protect the lender against borrower default. With the
current $50,750 maximum for a VA home loan guaranty, this effectively
limits veterans to homes costing a maximum of $203,000, unless they can
make up the difference with a down payment. A recent survey by the
Federal Housing Finance Board showed average home prices higher than
$203,000 in several areas of the Nation. Several years have passed
without any adjustment in the maximum home loan guaranty, and the
erosion of the benefit in the face of increasing housing costs has put
housing beyond the reach of veterans living in these several areas of
the Nation. To make VA loan amounts match maximum loan amounts proposed
for the Federal Housing Administration (FHA), the maximum VA guaranty
must be increased to $63,175, which would allow VA loans up $252,000.
As one of the four organizations who make this recommendation in the
Independent Budget, the DAV fully supports this section of the bill.
S. 1091--BILL TO AMEND PROVISIONS FOR SERVICE CONNECTION OF
DISABILITIES RELATED TO HERBICIDE EXPOSURE
Section 1(a) of this bill would repeal the requirement that
respiratory cancers must manifest to the required degree within 30-
years after the veteran's service, and section 1(b) provides for a
beginning date of compensation in an amount that would have been paid
had this requirement not been in effect. Inasmuch as this limitation
apparently has no scientific basis, the DAV supports repeal of the 30-
year limitation with retroactive effect.
Section 1(c) would reinstate the presumption of exposure to
herbicides for Vietnam veterans. From 1980 to 1999, VA presumed
exposure to herbicides in the case of any Vietnam veteran who claimed
exposure, in recognition that circumstances make it near impossible to
prove or rule out exposure in individual cases and in observance of the
benefit-of-the-doubt rule. Following a court decision in which the
court had no cognizance of the presumption and did not recognize it, VA
conveniently abandoned the presumption, although the circumstances
responsible for this policy and its legal premises had not changed.
Now, the only veterans entitled to the presumption of exposure to
herbicides are those who claim compensation for disabilities subject to
the statutory presumption of service connection. Others are left with
the often impossible burden of proving exposure even though existing
records are insufficient to document individual exposure in most
instances. The DAV strongly supports section 1(c) of this bill.
Section 1(d) extends the process and sunset period from 10 to 20
years for adding additional diseases to the list of those to be
presumed service connected due to herbicide exposure. Because
scientific knowledge remains incomplete regarding the effects of
herbicide exposure, we believe this extension is fully justified. The
DAV therefore supports this section of the bill.
S. 1090--VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF 2001
This bill would increase the rates of disability compensation,
dependency and indemnity compensation, and the clothing allowance by
the percentage of annual increase in the cost of living, with rounding
down of the adjusted rates to the next lower whole-dollar amount. These
increases would be effective December 1, 2001.
Congress must adjust these benefit rates regularly to avoid the
decrease in their value that would otherwise occur by reason of rising
costs of goods and services. The DAV supports this bill. However, we
continue to oppose rounding down of compensation increases, and we urge
this Committee to reject recommendations to permanently extend rounding
down provisions.
S. 1089--BILL TO AUTHORIZE ADDITIONAL JUDGES AND REPEAL JURISDICTIONAL
NOTICE OF DISAGREEMENT REQUIREMENTS FOR COURT OF APPEALS FOR VETERANS
CLAIMS
Section 1 of this bill would temporarily authorize two additional
judges for the Court of Appeals for Veterans Claims. These additional
judges would be appointed to the Court and will have gained experience
in veterans' law before several of the Court's current judges retire
near the same time. The DAV supports the goals of section 1 of this
bill. Section 2 of the bill repeals the requirement for a written
notice by a judge regarding acceptance of reappointment as a condition
for retirement. The DAV has no objection to this provision.
Section 3 of the bill repeals sections 402 and 403 of the Veterans'
Judicial Review Act, Public Law 100-687. To limit the workload of the
newly created court, Congress restricted the Court's jurisdiction to
cases in which the administrative appeal was initiated by a notice of
disagreement on or after the date of enactment of the judicial review
bill, November 18, 1988. With judicial review legislation, Congress
relaxed some of the attorney fee restrictions, but limited authority
for attorney fees to cases in which the notice of disagreement was
filed on or after the date of enactment of Public Law 100-687. The
jurisdictional and attorney fee restrictions no longer serve any
beneficial purpose, but can complicate appeals or present additional
issues that the Court must resolve. The DAV supports this section of
the bill.
While we are pleased to see the Committee undertaking ways to
improve judicial review of veterans' claims, we are disappointed that
none of these bills incorporate Independent Budget recommendations for
improving the judicial appeal process. The Independent Budget
recommends legislation to change the standard for judicial review of
questions of fact in a way that will have the courts enforce the
benefit-of-the-doubt rule. It also recommends limited judicial review
of changes to VA's Schedule for Rating Disabilities and expanded
jurisdiction of the Court of Appeals for the Federal Circuit to
authorize that court to review questions of law.
S. 1063--UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
ADMINISTRATION IMPROVEMENT ACT OF 2001
This bill, introduced by request, would authorize the Court to
charge participants attending the Court's judicial conferences a
registration fee and would authorize the Court to expend the funds
collected to defray the expenses of judicial conferences and other
activities and programs that are designed to foster bench and bar
communication and relationships or the study, understanding, public
commemoration, or improvement of veterans law or of the work of the
Court. The DAV supports the goals of this bill.
S. 1088--AMENDMENTS TO MONTGOMERY GI BILL TO AUTHORIZE ACCELERATED
PAYMENTS FOR EDUCATION IN HIGH TECHNOLOGY AND FOR OTHER PURPOSES
This bill makes the Montgomery GI Bill more flexible to accommodate
the non-traditional educational programs now offered for employment in
the high technology industry. These programs compress training into
short-term courses but cost as much or more than the more lengthy
courses offered over a full college term. This bill will allow veterans
attending such courses to elect to receive their educational allowances
in accelerated payments. Although the DAV has no mandate from its
membership on this issue, we believe this bill has beneficial purposes
and should be reported by the Committee.
S. 131--VETERANS' HIGHER EDUCATION OPPORTUNITIES ACT OF 2001
S. 131 would increase the Montgomery GI Bill allowance to reflect
the average cost of tuition. The current GI Bill allowance is
substantially less than the average costs of college. Although the DAV
has no mandate on this issue from its membership, this bill is
beneficial to veterans and should be reported by the Committee.
S. 228--BILL TO MAKE THE NATIVE AMERICAN HOME LOAN PROGRAM PERMANENT
The program under which VA provides direct housing loans to Native
American veterans living on trust lands began as a 5-year pilot in
1993. It has been extended but is due to expire in 2002. S. 228 would
make it a permanent program. We believe Native American veterans should
have the same opportunities for home ownership that other veterans
enjoy. The Committee should favorably consider this bill.
S. 409--PERSIAN GULF WAR ILLNESS COMPENSATION ACT OF 2001
This bill specially extends the presumptive period for undiagnosed
illnesses of Persian Gulf War veterans to December 31, 2011, a period
of 10 additional years from the expiration date set by the Secretary of
Veterans Affairs in accordance with specific rulemaking authority
delegated to him in section 1117 to title 38, United States Code. This
bill also includes in the meaning of ``undiagnosed illnesses'' poorly
defined illnesses that have been given diagnostic labels and prescribes
signs and symptoms that will be considered a manifestation of an
undiagnosed illness.
Because the causes and underlying disease mechanisms responsible
for undiagnosed illnesses are still unknown, the appropriate
presumptive period is still unknown. Extension of the presumptive
period is therefore warranted. We also believe that clarification of
the meaning of undiagnosed illnesses to include poorly defined
illnesses will prevent inappropriate disallowance of these claims by
VA. The DAV fully supports extension of the presumptive period and the
other clarifying provisions of this bill.
S. 457--PRESUMPTION OF SERVICE CONNECTION FOR HEPATITIS C
For veterans suffering from hepatitis C who, during military
service before December 31, 1992, were exposed to specified known risks
of hepatitis C infection, this bill would authorize a presumption of
service connection. The DAV submits that service connection for
hepatitis C is fully justified when a veteran has a history of exposure
during service that could have transmitted the infection. Although we
would prefer to see this issue resolved by regulations issued by the
Secretary of Veterans Affairs, we support the goals of this bill.
S. 662--HEADSTONES OR MARKERS FOR MARKED GRAVES OR TO COMMEMORATE
CERTAIN INDIVIDUALS
This bill would remove the restriction that authorizes government
headstones or markers for unmarked graves only. The DAV believes that
any eligible person should be entitled to receive a headstone or
marker, regardless of whether the grave or place of commemoration has
been marked in some other manner. The DAV supports S. 662.
S. 781--EXTENSION OF AUTHORITY FOR HOUSING LOANS TO MEMBERS OF THE
SELECTED RESERVE
The authority for housing loans to members of the Selected Reserve
is set to expire on September 30, 2007. S. 781 would extend the
expiration date to September 30, 2015. The DAV has no mandate on this
issue, but we have no objection to its passage.
S. 912--BILL TO INCREASE BURIAL AND PLOT ALLOWANCES
This bill would increase the burial allowance for veterans who die
of service-connected disabilities from $1,500 to $3,713 and would
increase the burial allowance for other eligible veterans from $300 to
$1,135. It would increase the plot or interment allowance from $150 to
$670.
Our Government provides burial allowances as a final measure of
appreciation for service rendered on behalf of the Nation and to help
ensure that our Nation's military veterans will be buried with the
dignity they deserve. However, over the several years these allowances
have not been adjusted, the value of the benefit has eroded to the
point they no longer provide a substantial contribution to the costs of
burial. The DAV supports S. 912.
S. 937--HELPING OUR PROFESSIONALS EDUCATIONALLY (HOPE) ACT OF 2001
This bill would permit servicemembers to elect to transfer their
entitlement to educational assistance under the Montgomery GI Bill to
dependents, allows for election of an accelerated payment of the
educational allowance, makes GI Bill benefits available for training
provided by other than colleges and traditional educational
institutions, and extends the time in which members of the Selected
Reserve may use their educational benefits. The DAV has no mandate on
these issues, but we do not oppose its enactment.
CLOSING
The DAV sincerely appreciates the introduction of these bills and
the Committee's interest in improving benefits and services for
veterans, and we appreciate the opportunity to appear before the
Committee to testify on these important measures.
Senator Specter. We now turn to David Tucker, Associate
Legislative Director of Paralyzed Veterans of America. He has
been at the organization since 1993. He has a Bachelor's in
history from the University of Utah and a Doctor of
Jurisprudence from William and Mary. Thank you for joining us,
Mr. Tucker, and we look forward to your testimony.
STATEMENT OF DAVID M. TUCKER, SENIOR ASSOCIATE LEGISLATIVE
DIRECTOR, PARALYZED VETERANS OF AMERICA
Mr. Tucker. Thank you, Senator Specter, Senator Akaka. For
the sake of brevity, I would also be willing to forego my oral
statement with the assumption that my written statement is made
part of the record and just go straight to questions.
Senator Specter. Without objection, it will be made part of
the record.
[The prepared statement of Mr. Tucker follows:]
Prepared Statement of David M. Tucker, Senior Associate Legislative
Director, Paralyzed Veterans of America
Chairman Rockefeller, Ranking Member Specter, members of the
Committee, on behalf of the Paralyzed Veterans of America (PVA) I am
pleased to present our views on benefits-related legislation pending
before the Committee.
The ``foundation document'' of veterans' benefits was an act of the
English Parliament in its 1592-1593 session. Parliament passed ``An
Acte for the Reliefe of Souldiours'' to provide for the soldiers and
sailors who had served since the defeat of the Spanish Armada in 1588.
