[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 67, H.R. 1435, H.R. 1444, AND H.R. 1490
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE
AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 17, 2007
__________
Serial No. 110-11
__________
Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE
35-697 WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON VETERANS' AFFAIRS
BOB FILNER, California, Chairman
CORRINE BROWN, Florida STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South RICHARD H. BAKER, Louisiana
Dakota HENRY E. BROWN, JR., South
HARRY E. MITCHELL, Arizona Carolina
JOHN J. HALL, New York JEFF MILLER, Florida
PHIL HARE, Illinois JOHN BOOZMAN, Arkansas
MICHAEL F. DOYLE, Pennsylvania GINNY BROWN-WAITE, Florida
SHELLEY BERKLEY, Nevada MICHAEL R. TURNER, Ohio
JOHN T. SALAZAR, Colorado BRIAN P. BILBRAY, California
CIRO D. RODRIGUEZ, Texas DOUG LAMBORN, Colorado
JOE DONNELLY, Indiana GUS M. BILIRAKIS, Florida
JERRY McNERNEY, California VERN BUCHANAN, Florida
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
Malcom A. Shorter, Staff Director
______
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
JOHN J. HALL, New York, Chairman
CIRO D. RODRIGUEZ, Texas DOUG LAMBORN, Colorado, Ranking
PHIL HARE, Illinois MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada GUS M. BILIRAKIS, Florida
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
April 17, 2007
Page
Legislative Hearing on H.R. 67, H.R. 1435, H.R. 1444, and H.R.
1490........................................................... 1
OPENING STATEMENTS
Chairman John J. Hall............................................ 1
Prepared satement of Chairman Hall........................... 42
Hon. Doug Lamborn, Ranking Republican Member..................... 3
Prepared statement of Congressman Lamborn.................... 42
WITNESSES
U.S. Department of Veterans Affairs, Ronald R. Aument, Deputy
Under Secretary for Benefits, Veterans Benefits Administration. 35
Prepared statement of Mr. Aument............................. 66
______
Baca, Hon. Joe, a Representative in Congress from the State of
California..................................................... 7
Prepared statement of Congressman Baca....................... 45
Donnelly, Hon. Joe, a Representative in Congress from the State
of Indiana..................................................... 9
Prepared statement of Congressman Donnelly................... 47
McIntyre, Hon. Mike, a Representative in Congress from the State
of North Carolina.............................................. 5
Prepared statement of Congressman McIntyre................... 44
National Association of County Veterans Service Officers, F.
Douglas LeValley, Past President............................... 20
Prepared statement of Mr. LeValley........................... 50
National Organization of Veterans Advocates, Robert Vincent
Chisholm, Past President....................................... 26
Prepared statement of Mr. Chisholm........................... 63
Paralyzed Veterans of America, Carl Blake, National Legislative
Director....................................................... 21
Prepared statement of Mr. Blake.............................. 52
Upton, Hon. Fred, a Representative in Congress from the State of
Michigan....................................................... 11
Prepared statement of Congressman Upton...................... 49
Veterans Law Project, North Carolina Central School of Law, Craig
M. Kabatchnick, Supervising Attorney and Director, and Adjunct
Law Professor.................................................. 25
Prepared statement of Mr. Kabatchnick........................ 58
Veterans of Foreign Wars of the United States, Gerald T. Manar,
Deputy Director, National Veterans Service..................... 23
Prepared statement of Mr. Manar.............................. 54
SUBMISSIONS FOR THE RECORD
American Veterans (AMVETS), Kimo S. Hollingsworth, National
Legislative Director, statement................................ 70
Disabled American Veterans, Brian Lawrence, Assistant National
Legislative Director, statement................................ 72
MATERIAL SUBMITTED FOR THE RECORD
Washington Post article, dated April 8, 2007, entitled,
``Hundreds of Thousands of Disability Claims Pending at VA;
Current Wars Likely to Strain System Further,'' by Christopher
Lee............................................................ 74
Congressional Research Service Report for Congress, entitled
``Veterans Affairs: The Appeal Process for Veterans' Claims,''
Updated April 9, 2007, by Douglas Reid Weimer, Legislative
Attorney, American Law Division................................ 76
LEGISLATIVE HEARING ON H.R. 67, H.R. 1435, H.R. 1444, AND H.R. 1490
----------
TUESDAY, APRIL 17, 2007
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:36 p.m., in
Room 334, Cannon House Office Building, Hon. John J. Hall
[Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Rodriguez, Hare, Lamborn,
and Bilirakis.
OPENING STATEMENT OF CHAIRMAN HALL
Mr. Hall. Thank you all for coming today. We are expecting
our Ranking Member to be here any minute.
But because there are a number of other Committee and
Subcommittee meetings that are overlapping with this one, I
want to try to get started so we can get the Members who are
testifying through and out of here if they need to leave and
get to all of our panels.
I am pleased that you could be here today for this
legislative hearing of the Subcommittee on Disability
Assistance and Memorial Affairs.
Today we are going to discuss four bills, House Resolution
67, House Resolution 1435, House Resolution 1444, and House
Resolution 1490, bills which will, if passed into law, impact
the VA claims delivery system.
And I just want to acknowledge, in addition to our Members
who are here, Mr. Lamborn, who just arrived, welcome. Mr.
Bilirakis I saw a minute ago, Mr. Rodriguez, Mr. Hare.
I also want to thank our staff, Jian Zapata, Shannon
Taylor, Kimberly Ross, Thaddeus Hoffmeister, Kristal DeKleer,
and Carol Murray and on our Minority staff, John Clark, Jeff
Phillips, Arthur Wu, and I think I got everybody.
But just because the last time I did not and they probably
do not get thanked enough or acknowledged enough, so thank you
all for the work that you do.
Will you join me in the Pledge of Allegiance.
[Pledge of Allegiance.]
Mr. Hall. And if we could have a moment of silence for our
service men and women and also for the victims and families of
the shootings at Virginia Tech.
[Moment of silence.]
Mr. Hall. Thank you.
As most know, there are problems with the VA claims process
and I want to say at the onset that few of the problems
associated with the process are beyond the control of the VA
and the product of our ongoing wars in Iraq and Afghanistan.
Having said that, I must acknowledge that there is a
growing claims backlog that has gone from approximately 465,000
in 2004 to 525,270 in 2005 to 604,380 in 2006 to at its peak
this year 647,857.
My last information was that that is down now to 590,000,
but the number changes weekly and it is something that we would
all like to see much lower. We are looking for help as we
devise a way to get that claims process streamlined.
Not surprisingly, this backlog has resulted in increased
waiting periods for claims to be processed. At last count, the
VA took an average of 177 days to process an original claim and
an average of 657 days to process an appeal.
Just last week, the Washington Post published an article
entitled, ``Delayed Benefits Frustrate Veterans.'' You may have
seen it, but there is a copy of it here which I will be
submitting for the record. It details instances of veterans who
literally have died while waiting for their claims to be
processed.
[The Washington Post article, dated April 8, 2007,
entitled, ``Hundreds of Thousands of Disability Claims Pending
at VA; Current Wars Likely to Strain System Further,'' by
Christopher Lee, appears on p. 74.]
Mr. Hall. To me, this is evidence of a broken system.
Whether you are one of the few remaining World War I veterans
or recently back from OIF/OEF, you should not have to suffer
through extended waiting periods to receive the benefits you
earned by serving our country.
I view today's hearing as an initial step in improving the
VA claims process.
In the first panel, we will hear from Members testifying
about their individual bills. Next we will hear from VSOs and
practitioners in the field about how these bills might work in
practice, and then finally we will receive from the VA their
views on the legislation before us today.
I look forward to having a constructive conversation with
all our witnesses. I do not know about any other Members
legislation, but as far as I am concerned, mine is a work in
progress and I suspect that there will be changes suggested and
probably changes adopted to any legislation that does come out
of this Subcommittee.
Before the first panel starts, I want to talk a few moments
about House Resolution 1444, a bill that I introduced, which is
under discussion at today's hearing.
In simple terms, House Resolution 1444 requires the VA to
provide a monthly stipend to certain veterans who have to wait
longer than 180 days for a decision from the VA on a remanded
claim.
To be more precise, if a veteran's benefits appeal is
remanded by the U.S. Court of Appeals for Veterans Claims or
the Board of Veterans' Appeals and a decision is not made
within 180 days of the remand, the VA will pay the veteran a
monthly stipend until a decision is made. This stipend will be
$500 per month for each person filing a claim.
If a final decision is favorable, the amount paid will be
considered part of the back payment due the veteran. If the
decision is unfavorable, the interim benefits shall not be
considered an overpayment of benefits.
Of course I understand that there may be disagreements with
this bill. However, I believe the principles behind it, by
creating benchmarks for the VA, are sound and will go a long
way in improving claims processing.
I believe that as the veterans' population continues to
age, and disabled veterans return home from Iraq and
Afghanistan, we must look for solutions that go beyond merely
adding more claims representatives.
I look forward to hearing what others have to say about
House Resolution 1444 and the other three bills before this
Subcommittee.
[Mr. Hall also submitted a Congressional Research Service
Report for Congress, entitled ``Veterans Affairs: The Appeal
Process for Veterans' Claims,'' Updated April 9, 2007, by
Douglas Reid Weimer, Legislative Attorney, American Law
Division, which appears on p. 76.]
[The statement of Chairman Hall appears on p. 42.]
I will now yield to Mr. Lamborn, our Ranking Member, for an
opening statement.
OPENING STATEMENT OF HON. DOUG LAMBORN
Mr. Lamborn. Thank you, Mr. Chairman, for recognizing me
and for holding this hearing.
I am here today to learn about the legislation before us
and I look forward to hearing from our witnesses and my
colleagues on the Subcommittee.
Our first bill, House Resolution 67, the ``Veterans
Outreach Improvement Act of 2007,'' has my full support. One of
the most persistent challenges we face is communicating to
veterans and their families the existence of benefits they may
have earned.
This bill funds outreach by State and local governments
which have proven capable incubators for effective public
policy. Perhaps some of their innovations could be useful at
the Federal level. This legislation also sends VA a signal that
Congress expects strong and effective outreach to our veterans.
Our second bill, House Resolution 1435, the Department of
``Veterans Affairs Claims Reduction Act of 2007,'' could make a
big difference in reducing claims backlog. This bill would fund
a pilot program to allow properly trained County Veteran
Service Officers to develop claims.
This inter-governmental partnering could speed up the
adjudication process, improve accuracy, and enhance the
linkages between governmental layers as they serve veterans. I
believe this is good policy. In fact, Mr. Chairman, I would
support including in this pilot State and Municipal Veteran
Service Officers.
To ensure that veterans get quality results, I also suggest
that service officers are certified by VA. This approach has
already been tried with considerable success. A 2002 pilot
program between the New York State Division of Veterans Affairs
and the Buffalo, New York VA Regional Office showed that this
concept could reduce claim development time and improve
accuracy. The concept is sound.
Mr. Chairman, I look forward to hearing more about House
Resolution 1444 and 1490. I am concerned that these bills could
create unfortunate and unintentional consequences, and fail to
solve the fundamental problems they are intended to address.
House Resolution 1444 would provide veterans $500 per month
if their compensation and pension claim was remanded by the
U.S. Court of Appeals for Veteran Claims or by the Board for
Veterans Appeals and it has been over 180 days since the date
of the remand. There is no recoup mechanism for this money if
it is determined the veteran does not qualify to receive it.
House Resolution 1490 would give veterans the median amount
of compensation for a claim based on a brief statement of
evidence until their claim has been adjudicated. The bill also
directs the Secretary to audit a percentage of these claims for
accuracy and fraud.
Mr. Chairman, I understand that the intent of these bills
is to reduce the backlog. It seems to me that both bills are
what could be called ``frustration legislation'' written out of
sheer and justified frustration with a faulty system.
I suggest that it is better to instead concentrate on
fixing VBA's systematic problems within the claims processing
system. I believe it is within our power working with the VA to
do that without making payments to people who may not have
earned them and potentially creating an incentive for
misrepresentation.
Mr. Chairman, part of the problem is one of access for
veterans to VA expertise. Some veterans are simply unaware that
they may have grounds for a claim. That is why I am happy to
announce that today I have introduced House Resolution 1863.
This bill would require VA to conduct a pilot project that
would provide mobile claims processing stations that would
travel within a given VA Regional Office's area of
responsibility, providing veterans with outreach, help on their
claims, and also collecting feedback for use in systemic
improvements.
And today I also introduced House Resolution 1864. This is
another piece of legislation that could have a significant
impact on the claims backlog. It authorizes a pilot program for
an automated rules-based system that could improve decision
making on simpler claims issues and thus freeing up highly
trained claims developers and adjudicators to work the more
difficult issues.
The bill authorizes $5 million per year for 4 years for the
project. It would permit VA to contract for development and
implement the system in not less than two Regional Offices.
A rating produced in this manner, because the bill does not
call for changing the current rating system, but would make
decisions within that system more efficient, would thus
contribute significantly to reducing the backlog.
And that, Mr. Chairman, I think is what we're all truly
after, and I yield back.
[The statement of Congressman Lamborn appears on p. 42.]
Mr. Hall. Thank you, Mr. Lamborn.
I look forward to learning more about H.R. 1863 and H.R.
1864 and I think you are right on the money when you said that
this is what all of our efforts are aimed at.
So after our colleagues on the first panel have finished
giving their testimony, Members will be recognized for 5
minutes to make opening remarks or to ask questions for 5
minutes.
And now we will ask our first panel for their testimony,
and thank you for coming this morning. You each have a busy
schedule, so we will try to get you processed as quickly as we
can through our process.
Mr. McIntyre from North Carolina, we will start with you,
please.
STATEMENTS OF HON. MIKE McINTYRE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NORTH CAROLINA; HON. JOE BACA, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA; HON.
JOE DONNELLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
INDIANA; AND HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF MICHIGAN
STATEMENT OF HON. MIKE McINTYRE
Mr. McIntyre. Thank you, sir. Thank you, Mr. Chairman and
to the Ranking Member and to all the Members of the Committee.
I am honored and privileged to have this opportunity to testify
before you today about the ``Veterans Outreach Improvement
Act,'' House Resolution 67.
This bill has been endorsed by and was written with the
assistance of the National Association of County Veteran
Service Officers and enjoys widespread support nationwide in
our report to Congress.
The ``Veterans Outreach Improvement Act'' would address
three important areas which I will summarize for you. First,
coordination; second, local grants; and, third, resources.
The bill would require the Secretary of the VA to establish
a plan to coordinate outreach activities within the Department
and would authorize $25 million annually for 3 years that would
be used to provide grants to State and local governments for
outreach purposes.
By empowering our local Veterans Service Offices on the
local level throughout the Nation, we would get more bang for
our buck literally to locate veterans and assist them in
receiving the benefits they deserve.
First, the coordination aspect. The ``Veterans Outreach
Improvement Act'' would require the Secretary to establish and
annually review a plan to coordinate outreach activities within
the Department. Currently various organizations have trouble
accessing veterans' records even if the organization is
accredited by the VA.
Second, with regard to the outreach grants, many veterans,
spouses, and widows of veterans are unaware of the benefits
that
they are entitled to through the VA. We spend so much time
debating here in Congress ways to help our veterans.
I know I have 66,000 veterans in southeastern North
Carolina sandwiched in between the areas roughly from Fort
Bragg to Camp Lejeune. Yet, many of our veterans, especially in
rural areas like I live in, do not even realize the full
panoply of benefits that they are entitled to.
According to a Knight Ridder report, as many as two million
poor veterans or their widows may not be receiving of the $22
billion annually in pensions to which they are already
entitled. Other estimates suggest that only 30 percent of
veterans receive the benefits for which they are eligible. So
this is the back part of the tragedy.
Number one, we have got to make sure we are doing right by
our veterans, which I am sure we would all agree on. But,
number two, are we educating and reaching out to make sure they
understand and can access what those benefits are?
Unfortunately, too many of our military personnel came back
from overseas, they get lost in the shuffle when they leave the
Department of Defense healthcare system and enter into the VA
system. There are currently increased efforts underway to
improve the seamless transition, but many veterans
unfortunately have already fallen through the cracks and this
would reach out to both the new veterans as well as those who
may have already, of course, served our country and have fallen
through the cracks.
This bill, House Resolution 67, would establish a program
for the VA Secretary to provide grants to States for outreach
activities, establish cooperative relationships, and assist in
the development of veterans' benefits claims.
States may award portions to local governments. If no local
veteran service program is available in a certain community,
then States may use funds from grants to operate in place of a
local agency or to establish a local program.
And then, third, in addition to coordination and outreach,
resources are critically important. This bill, House Resolution
67, authorizes $25 million annually for the next three fiscal
years. This is one dollar per veteran.
This bill's funding allocation could be used by State or
local governments for several key purposes such as establishing
education and training for State and local government employees
for accreditation to provide these outreach services. Another
would be improving existing offices by being able to hire
additional staff. And, third, allowing the Veteran Service
Offices to purchase advertising space or, I know in rural areas
such as I live in, establishing transportation programs for
veterans to be able to travel and get the healthcare they
deserve.
In conclusion, I know that we all agree that our commitment
to our veterans should be top priority. To allow at least a
dollar per veteran, the 25 million we are talking about, to
reach out to let them know potentially, as I mentioned earlier,
of the 22 billion dollars in pensions that they might be
entitled to, I think is a dollar well spent for each of our
veterans and the very least we could do to help them.
Our veterans deserve the benefits they have earned. It is
our obligation to make sure they know what those benefits are
and have the assistance in developing their claims. That is why
I encourage the Subcommittee to give this bill its full
consideration.
I look forward to working with each of you and with our
Nation's veterans and veteran's organizations. And in
particular, I want to thank Ann Knowles, who is the National
President of the County Veteran Service Organizations from
Sampson County in our district, the 7th District of North
Carolina, who will also be here testifying today.
Thank you, and God bless you, Mr. Chairman.
[The statement of Congressman McIntyre appears on p. 44.]
Mr. Hall. Thank you, Congressman, and God bless you too.
And thank you for that eloquent description of your laudable
proposal.
And we will ask Congressman Baca to go next.
STATEMENT OF HON. JOE BACA
Mr. Baca. Thank you very much, Mr. Chairman and Ranking
Member Lamborn and Members of the Subcommittee, for holding
this important hearing today.
Earlier this year, I have introduced House Resolution 1434
to help reduce the veterans' claim backlog which is an issue
that I have been concerned about for many years. These are
benefits that veterans have earned. And I speak as a veteran
who has served in both the 101st and 82nd Airborne.
As you already know, there are almost one million backlog,
and I state, one million backlog claims pending at the Veterans
Administration. That is appalling to me when we look at
veterans and we look at one million backlog already at the
administration.
The average claim takes about 6 months to process and
appeal takes 2 years, bear that in mind, of a veteran who has
served our country who has returned. Many of these claims are
for older veterans who live month to month, need urgent medical
attention.
An article on the backlog ran in last week's Washington
Post describing World War II veteran Seymour, Seymour Lewis,
who lost hearing in the line of duty in 1944. Seymour Lewis
waited 5 years, waited 5 years for the VA to give him an answer
for his disability claim. That is 5 years that he waited. His
claim was still pending when he died, when he died last year at
the age of 80.
This tragedy is not isolated incident. It is happening
across the country and it is going to get worse, it is only
going to get worse. The current backlog does not include the
veterans who will be returning soon from Iraq and Afghanistan.
GAO expects over 600,000 new claims will be filed from
these two wars in the next 5 years alone. Bear that in mind
when you think about what we have and the responsibility that
we have to our veterans.
It is clear that we need to act now to fix this problem
before the system breaks down. I am proud of House Resolution
1435 because I truly believe it would help reduce the backlog
and make the difference in the lives of veterans, make the
difference in the lives of veterans that deserve the benefits
that they have earned.
House Resolution 1435 is based on legislation I carried
last year in Congress to reduce the backlog. However, this is a
completely
new bill that incorporates new ideas while addressing some of
the past concerns.
House Resolution 1435 is a fiscally responsible bill that
has built-in accountability and provides viable service to our
veterans. This bill will establish a 3-year pilot project in
five States that would allow the County Veteran Service to help
develop backlog claims and we may even take in the
consideration of our Minority Ranking Member that suggested
State municipals.
The five States, California, Florida, Ohio, and South
Carolina, and Texas, were picked based on the extent of the
County Veteran Service network, the veteran population in these
States because we wanted a good sample of both large and small
States in different regions of the county.
Under the pilot program, the VA will identify the backlog
claim that need further development, refer these claims to the
veterans' nearest County Veteran Service Officers. The VA will
also identify what information is needed to evaluate the claims
so that the CVSOs can collect the proper information for the
veterans.
The CVSO will then work with the veterans and any other
established power of attorney to fully develop the claims and
that is working with other entities, too, as well. Once the
claim is fully developed, it will be returned to the VA ready
for evaluation and that is all of us working to help veterans.
And that is the important thing, all of us working jointly
together.
At the end of the pilot program, the Secretary will submit
the report to Congress showing how many claims each State
started and ended with as well as how many were successfully
processed so that we can see if the program actually worked.
I am still waiting on a cost estimate from the
Congressional Budget Office. However, I believe that this is a
cost-effective bill because the program is using existing
county employees to help reduce the VA claims backlog, that is
using existing county employees.
House Resolution 35 also addresses some of the past
concerns. For instance, this bill will bring Veteran Service
Organizations such as the VFW and DAV into the process and
clearly direct the CVSOs to work with any veterans' group with
the establishment of power of attorney in development of
claims. We want the CVSOs and veterans and the power of
attorneys to work as a team, as I stated before, to work as a
team.
Second, we made this into a pilot program so that we can
try the ideas first and see if they really work to reduce the
backlog.
Third, House Resolution 35 supports the VA's mission to
increase the number of claims evaluators. And I know that that
is very important to a lot of us because I visited Walter Reed
not too long ago and it is important that we have true
evaluators and people that can actually write the claims.
The pilot program provides the Department with VA
accreditation to help provide the claims while the Department
focuses on increasing staff that can evaluate the claims once
they are submitted. To me, House Resolution 35 seems to be a
common-sense approach that will reduce the backlog and utilize
qualified government employees who already work on our veterans
in 37 States across the country.
Once again, I would like to thank Chairman Hall and Ranking
Member Lamborn and members of the Subcommittee for giving me
the opportunity to speak on this legislation. Thank you very
much, and I know that my time has run out.
[The statement of Congressman Baca appears on p. 45.]
Mr. Hall. Thank you, Congressman. You used it well.
Congressman Donnelly.
STATEMENT OF HON. JOE DONNELLY
Mr. Donnelly. Thank you, Chairman Hall and Ranking Member
Lamborn and other members of the Committee. Thank you for
calling this hearing today and for the opportunity to speak on
House Resolution 1490 introduced by Congressman Upton and
myself and the need for new approaches to address the claims
backlog and to also help America's vets cope with what is
frequently a months-long process to get the benefits they
deserve.
The problem is well documented. We have a benefit system in
place that is struggling to keep up with the growing load of
disability claims cases. Right now a veteran filing a new claim
can expect an almost 6-month wait until they find out whether
that claim is approved. If they appeal, they can expect their
case to drag on for nearly two more years.
Unfortunately, this is a problem that is likely to get
worse before better. As you know, in Iraq and Afghanistan, the
ratio of soldiers wounded to killed is sixteen to one, the
highest of any war in our Nation's history. With so many new
and future veterans serving in Iraq and Afghanistan, we have a
wave of new claims we must prepare for in addition to the
180,000 Iraq and Afghanistan veterans who have already applied
for disability benefits.
Estimates are that over the next 5 years, OEF and OIF
veterans could file 638,000 new claims for benefits. I believe
the VA is trying to do the very best it can under the current
system. Claims workers are dedicated individuals working hard
to see that our vets are able to get the proper service and
benefits deserving their service and sacrifice.
I look forward to working with my fellow colleagues on the
Veterans' Affairs Committee to make sure that VBA has the
resources and staff in place to provide for accurate and timely
claims adjudication.
I also look forward to working with the VA and the
Department of Defense to provide for a seamless transition from
active duty to veteran status. However, I believe we must also
explore more innovative approaches to address the fundamental
shortcomings of the current claims process.
New veterans often leave the service to an uncertain
future. Sometimes just weeks from the battlefield they must
find a job, a place to live, and find medical care. Many older
veterans are on fixed incomes. For many disabled veterans,
their benefits and disability compensation are a critical part
of their ability to meet the needs of their families and make
ends meet.
It is our veterans who pay the price both emotional and
financial for the long time that it takes to process a claim. I
know there are a number of factors to explain in part why
claims approval times are long and why the backlog has
increased.
However, we must do something to get veterans some
assistance on the front end while they wait for the VA to make
a determination. Just explaining the delay does not help our
veterans to pay the bills and put food on the table. We need to
expedite benefits to help veterans get by while their claims
are considered.
Currently approximately 88 percent of veterans' claims are
ultimately approved by the VA. This would suggest that the vast
majority of claims filed by veterans are done so accurately and
truthfully by men and women who are seeking compensation and
benefits for very real conditions. They have already sacrificed
for their country.
I believe our veterans have earned the benefit of the doubt
when it comes to their claims on disability benefits.
Congressman Upton and I introduced House Resolution 1490 to
provide veterans that benefit of the doubt when it comes to
their claims.
This bill would approve new disability claims up front
through an expedited process and direct the VA to audit a
percentage of those claims to ensure accuracy and to deter and
detect fraud. Those claims that have already been denied or are
currently in the appeal process would not be included in this
new process.
Essentially a vet who can provide proof of service and
minimal supporting evidence for their claim would meet with a
VA claims worker to identify the proper disability and benefit
they are filing for. Unless the VA or claims worker determines
there is sufficient evidence to the contrary, the VA would
approve the veteran's claim at a median benefit for that type
of disability and the veteran would immediately become eligible
for benefits.
Benefits awarded through this benefit of the doubt approach
could be changed by the VA once a more appropriate level of
benefits is determined. However, until that happens, veterans
would still be able to get a benefit for a claim which they are
requesting.
House Resolution 1490 would direct the VA to ensure that an
adequate number of claims workers are assigned to assist in
carrying this out. The burden of proof will be shifted from the
disabled veteran to the VA.
I have a little bit more written testimony, but I would
like to sum up by this.
Our veterans have served and served heroically. When they
come home, they and their families should not have to suffer
because we are not able to process our claims more quickly. We
are doing everything we can to process them more quickly, but
that does not help to feed families and to take care of their
needs.
We are asking that House Resolution 1490 be considered to
help meet that goal and to help take care of our veterans and
give them the benefit of the doubt they have earned through
their service.
Thank you, Mr. Chairman, Ranking Member Lamborn, and
Members of the Committee.
[The statement of Congressman Donnelly appears on p. 47.]
Mr. Hall. Thank you, Congressman Donnelly.
And we will now recognize Congressman Upton for his
testimony.
STATEMENT OF HON. FRED UPTON
Mr. Upton. Thank you, Mr. Chairman. And I have a full
statement for the record, which I will submit, and I will not
use the full 5 minutes granted to me.
I just want to thank Congressman Joe Donnelly. He has been
a friend. And House Resolution 1490, which we jointly
introduced, with Joe being the prime sponsor, indeed is
bipartisan. And if you look at the list of cosponsors, you will
see also that is bipartisan.
Let us face it. The current system is broken. In fact, it
is more than broken, it is shameful. I frankly cannot imagine
the nightmare that is shared by so many of our vets coming back
from Iraq and Afghanistan. Many of them have a spouse. That
spouse perhaps has worked one, two, maybe even three jobs.
Chances are they have kids. He or she has a job maybe that they
cannot return to. They have a mortgage and pending bills. And
to think that they have to wait 6 months to have that claim
processed on average or 2 years, as it has been indicated, for
an appeal is just outrageous.
Last month, Newsweek documented exactly what our veterans
are going through. And I have to say it sent shock waves across
the country. More than 400,000 cases are backlogged. A Harvard
study was cited in that story that I was able to get and read.
And as Joe indicated today, we have sixteen injured vets
for every one that is killed. In Vietnam and Korea, it was two
and a half, primarily because we have much better medical care
than we had 20, 30 years ago.
But it is an interesting fact, 43 percent, 43 percent of
the vets coming home from Iraq and Afghanistan file for
disability. Ninety percent of those are ultimately approved. So
what our bill does is two things.
One, it provides the median benefit for that disability
level on day one. Now, the second thing that it does, it allows
the Veterans Administration to go back and audit to make sure
that there is not fraud and abuse, to make sure that there is
not false claims by having a check and balance to make sure
that not everybody files when in fact it may be not necessary
or right.
We allow the Veterans Administration to pick whatever
percentage they want. It can be a hundred percent. It can be 10
percent. It is whatever they deem correct to make sure that, in
fact, the claims are appropriate and are correct.
I would conclude by saying this. America now knows the
problems suffered by our vets when they come back with service-
connected injuries. This Committee knows what those problems
are. They have been aptly identified.
This Committee and this Congress has a responsibility to
the families as well as to the service men and women that
return that have a service-connected injury. The current system
has got to change and you all have a task to try and bring it
before the full House where we can support it on a bipartisan
basis.
I support my colleague and neighbor, Mr. Donnelly, whose
district adjoins mine, in this venture. I am delighted that he
serves on the Veterans' Affairs Committee. And I look forward
to working with all of you to shepherd the right changes so
that our men and women are served correctly by the U.S.
Government.
I yield back my time.
[The statement of Congressman Upton appears on p. 49.]
Mr. Hall. Thank you, Congressman.
I will just ask a brief question or two and then yield to
the Ranking Member and we will try to get around the rest of
the Subcommittee.
Regarding House Resolution 67, Congressman McIntyre, do you
anticipate that the legislation might cause State legislatures
to reduce their current funding authorizations for veterans'
programs?
Mr. McIntyre. I did not hear part of your question. Do I
anticipate that what?
Mr. Hall. That House Resolution 67----
Mr. McIntyre. Yes, sir.
Mr. Hall. --may cause State legislators or legislatures to
reduce their funding authorizations?
Mr. McIntyre. Oh, no, not at all. If anything, this
supplements and enhances what they have to offer because this
is an additional way to say from the Federal level we are
trying to help the county and State organizations do their
outreach.
And at the rate of a dollar per veteran, as I mentioned
earlier, I would not foresee any State legislature using that
as an excuse not to reach out or to fund what they need to do
by virtue of their own veterans. In fact, I think that would
have backfire ramifications if any State legislature attempted
to do that.
Mr. Hall. I would hope so, too, but I also know having just
come back from my district, as we all have, that there is some
financial problems at the State and local levels.
And I guess another way of putting it would be do you think
it would be productive or would you consider the idea of
including in the bill a requirement that the States in question
not reduce their funding to veterans' programs?
Mr. McIntyre. We would be open to that type of amendment,
yes, sir.
Mr. Hall. Thank you.
And regarding H.R. 1435, Congressman Baca, have you heard
from the States and the CVSOs their position on this bill?
Mr. Baca. The National Association of County Veteran
Organizations fully endorse and support this bill, and the U.S.
Department of Veterans Affairs and the State understand that
CVSOs are already helping veterans prepare their claims every
day. And the added benefit of the pilot program will not only
help tackle this backlog, but it will also allow the CVOs to do
a better job by providing them with the information they need.
Mr. Hall. Thank you, Congressman.
And last I want to ask Mr. Donnelly and Mr. Upton, have you
seen anything in your research in the process of putting this
legislation together which would predict a number for
fraudulent claims and what steps are either taken in the bill
or do you foresee taking to make sure that does not happen?
Mr. Upton. I just want to say the way we wrote it, you
know, they have got a better hand. I do not know what that
percentage ought to be and we left it purely at their
discretion. So they could review 5 percent of the cases. If
they think that there ought to be more than that, you know, 25.
We wrote the legislation so that the folks actually
watching these claims, who knows, you know, whatever the
situation, and we leave that fully in their hands to decide
what that percentage ought to be.
And I think, frankly, as not an expert on veterans' care
issues, I think until you have a better idea, and perhaps you
do, that we ought to start with the VA deciding what that
percentage ought to be.
Mr. Donnelly. And, Mr. Chairman, at the present time,
approximately 88 percent of the veterans' claims are ultimately
approved. So that is nine out of ten. And I guess I have faith
in the integrity of our veterans that after serving our
country, they will conduct themselves----
Mr. Hall. I do too. I am just playing devil's advocate for
a minute.
Mr. Donnelly. Oh, absolutely, sir.
Mr. Hall. And I support the intention of the legislation.
Human nature being what it is, once it is----
Mr. Donnelly. Right.
Mr. Hall. --advertised that a claim will be, you know, that
a median amount, if this legislation were to become law, would
be paid, one can imagine that perhaps there would be more
claims filed. But I am just curious whether----
Mr. Donnelly. And that is why we included the auditing
process----
Mr. Hall. Right.
Mr. Donnelly. --and the VA's ability to that.
Mr. Hall. Which I support.
Okay. Thank you, and I yield to our Ranking Member.
Mr. Lamborn. Thank you, Mr. Chairman.
Congressman Baca, in connection with House Resolution 1435,
would you support adding State Veteran Service Officers or
other qualified government entities such as Municipal Service
Officers to the pilot program described in your legislation?
Mr. Baca. I think that is something that we have got to
consider because it is a team effort to make sure that we do
take care of our veterans. And that is the bottom line is that
we need to make sure that the benefits that they are entitled
to, that they receive those. If there are other entities that
we can work together to assure that they receive the service in
a timely fashion, we have got to do that.
Mr. Lamborn. Okay. Thank you.
And, Congressman Donnelly, in connection with House
Resolution 1490, you stated in your testimony that benefits
awarded through this benefit of the doubt approach could be
changed by the VA once a more appropriate level of benefits is
determined.
Can you explain what you mean by determined? And the reason
I ask that is because after a monetary award is given, I am
wondering is the claim then sent through the regular claims
process and, if so, I cannot help drawing the conclusion but
that we might have a need for more VA adjudicators because we
are adding one step to the whole process? Could you explain
mechanically how that would work?
Mr. Upton. Yeah. We asked the legislative counsel to draft
this based on the Harvard study that was out and I think that
perhaps relates to the--you know, right now the VA is being
swamped and perhaps if legislation like this moves through the
process that they would not have the backlog, certainly the
claims process would be expedited in a major way.
And the way that the folks at legislative counsel suggest
by providing I think what you are asking is the median level of
benefit, that is so that in essence it can start off for that
wounded soldier returning and ultimately it is decided through
the process whether it perhaps should be above the median level
or below.
But we allow the VA to make that determination. I think
that stays with the legislation that we have and it was through
the council looking at the Harvard study that actually came up
with the language.
Does that answer your question?
Mr. Lamborn. Yeah. Thank you. That certainly helps.
And for either one of you, once again on 1490, my last
question, you say that there would be some level of fraud,
hopefully minimal, but do you have any idea on what the dollar
amount connected with that would be?
