[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                       LEGISLATIVE HEARING ON THE

                 ``VETERANS DISABILITY BENEFITS CLAIMS

                      MODERNIZATION ACT OF 2008''

=======================================================================


                                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

                             SECOND SESSION

                               __________

                             APRIL 10, 2008

                               __________

                           Serial No. 110-81

                               __________

       Printed for the use of the Committee on Veterans' Affairs



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                     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     HENRY E. BROWN, Jr., South 
Dakota                               Carolina
HARRY E. MITCHELL, Arizona           JEFF MILLER, Florida
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
PHIL HARE, Illinois                  GINNY BROWN-WAITE, Florida
MICHAEL F. DOYLE, Pennsylvania       MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada              BRIAN P. BILBRAY, California
JOHN T. SALAZAR, Colorado            DOUG LAMBORN, Colorado
CIRO D. RODRIGUEZ, Texas             GUS M. BILIRAKIS, Florida
JOE DONNELLY, Indiana                VERN BUCHANAN, Florida
JERRY McNERNEY, California           VACANT
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 10, 2008

                                                                   Page
Legislative Hearing on the ``Veterans Disability Benefits Claims 
  Modernization Act of 2008''....................................     1

                           OPENING STATEMENTS

Chairman John J. Hall............................................     1
    Prepared statement of Chairman Hall..........................    41
Hon. Doug Lamborn, Ranking Republican Member.....................     4
    Prepared statement of Congressman Lamborn....................    43

                               WITNESSES

U.S. Court of Appeals for Veterans Claims, Hon. William P. 
  Greene, Jr., Chief Judge.......................................     5
    Prepared statement of Chief Judge Greene.....................    43
U.S. Department of Veterans Affairs, Bradley G. Mayes, Director, 
  Compensation and Pension Service, Veterans Benefits 
  Administration.................................................    31
    Prepared statement of Mr. Mayes..............................    66

                                 ______

American Legion, Steve Smithson, Deputy Director, Veterans 
  Affairs and Rehabilitation Commission..........................    19
    Prepared statement of Mr. Smithson...........................    56
Disabled American Veterans, Kerry Baker, Associate National 
  Legislative Director...........................................    16
    Prepared statement of Mr. Baker..............................    46
National Veterans Legal Services Program, Ronald B. Abrams, Joint 
  Executive Director.............................................    17
    Prepared statement of Mr. Abrams.............................    52
Paralyzed Veterans of America, Carl Blake, National Legislative 
  Director.......................................................    22
    Prepared statement of Mr. Blake..............................    64
Veterans of Foreign Wars of the United States, Eric A. Hilleman, 
  Deputy Director, National Legislative Service..................    20
    Prepared statement of Mr. Hilleman...........................    60

                       SUBMISSIONS FOR THE RECORD

American Veterans (AMVETS), Raymond C. Kelley, National 
  Legislative Director, statement................................    74
Gold Star Wives of America, Inc., Rose Elizabeth Lee, Chair, 
  Government Relations Committee, statement......................    75
National Organization of Veterans' Advocates, Inc., Richard Paul 
  Cohen, Executive Director, statement...........................    77
Vietnam Veterans of America, Richard Weidman, Executive Director 
  for Policy and Government Affairs, statement...................    80

                   MATERIAL SUBMITTED FOR THE RECORD

Post-Hearing Questions and Responses for the Record:
    Hon. John J. Hall, Chairman, Subcommittee on Disability 
      Assistance and Memorial Affairs, Committee on Veterans' 
      Affairs, to Bradley Mayes, Director, Compensation and 
      Pension Service, Veterans Benefit Administration, U.S. 
      Department of Veterans Affairs, letter dated May 19, 2008, 
      and VA responses...........................................    84


                       LEGISLATIVE HEARING ON THE



                 ``VETERANS DISABILITY BENEFITS CLAIMS



                      MODERNIZATION ACT OF 2008''

                              ----------                              


                        THURSDAY, APRIL 10, 2008

             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 2:05 p.m., in 
Room 334, Cannon House Office Building, Hon. John Hall 
[Chairman of the Subcommittee presiding].
    Present: Representatives Hall, Rodriguez, Hare, Lamborn, 
and Bilirakis.

               OPENING STATEMENT OF CHAIRMAN HALL

    Mr. Hall. Good afternoon. The Veterans' Affairs Disability 
Assistance and Memorial Affairs Subcommittee hearing on the 
``Veterans Disability Benefits Claims Modernization Act of 
2008'' will come to order.
    I would ask everyone to rise for the Pledge of Allegiance. 
Flags are located in the front and the rear of the room.
    [Pledge of Allegiance.]
    Mr. Hall. Thank you. I am proud to be here today and that 
you have all joined us, and I am honored by your presence and 
to be joined by Ranking Member Lamborn in a bipartisan effort 
to present this historic legislation to reform the U.S. 
Department of Veterans Affairs (VA) Benefits Claims Processing 
System.
    This is in no way a unilateral effort. Several of the 
contained provisions within this legislation were derived from 
independent bills offered by Members of this Committee on both 
sides of the aisle.
    I am confident that when it is voted on, it will leave this 
Committee as a seamless, fluid piece of legislation that will 
grant the wounded warriors of this great country the service 
they deserve.
    I once read, ``Veterans' programs are not perfect. Much 
remains to be done by way of improvements along forward-looking 
and constructive lines. The dominant problems are the carryover 
from past decades of a backward-looking pension philosophy and 
our failure to adjust the existing veterans' programs to 
fundamental changes in our society.''
    I found this quote to be striking as it also captures my 
observations of the Veterans Benefits Administration (VBA). 
Yet, unfortunately, those observations were made by Omar 
Bradley in 1956.
    We should have listened to the General then, but it is 
imperative that we do it now, especially since we have our 
troops in harm's way around the world.
    The Subcommittee has conducted extensive oversight during 
this Congress and listened to the testimony of disabled 
veterans and their families and survivors who explained their 
problems with VA benefits.
    Many of their concerns led back to issues with claims 
processing delays, denials, and avoidable remands. For a 
moment, I want to reflect on what they said since these are the 
very people at the heart of this bill.
    We have heard from a paralyzed veteran who went a year 
without compensation because of lost files and poor 
communication with VA. This put his family in dire financial 
stress and forced his children to drop out of college.
    There were parents who talked to us about suicide and 
mental health problems and the inability of their beloved child 
to get VA healthcare. In many cases, service connection is 
necessary to accessing that care.
    Another veteran who suffered a traumatic brain injury and 
an amputation along with his wife confronted us on how 
exhausting it is to figure out VA benefits and the gaps that 
exist because the model is outdated and archaic even for a case 
that is so obviously clear-cut and simple. It does not account 
for the loss in their quality of life or for their real-world 
needs.
    These unfortunate occurrences are not just affecting 
veterans from current wars. They affect veterans of every age 
and from every conflict.
    I heard a story of a World War II veteran at a meeting last 
week in New York, who had a mortar shell that landed directly 
in front of his face. We heard this gentleman recalling the 
medic who attended him at the battlefield and his difficulty in 
telling the difference between his burns and his beard.
    After being taken to a medical facility, he learned that 
this incident had never been reported by the medic. As a 
result, this brave soldier who served his Nation in time of 
dire need had to fight the VA for 51 years before being awarded 
his benefits due to the requirements of finding witnesses of 
the event. The burden of proof, while statutorily sound, as 
interpreted by VA is all too often impossible or extremely 
difficult for veterans to understand and to complete.
    As he stood and told me this story, I watched as he grasped 
a folder that contained his disability claim and heard him 
state that he would never let it go in fear that the VA would 
rescind his claim and take back his money.
    For too long, VBA has been allowed to skirt their 
responsibility to reward our veterans with the same type of 
selfless, heroic service that veterans themselves gave to our 
country. However, reciprocity is at hand.
    The Veterans Disability Benefits Commission, Dole-Shalala 
Commission, and many other task forces have made 
recommendations to improve the system. We have data from the 
Institute of Medicine, the Center for Naval Analyses, the 
Institute of Defense Analyses, and several U.S. Government 
Accountability Offices (GAO), and Inspector General (IG) 
reports that highlight inconsistencies, variances, disparities, 
errors numerous areas within the claims processing system in 
dire need of reform and modernization.
    The Veterans Service Organizations (VSO) have shared their 
ideas and experiences to reform the VBA and have played an 
integral part in shaping this legislation.
    Expert medical, legal, and technological witnesses 
enlightened us on what is possible in our modern world. VA 
employees have also worked with us to tackle these problems and 
there is no doubt that this is a workforce dedicated to 
assisting disabled veterans.
    Unfortunately, VA employees work in a broken, outdated 
environment. So I am grateful for them and everyone else who 
has been willing to work with us on developing the improvements 
this legislation seeks to advance.
    With the ``Veterans Disability Benefits Claims 
Modernization Act of 2008,'' we hope to address the central 
issues that have led to the enormous and mounting claims 
backlog, delays in processing, avoidable errors, 
inconsistencies in ratings, and lack of accountability that 
amounts to a system of injustice, at least as perceived by many 
of our veterans.
    The provisions of Title I of this bill encapsulate several 
systemic issues that address evidence problems with post 
traumatic stress disorder claims (PTSD), as well as requiring 
the VA to study, report, and implement a plan for readjusting 
the VA's schedule for rating disabilities so that it includes 
medically recognized standards, codes, and practices, and 
appropriate compensation for the average loss of earnings 
capacity, quality of life impacts, mental health parity, 
encouragements for vocational rehabilitation, and creation of 
an Advisory Committee on Disability Compensation.
    Title I would also revamp the VBA work credit and 
management systems; require certification and training for VBA 
employees and managers; assess annually quality assurance, 
expedite fully developed claims; require a check list provided 
for evidence necessary to process claims; require a report on 
employing medical professionals at VBA, assign partial ratings 
for severely injured veterans while deferring other conditions, 
enhance information technology that includes a web portal for 
claims submission and tracking by veterans, that provides rules 
based, expert systems, and automated decision support; and 
would allow substitution for veterans who die while claims are 
pending, allowing qualified loved ones to step into shoes of 
the veteran and have time to submit and add information.
    I would like to thank Ranking Member Lamborn for his 
contributions to this part of the bill, especially those that 
would move the VA into the 21st Century in terms of how it 
handles information rather than the piles of paper with rubber 
bands and sticky pads on them that we have showcased during 
previous hearings in our Subcommittee.
    Title II of this bill addresses the servicemembers' 
transition from the U.S. Department of Defense (DoD) to VA, 
with the creation of a single VA/DoD disability evaluation 
examination process whereby DoD determines fitness for duty and 
VA rates the level of severity.
    This reduces the duplication for an injured or ill 
servicemember who must navigate two different systems at a time 
when they need support and assistance the most.
    Title III focuses on matters related to the United States 
Court of Appeals for Veterans Claims (CAVC). It would establish 
annual tracking requirements for the Court's workload and gives 
the Court the authority to affirm, modify, reverse, or vacate, 
and remand decisions of the Board. The Court must also first 
decide all assignments of error raised by an appellant for each 
benefit claimed.
    Make no mistake, this is an ambitious landmark piece of 
legislation which will take a great deal of cooperation and 
collaboration on multiple fronts. No doubt this will need to be 
a collective effort that goes well beyond Congress and VA. It 
will require the support and expertise of the VSOs, DoD, 
leading experts and professionals, academics, technicians, and 
other government entities, all of whom bring information and 
experience to the table.
    I know that VA is moving already in the general direction 
of some of the efforts outlined in this bill and I applaud your 
efforts in this vein. They are not overlooked.
    Also, I do not want to fail to recognize the hard work and 
dedication of the VA employees throughout the entire VBA, from 
the Regional Office (RO) to the Central Office. I know that the 
problems we face today are the result of a culmination of 
events beyond their control which run the gamut from inadequate 
funding and poor leadership to a corporate culture that does 
not foster accountability.
    Just as I have heard stories of calamity, I have also heard 
stories of the care and compassion of VA employees who 
genuinely care about our veterans and work tirelessly to 
provide them with every service they can.
    But today, time is of the essence and we must stop the 
incomprehensible cycle of ignoring the lack of accountability 
for outcomes of claims at the VBA. Outcomes matter, not just 
process. I repeat, outcomes matter, not just process. And I 
believe that we need to modernize our Nation's claims 
processing system to make it accountable and produce better 
outcomes for our veterans, their families, and survivors.
    Ladies and gentlemen, the time has come when we must 
envision a VA of the future and not leave Omar Bradley's 
warning unheeded at the expense of another generation of our 
bravest and finest veterans.
    I now yield to Ranking Member Lamborn for his opening 
statement.
    [The prepared statement of Chairman Hall appears on p. 41.]