As the Act states, in pertinent part and with modern spelling:
For as much as it is agreeable with Christian Charity,
Policy, and the Honor of our Nation that such as have, since
the 24th day of March, 1588, adventured their lives, and lost
their limbs, or disabled their bodies--or shall hereafter
adventure their lives, lose their limbs, or disable their
bodies in defense and service of Her Majesty and the State--
they should, at their return, be relieved and rewarded to the
end that they may reap the fruit of their good deservings and
that others may be encouraged to perform the like endeavors; be
it enacted[.] (Emphasis added). From House Committee Print 4,
90th Congress, 1967.
Indeed, veterans' benefits must be looked at as a means for a
nation to recognize and reward the service of its veterans as well as
to encourage future generations to serve with the promise that these
benefits will be there for them. PVA's expertise is in health care and
specialized services, and we note that the provision of adequate
budgets for the Department of Veterans Affairs (VA) health care system
sends an important signal regarding how we treat our veterans.
Likewise, the benefits measures we will address today send a message, a
message meant to assure the men and women who serve in our Armed Forces
that we shall not forget their sacrifices, or their service.
With an all-volunteer service, it is essential that we make
military service attractive and that we encourage all segments of
society to serve our Nation. Military service should be a top option,
not an option of last resort. This is especially critical in periods of
economic expansion and low unemployment. The way we treat veterans
today will either encourage or discourage the men and women currently
contemplating service. This is why it is so important that benefits
promised be delivered, and that these benefits maintain their original
goals, and their original intentions.
The benefits measures we are addressing today may be viewed as
covering the gamut of benefits, from recruitment and retention, to
achieving earned benefits after discharge, to providing fitting
memorials to deceased veterans.
PVA believes that the over-arching goal of Montgomery GI Bill
(MGIB) legislation should be first, the improvement of benefits;
second, the provision of flexible alternatives to a traditional
university education to meet the needs of a new century while staying
true to the intent underlying the MGIB; and third, the provision of
transferability as a tool to retaining the men and women who possess
the critical skills and specialties demanded by our evolving Armed
Services.
PVA supports S. 131, the ``Veterans' Higher Education Opportunities
Act of 2001.'' PVA has long supported increases in the MGIB. Recently,
the House of Representatives passed H.R. 1291, the ``21st Century
Montgomery GI Bill Enhancement Act,'' which increased the basic monthly
benefit. We believe that this is a step forward, but as we testified
before the Benefits Subcommittee, we also believe that the MGIB benefit
should be ``tied to the average cost of tuition at public colleges or
universities.'' S. 131 accomplishes this goal.
When the GI Bill was first enacted in 1944, it covered the costs of
tuition and fees at any college or university to which the veteran
gained admittance and provided a monthly amount equivalent to $500 for
single veterans and $750 for married veterans in 2001 dollars.
Currently, the MGIB provides only $650 per month. If the MGIB is to be
used as a meaningful tool for recruitment purposes, a veteran who has
served the requisite amount of time should be assured of a benefit that
will essentially meet the tuition costs of a college education. S. 131
also guards against the deleterious effects of inflation by updating
annually the amount provided based upon a benchmark set by the College
Board. If S. 131 were in place today, the monthly stipend for this
academic year would be $1025.
S. 131 meets the intent underlying the original GI Bill, and if we
are to promote education in the 21st century, as well as work to ensure
that military service always attracts large segments of our population,
then S. 131 should be passed by this Committee and this Congress.
PVA also supports S. 1088, a bill to facilitate the use of
educational assistance under the MGIB for education leading to
employment in high technology industry. This measure would allow
veterans to use their MGIB benefits in courses leading to certification
in technical fields. If the MGIB is to be used not only for recruitment
purposes, but also as a means of enabling a veteran to make a smooth
transition back to civilian life, then S. 1088 is a vital means to
accomplish these goals.
Finally, we support S. 937, the ``Helping Our Professionals
Educationally (HOPE) Act of 2001.'' S. 937, by providing limited
transferability to family members of MGIB benefits, would be a powerful
incentive to active duty personnel to remain in military service. In
addition, as our military forces continue to evolve to meet the
challenges of a new century, S. 937 would provide the means to enable
the Armed Services to target and retain individuals with critical
skills and specialties.
PVA believes that all three measures relating to the MGIB should be
passed. All three measures would provide a powerful benefit that would
promote education for our Nation, promote recruitment in our Armed
Services, and be a potent tool to retain military personnel with
critical skills and specialties.
PVA believes that statutes and regulations governing the provision
of benefits for veterans and their dependents should be construed
liberally. For this reason we take no position regarding section 8 of
S. 1093. It is not clear to PVA whether this proposed amendment would
narrow the options currently enjoyed by spouses and dependents.
PVA supports S. 228, a bill to make permanent the Native American
Veteran Housing Loan Program. Since the inception of this pilot program
in 1992, and its extension from 1997 to December 31, 2001, 233 Native
American veterans, residing on trust lands, have been able to achieve
the dream of home ownership. We support making this successful pilot
program permanent.
PVA is not opposed to S. 781, a bill to extend the authority for
housing loans for members of the Selected Reserve. PVA supports
extending the authority of the VA Home Loan Program through September
30, 2015. This is an important benefit to members of the National Guard
and Reserve who serve the requisite six years, and by extending this
program for an additional eight years will ensure that this benefit may
indeed be used as a recruiting incentive until 2009.
In addition, PVA supports section 10 of S. 1093. PVA notes that the
intent underlying this section is to ameliorate the effect of inflation
upon the home loan guaranty amount and to enable this program to keep
pace with the guaranty amounts provided by Federal Housing Authority.
This amount was last increased in 1994, and PVA supports the increase
contained in this section from $50,750 to $63,175.
PVA supports S. 1091, a bill to modify and extend authorities on
the presumption of service-connection for herbicide-related
disabilities of Vietnam veterans. Because of the impossible task of
determining who in fact might have been exposed to Agent Orange,
Congress, a decade ago, provided a presumption that all veterans who
had served in Vietnam had been exposed to this herbicide. The Court of
Appeals for Veterans Claims (CAVC), in McCartt v. West, 12 Vet.App. 164
(1999) limited this presumption to veterans experiencing one or more of
the diseases listed by the VA, rather than any disease claimed by the
veteran. Currently, veterans who suffer diseases not listed must first
prove exposure to Agent Orange and then prove that the exposure led to
the disease. S. 1091 would restore the benefit of the doubt to all who
served in Vietnam.
S. 1091 also provides for the review of all claims filed for
respiratory cancers and denied as a result of the 30-year manifestation
limit. Further, S. 1091 eliminates this 30 year limitation, relying on
a National Academy of Science report that has found no scientific basis
for this specific time-frame. Finally, S. 1091 provides for five more
biennial reports from the National Academy of Science, reports slated
to end without congressional action.
PVA is not opposed to S. 409, the ``Persian Gulf War Illness
Compensation Act of 2001.'' This measure extends the presumptive period
from the end of this year to the end of 2011 and expands the definition
of ``undiagnosed illnesses.''
PVA is also not opposed to S. 457, a bill to establish a
presumption of service-connection for certain veterans with Hepatitis
C. Researchers believe that the Hepatitis C virus was widespread in
Southeast Asia during the Vietnam War. A test for the virus was not
available until 1990, and the virus has few symptoms. The VA has found
that approximately 20 percent of its inpatient population is infected
with the virus, and other studies have shown that possibly 10 percent
of Vietnam veterans are Hepatitis C positive. This legislation will
provide the service-connection nexus necessary for these veterans to
seek VA treatment.
PVA does not take a position on S. 1063, the ``United States Court
of Appeals for Veterans Claims Administrative Improvement Act of
2001.'' PVA believes that the CAVC should be provided the same level of
administrative control over its funds that other similarly-situated
Article I courts enjoy. We also believe that all courts must, above all
else and at all times, be removed from any appearance of impropriety.
PVA simply does not know if other similar Article I courts enjoy the
administrative control over practice fees that the Court is seeking in
S. 1063, and we ask that this Committee look to the practices of these
other courts when contemplating passage of this measure.
PVA supports S. 1089, a bill to expand temporarily the United
States Court of Appeals for Veterans Claims in order to further
facilitate staggered terms for judges on that court. Providing for a
temporary expansion to facilitate staggered terms will ensure that
there are judges on the CAVC to hear the cases of veterans, and will
provide ample time for the nomination and confirmation process. PVA
also strongly supports the removal of the Notice of Disagreement (NOD)
as a jurisdictional requirement.
Regarding sections 4 and 5 of S. 1093 relating to amendments to the
``Veterans Claims Assistance Act of 2000'': We are amenable to changes
that clarify congressional intent, but we are concerned lest any change
may be utilized by the VA or the Court of Appeals for Veterans Claims
to put us back on the path of the well-grounded claim procedural
roadblock, or to dispense with providing assistance in the guise of
efficiency. We have no objection to providing for a one-year time
limitation in which to complete an application, as long as the VA, or
the Court, does not begin to construe a completed application as a
proven claim.
PVA does oppose the removal of the one-year time limitation
contained in 38 U.S.C. Sec. 5103(b) if it is the VA's intention to
utilize this removal to deny benefits before the one-year period has
elapsed. Doing so would be a substantial departure from the
congressional intent underlying the ``Veterans Claims Assistance Act of
2000.'' PVA believes that the VA, under that statute, may indeed award
benefits prior to the end of this limitation. We are cognizant of the
concern of the VA regarding its backlog of claims, for it is a concern
that we share and that we have expressed for many, many years. For the
VA to deny a claim before the time has elapsed to retrieve the
information necessary to process that claim, which is the manner in
which we are interpreting this proposed amendment to Sec. 5103, would
fly in the face of the liberalizing statute enacted last November.
We are willing to work with this Committee and the VA to attack the
backlog problem and to better identify, statistically, the extent and
scope of the problem, but we are not willing to entertain any steps
that may be construed by the VA or by the CAVC as nullifying or
limiting the VA's statutory duty to assist claimants in obtaining
evidence necessary to substantiate their claims for benefits. We have
fought for too long to reinstate this basic concept.
PVA does not oppose section 5 of S. 1093, but only if the VA does
not use this technical change to violate the spirit of section 7 of the
``Veterans Claims Assistance Act of 2000.'' Finally, PVA wishes to note
our concern that the VA is already seeking statutory changes to the
duty to assist legislation enacted at the end of last Congress, before
regulations have become final and before the many fears of the VA are
shown to be actual, or chimerical.
PVA supports S. 1090, a bill to increase the rates of compensation
for veterans with service-connected disabilities and the rates of
dependency and indemnity compensation for certain disabled veterans.
PVA does oppose again this year, as we have in the past, the provision
rounding down to the nearest whole dollar compensation increases.
PVA has no objection to sections 2 and 3 of the S. 1093. These
sections would exclude life insurance proceeds and other non-recurring
income from determinations of annual income for pension purposes, as
well as change the reporting requirement for changes in recurring
income from the end of the month to the end of the calendar year. These
changes will better reflect the amount of recurring income and
eliminate the anomaly faced by some pension recipients. PVA also
understands that section 3 of the Committee Print will remove the 45
day application requirement for the receipt of death pensions.
Although PVA does not oppose sections 6 and 7 of S. 1093, we do
feel we lack the special expertise to fully consider any possible due
process considerations that these provisions may encompass. We trust
that this Committee will fully consider these as it moves forward to
insure that the targets of these provisions are the only ones that are
affected by these provisions.
