[Senate Hearing 108-722]
[From the U.S. Government Publishing Office]
S. Hrg. 108-722
PROPOSALS TO LIMIT ELIGIBILITY FOR
VA COMPENSATION TO VETERANS WITH
DISABILITIES DIRECTLY RELATED TO THE
PERFORMANCE OF DUTY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 23, 2003
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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COMMITTEE ON VETERANS' AFFAIRS
ARLEN SPECTER, Pennsylvania, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado BOB GRAHAM, Florida
LARRY E. CRAIG, Idaho JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
JIM BUNNING, Kentucky JAMES M. JEFFORDS, (I) Vermont
JOHN ENSIGN, Nevada DANIEL K. AKAKA, Hawaii
LINDSEY O. GRAHAM, South Carolina PATTY MURRAY, Washington
LISA MURKOWSKI, Alaska ZELL MILLER, Georgia
E. BENJAMIN NELSON, Nebraska
William F. Tuerk, Majority Chief Counsel and Staff Director
Bryant Hall Minority Chief Counsel and Staff Director
C O N T E N T S
----------
September 23, 2003
SENATORS
Page
Specter, Hon. Arlen, U.S. Senator from Pennsylvania, Chairman.... 1
Murray, Hon. Patty, U.S. Senator from Washington................. 6
WITNESSES
Principi, Hon. Anthony J., Secretary, U.S. Department of Veterans
Affairs; accompanied by Tim S. McLain, General Counsel, U.S.
Department of Veterans Affairs................................. 1
Bascetta, Cynthia A., Director, Education, Workforce, and Income
Security Issues, U.S. General Accounting Office................ 8
Prepared statement........................................... 9
Snook, Dennis W., Ph.D., Domestic Social Policy Division,
Congressional
Research Service............................................... 12
Olanoff, Mark H., Assistant Director, National Legislative
Commission,
The American Legion............................................ 13
Prepared statement........................................... 14
Cullinan, Dennis, Director, National Legislative Service,
Veterans of Foreign Wars....................................... 16
Surratt, Rick, Deputy National Legislative Director, Disabled
American
Veterans....................................................... 17
Prepared statement........................................... 18
Blake, Carl, Associate Legislative Director, Paralyzed Veterans
of America..................................................... 22
Jones, Richard ``Rick'', National Legislative Director, American
Veterans (AMVETS).............................................. 23
Prepared statement........................................... 24
Weidman, Rick, Director of Government Relations, Vietnam Veterans
of America..................................................... 26
Prepared statement........................................... 27
APPENDIX
Graham, Hon. Bob, U.S. Senator from Florida, prepared statement.. 29
Akaka, Hon. Daniel K., U.S. Senator from Hawaii, prepared
statement...................................................... 30
Miller, Hon. Zell, U.S. Senator from Georgia, prepared statement. 30
Bunning, Hon. Jim, U.S. Senator from Kentucky, prepared statement 31
PROPOSALS TO LIMIT ELIGIBILITY FOR
VA COMPENSATION TO VETERANS WITH DISABILITIES DIRECTLY RELATED TO THE
PERFORMANCE OF DUTY
----------
TUESDAY, SEPTEMBER 23, 2003
United States Senate,
Committee on Veterans' Affairs,
Washington, DC.
The committee met, pursuant to notice, at 2:34 p.m., in
room
SR-418, Russell Senate Office Building, Hon. Arlen Specter,
chairman of the committee, presiding.
Present: Senators Specter and Murray.
OPENING STATEMENT OF HON. ARLEN SPECTER,
U.S. SENATOR FROM PENNSYLVANIA
Chairman Specter. The Veterans' Affairs Committee will now
proceed. We have called this hearing to examine a complex
issue, which is now before the conference of the Armed Services
Committee and the House counterpart, as to what should be done
about the issue of concurrent receipts. The proposal has been
made for an offset, which would be very problemsome for many in
the military who are not retirees who have been getting
compensation since 1924.
We had scheduled this hearing for last Thursday and it was
scheduled on an emergency basis, scheduled last Tuesday with
only two days' notice because of the importance of the subject,
and the hurricane interfered and we are now going to proceed.
Our first witness is the distinguished Secretary of
Veterans Affairs who is always available to this committee and
we very much appreciate that. Of course, Secretary Principi, in
the spirit of reciprocity, this committee is always available
to you and I think it is a good team for the veterans of
America.
Without further ado, let us go right to the substance of
the matter and hear from our Secretary, Anthony J. Principi.
STATEMENT OF HON. ANTHONY J. PRINCIPI, SECRETARY, U.S.
DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY TIM S. McLAIN,
GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. Principi. Thank you, Mr. Chairman. I greatly appreciate
the opportunity to discuss this very, very important issue with
regard to concurrent receipt and consideration that has been
given to whether we should change the basis for establishing
service connection for VA benefits. I appreciate your
leadership and holding this hearing on an expedited basis so
that this issue can be considered, as it certainly impacts not
only in the Department of Defense, but it impacts on the
Department of Veterans Affairs and the men and women we have
the privilege to serve.
Let me start by saying, Mr. Chairman, that VA disability
compensation is a very, very complex program and I have some of
our experts here and they probably--it would take me a lifetime
to learn what they have forgotten, so I am not truly an expert
in every aspect of this program, but it is indeed complex, and
fundamental changes to the foundation of complex programs are
likely to have far-reaching and unpredictable effects.
The current standard, service connection for every
disability incurred or aggravated while on active duty, as you
indicated, Mr. Chairman, dates back 80 years and reflects the
24-by-7 nature of military duty. That was the way it was when I
was on active duty, and it is certainly the way my two boys are
bearing up under the current way we consider active duty when
we call men and women into our armed forces. There is now no
need to determine the cause of a disability if it occurred
while you were in the military or a preexisting condition was
aggravated.
We don't have the data to provide you with specific
predictions of how many veterans and survivors would be
affected by a redefinition of the basis for service connection,
but we can predict the outcomes would be widespread and have a
dramatic effect on the lives of many of the affected veterans
and their survivors.
As you know, there are two separate systems of disability
benefits for active duty service members and veterans, one
operated by the Department of Defense and the other operated by
my Department, the Department of Veterans Affairs. As I
understand it, the proposal that was being looked at would
leave intact the Title 10 Defense Department benefits, that is,
severance pay or disability retirement even for veterans with
disabilities that are determined not to be the result of
performance of duty--an automobile accident, an off-duty
accident. The Title 10 provisions would stay intact.
The significant difference, however, is that unlike the VA
disability program, DoD benefits vary with the service member's
rank and length of service and may not always provide adequate
support for every affected service member. Let me show you on
this chart, if I may, Mr. Chairman.
This is a comparison of Title 10 and Title 38 benefits, and
for purposes of this comparison, we took an E-3, a private
first class with two years of service, and an O-5, a lieutenant
colonel, a commander in the Navy, with 18 years of service who
were involved in an accident. For these purposes, we have an
automobile accident. It could be any accident, but it's not
considered to be performance of duty. And for further purposes,
we considered that these service members, the private first
class and the O-5, the lieutenant colonel, have a spouse and
one dependent child.
As you can see, these are the various benefits that are
afforded either through Title 10 for DoD or Title 10XXVIII,
VA--monthly compensation, vocational rehabilitation, priority
health care, all the way down to an annual clothing allowance
if you're disabled and need to have certain types of clothing.
You can see under--for purposes of this example, we have a
60 percent rating. The service member lost one leg above the
knee in this accident. Under Title 10, the O-5, the officer
with 18 years of service, will be eligible for a monthly
compensation of $3,657 a month. The E-3 under the Department of
Defense program will be eligible for $865 a month. And the VA,
in these individuals chosen, the VA program, the benefit would
be tax-free $1,011 a month. So you can see here that the O-5
does better, so to speak, than the E-3.
But if the VA was changed that this would not be considered
performance of duty and no benefits would accrue, there would
be no monthly compensation. So that would dramatically impact
on the lower-ranking enlisted member.
In addition, and very importantly, you can see that if the
VA definition is changed so that this would not be compensable,
but this is an off-duty automobile accident, the service
member, both O-5 and E-3, would not be eligible for vocational
rehabilitation, the opportunity to go to school, learn a new
trade, a new vocation, get subsistence while they're trying to
go to school. They would be eligible for priority health care
under both DoD and VA. Of course, Tri-Care is available for the
Defense member and their dependents. We do not have a Tri-Care
program. We do not treat dependents.
Survivor benefits, dependency and indemnity compensation,
are available to dependents of the veteran. They would lose all
of these benefits, of course, if there was a definition change,
and veterans would lose such other benefits as the automobile
allowance, civil service preference, on and on.
Now, if you look at a more serious disability that would be
rated at 100 percent, using both an O-5 again and an E-3, with
a spouse and one child, you could see that under the DoD
system, the O-5 would receive a monthly retirement benefit of
$4,600 a month. The E-3, $1,082 a month. And if they chose to
receive the VA benefits, it would be $2,943 a month tax-free.
So if the VA system was changed and this automobile
accident was not considered service connected, the O-5 would
still certainly be ahead because the retirement for the O-5
with 18 years of service is $4,621 a month. You can see what
happens to the E-3. It would be very, very difficult to support
a spouse and a child on basically $12,000 a year under the DoD
program. It would be about a third of what they would get under
the VA.
So I think this clearly shows the difficulty of making
changes and how it might impact, especially on the lower-rated
enlisted people and, to a degree, the officers, as well. So I
am concerned that DoD benefits might be reasonable for higher-
ranking individuals, but would provide a poor foundation for
building a civilian life for the lower-ranking service members
who comprise the bulk of the veteran population.
A reform of this importance and this scope, I believe, is
poorly suited to enactment without rigorous and comprehensive
examination of policy alternatives, resolution of
implementation issues, and careful consideration of the effects
of drafting decisions on both the veterans and their survivors,
spouses and children, and on the ability of VA and other
agencies like the Office of Personnel Management for veterans'
preference, the Department of Labor for employment benefits,
and other State and local governments to administer the
legislation fairly and effectively.
At the same time, I do understand concerns that have been
raised that current law compensates illnesses or injuries with
no relationship to a veteran's military service. I recognize
that the nature and origin of disabilities for which
compensation is paid raises public policy issues.
If the Congress desires to address these issues, including
the integration of the VA and the DoD disability programs and
the rationale for the two systems, I suggest that these
questions be studied thoughtfully and deliberately, alternative
answers identified, and consequences of those answers
evaluated. I believe then that we would all, the VA and the
Department of Defense and the Congress, both the Armed Services
Committee and the Veterans' Affairs Committee, would have the
data necessary to make considered public policy decisions with
a reasonable assurance that it understands and accepts the
consequence of those decisions.
I also believe that the Congress was on the right path last
year when it enacted the Combat-Related Special Compensation
program, called CRSC. CRSC provides for additional benefits to
disabled retirees awarded a Purple Heart or whose disability is
the result of military operations--a training accident,
instrumentality of war, aboard ship, or something along those
lines. It ensures that they receive both their military
retirement pay and their disability, tax-free disability
compensation from the VA. Even though their disability did not
disrupt their military careers and they were able to serve for
20 years or more, it certainly focuses on the people who were
in combat and whose injuries and disabilities were related to,
whether it be combat operations or training accidents, friendly
fire or whatever it might be.
Could refinements to the CRSC program be made? I think the
Congress could look at refinements. We are asking our Reserve
and Guard to play a much more meaningful role in combat
operations today and perhaps the CRSC program could be expanded
to embrace more of the Reservists and Guardsmen. There is a 60
percent rating threshold for non-combat injuries or illnesses.
That could be addressed perhaps, to ensure that serious
disabilities are being looked at and compensated fairly for
those who are disabled retirees.
So I do think there are things that perhaps can be explored
by the Congress, but I do believe you were on the right path
last year because you focused on the people whose injuries or
illnesses were related to their combat or their training
accidents.