             OPENING STATEMENT OF HON. DOUG LAMBORN

    Mr. Lamborn. Good afternoon and thank you, Chairman Hall. 
It is an honor to participate in this important occasion.
    The ``Veterans Disability Benefit Claims Modernization Act 
of 2008'' still has far to go, but for the first time in a long 
while, I believe there is a proper alignment of thought and a 
cooperative effort to make substantial improvements to the 
veterans benefits claims process.
    This bipartisan bill consists of a number of measures that 
have as their foundation the collective recommendations of 
Democrats, Republicans, Veterans Service Organizations, and two 
Blue Ribbon Commissions on Veterans Benefits. That is not to 
say this bill is flawless at this point in time or that there 
are not remaining snags to be worked out. Indeed, there are a 
couple of issues that cause me difficulty and one that I 
believe is critically flawed.
    I will elaborate more on these concerns in a bit, but I 
want to preface those remarks with the fact that I 
wholeheartedly agree with the intent behind even those 
provisions. Still, I am deeply concerned about unintended 
consequences that they may hold.
    Principally, I am troubled over the provision that would 
have VA concede presumption of a stressor for every person who 
served in theater of operation that was subject to combat. This 
could have enormous ramifications for the VA claims system and 
could potentially even increase the backlog.
    At the same time, I am sympathetic to what the provision 
attempts to accomplish. I believe an agreed-upon solution can 
be reached and I believe the expertise needed to arrive at such 
a fix is gathered here in this room today.
    My other concerns are less significant, but I remain 
concerned about what might occur if we codify certain 
regulations and leave less discretion for VA.
    I very much look forward to the testimony of our witnesses, 
including that of the VA.
    I hope that based upon recommendations made here, 
resolutions can be reached and this bill will acquire the 
momentum it needs to make the potential historic impact that it 
holds.
    Chairman Hall, I appreciate the favorable rapport that we 
share on this Subcommittee. And, I eagerly anticipate working 
with you and your staff during the short time left in this 
session to make some great progress for veterans.
    Thank you, and I yield back.
    [The prepared statement of Congressman Lamborn appears on 
p. 43.]
    Mr. Hall. Thank you, Congressman Lamborn.
    I would like to welcome all of our panelists testifying 
before the Subcommittee today and remind you that your complete 
written statements have been made a part of the hearing record.
    Please limit your remarks to 5 minutes so that we may have 
sufficient time to follow-up with questions once everybody has 
had the opportunity to provide their testimony.
    Joining us on our first panel is William P. Greene, the 
Chief Judge of the U.S. Court of Appeals for Veterans Claims. 
Hon. William P. Greene, you are now recognized for 5 minutes.

  STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, U.S. 
              COURT OF APPEALS FOR VETERANS CLAIMS