PVA supports section 9 of S. 1093. This section would remove the
current cap on the number of veteran participants in programs of
independent living services. Although this program initially was a
pilot program, it is now an important program that assists veterans who
are too disabled to retrain for employment to achieve and maintain a
stated independent living outcome. All who qualify should be able to
take advantage of this program.
PVA, in testimony before the House Subcommittee on Benefits, stated
that the increases for burial allowances contained in H.R. 801 were ``a
very good starting point'' but that we desired to see the increases
reflect the ``tremendous rise in burial expenses since the last
adjustment.'' In a letter to Senator Barbara Mikulski who, along with
Senator Kay Bailey Hutchison, introduced S. 912, the Veterans Burial
Improvement Act of 2001, PVA, along with the other co-authors of the
Independent Budget, stated that ``this proposed legislation would help
ensure that our Nations' military veterans will be buried with the
dignity they deserve.''
PVA notes that the allowance for service-connected deaths was last
adjusted in 1988 and the allowance for other deaths was last adjusted
in 1978. This legislation would return burial benefits to the same
percentage level as was intended by the original legislation enacted in
1973, and would ensure that the gap between actual costs, and actual
benefits would remain the same in the future by adjusting these
benefits annually to cover the increased costs due to inflation. This
increase is long overdue, and PVA supports S. 912.
PVA would also like to note, in passing, two provisions of
importance to PVA contained within the House-passed version of H.R.
801. These provisions would increase the amount of assistance provided
to disabled veterans for automotive and adaptive equipment and the
Specially Adapted Housing Grant. We ask that this Committee move
forward as soon as possible with these provisions.
In addition, we support the measure introduced by Senator Dodd and
currently co-sponsored by 17 Senators, S. 662. This measure would
authorize the VA to reimburse the costs of providing headstones or
markers where a family has already done so privately. S. 662 would
repeal a measure enacted in 1990 that eliminated this reimbursement
provision. We agree with Senator Dodd that we must ``make sure that all
our veterans receive the recognition they have earned,'' and we agree
that the current law, which prohibits the VA from providing as many as
20,000 headstones or markers to the families of veterans must be
amended.
In closing, passage of many of these proposals will indeed enable
veterans to, in the words of Parliament stated over five centuries ago,
``reap the fruit of their good deservings'' and encourage others to
``perform the like endeavors.'' These measures send a clear message
concerning the importance of military service to this Nation, to those
who are veterans and to those who will be veterans in the future.
This concludes PVA's testimony concerning benefits-related
legislation before this Committee. I will be happy to respond to any
questions.
Senator Specter. In my round of questioning, I would like
to explore with you gentlemen what additional legislation you
think might be appropriate, looking beyond these bills. We
appreciate your generalized endorsements, and Mr. Surratt, we
note the suggestions you made, which we shall take under
consideration.
With respect to the presumptions which have been discussed,
are there any other ailments or maladies or conditions which
any of you think ought to be included within the statutory
presumptions we might enact?
Mr. Surratt. I can't think of any that we have presented in
the budget, can you, Mr. Tucker, that we have some suggestion
or scientific suggestion on so far. Certainly, the VA has taken
care of the diabetes, supposedly, due to Agent Orange, and the
hepatitis C is one that we need to act on, that you have in a
bill already.
Quite frankly, the Secretary could act on that, we think,
more efficiently than you could in the legislation if they
would move that forward and include all the proper criteria.
That way, we would avoid any pay-go implications, and quite
frankly, if you have circumstantial evidence that a certain
category of diseases is related to service, that provides a
basis for direct service connection, as we do for post-
traumatic stress disorder and things based on radiation.
Senator Specter. Have you had a chance, Mr. Surratt, or
others, to examine the statistical standard which is used to
establish presumptions without direct proof? Do you think that
standard is adequate?
Mr. Surratt. Well, the fundamental standard is at least as
likely as not, and that relates back to the benefit of the
doubt rule and the statistical standard was limited suggestive
evidence. I suppose--I haven't examined that in detail, but I
suppose that roughly equates to the benefit of the doubt rule.
Senator Specter. Let me acknowledge the presence today here
of Mr. Curtis Jackson, President of the American Federation of
Employees in Pittsburgh. Would you stand, Mr. Jackson. Thank
you for joining us. We appreciate your being here.
Is there any other suggestion that any of you panelists
might have for any further legislation at the present time?
Mr. Daniels. Mr. Chairman, we would like to submit as a
followup to this question information on ALS. We believe that
there is a compelling argument that can be made that ALS should
also be considered for presumptive. But again, I am not the
expert. The expert on this issue is not with us today, but we
can get you some information before the close of business
today.
[The information referred to follows:]
A recent study of veterans' health records showed a higher-
than-normal incidence of ALS among Persian Gulf War veterans.
Researchers do not yet know why.
Isolating definite cause-and-effect relationships between
environmental factors of military service and higher-than-usual
prevalence of certain diseases among veterans has often proven
problematic. Congress has historically solved such problems
equitably by authorizing presumptions of service connection in
circumstances where a statistical association is shown and it
is at least as likely as not that the disease is due to
military service. Such a provision for disposition of claims
for service connection is consistent with the ``benefit of the
doubt'' rule. This rule is based on the fundamental principle
of VA law that a veteran should always be given the benefit of
the doubt or that reasonable doubt should be resolved in the
veteran's favor when conflicting evidence or confounding
factors cause a matter to be neither proved nor disproved.
As long as the question os a causal connection between
service in the Persian Gulf and ALS goes unresolved, the
circumstances of a higher-than-usual incidence of ALS in
Persian Gulf War veterans warrant a presumption of service
connection.
Senator Specter. I appreciate that suggestion, Mr. Daniels.
While I know you don't have any statistical backup, let us get
a little fuller picture of your sense as to why you think ALS
might be included. ALS, of course, is commonly known as Lou
Gehrig's disease, amyotrophic lateral sclerosis.
Mr. Daniels. If I may, may I refer to a statement from the
independent budget. The independent budget, as most of you
know, is prepared by the group of organizations, PVA, DVA,
Veterans of Foreign Wars.
ALS, more commonly known as Lou Gehrig's disease, is a
fatal neurological condition. ALS is an acquired disease in all
but about 5 percent of cases. There is an autoimmune dominant
trait for the acquired form of the disease. Several causes or
precipitative factors are known. Acquired ALS rarely affects
people younger than 50.
I have not read this in advance, and I cannot go to the
pertinent parts, but I would much rather submit a statement at
a later date, if I could.
Senator Specter. Mr. Daniels, would you suggest that for
Vietnam veterans, Gulf War veterans?
Mr. Daniels. Gulf War veterans.
Senator Specter. Just Gulf War veterans?
Mr. Daniels. Yes, sir.
[The information referred to follows:]
Resolution No. 647.--Amyotrophic Lateral Sclerosis (Lou Gehrig's
Disease) High Among Gulf War Veterans
[Adopted by the 102nd National Convention of the Veterans of Foreign
Wars of the United States held in Milwaukee, Wisconsin, August 18-24,
2001]
WHEREAS, Amyotrophic Lateral Sclerosis (ALS), commonly
known as ``Lou Gehrig's Disease,'' is a fatal neurological
condition that destroys motor neurons, the specialized brain
and spinal cord nerve cells that control muscles; and
WHEREAS, while progression of the disease may vary,
approximately 50 percent of people with the disease die within
three years of the first symptoms; and
WHEREAS, an estimated 30,000 Americans (less than one
percent of the population) suffer from this disease which
typically appears in people between the ages of 50 and 70; and
WHEREAS, the average age of a Persian Gulf War veteran is
32 years; and
WHEREAS, estimates suggest that normal incidence risk is
less than one in one million per year for a person in their 30s
to contract ALS; and
WHEREAS, a recent study of veterans' health records showed
a higher than normal incidence of ALS among Persian Gulf War
veterans, with no present research as to why; and
WHEREAS, that ``normal incidence'' is estimated at 27
veterans in one million but there are approximately 80 veterans
with ALS symptoms enrolled in the VA's ``Epidemiological
Investigation into the Occurrence of Amyotrophic Lateral
Sclerosis Among Gulf War Veterans'' currently being conducted
at the Durham VA Medical Center; and
WHEREAS, Congress has historically solved such uncertainty
by authorizing a presumption of service connection in
circumstances where a statistical association indicates it is
at least as likely as not that the disease is due to military
service; and
WHEREAS, as long as a question of a casual connection
between service in the Persia Gulf and ALS goes unresolved, the
circumstances of a higher than usual incidence of ALS in
Persian Gulf War veterans warrant a presumption of service
connection; now, therefore
BE IT RESOLVED, by the Veterans of Foreign Wars of the
United States, that we call for intensified medical and
scientific research to determine the cause of Amyotrophic
Lateral Sclerosis among Gulf War veterans and, in the interim,
we urge Congress to grant a temporary presumption of service
connection for Amyotrophic Lateral Sclerosis for Persian Gulf
War veterans until such time as the research is complete.
Senator Specter. How about more presumptive diseases for
atomic veterans? Does anybody have a comment about that?
Mr. Surratt. Yes. All the diseases for atomic veterans that
are on the VA regulation for direct service connection should
be made presumptive. Again, Senator, we have covered this in
the independent budget, and you will have to excuse me for not
mentioning that when you gave me ample opportunity to. But we
have recommended in the independent budget this year that those
diseases on VA's list of radiogenic diseases be also included
as presumptive diseases.
Senator Specter. Does anybody else have anything they would
like to add? My red light is on now.
Mr. Surratt. Yes. Certainly, we would like to see you
seriously consider the recommendations we made in the
independent budget for changing judicial review. One issue in
particular, if I may elaborate on that, under the court's
standard for reviewing questions of fact, they defer to the BVA
if there is a plausible basis for the factual finding. However,
the law mandates that the VA go in favor of the veteran if
there is the benefit of the doubt.
So if it only takes that much to uphold a factual finding
when they are supposed to rule in favor of the veteran unless a
preponderance of the evidence is against the veteran, then that
makes that standard unenforceable and, thus, in some instances,
meaningless.
Senator Specter. We will take a look at that. We also have
some questions in writing and we would ask that you be
available for any questions which may be submitted by any other
committee member.
Thank you all very much for coming. That concludes our
hearing.
[Whereupon, at 11:48 a.m., the committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Joseph R. Biden, Jr., U.S. Senator From
Delaware
Mr. Chairman, I commend you for moving forward with consideration
of the Veterans' Higher Education Opportunities Act of 2001 (S. 131),
of which I am a cosponsor, and I want to take just a few moments to
explain why I feel this legislation is so important.
No one from either side of the aisle questions the importance of
education as the steppingstone to success in the 21st century. We all
know that the economy of the future is going to require people with
specialized training and skills, while the unskilled labor that
typified the 18th and 19th centuries is becoming less and less
prevalent. In this regard, it is hardly surprising that Congress is
flooded with proposals to enhance access to high-quality elementary
education, secondary education, and higher education. I myself have
championed initiatives relating to expansion of Pell Grants, broadening
of student loans, and tax incentives to help families pay for a college
education. The recent passage of a comprehensive education bill is a
key milestone toward the goal of enhancing educational opportunity for
all.
As we rightly promote the importance of government help for
education, both for elementary and secondary schooling as well as
higher education, it might be useful to recall that one of the first,
and most successful, of the higher education initiatives was the GI
bill that was enacted back in 1944. Following World War II, millions of
veterans were able to obtain college educations through the GI bill,
with the result that many were able to attain a standard of living they
could not have imagined. Furthermore, all this college-trained talent
contributed to the burst of economic advances that improved life for
all of us over the ensuing decades.