With that, Mr. Chairman and members of the committee, I
thank you for the opportunity to testify today and I look
forward to answering your questions.
Chairman Specter. Mr. Secretary, working through just the
very basics here, when you talk about concurrent receipts, you
are talking about getting both retirement pay and disability
for those who have served 20 years or more, are entitled to
retirement, and they have some disability.
Mr. Principi. That is correct.
Chairman Specter. And at the present time, there is an
offset unless the retiree has the disability for injury
sustained in the line of duty. Is that all line of duty or only
combat?
Mr. Principi. No, it is--well, certainly there are two
components to the CRSC program. The first component is anyone
who has a Purple Heart is fully covered. Whether it is a ten
percent disability or a 100 percent disability, they get both
full military retirement pay and full VA disability
compensation tax-free.
The second component of this CRSC is what they call the
``plus'' part. If you have a military-related disability rated
60 percent or greater that was incurred in the performance of
duty, and their criteria are spelled out, as a direct result of
armed conflict, while engaged in hazardous service, in the
performance of duty under conditions simulating war, which
would be training, or through an instrumentality of war, aboard
a ship, aboard a tank, then you would be covered, as well. So
it is not just combat. It is performance of duty, as well. That
is my understanding of how the law is being interpreted by the
Defense Department.
Chairman Specter. And on the proposed offset, there would
be a change in the law which has been in existence since 1924
so that a non-retiree would not be entitled to any disability
unless it was in performance of duty.
Mr. Principi. Yes. I think there was a consideration being
given to it. I really don't know whether that is in the
conference report. I don't believe it is. They were looking at
how to offset the cost of full concurrent receipt and they
proposed changing the definition of service connection just
along the lines you said, that if you----
Chairman Specter. We are talking about a non-retiree now
and the non-retiree would continue to get disability if it was
in the performance of duty.
Mr. Principi. Everyone would--any active duty service
member who is injured, whether it is in the performance of duty
or not, would be eligible for benefits under Title 10, the
Department of Defense disability program.
Chairman Specter. Take the hypothetical of somebody in the
military is in an automobile accident on the way to the base.
Mr. Principi. Like I showed you here.
Chairman Specter. All right. It is your hypothetical. Is
that injury entitling him to a disability under the proposed
offset?
Mr. Principi. Only under the DoD system, not the VA. They
would be eligible for disability payments from the Department
of Defense, but not from the VA. But as you saw in the charts,
if you are a lower-rated enlisted person, you don't fare as
well under the DoD system as you would under the VA system. If
you are a higher-ranked officer, you fare better under the DoD
system than the VA system because the DoD system is based upon
your grade times your length of service. The VA is equitable.
We treat everybody the same.
Chairman Specter. My time has almost expired, so let me
turn to Senator Murray.
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. Mr. Chairman, thank you for having this
hearing today. I really appreciate it, and Secretary Principi
for coming and joining us, and, of course, the VSO's, who are
great voices for many people in this country. They have served
us all well. I appreciate your all being here.
I have been a strong supporter of concurrent receipt. I
think it is the right thing to do and I am trying to understand
this compromise proposal, as well. It is my understanding the
VA has done some kind of quick assessment of the percentage of
retirees that are currently receiving VA disability
compensation that would be denied under the proposed definition
for disability, and I think I heard that as many as 64 percent
of the claims would have to be changed, is that correct?
Mr. Principi. I will have Mr. Epley answer the question.
Mr. Epley. My name is Bob Epley. We did a review of cases
that were on hand in our central office, Compensation and
Pension Service, and very quickly tried to make an assessment
based on our review of the proposed legislation, and we did
find that as many as 64 percent might not be eligible under----
Senator Murray. Might not be eligible. Can you give me a
rough idea of exactly how many veterans we are talking about,
numbers?
Mr. Epley. I think the sample was about 200 cases.
Senator Murray. About 200 cases? Mr. Secretary, arthritis
is one of the common diseases in non-veterans, and I have heard
things like it could come from the trauma of jumping out of
planes, for example. So if a paratrooper veteran with arthritis
in his knees is unable to point to a specific injury from a
specific jump, could this new proposal deny him benefits for
which he is currently eligible?
Mr. Principi. Yes, I believe it would under the VA system,
but it would be eligible for the DoD retirement disability
system, so----
Senator Murray. He would be eligible for the DoD----
Mr. Principi. But he would--under a redefinition; it is
possible that that would be the case. I think, clearly, if you
have arthritis and are a finance officer, it would probably be
more difficult to demonstrate connection. If you were a
paratrooper or Marine who slept on the cold ground in Korea,
then I think a strong case could be made that that was
performance of duty. But that is the complexity. That is what
happens when you change this definition. It becomes very
difficult to adjudicate what is service connected and what is
not.
Senator Murray. How could this proposal that is limiting
the concurrent receipt to injuries directly, can you give us
kind of an example of how that would affect our current
veterans coming home from Iraq and Afghanistan? Do you have any
idea?
Mr. Principi. They are all coming home from a combat
theater of operations. I would hope that anyone who is
disabled, whether it is an injury or an illness, from a combat
theater of operations would be service connected, would be
considered to be in the performance of duty.
Senator Murray. Even if it was their half-a-day off and
they were not directly in combat?
Mr. Principi. That could be very problematic, and under a
redefinition, they could be excluded. They would have to rely
upon the DoD system for their benefits.
Senator Murray. I think that is a real concern. And the
other concern I had was about surviving spouses. Wouldn't it be
much more difficult under a performance of duty standard for a
surviving spouse?
Mr. Principi. Surviving spouses would be impacted the same
as the service member, the veteran, is. Again, the Department
of Defense has survivor benefit plans, but under DoD, under VA,
if the veteran is deemed--his injury is deemed not to be in the
performance of duty, then the spouse would be adversely
impacted, as well.
Senator Murray. I guess what concerns me is I feel like we
are potentially creating a dual system where current claimants
operate under a different standard for disability for future
claimants, as well. I am concerned that administering two
different systems here is going to become complex. We are going
to have to create two different systems to handle this. How do
you see that?
Mr. Principi. I think it would be very--I think it would be
problematic. I think those are some of the issues, if changes
are appropriate, the implications of those changes and how
those--this new program would be administered should be studied
very carefully before we proceed.
Again, I understand that it may be appropriate to look at
some types of reforms, and I believe that the best approach to
do that would be for us to collectively study it and to make
recommendations on change.
Senator Murray. I have a number of questions on this that I
would like to submit. I know I only have a few seconds left. I
did want to ask you while you were before this committee, as
well, Secretary, as you know, we discussed the CARES process
and I am deeply concerned about some of the time lines on that.
I know you are supposed to make a decision by the end of this
year. I know that cost savings is supposed to be part of that.
I want to know from you, if those cost savings don't
materialize, how we are going to deal with some of the outcomes
of this and whether you think the administration will have
enough funding or has requested enough funding to cover the
costs of expanding the coverage and enhancing care.
Mr. Principi. Senator, you raise important issues. I only
have one goal, and that is to move the VA health care system
forward in this century, recognizing the enormous changes that
are taking place in American medicine and the demographics of
the veteran population. So it is more about transformation. I
am not looking to save money per se just for the sake of saving
money, but to use that money in a way that expands the reach of
health care.
I have to be convinced in my own mind after the commission
submits its report to me that this is, in fact, the right plan
for the VA in the 21st century or I will not approve it. So I
am going to take--I am going to be very deliberate in my review
of it. If I have questions with what they have proposed, I am
going to ask them to go back out and consider it. I would like
to see if we can get this done by the end of the year, but what
is more important to me is that we do it right, because we
don't have many opportunities.
GAO has said we are wasting $400 million a year, or close
to $400 million a year. That is an awful lot of money for
doctors and nurses and drugs that are being denied veterans, so
I appreciate your concern.
Senator Murray. I don't want to see money wasted. I am very
concerned--I know you are closing or looking at closing about
6,000 beds and counting on beds to be available in the private
sector. Part of the CARES process was not to look at what beds
were available. You said you are going to take your time and do
it right. I would really urge you to make sure that you can
assure veterans that we are not just going to close hospitals
and hope those beds are open, but part of your study will be
whether or not those beds are available in some of these
communities, and I am deeply concerned about that.
Mr. Principi. I agree with you, Senator, and I commit to
you, that will be the case. From my perspective, as long as I
am there, I will certainly ensure that that is done.
Senator Murray. Thank you very much, Mr. Secretary. Thank
you, Mr. Chairman.
Chairman Specter. We are going to turn now to our second
panel, Cynthia Bascetta and Dr. Dennis Snook. We are going to
be holding to time lines very tightly here, if you would move
up. Three minutes for each witness. We have another very
lengthy panel and I expect to be voting soon so that we are
going to have to adhere to these time lines.
Our first witness is the Associate Director of Health,
Education, and Human Services, General Accounting Office, Ms.
Cynthia Bascetta. Ms. Bascetta, thank you for joining us and we
look forward to your testimony.
STATEMENT OF CYNTHIA A. BASCETTA, DIRECTOR,
EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, U.S. GENERAL
ACCOUNTING OFFICE
Ms. Bascetta. Thank you, Mr. Chairman. Thank you for
inviting me to testify today.
It goes without saying, with continued deployment of our
military forces that we owe a profound debt to our veterans. As
you know, current law allows veterans to receive disability
compensation for diseases and injuries that are coincident with
their military service. No causal link is required for
eligibility.
We reported on this issue in 1989 and suggested that the
Congress may wish to consider whether diseases neither caused
nor aggravated by military service should be compensated as
service-connected disabilities. At your request, I will focus
today on the findings of that report issued to the Congress
nearly 15 years ago. To provide context for my perspective, I
will also highlight our recent work on the high-risk nature of
Federal disability programs for veterans and other Americans.
Mr. Chairman, the complex design of VA's disability
programs, including eligibility, has developed over many years.
Our 1989 analysis used 1986 data to provide a profile of
beneficiaries receiving disability compensation, with an
emphasis on determining the origin of their disabilities. Our
methodology involved extensive review by physicians of 400
randomly selected case files.
We found that 51 percent of veterans in our review were
disabled due to injury, and more than one-third of them
sustained their injuries in combat or performing a military
task. The remaining 49 percent were disabled due to disease and
the physicians concluded that 17 percent of their diseases were
probably caused or aggravated by military service. But 19
percent were probably not related to military service, and 13
percent were indeterminate.
The physicians concluded that there was generally no
relationship between military service and several common
diseases, including arteriosclerotic heart disease and chronic
obstructive pulmonary disease. Notably at the time, they
included diabetes, which recent scientific evidence indicates
is linked to diabetes in veterans exposed to Agent Orange.
CBO has used our analysis to estimate the savings
associated with discontinuing eligibility for seven diseases we
identified as probably not caused by service. Using VA data,
CBO estimated budget savings of $449 million over the next five
years.
While this illustrates the potential cost savings of
changes in eligibility, it is neither a comprehensive estimate
nor does it necessarily reflect changes in medicine and
scientific knowledge that could be used to update our
understanding of the causal links between military service and
disabilities. In fact, VA's outmoded disability criteria,
whether the statutory definition of service connection remains
the same or not, was one reason we designated it as high risk
this year.
Beyond eligibility, outmoded criteria have implications for
the distribution of benefits, including whether those who are
more severely disabled are compensated fairly relative to those
with severe disabilities. For example, narrowing eligibility
could free up resources to provide more compensation to the
most severely disabled veterans.
Chairman Specter. Ms. Bascetta, you are in overtime. Your
full statement will be made a part of the record. Would you sum
up, please?
Ms. Bascetta. Yes, I will. Narrowing eligibility has
significant implications, obviously, for stakeholders,
veterans, and the design of VA's disability programs.
This March, we testified that deliberations on concurrent
receipt of disability compensation and retirement pay would
benefit from the pursuit of more fundamental reform of all
Federal disability programs, and we think that the proposal
under discussion today certainly deserves the same amount of
scrutiny.