    Chief Judge Greene. Good afternoon, Chairman Hall, Ranking 
Member Lamborn, Mr. Rodriguez, Mr. Hare. Thank you for the 
introduction and thank you for inviting me to be here today 
with you.
    I took the liberty to bring with me members of my 
Legislative Committee, Judge Al Lance and Judge Mary Schoelen, 
who on a daily basis, are always available to you and your 
staff to answer questions about the Court.
    I am here today to discuss with you the ``Veterans 
Disability Benefits Claims Modernization Act of 2008.'' I 
appear today in my capacity as the Chief Administrative Officer 
of the Court and in the spirit of cooperation between the 
Legislative Branch and a national court of record.
    Almost 20 years ago, the Senate and House Veterans' Affairs 
Committees of Congress realized the fruits of their labor when 
President Reagan signed into law the ``Veterans Judicial Review 
Act.'' That Act established a national court of record, then 
the United States Court of Veterans Appeals, to provide 
independent judicial review of adverse decisions by the 
Department of Veterans Affairs affecting veterans.
    Until that time, the VA was the only Federal agency whose 
decisions were not subject to review by the Judiciary. Since 
1988, I believe the decisions and opinions by the Court have 
had a positive impact on the adjudication of veterans' benefits 
by unifying and clarifying this new area of the law.
    In doing so, the Court has been faithful to the well-
established concepts of appellate judicial review for the 
Federal Judiciary which includes not only the Article 3 courts, 
but also the Article 1 courts.
    Thus, in carrying out the Court's business, we have, as 
authorized by our enabling statutes, adopted the practices and 
procedures established under Title 38 of the United States Code 
and to those laws applicable to courts of the United States. 
Therefore, for at least the past 18 years, the Court, like all 
other courts, has maintained statistics concerning the Court's 
work and has provided that information annually to the public 
and to Congress.
    The proposed legislation appears to codify the Court's 
practice and seeks two items of information that are not 
currently provided in the Court's annual report. There is no 
difficulty whatsoever in acquiring that additional information 
and surely it could be provided in future annual reports 
without a need to compel it statutorily as proposed in section 
301.
    Concerning section 302 of the proposed legislation, I also 
must state that a litigant before the Court of Appeals for 
Veterans Claims generally may expect the same practices and 
procedures experienced in all other Federal courts. However, 
there can be exceptions because the U.S. Court of Appeals for 
Veterans Claims is a Court with specialized jurisdiction and, 
therefore, may have special rules applying to that unique 
jurisdiction.
    The part of section 302, however, that prohibits a 
government lawyer who appears as an officer of the court from 
raising a legitimate error that may provide justice to a 
veteran could create jurisprudential problems that interfere 
with the Court's ability to perform its expected judicial 
responsibility.
    As stated in my prepared remarks, I leave it to the 
Secretary of VA and his General Counsel to speak directly to 
any potential ethical considerations that might arise from such 
a mandate.
    For sure the proposed legislation, if enacted, would add 
yet another factor to the delay equation that has peaked our 
collective interests. The Court already experiences thousands 
of requests to extend time for the appellant briefs and other 
documents to be presented to the Court.
    For the government to obtain written consent from 
appellants, many of whom are unrepresented, to raise or concede 
an error, invites the possibility of even more delay. Surely 
when Congress created the Court, it intended for justice to be 
done and for disputes to be resolved fairly and wisely.
    That part of section 302 that amends section 7252(a) by 
requiring the Court to decide all assignments of error raised 
by an appellant surely will have the effect of slowing down 
considerably the Court's ability to resolve cases timely.
    Simply stated, a guiding principle of appellate judicial 
review is that when a Court can resolve a case based on a 
particular issue, it should do so without reaching unnecessary 
issues. The judges of the U.S. Court of Appeals for Veterans 
Claims follow that guidance and attempt to do so in every case. 
Indeed, if 20 issues are raised that lead you to the same 
result, why visit each of those 20 ways?
    I know there has been much discussion and comment about 
this circumstance, but I submit that if there is a question of 
law involved or where a ruling or another issue would indeed 
have a direct impact on how a proceeding would be conducted 
upon remand, the judges will endeavor to address those issues. 
If not, the appellant could seek reconsideration or, if viable, 
appeal to the Federal Circuit.
    And it must not be forgotten that although appellants have 
great faith in their arguments, as they should, they may not 
always prevail. When the Court decides that the Board of 
Veterans Appeals has committed a prejudicial error that affects 
the fairness of the proceedings, leading to a denial of a 
benefit the remedy is to vacate or set aside that decision and 
return it to the Board for corrective action. When that is 
done, the appellant obtains a readjudication and is also 
afforded the opportunity to provide more evidence and 
additional argument to include the ones that are related to the 
arguments on appeal to the Court. In essence, the matter is 
done all over.
    While some may see this as a hamster wheel effect, the 
reality is that the veteran still gets a fair chance to pursue 
his or her benefit. Arguments that are related to the cause of 
the remand necessarily change their impact once there is to be 
readjudication. Thus, it simply is not necessary to expend 
judicial time in addressing a matter that will be overcome by 
the evolving circumstances in the readjudication.
    But if the argument is addressed and the Court rules 
against the veteran, that ruling is binding in the case and the 
appellant loses the ability to make that argument during the 
readjudication unless he appeals that ruling to the U.S. Court 
of Appeals for the Federal Circuit and wins. Of course, to do 
that will consume even more time.
    In short, my statement outlines my concerns about the 
negative, and I am sure unintended, consequences, of this 
proposed legislation. Let me simply assure you that the Court 
is poised to conduct judicial review responsibly and in a 
manner that will ensure that all appellants not only have their 
day in court but also will receive a sufficiently fair 
decision.
    Thank you.
    [The prepared statement of Chief Judge Greene appears on p. 
43.]
    Mr. Hall. Thank you, Judge Greene, and thank you for being 
here today and sharing your expertise and experience with us.
    Could you elaborate on how the Court determined what it 
would place in its annual workload report and do you have any 
objections to the additions made to your annual report and 
categories? That is assuming legislation aside, for instance.
    Chief Judge Greene. Right. As indicated, Chairman Hall, the 
Court, like other U.S. courts, maintains statistics annually. 
The Administrative Office of the U.S. Courts has a case 
management system that we emulate. And as a result, we maintain 
pretty much the same identifiers that the other Federal courts 
use for their statistics. We have been using that as indicated 
in our annual report for the past 18 years.
    The two additional items that are requested, I think one 
deals with numbers of cases that are over 18 months and then a 
breakdown of the specific types of cases such as single judge 
decisions, panel decisions, and full court decisions. We had 
not kept that information, but it is readily available. And as 
I indicated, that is just a matter of tweaking the annual 
report that we already provide.
    Mr. Hall. Thank you.
    You oppose section 302 of this bill, which essentially 
requires the Court to decide all allegations of error raised on 
appeal and mentioned that primarily in the interest of judicial 
economy, you do not address all the issues raised on brief by 
the appellant.
    However, you concede in your testimony that this is a 
serious problem for the Court and one which has been raised by 
many of the Bar who have the privilege to come before you.
    As you know, and as it has been raised repeatedly in 
numerous hearings before this Subcommittee, I read your reasons 
for opposing section 302 and wonder, do you think there are any 
Constitutional or other reasons as to why the CAVC should not 
be required to decide at least a preliminary opinion on errors 
or issues raised on the brief?
    Chief Judge Greene. Well, initially I would say that just 
as a first blush of the statute, we always want to ensure that 
we maintain separation of powers. You have the Court, you have 
the legislature, and you have the executive.
    And, of course, the courts have specific responsibility in 
the area of conducting judicial review. The consideration of 
telling a court to decide all issues when, in fact, the court 
has the responsibility of deciding exactly what is needed to 
resolve the case, it just does not seem to serve any legitimate 
purpose unless it can be articulated well as to why those 
particular issues need to be decided.
    Mr. Hall. Well, let me just take another tack at it then, 
Judge Greene. I am sure there is much about your job that I 
cannot possibly know, especially after the brief time I have 
been here in Congress.
    But at the same time, we hear and see a stream of people 
talking about the hamster wheel that you referred to and the 
problem of issues being referred or a claim being referred up 
to the CAVC and sent back down with a request for more 
information or more substantiation of one issue or one aspect 
of the claim and when that is provided could provide that it is 
sent back up again and then it is remanded back down again with 
another request or another aspect of the ruling.
    This process is where the term hamster wheel came about, 
which did not happen because of one or two cases, you know. So 
maybe you could suggest to me, is there something that we could 
or should do?
    I understand and support the concept of separation of 
powers, but we are dealing with a level of frustration that we 
are hearing from the VSOs, and from veterans themselves, and 
maybe you would have some suggestions for us.
    Chief Judge Greene. Some fixing may be required where the 
adjudications are conducted. The Court is tasked with reviewing 
what has been conducted and then making a determination if it 
was done legally correct. If it was done legally correct, that 
would be the end of the matter unless they then appeal to the 
Federal Circuit.
    The hamster wheel effect as it applies to the Court is 
pretty straightforward. The issue that comes back to the Court 
is that the claim remains denied. The question is, upon what 
basis has it been denied the second time because when we remand 
the case the first time, we have indeed looked at every issue 
that has been raised by the appellant. The question is, why 
should we have to decide each issue raised if the appellant has 
prevailed.
    And specifically, if we rule that the matter should be 
readjudicated and one of the other issues is a matter of facts 
that have to be later developed again, any decision that we 
would give on that particular issue would be more advisory than 
any holding because the facts will change when it goes back 
down to be considered by the Board or the Regional Office.
    Now, the veteran has every right to present every one of 
those arguments that has been raised to the Court and not 
addressed to the Board or to the Regional Office when he or she 
returns to achieve further adjudication of the case. And if 
they were correct, as we ruled that they were correct in 
getting a new chance, they should prevail. If they do not 
prevail, then it is some other reason perhaps that brings them 
back to us.
    This is probably more aggravated by the fact that 
procedurally there are issues that are raised to the Court that 
indicate that if they did not receive sufficient notice on how 
to substantiate their claim, that is a procedural error that is 
prejudicial to the veteran because now the veteran really is 
saying I have not had a fair chance to present my case.
    If we agree with that veteran, we say you should go back 
and have your case adjudicated and when you do, bring all the 
evidence to the attention of VA that you think you should have 
been able to present had you been given the right notice.
    Mr. Hall. Judge Greene, my understanding is that as an 
Article 1 Court, there is a separation on issue similarly to 
the Court of Appeals for the Armed Forces; is that correct?
    Chief Judge Greene. Separation of issues.
    Mr. Hall. Yes, sir.
    Chief Judge Greene. I am not familiar with that.
    Mr. Hall. Separation of powers for an Article 1 Court is 
different than that from----
    Chief Judge Greene. The concept would have to be the same, 
Chairman Hall, because really you are still dealing with a 
Court that the Congress created to provide this particular 
judicial review.
    Mr. Hall. Right.
    Chief Judge Greene. And if there is no specific separation 
of powers statement, there is certainly an analogy.
    Mr. Hall. Right. But it is not a court that comes from the 
Judiciary Branch, you know, by origin. I am wondering in 
particular if you are familiar with how the CAAF, the Court of 
Appeals for the Armed Forces, handles similar issues or do 
they?
    Chief Judge Greene. Well, first of all, cases coming to the 
Court of Appeals for the Armed Forces come by petition. So the 
accused or the person convicted must cite issues that they feel 
would be worthy of consideration by the Court.
    So once the Court reviews those petitions and determines 
that there are worthy issues to be decided, they will take the 
case and hear it. Convicted persons, except for certain 
sentences, do not have an appeal by right like veterans do to 
our Court.
    Mr. Hall. Thank you, Judge Greene.
    My time has more than expired and I now yield to our 
Ranking Member, Congressman Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Judge, on page 42 of the proposed law, lines 15 to 18, let 
me read a sentence and tell me if this helps at all. In a case 
in which the Court reverses a decision on the merits of a 
particular claim and orders an award of benefits, the Court 
need not decide any additional assignments of error with 
respect to that claim.
    Now, does that help some in complying----
    Chief Judge Greene. I think the analogy would be the same 
if the Court finds a basis for remand. It need not address the 
others that would also give a remand.
    Mr. Lamborn. We have been talking in somewhat abstract 
terms. Can you give a real-life example where you think that 
the language would be harmful to the veteran or to the process?
    Chief Judge Greene. Where it would be harmful?
    Mr. Lamborn. Well, not so much harmful but a waste of 
judicial resources or somehow work to delay or somehow impede 
the veteran in his claim.
    Chief Judge Greene. You know, I think our end result was 
basically if we find prejudicial error in a veteran's case, we 
set the decision aside so that the veteran can have another 
chance. So that is very helpful. The question is, how many 
chances or how many reasons do we have to give for him to have 
that chance.
    You asked for an example. The Veterans Claims Assistance 
Act requires that an individual be notified by VA of the 