Fast forward 57 years. We still have a GI bill, and in our highly
successful all-volunteer military, it turns out that the single most
important factor that attracts many young people to join the military
is the availability of educational benefits after discharge. Yet the
current GI bill suffers from one big flaw: the educational stipend is
no longer sufficient to pay for the cost of a college education.
The current monthly payment in the GI bill has not come close to
matching the rate of inflation in educational costs over the past 50
years. Just consider these statistics. At present, the standard GI bill
benefit is $650 per month for 36 months. That's it. Moreover, we now
ask servicemembers who want educational benefits after discharge to
contribute $1200 while they are in the military. By contrast, when it
began in 1944, the GI bill benefit included full tuition and fees at
any educational institution to which the veteran could gain admittance,
PLUS a monthly stipend equivalent to $500 in 2001 dollars ($750 for
married veterans).
We thus find ourselves in an anomalous situation: at the same time
that the government is ramping up its support and subsidy for non-
veterans seeking college educations, the program that started this
whole thing, and which provides key benefits for those who put their
lives at risk for the country, is lagging way behind.
The Veterans' Higher Education Opportunities Act of 2001 goes a
long way toward redressing this situation. The key provision of this
bill is quite simple: the total VA educational stipend under the
Montgomery GI Bill will be increased to a level equal to the average
cost of tuition at 4-year public colleges. In other words, the standard
36 months of GI bill benefits will be sufficient to allow a veteran to
attend college and complete a degree.
The 21st Century Montgomery GI Bill Enhancement Act (H.R. 1291),
which has been recently passed by the House of Representatives, is an
important step in the right direction. However, I believe that the
Senate bill (S. 131) you are considering is an improvement over the
House bill. The Senate bill makes the enhanced educational benefits for
veterans available right away, rather than being phased in over several
years, and indexes these benefits for inflation. I hope that you and
the Committee will see fit to endorse the provisions in S. 131 and move
this bill to the Senate floor.
Mr. Chairman, the Veterans Higher Education Opportunities Act of
2001 provides the minimal benefit that we should be offering to those
who are willing to make the ultimate sacrifice to keep our country free
and prosperous, and I look forward to working with you to ensure
enactment of this important legislation.
______
Prepared Statement of Hon. Elton Gallegly, a U.S. Representative in
Congress From the State of California
Mr. Chairman, I introduced the House companion bill to S. 409, the
Persian Gulf War Illness Compensation Act of 2001, with my colleagues
Congressmen Don Manzullo (R-IL) and Ronnie Shows (D-MS). This bill
would make it easier for veterans who suffer from Gulf War-related
illnesses to receive compensation. This bipartisan measure has the
support of a majority of the House of Representatives and a number of
major veterans organizations.
As one of the original cosponsors of the 1991 resolution to
authorize then-President Bush to use force in the Persian Gulf, I
believe it is important to take care of the men and women who went to
war against Iraqi dictator Saddam Hussein and are now suffering from
unexplained and devastating ailments. Many of those suffering from Gulf
War Illness were Reservists and National Guardsmen uprooted from their
families and jobs. They answered the call, and we have a duty to help
them.
According to the California Veterans Administration, more than
54,000 men and women from my district served in the Persian Gulf War.
Many of these veterans came home and developed symptoms for which they
still are being denied compensation.
It is clear that Americans who fought in the Persian Gulf War have
been exposed to chemical weapons or other harmful chemical or
biological agents. The Department of Veteran Affairs, which has the
option to compensate and treat veterans for undiagnosed illnesses, has
denied 78.5 percent of Gulf War Illness claims presented to it. This is
unacceptable.
The VA has too narrowly implemented legislation we passed in the
103rd Congress (Public Law 103-446) to grant sick Gulf War Veterans
relief by limiting compensation to only those veterans whose ``illness
. . . [which] by history, physical examination, and laboratory tests
cannot be attributed to any known clinical diagnosis.'' So if any of
the symptoms of your illness are diagnosable, or if you are
misdiagnosed with having another recognizable illness, you do not get
compensation. S. 409 will close this loophole that has denied these
veterans their just compensation.
Under Persian Gulf War Illness Compensation Act of 2001, the
Department must recognize that veterans are suffering from the illness
if they meet certain criteria. To qualify for benefits, a veteran must
have served in the Gulf conflict between Aug. 2, 1990, and Dec. 31,
1991. In addition, the veteran must have suffered from one or more
chronic conditions, including fatigue, unexplained rashes, severe
headaches, joint pain, muscle pain, sleep disturbances and circulatory
disorder. The symptoms must manifest themselves by Dec. 31, 2011.
With the recent passing of the tenth anniversary of the Gulf War,
it is time to finally take care of these brave men and women who served
their country honorably. I urge you to favorably report S. 409 and
bring it to the Senate floor.
______
Prepared Statement of Hon. Donald Manzullo, a U.S. Representative in
Congress From the State of Illinois
Ten years ago, a patriot from Freeport, Illinois, named Dan Steele
went off to war in Iraq to fight for the American people and protect
the freedoms this country has known for more than 200 years. During the
buildup in the Gulf, Dan's leg was fractured by an Iraqi soldier's
apparent suicide attack. Over the next eight years, Dan suffered from
various conditions shared by many other soldiers who fought in the Gulf
War.
In May 1999, Dan succumbed to his illnesses and passed away. The
county coroner listed ``Gulf War Syndrome''; as a secondary cause of
death on his death certificate. Shortly after Dan's funeral, I
contacted his widow, Donna. She vowed to Dan that she would do whatever
she could so that this would not happen to other veterans. Her story
moved me to introduce legislation in 1999 to compensate our suffering
Gulf War veterans.
Since the Gulf War ended ten years ago, the federal government has
conducted hundreds of studies on Gulf War Illness. Despite this
research, the VA continues to deny 75% of veterans' claims for
compensation for undiagnosed illness. Enough is enough!
This year, I joined forces with Senators Hutchison and Durbin and
Representatives Gallegly and Shows to reintroduce legislation that
better defines Gulf War Illness and requires the VA to compensate our
ailing veterans accordingly (H.R. 612/S. 409).
Momentum is building behind this legislation. It has the support of
all the major veterans organizations and over 220 bipartisan
cosponsors. Because identical bills have been introduced in both the
House and Senate, this legislation should more quickly reach the desk
of President Bush. And once it gets there, I have a very good feeling
that he will sign it based on his past vows to take better care of our
sick soldiers.
Two years ago, I met Dan Steele's son, D.J., shortly after his dad
passed away. I promised myself that I would not stop fighting for this
cause until I present this bright twelve-year-old with a copy of the
signed bill that was inspired by his brave father.
______
Prepared Statement of Richard J. Griffin, Inspector General, Department
of Veterans Affairs
Mr. Chairman and members of the Committee, I welcome the
opportunity to submit testimony on two issues presented in Bill S. 1093
to limit provision for benefits for fugitives and incarcerated
veterans. These two legislative initiatives were proposed by my office
to significantly strengthen the integrity of the programs and systems
administered by the Department of Veterans Affairs (VA) and enhance the
American public's trust and confidence in our government.
PROHIBITION ON PROVIDING CERTAIN BENEFITS WITH RESPECT TO VETERANS WHO
ARE FUGITIVE FELONS
The first initiative relates to the suspension of Veteran's
benefits to fugitive felons. Denying government benefits to fugitive
felons is not a new idea. In fact, as a result of Public Law 104-193
(Personal Responsibility and Work Opportunity Reconciliation Act)
enacted by Congress in 1996, fugitive felons are currently barred from
receiving Supplemental Security Insurance (SSI) payments from the
Social Security Administration (SSA) and food stamps from the
Department of Agriculture (DOA). Continuing Congressional and media
interest in this issue was highlighted again on April 25 of this year
when the Senate Committee on Finance conducted a hearing to identify
the difficulties associated with improper payments made by Federal
agencies, including those made to fugitive felons, and to seek possible
solutions to curb what appears to be a slow and fragmented government
approach to the problem. Our Office of Inspector General (OIG) proposal
includes statutory language similar to the 1996 law and will prohibit
fugitives, and parole and probation violators from receiving benefits
from VA. The law will also authorize VA to share investigative
information with law enforcement authorities concerning veterans who
are fugitives.
There are a number of persuasive arguments for seeking statutory
changes to Title 38, directing VA to deny benefits to fugitive felons.
First, being a fugitive from justice is itself a violation of Federal
law as codified in Title 18 USC 1073 (Flight to avoid prosecution).
Providing financial or other benefits to fugitives may actually be
facilitating (aiding and abetting) their continuing criminal activity,
which could lead to the erosion of the public's trust and confidence in
the integrity of programs and systems administered by VA.
The second reason for denying benefits to fugitives relates to the
mandate of the Inspector General Act of 1978. The Act requires each
Inspector General to continuously review existing and proposed
legislation relating to programs and operations and to make
recommendations concerning the impact on the economy and efficiency of
the programs and the systems that deliver the services. Under current
law, fugitives from justice are eligible to receive a variety of
veterans benefits, representing a significant financial outlay for the
government. Simultaneously, the government is expending considerable
financial, technical, and human resources to locate, arrest, and bring
to justice the very same fugitives. The result of this conflict is a
duplication and waste of government resources. This proposed
legislative initiative resolves the conflict by terminating the
imprudent duplication of expenditures, thereby enhancing the
Department's image with the veterans community and the American
taxpayer.
Third, many fugitives are violent offenders or have a propensity
for violence. Allowing these individuals to visit medical and other
facilities to receive VA benefits represents a significant safety risk
to American citizens, particularly veterans and Department employees.
This is a major concern for VA administrators, particularly hospital
directors, who spend significant resources to promote a safe and secure
work environment, free from rampant drug distribution and other
criminal activity. Excluding fugitives from participating in VA
programs would assist in maintaining an environment that will better
promote the mission and strategic goals of VA.
Finally, significant cost savings to the government could be
realized as a result of this initiative. The welfare reform legislation
enacted in 1996 has led to the implementation of a highly successful
SSA OIG Fugitive Felon Project. According to the SSA Inspector
General's latest Semiannual Report to Congress, since the program's
inception, 29,863 fugitives receiving SSI payments have been
identified; 3,540 fugitives have been arrested; $53,591,239 in
overpayments have been identified; and $91,476,159 in government
savings are estimated. Similarly successful is DOA's Operation Talon.
This is a joint venture with other Federal, state, and local law
enforcement agencies, which, according to DOA OIG's most recent
Semiannual Report to Congress, has apprehended nearly 7,400 fugitives
since initiation, including many violent offenders.
To determine the extent to which VA is making payments to veterans
who are wanted by law enforcement authorities for committing felony
criminal offenses, VA OIG has recently undertaken a pilot statistical
research project that matches VA systems of records with fugitive files
received from law enforcement authorities. To date, we have received
files from the U.S. Marshals Service and the States of California and
Tennessee. While the project is still ongoing, preliminary results
indicate that VA is paying a considerable amount of money to fugitive
felons that could be redirected into veterans programs. For example,
matching records based on either social security number alone or full
name and date of birth, a total of 1800 statistical ``hits,'' or
possible fugitive felons, were identified, representing $14,859,975 in
VA compensation/pension benefits paid in Year 2000. Additionally, 3,821
``hits'' were identified in the medical and educational programs. While
the value of VA medical benefits paid has not yet been determined,
disbursement of educational benefits totaled $517,878 in the same year.
A particularly disturbing discovery is that 52 ``hits'' were identified
in the fiduciary file, meaning that it is possible that 52 fugitive
felons are acting as fiduciaries for 83 veterans unable to care for
themselves, with a total payout of $933,287 in Year 2000. Our research
also found that 1,015 fugitive felons may have active home loans
guaranteed by VA. The value of the loans has not yet been determined.