Mr. Upton. I do not know what it is. And for me, you know,
I once worked at the Office of Management and Budget and I once
chaired the Oversight Investigation Subcommittee at Energy and
Commerce. There is fraud and abuse that is out there, in every
Federal program period. And we need to make sure that the tools
are present to go after it and to let people know that when
they defraud the government, try and rip it off, in fact there
is a good chance that they will get caught and that there will
be redress made.
And the reason why I feel that it is very important to have
the provision to allow the VA to audit those cases is because
we know some people will try to cheat. And by having this
safety valve there, I think it diminishes that and protects the
taxpayers' rights at the same time, that the veterans that
clearly are deserving do not have to wait 6 months before they
get a benefit or 2 years if it is in appeal.
Mr. Lamborn. Thank you.
Mr. Hall. Thank you, Mr. Lamborn.
Congressman Rodriguez.
Mr. Rodriguez. Thank you, Mr. Chairman.
On House Resolution 67 and House Resolution 1435, let me
first of all congratulate both of you on those efforts. And I
will mention a little bit on the others because I know that in
that particular area we are having difficulty in terms of the
need for the outreach that is required and needed.
And I remember joining with the Vietnam Veterans of
America, with a letter to Secretary Principi on the VA's
stance. That we should not educate our veterans or not reach
out to our veterans to let them know about the services that
were available.
Let me ask you, Congressman McIntyre, regarding my
understanding of the budget estimate on House Resolution 67,
that it is about $25 million?
Mr. McIntyre. Twenty-five million annually over the next
three fiscal years.
Mr. Rodriguez. Okay. And, Congressman Baca, on yours, do
you know what the estimated cost is?
Mr. Baca. At this point, we do not know what the estimated
cost is going to be because, remember, we are incorporating the
bill with what is currently in existence right now. So it would
actually be a cost effectiveness because this would be taking
in the county employees that would already be there. And if we
took into consideration the State and municipality, these are
already employees that would already be in place.
It is just allowing someone to provide a service to our
veterans to handle the backlog of casework that needs to be
done so we would be able to expedite the process because the
applications sometimes where there is a question that is not
answered that needs to be answered, we would have someone that
would be able to provide that information, get it back to the
VA, process that application in time to ensure that that
individual then received his or her benefit.
So we need that person to provide that information. It
would be a team effort versus if it just waits for the VA
because right now the VA lacks the amount of staff that they
need and hopefully that they can create the additional staff.
But, meanwhile, we would use another entity to make sure
that we would be able to provide the kind of information and
make sure that that veteran receives the benefit that he or she
needs by doing this. So it would use existing staff that is
already currently there by the county government.
Mr. Rodriguez. Thank you.
And I notice the language there authorized such sums as
necessary to conduct the pilot programs, although I think the
VA has indicated that that might cost up to $69 million. I
guess they are high-balling it or I am not sure exactly what
that is based on. I guess on how big that particular project is
in your proposal.
On House Resolution 1444 and 1490, I also feel the same way
you do. I am just frustrated and the benefit of the doubt in
this case ought to go to the veteran. The veteran, I think,
should have received it and they passed away and never got it,
you know.
Let me ask you. Do we know if the VA, because I do not know
and I guess we will have a chance to ask them later on, if they
do get the benefits, if it is retroactive from the time they
made the application or not?
Mr. Donnelly. I do not know the answer to that, Congressman
Rodriguez.
Mr. Rodriguez. Okay.
Mr. Upton. But I would just note, though, you have got
cases documented, suicidal, I mean all those different things.
I've talked to a number of wounded veterans and they are just
beside themselves that they have to figure out how to maintain
themselves without the benefit, you know, maybe they are still
in care, they are not able to go back to their job, I mean all
those different things, and not really know if their claim may
or may not be approved.
So this relieves that from the very onset, in essence, on
average 6 months before they normally would see a check.
Mr. Donnelly. And what this does, Congressman, is when you
are looking at your two or three children and you are trying to
figure out how you are going to be able to meet the needs after
you have been disabled, this helps to solve that problem a
little bit. And it is a position that the veteran should not be
placed in, is placed in this position through no fault of his
or her own. And so it is an attempt to try to make the
situation right.
Mr. Rodriguez. Let me thank you for your proposal and if VA
does not come up with any other that sounds more reasonable
than what we have now, it sounds like a good idea to do. So
thank you very much.
Thank you, sir.
Mr. Upton. We would love to put you down as a cosponsor.
Mr. Rodriguez. Okay. Thank you very much.
Mr. Hall. Thank you, Congressman.
The Chair will now recognize Congressman Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman.
Mr. Hall. Hit your microphone button there, please.
Mr. Bilirakis. Congressman Baca, my staff has discussed
your legislation with some of the County Service Officers in my
district. Based on these conversations, it's our understanding
that the County Service Officers--you alluded to this
somewhat--the officers in Florida go through a certification
process and are already developing veterans' claims.
How many States have County Service officers who are
processing claims at this particular time?
Mr. Baca. There are 37 States that currently operate right
now. And what we are doing is asking for five States to use it
as the pilot project right now to determine the effects of how
we would be able to handle the claims during that period of
time. And then we would also look at the possibility of
amending the legislation if, in fact, it took in State and
municipalities, too, as well in that claims process.
But there are 37 States, so we are looking at just looking
at veterans that need to process the application because there
is a backlog that needs to be handled. There is over a million
and some backlog right now.
As I stated before, we have not even dealt with those that
are going to be returning back from Iraq and Afghanistan, too,
as well, and a life that is lost on someone that should have
received their benefit because that claim was not processed in
a timely fashion.
Mr. Bilirakis. Yeah. They had questions. Thank you very
much. The service officers want to know what the pilot program
will do as opposed to what they are already doing. Can you
elaborate on that a little bit? I know you touched on it.
Mr. Baca. Well, the pilot program in those States will
determine the accuracy of determining how we will handle the
claims. We will get back in a timely fashion and report back to
Congress how many claims we are able to handle, we are able to
process those claims, because currently right now under the
current process that we do have is some of the information that
is inaccurate.
The CVSOs will be able to get accurate information, gather
that data, gather that information, submit it back, and say we
were able to process it in a timely fashion because right now
it would take anywhere between 6 months to 2 years to process
that claim. So we would reduce that.
So the study would indicate that in the claims, we reduce
the amount of claims that it takes to handle a claim, so that
study will determine a claim that was processed to say we
handled it in less than 6 months to 2 years in a service that
was accurate and benefit to the individual. So this way, we do
not have to read in the paper like we did in the Washington
Post saying that someone died because we failed to answer their
response. We would then be able to get accurate information to
say we responded to that claim within a period of time by
utilizing another entity whether it was the county, the State,
or municipality in getting the information because sometimes
all it does is just take one information that is not there and
by the time you get to the VA, it is impossible to get that
information.
Now you have got a county entity that is local in your area
that can get the information directly about what is missing in
the application and then you file that to the VA. Then they
process that application. Now we have something on record.
Mr. Bilirakis. Okay. Thank you very much. Appreciate it.
Thank you, Mr. Chairman.
Mr. Hall. Thank you, Congressman.
Congressman Hare.
Mr. Hare. Thank you very much, Mr. Chairman, and thank you
for holding this hearing today.
Let me thank all of my colleagues for the legislation that
you have introduced. I share with my colleague, Mr. Upton, I
saw the Newsweek article, too, and we started this process, you
know, behind and we are falling farther behind. I do not think
we have any time anymore. And I just want to commend all of you
for introducing legislation. And if am not on it, I will get on
it really quickly. I can tell you that.
I just want to say a couple of things. I do not know why it
seems the burden has to be on our veterans to prove that there
is a problem with 88 percent, almost nine out of ten. I think
we have an obligation to err on the side of our veterans. I
know people will take advantage, as you said. I know there a
few that might. But the vast majority of people are not going
to do it.
I just did a Marine Corps League State meeting in my
district and that was the first question asked by these folks,
why in heaven's name is it taking so long, to even get the
claim and then to get the claim on the appeal process,
sometimes upward, I think someone said 3 years, which is--2
years, which is unconscionable to me that we are doing this to
our veterans. So I just want to commend you all for it.
And let me just say to my colleagues on House Resolution
67, that the funding of this, just to put this all in
perspective, we can fund this, if my math is correct, at $11
million an hour that we are spending on the current war, we
could fund each year at 2 hours and fifteen minutes of what we
are spending. And I clearly think that that is not a bad deal
in terms of where we can put our priorities.
I wanted to ask you, if I might, Mr. McIntyre, you talked
about in your bill, and I have a rural district, too, with a
lot of veterans, and I am interested if you maybe would expand
a little bit on what your bill will do to help transportation
for veterans of rural communities because a lot of them simply
do not have access to getting the kind of help that they need.
Mr. McIntyre. Well, that is part of the flexibility in
coordinating with State and local Veteran Service Offices and
organizations where the need is greatest and they could use
that to target their funding in terms of outreach.
And I know that between the military bases I have of Fort
Bragg and Camp Lejeune that even though those two bases which
are on either side of my district, we have vast rural areas and
swamp land and tobacco fields and pine trees, and it is very
difficult for many of our veterans to get the transportation
they need.
And that is one of the first foci by the Area Council on
Aging when they are dealing generally with senior citizens, but
the veterans too often have gotten left in the gap. And that is
why if they are given the flexibility to realize that the most
critical part of outreach in that situation may be the
transportation, then that is where they would be able to target
their money.
So that is why it is important to have that flexibility
with the local agencies on the ground being able to best
determine how to use that.
Mr. Hare. Yes.
Mr. Baca. Mr. Hare, if I may just add something. In my trip
that I took to Walter Reed not too long ago when we went down
there, and I think that is why it is so important when we look
at accurate assessment and evaluation before our veterans are
discharged, I mean, that is why we actually have a lot of the
backlog because it is poor documentation.
And because of the poor documentation and assessment and
evaluation that a lot of the information is inaccurate so,
therefore, a lot of the claims that are filed right now, a lot
of the appeal, the process, everything that needs to be done
has to go through some entity whether it is the VA, whether it
is through our Congressional Office, or whether it is through
the entities such as the CVSOs, VFWs, all of these other
organizations, and begin to help a lot of our veterans.
That is why it is important that when we look at any one of
our veterans is it is appropriate assessment and evaluation
during that period of time. If it is done, then the process
would be a lot easier in terms of handling that veteran's claim
because we would have accurate information. Then it is just a
matter of processing it would be a lot easier because we are
not doing a good job in the assessment and evaluation in the
discharge of that veteran.
Mr. Hare. Well, let me just say to all four of you I thank
you for having the courage to introduce this legislation.
Hopefully we get this to the floor and get this process started
moving and be proactive for veterans instead of reactive. I
think that is kind of the mindset we have been in and the mold
we have been in.
And, Representative Donnelly, thank you very much for your
piece of legislation. I think it has a great deal of push
behind it and I would be very honored to help any way I can
with you on it.
Mr. Donnelly. Thank you, Congressman. We certainly
appreciate that. And Congressman Upton and I are going to be
working the floor for cosponsors and we'd be proud to have your
name on it.
Mr. Hare. Not a problem. Thank you very much.
I yield back.
Mr. Hall. Thank you, Mr. Hare.
I, too, want to thank all four of you for your work and I
neglected to mention, Congressman McIntyre, in terms of the
outreach component.
One of the things I heard about this over the last 2 weeks
when we were at home in our districts, and my district where we
have the 105th Airlift Wing, we have a Marine and National
Guard detachment and we have West Point and the veterans
community who lives there, and 77,000 veterans approximately
being served by Castle Point and Montrose VA facilities as well
as a number of outpatient clinics, I heard repeated complaints
from veterans about the eleven cents a mile that they are
reimbursed to drive to a facility to be treated. In some cases,
they are driving a considerable distance, you know, a hundred
miles or more round trip.
And the IRS last year, I think they allowed 48 cents a mile
for tax purposes. It is clear to anybody buying gasoline
nowadays that you have got to have an awfully good, efficient
car. If you can get there on eleven cents a mile, I want to
know what you are driving.
But maybe that is something else that----
Mr. Baca. That is why, Mr. Chair, we probably need my
legislation to make sure they do not have to drive all over the
place and then incorporate the Ranking Member's idea, too, as
well so this way they can get there. The gas prices are so
high.
Mr. Hall. You are right about that, Congressman.
We will incorporate as many of these ideas as we can. I
thank you all for your hard work and for coming here today to
talk about the legislation.
Mr. Baca. Thank you, Mr. Chairman.
Mr. McIntyre. Thank you, Mr. Chairman.
Mr. Hall. Our first panel is excused.
And our second panel, F. Douglas LeValley, the former
President of the National Association of County Veteran Service
Officers; Carl Blake, National Legislative Director of the
Paralyzed Veterans of America; Gerald T. Manar--is that the
correct pronunciation?
Mr. Manar. Yes, sir.
Mr. Hall. Thank you.
Deputy Director of the Veterans of Foreign Wars; Craig M.
Kabatchnick--did I get that right?
Mr. Kabatchnick. You got that right.
Mr. Hall. Thank you.
Clinical Legal Instructor for North Carolina Central
University School of Law; and Robert Chisholm, President of the
National Organization of Veterans Advocates.
Thank you all for joining us.
And I would like to ask Mr. LeValley to begin our
proceedings. Thank you.
STATEMENTS OF F. DOUGLAS LeVALLEY, PAST PRESIDENT, NATIONAL
ASSOCIATION OF COUNTY VETERAN SERVICE OFFICERS; CARL BLAKE,
NATIONAL LEGISLATIVE DIRECTOR, PARALYZED VETERANS OF AMERICA;
GERALD T. MANAR, DEPUTY DIRECTOR, NATIONAL VETERANS SERVICE,
VETERANS OF FOREIGN WARS OF THE UNITED STATES; CRAIG M.
KABATCHNICK, ADJUNCT LAW PROFESSOR, AND SUPERVISING ATTORNEY
AND DIRECTOR FOR THE VETERANS LAW PROJECT, NORTH CAROLINA
CENTRAL UNIVERSITY SCHOOL OF LAW; ROBERT VINCENT CHISHOLM, PAST
PRESIDENT, NATIONAL ORGANIZATION OF VETERANS ADVOCATES
STATEMENT OF F. DOUGLAS LeVALLEY
Mr. LeValley. Okay. Thank you, sir.
Chairman Hall, Members of the Subcommittee, it is truly my
honor to be able to present this testimony before you.
As Past President of the National Association of County
Veteran Service Officers, I am commenting on our views on House
Resolution 67, House Resolution 1435, House Resolution 1444,
and House Resolution 1490.
The National Association of County Veteran Service Officers
is an organization made up of local government employees. Our
Members are tasked with assisting veterans in developing and
processing their claims.
Between 75 and 90 percent of the claims presented to the
Veterans Administration each year originate in a County
Veteran's Office. Our association focuses on outreach,
standardized training, claims development, and advocacy.
On House Resolution 67, the VA has a responsibility to
reach out and make veterans and their dependents aware of their
entitlements. One of the ways is for the County Veteran Service
Officer to spread the word, to go into the communities with the
message that veterans and their dependents have benefits due
them.
While many counties do fund the County Veteran Service
Office, the vast majority do not provide funding for outreach
or other informational services.
The VA's own report from late 2004 recommended that the
Agency improve its outreach efforts with public service
announcements and other pilot programs.
It is obvious there is great need for outreach in the
veterans' community and the local CVSO is an advocate closest
to the veteran and a widow and with minimal funding could reach
the maximum number of eligible veterans and widows.
Therefore, NACVSO is supporting House Resolution 67
introduced by Congressman McIntyre of North Carolina that would
allow Secretary Nicholson to provide Federal, State, and local
grants and assistance to State and County Veteran Service
Officers to enhance outreach to veterans and their dependents.
We are already present in most communities and stand ready
to assist the Department of Veterans Affairs with this
monumental task.
On House Resolution 1435, the Monday morning report for 7
April 2007, showed 674,000 cases pending in WIPP. The week
ending 9 July 1999, showed 378,000. In eight years, the backlog
in WIPP has increased by more than 269,000 or about nine
percent per year. This trend must be reversed and the time is
now.
The Veterans Benefits Administration did not create this
sizeable backlog by themselves; they had considerable help.
They cannot be expected to solve the problem alone. It will
take this Congress, the VA, the Veteran Service Organizations,
and the State and County Veteran Service Officers to join
together to conquer this problem.
Our Members, County Veteran Service Officers, are present
in 37 of the 50 States and located in over 700 local
communities. This readily available work force represents
approximately 2,400 full-time employees who are available to
partner with the Department of Veterans Affairs. Over 700 of
these CVSOs are accredited with the Department of Veterans
Affairs with many holding accreditations with multiple
organizations.
House Resolution 1435 sponsored by Congressman Baca of
California provides a way for the Department of Veterans
Affairs to enlist the aid of these CVSOs in a pilot program
beginning in five States.
CVSOs through the claimant's power of attorney would fully
develop as many as possible claims passed from the local VA
Regional Office, thereby assisting in reducing the claims
backlog by returning fully developed, ready to rate claims.
The availability of approximately 2,400 trained full-time
CVSOs available to work at the local level developing claims
will free up VA personnel for other tasks. NACVSO supports the
pilot program of House Resolution 1435 and believe that its
success will cause the Secretary of Veterans Affairs to expand
the program in other States.
House Resolution 1444, the backlog of remanded claims
continues to be a problem for the veteran and House Resolution
1444 sponsored by Congressman Hall will address that problem
and we support the discussion of the benefit.
House Resolution 1490, NACVSO supports discussion of House
Resolution 1490 sponsored by Congressman Donnelly that provides
for a presumption of service connected under some certain
claims.
This concludes my comments, and I will be happy to answer
any questions that the Committee may have.
[The statement of Mr. LeValley appears on p. 50.]
Mr. Hall. Thank you, Mr. LeValley.
The Chair will recognize Carl Blake, please.
STATEMENT OF CARL BLAKE
Mr. Blake. Chairman Hall, Ranking Member Lamborn, and
Members of the Subcommittee, on behalf of Paralyzed Veterans of
America, I would like to thank you for the opportunity to
testify today.
Since you already have a copy of my written statement, I
will limit my remarks to House Resolution 1490 and House
Resolution 1444.
PVA does not support the idea of the presumption of service
connectedness for submitting claims proposed by House
Resolution 1490. It will require the VA to adjudicate a new
benefit, the interim award, rather than focusing their
resources on properly completing the initial claim.
If the service connection is reasonably allowable,
regulations provide for a prestabilization rating under 38 CFR,
section 4.28 at a 50- or 100-percent rate for recently returned
veterans. One year later, the veteran is examined and further
evaluated. Unfortunately, this regulation is rarely used.
Even if a veteran thought that they may be asked to pay the
money back to the VA in three or 4 years, some veterans may
still file an unsubstantiated claim. The long and frustrating
process of filing claims for compensation does not discourage
some veterans from filing fraudulent claims. We believe that if
Congress lowers this threshold as this bill would do, the
results would be an overwhelming number of claims filed for
compensation.
I would also like to address two other ideas that are
contained within the bill. The first is that the bill makes a
distinction between veterans who would have served in conflict
and veterans who would not have, thereby creating a class of
service-connected veterans.
The bill outlines that a veteran has to prove some service
in a conflict and I would argue that there are at least as many
if not more veterans who incur a service-connected disability
who never served in a conflict of any kind. So there you are
making a distinction between classes of veterans.
I would also suggest that this bill does not actually do
anything to reduce the backlog of claims. Once a median level
of benefit is awarded, the claim is just set aside. It is not
actually then finalized and put off the table and said it is
done. It is just set aside to be finally and properly
adjudicated at a later date. I would argue that that does not
provide an example of reducing the backlog of claims. That just
perhaps inflates it further.
PVA also opposes House Resolution 1444 because we believe
this legislation would simply add to the workload. The bill
states that if the final decision is not to award benefits, the
amounts paid as interim benefits shall not be considered to be
overpayment for any purpose.
This policy would encourage veterans to once again file
frivolous claims. Furthermore, this would create a potential
enormous cost to the VA if it is forced to pay for claims that
ultimately will be denied.
I would argue that resources can be better used by
improving the system rather than offering free money to
everyone filing a claim regardless of its legitimacy. The
problems in VBA are systemic, they are cultural. There are
numbers of problems. And I do not see this as being the fix.
In the end, we believe that many of the problems in the
Veterans Benefits Administration are centered on proper
training and accountability. Without uniform training across
all of VBA on the standards established in regulations,
problems will continue to arise and the claims backlog will
continue to grow.
Furthermore, it is absolutely essential that VBA personnel
at all levels be held accountable not only for their own
actions but for the actions of their subordinates. Although we
continue to advocate for adequate resources and additional
staff, these steps will not go far enough if training and
accountability are not a major component.
Similarly, we recognize that Veteran Service Organizations,
our own personal staff, have a commensurate obligation to
properly train and supervise.
PVA certainly looks forward to working with the
Subcommittee and all of Congress to find workable solutions to
what has become a national problem for current veterans and new
veterans returning from Iraq and Afghanistan. However, we must
ensure that a short-term fix does not become a longer term
problem in VBA.
Thank you again for allowing me to testify, and I would be
happy to answer any questions that you might have.
[The statement of Mr. Blake appears on p. 52.]
Mr. Hall. Thank you very much, Mr. Blake.
Mr. Manar.
STATEMENT OF GERALD T. MANAR
Mr. Manar. Good afternoon. Mr. Chairman, Ranking Member,
and Members of the Subcommittee, on behalf of the 2.4 million
Members of the Veterans of Foreign Wars of the United States
and our auxiliaries, I would like to thank you for the
opportunity to present our views on today's legislation.
Mr. Chairman, I ask that my written testimony be entered
into the record.
These bills have a common resounding theme, that those who
authored and sponsored this legislation care deeply for
veterans, understanding that the current systems are not
serving them well, and want to do something to make it right
for those who have served our Nation in both peace and war.
We share your concerns and frustrations. While we support
House Resolution 67, we cannot support House Resolution 1435,
1444, and 1490 because it is our belief that each of these
bills contains serious flaws which would, if enacted, harm
veterans and the VA compensation program which has served them
and our Nation exceedingly well over most of the past 75 years.
House Resolution 1435 directs the Secretary to conduct an
experiment that would shift most of the claims development
burden from VA to County Veteran Service Officers in five
States. Problems with this bill extend through almost every
section and subsection, and it is outlined in our written
testimony.
However, there are two things about this bill we would like
to emphasize. This bill elevates County Veteran Service
Officers to a superior status by conferring on them the legal
right to develop any claim they receive from VA or directly
from a claimant regardless of whether the claimant has selected
them as their power of attorney. This puts every other service
organization at a disadvantage to CVSOs and not subtly tells
veterans that representation by the American Legion, the
Disabled American Veterans, the Paralyzed Veterans of America,
the Veterans of Foreign Wars and others is not as good as that
provided by CVSOs.
From 1986 to 1996, I ran the Claims Adjudication Division
in the VA's Los Angeles Regional Office. I managed over 150
employees whose responsibility it was to process the nearly
100,000 claims we received annually from the 1.3 million
veterans and their dependents in the Los Angeles area. We
routinely provided training to the California CVSOs.
I can state without reservation that the best of those
CVSOs were very good indeed. However, I can also state that
those accredited service officers of the DAV the American
Legion, the PVA, and the VFW who worked in the LA Regional
Office were just as good and often better in their
understanding of what VA needed in order to process a claim.
Further, transferring claims to the CVSOs for development
would in our opinion extend the time it takes to complete
development, cause the VA extraordinary problems in tracking
its workload, reduce the control VA has over effecting timely
development, and offer VA managers an excuse for failing to
timely process claims.
House Resolution 1444 directs the Secretary to make interim
payments to those who have had remands pending longer than 6
months. In fiscal year 2006, the Board of Veterans Appeals
remanded 32 percent of its workload to the VA's Appeals
Management Center for additional development. While it is true
that additional development sometimes produces the evidence
necessary to grant the benefit sought on appeal, in reality VA
grants service connection or additional benefits in only 17
percent of the cases it processes through the Appeals
Management Center.
This means that under this bill, 83 percent of the people
who would receive a $500 monthly payment for an average of 18
months are those whose claims are going to be legally and
finally denied anyway.
Further, the availability of a $500 monthly benefit will
cause everyone who appeals to the Board of Veterans Appeals to
seek a remand rather than a decision. This is usually
accomplished simply by suggesting that the claimant's
disability has worsened or a medical opinion is required. If
this bill is enacted, appeals will skyrocket and the VA
backlogs will grow even larger.
We believe this money would be much better utilized by
creating a second Appeals Management Center away from
Washington to help process these remands more timely and reduce
the backlog.
Finally, House Resolution 1490 would provide a presumption
of service connection for certain claims. We believe that this
legislation is based on a false premise that VA approves 87
percent of the claims submitted by veterans.
Unlike Social Security disability insurance which requires
a single up or down decision, VA must decide every claimed
condition. The average original application now lists eight or
nine conditions and it is not unusual for veterans to claim
service connection for 15 or 20.
In 2005, 49 percent of the 160,352 veterans found by VA to
be entitled to service connection for something were awarded a
combined evaluation of zero, ten, or twenty percent. What this
means is that 49 percent of veterans who received favorable
decisions from VA received $225 or less each month.
Yet, this legislation, if enacted, would grant service
connection for virtually any condition claimed by a veteran and
grant him or her a median level of compensation. And the only
quality check would be a random sampling to deter fraud.
Further, it would not be surprising that 80 to 90 percent
of the 200,000 men and women discharged from active duty each
year would apply for compensation. And with no significant
criteria governing the grant of service connection, most would
receive a median level of compensation.
Mr. Chairman, the VFW does not support these three bills.
While well intended, each would aggravate the backlog of claims
pending at VA.
It is our belief that the compensation program administered
by VA is basically sound. It is our belief that budgets passed
on time with adequate funding, accountability of VA managers
and congressional oversight will resolve the problems at VA.
Congress needs to recognize that this backlog problem took
years to create and it will take years to resolve.
Thank you for this opportunity to testify. I will be happy
to respond to any questions you may have.
[The statement of Mr. Manar appears on p. 54.]
Mr. Hall. Thank you, Mr. Manar.
The Chair will now recognize Mr. Kabatchnick.
STATEMENT OF CRAIG M. KABATCHNICK
Mr. Kabatchnick. Good afternoon, Chairman Hall,
distinguished panel Members, honored guests. I am Craig
Kabatchnick. I'm the supervising attorney, law professor at the
Veterans Law Project, the Prototype Clinic operating at North
Carolina Central University School of Law in Durham, North
Carolina.
I am really honored to have this opportunity to offer input
today to the Subcommittee members on the proposed legislation
being considered.
As to House Resolution 1435, while the VA says that the
backlog is due to the increased complexity of claims, it is my
opinion that the primary cause of the backlog of cases at the
VA Regional Office level is due to hiring of inexperienced
employees without the requisite medical and legal backgrounds,
heavy caseloads, inefficient structure and operations at the
VA, including the hiring and training of personnel, especially
at the rating board level, as well as a heavy reliance on
quantity at the expense of quality.
As it stands today, the bill 1435 will not be effective to
reduce the backlog it seeks to address. The bill states that
there are 2,400 County Veteran Service Officers nationwide in
37 of 50 States. Dividing up the backlog places an average of
300 to 400 cases on each County Veteran Service Officer who may
not be equipped or willing to handle a fraction of that load.
Furthermore, the bill's reliance on County Veteran Service
Officers would be ineffective in resolving the burden of
backlog where County Veteran Service Officers are generally not
trained in legal or medical issues. Sometimes they are not even
veterans.
We recommend the bill be modified as follows: One, increase
funding to provide adequate resources and train personnel for
the Department of Veterans Affairs at the Regional Office
level, particularly at the rating board level.
Two, place officials with VA legal experience or otherwise
in ranking positions in each of the 54 Regional Offices almost
like Inspector Generals who could sense the gridlock and
allocate resource appropriately.
Regarding House Resolution 67, we agree all levels of
government and VSOs share responsibility to reach out to
military families and make them aware of their entitlements.
However, there is the inherent risk funds would be diverted
from existing outreach programs.
States already funding outreach programs will be tempted to
discontinue funding them because of the new source of Federal
funding. Most important we do not need to do outreach which
simply sends people to a system that is currently in gridlock.
As to House Resolution 1490, we fully support this proposed
legislation. We favor the presumption of service connection for
certain claims because it shifts the burden of proof away from
the veteran and onto the government.
Currently it takes three to 5 years at a minimum to
adjudicate a claim from filing of initial claim to a final
decision by the Board of Veterans Appeals, up to 9 years if
there is an appeal to the Court of Appeals for Veterans Claims.
The Department is often hostile and adversarial to
veterans' claims and routinely ignores evidence favorable to
the veteran including statements from physicians who have
treated the veteran over a long period of time, instead giving
greater weight to the statements of their own in-house doctors
who have only performed a cursory examination of the veterans
or who have done just a brief review of the medical records.
Placing the burden of proof on the government rather than
the veteran is fair and equitable because of the disparity in
resources between the veteran who is usually under-represented
and the Department of Veterans Affairs, a situation analogous
to David and Goliath.
We also fully support House Resolution 1444. The provision
for interim benefits payment, it is fully needed and
appropriate. It will force the Department of Veterans Affairs
to expedite action when there is a remand from either the Board
of Veterans Appeals or the Court of Appeals for Veterans
Claims.
We like the proposed provision that interim benefits are
considered to be an advanced payment of benefits owed for any
period before the date of a favorable final decision. However,
we feel that the period of time, 180 days proposed for the VA
to make a decision on the matter prior to paying is too long
and it is going to lead to further delay. We feel that 30 days
is more appropriate. We also support the provision for
automatic forgiveness.
I really appreciate the opportunity to appear before you
today, and I would be happy to respond to any questions. Thank
you.
[The statement of Mr. Kabatchnick appears on p. 58.]
Mr. Hall. Thank you, Mr. Kabatchnick.
The Chair will now recognize Mr. Chisholm.
STATEMENT OF ROBERT VINCENT CHISHOLM
Mr. Chisholm. Thank you, Mr. Chairman and Members of the
Subcommittee.
I just wanted to make one correction for the record. I'm
the past President of NOVA, I am not the current President of
NOVA.
I would like to focus my attention on House Resolution
1444, sort of giving an outline of why this bill is necessary.
This is clearly an idea whose time has come, the need for a
remedy for delay.
As Mr. Kabatchnick just told you, and it is true, that if
you file a claim, it takes anywhere from three to 5 years to
get a final board decision. That is the last step in the
administrative process before one goes to court.
The following statistics show the number of cases actually
remanded by the board annually. Forty-two percent were remanded
in 2003, 56 percent in 2004, 38 percent in 2005, and 32
percent.
When a veteran receives a final decision from the board,
they have the right to appeal to the United States Court of
Appeals for Veterans Claims. Since 1988 when the court was
created, an average of 60 to 65 percent of those veterans get
remands back to the board because of some error committed by
the agency. And that takes another two to 3 years to run the
claim through the court system.
In 1994, Congress passed the ``Veterans Benefit Improvement
Act.'' In section 302 of that Act, entitled veterans who
received remands from court to the board or from board to the
Regional Office to expeditious treatment.
Unfortunately, expeditious treatment has been effectively
rendered meaningless because there is no enforcement mechanism
for this expeditious treatment. What most veterans receive is
delay at two critical junctures, first when the case is
remanded from the court to the board and second when the board
remands the case back either to the Appeals Management Center
or the RO. And it is really in the latter situation on remands
from the board to the AMC or to the Regional Office where there
is a lot of delay.
Under this system as it currently exists, the only people
who have deadlines are the veterans. The Secretary has no
deadline to do anything in this system. This bill, 1444, would
put the onus on the Secretary for the first time to do within a
required timeframe or would have to start paying the veteran
interim benefits. And NOVA fully supports that.
We raise two concerns. The first concern is that for some
disabilities, like tinnitus, the maximum rating under the VA
schedule is 10 percent, which equals presently $115 per month.
If a veteran files a claim for disability benefits for a
condition where the maximum rating is under the $500 per month,
this could have some iunintended negative consequences. And I
think you should look at that specific issue.
The other issue is what if multiple conditions are filed by
the veteran and, let us say, service connection for
posttraumatic stress disorder and someone has cancer that they
are alleging is caused by their service, is it $500 per claim
or is it $500 per veteran? I think that is an issue that the
Committee should also explore.
Finally, someone suggested that the practical effect of
this bill would be for the VA just to deny the claims outright
as the 180-day time limit approaches. To prevent this from
happening, Congress should define final decision as finally
decided as the point in time when the veteran has exhausted
appeals.
As for House Resolution 1490, the presumption of service
connectedness, this bill, if enacted, would represent a
fundamental change in the way VA does business and we fully
support the ideas behind this bill because the delays being
caused by the VA right now are terrible for these veterans
returning from the wars.
I see my time is running out. And the last thing I would
like to just say is on House Resolution 67. Outreach is
critical to veterans. I receive calls all the time from
veterans that are asking for my representation. They say, Mr.
Chisholm, why can't my claim go back to the date of discharge
from service.
A veteran called me recently, a Vietnam discharged veteran,
whose claim was only effective when he first filed in 2002, his
claim for psychiatric disability, notwithstanding the fact that
he was discharged from the service for psychiatric disability.
He said why can't my claim go all the way.
We need to reach out to these veterans like this, inform
them of the benefits that are available for them. And NOVA
fully supports House Resolution 67.
Thank you for letting me testify here today, and if you
have any questions, I would be glad to answer them.
[The statement of Mr. Chisholm appears on p. 63.]
Mr. Hall. Thank you, Mr. Chisholm.
I do have a question for you and Mr. Kabatchnick based on
one or both of your remarks here, which has to do with, under
the House Resolution 1445, the legislation of which I am the
sponsor, with the 180-day period after remanding a claim, do
you think that time should be shortened? I mean, if this were
to become law.
Mr. Kabatchnick. Are you asking me?
Mr. Hall. Yes.
Mr. Kabatchnick. Thank you, Chairman Hall.
It is my feeling that the time needs to be shortened. I
have had experience working at the VA both in their general
counsel's office and now I have been on the other side
representing veterans.
And the time that it takes to remand a case is way too
long, and I think that 180 days is too much time to give the VA
for a remand that needs to be shortened. I said 30 days, but
any time would be time well spent for the veteran.
Mr. Hall. Thank you.
And, Mr. Chisholm, you made a comment on H.R. 1444. One of
your comments was relating to a disability rating such as
tinnitus which would bring in, if it is approved, $115 per
month presently.
So would you recommend then that the language be changed so
that rather than a median for those disabilities that are
applied which carry a lower compensation that we give in the
case of tinnitus, for instance, the maximum per month or should
we give, you know----
Mr. Chisholm. I think that would be fair, yes, under that
circumstance, so the most that veteran could get for that
specific claim. That would be a concern.
And I would also like to address the question about the 180
days, if I could, as well.
Mr. Hall. Please.
Mr. Chisholm. The practical reality is when the court
remands a case to the board, the first thing the board is
required to do on the remanded case from court is give the
veteran 90 days to submit further evidence at that point. So
that time line is already built into the system. So in my
opinion, the 180 days gives the veteran the time to submit
additional evidence and time for the VA to adjudicate it. So I
would recommend keeping the 180-day time, at least for cases
remanded from court to the board.