Chairman Specter. Thank you very much.
[The prepared statement of Ms. Bascetta follows:]
The Prepared Statement of Cynthia A. Bascetta, Director, Education,
Workforce, and Income Security Issues, U.S. General Accounting Office
Mr. Chairman and Members of the Committee:
I am pleased to be here to discuss our past reviews of the
Department of Veterans Affairs (VA) disability programs as you consider
the fundamental issue of eligibility for benefits and the related issue
of concurrent receipt of VA disability compensation and Department of
Defense (DoD) retirement pay. Our work has addressed these issues in
addition to identifying significant program design and management
challenges hindering VA's ability to provide meaningful and timely
support to disabled veterans and their families. It is especially
fitting, with the continuing deployment of our military forces to armed
conflict, that we reaffirm our commitment to those who serve our nation
in its times of need. Therefore, effective and efficient management of
VA's disability programs is of paramount importance.
As you know, in January 2003, we designated VA's disability
compensation programs, as well as other federal disability programs
including Social Security Disability Insurance and Supplemental
Security Income, as high risk areas. We did this to draw attention to
the need for broad-based transformation of these programs, which is
critical to improving the government's performance and ensuring
accountability within expected resource limits. In March 2003, we
cautioned that the proposed modification of concurrent receipt
provisions in the military retirement system would not only have
significant implications for DoD's retirement costs, but could also
increase the demands placed on the VA claims processing system. This
would come at a time when the system is still struggling to correct
problems with quality assurance and timeliness. Moreover, we testified
that it would be appropriate to consider the pursuit of more
fundamental reform of the disability programs as the Congress and other
policymakers consider concurrent receipt.
Today, as you requested, I would like to highlight the findings of
our related past work on VA's disability programs, including our 1989
report on veterans receiving compensation for disabilities unrelated to
military service. My comments are based on numerous reports and
testimonies prepared over the last 15 years as well as our broader work
on other federal disability programs.
In summary, VA needs to modernize its disability programs. In
particular, VA relies on outmoded medical and economic disability
criteria in adjudicating claims for disability compensation. In
addition, VA has longstanding problems providing veterans with
accurate, consistent, and timely benefit decisions, although recent
efforts have made important improvements in timeliness. However,
complex program design features, including eligibility, have developed
over many years, and solutions to the current problems will require
thoughtful analysis to ensure that efficient, effective, and equitable
solutions are crafted. Moreover, these solutions might need to take
into account a broader perspective from other disability programs to
ensure sound federal disability policies across government programs and
to reduce the risks associated with the current programs.
BACKGROUND
VA provides disability compensation to veterans with service-
connected conditions, and also provides compensation to survivors of
service members who died while on active duty. Disabled veterans are
entitled to cash benefits whether or not employed and regardless of the
amount of income earned. The cash benefit level is based on the
percentage evaluation, commonly called the ``disability rating,'' that
represents the average loss in earning capacity associated with the
severity of physical and mental conditions. VA uses its Schedule for
Rating Disabilities to determine, based on an evaluation of medical and
other evidence, which disability rating to assign to a veteran's
particular condition. VA's ratings are in 10 percent increments, from 0
to 100 percent.
Although VA generally does not pay disability compensation for
disabilities rated at 0 percent, such a rating would make veterans
eligible for other benefits, including health care. About 65 percent of
veterans receiving disability compensation have disabilities rated at
30 percent or lower, and about 8 percent are 100 percent disabled.
Basic monthly payments range from $104 for a 10 percent disability to
$2,193 for a 100 percent disability.
VA'S DISABILITY CRITERIA ARE OUTMODED
In assessing veterans' disabilities, VA remains mired in concepts
from the past. VA's disability programs base eligibility assessments on
the presence of medically determinable physical and mental impairments.
However, these assessments do not always reflect recent medical and
technological advances, and their impact on medical conditions that
affect potential earnings. VA's disability programs remain grounded in
an approach that equates certain medical impairments with the
incapacity to work.
Moreover, advances in medicine and technology have reduced the
severity of some medical conditions and allowed individuals to live
with greater independence and function more effectively in work
settings. Also, VA's rating schedule updates have not incorporated
advances in assistive technologies--such as advanced wheelchair design,
a new generation of prosthetic devices, and voice recognition systems--
that afford some disabled veterans greater capabilities to work.
In addition, VA's disability criteria have not kept pace with
changes in the labor market. The nature of work has changed in recent
decades as the national economy has moved away from manufacturing-based
jobs to service- and knowledge-based employment. These changes have
affected the skills needed to perform work and the settings in which
work occurs. For example, advancements in computers and automated
equipment have reduced the need for physical labor. However, the
percentage ratings used in VA's Schedule for Rating Disabilities are
primarily based on physicians' and lawyers' estimates made in 1945
about the effects that service-connected impairments have on the
average individual's ability to perform jobs requiring manual or
physical labor. VA's use of a disability schedule that has not been
modernized to account for labor market changes raises questions about
the equity of VA's benefit entitlement decisions; VA could be
overcompensating some veterans, while under-compensating or denying
compensation entirely to others.
In January 1997, we suggested that the Congress consider directing
VA to determine whether the ratings for conditions in the schedule
correspond to veterans' average loss in earnings due to these
conditions and adjust disability ratings accordingly. Our work
demonstrated that there were generally accepted and widely used
approaches to statistically estimate the effect of specific service-
connected conditions on potential earnings. These estimates could be
used to set disability ratings in the schedule that are appropriate in
today's socioeconomic environment.
In August 2002, we recommended that VA use its annual performance
plan to delineate strategies for and progress in periodically updating
labor market data used in its disability determination process. We also
recommended that VA study and report to the Congress on the effects
that a comprehensive consideration of medical treatment and assistive
technologies would have on its disability programs' eligibility
criteria and benefit package. This study would include estimates of the
effects on the size, cost, and management of VA's disability programs
and other relevant VA programs and would identify any legislative
actions needed to initiate and fund such changes.
SOME VETERANS ARE COMPENSATED FOR DISABILITIES NOT RELATED
TO MILITARY SERVICE
A disease or injury resulting in disability is considered service-
connected if it was incurred or aggravated during military service. No
causal connection between the disability and actual military service is
required. In 1989, we reported on the U.S. practice of compensating
veterans for conditions that were probably neither caused nor
aggravated by military service. These conditions included diabetes
unrelated to exposure to Agent Orange, chronic obstructive pulmonary
disease, arteriosclerotic heart disease, and multiple sclerosis. A
review of case files for veterans receiving compensation found that 51
percent of compensation beneficiaries had disabilities due to injury;
of these, 36 percent were injured in combat, or otherwise performing a
military task. The remaining 49 percent were disabled due to disease;
of these, 17 percent had disabilities probably caused or aggravated by
military service; 19 percent probably did not have disabilities related
to service; and for 13 percent, the link between disease and military
service was uncertain. We suggested that the Congress might wish to
reconsider whether diseases neither caused nor aggravated by military
service should be compensated as service-connected disabilities.
In March 2003, the Congressional Budget Office (CBO) reported that,
according to VA data, about 290,000 veterans received about $970
million in disability compensation payments in fiscal year 2002 for
diseases identified by GAO as neither caused nor aggravated by military
service. CBO estimated that VA could save $449 million in fiscal years
2004 through 2008, if disability compensation payments to veterans with
several nonservice-connected, disease-related disabilities were
eliminated in future cases. In August 2003, we also identified this as
an opportunity for budgetary savings if the Congress wished to
reconsider program eligibility.
Because of the complexities involved in a potential change in
eligibility, the details of how such a change would be implemented and
its ramifications are important to the Congress, VA, veterans, and
other stakeholders. For example, service connection is linked with
eligibility for other VA benefits, such as health care and vocational
rehabilitation. Moreover, efforts to change VA disability programs,
including eligibility reform, would benefit from consideration in the
broader context of fundamental reform of all federal disability
programs.
Mr. Chairman, this concludes my prepared remarks. I would be happy
to answer any questions that you or Members of the Committee might
have.
Chairman Specter. We now turn to Dr. Dennis Snook, Domestic
Social Policy Division, Congressional Research Service. Thank
you for joining us, Dr. Snook, and we look forward to your
testimony.
STATEMENT OF DENNIS W. SNOOK, Ph.D., DOMESTIC SOCIAL POLICY
DIVISION, CONGRESSIONAL RESEARCH SERVICE
Mr. Snook. Thank you, Mr. Chairman, for the opportunity to
provide some observations and conclusions about VA disability
compensation and how it is determined.
You mentioned earlier the 1924 date, which was really the
culmination of public administration having learned the
difficulties in trying to coordinate categorical eligibility
with the specifics of individual cases. It was the working out
of three principles that arose from the beginning of the
Republic.
The first was the patriotic imperative that we have a duty
to protect the Republic and an obligation of the citizens to
aid those who sacrifice on our behalf.
The second was in the Civil War, the realization that we
were moving into a period in which it wasn't simply a
professional class of military officers who became disabled in
the service of the country and couldn't continue on in their
military careers and, therefore, they and their families needed
to be supported, but it was a much larger population of people
who had lost the capacity to become self-reliant. And so we
began to try to provide ways to give them the support they
needed for the remainder of their lives.
However, we were a new nation and public administration
itself was quite new and practices in the 1870s that were
arising in the railroads of trying to regularize a practice of
taking up a collection for Joe when Joe was hurt began to be
reflected in the way in which the government began to deal with
disability cases. It had to, first of all, try to come up with
a criteria of eligibility, but it also had to try to find a way
to validate or rebut claims.
The problem was that the general presumption upon which the
compensation was based, the idea of replacing the capacity to
become, or to remain self-reliant, was that the individual is
presumed to be of sound mind and body at the point at which
they entered military service, and if at some subsequent point
afterwards they were no longer of sound mind and body, then
there is a prima facie case that the individual somehow or
another sustained some disability during the period of military
service.
It became especially important in the aftermath of the
Spanish-American War, through the period to 1924, when we began
to experience the rise in various kinds of disabilities based
upon illnesses that were sustained that we couldn't even
diagnose. We just knew that, somehow or another, these people
had encountered them during their period of military service.
The same was true with injuries sustained during the Civil
War, as we began to try to codify a way to provide them
benefits. We could look back and say that they--we could look
at them now and say that they indeed exhibited the
characteristics of a disability, but we had to try to figure
out whether or not that disability had actually been sustained
during service. So attempts were made to do that, only to
discover that it wasn't really possible. It was really
necessary to provide them only a connection to their period of
military service.
If you try to move away from----
Chairman Specter. You are in overtime. Could you sum up,
please?
Mr. Snook. I will. To provide an alternative to this is to
create a system that will die the death of a thousand
qualifications in a hurry, because there is really no way to
try to take that categorical eligibility and translate it into
specific cases without using a broader brush, like service
connection at a point in time.
Thank you very much.
Chairman Specter. Thank you very much.
We have questions, but we are looking for a series of votes
here on the Interior bill, and once they start, we are going to
have to move onto the floor, so we are going to move now to the
third panel, Mr. Mark Olanoff, Mr. Dennis Cullinan, Mr. Rick
Surratt, Mr. Carl Blake, Mr. Richard Jones, Mr. Rick Weidman.
We turn now to our first witness, Mr. Mark Olanoff,
Assistant Director of the National Legislative Commission of
the American Legion. Mr. Olanoff, thank you for joining us and
we look forward to your testimony.
STATEMENT OF MARK H. OLANOFF, ASSISTANT DIRECTOR, NATIONAL
LEGISLATIVE COMMISSION, THE AMERICAN
LEGION
Mr. Olanoff. Thank you, Mr. Chairman. It is a pleasure to
see you again. I know we don't have a lot of time.
There are a couple of things that I would like to react to.
I have submitted a full statement for the record.
Chairman Specter. It will be admitted into the record,
without objection.