information and evidence that would be helpful in 
substantiating his or her claim.
    So VA then has to look at the claim and see what kind of 
claim it is and then say, well, these are the things that you 
need to show service connection. You need to show that you have 
a current disability. You need to show that you had an incident 
in service and you need to have medical evidence that connects 
the two.
    So, the veteran presents evidence, but for some reason, it 
is denied. He comes to the Court after the Board has also 
denied it and says, number one, I got bad notice. They did not 
tell me how to really substantiate my claim. And then he also 
says they did not assist me in the development of my claim. And 
then they say, I did not get a chance to give my doctor's 
statement to the Regional Office.
    So, number one, we look at the notice problem and in the 
notice problem, we see that the Board reviewed what happened 
and we determine that the Board said there was good notice, but 
we disagree with the Board and find that indeed there was a 
defect in the notice.
    Then we make a determination whether or not--well, 
actually, the Federal Circuit says once we find bad notice, 
prejudice is presumed and then the Secretary has to demonstrate 
no prejudice. And if the Secretary does not demonstrate no 
prejudice, the result is to return the case for VA to do it 
over again and give him the correct notice and give him a 
chance to present all the evidence.
    So we will rule that way. The government has not 
demonstrated no prejudice. And so what is left? He did not get 
assistance from the government. Well, it does not make any 
sense to go into two more pages of decision writing to talk 
about assistance when, in fact, assistance is going to start 
all over again.
    And then he says, I did not get a chance to give my 
doctor's statement to the Regional Office. Well, it does not 
make any sense for the Court at that point to go through two or 
three more pages of the requirements for presenting evidence 
when, in fact, the individual now will have the chance to give 
that statement to the Regional Office.
    And so simply stated, we were able to decide that case on 
the narrowest ground without having to go into unnecessary 
opinion writing on other issues which would not make any 
further difference in the case.
    Mr. Lamborn. Okay. Thank you for that example.
    In a different subject entirely, there is less than a 
minute left, so I will ask for a brief response from you. You 
state in your testimony that the largest problem in terms of 
timeliness of cases before the Court is that parties file 
extensions of time to file briefs.
    How can we in Congress help you with this problem or can 
we?
    Chief Judge Greene. Well, I am trying to condense it, so it 
will be brief. But I think the main situation here is that as 
an Appellate Court, each party has a right to present briefs to 
the Court in order for us to render the decision.
    A lot of these extensions of times are coming from the 
government because of the magnitude of the size of the 
caseload. Consequently, we either deny the request for 
extensions and then throw the government out of Court or deny 
the request for extension and throw the appellant out of Court. 
And that, we do not want to do because that does not pursue the 
justice that we believe the veteran deserves.
    We are taking steps within the Court to reduce the time, 
but the way the system is set up, because we go from a 
nonadversarial system to an adversarial system and there is 
really no record of trial, we have to get a record of trial 
that then forms the basis of the appellate briefs. And, 
consequently, that consumes 254 days right there. And then when 
you add on the extensions to that, you do have extensive time 
involved.
    Mr. Lamborn. Okay. Thank you.
    Mr. Chairman, I yield back.
    Mr. Hall. The Chair recognizes Mr. Hare.
    Mr. Hare. Thank you, Mr. Chairman.
    Judge, I just have a couple questions. They do not 
necessarily really, relate to your testimony, but I am just 
kind of interested and maybe you could share with me, or maybe 
if you do not know or could you find out.
    What is roughly the amount of decisions that the CAVC 
overturns that are appealed to you?
    Chief Judge Greene. The number of decisions that are 
appealed to us.
    Mr. Hare. Yes.
    Chief Judge Greene. This past fiscal year, I think it was 
around 4,600.
    Mr. Hare. What is the main reason for the Court to overturn 
those decisions? Is it incorrect ratings or misinterpretation 
of veterans' law?
    Chief Judge Greene. I am sorry. Maybe I misunderstood your 
question. You asked what were the number of cases appealed to 
us?
    Mr. Hare. Correct.
    Chief Judge Greene. Or how many reversals did we decide?
    Mr. Hare. Correct.
    Chief Judge Greene. I do not have that number exactly. But 
there are very few reversals simply because we do not engage in 
fact finding.
    And in order for us to reverse, we generally will either 
have to find that, as a matter of law, the Board was so 
incorrect in the application of that law that had they applied 
the correct law, another outcome would have resulted in which 
case, given the same set of facts, there would be a reversal 
and perhaps an award to the veteran.
    Otherwise, we would have to determine if the Board's fact 
finding was clearly erroneous. And in that case, we might 
reverse the specific finding, but then you would have to 
examine the rest of the record to make a determination if 
whether on the face of that record there remains sufficient 
evidence that would otherwise warrant awarding a benefit to the 
veteran. If it does not, it is a matter of returning it to the 
fact finder for them to engage in the proper fact finding to 
reach a conclusion.
    Mr. Hare. Okay. Well, and I know I probably even confused 
even myself with this question, too, so do not feel bad.
    Do you know what the main reasons for the Court to overturn 
decisions are? You know, in other words, is it incorrect 
ratings? Is it misinterpretation of veterans' law, under-
development of the claim? What do you see as the main culprit 
here?
    Chief Judge Greene. Well, recently, there have been a lot 
of errors in the notice arena as in the example that I gave 
you. And the law continues to develop in that area because of 
our decisions as well as the decisions of the Federal Circuit. 
But we get all types of benefits decisions before us, so it is 
kind of hard for me right now to say exactly. I will take a 
look at that and get some information to you.
    Mr. Hare. I would appreciate that.
    Chief Judge Greene. All right.
    Mr. Hare. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Hall. Thank you, Mr. Hare.
    Judge Greene, if I may, could I ask you, understanding your 
concerns about issues pertaining to the precedential value of 
the Court's decisions, do you think that each of the issues 
raised should be fully considered and ruled on and then, if 
necessary, indicate that the decision is made without prejudice 
to the appellant even if a full opinion might not be warranted 
or necessary? Might the Court, for instance, be able to issue a 
preliminary opinion that does not have a precedential effect?
    And the reason I ask this is once again because we are 
trying to give the veteran, or the veteran's representative, 
the opportunity to understand upon remand what all of the 
issues that they are going to have to deal with are. And what 
we are hearing back from them is that because of the policy of 
not doing that extra work on the other--once you have come 
across a procedural issue that requires a remand, then it is 
sent down without the others being commented on.
    So the question is, could the Court issue a preliminary 
opinion on those other issues that is not precedential in 
effect?
    Chief Judge Greene. We treasure the concept of preserving 
judicial resources, but I want to certainly correct any 
misperception that we are doing it just to avoid the work.
    Mr. Hall. I never thought so, sir.
    Chief Judge Greene. I know. And, consequently, I think it 
is very important to understand, too, that we do not have a 
policy. That is not a policy. The policy is to decide the case 
fairly and wisely.
    And, consequently, I can assure that all of my colleagues 
and I look at each case and we do, in fact, consider every 
issue raised by the appellant. And then after we have 
considered those issues and deliberated over the government's 
side and the appellant's side, we make a determination as to 
how the case should be disposed of. And if a decision is made 
to remand the case, then all of that falls into that reasoning.
    To give a preliminary finding is to give what we would call 
in the appellate practice an advisory opinion because it would 
not have any binding effect upon anybody. Of course, the Board, 
if we told the Board, well, hey, by the way, you should, in 
fact, be sure that the veteran gets a chance to give his 
evidence to the Regional Office, we can do that anyway without 
necessarily rendering a full dissertation on that. And in most 
cases, we will.
    Please understand that we look at these issues and where 
there is, we believe, a need to send a signal or send a message 
to the Board, we will do that and we do do that.
    Mr. Hall. Judge, would administrative law judges work 
better in this role?
    Chief Judge Greene. Administrative law judges would work 
great at the VA level and the Board.
    Mr. Hall. And I just want to ask you one more question. It 
has to do with our proposal regarding the Veterans Claims 
Assistance Act (VCAA) letters.
    There are some who believe that the problems with the VCAA 
letters stem from numerous court decisions rendered since its 
inception that add requirements beyond congressional intent and 
which have resulted in a duty to notify letter that is nearly 
incomprehensible to veterans.
    If VA provided a clear check list to veterans outlining 
what is needed as evidence to develop, do you think the Court 
would still be required to render decisions that require more 
information to be added to the letter to clarify VA's 
responsibilities, if you can provide such an opinion?
    And the reason I ask is because the VA contends that the 
Court's requirements imposed in cases such as Vasquez Flores 
are overstepping the original Congressional intent and treading 
into Article I jurisdiction.
    I know this may be a stretch for you, but would you please 
give your general impressions as to whether VA is 
satisfactorily meeting its duty to notify since the passage of 
VCAA and if you can, can you conceive of any or comment on what 
proper VCAA notice might contain?
    Chief Judge Greene. At the outset, just let me say that for 
8 years, there has been litigation over the ``Veterans Claims 
Assistance Act.'' I mean, Congress decided to pass that after 
there were some rulings about the well-grounded claim concept, 
but that is another story.
    In 2000, I thought the message was clear that all the VA 
had to do was do a check list and run down and make sure the 
veteran understood what it was that they had to present. And 
that is the message that the Court has been trying to convey 
over the last 7 years and the Federal Circuit.
    Now, Vasquez Flores is a pending case that I would refrain 
from commenting on, although I am very curious that you have 
that given that there is currently pending some litigation on 
that.
    Mr. Hall. Thank you, Judge Greene.
    Mr. Lamborn, you have more--Mr. Bilirakis.
    Mr. Bilirakis. I have no questions at this time.
    Mr. Hall. Okay. Since everybody else has no questions, let 
me just ask you one more. I promise this is the last one.
    Could you describe the Court's interpretation of the Best 
and Mahl cases and how it believes these cases control its 
ability to decide all assignments of error based on appeal or 
raised on appeal?
    Chief Judge Greene. The Best case----
    Mr. Hall. The Best case and the Mahl case.
    Chief Judge Greene [continuing]. The Best case was written 
simply to highlight and convey the Appellate Court practice of 
deciding issues presented to the Court on the narrowest ground 
and that you would look at the case and make a determination as 
to how best can justice be done in this case.
    Mahl extended that to the extent that it also recognized 
that the Court could entertain multiple issues if they found it 
necessary. And those guiding principles are what the Court 
employs when we look at each and every case. The judge makes a 
decision after looking at all the issues presented as to what 
he or she thinks needs to be decided to get the case back in 
the hands of the people who should have it.
    Mr. Hall. So given the confines of Best and Mahl, could you 
conceive of the Court exercising its discretion more broadly to 
reach to the assignments of error raised on appeal?
    Chief Judge Greene. You have to understand, you look at the 
Mahl case and you can look at the Wells case and you can see 
dissents on those cases that talk about, hey, we should 
consider everything or what have you.
    But if a particular judge may want to address a particular 
issue, then the question is, does the majority agree that that 
issue should be addressed in that particular case.
    But clearly each case will have to stand on its own merits 
and I do not see how you can have a blanket rule. In my 
prepared statement, I indicated that there is a strict rule 
about not taking on Constitutional issues.
    If an appellant or veteran raises a Constitutional issue, 
this statute would require us to address it even though we 
would not necessarily be required to, or if he submits 300 
issues, would we then have to submit discussion on all 300 
issues?
    Mr. Hall. Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman. I did have a brief 
followup question on the matter you just raised, the 
Constitutional question.
    The precept against deciding Constitutional questions that 
are not necessary for the adjudication of the case, how often 
does that come up?
    Chief Judge Greene. Very infrequently.
    Mr. Lamborn. Okay. But on the occasions where it does, 
then----
    Chief Judge Greene. In a pro se case, we might bend over to 
make a consideration of that.
    Mr. Lamborn. Okay. All right. Thank you.
    Chief Judge Greene. By the way, sir, congratulations on 
Kansas.
    Mr. Hall. Judge Greene, thank you so much for your 
testimony and your presence here today and your work that you 
do. And Judge Lance and Judge Schoelen is it?
    Chief Judge Greene. Schoelen.
    Mr. Hall. My eyes are not all the way there.
    Thank you very much. If we have any further questions, we 
will submit them in writing.
    Chief Judge Greene. Yes, sir. And may I also offer, if 
there is any further information that you do need, Judge 
Schoelen and Judge Lance would be more than happy to meet with 
each Member or Members of your staff individually.
    Mr. Hall. Thank you very much. The panel is excused.
    I call our second panel to the table now, Kerry Baker, 
Associate National Legislative Director of Disabled American 
Veterans (DAV); Ronald B. Abrams, the Joint Executive Director 
of the National Veterans Legal Services Program (NVLSP); Steve 
Smithson, Deputy Director of Veterans Affairs and 
Rehabilitation Commission at the American Legion; Eric 
Hilleman, Deputy Director, National Legislative Service, 
Veterans of Foreign Wars (VFW) of the United States; and Carl 
Blake, the National Legislative Director of Paralyzed Veterans 
of America (PVA).
    Gentlemen, thank you again for joining us and for your 
patience. And your statements have been entered into the record 
as written, so we are recognizing each for five minutes 
beginning with Mr. Baker.