And the other issue is when cases are remanded from board
to the Regional Office, there are specific instructions given
to the Regional Office to get further evidence and request
Social Security records, request medical records, and that can
be time consuming for the VA to get those records back in. And
so the 180-day timeframe seems to me to be a reasonable amount
for that reason.
Mr. Hall. Thank you.
And, Mr. Blake, would you please expand upon your written
testimony, on page six, regarding a prestabilization rating?
Have you seen that used and how do you think we can encourage
the VA to use that prestabilization rating more often?
Mr. Blake. Well, I will be the first to admit that I am not
the subject matter expert. I kind of took a lot of this
information from dealing with our general counsel's office and
our benefit staff.
I probably could not offer any more on that suggestion than
to say that from the perspective of our people in the field, it
is something that rarely if ever gets used and, yet, it is in
regulations. I think it is a case of there are lot of things
that are in the VA regulations with regards to the claims
process that get overlooked or just never get used.
I would be happy to take that question as a written
question for the record and probably provide a lot more
feedback on it.
Mr. Hall. That would be great. And if any of our other
panelists, Mr. Manar, do you have a comment on that?
Mr. Manar. I have not read his statement. However, if you
are referring to a prestabilization range for servicemembers
who are being discharged from service or new veterans who have
just been discharged from service, VA regulations allow under
4.28 of regulations, Title 38, that VA may award either a 50
percent or a 100 percent evaluation for up to a year if the
review of the veteran's injuries or disabilities indicate that
they are not stabilized yet. They have not settled down so that
you can assign a more permanent evaluation to them.
Some offices use this paragraph fairly liberally. Others do
not. I think it is a question of training and education of VA
rating specialists to ensure that they are aware of it and
encouraged to utilize it.
Mr. Hall. Thank you.
Mr. LeValley, you looked like you wanted to say something.
Mr. LeValley. Oh, no. I was just listening intently there.
Mr. Hall. Okay. Great.
My time is expired. I would like to recognize my Ranking
Member, Congressman Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman.
Several short questions. Mr. Blake, do you believe that the
percent of cases that are either fraudulent or just unjustified
for whatever reason would go up if there is a presumed
eligibility for what would be a lifetime benefit?
Mr. Blake. I would think that is a reasonable expectation.
I mean, just as kind of an anecdote, when we reviewed this
legislation, a number of people in the office came to me and
said it would be a great opportunity for me to file a claim who
had never filed a claim.
You know, and to go to the question about shifting the
burden of proof, I think these bills are a case of we are
encouraging fraudulent claims further and, yet, now we are
going to shift the burden onto the VA to prove that this
greater number of veterans who would likely file a fraudulent
claim have to now decide if they were doing it for the wrong
reason.
And I think that you would find that the burden of proof
for fraud is extremely high. So the VA would have a very
difficult time ever proving that any of these cases are
fraudulent and, yet, I think this is the perfect way to promote
that.
Mr. Lamborn. Okay. Thank you.
Mr. Manar, doesn't the current system allow for a
retroactive payment to be made back to the time that the claim
is filed which, although not completely, alleviating the
hardship of the long waiting periods, but at least doesn't that
make up for some of the hardship?
Mr. Manar. Absolutely. If a claim is filed within a year of
discharge, the initial evaluations will almost always go back
to the day after discharge from service. There are occasions
when a disability does not appear in service, but it is a
presumptive condition and appears within the presumption
period, usually a year after service, where the effective date
might be less than the full retroactive period because benefits
would be awarded from the date that the disability was first
diagnosed or first appeared which would be sometime after
discharge. But generally speaking it is always back to either
the date of claim or if it is filed within the first year, the
day after discharge from service.
Mr. Lamborn. Okay. Thank you.
Mr. Blake. Mr. Lamborn, I would also remind the
Subcommittee that just, I believe, two years ago, Congress
enacted legislation recognizing that there is a significant
financial burden placed on particularly the new OIF and OEF
veterans and for the severely disabled enacted legislation that
provides an additional monetary benefit, at least for the most
severely injured, to offset their hardships that they
experience.
Now, that does not necessarily address the problems of
veterans with lesser disability. I think we all recognize the
problem, but the solutions are not as simple as what appears to
be here in black and white.
Mr. Lamborn. Thank you.
And my last question, Mr. LeValley----
Mr. LeValley. Yes, sir.
Mr. Lamborn. --in your experience, could properly trained
State and municipal government Veteran Service Officers also
fully develop claims if they had full access to the veteran's
records?
Mr. LeValley. Well, I believe so, sir. That is their job is
to assist veterans in filing claims. I have been doing this for
18 years. Most of us develop the claim to the best of our
ability in the short period of time we have. We sit across the
desk from a veteran every day.
I may see six veterans today. I may see a dozen and a half
tomorrow assisting them in their claims. We gather the medical
evidence to the best of our ability from the local doctors and
hospitals. It is submitted to the VA. And our intent with this
legislation, and we have been talking about the backlog and
development of these claims for several years, as the VA is
reviewing the claim, if they find something in there that maybe
we did not provide or they see something else that they need,
it would be quicker for us to be able to go get this evidence
by going through the power of attorney to us, to the veteran to
us and let us get with the veteran and go to that doctor or to
that hospital to get that evidence to get it to the VA instead
of sending out another release to the veteran to sign, to send
back to the VA, to send to the doctor or the hospital and get
the information back.
We can provide that information quicker. State and County
Veteran Service Officers, there are some municipal service--as
long as they are trained, accredited, and meet the requirements
of the VA to do this, yes, I do not see why they could not do
that.
Mr. Lamborn. Okay. Thank you.
And, Mr. Chairman, I yield back.
Mr. Hall. Thank you, Mr. Lamborn.
It is interesting because we are all here looking for the
same result and, as we have heard, opinions differ about how to
get there, but that is why we are having hearings.
The Chair will now recognize Congressman Hare.
Mr. Hare. Thank you, Mr. Chairman.
Mr. Hall. Your microphone is not working either.
Mr. Hare. How about that?
Mr. Hall. No. We will do some work on the sound system
before the next hearing.
Mr. Hare. How about this one?
Mr. Hall. No.
Mr. Hare. How about this? Thank you, Mr. Chairman.
Let me just say first of all before I ask a question, I
want to ask it of the whole panel, I really commend all of you
and the organizations for what you do to help our veterans out.
Let me just grab my note though. I believe I am
paraphrasing Mr. Manar when he said that this problem took
years to develop and is going to take years to solve.
I would suggest that I do not know that we have years for a
lot of folks. As you probably heard before, we have a lot of
veterans that are dying before they get the help that they were
entitled. And that is very troublesome to me.
And I know we all, as the Chairman said, want to solve this
problem as quickly as we can. And just from a matter of
fairness to our veterans, and maybe this is for just everybody
here, and it is too bad we only have 5 minutes to talk about
this, shouldn't the burden really be on the VA?
I mean, the presumption when we say that this is going to
lead to more fraudulent claims is saying that we perhaps do not
trust our veterans to do the right thing when, in essence, I
know that every Federal program there are people that will try
to take advantage of something, but when you look at the
sacrifices these men and women have made, it would seem to me
that legislation that we enact, we want to get these claims
processed as quickly as we can and get those folks the help
that they so desperately need. Shouldn't the burden of proof be
on the VA and are we maybe looking at this that the passage of
these bills may lead to more fraudulent claims being filed? And
while that may happen, I do not know that it will or would not,
you know, if we do not do this, what are we going to do to
alleviate this backlog that has taken years to develop because
for many of our veterans, with all due respect, they do not
have years left to solve it?
I would be interested in your perspective why shouldn't we
expect the Department of Veterans Affairs to play a larger role
in this and the veterans are having enough problems as it is?
And I am not one that subscribes to the fact, with all due
respect, Mr. Blake, that this legislation will cause more
people to try to pick up a quick buck. I trust our veterans to
do what is right. Now, granted, not everybody on this planet is
honest, I understand. But, you know, I think we want more
people if they have claims to not be discouraged and to file
them.
So I would be interested to get from the panel your
perspective on shouldn't we err on the side of the veterans and
not so much be worried about what the VA thinks or does not
think?
Mr. Manar. Sir, since you started off by mentioning some of
my testimony, I would like to address some of these issues.
First of all, the idea that the veterans are waiting years
and years and years for decisions from the VA is flatly
erroneous. The initial decision on average on an original claim
we are told is about 6 months. They have a decision. They may
be unsatisfied with certain parts of the decision and so they
appeal, but they have a decision.
In fact, the routine case that gets all the way to the
Board of Veterans Appeals may have four, five, six, or ten
decisions along the way from a qualified rating specialist
looking at them before it gets to the Board of Veterans
Appeals.
Mr. Hare. Well, reclaiming my time for just a second, does
that appeal then if they are denied--I mean, as I said earlier,
I was at a Marine Corps League and I heard a lot of the people
there saying this takes two to 3 years to get through this
process. And I mean, that sounds to me like it is more than
just a few months.
Mr. Manar. It does take a long time to get through the
process if you are appealing decisions. Many veterans who
receive decisions from the VA who walk away at that point, feel
either fully satisfied or accepting at least of what the VA
decisions are.
Many others appeal, as we know, and the appeal process can
take quite a long time. Unlike the civilian appellate process,
veterans can submit and continue submitting evidence throughout
the entire process. New examinations are requested either by
the claimant or the appellant or by the VA. Medical opinions
are solicited. There are lots of additional development that
takes place through the entire process.
This is what extends the delays in all of this. Why is a
case remanded? Because either the VA did not dot all the
``I's'' and cross all the ``T's'' of development or the
veterans alleges there is an additional piece of evidence out
there.
The system that Congress created bends over backward in
favor of veterans. But a lot of people do not understand just
how complex and complicated it is because of this very nature.
The appeals process does not finally end until either the 120-
day period after a board decision passes and the veteran can no
longer appeal to the Court of Appeals for Veterans Claims.
The burden, shifting the burden to the government. Right
now the standard of proof that a veterans has to provide in
order to win his case to get service connection or increased
evaluation is not a preponderance of the evidence. It is a
balance of the evidence. The evidence has to be in relative
equipoise. The tie goes to the runner as a judge said in a
decision early in the history of the Court of Appeals for
Veterans Claims. So the burden already is a lot lessened on
veterans than it would be if they were suing in a court of law.
There are other things here, but I should let my fellow
panelists take some of the time.
Mr. Hall. There is no more time. But thank you all. We are
going to actually allow Congressman Rodriguez to have 5 minutes
before we let you go.
Congressman Rodriguez.
Mr. Rodriguez. Thank you very much. And is this on?
Mr. Hall. That does not work either. After we get the
backlog reduced, we will get our microphones fixed.
Mr. Rodriguez. Thank you very much.
I just went through my district, and had some meetings with
veterans in Fort Stockton, and San Antonio and everywhere I go,
I not only sense, but I hear the frustration.
Mr. Manar, I heard you say that the system was, and correct
me I do not want to misquote you, but I thought you said that
the system was basically sound; is that correct?
Mr. Manar. I said the underlying system is sound. If I may
have a moment. I worked for the Veterans Administration, the
Department of Veterans Affairs from 1974 to 2004. When I
started in 1974, I believe that there were 19 or 20,000
employees in what is now the Veterans Benefits Administration
handling claims in the Regional Office.
I am not sure of the exact number today, but I believe it
is around 14,000. We are looking at five or six thousand fewer
employees when the workload, to the best of my knowledge, has
never been higher.
Mr. Rodriguez. So we have come down on the number. And what
about the claims in terms of the fact that we might not have
the qualified staff and then we continue to send to people that
are not doing a good job or not doing the job? Do you just feel
that we just increase the number of staff that that will
correct itself?
Mr. Manar. When I said that is has taken years for VA to
get into this position, it is going to take years to get out,
what the rest of my testimony was except for time limitations
would have been is that the Congress and the various
administrations for the last 20 years, Republican and Democrat,
it does not matter, have effectively held down the budget for
the VA.
Mr. Rodriguez. Yes. And I agree.
Mr. Manar. And as a consequence, the staffing in the
Regional Offices fell over many years. Now, it has been growing
in the last 6 years. We certainly have to give the Congresses
before us, before this one and the current Administration kudos
for increasing the VA budget effectively each year.
But more than that, it is not enough because we are playing
catch-up. What the VA needs to do is to get additional staffing
in place to----
Mr. Rodriguez. And I agree totally with what you said, but
I spent 8 years on this Committee and I left, I came back.
Things are worse.
Mr. Manar. Yes, they are.
Mr. Rodriguez. And, at this point in time, just like they
are, we are fed up. And so somehow we have to jumpstart the
thing. And if it requires some of those efforts at educating,
and nothing was more frustrating than to hear people out there
telling and sending out letters from the previous Secretary
Principi where the Vietnam veterans had to sue, and not to
educate veterans about the benefits and services that are out
there. I mean, I do not know who in his right mind does that
kind of stuff.
And so the only thing I see is that we have to jumpstart
this thing and unless we pressure, you know, I do not see any
other way; otherwise, it will be 8 years, and I will not be
here that long for sure, and we will be still talking about the
same thing.
Mr. Manar. I do not believe that we will be talking about
the same things in four, five, or 6 years. Right now there are
a lot of people being trained, that have been hired in the last
couple of years that are being trained. It takes years to
effectively train these rating specialists and claims
examiners. But a lot of people are in the pipeline and they are
beginning to be effective in their positions.
What the VA needs to do on its own is to do its very best
to retain the more senior staff that it has. They have done
some of this by bringing some back as rehired annuitants, but
they need to keep the people they have however they can do it
and focus on this.
Any quick fix in our view, any quick fix that Congress
proposes here will either create additional backlogs,
bottlenecks in other places, or essentially break this program
which until very recently has been----
Mr. Rodriguez. You do not see that as a jumpstart in terms
of assistance, because I see that right now the system has the
backlog, they need a jumpstart, and they need all the help they
can get from outside groups, including maybe the possibility of
getting all the veterans' organizations from the VFW through
the American Legions to possibly participate in those programs
in terms of providing that information and that access to some
of our veterans out there, especially those areas that are
rural and I have probably one of the districts that is the most
rural and one of the biggest in the country, that a lot of my
veterans do not have access to.
And I notice that I ran out of time. Thank you.
Mr. Blake. Mr. Rodriguez, if I may real quick, I would just
say that I do not see the last two bills in particular as
jumpstarting the fix for the problem of VBA. It certainly
addresses the frustrations and concerns of the veterans and
trying to meet their needs. But it does not in any way begin to
address the actual problems that exist within the systemic
structure, the culture of VBA itself. We are just providing a
benefit to veterans to appease veterans without actually fixing
the problem. So we just continue to let this problem, the
problem itself with VBA go on and on and on with this band-aid
that is now on a sucking chest wound holding this problem back
until at such time we decide to create another quick fix.
Mr. Hall. Thank you, Congressman.
And thank you to our panel.
I would just say before you go that we may be seeing only a
small part of the picture at home. I know that I just recently
had a veteran in my district come to our office with a
diagnosis that was originally done in 2002 for, he is a Vietnam
vet, prostate cancer diagnosed in 2002.
He fortunately had, he and his wife had, the financial
resources to undergo chemo and radiation and whatever treatment
was necessary, but it was not until last month that--
fortunately I am blessed with a caseworker who got on the stick
and he had already been doing all these things and trying, you
know, not an unintelligent man, and he and his wife had been
trying to work the system.
I do not know all the details of the story except that
within a few weeks of our office getting involved, we got him
$19,000 of back compensation and quadrupled his monthly living
subsidy. So maybe that is just a rare example.
But I am hearing, as are a number of other Members, I am
hearing from people who contend that it is more widespread and
that that sort of delay, however we do it, I mean, maybe some
of this legislation is well intentioned and misguided, but I
think that there is a strong feeling on the Subcommittee and I
think the full Committee as well that we want to try to do
something so it is not going to be years to get out of this
six-digit backlog.
And I also think we are just beginning to see the leading
edge of the OIF/OEF returnees and they have not yet en masse
left DoD and entered the purview of the VA. And when that
happens, I think we better be ready for it.
So thank you again, all of you, and we really appreciate
your testimony and your work and service on behalf of our
veterans. Thank you for your testimony.
And we will call our third panel, Mr. Ronald R. Aument,
Deputy Under Secretary for Benefits of the Department of
Veterans Affairs, and Deputy General Counsel, John H. Thompson,
from the Department of Veterans Affairs. Thank you both for
joining us.
Mr. Aument, do I have the correct pronunciation of your
name?
Mr. Aument. Yes.
Mr. Hall. Okay. Well, in that case, you are first.
Mr. Aument. Is this on?
Mr. Hall. Would you like to start us off, please.
STATEMENT OF RONALD R. AUMENT, DEPUTY UNDER SECRETARY FOR
BENEFITS, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF
VETERANS AFFAIRS; ACCOMPANIED BY JOHN H. THOMPSON, DEPUTY
COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. Aument. Thank you, Mr. Chairman.
Mr. Chairman, Ranking Member Lamborn, and Members of the
Subcommittee, thank you for the opportunity to testify on the
four bills under consideration today.
I am pleased to be accompanied today by Mr. Jack Thompson,
Deputy General Counsel for VA.
House Resolution 67, the ``Veterans Outreach Improvement
Act of 2007,'' would authorize VA to make grants to State
veterans' agencies for the purposes of carrying out and
improving VA benefits, outreach, and assistance.
Although VA supports the goal of improving outreach, we
believe that in light of legislative changes made by the
Congress last year and recent VA initiated changes in outreach
coordination, Congress should allow VA to implement and assess
these changes before taking additional measures.
We also believe that while this legislation is well
intended, the requirement to condition grants to State
veterans' agencies in locations with large or growing veterans'
populations would not provide VA sufficient flexibility to
reach other deserving veterans' populations such as in rural or
smaller communities where we are less well represented.
We understand the impatience and frustrations of the
Congress with our inability to make more rapid improvements in
claims processing timeliness. However, we do not believe that
the other three bills, House Resolution 1435, House Resolution
1444, and House Resolution 1490, accomplish their intended
purposes of improving decision timeliness. In fact, these bills
could result in unintended consequences that would have the
opposite effect on our system.
While we attempted to cost each of these bills in good
faith, we had difficulty in developing valid and reliable cost
estimates because of the uncertainty of some of the provisions.
House Resolution 1435, the ``Department of Veterans Affairs
Claims Backlog Reduction Act of 2007,'' would require VA to
conduct a 3-year pilot program in California, Florida, Ohio,
South Carolina, and Texas. Claims identified by VA as needing
further development would be referred to a County Veteran
Service Officer for further development and transmitted back to
VA in ready to rate condition.
As you are aware, veteran service representatives at the
county, State, and national levels today perform a vital role
in assisting veterans in preparing and submitting their claims.
In fact, developing evidence to the point that claims are ready
to be rated by VA is already one of the main responsibilities
of these claims representatives. However, we believe this bill
goes too far in turning county representatives into paid agents
of VA.
We are also concerned that the pilot program may adversely
affect VBA's workload. Currently nearly 20 percent of VBA's
adjudication workload is from the five States chosen in the
bill to participate in the pilot program. If unforeseen
problems arise during the course of the pilot programs, claims
processing could be significantly disrupted.
We are also concerned that the bill may conflict with
representation agreements entered into between claimants and
their duly appointed claims representatives including
attorneys, agents, or Veteran Service Organization
representatives.
House Resolution 1444 would require VA to pay an interim
benefit of $500 per month if a claim for benefits has been
remanded by the U.S. Court of Appeals for Veterans Claims or
the Board of Veterans Appeals if VA does not decide the matter
within 180 days of the date of the remand.
House Resolution 1444's requirement that VA pay interim
benefits and allow claimants to keep them regardless of whether
they are ultimately found to be entitled to the amounts already
paid would create a strong financial inducement to making the
development time last as long as possible.
We believe this bill would also create an incentive to
submit claims of dubious merit, obtain a remand and extend the
claim development process by piecemeal submission of evidence
and multiple requests for extension of deadlines to maximize
the amount of interim benefits payable. It is unlikely to
improve the adjudication timeliness because it does not
alleviate the causes of adjudication delay.
House Resolution 1490 would require VA to presume that a
claimant presenting a claim for benefits with respect to
service-connected disability or death has presented a valid
claim of service connectedness provided that the claimant
supports the claim with proof of service in a conflict and a
description of the nature of the disability, including the
connection to a veteran's service.
House Resolution 1490 would also require VA immediately
upon processing the claim to award benefits at a median level
for the type of disability described in the claim until
appropriate level of benefits is determined. VA would audit a
percentage of claims to uncover and deter fraud.
While VA supports getting benefits into the hands of
deserving claimants as soon as possible, we are concerned that
the presumption of service connection creates an incentive to
file invalid claims, especially when benefits would be paid
without appropriate development.
If the intent is for VA to presume any current disability
of service connection based upon a veteran's statement without
any supporting documentation or verification, then the system
would be ripe for fraud or abuse. The potential for increased
benefit cost is enormous.
In addition, this bill would have major consequences for
the veterans' healthcare system. Any veterans whose disability
compensation claim is presumed valid and who is awarded a
median rating under this provision would be eligible for VA
healthcare. Subject to the existence of an employment handicap,
veterans awarded compensation under the provisions of this bill
may also become eligible for vocational rehabilitation and
employment benefits.
This concludes my statement, Mr. Chairman. I would be happy
to entertain any questions from you or the other Members of the
Subcommittee.
[The statement of Mr. Aument appears on p. 66.]
Mr. Hall. Thank you, sir.
I guess my question would be if you were sitting on this
side of the table what your suggestion would be. I understand
the concerns that you have, that the VA has, and I presume, Mr.
Thompson, you share them.
But, you know, we are looking at whether we need to just
hire X number more processors or what is the answer here to
bringing this number down, because I think there is a consensus
in the House and on this Committee and the public that these
numbers are unacceptable?
I talk to people, not just veterans and their families, but
citizens of my district who have been hearing about this and
reading about it in the paper and they have become aware of the
degree of delay that seems to be systemic right now. They feel
that it is not fair and that it is not what our veterans
deserve. So if not this, what?
Mr. Aument. Well, I believe the central and key strategy
that we are looking at, Mr. Chairman, is developing sufficient
rating capacity to manage the workload that we have today and
what we predict for tomorrow.
The Congress has been, I believe, very supportive and
generous in that regard. As of January 2007 compared to the
January of the year before, we had added 580 additional staff.
And between March and the end of June, we plan on adding 400
more staff to our claims processing staff.
We believe that is the central answer to being able to
provide timely determinations on VA disability claims. Of
course it does require that they be well trained and we do not
do that in a matter of weeks or months. It takes roughly two to
three years to train a claims processor to a journeyman level.
But we have invested substantial resources in developing
those training programs and we believe that is the central
answer to the question.
Mr. Hall. Thank you for that answer.
And I wanted to ask you for your comment on PVA's
testimony. In their written testimony they talk about the
prestabilization rating, 38 CFR, 4.28. Can you explain or
define this term and tell us about how often it is used by the
VA?
Mr. Aument. Yes, I can, sir.
The prestabilization rating is meant, as I believe was
pretty well described here, to apply to those veterans who come
to us seeking compensation, who have disabilities that have not
yet fully stabilized or not yet fully healed.
Today we use that in practice quite often as we are working
with the severely injured servicemembers when we are doing the
case management work for those that are coming through Walter
Reed and the other military treatment facilities to be able to
make sure that we have a rating in place for them as of the day
that they are discharged from the military services.
In that instance, we are able to provide some sort of
rating that addresses their primary, most noticeable
disabilities while we go through further development for those
additional disabilities that they may be claiming subsequent to
their release from military service.
In my view, it is an authority we have under-utilized. If
we are looking backward over the past year, we see that we
probably applied that principal fewer than 500 times. We have
been looking carefully at that and we plan to do some training
to try and encourage greater use of that authority throughout
the field.
Mr. Hall. Thank you.
I recognize Ranking Member Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman.
And, Mr. Aument, although I share your sense that some of
this legislation has some flaws, I also want to say I share the
frustration of my colleagues on the panel here that this
backlog is too large and it is even building. The numbers I
just have seen today show that it is now up to 647,00 and that
has grown since the last report.
And I know you addressed this with the Chairman's question
of a moment ago, but what else can you tell us specifically
that you are doing including dates and time lines and goals?
You say that we are hiring more people. That is good. But
beyond that, what are we doing and then what specifics do you
have in place. What matrix are there so that we can see that
this is working?
Mr. Aument. Some of those steps that we have taken,
Congressman Lamborn, include increasing the amount of overtime
money that we have for fiscal 2007. We shifted resources to add
$4 million overtime funding and we have been giving Regional
Offices a green light as to how they use that work.
We have brought on some rehired annuitants as was suggested
here at the table in the previous panel. We have hired between
50 and 100 rehired annuitants and we have open offers out in
the field to bring those individuals back in to help augment
our rating capacity.
We have put in place some steps to try and encourage
stations to exercise and encourage veterans to waive certain
types of due process, reporting requirements, when we believe
it is unlikely they will produce additional evidence.
We have even encouraged some of our claims developers to
use telephone waiver procedures, to ask veterans who have no
additional information to offer us if we could proceed to
finalize the claim.
We have been working very carefully with the Veterans
Health Administration to increase the use of templated
compensation and pension exam processes.
We found that, if we ask them to use the templates that we
have worked very hard over the last 2 years to develop, we are
going to receive higher quality medical exams, requiring us to
go back for repeat medical exams less frequently.
We have been working with the Reserve components and the
National Guard to put in place more effective agreements to
give us more rapid access to the medical records, particularly
of National Guard and Reservists. We have a better track record
of getting that type of information directly from the active
military services, but we know we have to work much harder with
the Guard and Reserve components.
We have also put in place certain types of resource centers
that serve as safety nets, if you will, for some of our more
challenged stations that are experiencing extreme workload
problems where we cannot staff up quickly enough to help in
that location.
We have two Regional Offices that we call Development
Resource Centers to assist some stations with particular
backlogs and in developing claims. We have in place nine
resource centers throughout the system to help in rating
backlog work.
We have also been trying to work together closely with the
Department's CIO now that some of the responsibility for IT
development has shifted, you know, to the Department's CIO,
trying to put together some placeholders on investments and
future IT investments that are going to result in enhanced
productivity and shorten cycle times for veterans' claims.
Mr. Lamborn. Okay. Thank you.
And those are some good things and I am glad to hear that.
But to be even more specific on your goal to reduce the 180-day
current average to 125 days, how long is it going to take us to
get there?
Mr. Aument. Well, you are probably aware that our 2008
budget includes our projection of bringing down the average
processing time to 145 days. We have not budgeted beyond 2008,
but I would say it is going to be at least another year beyond
2008 before we could be approaching that strategic goal of 125
days.
Mr. Lamborn. Thank you.
Mr. Hall. Thank you, Mr. Lamborn.
Mr. Hare.
Mr. Hare. Just a quick question or two.
You were saying it takes two to 3 years to train the claims
people to get them up to speed. So in that interim you have
more and more people filing for disability and their workload
gets more backed up as you go.
In a perfect world, to solve this problem or to get it up
to speed in terms of the claims people which you said, in your
testimony, I believe, you thought that would be the key thing
to fix this.
How many people does the VA need? How many claims people do
we need to get this done and since it takes that long to get
them up to speed and train them, what do we do in the interim,
in that 2- or 3-year period because it seems to me with the two
theaters that we have going now this is going to get a lot
worse before it is ever going to get better? We are going to
get a lot more people into the system.
So how many people do we really need if, on your Christmas
list, you can say to Congress this is what we need and what do
we do in the meantime during that 2- and 3-year period of time
to be able to help?
I said to the panel before and I meant this in a very nice
way, I did not mean to imply that, they do not trust our
veterans, but it seems to me that after somebody gives every
measure that they have, you know, I am a veteran myself, but,
again, going back to the people in my district and the vets I
talk to, they keep saying why is the proof on us, I mean, why
do we have to go jump through all the hoops, I mean, we are the
ones that gave everything we had for this country and now we
are backlogged up here.
So I am just interested from your perspective on two
things. How many people do we really need to solve this problem
because the numbers are going to get bigger and what do we do
in the interim?
Mr. Aument. I am happy to speak to that, Congressman.
I believe that the budget that we have requested for 2008,
which includes around 450 additional claims processors over and
above the staffing figure for fiscal 2007, when these
individuals were fully trained, represents a work force
sufficient for us to address both pending and projected
workload.
Now, the dilemma is that we do not bring them on instantly
and make them fully productive. And that is part of the reason
why we are over-hiring right now. We are going to be supported
resource-wise by the Department to over-hire this fiscal year
to try and get jumpstarted so that, even though they will not
be fully trained, we will not be bringing on a totally new
staff in the next fiscal year. So I believe that that is
probably a good figure once those people are fully productive.
As to the other issue of what are we doing in the interim,
I do believe, as you suggested, we have got to be looking for
challenging alternatives.
I think, though, that the issue of just paying the claims
as they come in with a presumption that they are service
connected is fraught with a lot of problems. I have heard a lot
of discussion about fraud and I do not really believe that
fraud is the key issue here at all.
I mean, it is my belief that most veterans who bring a
claim to us file that claim in good faith and that there are a
number of issues there without fraudulent intent, that the idea
of actually establishing entitlement is a very difficult thing
to accomplish in all instances.
We have heard the figures thrown out that we approve 88
percent of the claims we receive. That is looking at a very
limited window of cases. Those numbers were extracted from some
of the statistics we reported on the Global War on Terrorism,
veterans whose claims we have processed since 2001.
As was suggested here, that does not mean that everything
that they claimed was approved. That only means that at least
something within each of those veteran's claims was awarded
positively on behalf of the veteran.
And, again, today the average veteran coming through our
benefits delivery at discharge program, new veterans coming
into the system are claiming on average ten disabilities per
claim. And the approval rate is nowhere near that.
So there are many of them that believe they have
disabilities that are being claimed in good faith, not
fraudulently, but service-connection will not be ultimately
established.
Mr. Hare. I was just glad to hear your comment about your
belief that most veterans, the vast numbers of veterans that
file for disability, are filing with the best of intent and
that they truly believe that they have a claim. So I am glad to
hear you say that.
Thank you.
Mr. Hall. Thank you, gentlemen, for taking your time and
being so patient. Thank you to everybody who came here. Thanks
to the Members of the Committee, Mr. Lamborn, Mr. Hare, Mr.
Rodriguez, and our wonderful staff, and this hearing is now
adjourned.
[Whereupon, at 2:47 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of the Honorable John J. Hall, Chairman,
Subcommittee on Disability Assistance and Memorial Affairs
As most know, there are problems with the VA claims process. And, I
want to say at the onset that some of the problems associated with the
process are beyond the control of the VA and the product of our on-
going wars in Iraq and Afghanistan.
Having said that, I must acknowledge that there is a growing claims
backlog that has gone from 465,623 in 2004 to 525,270 in 2005 to
604,380 in 2006 to 647,857 in 2007. Not surprisingly, this backlog has
resulted in increased waiting periods for claims to be processed. At
last count, the VA took an average of 177 days to process an original
claim and an average of 657 days to process an appeal.
Just last week, the Washington Post printed an article entitled
Delayed Benefits Frustrate Veterans, which I will be submitting for the
record, detailing instances of veterans who literally have died while
waiting for their claims to be processed.
To me, this is evidence of a broken system. Whether you are one of
the few remaining WW I veterans or recently back from OIF/OEF, you
should not have to suffer through extended waiting periods to receive
the benefits you earned by serving our country.
I view today's hearing as an initial step in improving the VA
claims process. In the first panel, we will hear from Members
testifying about their individual bills. Next, we will hear from VSOs
and practitioners in the field about how these bills might work in
practice. Finally, we will receive the opinions from the VA about their
views on the legislation before us today. I look forward to having a
constructive conversation with all of our witnesses.
Before the first panel starts, I want to take a few moments to talk
about H.R. 1444, a bill that I introduced and which is under
consideration at today's hearing.
H.R. 1444, in its simplest terms, requires VA to provide a monthly
stipend to certain veterans who have to wait longer than 180 days for a
decision from the VA on a remanded claim.
To be more precise, if a veterans' benefits appeal is remanded by
the U.S. Court of Appeals for Veterans Claims or the Board of Veterans
Appeals and a decision is not made within 180 days of the remand, the
VA will pay the veteran a monthly stipend until a decision is made.
This stipend will be $500 per month for each person under the claim.
If a final decision is favorable, the amount paid will be
considered part of the back payment due the veteran. If a decision is
unfavorable, the interim benefits shall not be considered an
overpayment of benefits.
Of course, I understand that there may be disagreements with this
bill; however, I believe that the principles behind it, creating
benchmarks, are sound and will go a long way in improving claims
processing.
I believe that as the veterans population continues to age and
disabled veterans return home from Iraq and Afghanistan, we must look
for solutions that go beyond merely adding more claims representatives.
I look forward to hearing what others have to say about H.R. 1444
and the other 3 bills before this Subcommittee.
Prepared Statement of the Honorable Doug Lamborn, Ranking Republican
Member, Subcommittee on Disability Assistance and Memorial Affairs
Thank you Mr. Chairman for recognizing me, and for holding this
hearing.
I am here today to learn about the legislation before us. I look
forward to hearing from our witnesses and my colleagues in the
Subcommittee.
Our first bill, H.R. 67, the Veterans Outreach Improvement Act of
2007 has my full support.
One of the most persistent challenges we face is communicating to
veterans and their families the existence of benefits they may have
earned.
This bill funds outreach by state and local governments, which have
proven capable incubators for effective public policy. Perhaps some of
their innovations could be useful at the Federal level.
This legislation also sends VA a signal that Congress expects
strong and effective outreach to our veterans.
Our second bill, H.R. 1435, the Department of Veterans Affairs
Claims Reduction Act of 2007, could make a big difference in reducing
claims backlog.
This bill would fund a pilot program to allow properly trained
county veteran service officers to develop claims. This
intergovernmental partnering could speed up the adjudication process,
improve accuracy and enhance the linkages between governmental layers
as they serve veterans.
I believe this is good policy. In fact, Mr. Chairman, I would
support including in this pilot state and municipal veteran service
officers.
To ensure that veterans get quality results, I also suggest that
service officers are certified by VA.
This approach has already been tried with considerable success. A
2002 pilot program between the New York State Division of Veterans
Affairs and the Buffalo, New York, VA regional office showed that this
concept could reduce claim development time and improve accuracy; the
concept is sound.
Mr. Chairman, I look forward to hearing more about H.R. 1444 and
1490. I am concerned these bills would create unfortunate and
unintentional consequences but fail to solve the fundamental problems
they ostensibly address.
H.R. 1444 would provide veterans $500 per month if their
compensation and pension claim was remanded by the U.S Court of Appeals
for Veterans Claims or by the Board for Veterans Appeals and it has
been over 180 since the date of the remand.
There is no recoup mechanism for this money if it is determined the
veteran does not qualify to receive it.