Mr. Olanoff. Thank you, Mr. Chairman. The first thing is
some of the quick questions here. Military retired pay is an
earned benefit for longevity years of service. The VA
disability compensation system is based on injuries or diseases
that are incurred or aggravated while in service.
None of us sitting here invented these terms, severely
disabled and combat related. A veteran is a veteran is a
veteran. It doesn't matter whether you served two years or 40
years.
The American Legion has had a resolution for years to
provide full concurrent receipt. The last few years, the
legislation was changed to be called the restoration of retired
pay, because that is what it really is. The Pentagon doesn't
pay the money and military retirees are forced to pay for their
own disability.
A few examples of--and unfortunately, as I said in my
written statement, we don't have the official language of what
is being proposed. However, we have seen one version of the
language, which I faxed to Mr. Tuerk today, which states that
both Title 10 and Title 10XXVIII would be changed to this
performance-based system.
So, therefore, the people that were in the Khobar Towers,
which I had the opportunity to visit before that happened,
under the new, quote, ``definition of performance of duty,'' if
you go by the first version that some of us have seen, if you
are sleeping in your bed after duty hours, those heroes who
received Purple Hearts, no longer would they receive a Purple
Heart. They wouldn't even be considered service connected.
Their widows, if they were to die, would receive nothing, and
they would be out on the street probably looking for some other
Federal program.
So we support concurrent receipt fully, but not in a
draconian way to change the whole business of Title 10XXVIII
to, as Senator Murray said, have two systems, one system for
the people that are currently receiving disability compensation
and another system for new people who are going to come back
from Iraq, and God forbid that if you are off duty, or some of
this language suggests if you are traveling back and forth to
work or going to lunch, you would not be considered, like
today's criteria that you are covered 24-7.
So we urge you to--there needs to be a deliberative process
before this system is changed. Thank you, Mr. Chairman.
Chairman Specter. So you favor concurrent receipts, but not
with a draconian offset that hasn't been sufficiently studied?
Mr. Olanoff. Yes, sir.
[The prepared statement of Mr. Olanoff follows:]
The Prepared Statement of Mark H. Olanoff, Assistant Director, National
Legislative Commission, The American Legion
Mr. Chairman and Members of the Committee:
Thank you for allowing The American Legion the opportunity to
participate in this hearing. Over the last two weeks, The American
Legion and other veterans' and military service organizations have been
chasing a ``ghost'' proposal attempting to end the tax placed on
disabled military retirees. To date, The American Legion has not been
provided a written copy of the proposed legislation for its official
comments. Even for this hearing, we are asked to speculate what that
proposed legislation might look like.
So here is the short answer: The American Legion adamantly supports
full concurrent receipt of military retirement pay and VA disability
compensation. Both are earned benefits for two completely different
reasons. Military retirement pay is determined and awarded by the
Department of Defense for honorable military service. VA disability
compensation is determined and awarded by the Department of Veterans
Affairs for medical conditions incurred or aggravated while on active-
duty.
Of the 26 million American veterans, less than 10 percent are
service-connected disabled and only 2 percent are military retirees.
Over 2 million service-connected disabled veterans receive their VA
disability compensation with no offsets to their salaries or retirement
plans, to include Federal and State employees. However, there are
600,000 military retirees that could not receive VA disability
compensation until they were discharged from active-duty and retired--
even if the disability were as obvious as a missing limb. Once they
were awarded their VA disability compensation, their military
retirement pay was reduced--dollar-for-dollar. The amount of military
retirement pay retained by DoD would amount to literally hundreds of
billions of dollars.
In fact, according to Secretary Rumsfeld, DoD plans to withhold an
additional $58 billion over the next 10 years from the retirement
checks of military retirees with 20 years or more of active military
service or Reservists with over 7200 points. If the Secretary included
all service-connected disabled military retirees, that amount would be
even greater.
The current proposal being floated around would grant full
concurrent receipt at what The American Legion would consider an
immoral and unethical approach. This proposal calls for ``reform'' of
the VA disability definition. Yet, VA has at least two full
congressional committees with jurisdiction and oversight of the VA
claims and adjudication process. In addition, VA has judicial review of
its disability compensation decisions through the Court of Appeals for
Veterans' Claims.
Ill-advised changes in VA's disability definitions would result in
numerous examples of injustices resulting in service-connected disabled
veterans being denied compensation, treatment, or rehabilitation. The
adverse impact of this legislation would continue to reveal unintended
consequences. With each unique case new adjustments would be made and
eventually, you would be right back where you started with the current
rules, regulations, and definitions.
Changes in disability standards in Titles 10 and 38 United States
Code (USC) would require that injury or illness that results in
disability retirement and separation must have been incurred as a
``direct result of the performance of duty'' and redefines service
connection, respectively, as follows;
1. Injuries resulting from the performance of official military
duties.
2. Illness directly resulting from exposure to the causes of the
illness while performing military duties or directly resulting from
exposure to the causes of the illness at the duty or directly resulting
from exposure to the causes of the illness at the duty location to
which the member is assigned.
3. Excludes injuries that are sustained while not performing
official military duties.
4. Excludes illnesses determined to be related to aging and/or
preexisting medical conditions of the member;
``Official military duties'' are defined as:
1. Duties performed in an official government capacity directly
related to those functions and scope of duties associated with the
occupational skill assigned to the member.
2. Other actions or functions in an official government capacity
that the member was ordered to execute by a member (or civilian
supervisor) of senior grade or rank or in an senior or superior
position, or a member, or a member that is designated by such a senior
individual to give the member instructions, to include unspecified
preparatory or follow-on actions and functions.
3. Includes duties that result in qualified combat-related
disabilities as defined in 10 U.S.C. Sec. 1413a.
4. Excludes actions and time periods unrelated to official
government business to include travel to and from the members home and
permanent duty station, meals and other activities selected and carried
out by the member at an official duty location and during hours
designated as duty hours for the member.
Mr. Chairman, The American Legion agrees that reform is necessary,
but the reform needs to focus on the formula used to compute the annual
discretionary appropriations required to supplement the Military
Retirement Trust Fund. Current calculations include concurrent receipt
windfalls. A 5-year adjustment in this formula would phase-in full
concurrent receipt without denying future veterans their service-
connected disability claims.
This ill-conceived proposal will stand a century of veterans' law
on its head. The unintended consequences can only be imagined and
starts at the top. The Congressionally-mandated ideal of a non-
adversary, paternalistic VA will vanish in the smoke and mirrors of
petty partisan politics. The doctrine of the benefit of the doubt will
be rendered moot; the tie will now go to the Federal Government and the
veteran will be left twisting in the bureaucratic wind. A paralyzing
upheaval in the Veterans Benefits Administration (VBA) will add months
if not years to already interminable claims processing times. The
Department of Defense (DoD) will spend millions of additional dollars
annually retaining tons of records that would normally be disposed of,
as will the National Archives storing and retrieving them. The Services
must establish hundreds of new ``Performance of Official Duty
Determination Boards''. The Secretary of Veterans Affairs will no
longer have the power to add new diseases to the presumptive lists and
the existing ones will be called in to question.
The U.S. Courts of Appeals for the Federal Circuit and for Veterans
Claims will be swamped with litigation for years to come. DoD
recruitment goals will fail to be met as young men and women reconsider
whether they will be able to afford to pay for care for treatment of
injuries and illnesses incurred in service while ``off-duty'', because
private insurers will not cover pre-existing conditions.
More questions are raised than are answered by this odious
language. The Marine Corps veteran is now required to prove that he or
she contracted malaria while walking guard duty in some third world
nation and not while the member was dining al fresco on MRE's there
between shifts? Preposterous. Under the proposed plan, conceivably, a
16-year Air Force avionics technician will be determined unfit for
military service as the result of trauma sustained in a car wreck on
the way to work and therefore released from service. Ineligible for the
Temporary Disability Retired List (TDRL), the veteran and his or her
family are now struggling to survive. Outrageous.
Following a barrage of conflicting shouted orders from midshipmen,
none of whom are her direct superior, a first-year Naval Academy
student tears her medial cruciate ligament running an obstacle course
in the dark. The injury is determined to be ``not in the performance of
official duties''. Unacceptable. A former Army graves registration
specialist in Vietnam succumbs to refractory hypertension and coronary
artery disease induced by a lifetime of chronic, severe post-traumatic
stress disorder. In his social withdrawal and fear of institutions, the
veteran never filed a service connection claim. This secondary service
connection relationship just now being recognized and accepted by VA
and the widow is advised to file a claim for Dependency and Indemnity
Compensation (DIC). The widow must now prove an additional element of
service connection in addition to cause of death, incident in service
and medical nexis; ``performance of official duty.'' After three years
of waiting the DIC claim is denied on the new element and the widow and
her children continue to live in poverty. Shameful.
Mr. Chairman, before closing, let me relate another scenario to you
and the Committee. Two U.S. soldiers are on patrol in a hostile fire
area, be it Vietnam, Iraq or the Philippines. An enemy hand grenade
detonates between them and both soldiers receive similar shell fragment
wounds, are given first aid on the scene, sent to an aid station and
evacuated to a U.S. military hospital where they receive medical
treatment and rehabilitation. Both recover from their wounds with
similar residual scars and go on to complete their enlistment. One
soldier decides to make the military a career and re-enlists; the other
gets out and goes to work for the U.S. Postal Service. The postal
worker files an immediate claim for his scars and is assigned a 10%
disability rating, which he begins to collect monthly. The soldier must
wait until he retires to file a disability claim. Both complete 20
years of faithful Federal service and retire. Only the career soldier
must choose between the 10% disability compensation and his military
pension. In the meanwhile, the postal worker has accrued close to
$50,000.00 that the career soldier has not. This fundamental unfairness
in the law must end, but it must not be at the expense of veterans who
served this nation honorably for a short time in their lives and
returned to civilian life having left pieces of themselves, whether of
body or psyche, behind. It is shameful that the very institution
charged with the responsibility to ensure America's veterans are justly
treated would employ such a vile bargaining tactic.
Military retirement is an earned benefit through time in service,
as is all other Federal career retirement plans. VA disability
compensation is just payment for injuries resulting from service. Both
are separately earned and fully deserved entitlements. Military
retirees are the only ones so treated. There is a correct way to deal
with disability compensation reform. Making it more difficult for
veterans to be awarded disability, in one fell swoop by a Committee
that does not have jurisdiction, is not the way
The government should stop making military retirees pay for their
own disability compensation--that is the issue at hand--and should set
spending priorities accordingly that demonstrate respect for career
military service members. The American Legion will continue to fight to
end this travesty and to prevent another from occurring.
Mr. Chairman, thank you for requesting the views of The American
Legion on this very important issue affecting our nation's veterans.
Chairman Specter. Okay. The second witness is Mr. Dennis
Cullinan, Director of the National Legislative Service of the
VFW. Thank you for coming, Mr. Cullinan. The floor is yours.
STATEMENT OF DENNIS CULLINAN, DIRECTOR, NATIONAL LEGISLATIVE
SERVICE, VETERANS OF FOREIGN WARS
Mr. Cullinan. Thank you very much, Mr. Chairman, members of
the committee. On behalf of the men and women of the Veterans
of Foreign Wars, I want to thank you for conducting today's
most important hearing.
The VFW has long championed the cause of concurrent receipt
and we salute you for your efforts in that regard. However, the
issue under discussion today, from the perspective of both
equity and fairness, is just plain wrong. What this would
basically do is eliminate up to 64 percent of those currently
receiving VA compensation from that.
What comes to mind immediately is the 200-some-odd
servicemen who recently contracted malaria while serving in
Liberia. That is an instance where, quite clearly, a number of
those may not be service connected for that. How could they
prove whether they were bitten by the vector or not while they
were on active duty or while resting in their bunks? It also
comes to mind that during this time of the global fight on
terrorism, our men and women will be serving in many distant
venues and probably associated with that will be a variety of
diseases and disabilities that would be hard to describe as
service connected. They, too, would be denied. And then such
things as arthritis. Unless a paratrooper, who serves four
years in the military gets out, suffers arthritis as a
consequence of many jumps out of an airplane, he or she, too,
would be hard put to prove that this was service connected once
he had left active duty military.