   STATEMENTS OF KERRY BAKER, ASSOCIATE NATIONAL LEGISLATIVE 
 DIRECTOR, DISABLED AMERICAN VETERANS; RONALD B. ABRAMS, JOINT 
 EXECUTIVE DIRECTOR, NATIONAL VETERANS LEGAL SERVICES PROGRAM; 
     STEVE SMITHSON, DEPUTY DIRECTOR, VETERANS AFFAIRS AND 
 REHABILITATION COMMISSION, AMERICAN LEGION; ERIC A. HILLEMAN, 
  DEPUTY DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF 
  FOREIGN WARS OF THE UNITED STATES; AND CARL BLAKE, NATIONAL 
      LEGISLATIVE DIRECTOR, PARALYZED VETERANS OF AMERICA

                    STATEMENT OF KERRY BAKER

    Mr. Baker. Thank you, Mr. Chairman, and Members of the 
Committee.
    On behalf of the DAV, I am pleased to offer my testimony to 
address the ``Veterans Disability Benefits Claims Modernization 
Act.''
    Section 101 of the Act provides a presumption of service 
connection for post traumatic stress disorder for veterans 
diagnosed with such and who engaged in combat with the enemy. 
My statement on this issue is, therefore, limited to combat-
related PTSD.
    While the DAV supports this provision, we feel the current 
high standards required by VA's internal operating procedures 
for verifying veterans who engaged in combat with the enemy are 
impossible for many to satisfy. This is usually due to 
unrecorded traumatic events taking place on the battlefield, 
unrecorded temporary detachments of servicemembers from one 
unit to another while in the theater of operations, or simply 
poor recordkeeping.
    Our concern is that with defining who is considered to have 
engaged in combat with the enemy, this provision will be 
rendered moot by VA's internal requirements.
    The provisions of the applicable statute, section 1154, and 
the applicable regulation, section 3.304(f), are uniform in 
relation to those who engaged in combat with the enemy.
    Together they require VA to accept a sufficient proof of 
service connection for any disease or injury resulting from 
such service absent clear and convincing evidence to the 
contrary, credible, satisfactory, lay, or other evidence of 
service incurrence of the disease or injury if consistent with 
the circumstances, conditions or hardship to the veteran's 
service and notwithstanding the fact there is no official 
record of such incurrence in the service.
    The regulation further reiterates that when these 
perimeters are met, the veteran's lay testimony alone may 
establish the incurrence of the claimed in-service stressor.
    Neither the statute nor the regulation requires validation 
by official military records of an in-service combat stressor. 
Nonetheless, VA's adjudication procedure manual requires proof 
that a veteran engaged in combat through official military 
records, thus contradicting the intent of the statute and 
ignoring its own regulation.
    These internal instructions defy incredible supporting 
evidence that an in-service stressor occurred as evidence that 
specifically documents personal participation in the event that 
indicates the veteran served in the immediate area and at the 
particular time in which the event is alleged to have occurred.
    Having said that, we do, however, acknowledge that VA most 
likely promulgated these internal instructions based on its 
interpretation that the statute and regulation failed to define 
who is considered to have engaged in combat.
    We nonetheless respectfully disagree with that 
interpretation as well as the extra statutory and regulatory 
path in which VA chose to create a substantive rule of law.
    The DAV believes your bill would better deliver its 
intended effect if it amends 1154(b) to clarify when a veteran 
is considered to have engaged in combat or defines those who 
have engaged in combat under the definitions of section 1101, 
either of which I will readily admit is not an easy task.
    Section 107 of the Act expands authorization for 
developing, submitting, and certifying a claim is fully 
developed by veterans' representatives. There are many 
obstacles in the path of this novel idea. Because of those 
obstacles, the DAV would like further discussions and a better 
understanding of the nature of this provision before we can 
determine the level of our support or opposition.
    Section 108 requires a study that considers employing 
medical professionals to assist VBA. Based on our comprehensive 
experience in the claims process, one that dates back to a time 
when VA employed medical professionals in the claims process, 
we must oppose this section of the bill.
    The biggest challenge facing VA decisionmakers results from 
inadequate legal training, not inadequate medical training. 
Misunderstandings of the law can offer far more errors than do 
misunderstandings of medicine.
    Section 301 increases the reporting requirements of the 
Court and section 302 modifies the jurisdiction of the Court. 
Each of the foregoing provisions is nearly mirrored in the 
Independent Budget (IB) for fiscal year 2009. We strongly 
support each and commend Chairman Hall for the recommendation.
    At present, I have only commented on a few of the sections 
of the bill, but have done so in the remainder of my written 
testimony. I will be happy to answer questions on these 
sections or any other section should you have any.
    [The prepared statement of Mr. Baker appears on p. 46.]
    Mr. Hall. Thank you, Mr. Baker.
    Mr. Abrams, you are now recognized.

                 STATEMENT OF RONALD B. ABRAMS

    Mr. Abrams. Good afternoon, Mr. Chairman and Members. I am 
pleased to have the opportunity to talk to you today on behalf 
of the National Veterans Legal Services Program.
    I want to thank you for your hard work and I especially 
want to thank the staff on both sides for their contribution to 
this bill. It has been long overdue.
    We would first like to talk about section 101. And we feel 
though well intentioned as written, section 101 would have very 
limited positive impact. We know that in Iraq and Afghanistan, 
there is really no specific front or rear area. No 
servicemember is really safe in either place and just about 
everyone there is subject to enemy attacks.
    Therefore, we suggest that 101 be redrafted to establish a 
presumption of service connection for PTSD if the veteran 
served on active duty in Iraq or Afghanistan and currently 
suffers from PTSD. And we would also like to extend this to 
veterans who did not serve in Operation Iraqi Freedom (OIF) or 
Operation Enduring Freedom (OEF) but did serve in a combat zone 
during active duty.
    We think that the presumption should apply unless there is 
clear and convincing evidence that the veteran's PTSD is caused 
by a stressful event that did not occur during a period of 
military service, and I would like to add this to my written 
testimony, in OIF or OEF or in a combat zone. That should 
satisfy everybody. A doctor is going to have to link the 
current PTSD to an event that happened during service in a 
combat zone or in Iraq and Afghanistan.
    We would also like to stress that the VA spends a lot of 
money and time and makes veterans wait a very long time until 
they determine whether or not evidence of a stressor can be 
confirmed to make it credible. If this law, the way we propose 
it is changed, the VA will save an awful lot of time and 
veterans will get their answers in a much quicker fashion. It 
would help on the backlog and in other areas.
    I would like to stress that we support the study of the 
work credit system. NVLSP believes that this study is long 
overdue. However, having the VA study its work credit system is 
like asking the fox how to determine whether henhouse 
precautions are effective. We would hope that you would get an 
independent group like GAO to do this.
    We want to stress that the things that cause remands from 
the Court, that cause the hamster wheel effect, are things like 
control of claims, supervisory review of delayed claims, 
thorough development of the evidence needed to decide a claim 
properly, recognition of all issues, provision of adequate 
notice, documentation that that notice was given, and careful 
quality review.
    All of these things take time. And because they affect the 
productivity and effectiveness and timeliness of a Regional 
Office, there are times when VA managers take shortcuts and 
that results in improper denials which go to the Court, which 
go back to the Board, which go back to the Appeals Management 
Center, and drive veterans crazy.
    Thank you very much.
    [The prepared statement of Mr. Abrams appears on p. 52.]
    Mr. Hall. Thank you.
    Mr. Smithson, you are recognized.