H.R. 1490 would give veterans the median amount of compensation for
a claim based on a brief statement of evidence until their claim has
been adjudicated. The bill also directs the Secretary to audit a
percentage of these claims for accuracy and fraud.
Mr. Chairman, I understand that the intent of these bills is to
reduce the backlog. It seems to me that both bills are what could be
called ``frustration legislation,'' written out of sheer and justified
frustration with a broken system.
I suggest it is better to concentrate instead on fixing VBA's
systemic problems within the claims processing system. I believe it is
within our power, working with VA, to do that without making payments
to people who may not have earned them and potentially creating an
incentive for fraud.
Mr. Chairman, part of the problem is one of access for veterans to
VA expertise. Some veterans are simply unaware that they may have
grounds for a claim.
That is why I am proud to announce that today I introduced H.R.
1863.
This bill would require VA to conduct a pilot project that would
provide mobile claims processing stations that would travel within a
given VA regional office's area of responsibility, providing veterans
with outreach, help on their claims, and also collecting feedback for
use in systemic improvements.
Today, I also introduced H.R. 1864.
This is another piece of legislation that could have a significant
impact on the claims backlog. H.R. 0000 authorizes a pilot program for
an automated rules-based system that could improve decisionmaking on
simpler claims issues, freeing up highly trained claims developers and
adjudicators to work tougher issues.
The bill authorizes $5 million per year for 4 years for the
project. It would permit VA to contract for development and implement
the system in not less than two regional offices.
Such a system would address the three major flaws in the current
system: timeliness, consistency, and accuracy. It would not call for
changing the current rating system, but would make decisions with that
system more efficient.
A rating produced in this manner will be less likely to be appealed
and will thus contribute significantly to reducing the backlog.
And that, I think, is what all of us here are truly after.
Mr. Chairman, I yield back.
Statement of the Honorable Mike McIntyre, a Representative in Congress
from the State of North Carolina
Chairman Hall, Ranking Member Lamborn, Members of the Subcommittee,
I am honored and privileged to have the opportunity to testify before
you today about the Veterans Outreach Improvement Act of 2007, H.R. 67.
I have been a long-time supporter of our veterans who have selflessly
served our Nation in the armed forces, and I have introduced this bill
to provide the assistance that veterans, in my district and yours, need
and deserve. This bill was written with the help of the National
Association of Country Veterans Service Officers and enjoys that
organization's support.
The Veterans Outreach Improvement Act would address three important
outreach issues: coordination, local grants, and funding. The bill
would require the Secretary of the Department of Veterans Affairs to
establish a plan to coordinate outreach activities throughout the
department. It would also authorize $25 million annually for 3 years
that would be used to provide grants to state and local governments for
outreach purposes. By empowering veterans service offices on the local
level, we will get more bang for our buck to locate veterans and assist
them in receiving the benefits they deserve.
Coordination
The Veterans Outreach Improvement Act would require the Secretary
of the VA to establish, and annually review, a plan to coordinate
outreach activities within the Department; specifically among the
Office of the Secretary, Office of Public Affairs, Veterans Health
Administration, Veterans Benefit Administration, and National Cemetery
Administration.
Currently, different accredited organizations have trouble
accessing veterans' records. A veterans service office may be unable to
access a veteran's records if that veteran granted Power of Attorney to
another organization even if both organizations are accredited by the
VA. These organizations have begun to establish their own Memorandums
of Understanding in order to share access to records, but this solution
is only a temporary patch for a more substantial problem.
Under this bill, the VA Secretary would create a more fluid system
that would address the access problem. Increased access to records
would benefit veterans directly. Veterans should not have to cross any
additional red tape in order to receive the benefits they have earned.
Outreach Grants
Many veterans, spouses, and surviving spouses are unaware of
benefits to which they are entitled through the VA. According to a
Knight Ridder report, as many as two million poor veterans or their
widows might not be receiving up to $22 billion annually in pensions to
which they are entitled. Other estimates suggest that only 30% of
veterans receive the benefits for which they are eligible. Widows are
at an even greater risk for not receiving potential benefits. Of the
survivors of deceased soldiers who could qualify for pension benefits,
only one out of seven actually receives a monthly check according to
the VA's own reporting.
One issue that has received increased attention after the recent
publicity of the problems at Walter Reed Army Medical Center is the
need for seamless transition. Unfortunately, too many of our military
personnel come back from overseas and get lost in the shuffle when they
leave the Department of Defense health care system and enter the
Veterans Administration's system. Our nation makes a commitment to care
for these brave men and women even after they leave the armed services.
While there are currently increased efforts to improve seamless
transition, many veterans have already fallen through the cracks. It is
important that our government reaches out to these veterans to inform
them of the benefits they have earned through their service.
There is clearly a need for greater outreach to our Nation's
veterans. This bill defines outreach as ``the act or process of taking
steps in a systematic manner to provide information, services, and
benefits counseling to veterans, and the survivors of veterans, who may
be eligible to receive benefits under the laws administered by the
Secretary to ensure that those individuals are fully informed about,
and assisted in applying for, any benefits and programs under such laws
for which they may be eligible.'' America's veterans have earned these
benefits, and it is our responsibility to inform them of what they have
earned.
H.R. 67 would establish a program for the VA Secretary to provide
grants to states for outreach activities, establishing cooperative
relationships, and assisting in the development of veterans' benefits
claims. States may award portions to local governments. If no local
veterans service program is available in a certain community, states
may use funds from grants to operate in place of a local agency or to
establish a local veterans service program. Funds from the grants will
not be used to supplant existing state or local funds and will not
constitute more than half of the cost of outreach activities for state
or local governments.
In order to allocate these grants most efficiently, the Secretary
would be required to direct assistance to areas with large and growing
veteran populations. Service organizations in these areas will face
greater difficulty in reaching out to veterans and helping them obtain
the benefits which they deserve. Federal funding will be most effective
in these areas.
Funding
H.R. 67 authorizes $25 million annually for Fiscal Years 2007,
2008, and 2009. That sum is one dollar for each veteran in the United
States. Also, this bill would establish a separate account in the
Department's budget for the outreach program. This funding would have
to be re-authorized after 3 years and could be adjusted according to
the success of the program.
The bill's funding allocation could be used by state or local
governments for various purposes, such as establishing education and
training for state and local government employees for accreditation to
provide outreach services. Funding from the grants could also be used
to improve existing offices by hiring additional staff or improving
their technological capabilities. In addition, these funds could be
used to purchase advertising space or establish transportation programs
for veterans to travel to health care facilities.
Conclusion
The United States makes a commitment to take care of each man and
woman that serves our country in uniform. Our veterans deserve the
benefits they have earned, and it is our obligation to make sure they
know what those benefits are and have assistance in developing their
claims. These benefits are important not only to our current veterans
but to those who are entering the armed services today. Ensuring that
these brave individuals will receive benefits after they leave the
service will improve recruitment and retention which will enhance
military readiness.
Providing resources at the local level will greatly improve
outreach capability. County Veteran Service Officers are already doing
great work in outreach and claims development. With more resources and
better coordination within the VA, they can do even more to assist our
veterans.
It is clear that we need to improve outreach to our veterans. That
is why I encourage this Subcommittee to give the Veterans Outreach
Improvement Act of 2007 its full consideration, and I look forward to
working with each of you in furthering the cause of our Nation's
veterans.
Statement of the Honorable Joe Baca, a Representative in Congress from
the State of California
Thank you Chairman Hall, Ranking Member Lamborn and the Members of
this distinguished Subcommittee for holding this important hearing and
for giving me the opportunity to come speak on H.R. 1435. This is
legislation that I introduced earlier this year to help address the
veterans' claims backlog, which is an issue I have been concerned about
for many years. While I have carried backlog-related bills in the past,
H.R. 1435 is new for the 110th Congress and I am excited to
talk to you about this bill today.
As you may already know, there are currently an estimated 600,000
to 800,000 backlogged claims pending at the Veterans' Administration.
The average claim currently takes about 6 months to process and the
average appeal takes almost 2 years!
What's also important to keep in mind is that the majority of these
pending claims are for older veterans--many in their sixties and
seventies, who depend on their veterans benefits to assist them in the
latter years of their life. These men and women served our country
honorably in conflicts like Korea and Vietnam and deserve to live the
rest of their lives with dignity and respect! Instead, many of them are
spending the last years of their life filling out redundant paperwork,
calling the Department of Veterans Affairs, and waiting for the
benefits they deserve. Many of these veterans need medical care for
conditions like diabetes, post-traumatic stress disorder, and other
serious medical conditions that can't wait 6-12 months for treatment.
An article in last week's Washington Post described World War II
veteran Seymour D. Lewis, a former Army private who waited for the
mailman at his front door every day for 5 years for a letter from the
VA about his disability claim. He had lost the hearing in his right ear
due to a grenade explosion in 1944 and it wasn't until 2001 when he
started to receive $200 a month from the VA for his disability. He felt
that he deserved more and appealed his claim. So Seymour Lewis filed an
appeal and waited for his mailman to bring a response. Unfortunately,
the response never came. His claim was still pending when he died last
year at the age of 80.
This tragedy is not an isolated incident. It is happening all
across the country. Its shameful and alarming and what's worse is that
the current backlog figures do not include the hundreds and thousands
of veterans that will be returning home from Iraq and Afghanistan over
the next few years. According to a report by the government
Accountability Office there will be 400,000 new claims by the end of
2009 alone.
All of these facts make it clear to me that we need to come up with
new solutions now. We need a system to eliminate the current backlog
and expand our existing Federal infrastructure to accommodate the
638,000 new claims that GAO expects to be filed in the next 5 years
from the Iraq War alone.
I am extremely proud of H.R. 1435 because I believe it is a
creative, common-sense idea that takes a positive step toward reducing
the backlog. H.R. 1435 is based on legislation I carried in the
109th Congress, H.R. 616, the Veterans Claims Backlog
Reduction Act of 2005. However, H.R. 1435 is a completely new bill that
incorporates new ideas and addresses some past concerns and I truly
believe it will make difference in the lives of our veterans.
H.R. 1435 is a leaner, meaner bill that that has built-in
accountability, incorporates fiscal discipline, and provides a much-
needed service to our veterans and their families. This legislation
would establish a 3-year pilot program at the Department of Veterans
Affairs (VA) to reduce the backlog by partnering with County Veterans
Service Officers in five states to develop pending claims.
The five states--California, Florida, Ohio, South Carolina and
Texas--were picked based on the extent of their County Veterans Service
Officer networks, the veteran population in those states, and because
we wanted a good sample of both large and small states in different
regions of the country.
Under the pilot program, the VA will be required to identify the
pending claims in those five states that need further development in
order to be considered ``ready to be rated.'' The VA will then refer
those claims and any relevant information to the veteran's nearest
County Veterans Service Officer (CVSO). The CVSO will then contact the
veteran or their family and work with them and any veteran service
organization that has established a power of attorney to fully develop
the claim. Once the claim is fully developed, it will be returned to
the VA ready for approval.
At the end of the pilot, the Secretary will then submit a report to
Congress that will give an accurate ``before'' and ``after'' snapshot
of the claims backlog in those states. It will show how many claims
each state started with, how many are left, and how many were
successfully processed during the pilot. Congress, the VA, the states,
and the American public will be able to see in black and white whether
or not this program was effective.
If it is successful, the VA will have a proven program that can be
expanded to other states. If it is unsuccessful, then at least we made
an honest attempt to address an urgent problem without wasting the
taxpayers' money.
We are still waiting on a cost estimate for this pilot from the
Congressional Budget Office, but because this pilot uses an existing
network of county employees, the cost to the taxpayers will be
relatively minimal. The only costs related to this program will be
administrative. For instance, the VA will have to identify the pending
claims, transfer them to the CVSOs and then compile a final report at
the end of the pilot.
H.R. 1435 is vastly improved to H.R. 616 for many reasons. First,
it addresses a concern that since County Veterans Service Officers
aren't available in every state, any nationwide program utilizing CVSOs
would unfairly punish those veterans who reside in states that don't.
Most states--37 to be exact--utilize a network of CVSOs to provide the
majority of its veterans' services, in conjunction with various
veterans groups. By creating a 3-year pilot in a diverse sample of
states, we will be able to see if the CVSO system is truly effective
and thereby provide the remaining 13 states with important information
on which systems work and which don't.
Second, H.R. 1435 improves upon H.R. 616 by bringing veterans
service organizations into the process. We clearly provide language in
the bill that acknowledges the role of veteran service organizations in
the claims process and directs the CVSO to work with any VSO with an
established power of attorney. Our veterans groups play a vital and
irreplaceable role in the veterans claim process and we welcome any
assistance and guidance that will enhance the pilot program and help
the CVSO and VA to quickly and effectively develop the claims.
Third, H.R. 1435 gives us an opportunity to try a program to see if
it really works. After all, the goal of this legislation is to create a
reliable and effective means of reducing our veterans' claims backlog.
To authorize any Federal program that doesn't actually accomplish this
goal would not only be useless, but it would be doing our veterans a
huge disservice. They have already sacrificed enormously for this
country and have waited too long to receive the benefits they deserve.
We need a system that works.
Finally, H.R. 1435 helps to address the argument that the backlog
isn't just caused by a lack of developed claims. Some argue that the
part of the problem has to do with a shortage of staff at the VA to
evaluate the claims once they are submitted. By allowing the County
Veterans Service Officers to take some of the claims development burden
off the Department, the VA can then take the next 3 years to hire and
train more staff to evaluate claims and fight this battle on both
fronts.
Deputy VA Undersecretary Robert Aument testified before this
Subcommittee a month ago and said that the VA plans to add 400
employees by the end of June. If the backlog problem is really being
caused by a lack of staff who can evaluate these claims, then let's
direct this new manpower toward that part of the process. In the
meantime, why not harness the collective expertise of 2,400 VA-
Accredited County Veterans Service Officers who already assist veterans
in submitting their claims to work on the development side of the
equation?
CVSOs are often so effective at their jobs that many states rely on
them to provide the bulk of their veterans' claims services. For
instance, in my home state of California, there are approximately 160
highly qualified CVSOs while the CA Department of Veterans Affairs
(CDVA) only has 14 veterans claim representatives. In a recent report
by the CA Department of Veterans Affairs, it was recommended that the
best way to improve claims services for veterans in California was to
increase state funding to CVSOs.
Once again, I would like to thank Chairman Hall, Ranking Member
Lamborn and the Members of this Subcommittee for giving me the
opportunity to speak on this legislation and hope that you will lend
your support to it. H.R. 1435 is a good common-sense bill and I think
it will be a good first step toward reducing our backlog and giving our
veterans the benefits and services they so deserve.
I would like to thank our veterans who have served our country so
courageously. I'm sure that I speak for every Member on this panel
today when I say that we want to make sure our government is doing
everything it can to provide our men and women in uniform with the best
resources before, during, and after their service to this country.
I thank you for this opportunity and would be happy to respond to
any questions you may have at this time.
Statement of the Honorable Joe Donnelly, a Representative in Congress
from the State of Indiana
Chairman Hall and Ranking Member Lamborn, thank you for calling
this legislative hearing today, and I thank you for this opportunity to
speak on the need for new approaches to both address the claims backlog
and also help America's veterans cope with what is frequently a months-
long process to get the benefits they deserve.
The problem is well documented. We have a benefits system in place
that is struggling to keep up with a growing load of disability claims
cases. Right now, a veteran filing a new claim can expect an almost 6
month wait until they find out whether their claim is approved by the
VA. If they appeal the VA's determination, they can expect their case
to drag on for nearly two more years.
Unfortunately, this is a problem that is likely to get worse before
it gets better. As you know, in the Iraq and Afghanistan conflicts, the
ratio of soldiers wounded to killed is 16 to 1, the highest of any war
in our nation's history. With so many new and future veterans serving
in Iraq and Afghanistan, we have a bow wave of new claims we must
prepare for, in addition to the 180,000 Iraq and Afghanistan veterans
who have already applied for disability benefits. Harvard University
professor Linda Bilmes, who testified before this Subcommittee last
month, estimates that over the next 5 years OEF and OIF veterans could
file 638,000 new claims for benefits.
I genuinely believe that the VA is trying to do the best it can
under the current system. VBA claims workers are dedicated individuals
who are working hard to see that our veterans are able to get the
proper service and benefits deserving their service and sacrifice to
our Nation. I look forward to working with my fellow colleagues on the
Veterans' Affairs Committee to make sure the VBA has the resources and
staff in place to provide for accurate and timely claims adjudication.
I also look forward to working with the VA and the Department of
Defense to provide for a seamless transition from active duty to
veteran status.
However, I also believe we must explore more innovative approaches
to address the fundamental shortcomings of the current claims process.
Mr. Chairman, as you know, new veterans often leave the service to
an uncertain future. Sometimes, just weeks removed from the
battlefield, they must find a job, a place to live and identify how
they will get the medical care they need. Many older veterans are on
fixed incomes. For many disabled veterans, their benefits and
disability compensation are an important part of their ability to meet
the needs of their families and make ends meet. It is our veterans who
pay the price--both emotional and financial--for the long time it takes
to process a claim.
I know there are a number of factors to explain in part why claims
approval times are long and why the backlog has increased. However, I
believe we must do something to get veterans some assistance on the
front end while they wait for the VA to make a determination. Just
explaining the delay doesn't help our veterans pay the bills. We need
to expedite benefits to help veterans get by while their claims are
considered.
Currently, approximately 88 percent of veterans' claims are
ultimately approved by the VA. This would suggest that the vast
majority of claims filed by veterans are done so accurately and
truthfully by men and women who are seeking compensation and benefits
for very real conditions. I believe that our veterans have earned the
benefit of the doubt when it comes to their claims on disability
benefits.
Congressman Fred Upton and I introduced H.R. 1490 to provide
veterans the benefit of the doubt when it comes to their claims. Based
on an idea Professor Bilmes first put forth earlier this year, this
bill would approve new disability claims up front through an expedited
process, and direct the VA to audit a percentage of these claims to
ensure accuracy and to deter and detect fraud. Those claims that have
already been denied or are currently in the appeal process would not be
included in this new process.
Essentially, a veteran who can provide proof of service and minimal
supporting evidence for their claim would meet with a VA claims worker
to identify the proper disability and benefit they are filing for.
Unless the VA or the claims worker determines there is sufficient
evidence to the contrary, the VA would approve the veteran's claim at a
median benefit for that type of disability and the veteran would
immediately become eligible for benefits.
Benefits awarded through this ``benefit of the doubt'' approach
could be changed by the VA once a more appropriate level of benefits is
determined. However, until that happens, veterans would still be able
to get a benefit for a claim for which they are requesting. H.R. 1490
would direct the VA to ensure that an adequate number of claims workers
are assigned to assist in carrying this out.
The burden of proof would be shifted from the disabled veteran to
the VA. As Professor Bilmes has pointed out, a similar approach of
approve and audit is successfully used by the IRS for tax returns and
by the SEC for filings. There are already models in place.
By giving our veterans the benefit of the doubt up front and
providing some kind of disability benefits at the beginning, we would
also provide an incentive for the government to implement methods to
reduce the wait time on processing the claims if it is the government
bearing the cost of delay instead of the veteran.
Further, by approving more new claims up front, more VBA personnel
could be freed up to work on reducing the current backlog of claims and
appeals.
It is going to take a considerable amount of time to hire and train
the number of new claims workers who will be needed to deal with the
continued high rate of new claims as a result of returning veterans
from OEF and OIF. However, by implementing a benefit of the doubt
approach up front with veterans, we would get benefits to veterans much
faster than we currently do.
We are aware that this is an unorthodox approach. However, it is an
idea that I feel strongly deserves more consideration by this
Subcommittee.
Mr. Chairman, I view H.R. 1490 as a starting point to allow
Congress the opportunity to consider different approaches to expediting
benefits for disabled veterans by giving them the benefit of the doubt.
I know it is not a perfect proposal, but I look forward to continuing
to work with this Committee, the VA, and veterans service organizations
to move this idea forward.
Thank you very much for this chance to address the Subcommittee on
this very important subject, and I am pleased to answer any questions
you may have.
Statement of the Honorable Fred Upton, a Representative in Congress
from the State of Michigan
I thank the chairman and Ranking Member for convening today's
hearing on this very important and pressing issue and for giving Joe
and I an opportunity to testify on the need for innovative methods to
solve the VA's disability claims backlog and deliver benefits to
disabled veterans as quickly and efficiently as possible.
Recent headlines have brought an unprecedented amount of attention
to the care given to our brave sons and daughters wounded as a result
of actions related to the Global War on Terror. The situation at Walter
Reed Army Medical Center has opened the door to scrutiny of many facets
of service-member and veteran care in issues ranging from quality of
care and accommodations in both DoD and VA medical facilities to the
apparent lack of parity between DoD and VA disability ratings, to the
unbelievably daunting backlog of pending VA disability claims. It is
becoming increasingly evident that major reforms must take place in
many areas in order for care to meet the standards that our veterans
deserve.
Among the many issues that need to be remedied, the elephant in the
room is the enormous backlog of disability claims, which is the subject
of today's hearing. I was struck by a recent report compiled by Linda
Bilmes, a faculty Member at Harvard University's John F. Kennedy School
of government, that detailed an enormous and growing backlog that our
troops are enduring when seeking disability benefits. The report paints
a bleak picture of the future if the status quo is maintained.
The statistics are startling. As of December 9, 2006, the Veteran
Benefits Administration had a backlog of almost 400,000 claims. As a
result, the VBA takes an average of 177 days to process an original
claim and 657 days to process an appeal. This delay deprives many
veterans of Iraq and Afghanistan of much-needed income at a time in
their lives when they are not only learning to cope with a disability,
but also transitioning into civilian life.
This problem not only needs to be addressed with a deep, systemic
look at how claims are processed, it needs to be dealt with as swiftly
as possible. The backlog is expected to grow exponentially as waves of
troops continue to return from operations in Iraq and Afghanistan. It
is difficult to predict the exact demand and strain that the newest
veterans will place on the system, but there is one statistic that is
particularly alarming. The ratio of soldiers wounded for every soldier
killed in OIF and OEF is almost 8 to 1, as compared to 2.8 to 1 in
Vietnam and 2.6 to 1 in Korea. The 8 to 1 ratio is according to DoD
statistics, which only take into account service-members wounded in
battle. If VA statistics are used, in which a wounded service-member is
defined as any soldier who is medically evacuated from theater, than
that ratio rises to 16 to 1.
It is easy to recognize the conclusion of the Harvard research: the
problem is only going to get worse, the backlog is only going to get
larger, and the amount of time it takes for a veteran to receive
disability benefits will become increasingly unacceptable.
The cause of the backlog does not lie in apathy or incompetence of
VA workers. In fact, I believe that just the opposite is true. Many VA
workers are veterans themselves, and I believe all of them to be true
patriots who want to help vets in any way they can. I have heard more
than one story about claims processors working through the weekend in
order to resolve their caseloads. It is obvious that the VA's manpower
is stretched to the limit, and I believe it is imperative that congress
works to ensure that they have the resources and manpower in place to
quickly and accurately process claims.
While adding staff and resources will go a long way to addressing
the backlog, I believe that an innovative approach is needed to truly
address the problems inherent in the current system.
Congressman Donnelly and I have introduced a bill, H.R. 1490, that
approaches the problem from a unique angle. Based on an idea put forth
in the Harvard report, HR 1490 will provide the veteran with the
benefit of the doubt by directing the VA to approve new claims up front
through an expedited process, and allowing the VA to reach back and
audit a percentage of them to detect and deter fraud. According to VA
statistics, close to 90% of these claims are approved under the current
system.
Veterans would simply need to prove their service and provide
minimal supporting evidence for their claim. They would provide that
information to a VA claims worker to identify the proper disability and
appropriate benefit. Unless the claims worker determines that the
original information is not sufficient, the veteran is allotted the
median level of benefit for that type of disability. Their claim will
then be reviewed by the VA, and when it is resolved, the veteran will
receive a permanent rating and the benefit amount appropriate to it.
The initial ``median-level'' benefit simply gives disabled veterans
some money right out of the gate so they can better deal with their
transition.
This bill essentially shifts the burden of proof from the veteran
to the government. This method is not unlike the one used by the IRS
and other government agencies with large caseloads.
Mr. Chairman, we must think outside the box when confronting a
problem of this magnitude. We must do what is necessary on behalf of
those who have sacrificed for our country.
I believe that HR 1490 is a good starting point in the legislative
conversation revolving around the benefits backlog. I am aware that
this proposal is not perfect, but I look forward to working with Joe
and my other friends and colleagues on the Veterans Affairs Committee
in moving this idea forward and finding a solution to ensure that our
courageous servicemen and women seeking disability benefits receive
prompt attention.
Thank you once again for allowing me the opportunity to testify on
this very important issue. I am pleased to answer any questions you
might have.April 17, 2007, F. Douglas LeValley, Past-President,
National Association of County Veterans Service Officers
Statement of F. Douglas LeValley, Past-President, National Association
of County Veterans Service Officers
Introduction
Chairman Hall, Members of the Subcommittee, it is truly my honor to
be able to present this testimony before you. As Past-President of the
National Association of County Veterans Service Officers, I am
commenting on:
National Association of County Veterans Service Officers
(NACVSO) views on H.R. 67, Veterans Outreach Improvement Act of 2007.
NACVSO views on H.R. 1435, Department of Veterans affairs
Claims Backlog Reduction Act of 2007. NACVSO views on H.R. 1444, To
direct the Secretary of Veterans affairs to make interim benefit
payments under certain remanded claims, and for other purposes.
NACVSO views on H.R. 1490, To provide for presumption of
service-connectedness for certain claims for benefits under laws
administered by the Secretary of Veterans Affairs, and for other
purposes.
The National Association of County Veterans Service Officers is an
organization made up of local government employees. Our Members are
tasked with assisting veterans in developing and processing their
claims. Between 75 and 90% of the claims presented to the Veterans
Administration each year originate in a county veterans office. Our
Members sit across from those men and women who wish to file a claim
each day. They are our friends and neighbors Members of our communities
whom we see often daily. We exist to serve veterans and partner with
the National Service Organizations and the Department of Veterans
Affairs to serve veterans. Our Association focuses on outreach,
standardized quality training, and claims development and advocacy. We
are extension or arm of government, not unlike the VA itself in service
to the nation's veterans and their dependents.
H.R. 67, Veterans Outreach Improvement Act of 2007:
The outreach that I will address is the hands on approach. Across
our nation there are veterans that do not think they are a veteran
because they did not lose a limb or get injured in anyway. They came
home and started to work to support their families. They have never
looked for any help from the government. When the veteran dies their
families still do not know they are entitled to benefits just because
their husband or father served his country. These are the people that
need outreach. They are mostly lower income and have never reached out
to the VA and therefore they don't think they are entitled to this
help.
I look at rural and urban America and see the great need to make
these veterans aware of the benefits that they deserve, that are earned
entitlement not welfare. These veterans have never made use of the
VAMC's, the GI Bill, Home Loan, Pension or Compensation Benefits. They
just served their country and came home. It is so rewarding when you
meet one of these veterans and tell them what they may be entitled to
and see the hope on their face. It sometimes means the difference in
eating or buying medicine. I am sure if a study was completed you would
see a large number of rural veterans have never used the VA for any
service and did not know they could. The VA has a responsibility to
reach out and make everyone aware of their entitlement. One of the ways
is for the County Veterans Service Officer to spread the word. To go
into the communities with the message those veterans and their
dependents have benefits due them. While many counties do fund a County
Veteran Service Officer, the vast majority do not provide funding for
outreach and other informational services.
Outreach efforts must be expanded in order to reach those veterans,
dependents and survivors that are unaware of their benefits and to
bring them into the system. Nearly 2 million poor Veterans or their
impoverished widows are likely missing out on as much as $22 billion a
year in pensions from the U.S. Government, but the Department of
Veterans Affairs has had only limited success in finding them,
according to the North Carolina Charlotte Observer.
Widows are hardest hit. According to the VA's own estimate, only
one in seven of the survivors of the nation's deceased Soldiers,
Sailors, Airmen and Marines who likely could qualify for the pension
actually get the monthly checks. What's more, participation in the
program is falling. Veterans and widows are unaware that the program
exists. They simply don't know about it and the VA knows that many are
missing out on the benefit ``We obviously are here for any veteran or
survivor who qualifies,'' said a VA Pension official. ``But so many of
these people--we don't know who they are, where they are.'' The VA's
own report from late 2004 recommended that the agency ``improve its
outreach efforts'' with public service announcements and other pilot
programs. While it made limited efforts to reach veterans or their
widows through existing channels, it is difficult to determine whether
such efforts have been successful.
Of all those likely eligible, only 27 percent of veterans and 14
percent of widows receive the money. It is obvious that there is a
great need for outreach to into the veteran's community and the local
CVSO is the advocate closest to the veterans and widows and with
minimal funding could reach the maximum number of eligible veterans and
widows. Therefore, NACVSO is supporting H.R.67, introduced by
Congressman Mike McIntyre of North Carolina, that would allow Secretary
Nicholson to provide Federal--state--local grants and assistance to
state and county veteran's service officers to enhance outreach to
veterans and their dependents. We are already present in most
communities and stand ready to assist the Department of Veterans
affairs with this monumental task.
H.R. 1435, Department of Veterans Affairs Claims Backlog Reduction Act
of 2007:
In June of 2002 the National Association of County Veterans Service
Officers (NACVSO) offered testimony before the House Veterans Affairs
Subcommittee on Benefits. The testimony was centered on the backlog or
inventory of veteran's claims for their earned benefits. At that time
the NACVSO testified, the inventory of veteran's claims was
approximately 525,000 claims. Currently the inventory continues to grow
and now stands more than 851,000 claims. This inventory causes a wait,
in some cases, of more than one year. During the testimony of 2002,
President George Hunt stated that many veterans have died while waiting
for their claims to be adjudicated. He went on to state; ``Dying while
Waiting'' is not acceptable for the men and women who placed themselves
in harm's way for our great nation.'' Nearly 5 years later, the
inventory problem is worse and it is still not acceptable for our
veterans to die while waiting for their ``earned'' benefits.
As we prepare this testimony there are approximately 25 million
honorably discharged veterans of the armed forces of the United States.
These men and women served honorably and expect a grateful nation to
keep the promises that were made to them upon their entry onto active
duty. A large percentage of those veterans are over the age of 70. It
is the responsibility of the U.S. Government to live up to its promises
that were made and accepted in good faith. Those promises that include
medical care and compensation for illnesses and wounds sustained in the
defense of freedom. A mechanism must be developed so that we have the
means and the ability to serve these most deserving of our citizens--
those that have safeguarded our rights and freedoms that so many take
for granted.
Our Members, County Veteran Service Officers (CVSO), are present in
37 of our 50 states and located in over 700 local communities. This
readily available work force represents approximately 2,400 full time
employees who are available to partner with Department of Veterans
Affairs, Department of Defense and the Department of Labor to help
speed the process of claims development and transition of our military
personnel to civilian life. H.R. 1435, sponsored by Congressman Baca of
California, provides a way for the Department of Veterans affairs to
enlist the aid of these CVSO's in a pilot program, beginning in five
states. CVSO's, through the claimants powers of attorney, would fully
develop, as many as possible, claims passed from the local VA Regional
Office. Thereby assisting in reducing the claims backlog by returning
fully developed ready to rate claims. The availability of approximately
2,400 trained, full time CVSO's available to work at the local level
developing claims will free up VA personnel for other task. NACVSO
supports the pilot program of H.R. 1435 and believe that its success
will cause the Secretary of Veterans affairs to expand the program into
other states.
H.R. 1444, To direct the Secretary of Veterans Affairs to make interim
benefits payments under certain remanded claims, and for other
purposes:
The backlog of remanded claims continues to be a problem for the
veteran and H.R. 1444, sponsored by Congressman Hall of New York
provides relief for any veteran having a claim remanded for more than
180 days with out a decision. While some remands continue for over a
year the financial burden upon the veteran becomes unbearable. NACVSO
supports the payment of interim benefits of $500.00 per month to each
claimant as a temporary solution to the remand backlog until the
Secretary of Veterans Affairs can provide suitable measures to process
remands in a timely manor.
H.R. 1490, To provide for a presumption of service-connection for
certain claims for benefits under the laws administered by the
Secretary of Veterans Affairs, and for other purposes:
NACVSO supports H.R. 1490, sponsored by Congressman Donnelly that
provides for presumption of service-connection for claims filed by
combat veterans.
Under this proposal processing of claims would become simpler and
the addition of online application could reduce the present 177 day for
an initial claim to a manageable period thus allowing combat veterans
to be better served.
CONCLUSION:
This concludes my comments. I am ready to answer any questions the
Committee may have. Thank you.
Statement of Carl Blake, National Legislative Director, Paralyzed
Veterans of America
Chairman Hall, Ranking Member Lamborn, members of the Subcommittee,
Paralyzed Veterans of America (PVA) would like to thank you for the
opportunity to testify today on H.R. 67, the ``Veterans Outreach
Improvement Act of 2007,'' H.R. 1435, the ``Department of Veterans
Affairs Claims Backlog Reduction Act of 2007,'' H.R. 1444, a bill
authorizing the Secretary of Veterans Affairs to make interim benefit
payments under certain remanded claims, and H.R. 1490, a bill
authorizing the Secretary of Veterans Affairs to provide for a
presumption of service-connection for certain claims for benefits. PVA
is extremely supportive of your effort to address the ever-growing
problem of the backlog of claims for benefits.
H.R. 67, the ``Veterans Outreach Improvement Act of 2007''
PVA supports the Committee's effort to inform more veterans about
the benefits that are available to them and their families. With this
financial assistance from the VA in the form of grants, states can
review their outreach programs and enhance or update those efforts that
have been neglected through the years.
Many states have used the Internet to list general information
about their respective departments of veterans' affairs. However, tight
budgets have kept states from constantly updating information and
keeping it fresh. These sites could be enhanced to become a better
resource for today's veteran. Many younger veterans understand this
type of media better and are much more likely to use it, as opposed to
standard print information. State websites could interact with the
divisions of employment to list current employment opportunities for
veterans. Veteran could also access information about benefits.
Internet access in conjunction with CD's and DVD's offers states an
inexpensive method to distribute a large amount of information to the
veterans. VA grants could also be used to produce videos describing
veterans programs and how to contact the local state office.
Informational public service announcements could likewise be circulated
to community cable providers.
Production of current brochures that summarize veterans' benefits
provided by a state would also be a positive use of additional funding.
This could include the locations and phone numbers for that state's
service offices. The updated informational brochures could be made
available at some Federal offices, state offices, including the
employment office, and county offices. This would represent
constructive use of a grant from the VA. Some states have reduced the
budget for this type of outreach as their departments of veterans'
affairs are a lower priority than state mandatory programs.
The VA's Readjustment Counseling Service has operated community-
based facilities, called Vets Centers, since 1979. Currently the VA
maintains 209 Vets Centers in all 50 states, and the District of
Columbia. These centers provide psychological counseling for war-
related trauma, community outreach, case management and referral
activities. In 2007 and 2008, the VA will open 23 more Vets Centers
across the nation. PVA supports the expansion of this program with the
hope that the program will be integrated into the support network for
veterans, thereby enhancing outreach at the local level.