One of the things that is most nettlesome, irritating about
this to the VFW, it is not for the purpose of conducting a
higher-level policy debate or for reforming or refining the
compensation system. What it is expressly about is the money,
pure and simple, and what it would basically do, it attempts to
pit one group of veterans against another. It would attempt to
remedy the inequity known as--or the prohibition on concurrent
receipt by visiting an injustice on another group of veterans,
and, in fact, all veterans. Something like this is just plain
wrong.
Also shown today is the fact that it short-circuits the
process. This committee is denied full access to the deliberate
process that should be gone through when something of this
nature is being undertaken. And, of course, the veterans'
service community is excluded from the process, as well.
And finally, as already mentioned, the implications for
health care for not only the member of the active duty
military, but dependents, is involved as well, such things as
vocational rehab, and the list goes on and on.
It is just plain wrong and we strongly oppose it. Thank
you.
Chairman Specter. Well, thank you, Mr. Cullinan.
Essentially, you agree with what Mr. Olanoff has said. You like
concurrent receipts, but not at the expense of a draconian
offset that hasn't been studied.
Mr. Cullinan. That is exactly right, Senator. Thank you.
Chairman Specter. Okay. We next turn to Mr. Rick Surratt,
Deputy National Legislative Director of the Disabled American
Veterans. 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. Mr. Chairman, on behalf of the DAV, I want to
thank you for convening this hearing to address a proposal that
would not only attack the very heart of veterans' benefits, but
would also be extremely detrimental to members of the armed
forces and their families.
This proposal is so extreme that most of us thought no
member of the United States Congress or any responsible United
States Government official would ever seriously entertain it,
certainly not advocate it. Under this scheme advanced by the
House leadership, members of the armed forces would themselves
bear the risk of being disabled while serving in the military.
All disabilities but those incurred under a very narrow set of
circumstances would be excluded from coverage under DoD and VA
disability benefits programs.
Under this scheme, if a service member were seriously
injured from an accidental or any other cause occurring at any
time other than when the service member was performing military
duties per se on the job, the government would assume no
responsibility.
For example, if a service member were paralyzed from the
structural collapse of a military mess hall or barracks, the
government would wash its hands of the member and send him or
her back to the civilian community to be cared for and
maintained by relatives or others with no assistance from the
government. There would be no disability benefits, no
rehabilitation benefits, and without service-connected status,
no guarantee of health care ever.
Large numbers of those who defended us in the times of
crisis and incurred disabilities during military service will
be destitute in civilian life. With no means of subsistence,
many of these disabled veterans may likely be forced to live on
the streets of our cities. It will become our most embarrassing
national disgrace. What are we coming to when our government
wants to take no responsibility for soldiers disabled in the
line of duty?
I can imagine it now, the government saying to the bereaved
widow and children of a soldier killed in a foreign land, ``I
am sorry, but you do not qualify for government benefits.
Although your husband was killed in the line of duty while
serving his country, his death was not caused by the
performance of military duties.''
I am not sure if the proponents of this scheme have any
understanding of the consequences it will have for military
recruitment or the magnitude of the hardships it will create
for disabled veterans and their families. What is clear is that
the House leadership seeks to replace a grave injustice against
disabled military retirees with a far greater injustice against
almost all who are disabled in military service.
I can tell you that disabled veterans see this as an
unprecedented and unprincipled attack upon them by the
government they defended. I hope we can count on the members of
this committee to lead the effort to educate their Senate
colleagues about the folly of this plan and stop this ill-
advised attack upon disabled veterans.
Mr. Chairman, that concludes my statement.
Chairman Specter. Thank you very much. You encapsulated
pretty fast. It is a great injustice not to have concurrent
receipts, but it is a greater injustice to have an offset as
proposed. That is about the size of it, Mr. Surratt?
Mr. Surratt. Yes, sir.
Chairman Specter. Thank you.
[The prepared statement of Mr. Surratt follows:]
The Prepared Statement of Rick Surratt, Deputy National Legislative
Director, Disabled American Veterans
Mr. Chairman and Members of the Committee:
On behalf of the members of the Disabled American Veterans, their
families, and all members of the Armed Forces and their families, I
want to thank you for convening this hearing and allowing us to state
our deep concerns about a plan by the leadership of the House of
Representatives to greatly restrict the terms under which service-
incurred disabilities would be given service-connected status. This is
an issue of paramount importance to disabled veterans and
servicemembers, who will be our future veterans.
This House plan would have our Government renounce all
responsibility to compensate and care for members of the Armed Forces
disabled in the line of duty, except under extremely restricted
circumstances. This move would abandon the fundamental principles of
our Nation's relationship between its citizens and the veterans who
have made extraordinary sacrifices in their behalf. For a veteran who
suffers service-connected disability, our Government has deemed it our
moral obligation to provide the disabled veteran a range of benefits
designed to ease the economic and other losses and disadvantages
incurred as a consequence of serving his or her country. These benefits
include compensation, medical care, and vocational rehabilitation.
Other special benefits are provided to the most severely disabled
veterans and to the survivors of veterans whose deaths are from
service-connected causes. The House plan would bring these benefit
programs to an end for the majority of our future disabled veterans and
their families and would essentially deny increased compensation for
many current disabled veterans when their disabilities worsen.
Under current law, the term ``service-connected'' means generally,
``with respect to disability or death, that such disability was
incurred or aggravated, or that the death resulted from a disability
incurred or aggravated, in the line of duty in the active military,
naval, or air service.'' 38 U.S.C.A. Sec. E101(16) (West 2002). An
injury or disease incurred ``during'' military service ``will be deemed
to have been incurred in the line of duty'' unless the disability was
caused by the veteran's own misconduct or abuse of alcohol or drugs, or
was incurred while absent without permission or while confined by
military or civilian authorities for serious crimes.'' 38 U.S.C.A.
Sec. E105 (2002).
Based on equitable considerations, several named ``chronic''
diseases may be presumed service connected because of their sometimes
insidious onset and clinical manifestation within relatively short
periods of time following service. Others may be presumed service
connected based on the likelihood of a causal connection between the
specified disabilities and certain circumstances of military service or
exposure to certain hazards during service. These include tropical
diseases for veterans who had service in areas where such diseases were
endemic; diseases suffered by former prisoners of war from
malnutrition, unsanitary conditions, physical hardships or abuse, and
mental hardships or abuse; radiation-related disabilities for veterans
who were exposed to radiation during service; diseases associated with
exposure to herbicides used during the war in Vietnam; and disabilities
peculiar to veterans who had service in the Persian Gulf War. 38
U.S.C.A. Sec. Sec. 1112, 1116, 1117, 1118 (West 2002). In addition, the
Secretary of Veterans Affairs presumes certain diseases are service
connected when suffered by veterans who, during service, were exposed
to mustard gas and Lewisite. 38 C.F.R. Sec. E3.316 (2002).
Thus, disabilities are service connected under current law when
incurred, aggravated, or presumed incurred or aggravated during or by
military service. While service connection may be established based on
a demonstrated or presumed cause-and-effect relationship, service-
related causation is not required where there is evidence of a
condition during service or a presumptive period. Under current law,
disabilities of onset coincident with military service may be service
connected without necessity to establish and prove a causal link
between the performance of military duties, per se, and the disability.
If the disability is of service origin, it is deemed attributable to
service-related factors. ``Service connection connotes many factors,
but basically it means that the facts, shown by evidence, establish
that a particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if preexisting
such service, was aggravated therein.'' 38 C.F.R. Sec. E3.303(a) (2002)
(emphasis added).
Clearly, Congress fully understood and intended this equitable and
practical basis to compensate veterans for a wide range of disabilities
for which the extraordinary rigors and hardships of military service
can fairly be assumed to have played a precipitating or aggravating
role, although the very nature of the circumstances of military service
coupled with imperfect science make proof of causation extremely
difficult or impossible in many instances. ``Congress has designed and
fully intends to maintain a beneficial non-adversarial system of
veterans' benefits. This is particularly true of service-connected
disability compensation where the element of cause and effect has been
totally by-passed in favor of a simple temporal relationship between
the incurrence of the disability and the period of active duty.'' H.R.
Rep. No. 100-963, at 13 (1988).
Under the draft proposal of the House leadership, service
connection would be granted only where the disability is from: (1)
``[i]njuries directly resulting from the performance of official
military duties,'' and (2) ``[i]llnesses directly resulting from
exposure to the causes of the illness while performing official
military duties or directly resulting from exposure to the causes of
the illness at the duty location to which the member is assigned.''
(Emphasis added.) Excluded from the scope of service connection under
this restricted standard would be (1) ``injuries that are sustained
while not performing official military duties,'' and (2) ``illnesses
determined to be relating to aging and/or preexisting medical
conditions of the member.'' The proposed scheme narrowly defines
``official military duties'' as including: (1) ``[d]uties performed in
an official government capacity directly related to those functions and
scope of duties associated with the occupational skill assigned to the
member,'' (2) ``[o]ther actions or functions in an official government
capacity that the member was ordered to execute by a member (or
civilian supervisor) of senior grade or rank or in a senior or superior
position, or a member that is designated by such as senior individual
to give the member instructions, to include unspecified preparatory or
follow-on actions and functions,'' and (3) ``duties that result in
qualified combat-related disabilities as defined in section 1413a of
Title 10, [United States Code].'' Essentially all other activities of
military service fall under a broad exclusion from the definition of
``official military duties,'' even events that occur during duty hours.
Excluded are ``actions and time periods unrelated to official
government business to include travel to and from the member's home and
permanent duty station, meals, and other activities selected and
carried out by the member at an official duty location and during hours
designated as duty hours for the member.''
Disability may arise in the course of military service, but not be
susceptible to strict proof that it was the proximate result of
performing activities of the member's specific military occupation, as
opposed to engaging in the wide range of activities typical of service
in the Armed Forces. The current terms for service connection provide
both an equitable and sensible approach because it is often impossible
to disassociate the disability from service-related factors, even while
the veteran is unable to establish a definite causation. It is
generally recognized that the cause of disease may be multifactorial.
Therefore, disability incurred in the line of duty is sometimes not
directly due to a job injury or traceable to known causes, but
certainly may be due to subtle or less obvious factors inherent in the
Armed Forces environment.
Mental illnesses present a good example of disabilities that can
properly be service connected under current law, but would not qualify
for service connection in many cases under the proposed new standards.
Under the proposed change, how will it be fairly determined whether a
mental illness that begins during military service is attributable to
the performance of duties only, as opposed to (1) the stresses of the
military environment generally to include the stresses associated with
the performance of military duties combined with the stresses of
serving in certain generally stressful military environments, (2) the
emotional strain of serving away from home and family or in isolated
duty stations, or (3) psychological stressors or factors totally
unrelated to the military environment? Under the House plan, would
service connection for mental illness be in order if it were clearly
shown to have been partially caused by the performance of military
duties and partially caused by other stresses of the military
environment? In addition, it is being recognized more and more that
mental stress plays a role in physical health. How will the Department
of Veterans Affairs (VA) properly adjudicate complex questions of
service connection for physical illnesses that are not directly shown
to be related to performance of military duties, but may have been
triggered or intensified by the stressors of combat, terrors of a
prisoner of war experience, or the anxieties of highly stressful
military occupations?
If service connection were currently subject to proof of service
causation, Persian Gulf War veterans suffering from very real, but
poorly understood, undiagnosed illnesses would be left without
compensation or medical treatment. Although a discrete group having the
common experience of presence in a geographical region at the same
period in time suffers from a syndrome comprising a commonality of
symptoms, the link between the syndrome and the common experience is
only circumstantial. It follows that there currently is no possibility
of ascertaining whether these illnesses are directly due to the
performance of military job functions or whether mere presence in the
region, both on and off duty, could have caused them. The true nature
of disease is unknown, and thus its cause or causes are unknown. With
the additional exclusions included in the House plan, it is not at all
clear that conditions such as these will be deemed by VA to qualify for
service connection within the ambit of 10 U.S.C.A. Sec. E1413a (West
Supp. 2003) (``Qualifying combat-related disability'').