                  STATEMENT OF STEVE SMITHSON

    Mr. Smithson. Thank you, Mr. Chairman and Members of the 
Subcommittee. Thank you for this opportunity to present the 
American Legion's views on this important draft bill being 
considered by the Subcommittee today.
    As detailed in my written statement, the American Legion 
generally supports the major provisions of this legislation. My 
remarks this afternoon, however, will focus on Title 1, section 
101 in order to clarify and otherwise expand on portions of my 
written statement regarding the section.
    There are three requirements that must be met in order to 
establish entitlement to service connection for post traumatic 
stress disorder, a current diagnosis of PTSD, credible 
supporting evidence that the claimed in-service stressor 
actually occurred, and medical evidence of a causal nexus 
between the current PTSD symptomatology and the claimed in-
service stressor.
    According to 38 CFR section 3.304(f)(1), if the evidence 
establishes that the veteran engaged in combat with the enemy 
and the claimed stressor is related to that combat, in the 
absence of clear, convincing evidence to the contrary, and 
provided that the claimed stressor is consistent with the 
circumstances, conditions, or hardships of that veteran's 
service, the veteran's lay testimony alone may establish the 
occurrence of the claimed in-service stressor.
    Proposed section 101 of this draft legislation, as 
currently written, would essentially establish presumption of 
service connection for veterans who have been diagnosed with 
PTSD if they can prove they engaged in combat with the enemy.
    Because of the presumptions already afforded in 38 U.S.C. 
Sec. 1154(b) and 38 CFR 3.304(f)(1), veterans who can establish 
that they engaged in combat with the enemy have a much easier 
time of establishing entitlement to service connection for PTSD 
than veterans who cannot prove they engaged in combat with the 
enemy.
    This being the case, we do not think that section 101 as 
currently written would have the positive impact that was 
obviously intended. Unless the veteran was wounded or received 
a specific combat decoration or badge such as the Combat 
Infantryman Badge (CIB) or Combat Action Ribbon or an Award for 
Valor, it is often very difficult to establish that the veteran 
engaged in combat with the enemy in order to verify the claimed 
combat-related stressor.
    Even the term engaged in combat with the enemy has taken on 
a different meaning as the nature of warfare in today's world 
has changed. This is especially true of service in combat 
theaters of Iraq and Afghanistan.
    Due to the fluidity of the battlefield and the nature of 
the enemy's tactics, there is no defined frontline or rear safe 
area. Servicemembers in noncombat operations or occupations and 
support roles are subjected to enemy attacks such as mortar 
fire, sniper fire, and improvised explosive devices just as 
their counterparts in combat arms-related occupational fields.
    Unfortunately, such incidents are rarely documented making 
them extremely difficult to verify. Servicemembers who received 
a combat-related badge or Award for Valor automatically trigger 
the combat-related presumptions of section 1154(b) and 38 CFR 
3.304(f)(1).
    But a clerk riding in a Humvee who witnessed the carnage of 
an improvised explosive device (IED) attack on his convoy does 
not automatically trigger such a presumption and proving that 
the incident happened or that he or she was involved in the 
incident in order to verify a stressor in relation to a PTSD 
claim can be extremely time-consuming and difficult.
    Moreover, such claims are often denied due to the veteran's 
inability to verify the alleged combat-related incident, the 
stressor to the satisfaction of the Department of Veterans 
Affairs.
    For the reasons and examples just discussed, the American 
Legion supports the establishment of a presumption of stressor 
for the purpose of establishing entitlement to service 
connection for PTSD for any veteran who served in Operations 
Iraqi Freedom and Enduring Freedom as long as the alleged 
stressor is related to enemy action and is consistent with the 
circumstances, conditions, or hardships of such service.
    Additionally, as a point of clarification, the American 
Legion does not oppose extending this presumption to veterans 
who served in other combat theaters. We, therefore, request 
that section 101 be revised to establish a presumption of 
exposure to stress as just discussed for veterans who served in 
Iraq and Afghanistan, as well as other combat theaters.
    Such a presumption will not automatically presume service 
connection for PTSD, but will concede that the alleged stressor 
actually occurred as long as the stressor is related to enemy 
action or the result of enemy activities and is consistent with 
the circumstances and conditions of such service.
    The veteran would still need a current diagnosis of PTSD 
and medical evidence of a causal nexus between the PTSD and the 
claimed enemy action-related stressor.
    As verifying the alleged stressor is often the most time 
and labor-intensive requirement to satisfy in a PTSD claim, 
such a presumption would not only benefit the veteran but would 
also benefit VA by negating extensive development and in some 
cases over-development of the stressor portion of a PTSD claim 
and in doing so reduce the length of time it takes to 
adjudicate such claims.
    Simply put, as PTSD is already a condition for which 
service connection can be established, this proposal would not 
be creating a new benefit, but would merely be streamlining the 
stressor verification requirement for veterans who served in 
Iraq and Afghanistan and other combat zones and in the long run 
would save VA time and resources by reducing the amount of work 
it would have to do in developing for verification of the 
stressor.
    That concludes my statement, Mr. Chairman, and I would be 
happy to answer any questions you or Members of the 
Subcommittee may have.
    [The prepared statement of Mr. Smithson appears on p. 56.]
    Mr. Hall. Thank you, Mr. Smithson.
    Mr. Hilleman.

                 STATEMENT OF ERIC A. HILLEMAN

    Mr. Hilleman. Mr. Chairman, Ranking Member Lamborn, and 
Members of the Subcommittee, on behalf of the 2.3 million men 
and women of the Veterans of Foreign Wars and our auxiliaries, 
I thank you for the opportunity to present our views today on 
this important legislation titled ``Veterans Disability 
Benefits Claims Modernization Act of 2008.''
    We also want to thank you and your staff for their 
dedication to America's veterans and we want to commend this 
Committee for its willingness to work with the VFW and other 
VSOs to craft this legislation.
    The modernization and improvement of the Department of 
Veterans Affairs claims processing system is a project that has 
long been in the making. This bill has taken shape in response 
to growing wait times, increasing complexity of claims, and 
growing numbers of veterans seeking benefits.
    The legislation we discuss today represents an 
incorporation of many recommendations of recent commissions and 
it is the most substantive step we have seen to date on the 
road to reforming and improving the VA benefits delivery 
system.
    We sincerely hope that the energy expended today and in the 
crafting of this legislation continues to facilitate the 
necessary follow through that will ensure implementation of the 
recommendations contained herein.
    We recognize that this legislation is evolving. Given the 
length of the bill, we will focus our comments on a few 
specific provisions.
    Section 101 seeks to establish presumptive service 
connection for PTSD for veterans that ``engaged in combat with 
the enemy in active service with military, naval, or air 
organization of the United States during a period of war, 
campaign, or expedition, and who is diagnosed with post 
traumatic stress disorder.''
    While well-intended, it is our view that the definition 
misses the mark. The VA has no problem granting service 
connection for PTSD even many years after service. What it does 
have a problem with is granting service connection for PTSD 
when a combat medal is absent. The goal of this provision is to 
lessen the burden of establishing the existence of a stressor 
event.
    We recommend tightening the definition as stated in our 
written testimony to ensure that veterans of the U.S. Armed 
Services receive the care they deserve.
    Section 102 would establish an Advisory Committee to study 
the disability rating schedule. We urge you to ensure this 
Committee is independent, beyond reproach, and represents the 
best interests of veterans.
    The VFW supports a measured review of the rating schedule 
as stated by my colleague, Gerald Manar, before this Committee 
on February 26th of this year. We firmly believe that a one-
time adjustment of the current schedule will not be sufficient 
to keep pace with the changing nature of quality of life and 
the evolving science of medicine, technology, and warfare.
    Section 107 would establish a mechanism to expedite and 
encourage fully developed claims. We strongly support this 
provision. To guarantee that the practice actually works, VA 
should require that Regional Office personnel, managers, and 
veteran service officers are adequately trained to recognize a 
ready-to-rate claim and understand that the receipt of such a 
claim triggers actions, which facilitate prompt adjudication.
    Section 110 calls for VA to review its process and develop 
a comprehensive plan to incorporate information technology into 
the claims adjudication process. VA is asked to examine how it 
might transfer all prescribed benefits processing tasks and 
information into computer software programs that eliminate the 
need for paper claims and provide remote access to veterans 
seeking information on their claim.
    We encourage VA to utilize properly programmed computers 
and apply regulations to discreet data arriving at a concrete 
evaluation for the veteran. Well-employed software programs 
will free up adjudication experts to work on claims requiring 
more thought and decisions.
    We ask this Committee for the opportunity to submit our 
views for the record and work closer with the staff to improve 
veterans benefits claims processing.
    We welcome any questions this Committee may have and we 
thank you.
    [The prepared statement of Mr. Hilleman appears on p. 60.]
    Mr. Hall. Thank you very much, Mr. Hilleman.
    Mr. Blake, you are now recognized.