Successful outreach has also been achieved in several states that
have sponsored a program called the ``Supermarket of Veterans
Benefits.'' This program started in Georgia more that 20 years ago and
has been duplicated in Wisconsin and Missouri. The goal is to bring all
resources that can help veterans together in one location for 1 day.
The participants include all veterans' service organizations, state and
county veterans service officers, state employment personnel, and VA
benefits and health care personnel. The program is organized through
the state's veteran's affairs office. The announcement of the event is
sent to veterans' service organizations, Federal government offices,
state and county government offices, including employment offices,
National Guard and Reserve locations and newspapers. Georgia has used
National Guard facilities for the event, which has been successful in
attracting current and retired Guard and Reserve Members. The
convenience for a veteran to receive information on the full range of
available programs including healthcare, home loans, educational
benefits, or other supports, has proven successful.
H.R. 1435, the ``Department of Veterans Affairs Claims Backlog
Reduction Act of 2007''
PVA supports the intention of the bill to help the VA further
address the unprecedented backlog of claims for benefits. This pilot
program would allow six states to use their county service officers to
develop the claim for the veteran and submit it to the VA. The county
veterans' service officer can currently gather the information, develop
the claim, and present it to the VA for submission. This program will
enhance their ability to play a vital role in helping the VA prepare a
claim for rating. They are uniquely positioned to obtain evidence from
local sources. However, the VA is better able to obtain such evidence
as service medical records (SMRs) and Social Security records. VA
employees are provided clear instructions on how to electronically
obtain such records, and only with experience can one develop the
skills necessary to become effective in developing that type of
evidence. In some situations county service officers may need more
training to properly complete a claim.
PVA currently has 66 veterans' service offices staffed by 135
personnel in the field. These are full time employees of the national
organization. PVA invests 18 months of training to develop its service
officers. The program involves successful completion of training
manuals, tests that accompany the manuals, and working with a senior
service officer. PVA conducts ongoing regional training as well as
participation in VA training at the local level. This allows PVA
service officers to be familiar with the training of VA personnel and
also permits valuable interaction with VA claims processors and other
staff to identify issues they are seeing from outside of the VA. This
pilot program proposed by this legislation could be a component to help
alleviate the backlog. However, success will be determined by continued
training and commitment of the county service officers, similar to the
time and energy that PVA puts into its own service officer program.
Additionally, Congress should focus its attention on fully
implementing ``Virtual VA.'' This would allow raters, adjudicators, and
all service officers (for the cases with Power-Of-Attorney on file and
for personnel trained and certified in privacy and security of
records), to have electronic access to the electronic VA file, VA
medical center records, and SMRs. This will help alleviate the paper
chase that currently takes place.
H.R. 1490 (Presumption of Service-Connection)
PVA does not support the idea of presumption of service-
connectedness for submitted claims. It would require the VA to
adjudicate a new benefit, the ``interim award'', rather than focusing
their resources on properly completing the initial claim. If the
service connection is reasonably allowable, the regulations provide for
a prestablization rating (38 C.F.R. 4.28) at a 50% or 100% rate for
recently returned veterans. One year later the veteran is examined and
evaluated. Unfortunately, this regulation is rarely used.
Even if the veteran thought that they may be asked to pay the money
back to the VA in three or 4 years, some veterans may still file an
unsubstantiated claim. The long and frustrating process of filing a
claim for compensation does not discourage some veterans from filing
fraudulent claims. We believe that if Congress lowers this initial
threshold, the results will be an overwhelming number of claims filed
for compensation.
H.R. 1444 (Interim Payments Following Remand)
Although this is an effort to address the tremendous backlog of
claims, this legislation would simply add to the workload. The bill,
states that if the final decision is not to award benefits, the amounts
paid as interim benefits shall not be considered to be overpayment for
any purpose. This policy would encourage veterans to file frivolous
claims--inflated claims that would further slow the process down.
Furthermore, this would create a potential enormous cost to the VA if
it is forced to pay for claims that ultimately will be denied.
Resources can be better used by improving the system rather than
offering free money to everyone filing a claim, regardless of its
legitimacy.
PVA believes that a major reason for the current delay is caused by
the regional office not producing the proper documentation in the
beginning. There is no incentive for the VA regional office to
completely develop a claim prior to denial and certification to the
Board of Veterans Appeal. It has been documented by a quality review
team that 30% of the remanded appeals were caused by the regional
office not complying with existing instructions regarding development
of the evidence. Some claims are returned two or three times before
being accepted. In developing the claim, VA regional offices do not
follow the instructions for development of evidence as explained in the
VA instruction manual for adjudication procedure.
In the end, we believe that many of the problems in the Veterans
Benefits Administration are centered on proper training and
accountability. Without uniform training across all of VBA on the
standards established in regulations, problems will continue to arise
and the claims backlog will continue to grow. Furthermore, it is
absolutely essential that VBA personnel at all levels be held
accountable for their own actions and the actions of their
subordinates. Although we continue to advocate for adequate resources
and additional staff, these steps will not go far enough if training
and accountability are not a major component. Similarly, we recognize
that veterans' service organizations have a commensurate obligation to
properly train and supervise their personnel.
Mr. Chairman, PVA recognizes that the challenge that this
Subcommittee faces in trying to properly address the claims backlog is
enormous. We look forward to working with the Subcommittee and all of
Congress to find workable solutions for what has become a national
problem for current veterans and new veterans returning from Iraq and
Afghanistan. However, we must ensure that short-term fixes do not lead
to long-term problems.
Thank you for again for allowing us to testify. I would be happy to
answer any questions that you might have.
Statement of Gerald T. Manar, Deputy Director, National Veterans
Service, Veterans of Foreign Wars of the United States
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
On behalf of the 2.4 million Members of the Veterans of Foreign
Wars of the United States (VFW) and our Auxiliaries, I would like to
thank you for the opportunity to present our views on the following
legislation.
The first bill under discussion today is H.R. 67, The Veterans
Outreach Improvement Act of 2007. This bill aims to improve outreach
activities within the Department of Veterans Affairs (VA) by
coordinating the efforts among the offices of the Secretary, Public
Affairs, Veterans Health Administration, Veterans Benefits
Administration and the National Cemetery Administration.
In order to increase effectiveness of VA outreach, it directs the
Secretary to establish a grant program for state veteran agencies by
providing $25 million in funding annually for 3 years for state and
local outreach services available to veterans. It targets assistance to
those locations with large and growing veteran populations.
The VFW has always encouraged and supported increased awareness of
benefits and services provided by VA to veterans. We believe that all
veterans and their survivors should have access to up-to-date
information about services and benefits for which they may be eligible,
therefore we support H.R. 67. However, since success of this initiative
will result in increased claims submissions to VA, we urge that funding
for VBA adjudication keep pace with increases in the number of claims
filed as a result of greater outreach at the local level. We also
encourage that substantial outreach at the local and state level be
made on behalf of National Guard and Reserve Members and would like to
see additional language which specifies oversight by Congress regarding
use of funds granted to state and local governments who perform
outreach services, to ensure that these funds are being spent properly.
Finally, we urge Congress to fund this initiative with new money since
it otherwise would result in a reduction of existing services or
programs.
The VFW strongly opposes H.R. 1435, The Department of Veterans
Affairs Claims Reduction Act of 2007, a bill that directs the Secretary
to conduct a pilot program intended to reduce the backlog of claims for
benefits pending with VA. We believe that there are serious flaws in
the legislation's approach, as well as unclear legal parameters
concerning representation of a claimant by County Veterans Service
Officers (CVSOs).
In section 2, the bill states that there are 2,400 full time and
numerous part-time employees in the nationwide system of CVSOs of which
a majority of them are accredited (accreditation is necessary for
access to information concerning veterans contained in VA record
systems). However, section 3, subsection 2, defines a CVSO as ``any
person employed or funded by any county, parish, borough, or territory
whose job it is to assist veterans and eligible dependents in the
application for, administration of, or receipt of benefits under any
Federal, State or county veterans benefit program.'' This would allow
anyone, accredited or not, access to a veteran's highly sensitive and
personal information without any safeguards or controls.
The bill also redefines ``claim'' in Section 3, subsections 3, 4 &
5 without regard or reference to long established laws, regulations or
judicial decisions. This will certainly cause difficulties for VA
regulation writers and significant confusion within the veteran and
legal communities resulting in increased appeals and litigation. It
also redefines ``presumptive claim'' to create a whole new category of
presumptive disabilities.
This redefinition of terms shows the inherent flaw in the
legislation. It is written without a clear understanding of existing
law. For example, an ``injury or illness claim'' is defined as a
``claim for benefits that is documented as being service connected''.
What exactly does that mean? An original claim filed for service
connection? Does it mean a claim for an increased evaluation of a
condition already service connected? The terms ``claim'', ``service
connection'', ``presumption'' and others found throughout this
legislation are clearly defined in existing law and regulation. This
bill fails to suggest a reason why changes are necessary.
This ``rewriting of terms'' will force VA to alter its claims-
tracking program to conform to the new definitions and then determine
which cases are not ready to rate. This legislation requires VA to
screen its entire backlog to determine what additional evidence is
still needed, then prepare a transmittal document describing the
required development before sending it to a CVSO. This is exactly the
same review process that VA currently does to decide what evidence is
needed in order to prepare a development letter under the Veterans
Claims Assistance Act. Instead of preparing that letter to the
claimant, this bill would require the preparation of a transmittal or
instruction letter to the CVSO who would, weeks later, attempt to
contact the claimant by phone or letter seeking the same information.
The workload for VA would increase, not be reduced. And the development
of the claim would be significantly extended while the claim goes
through additional hand-offs before the veteran is contacted.
We also question section 4, subsection 1, ``referral of claims to
CVSOs'' and the validity of distributing claims to those officers who
are ``geographically closest to the claimant.'' What about the
organization which holds the Power of Attorney? Who decides where the
claim is referred and when the claim is shifted from VA to CVSOs? Who
will track the workload? Further, since this bill would allow CVSOs to
not only take new claims but also keep them until they are fully
``ready to rate'', VA won't even know that it has that pending work in
the pipeline. This legislation would increase the workload tracking
burden on VA and hide significant portions of the backlog from view
which will, over time, give the appearance of workload reduction at VA
when, in fact, the work has merely been shifted elsewhere. It offers VA
managers a new excuse for poor timeliness.
Since VA doesn't tell the CVSOs what to develop in claims it has
never reviewed, can anyone be certain that the claims they take will be
ready to rate when VA receives them?
Section 4, subsection 5 states that CVSOs are supposed to fully
develop claims. Does that include developing Service Medical Records,
Military Personnel Records, VA exams or expert medical opinions? Do
they submit requests to DOD to verify stressors in claims for service
connection of PTSD?
The net effect is that VA will still have to screen claims exactly
as it does now under the ``Duty to Assist'' law when it instructs the
CVSOs what to do.
Finally, and not the least important, the money for this program
will come out of VA's budget, reducing the number of FTE available to
develop and process claims, thereby aggravating , not solving the
problem of the backlog. The VFW believes the only way to truly solve
the current situation is to provide appropriate funding and the
resources to enable VBA to hire more qualified employees who can reduce
waiting times, improve error rates and set and meet goals. The current
claims processing system can work, if Congress dedicates the proper
level of resources, and if this body uses its oversight power to ensure
that VA is living up to its obligations.
The VFW opposes H.R. 1444, legislation to direct the Secretary of
Veterans Affairs to make interim benefits payments under certain
remanded claims. The proposed legislation requires VA to pay an interim
benefit of $500 per month when a claim for veterans' benefits is
remanded by either the U.S. Court of Appeals for Veterans Claims or the
Board of Veterans' Appeals (BVA), and when a decision is not made
within 180 days of the date of the remand.
The VFW recognizes that this bill is intended to offer interim
relief to those veterans who have waited extraordinarily long periods
for a final decision on their claims. However, when the Appeals
Management Center of the VBA grants entitlement to service connection
or increased benefits in only 17 percent of the remands it works, we
wonder why Congress would choose to award an interim benefit of $500
per month to 100 percent of those waiting over 180 days for a decision.
Further, this bill would only serve to increase the backlog and prolong
the time it takes to get a case rated properly because it will require
additional time to adjust the award following completion of the remand.
We also believe that it will lead to a higher remand rate
inherently corrupting and further complicating the current claims
process. For the month of March 2007 alone, the total number of cases
in remand status was 16,577. Generally, the average remanded case
remains undecided--without a final decision by the BVA--for about 2
years. It should be noted that in the first 5 months of the current
Fiscal Year (FY 2007) the Board rendered 18,500 decisions, of which 20%
were granted, 42% were denied and 34% were remanded back to the Appeals
Management Center or Regional Office.
The development and adjudication of a veterans' claim under the VBA
system is more than just awarding compensation for an injury or illness
incurred while in service, it is designed to make an individual
socially and economically whole. In the end we believe that resources
would be better spent at the beginning of the claims process, by hiring
and training more claims adjudicators thereby ensuring the veteran a
fair and accurate assessment of their needs.
The VFW also opposes the final bill under consideration today. H.R.
1490 would provide for a presumption of service-connectedness for
certain claims for benefits under the laws administered by the
Secretary of Veterans Affairs.
We believe that this legislation is based on a false premise: that
87 percent of the claims submitted by veterans are approved by VA.\1\
VA compensation is unlike any other program administered by any agency
or department in the Federal government. Entitlement to Social Security
Disability payments requires simply a determination as to whether the
claimant is unable to work due to disability. It is a yes or no
decision. Entitlement to workers compensation is slightly more
complicated in that it must be determined that the disability making
someone unemployable is related to or caused by his or her job.
---------------------------------------------------------------------------
\1\ Soldiers Returning from Iraq and Afghanistan: The Long-term
Costs of Providing Veterans Medical Care and Disability Benefits;
Bilmes, Linda, Faculty Research Working Papers Series, January, 2007
---------------------------------------------------------------------------
A determination of entitlement to veterans' disability
compensation, on the other hand, requires first a decision that the
disability either arose coincident with service or, if it preexisted
service, was aggravated during service beyond natural progress.
Decisions by the Court of Appeals for Veterans Claims allows the grant
of service connection for non-service connected disabilities which have
been aggravated by service connected disabilities. So the first
decision is whether a disability is service connected. The next
question is how disabling is it. By law, evaluations are assigned in
gradations of 10 percent from zero to 100 percent. Finally, VA must
decide the effective date from which benefits can be paid.
While it appears to be true that 87 percent of recently discharged
veterans are granted service connection for one or more disabilities,
what is categorically untrue is that 87 percent of veterans ``claims''
are approved. Original claims for compensation almost always allege
that more than one disability is related to service. Currently the
average number of disabilities claimed is 8 or 9 and it is not uncommon
for new veterans to claim 20 or more conditions. However, these claimed
conditions are a mixture of actually diagnosed disabilities and
symptoms, which may or may not be related to diagnosed disabilities.
Many of these ``disabilities'' are symptoms, such as pain, which are
related to a real disability. Further, many claimed conditions are
either acute problems, like colds or sprained ankles, which resolved in
service and are no longer symptomatic at the time the claim is filed or
are disabilities which have not been diagnosed and, on examination,
remain undiagnosed.
While 87 percent of veterans receive service connection for some
claimed condition, the evaluations assigned may be zero percent
disabling or 10 or 20 percent. In 2005, VA found 160,352 veterans
entitled to service connection. However, fully 49 percent were awarded
combined compensation awards of 20 percent or less.\2\ We believe that
this bill, if enacted into law, would bastardize a program designed to
compensate veterans for service connected disabilities and encourage
veterans to file increasing, spurious and sometimes fraudulent claims.
---------------------------------------------------------------------------
\2\ Annual Benefits Report, Fiscal Year 2005; Veterans Benefits
Administration; September 2006
---------------------------------------------------------------------------
While the intent of this legislation is admirable we believe that
it forces VA into an adversarial relationship with the veteran filing
for a service-connected disability claim.
It asks the VA to validate all claims simply by ``proof of service
in a conflict'' and awards those claimants at a median level until
``such time as the appropriate level of benefits is determined.'' There
is no definition given for what the median level is based upon. What
about claims that cover multiple injuries or illnesses?
The legislation fails to address the complexity of the VBA ratings
system and in fact would seem to create a duplication of effort in
adjudicating claims during a time when VA is experiencing record
backlogs.
It also calls for an audit of a percentage of claims, to ``uncover
and deter fraudulent claims.'' This could prove to be substantial, if
in fact the award is based solely upon ``proof of conflict.''Again,
this would require additional workload for adjudicators to weed out the
good from the bad. Wouldn't resources be better utilized in
adjudicating claims on the front end so that all veteran's claims are
processed correctly the first time?
The bill also takes under consideration only those veterans filing
new claims or claims pending at the time the law takes effect. What
about those veterans who have been denied and/or await a decision on an
appeal? The VFW believes that there is a danger of creating a two-
tiered system of veterans.
The last section reassigns employees who previously worked on
claims processing to Vet Centers to assist veterans with readjustment
counseling and mental health services or to other locations deemed
necessary by the Secretary. Those individuals who processed claims may
not necessarily be qualified to assist veterans with readjustment or
mental health counseling. VA employees who are asked to undertake this
task will have to be trained which takes time not to mention takes them
away from adjudicating any new claims already in the system.
The authors of this bill are clearly concerned with the extended
period of time that it takes VA to resolve compensation claims and the
effect that delayed decisionmaking may have on new veterans
transitioning, with disabilities, from active duty to civilian life.
Congress may wish to consider enacting a temporary benefit stretching
for up to 2 years after discharge to ease the transition for all new
veterans. A transition program, rather than this bill, would be simpler
to administer and would leave the VA compensation program intact to
help replace lost earnings and address quality of life issues caused by
service connected disabilities.
We attest that although the system is not perfect, when it is
consistently funded on time and provided adequate staffing levels, with
strong leadership by VA and oversight by Congress, it works. VFW
believes that there is no more deserving population of beneficiaries of
a strong VA system than the current generation of veterans, who are
returning from Iraq, Afghanistan and elsewhere in the Global War on
Terrorism.
Mr. Chairman and Members of the Subcommittee, this concludes the
VFW's testimony, I would be happy to answer any questions you may have.
Thank you
Statement of Craig M. Kabatchnick, Adjunct Law Professor, Supervising
Attorney and Director of the Veterans Law Project, North Carolina
Central School of Law
Chairman Hall, Members of the House Subcommittee on Disability
Assistance & Memorial Affairs, and honored guests:
On behalf of myself and those others involved in the Veterans Law
Project, which I direct, I wish to express our great appreciation for
the Subcommittee's holding today's important hearing on House Bills
H.R. 67, H.R. 1435, H.R. 1444, and H.R. 1490. We truly value this
opportunity to present our position on these proposed pieces of
legislation that are intended to provide appropriate benefits to the
millions of veterans who have served our great nation.
I want to thank Chairman Hall for introducing H.R.1444, his
proposed legislation to ``Direct the Secretary of Veterans Affairs to
make interim benefit payments to veteran claimants under certain
remanded claims''; Representative McIntyre for introducing H.R. 67, the
proposed ``Veterans Outreach Improvement Act of 2007''; Representatives
Donnelly and Upton for introduction of H.R. 1490, their proposed
legislation to ``Provide for a presumption of service-connectedness for
certain claims for benefits under the laws administered by the
Secretary of Veterans Affairs''; and Representative Baca for
introducing H.R. 1435, his proposed legislation to ``Direct the
Secretary of Veterans Affairs to conduct a pilot program to reduce the
backlog of claims for benefits pending with the Department of Veterans
Affairs''. These legislative initiatives are great examples of keeping
faith with the millions of veterans to whom the Nation has a sacred
obligation.
The Veterans Law Project does not receive any grants, or contracts
from the federal government.
OVERVIEW OF THE VETERANS LAW PROJECT AT NORTH CAROLINA CENTRAL SCHOOL
OF LAW
The Veterans Law Project, which has not received any grant or
contract from the Federal government, is a follow-up to a 1991 American
Bar Association study. That study showed that veterans who had
disability claims and whose income was less than $50,000 were more
likely to represent themselves in the Court of Veterans Appeals once
they had received an adverse ruling by the Board of Veterans' Appeals
(BVA). That study also made the point that about 80% of self-
represented litigants reported that they could not afford an attorney.
These results were especially ominous because although it was the
original intent of the Congress to create a statutory scheme that would
be non-adversarial, pro-claimant and veteran friendly, the reality is
that a confusing, complex, bureaucracy has evolved to handle the
adjudication of veterans' benefits. In fact, the adjudication of
veterans' benefits claims has in many circumstances become such an
antagonistic adversarial process that as a consequence, the need for
representation by competent veterans' law practitioner's has become
nearly unavoidable.
The unfortunate facts are that the adjudication of veterans' claims
and its administrative appeal process can take three to 5 years in the
best of circumstances, and 10 years or more in the worst. Congress now
allows a veteran to retain and compensate an attorney or qualified
agent to represent the veteran before the Department of Veterans
Affairs, the BVA or the United States Court of Appeals for Veterans
Claims. However, current law does not allow a veteran to compensate an
attorney until the administrative appeal process is final and adverse
through the issuance of a final BVA decision and denial of the
veteran's claim. This means a veteran cannot pay his or her attorney
until after the Board of Veterans' Appeals has issued a final adverse
decision.
The Congress in November 1988 passed the Veterans' Judicial Review
Act. This legislation allowed--for the first time in the Nation's
history--judicial review of decisions involving veterans' benefits.
This law allows a veteran to appeal to a court the denial of any
veteran's benefits by the Department of Veterans Affairs. The veteran
may represent him or herself, pro se before the court. From the
creation of the United States Court of Appeals for Veterans Claims, the
pro se filing rate, meaning the veterans who filed without an attorney,
has been consistently 70%. This means that seven out of ten veterans go
to court without a legal representative.
Going to court without competent legal representation is like going
to war unarmed. It is an unfair fight. At court for the first time the
government is openly adversarial. At court the Department of Veterans
Affairs is represented by the VA's General Counsel. The VA General
Counsel's job is to defend the Agency and its denial of benefits in
Court. The General Counsel's Office employs trained legal
professionals, whose job it is to persuade the Court that the decision
of the Agency was correct and should be affirmed. The General Counsel's
Office will aggressively work toward that goal. A veteran, who is
unrepresented before the court, is simply at a completely and totally
unfair disadvantage. This is also true of the interactive processes
between the VA and the veteran during the claims processing that goes
on prior to the VBA activity-level has been reached.
The only way to even the playingfield, and to better assure that
complete, fully developed claims cases are being presented to the VA,
is to afford veteran claimants with competent legal assistance early on
in the claims process. The Veterans Law Project at the North Carolina
Central University School of Law provides a prototype for meeting the
great need, in the manner in which those much needed legal assistance
services should be made delivered.
The prototype Veterans Law Project that is now in operation in the
state of North Carolina operates as a legal clinic in conjunction with
the North Carolina Central University School of Law to provide legal
assistance to veterans and their dependents with respect to VA claims
of various types. The Veterans Law Project believes that by making
legal assistance available early on in the claims process, it
significantly reduces the VA's caseload by reducing the front-end
effort needed to process a claim to reviewing and developing the
evidence, considering legal and factual arguments and analysis, and
rendering a decision. Also, by improving the completeness and quality
of the veterans original claim submission, it will significantly reduce
the number of remanded cases.
The Veterans Law Project does not seek to displace the VSOs
(County-level or those Veteran's Service Organizations like the VFW) in
providing representation to veterans. The veterans claims process
system within the VA would be best served if veterans had the freedom
to--and a readily available resource from which to--seek legal
assistance at no cost to themselves.
As to the argument that veterans should be protected from unethical
or inexperienced attorneys, the practice of law is now regulated in
terms of ethics, fees and professional responsibilities. Currently, the
VA has capped attorney fees in all post-BVA decision cases at 20% of
recovered benefits. Veterans Law Project personnel who assist VA
claimants at an earlier stage of the proceedings are prohibited from
charging fees and are not entitled to any portion of recovered
benefits.
The prototype Veterans Law Project operates as a legal clinic under
the supervision and mentorship of a Director, who has experience in
dealing with the VA. This Director is the Supervising Attorney and also
an Adjunct Law Professor who teaches veterans law. In addition to the
Supervising Attorney, law students from the North Carolina Central
School of Law and the University of North Carolina, Chapel Hill perform
many services in support of the Veterans Law Project.
The Veterans Law Project fills an existing need for legal
assistance to help veterans get their initial claims developed in such
way that they have an increased probability of favorable adjudication,
and also to assure that, the claims are properly constituted if
eventual judicial review at the United States Court of Appeals for
Veterans Claims level, or at United States Court of Appeals for the
Federal Circuit is needed.
Participating law students assist with the screening of files and
sorting incoming claims and documents necessary for claims development,
interview veterans as to the validity of their claims, assist veterans
with the technical aspects of filing their claims, perform legal
research, prepare supporting legal briefs, help a claimant file all
applicable forms, assure that the initial development of a claim is
completed within the time limits imposed by the VA, and perform
whatever other tasks are required to successfully move the veterans'
claims through the related adjudication process. The level of legal
training necessary to render this assistance is reached by law students
with a modest amount of legal training that is presented through weekly
classes at the Law School. These participating students receive credit
for clinical study under arrangements between the clinic and the
University's School of Law.
In addition to helping veterans to develop their claims, the law
students also assist in ordering further medical examinations, when
needed, and in assuring that the VA performs its broadened duty to
assist veterans in the development of their claim required both by the
Veterans Claims Assistance Act of 2000, and case law.
Prior to filing an appeal with the Board of Veterans Appeals, which
is staffed solely by VA attorneys, the students assist with the filing
of a Notice of Disagreement with an adverse VA rating decision, after
which a statement of the case is issued by the VA explaining the
rationale for the VA rating decision. Thereupon an appeal to the Board
of Veterans Appeals can be properly filed with the assistance of the
law students under the guidance of the Veterans Law Project.
HR 1436--PROPOSED LEGISLATION FOR A PILOT PROGRAM TO REDUCE THE BACKLOG
OF CLAIMS FOR BENEFITS PENDING WITH THE DEPARTMENT OF VETERANS
AFFAIRS
The VA has seen over 200,000 veterans from Operation Enduring
Freedom/Operation Iraqi Freedom, which is less than half of the total
number of the veterans who have been separated from active duty. This
number can only increase, especially with the numbers of those serving
overseas increasing. Over the course of time a very large percentage of
these veterans will, at some point, become claimants for service-
connected disabilities associated with causes for which they are now
only receiving medical care and or treatment. Claims for disability
filed with the VA will only increase over the course of the next two
decades--even if there is not another similar major military engagement
during that period.
We who are involved with the Veterans Law Project feel that we must
do everything we can to assure that these men and women are properly
cared for and that their claims for service-connected disability
compensation are quickly and fairly evaluated and processed. The cost
of providing responsive claims evaluation and processing is part of the
ongoing costs of the Global War on Terrorism. The costs associated with
fulfillment of the national obligation to veterans for their service is
any as aspect of this mission of which the Committee and this
Subcommittee is a part. The Veterans Law Project believes that ultimate
passage of HR 1435 is consistent with that responsibility.
Reports indicate that around 60,000 recently separated service-
members have been diagnosed with some form of mental problems by the
VA, and almost 40,000 of these men and women have been diagnosed with
PTSD. It's true: nobody goes to war and returns the same person.
Veterans' claims for service-connected disability related to brain
trauma, a relatively new basis for claims, mental health problems, and
the forecast increase in PTSD diagnoses is an area of claims processing
in which the VA is relatively inexperienced. The caseload in these
areas will greatly increase over the next 10 years. While the VA is
making substantial progress in these areas, improvements must be made;
and additional capacity to handle claims of this specialized nature
must be added.
The last time we looked into it, the VA had over 800,000 individual
claims and appeals for compensation, pension, and education benefits.
This is a massive backlog of claims, which has resulted in 6-month
waits for initial ratings decisions on compensation claims. We at the
Veteran's Law Project initiative feel that this is unacceptable.
About 600,000 of those claims are for disability compensation. Any
delay in providing benefits to these wounded service-members makes it
difficult for them to provide for themselves and their families.
Further, because access to the VA health care system is curtailed for
many veterans without compensable service connections, delays in
compensation decisions deny these veterans the health care and
treatments they need to lead productive lives.
Despite the best efforts and intents of VA managers, the backlog
continues to grow, and with increasing numbers of returning veterans,
it can only go up. As the number of cases on the backlog grows, the
difficulty of managing the backlog and finding solutions to the
systematic problems will only get worse.
The VA claims that much of the problem with the backlog has to do
with the complexity of the cases. While we would acknowledge that the
complexity of claims has increased, the Veterans Law Project views this
as a problem of resources--both in terms of numbers and requisite
skills. We feel that by enacting the ``Pilot Program to Reduce the
Backlog of Claims for Benefits Pending with the Department of Veterans
Affairs'' and embracing the Veterans Law Project concept in the states
where the Pilot Program is implemented a significant, measurable,
reduction in remanded claims cases will result. Veterans Service
Officers from both County-level Veterans Service Offices and the Major
Veterans Service Organizations, such as the Veterans of Foreign Wars
(VFW), can acquire the assistance of third and 4-year law students,
working within the Veteran's Law Project, who have already acquired
``Paralegal'' skills in assembling case files in conformance with
applicable regulations and laws. With legal assistance made available
to veterans early in the claims process, the VA's task would be reduced
in reviewing and developing the evidence, analyzing legal and factual
arguments, and rendering decisions.
While funding new VA positions and redeploying resources freed up
under the Pilot Programs could certainly direct more manpower force
onto the task of reducing backlogs, working in cooperation with the
various service officers and the Veterans Law Project could help the VA
to do even more.
The VA's staffing needs to be adequate to meet the demands placed
upon its system. The only way that a meaningful dent in the backlog can
be made to reduce the current delays is by employing more, and
qualified, resources to the backlog problem--a problem that will only
be exacerbated by the large influx of Operation Iraqi Freedom and
Operation Enduring Freedom veterans. The size of the backlog is proof
positive that this is not being done and we at the Veterans Law Project
look forward to being part of the solution.
For a veteran on his or her own, trying to navigate the highly
bureaucratic VA claims process can be a nightmare, and a number of
veterans just give up in their efforts to prosecute their claims for
service-connected disability. Denying them their earned benefits,
necessary compensation, and/or access to health care for their
disabilities, is not how a nation should treat its heroes.
The Veterans Law Project and its offspring can augment the programs
envisioned by the ``Proposed Legislation for a Pilot Program to Reduce
the Backlog of Claims for Benefits Pending with the Department of
Veterans Affairs'' byworking with various service officers and using
participating law students to assist with the screening of files,
sorting incoming claims and documents necessary for claims development,
interviewing veterans as to the validity of their claims, assisting
veterans with the technical aspects of filing their claims, performing
legal research, preparing supporting legal briefs, helping claimants
file all applicable forms, assuring that the initial development of a
claim is completed within the time limits imposed by the VA, and
performing whatever other tasks are required to successfully move the
veterans' claims through the related adjudication process.
In addition to the law students helping veterans to develop their
claims, they also can assist in ordering further medical examinations
when needed, and insuring that the VA applies its broadened duty to
assist a veteran in the development of their claim which is required by
the Veterans Claims Assistance Act of 2000, and by case law.
HR 67--VETERANS OUTREACH IMPROVEMENT ACT OF 2007
While the Veterans Law Project believes that Federal, state and
local governments; and VSOs; all have a heavy responsibility to reach
out to eligible veterans and make them aware of the entitlements,
programs, and benefits that Congress has made available for them, we
feel that it is counter-productive for the Congress to make available
to the various state veterans welfare agencies a program that is
optional in its implementation and will almost certainly cause state
legislators to become inclined to reduce their current funding
authorizations for veterans programs, in light of the availability of
additional Federal funding. We feel that the provision in the proposed
Bill which provides that the funding provided to the states cannot be
used ``for the purpose of administering outreach supporting funds, and
are limited to no more than 50 percent of the total cost of such State
and local government activities, and shall be used to expand existing
outreach programs and services, not to supplant existing State and
local funding'' will not deter an offsetting reduction in state funding
in those states that have already implemented programs.
The Veterans Law Project believes that the envisioned appropriation
to support the proposed legislation, as currently offered, would be
better spent in aiding veteran outreach efforts of the various Non-
governmental Organization (NGO) Veterans Service Organizations (VSO)--
not as direct funding support but in the form of informational packets
and centrally produced ad-spots or online media information releases to
be used as their ``message'' toolkits.
The single most important factor in making a veterans outreach
program successful, is the ability of the program to ``touch'' the
veteran or the veteran's family--no other entity has a more focused
need to do so than the various VSO's--as Membership recruiting is the
impetus for their effort expenditure.
The outreach program features envisioned in this proposed
legislation will be more efficiently and broadly applied and executed
through use of the VSO recruiting infrastructure that already exists;
it will cost taxpayers far less than the proposed alternative; and it
only lacks the informational toolkit referred to earlier to effectively
reach out to veterans and their families.
HR 1490--PROPOSED LEGISLATION TO PROVIDE FOR A PRESUMPTION OF SERVICE-
CONNECTEDNESS FOR CERTAIN CLAIMS FOR BENEFITS UNDER THE LAWS
ADMINISTERED BY THE SECRETARY OF VETERANS AFFAIRS
The Veterans Law Project fully supports the proposed legislation
that would ``Provide for a Presumption of Service-Connectedness for
Certain Claims for Benefits under the Laws Administered by the
Secretary of Veterans Affairs''. It is a fact that in the world of
veteran's claims, determining eligibility is the most difficult part of
the veteran's challenge.
To file a claim, a veteran has to satisfy two main conditions--the
injury or condition for which the claim is to be made has to have
occurred while in the military (service-connectedness); and a
determination must be made that the injury is causing ongoing problems.
It is the ``Service Connectedness'' that presents the real challenge
for many veterans--proving something happened in the military is often
very, very hard to do. Often, one piece of documentation usually can
clear matters up very easily--the veteran's DD214, which will have
medals, rank, job codes and presents a fairly good history.
More often than not, obtaining the veteran's DD-214 is impossible.
In far too many instances--too many to count--none of a veteran's
papers exist anymore. In the absence of a DD-214, putting together a
claim is very nearly impossible. The number of veterans' records that
were destroyed in the fire at the National Personnel Records Center in
St. Louis is unknown, but clearly was very large--estimated at between
15-18 million records!
For Army personnel, it is estimated that 80% of the personnel
records were destroyed for those who were discharged between November
1, 1912, and January 1, 1960. For Air Force Personnel, it is estimated
that 75% of the personnel records were destroyed for those who were
discharged between September 25, 1947, and January 1, 1964 (with names
alphabetically after Hubbard, James E).
This records loss affects mainly those veterans of the Korean war
and earlier conflicts, and early combat veterans in the Vietnam War. In
many cases, even their backup records are gone as well, having been
destroyed in the fire at the National Archives.