In a variety of other situations, it will be very difficult for
veterans to prove that they were exposed to the causes of their
diseases while performing military duties on the job as opposed to
having been exposed while off duty. For example, how will a veteran
prove that he was exposed to asbestos on a Navy ship only while
performing his job functions as opposed to exposure in off duty hours?
How will a veteran who contracted malaria in a tropical region prove
that the mosquito bit him or her while performing military duties. How
will the veteran who develops Lyme disease after field training prove
that the tick that transmitted the disease bit him or her while
performing military duties rather than while taking a rest break or
sleeping in a tent?
Numerous other similar examples can be foreseen, particularly with
respect to the question of whether the causes underlying a whole range
of infectious or degenerative diseases were solely attributable to the
performance of military job functions, attributable to the overall
military environment (including the stresses and rigors of military
service generally), attributable to both the environment within the
confines of the military facility and off-base living facilities, or
attributable to both military occupational functions and off-duty
recreational activities.
For many in our Armed Forces who have military occupations that
require them to stay in top physical condition, the line between what
is performance of duty and recreation is blurred, if not nonexistent.
If service connection is to be denied for the soldier who injures his
knee playing special services basketball, is it also to be denied for
the sailor who, at the encouragement or direction of her superiors,
injures her knee participating in authorized recreational or sports
activities while stationed on an aircraft carrier in the Persian Gulf?
Or is it also to be denied for the Marine who injures his knee while
keeping in shape in the exercise room in the foreign embassy where he
is stationed?
Consider the circumstances in which servicemembers were killed and
disabled from a terrorist attack on their barracks in Beirut, Lebanon.
Most were probably not performing military duties at the time. Consider
the circumstances in which soldiers were the victims of the terrorist
attack on a Berlin nightclub. In a strict sense, that was not
performance of duty. On the other hand, unlike a civilian job, those
soldiers were at the disposal of the Army 24 hours a day and were
placed at risk because of military service. Military life, like
civilian living, involves work, recreation, commuting between work and
home, but in the Armed Forces these are all the performance of duty in
the broader sense, especially when the servicemember is located in a
military community or is isolated on a foreign station.
The radical House plan will have other far-reaching implications.
There will be no presumptive service connection for ``chronic
diseases'' because service connection is based on a presumption that
the chronic disease has its onset during military service. Inasmuch as
there is no evidence of the disease during service, it follows that the
disease cannot be linked to the performance of military duties. As
noted, presumptive service connection for illnesses attributed to
service in the Persian Gulf is in doubt under this plan. The same
difficulty exists in proving that exposure to herbicides--and radiation
during the occupation of Hiroshima and Nagasaki--occurred solely in
connection with the performance of military duties.
The House's draft plan also expressly excludes from disabilities
subject to service connection ``illnesses determined to be related to
aging and/or preexisting medical conditions of the member.'' This
indicates there will be no service connection by reason of aggravation.
An individual could enter service with some minimal defect that did not
disqualify the person for military service and have that disability
aggravated by superimposed injury during service to an extent that it
disqualified the member from further military service and resulted in
total disability, but service connection would not be in order. The
veteran would be sent home to fend for himself or herself.
Because the House plan would apply to new claims for service
connection and evaluations of existing service-connected disabilities,
veterans who suffer worsening of their service-connected disabilities
could receive no increased ratings unless they could prove their
already service-connected disabilities were the direct result of the
performance of duty.
A servicemember who was paralyzed, for example, due to medical
malpractice by a military physician would be without any remedy or
benefits. A disability incurred in connection with military medical
treatment would not meet the performance-of-duty requirement, and the
member would be barred under Feres v. United States, 340 U.S. 135
(1950) (the ``Feres doctrine'') from bringing a tort action to recover
damages from the Government. Here again, the disabled veteran would be
left to his or her own means to survive.
The House plan would plunge servicemembers into an extremely
precarious position. Members of the Armed Forces have no real ability
to obtain disability insurance from commercial insurers. Even if such
insurance were available to them, the price would be prohibitive given
the increased risks inherent in military service. Only the Federal
Government is in a position to bear this risk--and it should without
question.
Another incidental adverse effect would impact disability
retirement from military service. Compensation is often elected in lieu
of military disability retirement. Servicemembers who become disabled
before completion of military careers are now eligible for disability
retirement from the Armed Forces. Many of these disability retirees
find it advantageous to elect to receive disability compensation.
However, neither military retirement nor disability compensation would
be available under the proposed plan unless the disability was due to
the performance of military duties. Other Federal and private sector
disability retirement programs do not require that the disability be
job related.
Because entitlement to most benefits for veterans' dependents and
survivors is derived from the veterans' service-connected status, the
House plan would therefore also have a major adverse impact on
veterans' families. It is unclear how it might impact disability and
other benefits under chapter 18 of Title 38, United States Code,
provided to Vietnam veterans' children who suffer from spina bifida.
Beyond these more readily recognizable adverse effects, this change
has the potential to cause myriad unforeseen and unintended
consequences for veterans, servicemembers, veterans' and
servicemembers' families, and for VA. For VA, numerous adverse
consequences are easily foreseeable.
The ``line of duty'' standard dispenses with many complex issues
related to disability causation. It is where the claim for service
connection rests on proof of causation that VA now has its most complex
and administratively burdensome adjudications. These complex
adjudications involve proof of service connection for disabilities not
shown during service or any presumptive period, such as, post-traumatic
stress disorder, asbestosis, non-presumptive radiogenic diseases, and
others. These cases demand a much greater investment of VA time and
resources to resolve. To impose a causation requirement upon all new
disabilities and claims for increase will complicate VA's work beyond
belief. It will generate untold numbers of disputes about causation,
and the innumerable factual nuances in questions of causation will make
fair and uniform determinations on this element of claims near
impossible to achieve.
Because this change would strike at the very foundation of
veterans' disability benefits, it would require a virtual rewrite of
Title 38, United States Code, and Title 38, Code of Federal
Regulations.
The change would likely have similar adverse consequences for the
Armed Forces. With the knowledge that military service generally
involves far greater risks of injury than civilian careers, that this
increased risk of disability is borne by the servicemember personally
rather than the Government, and that the Government will have no
hesitation in sending the servicemember into perilous situations that
expose the servicemember to all manner of known and unforeseen hazards,
potential recruits would be wise to consider other alternatives to
military service. Although it is not a primary concern of this
Committee, it bears noting that this proposed change might cause
substantial decline in military enlistments and reenlistments.
This proposal to leave it to this Nation's sons and daughters to
serve in our Armed Forces at their own risk is simply indefensible. It
is a bad idea for numerous reasons. Its only object seems to be
abrogation of the Government's responsibility to its servicemembers and
veterans. We urge the members of this Committee to take the lead in
opposing this ill-advised scheme.
Chairman Specter. Our next witness is Mr. Carl Blake,
Associate Legislative Director of the Paralyzed Veterans of
America. Mr. Blake.
STATEMENT OF CARL BLAKE, ASSOCIATE LEGISLATIVE DIRECTOR,
PARALYZED VETERANS OF AMERICA
Mr. Blake. Mr. Chairman, I would like to thank you for the
opportunity to testify today on behalf of the Paralyzed
Veterans of America.
I would just like to say up front, I am going to agree with
everything that my colleagues have said so far. We have always
strongly supported concurrent receipt. However, we would
certainly oppose any provision in legislation that would tie
the payment of concurrent receipt to an offset against future
veterans' disability benefits.
This proposal would fundamentally change the way the VA
determines who is service-connected disabled. I would like to
tell you a quick story about a PVA member that we have that
works in our national office. He was an Air Force colonel. He
was out jogging one morning, as all military servicemen and
women do. He fully believed in that concept that the military
man or woman is a 24-hour-a-day, seven-day-a-week profession,
and hence the reason he was conducting his physical fitness on
his own time.
While he was out that morning, it was believed he was
intentionally hit by a van and that left him paralyzed from the
neck down. With this proposed change, that individual and
individuals like him would no longer be considered service-
connected disabled. I think that speaks for itself.
Military service is unlike any other profession. We expect
our men and women to sacrifice and die for this country, if
necessary. We ask these men and women to serve this country on
the promise that we will give them adequate pay and benefits
and a comprehensive disability policy is the insurance policy
that we provide these men and women. It is an insult to them
for any member of Congress to consider changing the rules in
the middle of the game that would deny them the value of this
insurance policy.
PVA is also very concerned about how it would affect how
the VA provides health care to veterans. Currently, individuals
that are presumed to be service-connected for such things as
diabetes or post-traumatic stress disorder would be also left
out in the cold.
Again, I would just like to reiterate that we have always
supported concurrent receipt. However, if it is based on paying
for it with the reduction of benefits for future military
retirees and veterans on the scale of millions of individuals,
we would certainly oppose any provision in legislation which
would do so.
I would like to thank you for the opportunity again and I
would be happy to answer any questions.
Chairman Specter. Thank you very much, Mr. Blake. We have a
few seconds left, so I will ask a question. Where is all that
South in your voice from?
Mr. Blake. I am from Virginia, Senator.
Chairman Specter. Okay.
Mr. Blake. In the dark still, too, Senator.
[Laughter.]
Chairman Specter. Our next witness is Mr. Richard Jones,
National Legislative Director of the American Veterans, AMVETS.
Thank you for joining us.
STATEMENT OF RICHARD ``RICK'' JONES, NATIONAL LEGISLATIVE
DIRECTOR, AMERICAN VETERANS (AMVETS)
Mr. Jones. Thank you, Chairman Specter. Thank you very much
for the opportunity to present our strong objection to a draft
plan that would dramatically limit the ability of future
generations of veterans to qualify for service-connected
benefits from the Department of Veterans Affairs.
AMVETS, of course, would like to see Congress resolve the
concurrent receipt issue. For more than a decade, our
membership has sought a change in law forcing veterans who
collect disability checks to deduct the money from their
retirement pay. Military retirees should be able to receive
both full benefits, as is the case with retirees from other
Federal agencies.
Clear majorities in the House and Senate have cosponsored
legislation to correct this century-old policy and we thank
you, Mr. Chairman, for your commitment and support of this
issue and your support of veterans and their families.
If we followed the House leadership plan, we would finance
concurrent receipt for disabled veterans with monies resulting
from the denial of disability compensation for those brave men
and women in future military service. In our eyes, it is not in
our nation's best interests to rob Peter to pay Paul. We do not
wish to tie VA revision to correction of the concurrent
receipt. We are greatly troubled that prior to your call, Mr.
Chairman, no hearing had been held and no consultation
attempted with the Department of Veterans Affairs about the
ramifications of so draconian a limitation of the changes being
proposed.
In addition to all this that was mentioned before about
this jogger, imagine the unlucky service member who would find
difficulty gaining access to VA health care. Depending on means
testing and whether the bar against Priority 8 veterans has
been lifted or not, this injured veteran may find himself left
to his own, crumpled on the street or dropped off at the family
porch if he has a family, which we hope he would. Other
Americans, we hope in a charitable fashion, would give him
relief.
Fortunately, it has been the tradition of the United
States, a way of America and a way of our democracy, to care
for those who defend freedom far off. And very frankly, if the
driver of that car that hit this officer was not found, we
really have no way of knowing whether the injuries were
accidental or part of a terror target. Was the injury indeed
part of his deployment?
In addition, military retirees may suffer from arthritic
conditions. You mentioned before about parachute jumps. We have
Navy personnel standing on steel decks of aircraft carriers.
This is not a condition that is healthy to knees and joints.
Arthritic conditions may result from such service.