                    STATEMENT OF CARL BLAKE

    Mr. Blake. Mr. Chairman, Members of the Subcommittee, on 
behalf of Paralyzed Veterans of America, I would like to thank 
you for the opportunity to testify today on the ``Veterans 
Disability Benefits Claims Modernization Act of 2008.''
    Due to the scope of this proposed legislation, I will limit 
my comments to only a few of the provisions in the bill.
    With respect to the provisions of section 101, PVA 
generally supports the intent of the proposal to establish a 
presumption for service connection for veterans who have 
deployed to a combat theater and who present symptoms of PTSD. 
However, we do believe that there are flaws in the legislation 
as drafted.
    First, the legislation establishes a standard that we 
believe is very difficult to prove in order to qualify for 
presumption. Specifically, the legislation states that the 
veteran must have engaged in combat with the enemy.
    This places the burden on the veteran to identify a 
specific event and submit evidence demonstrating that he or she 
was, in fact, under fire from the enemy. We do not believe that 
this is the actual intent of the legislation as it would make 
it even harder to receive a presumptive rating for PTSD than 
what currently exists in statute.
    Second, this section allows for a significant increase in 
the claims backlog. As written, the legislation would allow a 
veteran who meets the defined criteria to file a claim for 
presumptive service connection, including veterans of all war 
periods. If this is, in fact, the intent of the Subcommittee, 
we believe this needs to be clarified.
    We have no objection to section 107 of the proposed 
legislation that is meant to expedite consideration of a fully-
developed claim.
    We appreciate the recognition given to the work of service 
officers of the Veterans Service Organizations under the newly-
created section 5109(c). However, we do have some concern about 
the requirement for a check list to be provided to individuals 
submitting claims.
    It seems that in order for the VA to provide a check list 
of missing items in an incomplete claim, it will have to 
already adjudicate the claim. We do not believe that this is 
the intent of the Subcommittee as well and we believe that the 
provision warrants further consideration and clarification.
    Recent hearings have demonstrated how far behind the VBA is 
in using information technology in its claims adjudication 
process. While we believe that the entire claims process cannot 
be automated, there are many aspects and steps that certainly 
can.
    We have long complained to the VA that it makes no sense 
for severely-disabled veterans to separately apply for the many 
ancillary benefits to which they are entitled. Their service-
connected rating may immediately establish eligibility for such 
benefits as the Specially Adaptive Housing Grant, adaptive 
automobile equipment, and education benefits. However, they 
still must file separate application forms simply to receive 
these benefits. That makes no sense whatsoever.
    Furthermore, certain specific disabilities require an 
automatic rating under the disability rating schedule. It does 
not take a great deal of time and effort to adjudicate a below-
knee, single-leg amputation. An advanced information technology 
system can determine a benefit award for just such an injury 
quickly. With these thoughts in mind, PVA fully supports the 
provisions of section 110.
    With respect to the transition of servicemembers from 
active duty to veteran status outlined in Title 2 of the 
legislation, we certainly support the intent.
    As mentioned in the legislation, the VA and DoD are 
currently conducting a pilot program that addresses this issue 
and we look forward to their findings during the conduct of 
this program.
    We do believe that the language should stipulate that the 
VA be responsible for actually performing the separation 
physical. The VA has greater experience at providing a 
comprehensive medical examination as it requires the most 
thorough medical review of a veteran to determine a degree of 
disability.
    We are pleased with the fact that the legislation calls for 
the DoD to only determine fitness for duty as part of the 
process and the VA to actually determine the degree of 
disability.
    Finally, Mr. Chairman, I would like to thank you and Mr. 
Lamborn and your staffs for allowing us the opportunity to meet 
in advance of this hearing to discuss the original draft of the 
legislation and to outline many of our differences and to 
consider what we had to say as they continue to refine this 
bill. And we look forward to further discussion with the 
Subcommittee staff.
    With that, Mr. Chairman, I would be happy to answer any 
questions that you might have.
    [The prepared statement of Mr. Blake appears on p. 64.]
    Mr. Hall. Thank you, Mr. Blake.
    Thank you to all of our witnesses. And I, too, would like 
to thank all of you and your organizations for the input that 
you have had and the staff on both sides for the long hours 
that you have put into this. I know it has been a cooperative 
effort and that is something that we should all be proud of.
    I think that there are a number of cases, as you have 
pointed out. Each of you, I think, spoke more about the things, 
the sections of the proposed legislation that you have problems 
with because under the 5-minute rule, if you talk about the 
things you like, you tend to run out of time too soon. So I 
understand that and obviously that is where we need to spend 
our time is working out the kinks.
    Mr. Baker, first of all, thank you for your accurate 
description of the problems many combat theater veterans face 
in trying to document stressors and the stringency with which 
VA has chosen to implement 38 U.S.C. Sec. 1154.
    Our intention with section 101 is to provide veterans 
diagnosed with PTSD a means by which their claims can be 
granted when specific documentation of a stressor does not 
exist, is classified, or has been lost.
    And I am sorry to say that I agree with you now having 
heard your testimony or read your testimony that our language 
does, in my opinion, need to be changed because of the fact 
that combat with the enemy leaves out people who legitimately 
can claim service-related stress causing PTSD, many examples of 
which you have given.
    Based on your experiences, is there a better way to define 
this or to hold VA more accountable?
    Mr. Baker. Well, that is a very difficult question, I 
think. And part of the reason for my testimony, both my oral 
and my written, I mean, I believe that, you know, we have to 
apply the law in a strict manner or else these proceedings 
become somewhat meaningless.
    Having said that, I do not think the VA set out to violate 
the law. I think they honestly looked at the statute and 
regulation and interpreted it as not providing definition of 
who is engaged in combat, therefore, took it upon themselves to 
do that.
    My disagreement with that would be it should be in the 
regulations so that proper challenges could be made if somebody 
disagrees with it.
    Nonetheless, I understand and they have a very valid 
argument that they could say that it does not define it and, 
therefore, we did. So, you know, I respect that position.
    As far as how to define it, you know, on one side of the 
coin, you expand it out to everybody that served in a combat 
zone and which includes areas outlying in this case, it would 
be Iraq or outlying Afghanistan and that may be a little bit 
too liberal. On the other side of the coin, you have the 
current requirements to show official military records that you 
actually were in a fire fight. That may be too conservative.
    And I understand the need to balance the interest of the 
veteran as well as the interest of the government. So I think 
you are coming down to a conclusion that you have to answer 
both questions, do you want to create a system that can be a 
little easier gamed some would say by a few people, some would 
say by a lot of people, but where that no deserving veteran 
goes without the benefit that they are entitled to or a system 
where very few people can game it. And I think very few can 
game it now.
    The flip side to that is you get deserving veterans that do 
without a doubt go without it. And I think more go without it 
than are able to game the system the way it is now. So where is 
the happy median?
    Mr. Hall. Well, thank you, sir.
    Mr. Smithson suggested or supported having a stressor for 
deployment or service in OIF/OEF and service in other combat 
zones if I have my notes correctly. And Mr. Abrams' similarly 
recommended OIF/OEF and other combat zone active duty unless 
clear evidence exists that the stressor comes from an event 
that happened when not in combat.
    Mr. Baker. Yeah. As far as the combat-related PTSD, I mean, 
I would agree that one possible definition would be something 
similar to, you know, a veteran has presumed to have engaged in 
combat when they have served in a combat theater of operations, 
in other words, within the borders of the country where the 
combat is.
    When they have submitted, absent clear and convincing 
evidence to the contrary, credible, satisfactory, lay, or other 
evidence, you know, something to that effect, I think that is 
one possibility. I think you are still going to have some say 
that is too conservative, some say it is too liberal.
    Mr. Hall. Not me.
    Mr. Baker. Okay. And I feel for Congress at this point 
because that is a difficult question to answer. But I would 
agree that is definitely one possible solution. Did I answer 
that at all?
    Mr. Hall. Yes. I just want to move along and ask Mr. 
Abrams, regarding sections 103, 105, and 106, could you 
elaborate on what elements NVLSP considers to be crucial in a 
quality assurance program? How should an independent assessment 
of quality be performed by an outside contractor and do you 
have examples of such service?
    Mr. Abrams. For a while, many years ago, I worked in VA 
quality review. The problem became quite apparent to us when we 
were VA employees that when the Regional Offices checked their 
own quality, if they found it bad, then the managers would not 
get promoted or bonuses. So very few people had bad quality 
reported. Even when we found errors, people would call VA's 
Central Office and say we would like them to change their error 
calls. That might be happening today. You would have to ask 
someone from the Compensation and Pension Service.
    I would think that people who work for the Secretary, 
people who are not under the direct supervision of Veterans 
Benefits Administration would have a better chance of doing an 
accurate quality check than people who work within the 
Compensation and Pension Service or work for Veterans Benefits 
Administration.
    There is a wealth of knowledge out there today that was not 
in existence in the 1980s. More people work in veterans' law 
and you should be able to hire people who can look at a claim 
from the point of the VA claimant, check what the VA should 
have done, and make honorable errors calls that would help 
improve the VA system.
    Now, that would cover what was that, section 104 or I do 
not know if I answered all of your questions with that answer.
    Mr. Hall. Sections 103, 105, and 106, but you did. You did 
just fine. Thank you.
    Mr. Smithson, the American Legion seems to have a lot of 
experience on the PTSD problem that exists in the field and I 
must say that is the issue most vets in my district come to me 
for in terms of casework that we see.
    Not only do we hear about it, but we see it in the 
district, people who have gone through the process with the VA 
and gone the normal route of going to the RO and applying, 
submitting a claim, and having it denied and then some years 
later, be it 50 years later for a World War II vet recently to 
2 years later for an OIF vet who recently came to our office, 
that they come to us and we get the claim reversed.
    And it has happened so much. I know that we are seeing the 
cases where people are unhappy. That is what happens with us as 
Members of Congress, you know, we get the casework where people 
are not satisfied and they come to us. But, nonetheless, it 
seems to be the predominant theme.
    So I was curious to follow up on your testimony, when you 
said that VA has a tendency to over-develop cases. Do you think 
the VA wastefully expends resources on extensive development 
and do you have a broader definition to offer us for that 
language where the legislation as drafted says engaged in 
combat with the enemy, and all or most of you at any rate 
commented on that being too narrow? How would you suggest we 
word that?
    Mr. Smithson. Because of the changing battlefield and 
basically what we have in modern warfare today as good examples 
by what is taking place in Iraq or Afghanistan, the term 
engaging in combat with the enemy takes on a whole new meaning.
    The example I gave in my testimony was a clerk riding in a 
Humvee whose convoy is attacked and he witnesses the carnage of 
an IED attack. That person would not necessarily be engaging in 
combat with the enemy if he did not take fire or direct fire to 
the enemy. However, he obviously experienced a stressor, a 
stressful event.
    So I think changing the definition from engaged in combat 
to the enemy to looking at combat-related stressors, stressors 
that are the result of enemy action or enemy activity because I 
think that is what we are seeing a lot of in Iraq or 
Afghanistan.
    And being able to presume exposure to a stressor for 
individuals in those type of combat theaters without having to 
necessarily submit the documentation which in a lot of cases 
does not exist and these individuals might not necessarily have 
combat awards but by being able to presume that the stressor 
happened because it is consistent with the hardships and the 
circumstances of that service, it would make things a lot 
easier not only for the veteran to get their benefits, for the 
VA, they would not have to do a lot of development. They would 
be able to concede that part of it and move on, and it would 
help eliminate a lot of the backlog.
    Mr. Hall. Thank you, Mr. Smithson.
    I am going to turn now to our Ranking Member, Congressman 
Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    And this question is for any one of the five of you. 
Section 101 as it is currently written, do you believe that it 
could either expand the backlog or lead to possible additional 
fraud? And this is any one or all five of you.
    Mr. Blake. Mr. Lamborn, I will take that question. I think 
my statement, I hate to use the word fraud because I know last 
year in some of the discussions with legislation, it got a real 
rise out of the Committee, to imply that any veteran would 
perpetuate fraud against the VA.
    But I do not think you can discount the possibility. Maybe 
it is not even a matter of fraud. I think the question is, you 
know, an example that when we talked to the Committee staff 
about this is someone who perhaps served in Iraq or Afghanistan 
and comes home and is involved in something at home, whether it 
be a car accident or whatever, that is obviously a stressful 
event, a traumatic event that could just as likely lead to 
PTSD. But in all likelihood, that individual is still going to 
receive a presumptive service connection.
    Under what was the original intent of the legislation, I do 
not think that would happen. Certainly under the current draft 
of the legislation. The intent of the legislation, as we 
understood it in dealing with the Subcommittee staff, was there 
is this implication that any service in Iraq or Afghanistan is 
essentially a stressor and, therefore, there should be a 
presumption for service connection.
    I think that is what is the underlying implication of the 
legislation. I think if anything, with the rewrite of the 
legislation that is in the current form of the bill, it is 
tailored down to such a point that it does not support that 
idea.
    And so to some degree, what the VA currently uses and the 
statute supports it, but I think, not to speak for my 
colleagues here, but I think the idea is that it needs to go 
farther than just simply saying presentation of a combat medal 
is enough to qualify you because there are obviously 
circumstances where it could be beyond that.
    Even the example that Mr. Smithson used, that individual 
maybe does not qualify for a combat medal, maybe for a V 
device, but is that situation any less of a stressor?
    So I think the things do not tie together to support what I 
believe is the intent from what we have heard from all of the 
Committee staff when we met initially on this.
    Mr. Lamborn. Thank you.
    Anyone else? Mr. Abrams.
    Mr. Abrams. Yeah. I would like to point out that as we 
proposed changes in the bill, no one would get service 
connected unless a doctor determined that the veteran had the 
symptoms that would qualify for PTSD and the doctor linked the 
current symptoms to the alleged event.
    Basically what you are establishing if you write this bill 
right is that the VA does not have to spend several years 
trying to find unit records or the veteran does not have to 
petition the VA to write letters to fellow servicemembers years 
later to confirm the fact that the Humvee was blown up.
    If you do that, you have protected against any attempts at 
fraud. And also, people who come back from combat areas come 
back, some of them are mentally fragile. I took my father years 
ago to see Saving Private Ryan. He was a veteran of World War 
II and was part of Anzio and southern France and he was in 
invasions where he hit the beach. He walked out, and he did not 
go out of his house for several days.
    People can be fragile and an event after service can 
trigger the memories that people try for a long time to forget. 
So I am not sure there is as much fraud as people think. So I 
would say if you write it right, you are going to be fine.
    Mr. Baker. I would like to try to answer that. As far as 
the fraud question, I say absolutely not. You asked as is 
currently written. The only thing I think would change in the 
way it is currently written is the link between the stressor 
and the diagnosis because it does not change VA's internal 
mechanism for determining who engaged in combat. So that 
determination, which usually requires official records, would 
stay in place. The requirement for the diagnosis would stay in 
place.
    The presumption, as written, would do away with the link 
when you meet those two criteria. And I can tell you after 
reviewing tens of thousands of cases in my career, that is not 
the problem. If a veteran has official records and the 
diagnosis, they are almost never denied.
    Again, I think exactly what everybody else has said. The 
problem is in many cases, when you know a veteran did 
participate in combat, but there are no official records, 
either poor recordkeeping from the military or they were 
detached to a different unit for a temporary period of time, 
like in a convoy. I mean, there is usually a record of event 
somewhere.
    But in that last example I just gave you, the veteran may 
not know what unit that he was attached to for a short period 
of time, an hour or a day, especially when he was attached to 
something else the following day and something else the day 
after.
    And so that unit that was attacked may have a record, but 
his unit will not. And so he cannot prove it. So there lies the 
problem and if you could fix that with the DoD, you could 
probably fix this whole thing. But you are not going to.
    The issue of the claims backlog, as it is written, I think 
since it would not change much, I think everything will stay 
just about the same. But I have to say I absolutely do not 
agree with those that would say we should not make it easier 
for legitimate combat vets to prove they were in combat based 
on the claims backlog.
    And I realize that goes against everything you hear us say 
a lot of times about the claims backlog, but if we have a law 
that we can make that is going to help benefit veterans, it 
should not be withheld because of the backlog. And that is my 
position on that.
    Mr. Lamborn. Okay. Thank you, gentlemen.
    And, Mr. Chairman, I yield back.
    Mr. Hall. Thank you.
    Thank you all for the work that you have done with us and 
with the staff and for your service to our country and to our 
veterans and for your testimony today. This panel is now 
excused. Enjoy the rest of the afternoon.
    Oh, I am sorry. Excuse me. Mr. Bilirakis, you are now 
recognized.
    Mr. Bilirakis. I guess I have been too quiet over here.
    Mr. Hall. Mr. Bilirakis for 5 minutes.
    Mr. Bilirakis. Thank you very much.
    Thank your for your testimony.
    To the entire panel, what do you believe are the biggest 
obstacles we need to overcome to improve the overall quality of 
the claims adjudication process?
    Do you think the legislation that we are considering today 
will improve the quality of claims, the claims decision 
process? Do you have any recommendations or additional items 
that should be addressed by this legislation? And for the 
entire panel.
    Mr. Abrams. Yes. I think that unless you change the VA work 
measurement system, while you can make small changes that will 
improve things, you will not change the overall problems until 
VA managers are encouraged to do it right at the beginning, to 
develop the claim properly, to provide proper notice, to really 
have a nonadversarial program, we are just going to be spinning 
our wheels.
    They have too many claims with too few people to do them. 
They need to do them right and you need to know how really long 
it takes and how many people are really needed. And I have 
talked to you about this. I think I talked to you in the 1980s 
and this is the same thing. This needs to be fixed. Blow it up, 
do something else with the work measurement system. It will 
help veterans. It will help the backlog overall because people 
will do it right even though it might take longer the first 
time. You will not have the hamster wheel that is running 
around now.
    Mr. Bilirakis. Thank you, sir.
    Anyone else wish to comment?
    Mr. Blake. Mr. Bilirakis, I would say if you address a few 
of the concerns, I think that everyone here has outlined, the 
bill definitely makes a positive step forward in my mind 
anyway.
    And I would also encourage you to go to the Independent 
Budget and check out some of the benefits recommendations that 
are outlined in far more detail that get a number of different 
things, whether it be in the compensation and pension side, 
whether it be all the way up into the appeal side and the Court 
as well. A lot of the things here that are addressed within the 
bill can certainly be reviewed in the IB as well.
    Mr. Bilirakis. Thank you.
    One last question, Mr. Chairman, of the entire panel.
    How long is your service officer training? How do you 
develop your certification testing for your service officers 
and is it an open book test? I have always wondered that. 
Whoever would like to go first.
    Mr. Smithson. Speaking for the American Legion, we have 2 
yearly annual Department service officer schools that are 
conducted by the National Organization of the American Legion 
where our service officers in the field come in and receive 
training for a week.
    The majority of their training is provided by their 
respective organizations, either their State or what we call in 
the American Legion language Department organization.
    In keeping up with new VA requirements, we are testing all 
our accredited service representatives to ensure that they are 
still proficient and competent and this is in accordance to a 
new VA rule that was just passed.
    And that test is a hundred question test. It is an open 
book test because obviously service officers in the field, when 
they are representing people, they have access to material and 
resources. We do not expect them to, you know, keep everything 
in their head.
    But we are doing that and in the last few years, we have 
definitely moved in the direction of stronger oversight and 
proficiency requirements.
    Mr. Baker. The DAV has an 18-month training program 
initially when hired. Once that is complete, and that is fairly 
in depth, there is testing at various stages every 4 months. We 
work hand in hand with the VA's Voc Rehab to see that program 
through.
    There is a fairly extensive test in the end. It is open 
book because we require our people to write the references, at 
least when I was administering the test. I am assuming they 
still do.
    Once that 18 months is over with, all of our professional 
employees continue on a two-year testing program where we have 
two manuals. Basically we call them Book A, Book B. But each 
take a year to get through.
    And each month, we take a section and train, whether it is 
musculoskeletal disabilities, in 1 month or various 
adjudication procedures if you are not talking about the actual 
rating schedule itself.
    Each section is done over a month's period of time. You 
test at the end of the month. At the end of that first cycle, 
we test again and then we start the second book and do the same 
thing.
    Once that is done, there is usually a brief break. Usually 
we update the training materials and then we start the whole 
thing over. And that is done throughout the career of our 
representatives.
    Mr. Bilirakis. Anyone else.
    Mr. Hilleman. The VFW maintains a career-long training 
program for our service officers. Generally a new service 
officer has a shadowing program where they work with a senior 
service officer.
    Within that first year of employment, they are required to 
complete so many hours of training at a national level. At the 
national level training is between a week or two, depending on 
the training cycle.
    And during the program, we contract with former VA 
employees who have worked in adjudication process who are 
recently departed from VA so we can get some of the most 
experienced people at a point in their career where their 
knowledge is the most current.
    We offer three different stages of training, stage one, 
stage two, and stage three, depending on which part of your 
career you are in. If you are in your first 1 to 4 years, it is 
stage one. At year 4 to 12 you are in stage two and anyone 
beyond 12 years usually does stage three.
    Mr. Bilirakis. Okay. Thank you very much. I appreciate it.
    Mr. Hall. Thank you, Mr. Bilirakis for those insightful----
    Mr. Bilirakis. I appreciate it.
    Mr. Hall [continuing]. And crucial questions.
    Mr. Bilirakis. Thank you.
    Mr. Hall. I am sorry for almost overlooking you.
    Mr. Bilirakis. No problem.
    Mr. Hall. Once again, thank you to our panel. You are now 
excused. Enjoy the rest of your afternoon and thanks again for 
your hard work.
    And we will ask our third panel to come up and join us at 
the witness table, Bradley G. Mayes, the Director for 
Compensation and Pension Service of the Veterans Benefits 
Administration, U.S. Department of Veterans Affairs; 
accompanied by Richard J. Hipolit, Assistant General Counsel, 
and Steven L. Keller, Senior Deputy Vice Chairman of the Board 
of Veterans' Appeals (BVA).
    Gentlemen, thank you so much for your patience and for 
joining us.
    Mr. Hipolit. Hipolit.
    Mr. Hall. Okay. Sorry for mispronouncing it the first time.
    Yes. Your full statement is entered into the record and you 
are recognized, Mr. Mayes.