Today, as many of the Subcommittee Members know full-well, it is
not uncommon that a veteran must enlist the aid of his or her
representation in Congress in an effort to get their claim into the VA
system, when there is no record of the veteran's service except the
statements of relative or friends, who are willing to give testimony
that a frustrated claimant was actually a member of the armed forces.
All too often, veterans who were injured during a war or conflict
don't file claims for many years which makes proving their eligibility
more difficult. The time between their service and the present makes it
very problematic to establish a claim, though certain specific
illnesses, such as Type II diabetes and certain cancers, are easier to
prove.
Today, a few non-profit organizations exist which have dedicated
their resources to assisting veterans in the filing of their claims.
Thus, the Armed Forces Services Corp. (AFSC). AFSC lends assistance to
veterans in proving service-connection. Their personnel are
knowledgeable, and are pretty thorough in evaluating the necessary
proof, and will assist the Member or the surviving family Member in
filing the claims paperwork. The problem for most veterans is that
``they simply don't know what they don't know''. Consequently, sources
of assistance such as the Veteran's Law Project and AFSC are of no
assistance to the many veterans who can easily become befuddled by the
VA's bureaucracy.
Those of us associated with the Veterans Law Project feel that a
liberal broadening of the practice of presumptive service-connectedness
will offer great relief to a large number of veterans who are, today,
finding it nearly impossible to prosecute their claims for service-
connected disabilities and illnesses.
HR 1444--PROPOSED LEGISLATION TO DIRECT THE SECRETARY OF VETERANS
AFFAIRS TO MAKE INTERIM BENEFIT PAYMENTS UNDER CERTAIN REMANDED
CLAIMS
The Veterans Law Project fully supports the proposed legislation
that would ``Make Interim Benefit Payments under Certain Remanded
Claims'' under the Laws Administered by the Secretary of Veterans
Affairs. The proposed legislation relates specifically to claims
submitted by veterans for ``Compensation for Service-Connected
Disability or Death''; or for claims by the dependents of veterans for
``Dependency and Indemnity Compensation for Service-Connected Deaths''.
While the Veterans Law Project supports the payment of interim
benefits during the period in which a remanded claims case is being
processed by the VA, we feel that the period of time proposed for the
VA to make a decision on the matter prior to beginning of payments is
too long, and simply provides yet another additional reason for delay
in the payment of disability or death benefits to those veterans who
are eligible. We strongly urge that this provision of the proposed Bill
be changed to direct that interim payments be begun if no decision has
been made by the VA after 30 days.
The VA can, and sometimes does, expedite requests for disability
assistance--which is rare--usually, the only time they are willing to
do so, is if extreme financial hardship or a chronic condition is
involved. We feel that in cases of remands the same sense of urgency
ought to be routinely followed.
In the case of disability or illness, there are already too many
instances of the claimants dying before they ever receive any claims
benefit payment--all too often payments for which the veteran is in
dire need. The receipt of $500.00 per month may well represent the
difference between a minimal quality of life and no life at all.
We feel that the proposed provision that ``if (1) the final
decision the award of benefits, the amounts paid as interim benefits
shall be considered to be an advance payment of benefits owed for any
period before the date of such final decision (except that if the total
amount of interim benefits paid is greater than the amount of
retroactive benefits, the amount of the difference shall not be
considered to be an overpayment for any purpose)'' and (2) if ``the
final decision is not to award benefits, the amounts paid as interim
benefits shall not be considered to be an overpayment for any purpose''
are absolutely essential, given the circumstances of many of our
veterans.
Those associated with the Veterans Law Project have no issue to
take regarding the appropriateness of the ``Effective Date'' provisions
of the proposed legislation.
Statement of Robert Vincent Chisholm, Past President, National
Organization of Veterans Advocates
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
Thank you for the opportunity to present the views of the National
Organization of Veterans' Advocates (``NOVA'') on the following bills:
(1) H.R. 67; (2) H.R. 1435; (3) H.R. 1444 and (4) H.R. 1490. NOVA is a
not-for-profit 501(c)(3) educational organization created for
attorneys and non-attorney practitioners who represent veterans,
surviving spouses, and dependents before the Court of Appeals for
Veterans Claims (``CAVC'') and on remand before the Department of
Veterans Affairs (``DVA''). NOVA has written many amicus briefs on
behalf of claimants before the CAVC and the United States Court of
Appeals for the Federal Circuit (``Federal Circuit''). The CAVC
recognized NOVA's work on behalf of veterans when it awarded the Hart
T. Mankin Distinguished Service Award to NOVA in 2000. The positions
stated in this testimony have been approved by NOVA's board of
directors and represent the shared experiences of NOVA's members as
well as my own sixteen-year experience representing claimants at all
stages of the veteran's benefits system from the Regional Office to the
Board of Veterans Appeals to the CAVC as well as before the Federal
Circuit.
H.R. 67 Veterans Outreach Improvement Act of 2007
This bill if enacted would increase the funding provided for
outreach activities and require increased cooperation and coordination
amongst the various state agencies and their Federal counterparts. It
has been my experience that the Department of Veterans Affairs has many
excellent programs which truly can help our most vulnerable veterans.
The veterans most in need of these services are the ones most likely to
go unaware of their existence.
In addition, our returning soldiers are often ill-prepared for the
transition to civilian life following their time in service. This can
be an extremely stressful time, even without the bureaucratic hassles.
Some veterans are reluctant to use VA services either because of pride
or the feeling that they do not deserve these benefits. As a
consequence, many eligible veterans do not know what VA programs are
available to them. Finally, most veterans simply do not have the
patience to wade through the avalanche of paperwork that confronts them
when they do approach the VA.
Congress and the people of this country are truly in debt to this
nation's veterans, and in response we have provided our Nation's
veterans with some excellent benefits. But that debt remains unpaid
when our veterans go unaware of the benefits they deserve. NOVA
believes that H.R. 67 is critical for veterans and fully supports this
bill.
H.R. 1435 Department of Veterans Affairs Claims Backlog Reduction Act
of 2007
The goal of this bill is to help clear the backlog of approximately
500,000 cases pending at the regional offices around the country. NOVA
believes this is a laudable goal and supports reasonable measures that
will directly advance that goal.
The bill would in essence outsource the development of certain
claims to the County Veterans Service Officers. The Secretary would be
required to identify and classify claims in the backlog that need
further development. Once the claims needing further development are
identified by the Secretary, they would be referred to the County
Service Officers for development.
It has been NOVA's experience that one of the most time consuming
steps in the adjudication of claims is indeed the development of
claims. There are two critical parts to the development process. First,
the Secretary is required to examine the evidence on each claim and
then determine what evidence needs to be obtained or developed in order
to rate a claim. Second, a letter is sent requesting that evidence and
the file is calendared forward for follow-up by the Regional Office. It
is at the first step in the process of development that the Secretary
needs to devote more resources. Analyzing the evidence in the veteran's
VA claims file to ascertain what needs to be developed consumes
significantly more time than requesting the information. NOVA believes
it would behoove Congress to consider adding more staff to the VA
Regional Offices to review the claims in the backlog and identify the
evidence that needs to be developed.
NOVA is also concerned about who would have responsibility for the
VA claims folder once it is placed with the County Service Officers.
For example, once the file is transferred to the County Service
Officer, does the veteran call the VA or the County Service Officer for
updates on the case? As this Committee is well aware over the last few
years there have been a number of serious security breaches at the VA.
This bill does not address how security will be maintained when cases
are transferred to the County Service Officers. Finally, if a VA file
is lost in the transfer process, this would result in even greater
delay.
County Service Officers provide excellent service to thousands of
veterans every day. We do not believe that they should do the VA's job
for it, however. It is unclear how this law would make the current
process more efficient, and it would take valuable time from County
Service Officers whose expertise will be needed more each day as our
soldiers returning from Iraq and Afghanistan separate from service and
apply for benefits.
H.R. 1444 INTERIM PAYMENTS FOR CERTAIN REMANDED CLAIMS
The Need for a Remedy for Delay
1. Remanded Claims in General
A claimant who files a new claim for benefits that is denied by the
VA usually faces a three- to five-year horizon before he or she
receives a decision from the Board of Veterans' Appeals. Unfortunately,
what many of these veterans receive from the Board of Veteran's Appeals
is a not a final decision on their claim but a remand to the regional
office for more development. The following statistics \1\ tell the
story of the percentage of cases remanded by the Board each year:
---------------------------------------------------------------------------
\1\ This data was obtained from the ``Report of the chairman of the
board of Veterans' Appeals for Fiscal Year 2006.''
---------------------------------------------------------------------------
(1) Fiscal Year 2003: 42.6%;
(2) Fiscal Year 2004: 56.8%;
(3) Fiscal Year 2005: 38.6%
(4) Fiscal Year 2006: 32.0%
When a veteran receives a final adverse decision from the Board of
Veterans' Appeals, he or she has the right to appeal the case to the
United States Court of Appeals for Veterans Claims (``CAVC''). Since
the CAVC's creation in 1988, on average 60% to 65% of the cases that
receive a merits determination from the Court are in turn remanded back
to the Board. Over the last 2 years, the number of appeals to the CAVC
has increased by about 30% each year which shows increased
dissatisfaction with the decisions from the Board of Veterans'
Appeals.\2\ The time the case takes in Court can range from a low of 3
months to more than 2 years. The problem is that many claimants do not
survive the adjudicatory process. Those claimants who do survive are
subjected to interminable delays before the VA.
---------------------------------------------------------------------------
\2\ This data is from the annual reports of the CAVC's and is
available at http://www.vetapp.gov/documents/Annual--Reports.pdf.
---------------------------------------------------------------------------
2. Remanded Claims and the Right To Expeditious Treatment
In 1994, Congress enacted the Veterans Benefits Improvement Act.
section 302 of the Act, Pub.L. No. 103-446, 302, 108 Stat. 4645, 4658
(1994), which provided for expeditious treatment for veterans claims
that were remanded from the Court of Appeals for Veterans Claims back
to the Board of Veterans Appeals. In addition, the same Act required
claims remanded from the Board to the Regional Offices to receive
expeditious treatment. The statute specifically mandates that ``[t]he
Secretary of Veterans Affairs shall take such actions as may be
necessary to provide for the expeditious treatment, by the Board of
Veterans' Appeals and by the regional offices of the Veterans Benefits
Administration, of any claim that has been remanded by the Board of
Veterans' Appeals or by the United States Court of Veterans Appeals for
additional development or other appropriate action.'' This act was
codified in 2003 by P. L. 108-183, Title VII, 707(a)(1), 117 Stat.
2672 at 38 U.S.C. 5109B. It provides that ``[t]he Secretary shall
take such actions as may be necessary to provide for the expeditious
treatment by the appropriate regional office of the Veterans Benefits
Administration of any claim that is remanded to a regional office of
the Veterans Benefits Administration by the Board of Veterans'
Appeals.'' In addition, P. L. 108-183, Title VII, 707(a)(1), 117
Stat. 2672 codified the VBIA at 38 U.S.C. 7112 which provides that
the Secretary shall take such actions as may be necessary to provide
for the expeditious treatment by the Board of any claim that is
remanded to the Secretary by the
Court of Appeals for Veterans Claims.
The intent behind the VBIA 1994 and the subsequent statutory
codification is clear: Congress wants those claimants who have been
unable to get a final decision from the Board to thereafter receive
expeditious treatment whether on remand from the CAVC or on remand from
the BVA to the Regional Offices. The problem is the VA has failed to
execute the will of Congress.
3. Delay_Not Expeditious Treatment_Is the Norm
Typically, veterans face years of delay instead of receiving the
expeditious treatment required by Congress. Delay occurs at two
critical junctures:
1. When a case is remanded from the Court to the Board, and
2. When the Board remands a case back to the RO and the denial is
sustained by the RO. In this latter situation, the matter is supposed
to retain its earlier Board docket number but most cases are assigned
new docket numbers. Docket numbers are important because the Board is
required to decide cases in order of their docket numbers.
As noted above, the first significant time delay occurs when the
cases are remanded from the CAVC to the Board of Veterans Appeals. When
a case is remanded from the Court to the Board, the Board is required
to allow the claimant and the representative of record 90 days to
submit additional evidence. Once the claimant or the representative
respond, the Board is required to render a new decision. In my
experience, claimants are generally waiting between 6 months to a year
for a new decision once the cases is remanded from the CAVC to the
Board of Veterans' Appeals.
The second situation, when the Board remands a case back to the
Regional Office, causes far more grievous delay, especially where the
RO grants a part of the claim, but then commits error by denying less
than the full relief required by law. In that situation, Congress
requires that the BVA expeditiously review the RO's decision, but often
it does not.
B. The Remedy--Interim Payments for Certain Remanded Claims
As set forth above, the Secretary has not been able to make a
decision within 180 days of a remand. In fact, in the VA adjudication
system, the Secretary does not really have any deadlines within which
he must make a decision.
H.R. 1444 seeks to ameliorate the harsh effects caused by the
remand delay by requiring the Secretary to make interim payments. NOVA
supports this goal. Nevertheless, the language of the bill raises the
following issues:
1. For some disabilities like tinnitus, the maximum rating
possible under the VA rating schedule is only 10% which presently
equals $115.00 per month. If a veteran files a claim for VA disability
benefits for one of the conditions where the maximum rate payable under
the VA rating schedule is less than $500.00 per month, this could cause
some unintended negative consequences.
2. What if a veteran files claims for multiple conditions and all
are remanded. Is there just one $500.00 payment per month for the
veteran or is there $500.00 for each claim?
3. Some have suggested that the practical effect of this bill
would be for the VA just to deny the claims outright as the 180 day
time limit approaches. To prevent this from happening, Congress should
define ``final decision'' and ``finally decided'' as the point in time
when the veteran has exhausted all administrative and court appeals.
H.R. 1490 PRESUMPTION OF SERVICE-CONNECTEDNESS FOR SUBMITTED CLAIMS.
This bill if enacted would represent a profound change in the
manner in which VA adjudication of claims occurs. A claim filed by a
veteran would be presumptively valid unless the Secretary determines
there is affirmative evidence to the contrary. Once a claim is granted,
it might not be reviewed for years because only a percentage of the
claims granted under this provision will actually be audited. In
addition, the bill would require the Secretary to redeploy VA personnel
from processing and rating activities to assist veterans with their
claims.
NOVA believes this bill is extraordinarily veteran friendly and
seeks to provide a solution to the claims processing delays that occur
at the VA. We fully support the generous intent of this bill. However
its effect is unclear.
NOVA is concerned that one possible outcome is that the VA would
simply change the boilerplate language in its decisions to say that
``there is positive evidence to the contrary'' of the veteran's claim
and the VA would deny just as many claims as it presently does. By way
of example, under the current law, a veteran is supposed to receive the
``benefit of the doubt'' when the evidence for and against his claim is
in equipoise. One would assume this doctrine would lead to many granted
claims in situations where there is no evidence for or against a
veteran's claim, such as when his service records have been lost or
destroyed by the VA. But this is not the case. The benefit of the doubt
doctrine is effectively rendered meaningless due to the VA's inclusion
of the following line in many of its decisions: ``The preponderance of
the evidence is against the claim,'' so ``the benefit of the doubt
doctrine is therefore not for application.'' NOVA foresees a similar
development as a result of this bill.
Statement of Ronald R. Aument, Deputy Under Secretary for Benefits,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to testify on the four bills under consideration today.
H.R. 67
H.R. 67, the ``Veterans Outreach Improvement Act of 2007,'' would
require the Secretary to establish, maintain, and review procedures for
ensuring the effective coordination of outreach activities within the
Department of Veterans Affairs (VA). It would also authorize VA to make
grants to state veterans agencies for the purposes of carrying out,
coordinating, and improving outreach and assistance in the development
and submittal of benefit claims. In addition, states could use grant
funds to educate and train state and local government employees who
provide veterans outreach services in order for those employees to gain
accreditation. H.R. 67 would also authorize VA to enter cooperative
agreements and arrangements with state veterans agencies to carry out,
coordinate, or improve outreach by VA and the states. Finally, this
bill would require a separate appropriations account for VA's outreach
activities and would authorize the appropriation of $25 million for
each of the fiscal years 2007, 2008, and 2009 to carry out the outreach
activities mandated and authorized by this bill.
Although VA supports the goal of improving outreach, we believe
that, in light of the legislative changes made by Congress last year
and recent VA-initiated changes in outreach coordination, Congress
should allow VA to implement and assess these changes before taking
additional measures.
First, VA believes the provision mandating procedures to ensure the
effective coordination of VA outreach activities is unnecessary because
VA is already taking steps to improve outreach coordination. For
example, in August of 2005, Secretary Nicholson established the Office
of National Outreach Programs (Office), which is charged with working
with VA's administrations and staff offices to coordinate and monitor
major VA outreach efforts to ensure veterans and their families have
timely access to information regarding VA benefits and services. The
Office is also responsible for developing and implementing
administrative and operational policies related to outreach.
The Office coordinates with VA's senior leaders and the
communications offices in the Veterans Health Administration (VHA),
Veterans Benefits Administration (VBA), and National Cemetery
Administration (NCA) to develop national, regional, and local outreach
plans to inform specific veteran populations, their families, and
service providers of VA benefits and services.
Additionally, on March 6, 2007, President Bush issued an Executive
Order establishing the President's Commission on Care for America's
Returning Wounded Warriors (Commission). One of the four missions of
the Commission is to ``analyze the effectiveness of existing outreach
to service Members regarding such benefits and services, and service
Members' level of awareness of and ability to access these benefits and
services, and [to] identify ways to reduce barriers to and gaps in
these benefits and services[.]'' We expect the Commission's findings to
be useful in helping us to identify and address gaps in our outreach
activities.
We believe H.R. 67's requirement that VA annually review procedures
for ensuring effective coordination of outreach is unnecessary because
38 U.S.C. 6302 and 6308, which were added to title 38, United States
Code, just last year, require VA to establish a biennial outreach plan
and report to Congress on the implementation of the plan, including
recommendations to improve outreach. The first outreach plan is due on
October 1, 2007, and our first report is due to Congress no later than
December 1, 2008. In addition, section 805 of Public Law 108-454
requires VA to conduct a survey and report to Congress on service
members', veterans', family Members', and survivors' awareness of the
benefits and services provided by VA; the findings of the survey will
be submitted to Congress in 2010. In view of the plans and reports
currently required by law, the imposition of additional requirements is
unnecessary.
Second, H.R. 67's requirement to condition grants to state veterans
agencies on provision of assistance to programs in locations with large
or growing veteran populations would not provide VA sufficient
flexibility to reach other deserving veteran populations, such as rural
or smaller communities. Furthermore, we are not convinced that this
program would be the most efficient use of the $25 million per year the
bill would authorize. If Congress decides to provide money to perform
outreach to veterans, it should also give VA the flexibility to reach
out to all veterans, not just those in large or growing veteran
communities.
If funds are appropriated as authorized, enactment of H.R. 67 would
cost $75 million over fiscal years 2007-2009. We estimate
administrative costs involving two additional full-time employees at
the GS11/12/13 level and $250,000 per year for travel, materials,
training, and so forth., to administer the grants program.
H.R. 1435
H.R. 1435, the ``Department of Veterans Affairs Claims Backlog
Reduction Act of 2007,'' would require VA to conduct in California,
Florida, Ohio, South Carolina, and Texas a 3-year pilot program whereby
claims identified by VA as needing further development would be
referred to a County Veterans Service Officer (CVSO) for further
development and transmitted back to VA in ready-to-rate condition. This
bill would also permit benefit claims to be submitted to CVSOs under
the pilot program and require such claims to be treated as if received
by VA. In authorizing a CVSO to develop a referred claim, the bill
would require the CVSO to advocate for the claimant and ``work through
and in cooperation with'' any veterans service organization appointed
as the claimant's representative. Under the pilot program, CVSOs would
have full access to veterans' information in VA's Benefits Delivery
Network as well all appropriate electronic files concerning the
claimant whose claim has been referred to development. Finally, this
bill would require VA to report to Congress the effect the pilot
program had on reducing the claims backlog and would authorize to be
appropriated for each participating state such funds as may be
necessary to carry out the pilot program.
Although reducing the backlog of pending claims is one of VA's
highest priorities, VA opposes enactment of H.R. 1435 for several
reasons.
First, under current law, accredited representatives of
organizations recognized by VA, including CVSOs, may prepare and
prosecute benefit claims. In fact, developing evidence to the point
that claims are ready to be rated by VA is already one of the main
responsibilities of these claim representatives. Therefore, in this
respect, this bill would result in Federal funds going to just one
category of representatives for performing responsibilities they
already have.
Second, VA is concerned that the pilot program may potentially
adversely affect VBA's adjudication workload. Currently, nearly 20
percent of VBA's adjudication workload is from the five states chosen
in the bill to participate in the pilot program. If unforeseen problems
arise during the course of the pilot program, claim processing could be
disrupted.
Third, to the extent this provision is intended to facilitate claim
filing, VA has already created a faster, safer, and more efficient
means. Today, a claimant can file a claim for benefits electronically
over the Internet. This service allows a claimant to file from any
Internet-enabled computer, creating greater access and eliminating the
need to personally appear at a VA office or mail a claim. However,
claimants who choose not to use this service still have the option of
filing a claim in person at a local regional office or mailing the
claim directly to VA, thus eliminating the need to file it with a CVSO.
Fourth, CVSOs are funded by state or local tax revenues to benefit
local veterans on behalf of the state or local taxpayers. This bill
would authorize Congress to appropriate funds to support CVSOs involved
in the pilot program. We believe that any additional funds for claim
processing should be to support VA staff who are not only accountable
to VA, but who also serve all veterans, not just those living in areas
that provide CVSO representation.
Fifth, VA is concerned that the bill may conflict with
representation agreements entered into between claimants and their duly
appointed claim representatives, including attorneys, agents, or
Veterans Service Organization representatives. The bill appears to
undercut the role of a claim representative appointed by the claimant
because it would, in effect, create a dual system of representation by
making the CVSO the claimant's advocate. Dual representation would
create confusion and would be inefficient because representatives
chosen by claimants and CVSOs developing claims under this bill would
likely duplicate efforts. VA may be required to send additional notice
letters, thereby reducing efficiency, and VA would nonetheless be
required to fulfill its notice and claim development obligations under
current law.
Finally, this bill's authorization of appropriations concerns us
for two reasons. First, the bill is unclear how the costs of the pilot
program are to be determined. For example, do the costs include the
salaries and benefits provided to CVSOs? Do they include overhead such
as rent and office supplies? If that is the case, then the bill would
effectively shift a cost currently funded by state and local tax
revenues to the Federal government. Additionally, we are not sure of
whether state and local computer systems are able to support the
information-technology security programs mandated for VA computers, the
costs associated with bringing them into compliance, and who would be
responsible for such costs.
More importantly, however, this bill mandates the pilot program be
carried out in six states but only authorizes appropriations. If
additional appropriations are not made to fund the pilot program, then,
presumably, resources must be taken from VBA's General Operating
Expense appropriation. If that were to occur, VBA would be forced to
reallocate resources to pay for the pilot program. VBA would have to
either take funds from allocations for states not participating in the
pilot program and reallocate them to cover the cost of the pilot
program in participating states or reduce funding to VBA activities in
the participating states and reallocate them to CVSOs participating in
the pilot program. The former alternative would be unfair to veterans
not living in a participating state, and the latter would hurt the
timeliness of adjudication of claims in the participating states
because fewer VBA personnel would be available to rate claims.
VA estimates that it would cost $69 million to conduct the 3-year
pilot program created by H.R. 1435.
H.R. 1444
H.R. 1444 would require VA to pay an interim benefit in the amount
of $500 per month if a claim for benefits has been remanded by the U.S.
Court of Appeals for Veterans Claims or the Board of Veterans' Appeals
in ``a case'' involving a claim for disability compensation, pension,
or dependency and indemnity compensation, and VA does not decide ``the
matter'' within 180 days of the date of the remand. It would require VA
to pay $500 per month to ``each claimant under the claim'' until ``the
matter'' is finally decided. When a claim for which interim benefits
are being paid is finally decided, amounts paid as interim benefits are
to be considered an advance payment of benefits owed for any period
before the date of the final decision if the claim is granted. In no
case are amounts paid as interim benefits to be considered an
overpayment. H.R. 1444 would also require VA to report to Congress, not
later than 6 months after the date of enactment, on measures VA intends
to take to expedite the processing of remanded benefit claims.
VA opposes this bill for several reasons. First, it would create an
incentive to submit claims of dubious merit, obtain a remand, and
extend the claim-development process by piecemeal submission of
information and evidence and multiple requests for extension of
deadlines, for as long as possible in order to maximize the amount of
interim benefits payable. A claimant's cooperation with VA can reduce
the time it takes to resolve a remanded claim. Inversely, a claimant's
lack of cooperation can delay the resolution of a claim. The law
requires many procedural steps in developing and deciding claims and
often provides substantial minimum periods in which claimants are
required to respond to requests for information or evidence. There are
also generous provisions for requesting extensions of deadlines. H.R.
1444's requirement that VA pay interim benefits and permission for
claimants to keep them regardless of whether they are ultimately found
to be entitled to the amounts already paid or entitled to benefits at
all would create a strong financial inducement to making the
development time last as long as possible.
By allowing claimants to retain interim benefits that would not
have been paid but for this provision, this bill would in effect punish
taxpayers for untimely decisions. Further, it is unlikely to improve
adjudication timeliness because it does nothing to alleviate the causes
of adjudication delay. We believe the President's budget provides VA
the necessary resources to achieve VA's production goals.
Finally, the interim benefit of $500 is approximately the amount
paid to a single veteran with a service-connected disability rated at
40 percent (currently $501 per month). However, in fiscal year 2005,
nearly 60 percent of all veterans receiving disability compensation had
a combined rating of 30 percent or less. Given that two-thirds of
remanded claims are eventually denied and that nearly 60 percent of
claimants entitled to disability compensation receive between $115 and
$348 per month, the interim benefit rate of $500 per month is
artificially high and would likely unjustly enrich many disability
compensation claimants.
VA estimates that enactment of H.R. 1444 would result in a cost of
$46.2 million during the first year, $112.9 million for 5 years, and
$180.1 million over ten years.
H.R. 1490
H.R. 1490 would require VA to presume that a claimant presenting a
claim for benefits with respect to service-connected disability or
death has presented a valid claim of ``service-connectedness'' provided
that the claimant supports the claim with proof of service ``in a
conflict'' and a description of the nature (including the connection to
such service) of the disability or claim. VA would not have to presume
the validity of the claim if VA determines there is positive evidence
to the contrary. H.R. 1490 would also require VA, immediately upon
processing the claim, to award benefits at a ``median level'' for the
type of disability described in the claim until the appropriate level
of benefits is determined. The bill would also require VA to audit a
percentage of claims to uncover and deter fraud. These provisions would
apply to claims ``presented'' on or after the date of enactment and to
claims still pending or not fully adjudicated as of the date of
enactment. Finally, the bill would require VA to redeploy claim-
processing personnel who are no longer needed to evaluate service-
connection claims to Vet Centers or other locations for the purpose of
assisting veterans apply for benefits related to service-connected
disabilities.
VA opposes H.R. 1490. Under current law, a claimant has the
responsibility to present and support a claim for benefits. The basic
elements necessary to establish a claim for service-connected
disability compensation are: (1) the existence of a present disability;
(2) in-service incurrence or aggravation of a disease or injury; and
(3) a causal relationship between the present disability and the
disease or injury incurred or aggravated during service. H.R. 1490
appears to require VA to presume that all elements of the claim have
been established based on the assertions of the claimant; thus, the
only thing for VA to determine is the appropriate level of benefits. It
is not clear whether VA would be expected, or permitted, to conduct any
development to determine whether there is positive evidence to overcome
the presumption.
While VA supports getting benefits into the hands of deserving
claimants as soon as possible, VA opposes H.R. 1490 for several
reasons. First, VA is concerned that a presumption of service
connection creates an incentive to file invalid claims, especially when
benefits would be paid without appropriate claim development. If the
intent is for VA to presume any current disability is service connected
based on the veteran's statement without any supporting documentation
or verification, then the system would be ripe for fraud and abuse. If
VA audited as many as 25 percent of claims to determine whether the
claimed disability is in fact service connected, an unscrupulous
claimant would still have excellent odds of obtaining and retaining
benefits based on an invalid claim.
Second, by making immediate payments upon processing of a claim, VA
may in many cases pay benefits to claimants whose claims would not be
granted if fully developed and, in many other cases, may pay benefits
at a rate ultimately determined not to be warranted. Furthermore, this
bill gives no guidance as to whether Congress intends for an
overpayment to be assessed and recouped from a claimant if the true
benefit rate proves to be less than the median level of payments made.
Failure to asses and recoup overpayments would increase the incentive
to file a marginal or invalid claim. On the other hand, frequent
creation of overpayments and a resulting need to collect them would
divert VA resources from other claim-adjudication activities.
Third, one of the predicates to the presumption of service
connection under this bill would be proof of ``service in a conflict.''
The meaning of this term, which is not defined in the bill or in title
38, United States Code, is uncertain. For example, it is unclear
whether it is intended to refer to service in combat, service in
wartime, or service in a theater of operations. The meaning of the term
would affect the scope of the presumption of validity.
Fourth, this bill would have major, apparently unintended,
consequences for the veterans health-care system. Any veteran whose
disability compensation claim is presumed valid and who is awarded a
median rating under this provision would be eligible for VA health
care. In fact, VHA estimates that 3.2 million new Priority 8 veterans
who are not currently eligible to enroll would become eligible for VA
health care. Of further concern is the effect on such a veteran if he
or she is later determined not to be entitled to disability
compensation. Such a veteran would then have to be disenrolled from
care. Apart from the potential disruption of care, it is unclear
whether a veteran would be financially liable for medical care received
while entitled to compensation based on the presumption if the veteran
is later found not to be entitled to compensation. In addition, subject
to the existence of an employment handicap, veterans awarded
compensation under the provisions of this bill may become eligible for
vocational rehabilitation and employment benefits.
Fifth, to the extent the bill is intended to simplify the
adjudication process and free up resources, we question whether any
reduction in claim-processing staff would be realized. Even if all
elements of the claim are presumed to be met based on the veteran's
statements, a likely significant increase in the total number of claims
received and the burden of dealing with audited claims would likely
consume any savings from not fully developing claims.
Furthermore, even if savings in claim processing were to occur, VA
is concerned with the bill's apparent contemplation that claim-
processing personnel be redeployed to Vet Centers. The Vet Center
program has a specific and unique function to provide outreach and
adjustment counseling to war veterans and to assist them in a
successful social and psychological readjustment to civilian life.
Furthermore, Vet Centers currently provide veterans with information
about VA benefits and refer them to VA benefits counselors or veterans'
service officers for assistance with benefit claims. We are concerned
that placing claim-processing personnel in Vet Centers would not be
consistent with the goals and functions of the Vet Centers.
Assuming that all original and reopened compensation claims
projected in the FY 2008 President's Budget submission are granted
under the presumption for service connection, obligations may increase
by as much as $173 billion over 10 years. This projection applies the
average payment projections included in the budget model and does not
include an expected increase in the number of claims received or an
increase in the number of issues filed per claim. The mandatory costs
do not include anticipated increases for the Vocational Rehabilitation
and Employment account. With the increase in compensation
beneficiaries, the number of veterans rated 20 percent or more would
increase. These veterans would become eligible for Vocational
Rehabilitation and Employment benefits resulting in increased mandatory
spending. As mentioned earlier, this bill would apply only to veterans
with ``proof of service in a conflict referred to in such claim.'' If
this term is further defined, it may result in a decrease in the
overall mandatory costs.
This concludes my statement, Mr. Chairman. I would be happy to
entertain any questions you or the other Members of the Subcommittee
may have.
Statement of Kimo S. Hollingsworth, National Legislative Director,
American Veterans (AMVETS)
Mr. Chairman and Members of the Subcommittee, thank you for holding
this hearing and providing American Veterans (AMVETS) the opportunity
to testify regarding pending claims legislation.
As this Committee is aware, AMVETS hosted the ``National Symposium
for the Needs of Young Veterans'' in Chicago, Illinois last year. More
than 500 veterans, active duty and National Guard and reserve
personnel, family Members, and others who care for veterans examined
the growing needs of our returning veterans. Some of the issues
relevant to today's hearing identified at the Symposium include the
claims backlog and seamless transition. AMVETS believes these issues
are inextricably linked.
The Department of Veterans Affairs (VA) claims backlog is a
relatively old issue that is complicated and multi-faceted. Currently,
the backlog is way over the 600,000 mark and it continues to grow at a
rapid rate. Rather than making headway and overcoming the chronic
backlog, VA has lost ground on the problem. By VA's estimates, over
263,000 Operation Enduring Freedom (OEF)/Operation Iraqi Freedom (OIF)
veterans will seek VA services; most of them will want to file a claim.
Secretary Nicholson has said that reducing the backlog is one of VA's
highest management priorities.
The reasons for the claims backlog are many--veterans repeatedly
filing claims, a lack of quality control, misplaced or lost
documentation and a lack of staffing. Overall, AMVETS believes that a
lack of quality control is central to this issue. VA must establish a
long-term strategy focused on attaining quality and not merely
achieving quotas in claims processing. Veterans Benefits Administration
(VBA) can greatly reduce the backlog by hiring more staff, initiating
quality training programs, and most importantly, instituting an
accountability program.
Equally important, Congress must ensure that VA and the Department
of Defense (DOD) are held accountable for ensuring a seamless
transition. Congress directed VA and DOD to collaborate on health care
issues 25 years ago when it passed Public Law 97-174. Congress should
encourage the continued collaboration and sharing of health care issues
to include the standardized use of electronic medical records. VA and
DOD collaboration in the area of electronic medical records has a
direct impact on the VA claims backlog issue.
AMVETS fully understands that the VA and DOD are two distinct and
separate health care systems. While there has been progress in the
sharing of electronic data between the two agencies, progress is still
limited. The technology is clearly available for complete electronic
medical records collaboration, and now is the time for this to become a
system-wide reality.
Despite years of collaboration on a single separation physical and
the development of the Benefits Delivery at Discharge exam (BDD), the
Department of Defense (DOD) and VA still conduct separate separation
physicals and separate compensation and pension exams. Furthermore,
separation physicals are still not mandatory. Congress should require
the DOD to conduct mandatory separation physicals and also require DOD
to utilize the BDD that was jointly developed and agreed to by both
agencies. The effective Benefits Delivery at Discharge joint physical
was successfully demonstrated from 1995 through 1998 and still isn't
universally adopted.
In addition, AMVETS would encourage the VA to expand the practice
of putting adjudication officers in VA offices aboard active duty
military bases. For example, VA has an office aboard Camp Lejeune, NC.
The office is staffed with qualified contract medical personnel and
full-time VA claims adjudicators. Separating servicemembers are
provided compensation exams on base. Many claims are adjudicated and
issued a temporary rating decision pending receipt of a DD-214. Once
discharged, many new veterans are receiving compensation and disability
benefits within 30 days of final release from active duty. Addressing
the issue of filing a claim when a servicemember begins the separation
process is a crucial first-step and a lasting, long-term solution to
reducing the VA claims backlog.