The statistical results to date represent unconfirmed ``hits,'' or
potential fugitive felons identified with each VA file reviewed.
Additional data analysis with the current files, along with those we
hope to receive from other states that initially indicated an interest
in participating in our pilot study, will confirm the actual number of
individual matches. Nevertheless, at the present time, the pilot study
has identified a total of 6,688 matches and $16,311,140 in payments for
all benefit files. These matches represent approximately 2 percent of
all felony warrants reviewed in the study. In comparison, SSA OIG's
fugitive program has identified exact matches (name, date of birth,
social security number, and gender) in approximately 1.7 percent of all
felony warrant files reviewed. Our research findings are significant,
particularly in view of the limited data included in the pilot study.
The files received from the U.S. Marshals Service and the States of
California and Tennessee, which were matched with VA records, contained
approximately 281,008 felony warrants. Based on our discussions with
officials from the National Crime Information Center (NCIC) and the SSA
OIG, we estimate there could be as many as 1.9 million outstanding
felony warrants existing in the United States. Moreover, every year law
enforcement authorities in this country issue over 1 million new felony
warrants.
In anticipation of receiving Congressional authorization to bar VA
benefits to fugitive felons and to assist other law enforcement
agencies in locating and apprehending these fugitives, VA OIG has
developed close liaison with other federal and state agencies. For
instance, we have had preliminary discussions with officials from the
FBI's Information Technology Center (ITC), which has the infrastructure
to provide individual law enforcement agencies with investigative
information when a fugitive felon is identified through an automated
matching program. Further, our meetings with SSA OIG have assisted us
immensely in identifying some of the major considerations in the
design, development, and operation of a successful fugitive felon
initiative, including the importance of securing appropriate additional
fulltime resources dedicated to ensure reliability of the matching and
validation process and the professional administration of the program.
As a result, VA OIG projects that an additional 25 investigative,
technical, and support personnel and additional computer resources
would be required to initiate and manage a successful fugitive felon
program nationwide.
With the proper resources, VA OIG looks forward to the day its
staff can join with SSA OIG and DOA OIG in not only effectuating
savings for the U.S. government, but also to ``treat felons as
felons,'' regardless of the types of VA benefits they are using to
finance their flight from justice, and to better assist law enforcement
agencies in making this country a safer place to live.
LIMITATION ON PAYMENT OF COMPENSATION FOR VETERANS REMAINING
INCARCERATED FOR FELONIES COMMITTED BEFORE OCTOBER 7, 1980
The second legislative initiative we have proposed relates to the
reduction of service-connected disability compensation for all veterans
confined in a Federal, State, or local penal institutions as a result
of a veteran's conviction of a felony. VA OIG has become aware of
approximately 230 veterans who were incarcerated prior to the enactment
of Public Law 96-385, effective October 7, 1980, and are currently
drawing about $2.5 million per year in compensation benefits. These 230
veterans do not have an apportionment for support of their dependents.
Congress decided to reduce the service connected disability benefits
paid to veterans who are incarcerated for a felony. The benefits paid
to these veterans, who were incarcerated prior to enactment of the law,
represent an unjust enrichment and defeats the purpose for which
service connected disability benefits are awarded: since these veterans
are not capable of gainful employment by reason of their incarceration,
and there is no apportionment made for the support of dependents. We
support the position that it is not the intent of the proposed change
in law to retroactively terminate the benefits of those persons
incarcerated prior to the enactment of the original law (pre-1980), but
rather to terminate their benefits as of the date last paid. This
change would permit the Department to quickly achieve the projected
cost savings without creating any undue hardship on the incarcerated
veteran. We estimate that an annual cost avoidance of $2.2 million
would be achieved by enactment of this legislative initiative. An
estimated $42 million in compensation payments would be avoided for the
projected lifetime of these incarcerated persons. We calculated our
estimate of lifetime benefits that would be avoided based on the number
of years until the incarcerated persons reach age 70. This estimate is
based on Year 2000 dollars.
In July 1986, VA OIG reported that veterans who were imprisoned in
State and Federal penitentiaries were improperly receiving disability
compensation benefits or needs based pension. This occurred because
controls were not adequate to ensure benefits were terminated or
reduced upon incarceration, as required by Public Law 96-385.
Department managers agreed to implement certain measures to identify
incarcerated veterans and reduce or terminate benefits as appropriate.
In Fiscal Year 1999, we conducted a follow-up evaluation to
determine if disability benefit payments to incarcerated veterans were
appropriately adjusted, and other procedures agreed to in 1986 had been
taken. We found that Department officials did not implement the agreed
to control procedures and improper payments to prisoners continued. We
reviewed a sample of files of veterans incarcerated in state and
Federal prisons and found that 72 percent of the cases were not
adjusted as required. We estimate that nationwide, about 13,700
incarcerated veterans have been, or will be overpaid by about $100
million. Additionally, overpayments to newly incarcerated veterans
totaling about $70 million will occur over the next 4 years, if the
Department does not establish appropriate controls.
In conclusion, the two legislative initiatives we have proposed,
Prohibition on Providing Certain Benefits With Respect to Veterans Who
Are Fugitive Felons and the Limitation on Payment of Compensation for
Veterans Remaining Incarcerated for Felonies Committed Before October
7, 1980, are ways the law must be changed to make our government more
efficient, to provide all citizens a safer environment in which to
live, and to gain the respect and confidence of the American public.
______
Prepared Statement of E. Keith Johnson, Legislative Liaison, Tennessee
Educational Association of Veterans Programs Administrators
Mr. Chairman and Distinguished Members of the Senate Committee on
Veterans' Affairs: Thank you for the invitation and opportunity to
provide written testimony on veterans' education benefits as they
relate to several bills before your committee today. While I would
welcome sharing my testimony with you in person, I do understand the
time constraints and urgency of acting upon all veterans' benefit
legislation before your committee today.
My name is E. Keith Johnson and I am representing the Tennessee
Educational Association of Veterans Programs Administrators (TEAVPA).
TEAVPA was formed about 25 years ago and is the state professional
association of veterans' education benefit program administrators
serving at approximately 200 U. S. Department of Veterans Affairs
approved higher education institutions across Tennessee. I am employed
as the full-time Veterans Affairs Coordinator at East Tennessee State
University in Johnson City so I work with student veterans one-on-one
daily.
I also represent Tennessee on the Southern Region Education
Committee for Veterans (SRECV) an advisory committee to the Atlanta
(Southern) Regional Processing Office (RPO) that administers veterans'
education benefit programs in the southeastern part of the country.
Moreover, I am honored to be one of three higher education
representatives/members of the Veterans' Advisory Committee on
Education (VACOE), which is congressionally charged with providing
advice and consultation to the Secretary of Veterans Affairs on matters
regarding the administration of veterans' education programs. [Title
38, United States Code Sec. 3692] I also serve on the Board of
Directors of the National Association of Veteran Program (education
benefits) Administrators (NAVPA). Finally, I am a veteran who utilized
the GI Bill to acquire my higher education.
Last week, the U. S. House of Representatives passed the ``21st
Century Montgomery GI Bill Enhancement Act'' (House Resolution 1291).
Earlier in this session of Congress, several related bills were
introduced in the Senate. The ``Veterans' Higher Education
Opportunities Act of 2001'' (Senate 131 originally sponsored by Senator
Tim Johnson) and ``Helping Our Professionals Educationally (HOPE) Act
of 2001'' (Senate 937 initially introduced by Senator Max Cleland). The
Senate Veterans' Affairs Committee Chairman recently introduced Senate
1088 that is cosponsored by the ranking member on the committee. All of
the bills before the committee proposing to enhance the Montgomery GI
Bill are long overdue however, I am concerned that efforts to do too
many things at one time will draw attention and support away from
taking immediate action to restore the basic ``buying power'' to the GI
Bill. At the very least I urge the committee to support, in a
bipartisan manner, the pending House legislation before the Senate and
not risk realistic remedies to the present GI Bill with other proposed
enhancements.
I would like to take this opportunity to share with how the GI Bill
can impact a state's student veteran population and highlight some
recently established programs in Tennessee to supplement the education
benefits of veterans and certain veterans' dependents. Tennessee has
demonstrated it can finding creative ways to support our veterans and
certain veterans' dependents pursuing a higher education by providing
complementary non-financial state benefits. Finally, I want to briefly
share with you my views on the adequacy and administration of veterans'
education benefit programs.
The Tennessee General Assembly enacted legislation that required
the development of a Statewide Master Plan for Higher Education 2000-
2005 (SMPHE) that will serve as a future development guide for higher
education in the state. A few areas of the state plan are relevant to
matters before the committee today. The master plan envisions that
``higher education will be seen as a valued opportunity to prepare
students for professions, careers, and lifelong learning in order to
meet the challenges of living in a rapidly changing world and to
develop thinking, principled citizens.'' (SMPHE, p. 4) The mission of
the plan, in part, is and I quote, ``Tennessee higher education will
prepare its citizens for productive and responsible social and economic
roles in the 21st century by providing appropriate educational
opportunities.''
Of the nine specific goals in the plan, I want to present two.
Simply put, the first goal is to ``elevate the educational attainment
levels of Tennesseans.'' Tennessee is below the national average in
students pursuing postsecondary education. Research indicates that 17%
of Tennesseans have a baccalaureate degree or higher, compared to the
national average of 24%. The number of individuals in the state with
associate degrees is 4.2%, which is two percent below the national
average of 6.2%. (SMPHE, p. 4) Over the last 20 years, the gap in
undergraduate enrollments in the state, compared to other southern
states, has increased from one to three percentage points. Tennessee
has the poorest per student state funding during the period 1995-2000
among 16 southern states according to figures of the Southern Regional
Education Board (SREB). The increasing costs of a higher education
ultimately are being passed on to students and student veterans are not
exempt from those increased costs and their veterans' education
benefits already trail certain average higher education costs. We
simply have to reverse the trend in Tennessee.
The low educational attainment level of the state's citizenry poses
a threat to the state's economy. We are experiencing economic growths
in Tennessee, but employers are beginning to notice a shortage of
educated and skilled employees. In the future, companies will be
reluctant to locate to Tennessee if we cannot meet their needs for an
educated and trained workforce. The Governor's Council on Excellence in
Higher Education recently commented in a report, ``for too long,
Tennessee has relied only on the state's natural resources, the
richness of its soil, the state's geographic location, the beauty of
its land, the creativity of its leaders, and the predisposition of its
people to work hard. Tennesseans need to sustain the best from the
past, but must do more. Tennessee must begin to educate its people more
fully. Human capital is the new resource. . . .'' (SMPHE, p. 4)
The relationship between educational attainment and economic growth
is clear. Effective competition in an increasingly global market
requires a highly skilled and productive workforce, for both the
professional and the highly trained technical personnel. In light of
the importance we are placing on higher education in Tennessee, it is
only appropriate that another goal of the master plan be for public
higher education to play a major role in the economic development of
Tennessee.
About 200,000 students enroll in post-secondary educational
institutions in Tennessee annually. During the federal fiscal year
2000, there were just over 5,000 student veterans pursuing a higher
education and utilizing the Montgomery GI Bill--Active Duty (``MGIB-
AD''; Chapter 30, Title 38, United States Code). The economic value of
veterans' education benefit payments to Tennesseans for the last full
fiscal year was almost 19 million dollars. [Exhibit A] In the last five
years, the benefit value totals approximately 92 million dollars from
MGIB-AD benefits alone. When considering all of the veterans' and
certain veterans' dependents' education benefit program payments to
students in Tennessee for the last five years, the figure doubles
reaching approximately 175 million dollars. [For further information
refer to Exhibit A] The amount of benefits paid to Tennesseans has
remained consistent over the last five years although the slight
decline in the number of trainees is probably offset by recent
increases in benefit payments. Tennessee has a slightly higher average
of students in four-year institutions than what is reported nationally.