Future determinations of military service-connected
disability should not hang as a bargaining chip in an end game
to negotiations on correcting concurrent receipt. One injustice
should not replace another, and the issue is too complex to
decide behind closed doors.
Mr. Chairman, America is too great a nation for a decision
making framework that resolves one injustice only to establish
a second one in the next generation of veterans. We thank you
for the opportunity to present our strong disagreement with
this proposal and we appreciate your support. Thank you very
much, Mr. Chairman.
Chairman Specter. Thank you very much, Mr. Jones.
[The prepared statement of Mr. Jones follows:]
The Prepared Statement of Richard Jones,
National Legislative Director, AMVETS
Chairman Specter, Ranking Member Graham, and members of the
Committee:
Thank you for the opportunity to present our strong objection to a
draft plan that would dramatically limit the ability of future veterans
to qualify for service-connected benefits from the Department of
Veterans Affairs.
Mr. Chairman, AMVETS (American Veterans) has been a leader since
1944 in helping to preserve the freedoms secured by America's Armed
Forces. Today, our organization continues its proud tradition,
providing, not only support for veterans and the active military in
procuring their earned entitlements, but also an array of community
services that enhance the quality of life for this nation's citizens.
At this stage of the 108th Congress, the membership of AMVETS is
seriously concerned over a House leadership compromise offered in early
September to redefine military disability as part of changing current
law on concurrent receipt. AMVETS is deeply troubled by this plan.
AMVETS would like to see Congress resolve the concurrent receipt
issue. For more than a decade, our membership has sought a change in
current law requiring veterans who collect a disability check to deduct
that money from their retirement pay. Military retirees should be able
to receive both full benefits, as is the case for retirees from other
federal agencies.
We strongly support correction of this injustice. We believe it is
a question of whether we as a nation will act responsibly and remember
the veteran's sacrifice? Will we honor the brave and dedicated men and
women who once wore the military uniform?
We at AMVETS believe it would be unconscionable should we fail in
that regard. And, we are pleased to see so many of our elected
Representatives and Senators cosponsor legislation to end the wrongful
policy of denying servicemembers injured in the line of duty their full
retirement pay.
On this date, as it was at the close of the last Congress, the
issue of restoration of retired pay is prominent. Clear majorities in
the House and Senate have cosponsored legislation to correct this
century-old policy that denied veterans a portion of their military
retired pay if they received service related disability compensation.
We are pleased that a ``beachhead'' has been established that
provides Purple Heart recipients and a number of veterans with combat-
related injuries a chance to receive their military retired pay and
disability compensation in full.
More needs to be done, however, and AMVETS calls on this Congress
to set the matter right, once and for all--and allow disabled military
retirees to receive full military retirement pay and the VA disability
compensation to which they are entitled.
The attempt on the part of House leadership to cloud the issue of
providing full disability compensation to military retirees is clearly
a cop-out. If leadership accurately reflected the priorities of our
Congress, we would find the money to allow these dedicated service
members to receive their earned retirement without it being reduced,
dollar for dollar, by the amount of disability compensation they
receive from the Department of Veterans Affairs.
If we followed the House leadership plan, we would finance
concurrent receipt for disabled retirees with monies ``saved'' from the
denial of disability compensation to those brave men and women in
future military service. In our eyes, the suggestion is both
underhanded and detrimental to our nation's best interests. It is total
nonsense to rob Peter to pay Paul.
AMVETS is totally opposed to tying any revision in the current
eligibility standards under which VA awards disability compensation, to
a correction of this matter at hand. Amending these standards would not
only be a poor excuse for dealing with the concurrent receipt issue,
but worse yet, adversely affect hundreds of thousands of future
service-connected disabled veterans and their families.
In addition, we are greatly troubled that prior to your call, Mr.
Chairman, no hearing has been held and no consultation has been
attempted with the Department of Veterans Affairs about the
ramifications of so dramatic a limitation of the changes being
proposed.
How would determinations be made about whether an injury or illness
met the criteria of ``performance-based standards''? Would, for
example, the injuries that occurred in the Khobar Towers explosions be
classified as compensable. After all, these folks were not on duty,
they were asleep in their bunks resting to prepare themselves for their
next military duty. Also, what about the individual who after duty is
run down by an automobile while jogging ``off-the-clock''? The intent
of the servicemember may have been maintenance of physical readiness.
But under the proposal, regardless of the extent of injury, the
injuries would not be compensable because the accident did not occur in
the performance of duty. Moreover, the unlucky servicemember may find
difficulty gaining access to the VA healthcare system, depending on
means testing and whether the bar against Priority 8 veterans is lifted
or not. And very frankly, if the driver of the car is not found, we
have no way of knowing whether the injuries were accidental or part of
a terror target.
In addition, military retirees may suffer from arthritic conditions
that may be associated with long-term military duty, but not clearly
marked by a specific incident. Such injury may occur as a result of
multiple parachute jumps or years of duty on the steel deck of an
aircraft carrier or other navy vessel. Also, future incidents of
chemical exposures might find no relief for their unfortunate
conditions should data not be found to find the nexus of incidence.
The magnitude of changes contemplated by a hasty late-night
decision could have far-reaching unintended consequences that no
American leader should pursue without appropriate study and considered
judgment.
At an earlier time in history, one of our most revered leaders
said, ``The willingness with which our young people are likely to serve
in any war, no matter how justified, shall be directly proportional to
how they perceive the veterans of earlier wars were treated and
appreciated by their nation.''
It is interesting today to gauge George Washington's observations
against the plan we see linking reconciliation of concurrent receipt
with future determinations of disability. While we believe it is
critical to implement concurrent receipt, we find it totally demeaning
to pit one group of disabled veterans against another.
It occurs to me that our Founding Fathers understood more clearly
than some of our current leaders that a grateful nation must keep faith
with those who serve in the Armed Forces and its military retirees.
Future determinations of military service-connected disability
should not hang as a bargaining chip in an end game to negotiations on
correcting concurrent receipt. One injustice should not replace
another. And the issue is too complex to decide behind closed doors.
AMVETS believes the proposed redefinition of VA compensation should
not occur as an offset for correcting concurrent receipt. If the
soundness of VA's methodology is in question, there should be answers
to ensure its integrity. We do not believe, however, that the
legitimate claims of a future generation of veterans should be cast
aside to pay the legitimate claims of a past generation of veterans.
America is too great a nation for a decision-making framework that
resolves one injustice only to establish a second one on the next
generation of veterans.
Mr. Chairman, this concludes AMVETS testimony. Again, thank you for
the opportunity to testify on this important matter, and thank you, as
well, for your continued support of America's veterans.
Chairman Specter. Our final witness is Mr. Rick Weidman,
Director of Governmental Relations, Vietnam Veterans of
America. Welcome, Mr. Weidman.
STATEMENT OF RICK WEIDMAN, DIRECTOR OF GOVERNMENT RELATIONS,
VIETNAM VETERANS OF AMERICA
Mr. Weidman. Thank you very much, Mr. Chairman, and thank
you for your bold leadership in stepping forward and holding
this hearing on an emergency basis. Good leaders meet dire
situations with immediate action and you have done so just by
holding this hearing, sir.
Let me state on the behalf of Vietnam Veterans of America
that we are adamantly in favor of eliminating this tax on
disabled veterans by means of passing concurrent receipt
legislation currently being considered by the Congress. We are
strenuously opposed to the cynical proposed change to who is a
disabled veteran with no public notice, et cetera, and if I may
associate myself, not just--I know my written remarks will be
included in the record, but with the fine and eloquent
statements of my colleagues to my right.
There are a number of other things that haven't been
mentioned that I would mention, and that is disabilities that
are connected to toxicological exposures, disabilities that are
exposure to, say, biological agents, to other things that only
years later become known as exposures that caused these kinds
of long-term chronic health care problems would all be wiped
out and much of the fine work that has happened within this
room over the past 25 years in regard to those toxicological
exposures would be, in the stroke of a pen, wiped out.
Lastly, and just as important as the ones I mentioned
earlier, is sexual trauma. In 1992, Mr. Chairman, you presided
over the historic hearings that led to the treatment, care, and
benefits for sexual trauma victims in the military. With 24
percent of our active duty military today women, to say that if
something happens to them on a ship or a military post in a war
zone, but it is not related to their military duties, in this
case, sexual trauma, that they would not be justly compensated
for it, and that is how this proposal would play out.
Last, but not least, I want to just say that not only are
we strongly in favor of concurrent receipt, but strongly
against this proposal playing one generation of American
veterans off against another. Our founding principle and the
very first resolution ever passed by VVA at our founding
convention, and reiterated at every convention since, is never
again shall one generation of American veterans abandon
another. This is just unconscionable to think that somehow you
could get the veterans' community divided amongst itself and
somehow punish our sons and daughters and our grandchildren and
granddaughters who are serving in Iraq today in order to
achieve justice for the earlier generations.
One cannot help but have the cynical thought this is an
attempt, with 370 to the concurrent receipt legislation in the
House and with over 200 folks having signed the discharge
petition, that somehow this is a cynical attempt to change the
subject. In any case, this ill-advised proposal should be
eliminated and a wooden stake driven through the heart forever.
Mr. Chairman, I thank you again for the opportunity to
appear here and for your strong leadership, sir.
[The prepared statement of Mr. Weidman follows:]
The Prepared Statement of Rick Weidman, Director of Government
Relations, Vietnam Veterans of America
Mr. Chairman and other distinguished members of the Committee,
Vietnam Veterans of America (VVA) is pleased to have this opportunity
to present our viewpoint on the proposals to limit eligibility for
veterans' compensation benefits to disabilities directly related to
``performance of duty'' (as narrowly defined) injuries only.
We cannot emphasize this strongly enough: VVA is adamantly opposed
to the proposed language in Section 652 of H.R. 1588, ``The FY04
Defense Authorization Act.'' The proposed language would revise Titles
10 and 38 of the United States Code to restrict veterans' eligibility
to receive Department of Veterans Affairs' (VA) service-connected
disability compensation based upon disease or injury sustained while
serving on active duty in the military. Specifically, the proposal
would limit payment of compensation to disabilities that are the
``direct result of the performance of duty.'' The effect of this
language would have enormous consequences for current and future
members of the U.S. Armed Forces and their families, and flies in the
face of our Nation's stated objective of ``supporting our troops.''
There is simply no other way to say it: This is an unprecedented and
unconscionable breach of America's covenant to care for those who have
borne the battle.
Currently and historically, our government provides for the
security and well-being of those who defend our country, those who risk
life and limb, by affording them with health care and disability
compensation when they are physically and/or emotionally diminished as
the result of their active military service. Decades of experience have
taught us that disease or injury incurred as a direct result of service
may not manifest for years after the serviceperson's separation from
active duty. Witness the devastating effects of environmental exposures
(such as toxic gas, radiation and herbicidal agents), as well as the
mandatory administration of pharmaceuticals (such as the anthrax
vaccine and pyridostigmine bromide). Delayed onset of disabilities
directly incurred as a consequence of military service is responsible
for thousands of inappropriately denied claims for disability
compensation, even under current law. Under the proposed standard of
``direct result of official military duties,'' it will likely prove
impossible for tens of thousands of deserving veterans to be made whole
(or as close to whole as one can ever be made).
Should the proposed language become law, service personnel would
further lose the military equivalent of a workers' compensation
program. The current service-connection standard also protects those
individuals who become ill or are injured during active service (except
in cases of willful misconduct), regardless of whether such illness or
injury is the proximate result of the performance of their official
duties or under a superior's lawful direct order. Congress adopted this
standard for a reason. Pursuant to the Feres doctrine, military
personnel have absolutely no recourse to the judicial system for
essentially anything that happens to them in the military. As an
illustration, under the proposed standard, if a soldier is tasked to
build a brick wall as part his or her occupational duties and the wall
collapses and crushes that soldier's leg, that individual would be
eligible for VA health care for any resulting disability, and will be
able to receive service-connected compensation upon separation from
active duty. Now, suppose that same soldier, who is presumed to be on
duty 24 hours a day, is walking along a base sidewalk and that same
wall falls and injures that same leg, that troop will be eligible for
neither post-service health care or disability compensation.