As the number of OEF/OIF veterans continues to grow, so will the
number of VA claims. I truly believe that we are now near a
``culminating point'' that will determine the future of VA claims for
generations to come. Claims backlogs have spanned several
Administrations and it is clear that the VA is either unwilling or
unable to resolve this issue.
While veterans, the VSOs, the VA and the Congress all share
responsibility for this debacle, what is very clear is that
congressional intervention is now necessary. It is also very clear that
the Department of Defense (DOD) has been absent in sharing
responsibility for the backlog of VA claims. DOD must be forced to
comply with congressional intent with regards to Seamless Transition.
If Congress does not intervene, the system will fail.
The VSOs must also ensure that all veterans understand the claims
process, the timeframes involved, and the evidentiary requirements the
veteran must meet. The VA must implement technological changes into the
claims process (move from paper filing to electronic filing). VA also
needs more, and better trained, claims adjudicators. Finally, VA needs
``buy-in'' from DOD--veterans are still making hard copies of their
medical records and having to hand delivered them to the VA. This is
unacceptable!
Regarding the legislation pending before the House Committee on
Veterans' Affairs, AMVETS is supportive of H.R. 1444, legislation to
direct the Secretary of Veterans Affairs to make interim benefit
payments under certain remanded claims, and H.R. 1490, legislation to
provide for a presumption of service-connectedness for certain benefits
claims. Both of these bills provide the Secretary of Veterans Affairs
with authority to essentially start providing disability and
compensation benefits for claims against the government, pending a
favorable rating decision.
Provided the department issues reasonable implementation guidance,
the bills could assist veterans receive benefits for claims that have a
high degree of being awarded. While these legislative proposals may not
directly aid in reducing the immediate backlog, the bills serve to
provide veterans financial and possibly medical relief while waiting
for a determination by the department.
Although AMVETS fully supports the intent of H.R. 67, the Veterans'
Outreach Improvement Act, we are concerned that this legislation is
moving VA toward implementing yet another ``unfunded mandate'' on the
department. AMVETS believes that VA has a demonstrated history of
effective outreach. This legislation authorizes a total of $75 million
over a 3-year period, for what appears to serve as a ``pass-through''
for Federal dollars to fund state and veterans county service programs.
Overall, outreach activities attempt to provide prevention information,
education, counseling, referrals and treatment options to targeted
populations rather than wait for an individual to actively seek out
services. While AMVETS is sensitive to the plight of veterans and their
families and supports the intent of this legislation, we are concerned
that it holds the potential to steer critical funding away from health
care.
Regarding H.R. 1435, the Claims Backlog Reduction Act, AMVETS would
like to share several observations. Provided VA will train and accredit
allowing full access to files in the Benefits Delivery Network, this
could be a positive step in assisting veterans and VSOs in developing
claims. However, generally speaking, State and County Veterans Service
Officers are required to accept and submit all claims they receive.
AMVETS believes that this obligation to accept any and all claims will
actually result in growing the backlog instead of helping.
Moreover, many state and local governments prevent State and County
Veteran Service Officers from accepting a power of attorney to act as a
custodian on behalf of the state or county. Most are certified or
accredited through one of the several Veteran Service Organizations
(VSO) and are generally allowed to act as the custodian based on this
accreditation. Passing this legislation will ultimately require a State
or County Veteran Service Officer the authority to accept a power of
attorney with the legal representation/custodian being the state or
county.
Last, AMVETS believes that a review of claims backlog legislation
would be incomplete without a discussion of Congress' authorization of
private attorneys to access VA and charge veterans for representation
in veterans' disability claims. The Veterans Benefits Administration
has indicated allowing attorneys to represent veterans will only
complicate and lengthen the resolution of veterans' disability claims.
Despite these findings, Congress ignored the recommendation of VA and
the VSOs and passed legislation to allow private attorneys to represent
veterans during the claim process.
AMVETS has 58 National Service Officers located across the country
whose sole job is to aid veterans with their claim. We do provide--free
of charge--a more thorough and complete representation for veterans and
their families. We do not have any financial interests in a claim, and
our National Service Officers know the Veterans Benefits Administration
system. Recently, the Board of Veterans Appeals released its Fiscal
Year 2006 Report. Out of the major VSOs, AMVETS has the lowest numbers
of appeals submitted. Ultimately the report proves that organizations
like AMVETS are filing well-developed and meaningful claims. Allowing
attorneys to represent veterans will most likely complicate the process
by legal maneuvering in lieu of good sound claim development. AMVETS
asks that this Committee review its decision, and rescind this law.
Statement of Brian Lawrence, Assistant National Legislative Director,
Disabled American Veterans
Mr. Chairman and Members of the Subcommittee:
On behalf of the 1.3 million Members of the Disabled American
Veterans (DAV), I appreciate the opportunity to express our views on
the following bills which were considered during the Subcommittee
hearing on April 17, 2007.
H.R. 67, the Veterans Outreach Improvement Act of 2007
This legislation would direct the Department of Veterans Affairs
(VA) to establish procedures for effective coordination of outreach
activities between the various offices and administrations within VA,
and to ensure that state and local outreach assistance is provided in
locations that have large concentrations of veterans or are
experiencing growth in veteran populations. It would also authorize the
VA to make grants to state veteran agencies for state and local
outreach services. The bill would authorize $25 million to be
appropriated annually through fiscal year 2009 for the outreach efforts
and grants.
The DAV understands the importance of reaching out to veterans to
inform them of benefits to which they may be entitled, and expends
considerable resources in this regard. Both the DAV Veterans'
Information Seminar program and the DAV Mobile Service Office (MSO)
program are designed to educate disabled veterans and their families on
veterans' benefits and services. In both programs, highly trained
Members of DAV National Service Officer Corps provide service deep
within veterans' communities across the country to counsel and assist
veterans in completing applications for benefits from the VA and other
government agencies.
While outreach is important, we believe a higher budget priority
for VA is to decrease the number of backlogged VA compensation claims.
Therefore, the $25 million that would be authorized by H.R. 67 for
outreach would be better utilized if it was put toward a program that
would help reduce the backlog. For instance, the Benefits Delivery at
Discharge (BDD) is a program that assists servicemembers at
participating military bases with development of VA disability
compensation claims prior to release from active duty. The discharge
physical is conducted under VA disability examination protocols either
by VA medical staff, contract medical examiners or military personnel.
BDD fosters a seamless transition from the military to the VA system
and accelerates claims for compensation.
Many questions also arise as to how H.R. 67 would be established.
For instance, it would apparently press certain local government
officials into Federal service without any involvement or agreement by
their employers.
In summary, the DAV does not oppose H.R. 67, but we would prefer to
see its proposed funding directed toward the more urgent need for
resources within the VA claims processing system.
H.R. 1435, the Department of Veterans Affairs Claims Backlog Reduction
Act of 2007
This legislation would establish a 3-year pilot program in an
effort to reduce the backlog of pending claims for VA benefits. More
specifically, it would require the VA to refer certain claims needing
further development to County Veterans Service Officers (CVSO) in
California, Florida, Ohio, South Carolina, and Texas. CVSO staffs would
act as claimant advocates in developing such claims, and would be
granted access to client information contained in the VA Benefits
Delivery Network.
The DAV is strongly opposed to this legislation. It is the Federal
government's responsibility to provide benefits and services to Members
of the Armed Forces. The VA is the agency that administers such
benefits, and it does so effectively for health care, insurance and
memorial affairs. But because the VA has efficiency problems within its
claims processing system, its responsibility for assisting veterans
with the development of their claims should not be shifted to local
government officials. Veterans may currently enlist the help of a CVSO
as a designated power of attorney (POA) for representation in a claim
if they wish, but they are not required to do so. Requiring CVSO
representation would be unfair to veterans who may choose to grant POA
to a number of other veterans' service organizations that employ
service officers that, in many instances, receive more extensive and
superior training than is available to a CVSO. Additionally, because
the need for further claims development often translates to the need
for a more thorough VA medical examination, channeling the process
through a CVSO would be an added, unnecessary step that would increase
veterans' waiting times and add to the backlog. Further consideration
should also be given to the security of veterans' highly sensitive and
personal information, and the problems this bill might create in that
regard.
The DAV has for the past several years brought attention to the
problems that have been steadily building within the VA claims
processing system. Along with identifying the sources of these
problems, we have offered solutions to reduce the backlog and restore
efficiency to the claims processing system. I would refer Members of
the Subcommittee to our prior testimonies on this issue, including our
recent statement on the fiscal year 2008 budget for VA, which provides
the core steps that must be taken to address the claims backlog
problem.
While we appreciate the Subcommittee's consideration of innovative
methods to address the problems within VBA, the DAV does not believe
this bill presents a sound idea and we encourage the Subcommittee to
reject it.
H.R. 1444
This legislation would require the VA to pay an interim benefit of
$500 per month when a claim for veterans' benefits is remanded by
either the U.S. Court of Appeals for Veterans Claims or the Board of
Veterans' Appeals and the VA does not make a decision on the matter
within 180 days of the date of the remand.
The DAV appreciates the Subcommittee's effort to provide financial
relief to veterans whose claims have been on appeal for some time, but
we do not support this legislation. If enacted, this bill could lead to
abuse of the system by some who might deliberately delay the appeal
process in order to obtain the maximum amount of interim benefits. A
number of procedural steps are in place to allow veterans adequate time
to develop evidence to support claims appeals, and extensions of
deadlines are also available for veterans to submit evidence. Such
protections could be manipulated to maximize the amount of interim
payments by dragging an appeal out as long as possible. Therefore the
DAV opposes this well intended but flawed legislation.
H.R. 1490
This legislation would provide a presumption of service connection
to veterans presenting a claim for VA disability compensation or death
benefits. Immediately upon processing the claim, VA would award
benefits at a median level for the type of disability until the
appropriate level of benefits is determined. The bill would also
require VA to audit a percentage of claims to uncover and deter fraud.
It would direct VA to redeploy, for the purpose of assisting veterans
applying for benefits, those employees involved with processing claims
that are no longer needed to evaluate claims due to the above
presumption.
The DAV does not support the idea of presumption of service-
connectedness for submitted claims. The laws and regulations
formulating the VA ratings system are complex and veterans would both
knowingly and unknowingly file meritless claims for benefits. The
resulting penalties and overpayments would create a hardship for those
who were audited, and the massive increase in mandatory funding that
would certainly follow enactment of this legislation would place undue
hardship on taxpayers because a large percentage of benefits paid would
be unwarranted.
The DAV appreciates the Subcommittee's consideration of innovative
ways to address the longstanding problems within the VA claims
processing system. However, we believe that addressing the issue will
require measured steps to correct the problems at their core. VA needs
adequate resources to hire an adequate number of full time employees.
It requires resources to establish a comprehensive training program to
bring new employees up to the standard of knowledge that will allow
them to rate claims properly; and finally, VA needs to hold employees
accountable for their work. Emphasis should be placed on quality as
well as efficiency. Employees who fail to meet a specified level of
accuracy should be required to take remedial training. Should accuracy
problems remain after remedial training, the employee should be removed
from a decisionmaking position and either terminated or relocated to a
position that can be adequately fulfilled. VA should have the authority
to make such changes so that our Nation's disabled veterans and their
families can rely on a VBA that measures up to other administrations
within the VA.
Mr. Chairman and members of the Subcommittee, the DAV appreciates
the opportunity to submit our views for the record. We look forward to
our continued work with the Subcommittee to serve our Nation's disabled
veterans and their families.
Delayed Benefits Frustrate Veterans
Hundreds of Thousands of Disability Claims Pending at VA; Current Wars
Likely to Strain System Further
Washington Post Article,
April 8, 2007
By Christopher Lee
Washington Post Staff Writer
Sunday, April 8, 2007; A04
In his last years, World War II veteran Seymour D. Lewis would
stand at the door of his home in Savannah, Ga., waiting for a letter
that never arrived.
The family of the former Army private, who lost the hearing in his
right ear to a grenade explosion in basic training in 1944, spent years
wrestling with the federal bureaucracy for his disability benefits, at
one point waiting more than a year just to be told to fill out more
forms.
In 2001, the Department of Veterans Affairs started sending Lewis a
monthly check for $200, an amount he appealed as too little and too
late for the lasting physical sacrifice he made for his country, his
family said. The appeal was still pending when Lewis died last year at
age 80.
``Every time I would call, they would send me a new form to fill
out, with exactly the same information that they already had,'' said
his son Frank A. Lewis, 61, a Navy veteran. ``They run you around. They
keep you dangling. . . . My father was elderly. He would wait at the
front door for the mailman, waiting for something from the VA. When he
would get a letter, he would anxiously open it, and when it said
nothing, the depression he would go into was unreal. I have a feeling
they were just waiting for my father to drop dead so they wouldn't have
to pay any money. It's been one big nightmare.''
Hundreds of thousands of veterans, many approaching the winter of
their lives, await VA disability claim decisions that will provide or
deny a key source of income. The monthly payments, which range from
$115 to $2,471 for individuals, are available to veterans of any age
whose disability is ``a result of disease or injury incurred or
aggravated during active military service,'' according to the Veterans
Benefits Administration.
Nearly 400,000 disability claims were pending as of February,
including 135,741 that exceeded VA's 160-day goal for processing them.
The department takes 6 months, on average, to process a claim, and the
waiting time for appeals averages nearly 2 years.
This already strained system may grow more overburdened in years
ahead as many of the troops deployed to Iraq and Afghanistan return
from those wars, experts say. VA gives veterans from the current
conflicts top priority in claims processing.
``The projected number of claims from the wars in Iraq and
Afghanistan will rapidly turn the disability claims problem into a
crisis,'' said Linda J. Bilmes, a Harvard University professor of
public policy who has studied the claims process and met with VA
Secretary Jim Nicholson last month to discuss ways to improve it.
Bilmes, who noted that those officially wounded in combat would be a
small percentage of new veterans applying for compensation, estimated
the long-term cost of providing them disability benefits at $70 billion
to $150 billion.
Presidents, Members of Congress and VA leaders have long promised
to eliminate the backlog, but still the veterans wait. Some depict a
cultural problem at VA--an attitude of indifference or hostility among
claims workers, a lack of appreciation for veterans' service reflected
in snubbed phone calls, slow answers and repetitive paperwork. Some
even believe the delays are deliberate, a way to keep costs down by
deterring new claims or postponing awards until older veterans die.
``Once we can no longer be utilized as a soldier, we are of no use
to them,'' said Michael Foley, 52, a former Navy intelligence
specialist who served in Vietnam and Cyprus during the seventies.
``There is an impression of indifference when you are dealing with the
VA benefits people. They are going to get a paycheck no matter what.''
Foley has trouble sleeping and endures nightmares from things he
saw in the service. The Thomasville, N.C., resident said he is in
therapy for post-traumatic stress disorder, but VA denied the
disability benefits claim that he filed more than 2\1/2\ years ago. He
has appealed. Foley also wants VA compensation for a heart procedure in
2004 that he says left him in the hospital for 137 days with
complications that included a paralyzed right leg.
``A lot of people think all veterans want a handout. That's not
it,'' said Foley, who is unemployed and lives on less than $1,100 a
month, including a $240 VA pension. ``When I was in the Navy, they
asked me to do things. At the time, it was exciting. My grandfather
warned me that this was going to come back and bite me . . . 1 day. And
it has. I lost my job, my house and everything else.''
Ronald R. Aument, VA deputy undersecretary for benefits,
acknowledged that the department needs to do better, but he rejected
the idea that the delays and denials are motivated by money concerns.
``It's not as though we're working on commission here,'' Aument
said. ``There is very much a shared passion in this organization in
trying to do right by veterans. . . . As far as whether or not we treat
people rudely, I would certainly hope that's just an exception as
opposed to the rule.''
The department fields 7 million phone calls about disability claims
each year, he said. Forty-eight percent of the workers who handle
claims are veterans. In part, the process is slow so that veterans have
time to submit documents and other evidence bolstering their cases,
Aument said.
The VA load is getting heavier. Disability-related claims rose to
806,000 in 2006--a 39-percent increase from the claims filed in 2000.
The work force handling them grew by 36 percent over the same period,
to 7,858 employees. VA officials expect 800,000 new claims this year.
Veterans' disabilities are also growing more complex, with
increasing claims for PTSD, diabetes (often tied to herbicide exposure
in Vietnam) and multiple ailments. As the veteran population grows
older, those who suffer from chronic, progressive conditions--heart,
joint and hearing problems, for example--file repeat claims, which
account for more than half of all claims, VA says.
Earl Armstrong, 87, a former Army technician from Ravenna, Ohio, is
a repeat filer.
Armstrong drove an armored vehicle and won a Purple Heart and a
Bronze Star while serving under Gen. George Patton in France and
Germany in 1944. He suffers from PTSD and persistent ringing in his
ears, the latter from the machine gun that was mounted a few feet from
his head, he said. The problems have worsened, and for 3 years
Armstrong and his wife have tried to persuade VA to raise his
disability rating from 50 percent to 100 percent, which would more than
triple the couple's $781 monthly compensation to $2,610.
``I am sick of the VA and the way they've been treating us,''
Armstrong said. ``I can't understand it. There's too many [claims], I
guess, and they don't have enough people to handle them.''
VA handed out $34.5 billion in disability payments to more than 3.5
million veterans and their survivors last year. Aument said VA has
increased its claims workforce by more than 580 people in the past year
and plans to hire more than 400 additional staff by June. ``The
cornerstone of our long-term strategy is to develop more processing
capacity,'' he said.
It is too early to predict whether there will be a ``huge surge''
of claims from Iraq and Afghanistan veterans, Aument said, and claims
for severe disabilities such as lost limbs are those VA can process
fastest. Still, some older veterans say their younger counterparts are
in for a rude awakening when they apply.
Army veteran Raymond L. Goings, 61, served as a military policeman
in Vietnam from 1969 to 1971, an experience that left the Las Vegas
resident with PTSD, he said. He praised his VA psychiatrists, but not
the regional office that denied the disability claim he has pursued for
3 years.
``Basically they said I was never being shot at, that the things I
told them I saw, I didn't see,'' said Goings, who has appealed. ``They
wanted dates and times, even though I tried to explain to them that
there are a lot of things about combat that I can't remember.''
Jerrel Cook of Joplin, Mo., another Army veteran, breathes with the
help of an oxygen tank and suffers from asthma, chronic bronchitis,
hearing loss, hypertension and thyroid problems. Cook, 62, blames
biological and chemical testing in Alaska while he was stationed there
in the mid-sixties. VA has denied his 5-year-old disability claim.
``They are playing a waiting game,'' he said. ``It's easier to
stall out until the veteran dies rather than to pay his claim. . . .
This is ongoing practice with the VA, and it's certainly something that
needs to be corrected.''
Congressional Research Service
CRS Report to Congress
Veterans Affairs: The Appeal Process for Veterans' Claims
Updated April 9, 2007
Douglas Reid Weimer, Legislative Attorney, American Law Division
Summary
Congress, through the United States Department of Veterans Affairs
(VA), provides a variety of benefits and services to veterans and to
certain Members of their families. These benefits range from health
care and related services to burial benefits. The veteran's basic
eligibility for these programs and services is usually determined by
the local VA office. Veterans not satisfied with the VA's decision(s)
may wish to have them reviewed and may appeal the decision(s). This
report traces the various steps involved in the appeal process--
starting with the original application for benefits and concluding with
an appeal to the U.S. Supreme Court. A flow chart outlining all of the
steps in the appeal process is provided.
Following the filing of the initial appeal, the local VA office
will either allow or disallow the claim. If the veteran/claimant wishes
to appeal, a written request for appeal must be filed and various time
deadlines and other requirements must be met prior to the case being
considered by the Board of Veterans' Appeals (BVA). The appeal before
the BVA may be a hearing at the local VA office by a traveling Board
Member; a hearing at the BVA office in Washington, DC; or a
videoconference hearing at the local VA office. Various filing
requirements and time limits must be met by the veteran/claimant in
his/her appeal. There are specific guidelines for a person representing
a veteran before the BVA. Legislation enacted in the 109th Congress
changed traditional guidelines to allow for legal representation for
veterans throughout the administrative appeals process.
The veteran/claimant may appeal the decision of the BVA to the
Court of Appeals for Veterans Claims (CAVC), which is an independent
federal court and not part of the VA. The decision of the CAVC may be
appealed by either the veteran/claimant or the VA to the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit), an Article III court
that sits in Washington, DC and has exclusive jurisdiction to hear
cases challenging CAVC rulings. Decisions of the Federal Circuit may be
appealed to the U.S. Supreme Court, which has final jurisdiction.
The VA has various statutory obligations to assist the veteran in
the preparation of his/her application for benefits and any subsequent
appeal(s). Among these obligations are assistance in the preparation of
the initial application; provision of various records; medical exams;
and other related issues. Certain legal and factual presumptions are
established by statute that may be favorable to the veteran's claim.
These issues are examined in the appendix to this report.
Legislation introduced in the first session of the 110th Congress
on the appeal process is summarized in the appendix.
Introduction
Veterans' Benefits
Congress, through the United States Department of Veterans Affairs
(VA) provides a broad variety of benefits and services to veterans and
certain Members of their families.\1\ Among the benefits that the VA
extends to veterans are various types of health care and related
services, such as nursing homes, clinics, and medical centers; various
types of financial benefits, including disability compensation and
pensions; education, vocational training, and related career
assistance; home financing; life insurance; burial benefits; and
benefits for certain family survivors.\2\
---------------------------------------------------------------------------
\1\ See generally Federal Benefits for Veterans and Dependents,
published by the Department of Veterans Affairs (2007 edition),
available online at http://www1.va.gov/opa/vadocs/fedben.pdf See CRS
Report RL33113, Veterans Affairs: Basic Eligibility for Disability
Programs, by Douglas Reid Weimer. This report deals with the
fundamental requirements for disability benefit programs. See CRS
Report RL33323, Veterans Affairs: Benefits for Service-Connected
Disabilities, by Douglas Reid Weimer. This report discusses various
aspects of disability compensation, a monthly cash benefit program for
veterans currently impaired from past service-connected activities.
\2\ See CRS Report RL33323
---------------------------------------------------------------------------
The veteran's basic eligibility for these various services and
programs is usually determined by the local VA office.\3\ Various
criteria must be met in order for the veteran to be eligible for VA
benefits and the local VA office scrutinizes the veteran's claim before
determining eligibility.\4\
---------------------------------------------------------------------------
\3\ The local VA office is defined by the VA as ``any local office
of the Department of Veterans Affairs where claims for VA benefits are
received and determined.'' This is usually a VA Regional Office or an
administrative office at a VA medical center. The legal term for such
an office is the ``agency of original jurisdiction.'' A VA Regional
Office is one of 58 VA regional offices located throughout the United
States and its territories, and it is at these offices where most
claims for VA benefits are filed and determined. Thus, all Regional
Offices are considered to be ``local offices,'' but the concept of
``local office'' may also include administrative offices located at VA
medical centers. Therefore, all Regional Offices are ``local offices,''
but not all ``local offices'' are Regional Offices. See Board of
Veterans' Appeals, Understanding the Appeal Process, published by the
Department of Veterans Affairs; VA Pamphlet 01-00-1 (Jan. 2000) at 38-
39 (cited to afterward as ``Understanding''). See http://www.va.gov/
vbs/bva/pamphlet.htm for the publication online. Go to the website and
click on ``Understanding the Appeal Process.''
\4\ See CRS Report RL33323
---------------------------------------------------------------------------
Appeals from the Local VA Office Decisions
Veterans not satisfied with the decisions made by the local VA
office on their claims or benefits may wish to have the decisions
reviewed on appeal.\5\ The VA has stated that the two most common types
of appeals are 1) the denial of benefits for a disability that the
veteran believes is service-connected; and 2) the veteran believes that
his/her disability is more severe than the VA has rated it.\6\ The
first issue involves disability compensation, which is a monthly cash
benefit for veterans currently impaired from past service-connected
activities.\7\ The second issue involves the VA's rating of the
severity of the veteran's disability--which is directly related to the
amount of monthly disability compensation (a cash payment) the veteran
receives.\8\ While these two issues seem to be the most prevalent types
of appeals, nearly any decision made by the local VA office concerning
veterans' benefits may be appealed.\9\
---------------------------------------------------------------------------
\5\ How Do I Appeal?, published by the Board of Veterans Appeals,
Department of Veterans Affairs; VA Pamphlet 1-02-02A (April 2002) at 1
(cited to afterward as ``How Do I Appeal?''). See http://www.va.gov/
vbs/bva/pamphlet.htm. Go to the website and click on ``How Do I
Appeal?'' for an online copy of the pamphlet.
\6\ Id.
\7\ See CRS Report RL33323
\8\ Id. at 7-10. For instance, the local VA office may determine
that the veteran is 10% disabled, while the veteran believes that he/
she is 40% disabled.
\9\ See How Do I Appeal? at 1. For example, a veteran may appeal a
denial of education benefits made by the local VA office.
---------------------------------------------------------------------------
An appeal of the local VA office's decision may be made to 1) the
local VA office (which made the original decision) and/or 2) the Board
of Veterans' Appeals (BVA), which is discussed below. The findings of
the BVA may be appealed to the U.S. Court of Veterans Claims.
Subsequent appeals may be made to the U.S. Court of Appeals for the
Federal Circuit and ultimately to the U.S. Supreme Court.
The Appeal Process
Flow Chart of the Various Steps in the Appeal Process
The appeal process consists of several steps. The following flow
chart provides a simplified outline of the steps that must be taken by
the veteran in his/her appeal. Each step is discussed in detail in the
text following the chart.
Figure 1. Appeal Process
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Source: Adapted from charts at How Do I Appeal? at 2 and
Understanding at 32.
Note: These filing time limits apply in most cases. However, they
do not apply to ``simultaneously contested claims,'' when more than one
person is trying to receive benefits that only one person is entitled
to, such as life insurance proceeds. See Understanding at 11.
Filing the Original Claim for Benefits at the VA
In order to apply for VA benefits, the veteran must file a claim at
the local VA office or VA medical facility.\10\ A claim for benefits
may also be filed online.\11\ The claim must specifically state the
requested benefit(s).\12\ Assistance to the veteran during the
application process may be provided by representatives from Veterans
Service Organizations (VSOs)\13\ and/or by other persons or agents.\14\
The VSOs have staff located at most local VA offices.
---------------------------------------------------------------------------
\10\ The local VA office is defined by the VA as ``any local office
of the Department of Veterans Affairs where claims for VA benefits are
received and determined.'' This is usually a VA Regional Office or an
administrative office at a VA medical center. The legal term for such
an office is the ``agency of original jurisdiction.'' A VA Regional
Office is one of 58 VA regional offices located throughout the United
States and its territories, and it is at these offices where most
claims for VA benefits are filed and determined. Thus, all Regional
Offices are considered to be ``local offices,'' but the concept of
``local office'' may also include administrative offices located at VA
medical centers. Therefore, all Regional Offices are ``local offices,''
but not all ``local offices'' are Regional Offices. See Board of
Veterans' Appeals, Understanding the Appeal Process, published by the
Department of Veterans Affairs; VA Pamphlet 01-00-1 (Jan. 2000) at 38-
39 (cited to afterward as ``Understanding''). See http://www.va.gov/
vbs/bva/pamphlet.htm for the publication online. Go to the website and
click on ``Understanding the Appeal Process.''
\11\ See How Do I Appeal at 3. File the claim at http://
www.vba.va.gov
\12\ Such benefits might relate to medical care, disability
compensation, or educational benefits.
\13\ Such organizations are the American Legion, the Disabled
American Veterans, and other veterans' groups.
\14\ See How Do I Appeal? at 3.
---------------------------------------------------------------------------
In addition to assistance that may be provided by the VSOs or other
agents, the VA is obligated by statute and regulation to provide
certain assistance to the claimant during the original claim procedure
and during any subsequent appeal(s). Such assistance many involve
locating and producing records and providing medical examinations.
Certain presumptions relating to medical conditions are also mandated
by statute. These obligations and presumptions are summarized in the
Appendix to this report.\15\
---------------------------------------------------------------------------
\15\ See discussion at Appendix.
---------------------------------------------------------------------------
Following receipt of the veteran's claim for benefits, the local VA
office will review the claim and make a decision about the
claim(s).\16\ The local VA office will either allow or deny the
claim.\17\ Where relevant, the local VA office may also rate (on a
percentage basis) the veteran's degree of service-connected
disability.\18\ The local VA office's determination will be mailed to
the veteran.\19\ If the veteran is not satisfied with the local VA
office decision, the veteran may appeal.
---------------------------------------------------------------------------
\16\ See CRS Report RL33323
\17\ Id.
\18\ Id. at 7-10.
\19\ See How Do I Appeal? at 3.
---------------------------------------------------------------------------
The Appeal: The First Steps
An appeal\20\ is a request for a review of a local VA
determination\21\ on a claim for benefits.\22\ Anyone who has filed a
claim for benefits with the VA and has received a determination from a
local VA office is eligible to appeal a complete or a partial denial of
a claim.\23\ The veteran may also appeal the level of benefit
granted.\24\
---------------------------------------------------------------------------
\20\ See 38 C.F.R. 20.200. What Constitutes An Appeal. ``An
appeal consists of a timely filed Notice of Disagreement in writing
and, after a Statement of the Case has been furnished, a timely filed
Substantive Appeal.''
\21\ See Understanding at 6. Most local determinations are made by
the local VA office. However, some determinations made by VA medical
facilities, such as eligibility for medical treatment, may also be
appealed.
\22\ 38 U.S.C. 511(a) outlines the authority of the Secretary of
the VA to make decisions regarding benefits for veterans.
\23\ Again, see Understanding at 6. Most local determinations are
made by the local VA office. However, some determinations made by VA
medical facilities, such as eligibility for medical treatment, may also
be appealed.
\24\ For example, a veteran may be determined to be 20% disabled
and the veteran may believe that he/she is 40% disabled and appeal.
---------------------------------------------------------------------------
Time Limit. The veteran seeking a review of the local VA office
decision (called ``the appellant'') has 1 year from the date on which
the local VA office mails the appellant its initial determination of
the claim to appeal. After one year, the local VA office determination
is considered final and cannot be appealed unless there is proof of
clear and unmistakable error on the part of the VA.\25\
---------------------------------------------------------------------------
\25\ See Understanding at 6-7.
---------------------------------------------------------------------------
The Notice of Disagreement (NOD).\26\ There is no special form
needed to initiate the appeal process. The appellant need only submit a
written statement disagreeing with the local VA office's claim
determination and stating the veteran's wish to appeal the claim
determination. This statement is called the Notice of Disagreement
(NOD).\27\
---------------------------------------------------------------------------
\26\ See 38 C.F.R. 20.201.
\27\ See Understanding at 39.
---------------------------------------------------------------------------
Appeal to the Local VA Office. The NOD is filed with the same local
VA office that made the decision being appealed,\28\ as this is the
location of the appellant's claims file or claims folder,\29\ unless
the appellant has moved. After the NOD is filed, the appellant may
request that his/her claims file be reviewed by a Decision Review
Officer (DRO) from the local VA office. The DROs provide a second
review of the entire file and may also hold a personal hearing on the
claim.\30\
---------------------------------------------------------------------------
\28\ 38 C.F.R. 20.300.
\29\ For the purpose of this report, the appellant's records will
be referred to as ``claims file.''
\30\ See How Do I Appeal? at 4.
---------------------------------------------------------------------------
The Statement of the Case. At this point, the local VA office will
either allow or not allow the claim. If the claim is disallowed, the
local VA office will prepare and send to the appellant a Statement of
Case (SOC) and a blank VA Form 9 to be used for continuation of the
appeal. The SOC summarizes the submitted evidence and the relevant laws
and regulations and provides the local VA office's reasons for making
its determination and disallowing the claim.\31\
---------------------------------------------------------------------------
\31\ See Understanding at 8-9.
---------------------------------------------------------------------------
VA Form 9 and the Substantive Appeal. \32\ To continue an appeal,
the appellant must fill out and return the VA Form 9--the Substantive
Appeal--to the local VA office. Form 9 is available online.\33\ The
appellant must state the requested benefit, any mistakes in the SOC,
and indicate whether a personal hearing is requested.\34\ The Form 9
becomes part of the claims folder and is the basis for adding the
appeal to the Board of Veterans Appeals docket. Specific provisions
exist for the withdrawal of the appeal.\35\
---------------------------------------------------------------------------
\32\ 38 C.F.R. 20.202.
\33\ See http://www.vba.va.gov
\34\ A personal hearing must be requested. Without such a request,
the BVA will review the claims file and the VA Form 9 and make a
decision without meeting or speaking with the appellant and his/her
representative.
\35\ 38 C.F.R. 20.204.
---------------------------------------------------------------------------
Supplemental Statement of Case.\36\ If the appellant submits new
evidence or information, the local VA office will prepare a
Supplemental Statement of Case (SSOC). The SSOC is similar to the SOC
and includes the newly submitted information.\37\ The appellant has
sixty days from the date the SSOC was mailed to submit, in writing, any
matter in dispute on the SSOC.
---------------------------------------------------------------------------
\36\ 38 C.F.R. 20.302(b), (c).
\37\ See Understanding at 40-41.
---------------------------------------------------------------------------
Time Limitation.\38\ The local VA office must receive the VA Form 9
within sixty days from the date that the VA mailed the SOC (or SSOC) or
within 1 year of the date that the original decision denying the claim,
whichever date is later.\39\
---------------------------------------------------------------------------
\38\ 38 C.F.R. 20.302.
\39\ Id. See How Do I Appeal? at 6.
---------------------------------------------------------------------------
Withdrawal of Issue(s). If the appellant does not wish the Board of
Veterans Appeals to examine an issue that is contained in the SOC or
the SSOC, the appellant may state on Form 9 that the appellant is
withdrawing the issue(s) on the appeal.\40\
---------------------------------------------------------------------------
\40\ See Understanding at 10.
---------------------------------------------------------------------------
Issues Related to the Appeal Process
Filing Extensions.\41\ An appellant may request an extension of the
sixty day filing period for filing a Substantive Appeal or the sixty
day period to respond to a Supplemental Statement of the Case.\42\ The
appellant makes this request in writing to the local VA office handling
the appeal. The appellant needs to explain to the VA local office why
extra time is needed to file.
---------------------------------------------------------------------------
\41\ 38 C.F.R. 20.303.
\42\ 38 U.S.C 5105(d)(3); 38 C.F.R. 20.303.
---------------------------------------------------------------------------
Representation for the Appeal.\43\ The appellant may represent him/
herself at the appeal. However, the VA has reported that about 90
percent of appeals heard before the Board of Veterans Appeals (BVA)
have some representation.\44\
---------------------------------------------------------------------------
\43\ See in general, 38 C.F.R. 20.600. Legislation pending in the
110th Congress, discussed below, may change the representation
available to appellants.
\44\ See Understanding at 12.
---------------------------------------------------------------------------
There are three different categories of representatives that the
appellant may engage. The first includes representatives of the VSO or
from the state or local veterans' office. Usually, the representatives
from the VSOs and the government veterans' offices do not charge for
their services.\45\ Second, the VA recognizes certain ``agents'' who
are able to represent appellants and who are certified by the VA.\46\
Third, the appellant may engage a lawyer for representation.\47\
---------------------------------------------------------------------------
\45\ See Understanding at 12.