[Exhibit C] Since two percent of total benefit payments and trainees
are in Tennessee, the state is fairly representative of a typical
state. [For further information refer to Exhibits A & C]
Enhancing veterans' education benefit program(s) will ultimately
aid Tennessee to achieve its higher education and economic goals. A
1986 Congressional Research Service study indicated that the country
recouped between $5.00 and $12.50 for every dollar invested in the
original GI Bill enacted after World War II. The economic return
results from increased taxes paid by veterans who achieved higher
incomes made possible by a college education. (As cited in reference
following for USCNS, p.108) The state would likewise share in the
economic return from the investment of enhancing the GI Bill.
Therefore, educated veterans can potentially play an important role in
achieving the state's economic goals.
GOVERNMENTAL VETERANS' EDUCATION BENEFIT ENHANCEMENT RECOMMENDATIONS
Several federal government reports have recently highlighted the
need to enhance veterans' education benefits. In the ``Phase III
Report'' by the United States Commission on National Security/21st
Century (USCNS) dated February 15, 2001 and entitled, ``Road Map for
National Security: Imperative for Change,'' more commonly known as the
``Hart-Rudman Commission,'' the Commission enumerated their
recommendations as to ``how government should work.'' (Preface, v)
Specifically, ``Recommendation 44'' of the report states, ``Congress
should significantly enhance the Montgomery GI Bill, as well as
strengthen recently passed and pending legislation supporting benefits
. . . for qualified veterans.'' (p. 105) The Hart-Rudman Commission
further stated that ``GI Bill entitlements should equal, at the very
least, the median education costs of four-year U. S. colleges, and
should be indexed to keep pace with increases in those costs.'' (p.
106)
In perhaps the most significant study ever conducted, the Report of
the Congressional Commission on Servicemembers and Veterans Transition
Assistance (CSVTA) dated January 14, 1999 issued some strong
recommendations on veterans' education benefits. The report has and
will certainly continue to receive considerable attention, especially
with respect to the recommendations on education benefits for veterans.
The report, authored by the current Secretary of Veterans, Affairs
Anthony J. Principi, ``recommends that Congress enhance the MGIB by . .
. paying qualifying veterans the full costs of tuition, fees, books,
and supplies, as well as a subsistence allowance . . . indexed for
inflation. Benefits also would be payable for non-institutional
training. . . .'' (CSVTA, pp. 27-28)
I concur with the general findings in these reports. Enhancements
to the GI Bill are uniquely beneficial to veterans and the country.
STATE VETERANS' EDUCATION PROGRAM ORGANIZATION SUPPORT
The Tennessee Educational Association of Veteran Programs
Administrators (TEAVPA) adopted a resolution at their last year's
annual conference that is relevant to the subject being discussed
today. The TEAVPA resolution called for the state association to join
the ``Partnership for Veterans' Education: Fulfilling America's
Promise.'' This unprecedented coalition is composed of over 50 major
veterans and/or educational organizations supporting an enhanced GI
Bill that will meet the costs of a typical higher education. The agreed
upon standard among coalition members is the cost to attend an average
public, four-year commuter educational institutional as reported
annually by The College Board in Trends in College Pricing.
CONCLUSION & RECOMMENDATION
The proposed increases in monthly benefit payments over the next
three years will make significant and important progress toward
restoring the GI Bill to fulfill the promise of an education to
eligible Tennessee veterans. However, Congress must ensure that the GI
Bill continues to keep pace with the costs of higher education so that
repeated efforts to restore the benefits to adequate levels are not
necessary. If at the end of the third year the GI Bill is indexed to
certain annual reported college costs, the GI Bill well into the future
will be a viable means for veterans acquiring a higher education and
realizing the fulfillment of the promise made by this country.
States and the federal government should work in concert with each
other toward goals of providing for the higher education of veterans
and certain veterans' dependents. Presently only about half of the
states offer some form of state-based education benefit specifically
for veterans and their dependents. Tennessee has demonstrated there are
veterans education benefits that states can provide that supplement
federal government benefit programs.
``Veterans' Dependents' Post-Secondary Education Assistance Act of
2000''
Tennessee Public Chapter 767 enacted last year provides certain
supplementary education benefits for veterans and certain veterans'
dependents. Essentially the new law provides for an education through a
baccalaureate degree for the dependents of veterans who make the
ultimate sacrifice. The major provision of the Act established the
``Certain Veterans' Dependents Education Benefit Program.'' Under this
program, every dependent child in the state under the age of twenty-one
(21) years, whose parent (father or mother) was killed, died as a
direct result of injuries received, or has been officially reported as
being a prisoner of war or missing in action while serving honorably as
a member of the United States armed forces during a qualifying period
of military conflict, or the spouse of such veteran, is entitled to a
waiver of tuition, and or maintenance fees, and shall be admitted
without cost to any of the institutions of higher education owned,
operated and maintained by the state. [Section 2(a), Public Chapter
767] Legislation has passed the current session of the General Assembly
and signed into law that extends eligibility to the dependents of
former prisoners of war. [Public Chapter 293] Eligible veterans'
dependents would likely receive benefits under the Survivors' &
Dependents' Educational Assistance Program (Chapter 35, Title 38,
United States Code).
The second provision of the Act established the ``Student Veterans'
& Dependents' Tuition & Fee Payment Deferment Program.'' Any student
with eligibility to any of the education benefit programs of the United
States Department of Veterans Affairs (USDVA) and other certain
military related education benefits, may be granted a deferment of the
payment of their tuition and fees at public educational institutions
until the end of the term. Under certain circumstances the law permits
deferments into the next term. All too frequently months pass before
students receive their benefit payments from the USDVA. This relatively
simple state law has put many students at ease with paying their
tuition and fees with their benefit payments.
``Tennessee National Guard Tuition Assistance Act''
I indicated earlier that I wanted to highlight some veterans'
education program administration concerns affecting Tennesseans. The
lack of timely processing of education claims in regional processing
offices is unacceptable. Seemingly the delays only get worse with time
when, through the use of information technology, administration of the
processes should improve. For example, the Regional Processing Offices
currently have more claims currently waiting to be process than last
year's pending claims load for the same period. Moreover, the Atlanta
RPO has 30,000 education issues pending. The education claim delays
extend to the processing of applications for benefits, enrollment
certifications, and to appeals to decisions. I urge the committee to
explore remedies to ensure acceptable and timelier service to our
student veterans. Students need to receive benefit payments with some
greater sense of regularity and consistency.
In recent years much attention has been focused on enhancing the
active-duty GI Bill. However, eventually attention will need to turn to
improving Montgomery GI Bill--Selected Reserve (``MGIB-SR''; Chapter
1606, Title 10, United States Code). The overall objective of providing
adequate veterans' education benefit programs will not be complete
until due consideration is given to the MGIB-SR program. This program
is of great interest to states and its benefit value impacts the
recruiting and retention efforts in the states' National Guard.
Moreover, it was noted in one of the government reports that the GI
Bill ``should carry a sliding scale providing automatic full benefits
for Reserve and National Guard personnel who are called to active duty
for overseas contingency operations. (USCNS, p. 106) I support this
specific recommendation since there has been a tremendous increase in
members and units of the Tennessee National Guard fulfilling worldwide
military missions.
Student veterans have expressed their frustration with another
problem related to the treatment of veterans' education benefits by
other federal agencies. GI Bill benefit payments should be excluded as
a financial resource for all federal student financial aid programs and
purposes to prevent what is given in one benefit from being diminished
by the other.
Aside from not keeping pace with the escalating costs of a higher
education, the GI Bill has seemingly not evolved with the times.
Enhancements to the veterans' education benefit programs will not be
modernized until the GI Bill benefit payments are permitted for
emerging professional technical training leading to certification and
lucrative employment especially in emerging fields like information
technology. Under outdated assumptions of the old GI Bill is a bias
that education can only occur through attending traditional education
institutions and earning certificates or degrees. Professional
certification and licensure are relatively new areas to consider
expanding eligibility. Moreover, the Hart-Rudman Commission endorsed
technical training alternatives. (USCNS, p. 106)
Finally, the GI Bill should eventually be updated to allow for
payment of benefits for lifelong learning initiatives. Currently the
MGIB-AD expires ten years from the veteran's discharge from active
military service. Members of the National Guard and Reserve must remain
in an active participation status with the Selected Reserves to utilize
their ``earned'' education benefits and that must be done within ten
years from the initial eligibility date. Increasingly higher education
is taking place throughout an adult's lifespan. Many veterans need to
later update their knowledge or skills or retrain into a new job
altogether. The expiration date of veterans' education benefit programs
needs to be reconsidered. The ``Hart-Rudman Commission'' agrees. The
USCNS report recommended ``the Bill [GI Bill] should . . . extend
eligibility from ten to twenty years. . . .] (p. 106)
As is clearly set forth in the Principi Commission report, we need
to restore veterans to the ranks of public and private sector
leadership. With ever decreasing numbers of veterans in the population,
we need to give veterans the incentive to rise and fill those important
leadership ranks in our country, and that is achieved through
adequately providing for veterans' higher education. Many of my
previous recommendations have these additional and important social
benefits.
I want to share with you a relevant quote related to the subject of
testimony before this committee today. ``Upon the subject of education
. . . I can only say that I view it as the most important subject which
we as a people can be engaged in.'' This same individual called upon
Congress to ``care for him who shall have borne the battle and for his
widow, and his orphan.'' Abraham Lincoln made those statements, the
first in an 1832 letter, and the latter at his second inaugural address
in 1865. I believe it is clear what President Lincoln would urge this
committee to do today with respect to the legislation before this body.
Those remarks are just as true today as they were over 150 years ago.
I fully support immediate and basic enhancements to the Montgomery
GI Bill and urge the committee to not lose sight that more work is
essential to restore veterans' education benefit programs to their
former value.
______
United States Court of Appeals for Veterans Claims,
Washington, DC,
July 3, 2001.
Hon. John D. Rockefeller IV,
Chairman, Committee on Veterans' Affairs,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman: Thank you for inviting the Court to provide
written comments on two pending bills, S. 1063 and S. 1089, that you
recently introduced. We very much appreciate your support for improving
the operation of the Court.
S. 1063
Regarding S. 1063, the Court is most appreciative of your having
introduced, at the Court's request, the legislation, submitted as a
draft bill by the Court on May 24, 2001. For the reasons set forth in
our transmittal letter, the Court supports the enactment of that
legislation. However, based on a request from Committee staff of both
parties on the House Committee on Veterans' Affairs, we have reassessed
the additional sentence that section 2(a) of the bill would add to 38
U.S.C. Sec. 7285(a), regarding other registration fees, in order to
recast that authority in more generic terms and thereby possibly
foreclose the need for future legislation on this subject. As a result,
we have proposed that section 2(a) of the bill be revised to read as
follows:
SEC. 2. REGISTRATION FEES.
(a) Section 7285(a) of title 38, United States Code, is amended
by adding the following sentence at the end: ``The Court may also
impose registration fees on persons participating at judicial
conferences convened pursuant to section 7286 of this title and in
other Court-sponsored activities.''.
We hope that you will be able to incorporate this proposed
revision.