Or consider sexual trauma. In 1992, Senator Specter presided over
the historic hearings that led to the treatment, care, and benefits for
sexual trauma victims. Women veterans who have been victimized by
sexual trauma, assault, and abuse may have no one they feel they can
confide in while on active duty. Years after their discharge, many
still find it difficult to come forward to deal with the results of
this trauma. Under this proposed legislation, sexual trauma would no
longer be considered a line of duty disability.
This is patently unjust and will send a clear and resounding signal
to our troops and the American public that our government is, at best,
indifferent and uncaring when it comes to the support of our troops.
How anyone can claim to ``Support Our Troops!'' and advance such a
proposal is beyond our comprehension.
Moreover, given the demonstrated history of the VA to interpret
statutes and regulations in a light most detrimental to the veteran,
the potential for abuse of the proposed standard is staggering. One can
easily envision wave upon wave of denied claims for survivors' benefits
predicated upon findings that although there might be a concrete
etiological relationship between a veteran's service-connected
disability and a secondary condition that caused his or her death
(think post-traumatic stress disorder and cardiovascular disease,
respectively), the VA will likely conclude that the secondary condition
was not caused by the ``direct performance of official military
duties.'' Hence, the families of these veterans suffer their own
injuries at the hands of their own government.
It is no less important to note that the proposed language does not
affect a basic tenet of VA law. Access to VA health care, often the
only medical services available to a veteran, is generally predicated
upon service-connected disability. Further, once enrolled in the VA
health-care system, the availability of such care is determined by how
severe such service-connected disability is rated. By limiting
eligibility for service-connection, Congress is essentially condemning
veterans who will be robbed of the eligibility that they are currently
legally, and forever morally, entitled to when it comes to often life-
saving medical care.
Congress cannot permit this to happen. With a new generation of men
and women doing battle on the front lines of freedom, it is abhorrent
to abandon them now. They will join their forebears of America's wars
prior to World War II who have been shamefully treated by those whom
they are sworn to protect and defend. Passage of the proposed
legislation will only resurrect and perpetuate this sorry legacy, which
will be recalled by those who are asked to serve in the future. This
country cannot afford to abrogate its solemn obligation to protect our
troops.
Vietnam Veterans of America thanks this committee for the
opportunity to present our views on this important matter and will be
more than happy to answer any questions you may have.
Chairman Specter. Thank you very much, gentlemen. I cannot
recall hearing such unanimity, such forcefulness from six
witnesses. One injustice for a greater injustice, draconian,
these notes are going to be something to be viewed in a
historical perspective. I think you have made an overwhelming
case today and I am with you. Thank you.
The hearing is adjourned.
[Whereupon, at 3:29 p.m., the hearing was adjourned.]
A P P E N D I X
The Prepared Statement of Hon. Bob Graham,
U.S. Senator from Florida
I would like to thank Chairman Specter for holding this
very important hearing on ``Limiting Eligibility for Veterans
Disability Compensation to Offset the Cost of Concurrent
Receipt.''
Mr. Chairman at the outset of my statement, I would like to
ask two simple questions. Who authored this proposal? Why isn't
the author of this plan testifying before the Committee today?
Clearly, this proposal was thrown together without the
review of this committee. The Chairman hasn't seen it, and
neither have I. No bill has been introduced. No hearings have
been held. This proposal was thrown together at the eleventh
hour, with no real scrutiny, but is now being considered as
part of the Defense Authorization Conference.
Setting the lack of procedure aside, we must discuss the
merits of this proposal, given the fact that some apparently
want to see it become public law. For starters, this proposal
is a radical departure from the current compensation system,
and it would fundamentally alter its basic elements. How would
it do so? By severely curtailing what constitutes a ``service-
related injury,'' effectively cutting off almost two-thirds of
future veterans from being eligible for disability
compensation. While this plan would allow full concurrent
receipt for some retirees who are receiving benefits today, the
cost would be incurred by those who may need disability
benefits in the future.
The proposal should be more aptly called a ``scheme''
resulting from the Administration's inertia in providing full
concurrent receipt. In 2001 and 2002, the Senate included full
concurrent receipt in the Defense Authorization Bill, despite
the Administration's vocal objection to the policy and threats
of veto. This year, the Administration has once again
threatened to veto the bill if full concurrent receipt is
included in the final bill. In fact, Secretary Rumsfeld, in his
July 8 letter to Chairman Warner, opposed authorizing
concurrent receipt saying ``these unfunded entitlements would
drain resources from important programs benefiting our
military.'' This demonstrates how the Administration has
repeatedly turned a blind eye to our nation's veterans. To
circumvent this veto threat, this unworkable compromise, the
one that is the subject of today's hearing, was apparently
proposed to get the Administration out of a mess. In reality,
it is a cure that is probably worse than the disease itself.
Trying to limit service connection to job related injuries
is highly problematic when you consider that serving in the
military is unlike any other job. Our service members are on
the job twenty-four hours a day, conducting a wide range of
activities to ensure that our nation is safe. By changing the
definition of service-related injury, only men and women who
are injured under the limited new criteria of ``military duty''
would be eligible for disability compensation--this could
exclude Marines such as those who were recently diagnosed with
malaria or even those that discover ailments many years later
that may have been a result of their military service, like
those who served in the first Gulf War. And this is frankly,
unfair. We are asking these men and women to make daily
sacrifices and even to risk their lives in support of our
nation. Serving in our armed forces is not just a job, it is a
profession--a way of life, and we must treat our service
members accordingly.
The proposal being discussed today would also impose a
significant barrier to VA's ability to decide veterans' claims
in a timely and accurate manner. VA would be forced to
implement two systems simultaneously, the one being discussed
today and another under the old rules. This would come at a
time when VA is just beginning to recover from a staggering
backlog of claims, where veterans still wait as long as 184
days for an initial decision, which is already far too long.
Moreover, this change in law would have a true ripple
effect, potentially affecting veterans' ability to receive
benefits that are based upon service-connected status, such as
VA health care. This injustice is not limited to veterans. The
families of certain troops who die while serving on active duty
would be barred from receiving compensation, education and
health care benefits from either VA or DoD. Ultimately, this
proposal would have the disastrous effect of denying
compensation to veterans injured while in service and their
survivors.
Hundreds of men and women will be returning from operations
in Iraq and Afghanistan with disabilities, many that may not be
directly attributable to the conflict. Under today's proposal,
they likely would be ineligible for disability compensation.
What kind of message does this send to our troops who are
risking their lives everyday? Before we rush to change long-
standing eligibility requirements, we must consider the
ramifications of this proposal and recognize that this is the
wrong solution to a very complex challenge.
----------
The Prepared Statement of Hon. Daniel K. Akaka,
U.S. Senator from Hawaii
Thank you, Mr. Chairman. I'd like to take this opportunity
to express my appreciation and welcome the witnesses who are
here for this afternoon's hearing. I am a strong supporter of
full concurrent receipt and appreciate the efforts to repeal
the prohibition against concurrent receipt led by my friend and
colleague, Senator Harry Reid.
I appreciate that the VA has difficult and unpopular
decisions to make due to the fiscal limitations imposed on the
agency. However, I remain firm in my belief that we must
utilize our resources to maintain our commitment to the men and
women who have fought to defend our great nation.
As a member of the Senate Committees on Armed Services,
which is considering this issue in conference, and the
Veterans' Affairs Committee, services and benefits to military
members and veterans are of significant concern to me. As the
Ranking Member of the Senate Armed Services Readiness and
Management Support Subcommittee, it is my responsibility to
ensure that our military members are provided with the
appropriate training and equipment to successfully accomplish
their mission.
In addition to the current emphasis on recruitment and
retention in our military, I continuously tell our military
leaders that we must add another ``R,'' which is retirement. In
order to recruit and retain quality soldiers, sailors, airmen
and Marines, we must pay attention not only to the present, but
also to the future. For many of our veterans that future is
now, and our current military members are watching closely to
see if we maintain our commitment to those who have sacrificed
so much to defend the United States. Our actions today will
certainly impact our Armed Forces in the future.
I look forward to our discussion this afternoon and to
working with my colleagues to make full concurrent receipt a
reality for our veterans.
----------
The Prepared Statement of Hon. Zell Miller,
U.S. Senator from Georgia
Thank you, Mr. Chairman, and I commend you for convening a
hearing to examine this very important subject.
One of the most pressing matters facing Congress today is
the inequity experienced by military retirees who collect
disability compensation. As I'm sure everyone here is aware,
veterans across the country have now nicknamed concurrent
receipt ``the disabled veterans' tax.'' And that's just what it
is--a tax on those who defend our nation and become injured in
the line of duty.
For me, concurrent receipt is simply an equity issue. VA
disability payments and military retirement pay are two
separate payments for two separate situations. When a service-
member retires from the military, we provide a pension. When a
service-member is disabled while serving our country, we
support that individual with disability compensation.
Retirement pay is earned for a career of service and
sacrifice in uniform. The other is compensation for the impact
of a service-connected disability on future life and earning
power. For those who made a career in the military and suffered
injury as a result of their service, they should collect both
payments in full. There should be no deduction from the
combined amount of their disability compensation and military
retirement pay.
Of 1.4 million military retirees nationwide, approximately
670,000 have been categorized as disabled by the Veterans
Administration. These disabled military retirees receive $2.2
billion a year from the VA in disability compensation and they
must pay for it out of their earned military retirement pay.
Many of these disabled retirees, particularly Noncommissioned
Officers and Warrant Officers, are forced to forfeit their
entire military retired pay and have nothing to show for a
career of service to their nation except a disability and its
small compensation.
This issue has never been more important than right now
when American service members risk their lives and physical
well-being each day fighting for our country in Iraq and
Afghanistan. Our support for them must continue when they
return home. I strongly believe that we must provide full
concurrent receipt benefits, and ensure that our veterans and
military retirees have a standard of living they deserve.
As I conclude my statement, I'm reminded of a speech by
General Douglas McArthur in which he said, ``Old soldiers never
die, they just fade away.'' But disabled veterans are dying at
a rate of 1,000 per day. They die waiting for a 100-year-old
injustice to be corrected, an injustice that prohibits them
from collecting both the retirement pay they earned for their
years of military service and the VA disability compensation
for injuries or illnesses during their service to this country.
Who will fight our wars in the future if we don't prove we
will take care of the veterans today? This issue has gone on
long enough without resolution.
Thank you, Mr. Chairman.
----------
The Prepared Statement of Hon. Jim Bunning,
U.S. Senator from Kentucky
Thank you, Mr. Chairman.
I appreciate you holding this hearing today. Concurrent
receipt is an important issue that has been before Congress for
many years now. Last year we enacted a very limited concurrent
receipt proposal to provide increased benefits to our most
severely injured war veterans. This year even larger proposals
are on the table.
Mr. Chairman, I share your concerns about proposals
reportedly being considered for enactment this year. Any
concurrent receipt proposal that increases benefits to one
group of veterans while decreasing benefits to another is
unfair. We should not be placed in a position to pick and
choose between veterans.
I am anxious to hear from the panels here today. A public
discussion on veterans' benefits will be healthy for this
Committee and for the entire debate on concurrent receipt. We
must be informed and move deliberately when considering
proposals that could impact millions of our veterans and change
the benefit structure in place for so many years.
After witnessing implementation of last year's limited
concurrent receipt benefit, we must be very careful about
limiting eligibility for benefits to performance-of-duty or
combat-related injuries. Such eligibility may be impossible for
a veteran to prove. The Department of Defense and the VA have
made great strides in improving information sharing and data
collection, but many records never have and never will exist
and others have been lost or destroyed.
Again, I am quite concerned about the unintended
consequences of concurrent receipt proposals currently being
considered. I hope this hearing can address some of those
concerns.
Thank you, Mr. Chairman.