\46\ 38 U.S.C. 5904; 38 C.F.R. 20.604.
\47\ 38 C.F.R. 20.603.
---------------------------------------------------------------------------
The appellant must complete a VA Form 21-22 to authorize
representation by a VSO or a related entity on the appeal.\48\ The
appellant must complete a VA Form 22a to authorize representation by a
lawyer\49\ or a recognized agent for his/her appeal.\50\ An appellant
is limited to one representative recognized by the BVA.\51\
---------------------------------------------------------------------------
\48\ 38 C.F.R. 20.602.
\49\ 38 C.F.R. 20.603.
\50\ 38 C.F.R. 20.604.
\51\ See Understanding at 12.
---------------------------------------------------------------------------
Attorney Representation: Recent Legislation. The Veterans Benefits,
Health Care, and Information Technology Act of 2006,\52\ enacted in the
109th Congress, modified attorney participation in the appeal process.
The act also requires the Secretary of the VA to provide additional
qualifications and standards for agents and attorneys who represent
veterans before the VA, including standards that deal with (1) training
and character and (2) fee criteria and limitations. The Secretary is
authorized to charge and collect fees from the agents or attorneys to
be used for administrative expenses for veterans' benefits programs.
The following grounds for suspension of agents or attorneys are
provided in the act: presenting frivolous claims, prior suspensions,
charging excessive or unreasonable fees, or failure to comply with the
Secretary's regulations.
---------------------------------------------------------------------------
\52\ P.L. 109-461, Title I.
---------------------------------------------------------------------------
The legislation significantly broadens opportunities for legal
representation during administrative appeals. Previously, an attorney
could not represent a veteran for a fee until the BVA made a final
decision.\53\ This had the effect of excluding an attorney from the
process until all of the administrative appeals had been exhausted. The
act now permits an attorney to enter the appeal process at a much
earlier date--after the veteran has received a decision on his or her
claim from the VA and decides to appeal this initial decision
administratively through the filing of a NOD.\54\ An attorney may now
provide representation for a fee after the NOD is filed. The act
requires the Secretary to provide Congress with an evaluation of the
effect of the new system of representation. The Secretary is also
authorized to review fee agreements, and the Secretary may order a
reduction in an agreed upon fee if the Secretary finds the fee
excessive or unreasonable. The Secretary's decision may be reviewed by
the BVA, which is authorized to make the final review of the issue.\55\
---------------------------------------------------------------------------
\53\ See Figure I. Appeal Process at 3.
\54\ Id.
\55\ 38 U.S.C. 7104.
---------------------------------------------------------------------------
Broadening attorney participation in the veterans' appeal process
has been somewhat controversial. Opposition has focused on attorneys'
fees and the possibility of additional delays in the appeal process. On
March 5, 2007, Representative Ron Lewis introduced H.R. 1318,\56\
which, if enacted, would repeal the authority for certain agent or
attorney representation in veterans' benefit cases before the VA. In
effect, the bill would return to the process that existed prior to the
enactment of the 2006 law and would permit representation only after
the BVA renders a final decision in the case. The bill has been
referred to the House Committee on Veterans' Affairs.
---------------------------------------------------------------------------
\56\ 110th Cong., 1st Sess. (2007).
---------------------------------------------------------------------------
Information for the Appeal. Should new evidence or medical proof
supporting the appellant's claim arise during the appeal process, the
evidence should be submitted to the VA. If the appellant's claims file
is at the local VA office and the new evidence is sent there, the VA
local office will send the appellant an SSOC if it does not allow the
claim after reviewing the new evidence. The new evidence will be added
to the claims file and considered during the appeal process.\57\
---------------------------------------------------------------------------
\57\ Id. at 13-14.
---------------------------------------------------------------------------
Location of the VA Form 9. After the Form 9 is filed, it becomes
part of the claims file and serves as the basis for the appeal to the
BVA. The Form 9, as part of the claims file, will be sent by the local
VA office to the BVA and will be reviewed later by the BVA when the BVA
considers the appeal and reviews the entire claims file.
The Board of Veterans' Appeals (BVA)
Organization\58\
---------------------------------------------------------------------------
\58\ For a general overview of the BVA, see the website at http://
www.va.gov/vbs/bva
---------------------------------------------------------------------------
Known as the ``Gateway to VA Appeals,''\59\ the Board of Veterans'
Appeals (BVA) is a part of the VA based in Washington, DC.\60\ The BVA
reviews benefit claims appeals and issues decisions on those appeals.
The BVA is composed of ``Members of the Board'' who are attorneys
experienced in veterans' law, appointed by the Secretary of Veterans
Affairs and approved by the President of the United States. Staff
attorneys, who are designated as Counsel or Associate Counsel, assist
Members of the Board in preparing decisions.\61\ The function that they
provide is similar to a law clerk who assists a judge in his/her legal
capacities.\62\
---------------------------------------------------------------------------
\59\ See note 57.
\60\ 38 U.S.C. 7101(a); 38 U.S.C. 7104.
\61\ Id. at 36.
\62\ Id. at 36-37.
---------------------------------------------------------------------------
The BVA's Docket
The BVA Docket and Docket Number. The local VA office will forward
the appellant's claims file to the BVA's docket. The law requires that
the BVA decide cases on a ``first come, first served'' basis.\63\ Each
appellant's case is added to the docket when the VA receives the
substantive appeal--VA Form 9--and the claims file from the local
VA.\64\
---------------------------------------------------------------------------
\63\ 38 U.S.C. 7107(a); 38 C.F.R. 20.900.
\64\ See Understanding at 15. Each case is assigned a docket number
when it is added to the list of cases. The first two numbers are the
year in which the case was filed and the remaining numbers indicate the
order in which the case was added to that year's list/docket. For
example, 05-00111, would indicate the 111th claim filed in 2005.
---------------------------------------------------------------------------
On occasion, the BVA may, on a motion by the appellant, advance the
order of a claim on its docket.\65\ The appellant must demonstrate
compelling need, exceptional circumstances, or proof of hardship.\66\
The BVA seldom grants a request for ``advancement on the docket,'' as
the BVA feels that most appeals involve some form of hardship and the
BVA wishes to treat all appellants fairly.\67\
---------------------------------------------------------------------------
\65\ 38 U.S.C. 7107(a)92); 38 C.F.R. 20.900.
\66\ For example, terminal illness, bankruptcy, pending eviction,
and other hardships.
\67\ See Understanding at 16.
---------------------------------------------------------------------------
Waiting Time. Once a case/claim has been entered on the BVA's
docket, it is uncertain how long it may take for the BVA to reach a
decision on the case. The VA has stated, that as of the fall 1999, it
took an average of 2 years from the time a NOD was filed, until a final
decision was issued.\68\ However, 2005 congressional testimony by the
Undersecretary for Benefits of the VA appears to indicate that the
decision time has been substantially reduced.\69\
---------------------------------------------------------------------------
\68\ Id. at 16.
\69\ Testimony of Daniel L. Cooper, Undersecretary of Benefits,
Department of Veterans Affairs before the Senate Veterans Affairs
Committee (May 26, 2005). See http://www.va.gov/OCA/testimony/svac/
05052620.asp
---------------------------------------------------------------------------
Personal Hearings
There are two types of personal hearings: a local VA office hearing
\70\ and a BVA hearing.
---------------------------------------------------------------------------
\70\ This is sometimes called a Regional Office hearing, an RO
hearing, or a hearing officer hearing.
---------------------------------------------------------------------------
As previously discussed,\71\ a local office hearing is held at the
local VA office between the appellant and a hearing officer from the
local VA office staff. Such a hearing is arranged between the appellant
and the local VA office. The local VA office may find in favor of the
appellant. The appellant may subsequently appeal the local office
hearing through the BVA.
---------------------------------------------------------------------------
\71\ See ``Appeal to the Local VA Office'' on page 4.
---------------------------------------------------------------------------
The appellant may present his/her case in person to a member of the
BVA. There are three types of BVA hearings: a hearing by a Board Member
at a the local VA office (Regional Office), called a Travel Board
hearing;\72\ a hearing at the BVA office in Washington, DC; or a
videoconference hearing at the local VA office, if it is equipped for
videoconferencing. The VA does not provide travel expenses to the
appellant.\73\
---------------------------------------------------------------------------
\72\ See note 3.
\73\ See Understanding at 18.
---------------------------------------------------------------------------
Request for a BVA Hearing
The typical way to request a BVA hearing is for the appellant to
indicate on VA Form 9 the type of hearing that the appellant wishes.
The appellant may also write to the BVA to request a hearing,
indicating whether a hearing is requested at the local level or in
Washington, DC.
Scheduling the BVA Hearing
The schedule of the hearing depends upon the type of hearing
requested. The BVA has reported that the Travel Board hearings are
usually held as soon as they can be scheduled on the hearing officer's
calendar,\74\ but that they may be difficult to arrange because of the
schedules of the BVA Board Members and the accumulation of a sufficient
number of appeals to warrant a scheduled visit from a BVA Member.\75\
Videoconferenced hearings are less complicated to arrange and can be
scheduled more quickly than Travel Board hearings, according to the
BVA.\76\
---------------------------------------------------------------------------
\74\ Id. at 19.
\75\ Id.
\76\ Id.
---------------------------------------------------------------------------
Hearings that are held at the BVA offices in Washington DC are
usually scheduled close to the time when the BVA will consider the
case. In 2000, the BVA reported that the BVA will schedule a case about
three months before the case is reviewed.\77\
---------------------------------------------------------------------------
\77\ Id.
---------------------------------------------------------------------------
The Ninety Day Rule
The local VA office will notify the appellant by letter when it
transfers the claims file to the BVA in Washington, DC. The letter will
inform the claimant that the claimant has ninety days from the date of
the letter or until the BVA decides the case, whichever comes first, to
add additional evidence to the file, request a hearing (if none was
selected), and/or select or change representation.\78\
---------------------------------------------------------------------------
\78\ 38 C.F.R. 20.1304.
---------------------------------------------------------------------------
In order for the BVA to accept any of these materials after the
expiration of the ninety day period, the appellant must submit a
motion--a written request--asking the BVA to accept the item, even
though it is late. The motion needs to include an explanation of why
the item is late and demonstrate why the BVA should accept the item
into the claims file.
The Appeal at the BVA
The local VA office will forward the appellant's file to the BVA.
The appellant will be notified in writing when the file is officially
transferred and received by the BVA.\79\ The decision time in the
appeal process varies from case to case. After the file is received by
the BVA, the appellant's case will then be assigned to a Board Member
for review. When the docket number for the appeal has been reached, the
file will be examined by a Board Member and a staff attorney. They will
check the file for completeness, review all of the evidence and
arguments, the transcript of the local VA hearing, the statement of the
appellant's representative (if the appellant has a representative), and
any additional information that may be with the claims file.\80\ The
Board Member may request the staff attorney to undertake additional
research on the case and prepare recommendations for the review of the
Board member. If the appellant requested a BVA hearing, the Board
Member assigned to the case will conduct the hearing before reaching a
decision.
---------------------------------------------------------------------------
\79\ Id. Appellants may check the status of their file after its
transfer to by BVA by telephone at 202-565-5436.
\80\ Id.
---------------------------------------------------------------------------
Before reaching a decision, the Board Member will examine all of
the material in the appellant's file, along with the recommendations
prepared by the staff attorney. The Board Member will then issue a
decision on the appeal.\81\
---------------------------------------------------------------------------
\81\ Id. at 23.
---------------------------------------------------------------------------
Notification of the Board's Decision
The BVA will issue its decision in writing. The decision may
contain legal documents and legal discussions as well as medical
discussions. The decision will be mailed to the appellant's home
address.\82\
---------------------------------------------------------------------------
\82\ Id.
---------------------------------------------------------------------------
The decision will allow, deny, or remand the claim. If the claim is
allowed or denied, the BVA's decision is final. A remand is not a final
decision and allows further work on the claim.\83\
---------------------------------------------------------------------------
\83\ See How Do I Appeal at 11.
---------------------------------------------------------------------------
If the appeal is denied, the BVA will send a copy of the ``Notice
of Appellate Rights'' that describes additional actions that the
appellant may choose to pursue.
The Remand
At times the BVA may review an appeal and determine that the case
is not ready for a final decision. The BVA will send the case back to
the local VA office with directions as to what should be done. The
action of returning the case to the local VA office for additional work
is called a remand. It is sometimes described as ``additional
development.''\84\
---------------------------------------------------------------------------
\84\ See Understanding at 24.
---------------------------------------------------------------------------
After the case has been returned to the local VA office, it will
perform the additional work on the file. The local VA office will
review the case and issue a new determination. If the local VA office
does not allow the claim, it will return the case to the BVA for a
final decision. The case keeps its original place on the BVA's docket,
so it is usually reviewed relatively soon after it is returned to the
BVA.\85\
---------------------------------------------------------------------------
\85\ Id.
---------------------------------------------------------------------------
Certain cases are remanded because of new rulings by the U.S. Court
of Appeals for Veterans Claims or changes in the law. The local VA
office will then review them within the context of the new legislation
or the court ruling.\86\
---------------------------------------------------------------------------
\86\ Id.
---------------------------------------------------------------------------
Additional Appeal Options
Should the appellant wish to appeal the BVA's decision, the
appellant may appeal to the United States Court of Appeals for Veterans
Claims (CAVC), an independent court and not part of the VA.\87\ An
appellant may also wish to pursue further motions with the BVA.
---------------------------------------------------------------------------
\87\ See the CAVC's website: http://www.vetapp.uscourts.gov/
---------------------------------------------------------------------------
Notice of Appeal. Usually, the appellant must file the Notice of
Appeal with the CAVC within 120 days from the date the BVA's decision
is mailed. (The mailing date is stamped on the front of the BVA's
decision.)
If the appellant filed a motion to reconsider with the BVA within
the 120 day time period and that motion was denied, the appellant has a
new 120 day period to file the Notice of Appeal with the CAVC.\88\ The
new 120 day period begins on the date the BVA mails the appellant a
letter notifying the appellant that it has denied the motion to
reconsider.
---------------------------------------------------------------------------
\88\ See Understanding at 25-26 for the appropriate addresses to
file the Notice of Appeal and a copy of the Notice of Appeal.
---------------------------------------------------------------------------
Motion for Reconsideration. If the appellant is able to demonstrate
that the BVA made an obvious error of fact or of law in its decision,
the appellant may file a written ``motion to reconsider'' of the
appeal.\89\ The appellant may have the VSO representative advise him/
her whether to file the motion and the VSO representative may also
provide assistance in its preparation. The motion to reconsider is sent
directly to the BVA and not to the local VA office.
---------------------------------------------------------------------------
\89\ 38 U.S.C. 7103; 38 C.F.R. 20.1000; 38 C.F.R. 20.1001.
---------------------------------------------------------------------------
The appellant will need to demonstrate that the BVA made a mistake
in law or in fact and that the BVA's decision would have been different
if the mistake had not been made.\90\
---------------------------------------------------------------------------
\90\ See Understanding at 27.
---------------------------------------------------------------------------
Reopening the Case. If the appellant has ``new and material''
evidence relating to his/her claim, the appellant can request that the
case be opened.\91\ In order to be considered ``new and material,'' the
evidence submitted needs to include information related to the case
that was not included in the claims folder when the Board reviewed and
decided the case.
---------------------------------------------------------------------------
\91\ 38 U.S.C. 5108; 38 U.S.C. 7104(b); 38 C.F.R. 3.156; 38
C.F.R. 20.1105.
---------------------------------------------------------------------------
To reopen a case, the appellant must submit the new evidence
directly to the local VA office and not to the BVA.\92\
---------------------------------------------------------------------------
\92\ See Understanding at 27.
---------------------------------------------------------------------------
CUE Motion. A BVA decision may be reversed or revised if the
appellant is able to show that the decision contained ``clear and
unmistakable error'' (CUE).\93\ The written request for the BVA to
review its decision for CUE is called a motion. CUE motions are filed
directly with the BVA and not with the local VA office.
---------------------------------------------------------------------------
\93\ 38 U.S.C. 7111; 38 C.F.R. 20, subpart O.
---------------------------------------------------------------------------
The motion for CUE review must meet various requirements and if the
motion is denied, the appellant cannot request another CUE review.\94\
The VA has reported that not many CUE motions are successful. In order
to succeed, the conclusion must be reached that the BVA would have
decided the case differently, but for the error. A difference in
opinion is not sufficient.\95\
---------------------------------------------------------------------------
\94\ See Understanding at 28.
\95\ Id.
---------------------------------------------------------------------------
The appellant may file a motion to review a BVA decision for CUE at
any time. However, if the motion for CUE is filed after filing a timely
Notice of Appeal with the CAVC (120 days),\96\ the BVA will not be able
to rule on the CUE motion.\97\
---------------------------------------------------------------------------
\96\ See ``Nature of Appeal'' at 11.
\97\ See Understanding at 28.
---------------------------------------------------------------------------
Death of the Appellant Before a Decision Issued
The death of the appellant usually ends the appeal.\98\ If the
appellant dies, the BVA normally dismisses the appeal without issuing a
decision. Any rights of a deceased appellant's survivors are not
affected by this action. The survivors may file a claim at the VA
regional office (RO) for any benefits to which they may be
entitled.\99\
---------------------------------------------------------------------------
\98\ 38 U.S.C. 7104(a); 38 C.F.R. 20.1302.
\99\ See Understanding at 29.
---------------------------------------------------------------------------
Subsequent Judicial Appeals
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
has exclusive jurisdiction to hear cases involving challenges to VA
decisions in an appeal of a CAVC decision and in a direct challenge to
VA regulation and VA policies of general applicability.\100\ A decision
of the CAVC may be appealed to the Federal Circuit by the persons who
appealed to the CAVC or by the VA. An appeal to the Federal Circuit
must be filed within sixty days of the final CAVC decision. After the
Federal Circuit issues a final decision, either the claimant or the VA
may petition the U.S. Supreme Court for certiorari (to hear the case)
within ninety days of the Federal Circuit's final action.\101\ The
Supreme Court is the court of last resort and the Supreme Court's
decision is final.
---------------------------------------------------------------------------
\100\ 38 U.S.C. 7292.
\101\ 38 U.S.C. 7292(c).
---------------------------------------------------------------------------
Appendix
Duties and Obligations of the VA to the Claimant/Appellant
The Obligations of the VA to the Claimant/Appellant \102\
---------------------------------------------------------------------------
\102\ See CRS Report RL33323
---------------------------------------------------------------------------
The VA\103\ has various legal obligations to a claimant/appellant
relating to the completeness of the application for benefits (or a
subsequent appeal), the provision of medical and service records, and
other issues related to the application/appeals process.
---------------------------------------------------------------------------
\103\ The statutory language provides that ``the Secretary'' is
required to provide various assistance to the claimant. For the
purposes of this summary and for consistency, the term ``VA'' is used
instead.
---------------------------------------------------------------------------
Application and Notice of Incomplete Application. The VA is
required to provide to any person claiming or applying for any benefit,
the ``instructions and forms necessary to apply for that
benefit.''\104\ These materials are to be provided ``free of all
expense'' to the claimant.\105\
---------------------------------------------------------------------------
\104\ 38 U.S.C. 5102(a); 38 C.F.R. 3.150(a).
\105\ 38 U.S.C. 5102(a).
---------------------------------------------------------------------------
If the claimant's application for a VA benefit is incomplete, the
VA is required to notify the claimant of the information that is
necessary to complete the application.\106\
---------------------------------------------------------------------------
\106\ 38 U.S.C. 5102(b); 38 C.F.R. 3.159(b)(2).
---------------------------------------------------------------------------
Required Information and Evidence; and Time Limitation.\107\ After
the VA receives a complete or a nearly complete application for
benefits, the VA is required to notify the claimant of any information
or medical or lay evidence that is needed to substantiate the
claim.\108\ As part of this notification requirement, the VA is
required to indicate which information and evidence is to be provided
by the claimant and which information the VA will attempt to obtain on
the claimant's behalf to substantiate and complete the claim.
---------------------------------------------------------------------------
\107\ These provisions are not applicable for any application or
claim for government insurance benefits. 38 U.S.C. 5103(b)(2).
\108\ 38 U.S.C. 5103(a); 38 C.F.R. 3.159(b).
---------------------------------------------------------------------------
The claimant is required to submit the above-mentioned evidence to
substantiate the claim within 1 year of the date of the VA's
notification. If no further evidence is obtained, no benefits will be
paid or furnished on this claim.\109\
---------------------------------------------------------------------------
\109\ 38 U.S.C. 5103(a); 38 C.F.R. 3.159(b)(1),
---------------------------------------------------------------------------
Duty to Assist Claimants--Records. The VA is required to make
``reasonable efforts'' to assist a claimant in obtaining evidence
necessary to substantiate the claim for benefits.\110\ However, certain
exceptions exist to this requirement. The VA is not required to provide
assistance to the claimant if ``no reasonable possibility'' exists that
such assistance would aid in substantiating the claim.\111\ The VA may
defer providing assistance pending the claimant's submission of
essential information that is missing from the claimant's
application.\112\
---------------------------------------------------------------------------
\110\ 38 U.S.C. 5103A(a)(1); 38 C.F.R. 3.159(c)(1).
\111\ 38 U.S.C. 5103A(a)(2); 38 C.F.R. 3.160(d).
\112\ 38 U.S.C. 5103A(a)(3).
---------------------------------------------------------------------------
Assistance in Obtaining Records. The VA is required to make
``reasonable efforts'' to obtain relevant records (including private
records) that the claimant adequately identifies to the VA and
authorizes the VA to obtain.\113\ Federal regulations outline the
procedures for obtaining records not in the custody of a Federal
department or agency \114\ and obtaining records in the custody of a
Federal department or agency.\115\ If after making reasonable efforts,
the VA is unable to locate the records, the VA will notify the claimant
that the VA is unable to obtain the records pursuant to this
claim.\116\ The notification is required to identify the records being
sought, explain the efforts made to obtain the records, and described
any further action to be taken by the VA regarding this claim.\117\ It
is required that the VA's efforts to obtain records from the Federal
department or agency will continue until the records are obtained,
unless it is reasonably certain that such records do not exist or that
further efforts to obtain the records would be futile.\118\
---------------------------------------------------------------------------
\113\ 38 U.S.C. 5103A(b)(1); 38 C.F.R. 3.160(c).
\114\ 38 C.F.R. 3.159A(c)(1).
\115\ 38 C.F.R. 3.159A(c)(2).
\116\ 38 U.S.C. 5103A(b)(2); 38 C.F.R. 3.160(e).
\117\ Id.
\118\ 38 U.S.C. 5103A(b)(3).
---------------------------------------------------------------------------
Records for Compensation Claims. If the case involves a claim for
disability compensation, additional assistance in obtaining records is
required to be provided.\119\ Assistance is to be provided in locating
the claimant's service medical records and other relevant records
relating to the claimant's active military, naval, or air service that
are held or maintained by a governmental entity;\120\ records of
relevant medical treatment or examination at VA health-care
facilities;\121\ and any other relevant records held by any Federal
department or agency that the claimant identifies and authorizes the VA
to obtain.\122\
---------------------------------------------------------------------------
\119\ 38 U.S.C. 5103A(c); 38 C.F.R. 3.159(c)(3).
\120\ 38 U.S.C. 5103A(c)(1).
\121\ 38 U.S.C. 5103A(c)(2).
\122\ 38 U.S.C. 5103A(c)(3).
---------------------------------------------------------------------------
Medical Examinations for Compensation Claims. If the case involves
a claim for disability compensation, the VA is required to provide a
medical examination or obtain a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.\123\ The VA is required to treat an examination or opinion as
being necessary to make a decision on a claim if the evidence on the
record, taking in consideration all information and lay or medical
evidence 1) contains competent evidence that the claimant has a current
disability or persistent or recurrent symptoms of disability\124\ or 2)
indicates that the disability or symptoms may be associated with the
claimant's active military, naval, or air service;\125\ but does not
contain sufficient medical evidence for the VA to make a decision on
the claim.\126\
---------------------------------------------------------------------------
\123\ 38 U.S.C. 5103A(c)(4); 38 C.F.R. 3.159(c)(4).
\124\ 38 U.S.C. 5103A(d)(2)(A).
\125\ 38 U.S.C. 5103A(d)(2)(B).
\126\ 38 U.S.C. 5103A(d)(2)(C).
---------------------------------------------------------------------------
Disallowed Claims. The statute specifically provides that the VA is
not required to reopen a claim that has been disallowed except when new
and material evidence is presented or secured.\127\
---------------------------------------------------------------------------
\127\ 38 U.S.C. 5103A(f).
---------------------------------------------------------------------------
Other Assistance not Precluded. The statute is not to be construed
as precluding the VA from providing such other assistance to a claimant
in substantiating a clam as the VA considers appropriate.\128\
---------------------------------------------------------------------------
\128\ 38 U.S.C. 5103A(g).
---------------------------------------------------------------------------
Decisions and Notices of Decisions. When the VA makes a decision
affecting the provision of benefits to a claimant, the VA is required,
on a timely basis, to provide the claimant (and the claimant's
representative) notice of the decision.\129\ The notice must include an
explanation of the procedure for obtaining a review of the
decision.\130\ If the VA denies a benefit, the notice is required to
include a statement of the reason for the decision and a summary of the
evidence considered by the VA.\131\
---------------------------------------------------------------------------
\129\ 38 U.S.C. 5104(a); 38 C.F.R. 3.103(b).
\130\ Id.
\131\ 38 U.S.C. 5104(b).
---------------------------------------------------------------------------
VA's Obligation to Assist in the Development of Claims. Federal
regulations require the VA to assist the claimant ``in developing the
facts pertinent to the claim'' and to render a decision that grants
every benefit that can be supported in law while protecting the
interests of the government.\132\ Therefore, the VA has the duty to
consider all legal theories upon which the claim could be granted,\133\
regardless of whether the claimant argues or focuses on every possible
legal theory.
---------------------------------------------------------------------------
\132\ 38 C.F.R. 3.103(a).
\133\ The VA would be required to consider all possible legal
theories (e.g., secondary service connection, presumptive service
connection, and so forth.) upon which the claim could be granted.
---------------------------------------------------------------------------
Reopening Disallowed Claims. If any new or material evidence is
presented or secured relating to a claim that has been disallowed, the
VA is required to reopen the claim and review the former disposition of
the claim.\134\
---------------------------------------------------------------------------
\134\ 38 U.S.C. 5108.
---------------------------------------------------------------------------
Revision of Decisions on Grounds of Clear and Unmistakable Error. A
VA decision is subject to revision on the grounds of clear and
unmistakable error, as previously discussed.\135\ If there is evidence
to establish the error, the prior decision is reversed or revised.\136\
For the purposes of authorizing benefits, a rating, or other
adjudicative decision that constitutes a reversal or revision of a
prior decision on the grounds of clear and unmistakable error, has the
effect as if the decision had been made on the date of the prior
decision.\137\ A review to determine whether a clear and unmistakable
error exists in a case may be initiated by the VA or upon the request
of the claimant.\138\ A request for a revision of a VA decision based
on clear and unmistakable error may be made at any time after the
decision is made.\139\ Such a request for a revision shall be submitted
to the VA and shall be decided in the same manner as any other
claim.\140\
---------------------------------------------------------------------------
\135\ 38 U.S.C. 5109A(a). See discussion at 12.
\136\ Id.
\137\ 38 U.S.C. 5109A(b).
\138\ 38 U.S.C. 5109A(c).
\139\ 38 U.S.C. 5109A(d).
\140\ 38 U.S.C. 5109A(e).
---------------------------------------------------------------------------
Benefit of the Doubt Standard. The VA is required to consider all
information and the legal and medical evidence of record in a case
before the VA with respect to benefits under the laws administered by
the VA.\141\ When there is an approximate balance of positive and
negative evidence regarding any issue material to the determination,
the VA ``shall give the benefit of the doubt to the claimant.''\142\
Regulations provide that when reasonable doubt arises, such doubt will
be resolved in favor of the claimant.\143\ For instance, in order to
satisfy this element, the submitted medical evidence generally needs to
show that it is as likely as not that there is a connection between the
in-service injury, occurrence, or illness and the current disability.
Thus, the VA can deny the claim only if the preponderance of the
evidence is against the claim.
---------------------------------------------------------------------------
\141\ 38 U.S.C. 5107(b).
\142\ Id. See 38 C.F.R. 3.102.
\143\ 38 C.F.R. 3.102.
---------------------------------------------------------------------------
Certain Presumptions. In its analysis of certain claims, the VA is
required by statute and/or regulation to make certain presumptions.
Presumption of Medical Soundness. In evaluating a veteran's claim,
the VA generally presumes that the veteran entered the service in sound
medical condition.\144\ This may assist the veteran in proving a claim
by making it difficult for the VA to claim that the condition or
disease existed prior to service. However, if the medical impairment
was noted at the time of entry into service, the veteran may have to
prove that the condition was exacerbated in-service. If the VA is able
to prove by ``clear and unmistakable evidence'' that the disease or
injury was in existence prior to service, and that it was not worsened
during service, the veteran's claim will be denied.
---------------------------------------------------------------------------
\144\ 38 U.S.C. 1111.
---------------------------------------------------------------------------
Special Rules for Certain In-Service Occurrences. Special rules
exist under which the VA is required to consider a service-connected
problem by presumption. For example, certain diseases associated with
exposure to Agent Orange will be presumed to be service-related in the
case of Vietnam veterans.\145\
---------------------------------------------------------------------------
\145\ 38 C.F.R. 3.307(a)(6)(iii).
---------------------------------------------------------------------------
A similar regulation holds that veterans who were held prisoners or
war, or who served in combat, can be presumed to have suffered
traumatic, stressful events during their military service.\146\
Similarly, combat veterans have special rules applicable to them in
proving an in-service injury or other incident.\147\ Usually, if a
combat veteran states that he/she suffered a disease, injury, or other
event during the combat, the VA will usually accept that statement as
fact. This is the case even if there are no service records to
substantiate the claim.
---------------------------------------------------------------------------
\146\ 38 C.F.R. 3.304(f).
\147\ 38 U.S.C. 1154(b); 38 C.F.R. 3.304(d),(f).
---------------------------------------------------------------------------
Legislation Introduced in the 110th Congress
Legislation has been introduced in the 110th Congress, which, if
enacted, may affect the appeal process. The summary below covers the
following bills: H.R. 67, H.R. 1435, H.R. 1444, and H.R. 1490
H.R. 67
H.R. 67,\148\ the proposed Veterans Outreach Improvement Act of
2007, would establish procedures for coordinating activities of the VA
and various related entities, including the Veterans Health
Administration, the Veterans Benefits Administration, and the National
Cemetery Administration. The Secretary would be required to review
these procedures annually.
---------------------------------------------------------------------------
\148\ 110th Cong., 1st Sess. (2007).
---------------------------------------------------------------------------
The bill would provide assistance to the states to help carry out
veterans benefits and related programs. The Secretary could provide
assistance to county veteran service programs, enter into agreements
and arrangements with state veterans agencies, and make grants to state
veterans agencies to assist in outreach activities and the submittal of
benefits claims.
Outreach activities would be funded through a separate
appropriation account.
A sum of $25 million would be authorized for each fiscal year from
2007-2009.
The bill defines ``outreach'' within the context of the legislation
as taking steps in a way to provide ``information, services and
benefits counseling to veterans'' and their survivors who may be
eligible for such benefits.\149\
---------------------------------------------------------------------------
\149\ Id. If enacted, to be codified at 38 U.S.C. 564.
---------------------------------------------------------------------------
H.R. 67 was introduced by Representative McIntyre on January 4,
2007, and referred to the House Committee on Veterans' Affairs.
H.R. 1435
H.R. 1435, the proposed Department of Veterans Affairs Claims
Backlog Reduction Act of 2007,\150\ if enacted, would direct the
Secretary to conduct a pilot program to reduce the backlog of pending
benefits claims.
---------------------------------------------------------------------------
\150\ H.R. 1435, 110th Cong., 2st Sess. (2007).
---------------------------------------------------------------------------
The bill would make various findings on claims backlogs and the
quality of County Veterans Service Officers (CVSOs). The bill would
establish a 3-year pilot program to reduce the backlog of veterans'
claims in the following states: California, Florida, Ohio, South
Carolina, and Texas.\151\ Claims identified as requiring further
development would be referred to a CVSO, based upon the Officer's
geographical proximity to the claimant. The bill outlines the
procedures for the development of the claim by the CVSO and the
claimant.\152\ Under the program, the CVSO would serve as the
claimant's advocate in developing and transmitting the claim. The CVSO
could also cooperate with a veterans service organization to develop
the claim. During the development of the claim, the CVSO would have
access to client information, including information held by the VA.
---------------------------------------------------------------------------
\151\ Id. 4.
\152\ Id. 4(d).
---------------------------------------------------------------------------
Following the completion of the pilot program, the Secretary would
report to Congress regarding backlog reduction, statistics, and other
related information.
H.R. 1435 was introduced by Representative Baca on March 9, 2007,
and referred to the House Committee on Veterans' Affairs.
H.R. 1444
H.R. 1444,\153\ if enacted, would direct the Secretary to make
interim payments in cases remanded (referred back) to the VA by the BVA
or the CAVC if the VA fails to decide the matter within 180 days of
remand. If the Secretary does not make a decision within 180 days of
the remand, then until the matter is finally decided, the Secretary
would be required to pay an interim benefit of $500 per month. When a
claim is finally decided, and if benefits are awarded, the interim
payments would be considered advance benefit payments. If the final
decision is not to award benefits, the interim benefits would not be
considered an overpayment.
---------------------------------------------------------------------------
\153\ H.R. 1444, 110th Cong. 1st Sess. (2007).
---------------------------------------------------------------------------
Under the bill, the Secretary would also be required to submit to
Congress a report on measures that the Secretary intends to expedite
the process of remanded claims for veterans benefits.
The bill was introduced by Representative Hall on March 9, 2007,
and referred to the House Committee on Veterans' Affairs.
H.R. 1490
If enacted, H.R. 1490 \154\ would provide for a presumption of
service-connectedness in certain claims for benefits, upon the claimant
proving service in a conflict and the nature of the claim, unless the
Secretary determines that there is positive evidence to the contrary.
The bill would require the Secretary to award benefits, at a ``median
level'' as determined by the Secretary, immediately upon processing the
claim until such time as the appropriate level of benefits is
determined.\155\
---------------------------------------------------------------------------
\154\ H.R. 1490, 110th Cong., 1st Sess. (2007).
\155\ Id. 1.
---------------------------------------------------------------------------
The bill would also provide for the redeployment of VA claims
workers freed up by the presumption of service-connectedness to assist
veterans with their claims.\156\ Such staff would be redeployed to
veterans centers or other locations that the Secretary determines are
appropriate.
---------------------------------------------------------------------------
\156\ Id. 2.
---------------------------------------------------------------------------
H.R. 1490 was introduced on March 13, 2007, by Representative
Donnelly and referred to the House Committee on Veterans' Affairs.