S. 1089
Regarding S. 1089, the Court is again most appreciative of your
interest and support. As to section 1, proposing a temporary expansion
from seven to nine judges for a transition period from the present to
August 2005, the Court notes that this provision, according to your
introductory statement, is intended to solve the problem of
simultaneous vacancies in the 2004-05 period ``by allowing two
additional judges to be appointed to full terms, in order to bridge the
retirement of the original judges.'' Cong. Rec. S6667-68 (daily ed.
June 22, 2001). This problem was called to the attention of the
Congress by the Court in 1997, and the Congress responded, as you have
noted, with the enactment of the Court of Appeals for Veterans Claims
Amendments of 1999, Pub. L. No. 106-117, title X, 113 Stat. 1587, 1590
(found at 38 U.S.C. Sec. 7296 note). That law offered a period, which
has now expired, during which two judges of the Court could retire
early under special terms and conditions. As you also have noted, no
judge opted for early retirement under those special terms and
conditions.
The Court continues to believe that the simultaneous vacancies that
will be occasioned by the terms of four active judges ending within an
eleven month period from September 14, 2004, to August 6, 2005, will
under present law present very serious problems for the effective
functioning of the Court. Section 1 of S. 1089 proposes another method
of ameliorating that simultaneous-vacancy problem and would also
increase the staggering of the terms of future judges appointed to the
Court. Assuming that nominations and confirmations occur in a
relatively timely fashion, the Court believes that the approach in
section 1 offers a constructive way of dealing with both problems.
Although the need for staffing of two additional chambers (and
concomitant space and equipment requirements) would make this
alternative considerably more costly than an early-retirement approach
that offered terms and conditions of retirement sufficiently attractive
to induce two early retirements, the Court supports enactment of
section 1 if enactment of an enhanced early-retirement option is not
considered viable at this time. Moreover, the Court is especially
appreciative of the effort that has been expended to create this
approach to dealing with a very real and substantial looming problem
for the Court and its ability to handle its caseload effectively.
We do have two suggestions for modification of the language of
section 1. In paragraph (2)(C) (page 3, line 21, to page 4, line 1), in
the subsection (h) that would be added to section 7253, we believe that
the following revised text would be technically preferable to carry out
what we understand the intent to be:
``(C) If no judge is appointed as described in clause (A),
or if no judge is appointed as described in clause (B), or if
no judge is appointed as described in either of those clauses,
the number of judges that is authorized by this subsection to
be appointed but is not appointed as described in those clauses
may be appointed pursuant to a nomination or nominations made
during the period beginning on January 1, 2004, and ending on
September 30, 2004.''
We also suggest, as a technical matter, that ``only'' be
substituted for ``not more than'' in clauses (A) and (B) (page 3, on
lines 15 and 18), respectively.
Second, in section 1(a)(2), we suggest that, in lieu of lines 20-23
on page 3, insert ``judges in excess of seven (other than judges
serving in recall status under section 7257 of title 38, United States
Code) who were appointed or reappointed after January 1, 1997.''. We
believe that this would carry out the intent to count as part of the
seven none of the Court's original judges (five are still serving)
unless reappointed under new subsection (h)(4)--that is, to count only
Judge Greene and any replacement or new-position appointees.
As to section 2 of S. 1089, relating to 38 U.S.C. Sec. 7296(b)(2),
which provides for one of the three options for retirement from the
Court--completion of the term to which appointed (the other two
retirement alternatives are retirement based on the Rule of 80 under
section 7296(b)(1) and disability retirement under section
7296(b)(3))--the Court believes that the proposed repeal of the
written-notice requirement is appropriate in light of the provision
included in the new subsection (h)(4) that would be added to 38 U.S.C.
Sec. 7253 by section 1(a)(1) of the bill, under which a judge appointed
before 1991 (there are five such sitting judges) would be eligible to
accept one of the two new appointments authorized by the bill even
though this would mean that he would not complete the term of his
initial appointment and commission.
As to section 3 of S. 1089, proposing to repeal the notice of
disagreement (NOD) requirements added in sections 402 and 403 of the
Veterans' Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105,
4122 (1988) (found at 38 U.S.C. Sec. Sec. 7251 note and 5904 note,
respectively), the Court offers no comment on the policy implications
of such repeal. That is a matter for the Congress and the President. We
note, however, that the Court does not anticipate that the repeal of
these added NOD requirements would substantially affect the Court's
caseload.
* * * * *
Again, we appreciate the opportunity to comment on S. 1063 and S.
1089 and your interest in introducing them. The Court stands ready to
offer any appropriate assistance in connection with the pending
measures and to answer any questions regarding this letter.
Sincerely,
Kenneth B. Kramer,
Chief Judge.
______
Prepared Statement of the National Funeral Directors Association
The National Funeral Director's Association (NFDA) wants to thank
the Committee for the opportunity to submit testimony for the record on
these very important issues.
NFDA is an individual membership professional association that
represents more than 13 thousand licensed funeral directors throughout
the United States. A large majority of our members are small-business
men and women who own and operate funeral homes in communities all
across America.
Most of our members live in cities of less than 50,000 population,
with the average NFDA member funeral home serving about 180 families a
year and employing four people.
NFDA has long been a supporter of veterans benefits issues, ranging
from the use of a military honor guard at veterans' funerals to the
active support of the World War II Memorial to be constructed on the
national Mall. Honoring those who have served in the armed services is
a very important issue to our members, especially since many of them
are veterans themselves, or have had loved ones lost in service to this
country.
The National Funeral Directors Association would like to express
its strong support for the death, burial and memorial benefits
legislation currently pending before this Committee. Veterans are one
of this country's most cherished assets. Their brave and selfless
actions defending this country are ones that should be honored in
death, as well as in life, and never forgotten.
On behalf of the funeral directors around the country and the
veterans and their families and communities they serve, I want to
express our strong support for S. 912, ``The Burial Benefits
Improvement Act of 2001,'' and S. 662, To amend title 38, United States
Code, to authorize the Secretary of Veterans Affairs to furnish
headstones or markers for marked graves of, or to otherwise
commemorate, certain individuals.
NFDA strongly supports S. 912, ``The Burial Benefits Improvement
Act of 2001,'' a bill to increase the funeral and burial expenses as
well as plot allowances for veterans. At a time of unimaginable grief,
funeral directors deal with the families of service members who must
plan for the funeral of their loved one. This process is never easy,
but is made more difficult when a family must plan a funeral in
accordance with current VA mandated funeral and burial expense levels.
NFDA endorses any legislation that recognizes the reality of the
cost of a funeral and burial in 2001 and seeks to help the families of
veterans manage that expense.
NFDA fully supports S. 662, a bill to allow deserving veterans the
ability to have their grave marked with an official Veterans
Administration headstone or marker, even if they already have a private
one. This legislation corrects a longstanding problem that continues to
place an undue hardship on the families of veterans.
The current law, which prohibits a veteran from receiving an
official headstone or marker if his/her grave was previously marked
with a private marker, works an extreme hardship on many families of
veterans who are unaware this restriction exists when they purchase a
private headstone, many times years in advance of their passing. This
prohibition is unfair because many families want to honor their loved
ones by attaching an official VA marker directly on the grave or to a
privately purchased headstone.
The National Funeral Directors Association supports the entitlement
for all honorably discharged veterans to receive an appropriate grave
marker provided by the Department of Veterans Affairs, without regard
to any other private marker or headstone that may be in place at the
time of application. We agree with Senator Dodd that we must ``make
sure that all our veterans receive the recognition they have earned,''
and we agree that the current law, which prohibits the VA from
providing as many as 20,000 headstones or markers to the families of
veterans, must be amended.
These bills are a modest first step on the path to correcting a
long-standing inequity where veteran's funeral, burial and memorial
benefits are concerned. Individuals who have served their country in
times of war have earned these benefits.
NFDA supports Senators Mikulski (D-MD), Hutchison (R-TX) and Dodd
(D-CT) efforts to help our nation's veterans. All veterans should
benefit from the funeral, burial and memorial benefits put forth in S.
912 and S. 662. NFDA offers to work with the members of this committee
to help pass theses measures as well as to develop additional
legislation that will further reconcile these benefits with today's
costs.
Thank you for the opportunity to submit testimony. If the Committee
or any of its members have any questions or need any further
information, please contact Allison Salyer in the NFDA Washington, DC
office.
______
National Veterans Legal Services Program,
2001 S Street, NW, Suite 610,
Washington, DC, July 23, 2001.
Hon. John D. Rockefeller IV,
Chairman, Committee on Veterans' Affairs,
U.S. Senate,
Washington, DC.
Dear Chairman Rockefeller: Thank you for inviting the National
Veterans Legal Services Program (NVLSP) to submit written testimony
regarding several VA benefits-related bills pending before the
Committee on Veterans' Affairs--S. 1063, S. 1089, S. 1091, and S. 1093.
We separately set forth our views on each bill below.
S. 1063
NVLSP supports this bill without reservation.
S. 1089
NVLSP supports the intent of this bill without reservation. We
especially applaud section 3 of the bill, which repeals
(``terminates'') the notice of disagreement (NOD) provisions in the
Veterans' Judicial Review Act of 1988. These provisions have engendered
an inordinate amount of litigation, and the underlying need for the
provisions lost its vitality long ago.
We do, however, advocate two changes in subsection 3(d), regarding
the applicability of the terminations. The first change involves the
applicability of subsection 3(b). This subsection repeals the NOD
provision as it affects the operation of 38 U.S.C. Sec. 5904(c), which
allows agents and attorneys to charge fees for services rendered in
representing a VA claimant after the Board of Veterans' Appeals (BVA)
renders a first final decision in a case. The services for which 38
U.S.C. Sec. 5904(c) authorizes agents and attorneys to charge a fee
include representation on (1) a reopened claim filed with a VA regional
office; (2) a motion for reconsideration filed with the BVA; and (3) a
claim filed with the BVA for revision of a final BVA decision based on
clear and unmistakable error.
The subsection 3(d) provisions governing the applicability of
subsection 3(b) are triggered by what has occurred or may occur in the
future in the U.S. Court of Appeals for Veterans Claims (CAVC). When an
agent or attorney charges a fee for representation before the VA in
these three types of administrative proceedings, there is no need to
file an appeal with the CAVC. Thus, as written, subsection 3(b) will
not have much impact because its repeal will only become applicable
when an event occurs in a forum to which the claimant will often not be
using. For subsection 3(b) to have its intended impact, subsection 3(d)
needs to be changed so that it is triggered by an event that takes
place at the VA.
We suggest bifurcating the applicability provisions in subsection
3(d) so that one set of rules applies to subsection 3(a) and another
set of rules applies to subsection 3(b). We suggest that subsection
3(b) should apply to any case in which the BVA renders a first final
decision on or after the date of enactment of this Act.
The second suggested change involves the applicability provisions
in subsection 3(d) as they relate to subsection 3(a). Since the repeal
to the NOD requirement is long overdue, NVLSP believes that the repeal
should also be applicable to any appeal filed with or pending before
the U.S. Court of Appeals for the Federal Circuit or the U.S. Supreme
Court on or after the date of the enactment of the Act.
S. 1091
NVLSP supports the intent of this bill without reservation. By way
of background, the attorneys at National Veterans Legal Services
Program (NVLSP) have been involved in the Agent Orange issue for over
20 years. We have served as counsel to the plaintiff class counsel in
the ongoing case Nehmer v. U.S. Veterans Administration, Civ. No. C 86-
6160 (TEH) (N.D. Cal.) ever since that lawsuit was filed in 1986. See,
e.g., Nehmer, 712 F.Supp. 1404 (N.D. Cal. 1989); 32 F. Supp. 2d 1175
(N.D. Cal. 1999).
During the course of the discovery process as a result of the 1999
decision of the Nehmer District Court, NVLSP attorneys have reviewed
over 12,000 VA claims files and identified over 1,400 Vietnam veterans
and survivors of deceased Vietnam veterans who have been granted
disability or death benefits due to herbicides containing dioxin, but
as to whom the VA has refused to pay the amount of retroactive
compensation required by the 1991 consent decree in Nehmer. In
addition, for the past four and one-half years, NVLSP has been in
contact with approximately 14,000 additional Nehmer class members to
inform them about their rights to VA benefits due to Agent Orange
exposure. To this end, NVLSP has mailed these individuals a copy of its
Self-Help Guide on Agent Orange. Thus, NVLSP's staff has had extensive
contact with thousands of Agent Orange claimants and is intimately
familiar with the VA's processing of Agent Orange claims.
Our comments on this bill are as follows:
NVLSP strongly support the bill's removal of the 30-year limitation
on the manifestation of respiratory cancers. The first reason we
support this change is scientific. The chair of the Institute of
Medicine (IOM) panel reporting the most recent findings of the IOM
stated at the public presentation of the IOM's findings that there was
no scientific basis for the current 30-year limit and that the limit
was ``completely arbitrary.''
The second reason for our support is a practical one. We have seen
many claims (especially claims for DIC filed by widows) that have been
rejected by the VA because the cancer was not diagnosed until more than
thirty years after the veteran left Vietnam. In the large majority of
these cases, the cancer was in stage four when it was diagnosed and
therefore the cancer was probably in existence within the thirty-year
period. Many of the claimants in these cases could have prevailed even
under the 30-year manifestation rule if they had obtained a medical
opinion addressing when the cancer first manifested itself. But,
unfortunately, many of these claimants were of limited means and/or did
not understand how to pursue the denial of their claims. Many came from
rural areas where sophisticated health care is limited and there is
little help available to deal with the subtle adjudication issue at
hand.
NVLSP also strongly supports the provisions in S. 1091 that would
eliminate any need for a Vietnam veteran or survivor to prove exposure
to herbicide agents in claims for service connection or DIC. Finally,
NVLSP strongly endorses the extension of the 10-year mandate in 38
U.S.C. Sec. 1116(e) to 20 years. The recent reports from the IOM have
provided significant insight into diseases related to herbicides in
Vietnam. The IOM reports clearly indicate that more information on the
health effects of dioxin exposure should become available in the next
decade. Gaining additional knowledge is also important because the VA
has begun to recognize that exposure to herbicides occurred in places
outside of Vietnam and that certain presumptions are appropriate in
those cases. See 66 Fed. Reg. 23 (May 8, 2001).
While NVLSP strongly endorses S. 1091, we strongly recommend two
amendments to the bill.
1. DIC claimants. S. 1091 does not explicitly state that its
provisions apply to claims of survivors of deceased Vietnam veterans
for dependency and indemnity compensation (DIC). Indeed, by referring
to ``each claim for disability compensation'' in section 1(b)(1) and to
``establishing service connection for a disability resulting from
exposure to a herbicide agent'' in section 1(c)(1)(B)(i), the bill
could wrongly be read so that DIC claims are excluded. There is no
reason to exclude survivors from the bill's provisions, and we urge the
Committee to amend the bill to clarify the intent to make its
provisions equally applicable to both disability and DIC claims.
2. The Effective Date for Awards. Section 1(b)(2)(A) of S. 1091
states that ``the effective date of the award shall be the date on
which the claim would otherwise have been granted . . .'' The date a
claim is granted or should have been granted is not generally a factor
in the assignment of an effective date for an award of benefits
according to the provisions in the statute governing effective dates of
awards--38 U.S.C. Sec. 5110. In almost all cases, the effective date
that 38 U.S.C. Sec. 5110 would require is before the date a claim is
granted. Thus, NVLSP strongly urges that this subsection be amended to
provide that ``the effective date of the award shall be the date that
would have been assigned pursuant to section 5110 of title 38, United
States Code, or other existing legal requirements if the claim had been
granted on the date that it was denied as referred to in paragraph
(1).''
S. 1093
NVLSP's only comments on S. 1093 are as follows. We do not know the
extent to which the VA has, since November 9, 2000, notified claimants
pursuant to the VCAA of the need to submit additional information in
order to complete an application, but to the extent that it has, the
retroactive effective date of the change in Section 4 could create
serious due process problems. If a claimant were not informed in the
past of a deadline for submission of information to complete an
application, a retroactive effective date would be unduly harsh. We
believe that amending the effective date to the date of enactment will
eliminate any such due process problems.
Respectfully submitted,
Barton F. Stichman,
David F. Addlestone,
Joint Executive Directors.
______
Prepared Statement of Denise Nichols, Vice Chairman, National Vietnam
and Gulf War Veterans Coalition
The National Vietnam and Gulf War Veterans Coalition, a coalition
of 106 member groups including such groups as Viet Now, Rolling
Thunder, Vietnam Veterans of the War, Inc, and Gulf War Veterans Groups
nationally and internationally, have endorsed S409/HR612 The Gulf War
Veterans Compensation Act of 2001.
In the 105th Congress, there were many hearings on the Gulf War
Illnesses to include House efforts (Congressman Shay's Government
Reform Committee Investigation) and multiple Senate Veterans Affairs
Committee Hearings. In the hearings on the senate side at that time
there was mention of a need for a blanket disability for the Gulf War
Veterans. At the end of the session, legislative action and law was
passed to send the Gulf War Veterans to the Institute for Medicine to
review the Health consequences of over 20 known exposures. The
Institute of Medicine completed their first study in November of last
year on the Sarin, Depleted Uranium, PB tablets, and vaccines.
Unfortunately, when the Veterans Affairs Administration awarded the
contract to the IOM they limited them to the use of only peer reviewed
journal articles. This was probably related to national security
concerns but it prevented the IOM from requesting and reviewing DOD
unpublished research and reports on these exposures, which definitely
hurt the gulf war veterans obtain service connection to diseases, known
and unknown, related to these exposures. There were similarities seen
with the Sarin Gas Victims of the Japan Subway incident.
Anthrax reactions are still being examined by the IOM after the
House of Representative (Rep Shays subcommittee on Government Reform
and the Full Government Reform Committee) and the door must be kept
open for the Gulf War Veterans and for those that have had health
consequences from the Anthrax Vaccine. Research is on going on the
interactions of PB tablets and nerve agents and other exposures. Many
Federally Funded Research projects are still not reported as completed
and published.
We are still receiving inquiries weekly, if not more frequently
from Gulf War Veterans both deployed and nondeployed and those that
have received Anthrax vaccines who are just now realizing their
symptoms and who have not yet reported into the VA or the DOD medical
facilities for assistance. The veterans have as normal people, with
chronic type disease processes, normal coping going on where if they
can they keep continuing to try to do their normal activities and deny
their symptoms as long as they can before their bodies can not
continue.
The research and review ongoing at the IOM has not even gotten to
the stage of considering the synergistic effects of multiple exposures.
It is imperative that we continue the present coverage for the
veterans and extend the time presumption period of time another ten
years until 2011. We need to also remember to extend the Priority Care
to these veterans as is currently in place.
The symptoms list and the time period of the symptoms to be
considered chronic will not be changed in this legislation, the bill
simply seeks to codify two separate sections of The 38 CFR USC code
(sections 117 and 118) for clarity to the VA adjudicators, in order
that the importance of proper review of claims is fully implemented.
Too many claims have been denied and the veterans are the ones that
suffer unnecessarily. Since 1993, the Sense of the Congress has been to
care for the Gulf War Veterans and to enact the benefit of the Doubt to
the Veterans! It is to this government's advantage to rectify the
errors of the past and to seek adequate and effective compensation for
the Gulf War Veterans. The president in his campaign even stated that
he did not want the Gulf War Veterans standing in line with hat in
hand.
If we do not take these positive steps, the trust and faith in our
government by both the active duty and the veterans will suffer. We
have seen effects on recruitment and retention due to the fact that our
veterans are not as well care for as they should be when they have put
their life in harms way and have been damaged. This situation creates a
vicious cycle where then the government has to then funnel more money
into ads, educational benefits, and other recruitment and retention
efforts in order to overcome a negative effect from failure to fully
compensate and care for the veterans of a war/conflict.
The other portion of the bill is the effort to direct that every
benefit of the doubt goes to the veteran. The symptoms are a
constellation of symptoms and normally do not consist of just one or
two symptoms, the majority of the veterans have had all of the symptoms
listed and the epidemiological surveys have clearly shown that problem.
The last item of the bill 1-b- highlights the overlapping of the
symptoms the gulf war veterans have with some of the diagnosed
illnesses re Chronic Fatigue, Multiple Chemical Sensitivities, and
other autoimmunological diseases. The Art and Science of Medicine does
not guarantee 100 percent accurate or correct diagnosing and therefore
if the symptoms are common and overlapping the veterans claims should
not be thrown out for Undiagnosed Illnesses if they have received a
diagnosis for a known illness that may or may not be an accurate
diagnosis. Again, this seeks to give clear legal guidance to the VA
adjudicators to give the benefit of the doubt to the veteran.
The Gulf War Veterans are ill and it is real. We should not have
the veterans who are ill and need assistance fight their own government
for the earned benefit that they EARNED by putting their bodies and
life on the line for the United States Government (and its citizens),
its national policies and security. We Recommend that this bill be Fast
Tracked and passed into law now.
We must get passed the issue of compensation and into the other
needs of the Gulf War Veterans such as complete and accurate diagnostic
testing and medical treatment options. We have attached a list of these
Identified needs and hope that other Senators and Representatives will
take proactive action in these issues.
We would like to recommend that legislative steps be taken for the
troops and veterans that did not serve in theater and who are ill,
whether it is from anthrax vaccine, other vaccines, pb tablets, or NBC
exposures from secondary routes. These veterans have also been waiting
for assistance and enacting a registry, priority care, and compensation
is the next step. These steps may also help us further the research
into undiagnosed illness and find the factor that may have caused the
most damage or the key component to their illnesses. WE need to do this
for National Security and for the future soldiers of this country and
for the Citizens as well.
Thank you for your time and interest at today's hearings. We stand
ready to testify in person at the next Senate or House Hearing on the
Issue of Gulf War Veterans Compensation/Health and Investigations
relating to it.
______
Prepared Statement of Donald Sweeney, Legislative Director, National
Association of State Approving Agencies
Thank you Mr. Chairman and members of the Committee for the
opportunity to comment on the provisions of Senate Bill 1088. The
Association is grateful for the leadership that the Chairman and
Ranking Member have provided on the topic addressed by the bill.
Allowing accelerated payments is an excellent step in the right
direction to resolving one of the major problems confronting the use of
the Montgomery GI Bill.
Today's society demands that our Nation's veterans be competitive
in the market place, especially in the high technology industry. To be
so, they must initially acquire and, subsequently, periodically upgrade
appropriate knowledge and skills. Many educational institutions and
training establishments have addressed the demands of the high
technology industry by developing concentrated, short-term entry level
as well as advanced instruction. The costs that accompany such
instruction are usually much greater on a monthly basis than those
affiliated with a two or four year degree program. One way to offset
the escalation in these costs is to provide the veteran an opportunity
to utilize his or her VA educational benefits at an accelerated rate,
which is the focus of S. 1088.
We strongly believed that the rules governing the administration of
the GI Bill need to be flexible in providing our Nation's veterans as
many choices as possible to reach their educational and career goals.
We are pleased to provide our support for the provisions of S. 1088 and
will work for the enactment of the bill.
Thank you again, Mr. Chairman, for the opportunity to comment.