   STATEMENT OF BRADLEY G. MAYES, DIRECTOR, COMPENSATION AND 
    PENSION SERVICE, VETERANS BENEFITS ADMINISTRATION, U.S. 
   DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RICHARD J. 
HIPOLIT, ASSISTANT GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS 
  AFFAIRS; AND STEVEN L. KELLER, SENIOR DEPUTY VICE CHAIRMAN, 
BOARD OF VETERANS' APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS

    Mr. Mayes. Okay. Thank you, Mr. Chairman, Ranking Member, 
there he is, Ranking Member Lamborn, Congressman Bilirakis, 
Members of the Subcommittee, thank you for the opportunity to 
testify today on the draft ``Veterans Disability Benefits 
Claims Modernization Act of 2008.''
    As you noted, I am accompanied today by Richard J. Hipolit, 
Assistant General Counsel, and Steven L. Keller, Senior Deputy 
Vice Chairman, Board of Veterans' Appeals.
    I will get right into it here so we can get to the 
questions.
    Section 101(a) of the draft bill would add PTSD to the 
statutory list of diseases that are presumed to have been 
incurred in or aggravated by service under certain 
circumstances. The presumption would apply to any veteran who 
engaged in combat with the enemy in active service during a 
period of war, campaign, or expedition, and who is diagnosed 
with PTSD.
    The Department of Veterans Affairs does not support section 
101 because this provision, as currently written, would 
eliminate that need for a link established by medical evidence 
between current symptoms and an in-service stressor.
    And as the previous panel has mentioned, VA already has in 
place regulations that provide a lower threshold of evidence 
for substantiating a claim for PTSD in the case of a combat 
veteran.
    Sections 102, 103, 104, 108, and 110 of the draft bill call 
for studies on readjustment of the rating schedule, the work 
credit system in use by VBA, the work management system in use 
by VBA, the use of medical health professionals in support of 
the VBA claims process, and the use of information technology 
in the claims process.
    We do not support these sections because we do have already 
in place a contract for studies on quality of life, earnings 
loss, and transition payments. And the results of these studies 
should be due in August and could form the basis for a reform 
such as this legislation would require.
    We currently conduct a work measurement study approximately 
every three to four years with the most recent study completed 
in November of 2007. We have access to Veterans Health 
Administration physicians in support of the VBA claims process.
    And, finally, Ranking Member Lamborn, I know we have talked 
about this before. VA is in the initial stage of the 
acquisition process to engage the services of a lead systems 
integrator to assist in our business process modernization 
effort which I know this is getting at.
    Section 105 would require VBA employees and managers who 
are responsible for processing benefit claims to take a 
certification exam.
    Section 109 would add a new section 1156 to Title 38 United 
States Code (U.S.C.) getting at temporary ratings for unhealed 
or incompletely healed injuries.
    Again, we think these are unnecessary. VBA already had a 
certification examination process for veteran service 
representatives and we are expanding that to include rating 
veteran service representatives.
    Regarding section 109, we have authority under current 
regulations to award prestabilization ratings for all 
disabilities meeting the criteria that is in this legislation.
    And, further, the review of all pending claims within 30 
days after the date of enactment would be difficult using 
currently available resources.
    Section 106 would amend 38 U.S.C. Sec. 7731 to require VA 
to enter into a contract with an independent third-party entity 
to conduct an annual assessment of the quality assurance 
program required under that section.
    VA does not feel that that is necessary. The Government 
Accountability Office, in a recent assessment of the Department 
of Defense disability evaluation system, referenced the VA 
Compensation and Pension Quality Review Program as a favorable 
model.
    Having said that, we are very proud of that program, so we 
think that if someone did look at it, we would do fine.
    Section 107(a) would add a new section 5109(c) to Title 38 
U.S.C. requiring VA to take such actions as necessary to 
provide for the expeditious treatment of certain fully 
developed claims to ensure that any such claim is adjudicated 
not later than 90 days after submission.
    Section 107(b) would amend 38 U.S.C. Sec. 5103 to require 
VA as part of its notice to claimants of the information and 
evidence necessary to substantiate a claim, to provide the 
claimant with a check list, a detailed check list as we heard 
earlier from the previous panels.
    We are already fast tracking the ready-to-rate claims. 
Further, we are worried that unrepresented veterans or veterans 
represented by Veteran Service Organizations might in some 
instances be disadvantaged by those rules.
    And regarding 107(b), we do desire to improve the utility 
of our notice letters to the extent that the intention of the 
bill is to require a check list containing claim-specific 
information. We believe the provision may actually result in 
delayed claim adjudications and unnecessary litigation. And we 
are dealing with that now actually with the claim-specific 
notice.
    I would like to, in the interest of time here, go on to 
section 111. Section 111 would add a new section 5121(a) to 
Title 38. It would provide that a person who under current law 
would receive accrued benefits based on the death of a claimant 
who dies while awaiting the adjudication of a claim be treated 
as the claimant for purposes of processing the claim. It does 
go into some other detail.
    We do not object to this section, which would allow the 
submission of evidence in support of a claim that was pending 
before VA when the veteran died. Such legislation would be 
consistent with what the Veterans Disability Benefits 
Commission recommended, to allow survivors, not the creditor to 
pursue a veteran's due, but unpaid benefits.
    And, finally, section 201, the single separation exam pilot 
study, we urge Congress to wait for the results of that pilot 
study before we move out on that.
    And section 302 for the reasons cited in my written 
statement for the record, we would also oppose that section.
    I would be happy, Mr. Chairman, Ranking Member Lamborn to 
answer any questions at this time.
    [The prepared statement of Mr. Mayes appears on p. 66.]
    Mr. Hall. Thank you, Mr. Mayes.
    Well, I am glad you like section 111.
    Mr. Mayes. Mr. Chairman, having said all that, actually, we 
are not that far off in some areas, I believe.
    Mr. Hall. We all are, I assume, trying to do the same thing 
and you at the VA are a moving target, if you will, because 
while we are trying to respond to what we are hearing, you are 
also responding to what you are hearing and to what you are 
hearing that we are hearing.
    Mr. Mayes. Yes.
    Mr. Hall. So I am not surprised that there are things 
underway that you are advising us to wait for the results of.
    But we have with regard to the stressor, the presumed 
stressor for PTSD, as you probably heard earlier, you know, 
this is the thing that we hear, that I hear about the most, and 
I think most Members hear not just in these legislative 
hearings, but in our work in our districts.
    I certainly did not intend, I do not think we intended the 
language of this proposed bill to make it harder for a veteran 
to prove service-connection. We heard a couple of different 
suggestions for language that would correct that.
    Is your suggestion that we leave the language of the 
existing law or did you like any of the options presented by 
the earlier witnesses?
    Mr. Mayes. Well, I think what I would say on this matter, 
first of all, the discussion was very robust. It was a good 
discussion and I think everybody hit the issue.
    You know, PTSD requires three things. It requires medical 
evidence diagnosing the condition. It requires credible 
supporting evidence that the claimed in-service stressor 
occurred and then a medical nexus between the two.
    You know, the diagnosis is not a problem for us. The 
medical nexus really is not a problem for us. We get that from 
an examiner, from a psychologist or a psychiatrist. It is this 
issue of a stressor.
    And the discussion so far has revolved around combat. And 
for veterans who engaged in combat, that is really not a 
problem either if we know that they engaged in combat. In fact, 
what we did was we took the statute. We took the definition of 
combat and we tried to come up with a way to nail that down 
because then the evidentiary threshold is lower for a veteran 
to prove a stressor. So if they engaged in combat, their lay 
testimony is good enough and then we move that case forward.
    If you are asking me do I think that we need to change 
that, I mean, I think that is the issue really that you are 
dealing with. Do you want to expand? Do you want to expand 
combat to mean something other than engaging with the enemy?
    And at this point, I would say we are executing the regs or 
the statute as it stands. And if that changes, of course, we 
would expand.
    Mr. Hall. I will give you a couple of for instances. An 
Army Lieutenant who is serving in his first tour of two in Iraq 
and the initial assault on Fallujah and sees many of his 
comrades fall around him and sees extensive and graphic 
civilian casualties and upon return home has classic PTSD 
symptoms and has repeatedly been given a zero rating by the 
Regional Office. Then after two years of private psychiatric 
treatment during which time he is diagnosed as having an 
exaggerated startle reflex and suicidal tendencies and 
inability to sleep for more than a couple hours at a time and 
so on, comes to our office and we send one of our staff in with 
him and he gets a hundred percent rating and is granted back 
disability payment for the two previous years and an ongoing 
compensation.
    I do not know what has to happen for that. Is this an issue 
of the training which--again, we are trying to deal with 
consistency of training and rating in this bill, and the fact 
that there seems to be at different ROs different ratings that 
come out for the same veteran. In fact, we have heard that from 
a number of sources, or is it something that can be dealt with 
in the service connectedness determination or the definition?
    Mr. Mayes. Well, I think in that example that you just 
gave, first of all, it is unfortunate if we miss the 
evaluation, if we did not properly compensate the veteran up 
front. And we are doing lots of things to promote consistency 
and get it right the first time.
    That is really a separate issue from the discussion about 
service connection for PTSD because it sounds like in that 
case, whatever the stressor was, whether it was a Combat Ribbon 
or possibly simply buddy statements and us corroborating that 
they were there, we granted service connection.
    Mr. Hall. Right. There is no question about----
    Mr. Mayes. Right.
    Mr. Hall [continuing]. Combat in that case.
    Mr. Mayes. Right. So they are in the system. Regarding the 
evaluation, I would say a couple of things. You know, one of 
the things that that Veterans Disability Benefits Commission 
said was you do need to look at the evaluation criteria for 
PTSD and for mental disorders.
    And so we are doing that. We met with Social Security to 
see how they do it. We were headed down a path of possibly 
having separate evaluation criteria for multiple categories of 
mental disorders. Social Security breaks into two. We are still 
trying to figure out the best way to do that, but we think we 
are poised to make changes on the rating schedule with respect 
to mental disorders.
    Mr. Hall. Excuse me, Mr. Mayes. Is the problem possibly the 
VA's overly narrow interpretation of Sec. 1154 as outlined in 
the M21s?
    Mr. Mayes. Well, in that particular case, we granted 
service connection. So, I mean, we----
    Mr. Hall. It should be not applied.
    Mr. Mayes. Yeah. That would not have applied.
    Mr. Hall. Let us just take a for instance that was 
mentioned by one of the previous witnesses. What about a clerk 
who is driving in a convoy and a vehicle in front or behind is 
hit by an IED and they assist with rescuing people or even just 
see people in those difficult straits of being killed or 
wounded and the stress that comes about from that kind of 
situation?
    Mr. Mayes. Well, we have a mechanism to arrive at service 
connection for PTSD in those cases.
    If I could go back to Sec. 1154(b), the provisions there, 
the way that regulation for that statute was structured and the 
regulations behind that statute were structured was that we 
would, if a person could demonstrate that they engaged in 
combat, then we would accept their lay testimony on its face. 
We would not have to go any further. And the statute is pretty 
clear. It says engaged in combat with the enemy.
    So what we had to do was figure out how do we define 
engaged in combat with the enemy. And we did that in our 
procedures. We said if you get these medals or you have buddy 
statements or you outline facts that are consistent with those 
hardships. So we did through, procedure, try and make that 
definition.
    Is that overly restrictive? I think what I would say is it 
is trying to interpret the spirit of the statute and the law.
    Mr. Hall. Granted, that is well put. And I guess what I am 
hoping to do is to be more inclusive to the point where this 
week, for instance, people sleeping in the green zone where in 
October, I was told to go to bed and be careful not to use that 
water to brush my teeth, but use the bottle, you know now, this 
week, they are being told sleep in your helmet and your body 
armor because of the incoming rounds of mortar and rocket fire.
    And there have been significant casualties, in the green 
zone. Somebody who is working there and is not--well, I guess 
you could say they are in combat with the enemy in that they 
are taking incoming rounds.
    But what about stress from these kind--I mean, I have heard 
as you I am sure have also that diplomats and their staff and 
so on have been claiming to be suffering from PTSD symptoms 
from being in Baghdad or being in Iraq in this circumstance and 
not knowing where the danger might come from, not knowing, not 
having a front or a rear as people in prior panels have said.
    Service in OIF/OEF or other combat zones when there is a 
diagnosis and a claim being made that is backed up by a 
psychiatric examination and the veteran has been deployed to 
one of these--Mr. Abrams from the prior panel suggested unless 
there is proof that the stressor came from some incident that 
happened while not in the service or while not in combat should 
be granted.
    Is that to your way of thinking a viable way of approaching 
this would be?
    Mr. Mayes. Well, there are certainly many instances of 
stressors where someone would not have a Combat Ribbon. That 
scenario that you presented where someone was in a convoy, in 
our procedures now, what we would ask is, can you give us 
information about that circumstance.
    And then we have a duty to assist, to go try and collect 
evidence to substantiate that assertion that I was in the 
convoy, I saw an IED explosion. So we will go out. We will ask 
for buddy statements.
    For the recently returning servicemembers, we might call a 
unit historian and we will take their word for it and document 
on a report of contact that they corroborated this person was 
there and saw this. Again, that is good enough.
    See, it does not have to be a combat stressor for us to 
grant PTSD. The whole purpose of 1154(b) was to say that if you 
could place someone in combat, then their statement alone is 
good enough. But if you cannot, we will still try and 
corroborate the stressor. And if we can and the examiner opines 
in their opinion that the stressor is the cause of the PTSD, 
then the grant is good.
    Mr. Hall. Thank you, Mr. Mayes.
    I am going to recognize our Ranking Member, Mr. Lamborn.
    Mr. Lamborn. Yeah. Thank you, Mr. Chairman.
    I asked a similar question earlier, but I would like to ask 
you. If section 101 were to pass in its current form, what do 
you think would happen to the possibility of the backlog 
increasing or the possibility of more gaming of the system?
    Mr. Mayes. Well, the way I read 101, it says we will 
presume a stressor if the veteran engaged in combat. So we will 
still be trying to chase down whether the veteran engaged in 
combat. The Agency will still have to have a definition of what 
combat is.
    So, you know, on its face, I am not sure it would change a 
whole lot because you see as the discussion occurred today that 
is what is sometimes problematic when we do not have a Combat 
Action Ribbon or a CIB or what have you.
    And I would add you do not even have to be near combat to 
be granted PTSD. I awarded service connection on a case one 
time for a Navy diver who was pulling bodies out the Potomac 
after the plane crash some years ago.
    So, you know, the notion of combat, we are still going to 
have to try and run down whether they--you know, if they do not 
have the ribbon, were they in combat, and we would have to go 
get buddy statements just like we are doing today. But we are 
doing that today.
    Mr. Lamborn. Okay. Thank you.
    Now, right now the VA has the authority under section 1154 
to find that there is the engagement in combat with the enemy 
like we were just talking about.
    One idea that I am playing with and talking to staff and 
Chairman Hall about is having a study done on how much the VA 
is actually using that or how it is using that.
    What would be your thoughts on that possibility?
    Mr. Mayes. A study to determine how frequently we apply 
Sec. 1154(b).
    Mr. Lamborn. Yes.
    Mr. Mayes. I think that, you know, that's certainly 
something that we could consider doing. I am trying to think. 
You know, typically what we would do is in the discussion that 
describes the reason for our decision, if we applied 
Sec. 1154(b) in order to utilize a lay person's statement, we 
would lay that out in the reasons and bases. But I do not know 
that we capture that information in a distinct data field that 
we could then data mine. It would probably require us looking 
through cases that would be a workload issue for us to pull a 
sampling.
    Mr. Lamborn. Okay. Thank you.
    And then a minute ago, you said that we are--by we, I mean 
yourself and the way the bill is currently drafted--fairly 
close on some things.
    Where would those points of closeness be?
    Mr. Mayes. Well, we are definitely, I think, very close on 
the provisions for accrued benefits claims. You know, I have 
said in previous testimony that we would definitely entertain 
continuing to develop a claim. Once we get an accrued benefits 
claim, continuing to develop for additional evidence for the 
claim that was pending at the time of the veteran's death. I 
think we are close there.
    Frankly, I think that what we are doing with trying to 
bring on a lead systems integrator is getting at what you are 
interested in: leveraging technology to make some efficiency 
improvements.
    Our contracting process is just painfully slow. You know, 
first, we have to develop a statement of work which we have 
actually pretty much completed and then the bid solicitation 
process, get the bid on the street, go through that competitive 
process.
    But I have seen some of the work done on that. You know, I 
think within a reasonable amount of time with that assistance, 
we could have a plan that I think is headed in the direction 
that you are talking about with your proposed language, and I 
forget what section it is, but regarding automation.
    Mr. Lamborn. Any other sections of the bill that you see 
closeness to?
    Mr. Mayes. Yes. I think as I alluded to in the studies, we 
are working with a contractor or we have engaged a contractor 
to study quality of life, earnings loss, and transition 
payments. That was referenced in the bill. And I believe those 
results are supposed to be available sometime in August or the 
September timeframe.
    And myself and my staff have already met with the 
contractor. We are going to meet with them again to discuss 
quality of life.
    I mean, we have provisions in our regulations right now 
under paragraph 28, paragraph 4.129 to allow us to pay veterans 
who have unhealed or incompletely healed injuries.
    So when I say we are close, I actually think, you know, 
that legislation, we do not need it because it is there. We 
have authority to do it.
    What you want us to do and we want to do it is get to the 
claims faster. I mean, it seems to me that is what it is about. 
And on the severely injured, I pulled some numbers, we are 
doing those in about 100 days as opposed to 182 days. And 
operationally we are putting an emphasis on the severely 
injured servicemembers and veterans.
    The Disability Evaluation System process, that pilot is 
moving forward. So a lot of the things that are in here really 
we are underway with.
    Mr. Lamborn. Thank you.
    And, Mr. Chairman, I yield back.
    Mr. Hall. Thank you, Mr. Lamborn.
    And, Mr. Mayes, as you heard, we have a vote called, so I 
will just ask you a couple more questions.
    You know, the genesis of this temporary rating section is 
having heard about people who are not getting their claims paid 
for injuries not in dispute. They might have an eight-part 
claim and then maybe one part of it is a severe injury that is 
not in dispute, like an amputation or a TBI or something like 
that, and that the claim as a whole is being processed and they 
are going through the auditory and the vision and the various 
other aspects of it.
    I asked Secretary Walcoff when he was testifying before the 
Subcommittee, why am I hearing about cases where this is not 
happening, why can we not just, if there is something as 
obvious as a leg amputation, like one goes to Iraq with two 
legs and comes back with one, can we not start paying 
immediately when the veteran presents a claim on that part of 
the claim that is not in dispute.
    He said we do that. We can do that now. It is in the 
regulation just as you just said. And I said, well, then, why 
is it not happening, why are we hearing that is not happening. 
He said, well, because of bureaucratic confusion or certain 
claims processors who may feel that it is in their best 
interest in terms of the work credits and the guidelines for 
them to finish the whole claim first.
    So there are two things that we are talking about doing 
here. One is by studying the credits that we may arrive at a 
situation where work credit would be given for early payment on 
the part of a claim which is not in dispute. And the other one 
is that we can get the veteran a flow of disability 
compensation going for him and his family, if he has a family, 
who may really need it.
    We are only asking for things because we are hearing about 
them not being done.
    By the way, we added one word there, healed or their injury 
healed, unhealed, or incompletely healed to allow for, for 
instance, an amputee who in Landstuhl has done a good job with 
rehabilitation and he or she comes back looking pretty much the 
way they are going to look. While the rest of their claim may 
take some adjudication, that is one thing that could be paid on 
a temporary basis as opposed to a prestabilization basis that 
part of the claim paid immediately while the rest of it is 
being processed.
    Just curious what your reaction to that is.
    Mr. Mayes. Well, I think I was here when Mr. Walcoff made 
that statement actually and it is true. We have the ability 
right now to adjudicate a claim right up front, do a temporary 
decision, and then continue to collect the evidence for all of 
the other issues.
    The only thing I would say is there is attention. In the 
clear-cut case of an amputation, there is no reason we should 
not pay that right now, get the benefit stream started, and 
then collect the evidence on the other issues.
    Frequently, though, the case is a little more complicated. 
We end up with a lot of evidence, much evidence in some cases, 
and a reference to other evidence, maybe private treatment 
records or, you know, we will go out for an exam.
    And so there is that balance between reviewing all of that 
evidence up front to determine if we can do a partial rating, 
do the partial rating, then continue to collect all the 
evidence and do a second rating on that same case maybe, you 
know, 6, 8, 10, 12 months down the road.
    And unless it is something obvious that sticks out, 
frequently they will go ahead and collect all of the evidence, 
get the exam, and just do one decision rather than two.
    So that is the cost. That is the cost to do those temporary 
ratings is that you are really going to adjudicate that claim 
twice. And as you know, as you have mentioned here to us, we 
also have, you know, an inventory, a backlog. And so we are 
faced with the prospect of getting at that inventory and 
getting the benefits going. And there is a balance.
    Mr. Hall. I understand that. But at the same time, if it is 
something that is visible, indisputable, medically proven, it 
is in the service record, it should not take any time really. 
It should not take much at all to say, okay, here is something 
that is clearly service related and it should be compensated 
for and let us just start----
    Mr. Mayes. Yes, sir.
    Mr. Hall [continuing]. Writing the checks. I mean, that 
does not seem to me like you are talking about more than an 
hour or something. Maybe I just do not understand. But I 
appreciate your input on it. And we are all after the same 
thing.
    Mr. Mayes. Yes, sir.
    Mr. Hall. And I think the better you and the ROs and the 
processors do that, which the Under Secretary says you now have 
the authority to do. I mean, we put the word in shall, the 
Secretary shall----
    Mr. Mayes. Yes, sir.
    Mr. Hall [continuing]. Because, you know, we were afraid 
that the authority is there, but is not being used. Show us 
that the legislation is not needed and, then maybe we will not 
put that in there.
    I have a hard time, as you can imagine, as the veterans and 
their families have a hard time, and I understand it is maybe a 
small percentage of the time that this happens when it should 
happen more regularly.
    But, anyway, we may have some other questions which we will 
submit to you in writing. Thank you for your patience.
    Thank you to all the witnesses, thank you to all the staff, 
and we will keep working together to try to solve these 
problems.
    Thanks to the VSOs and the other veterans advocacy groups 
for your support and have a good night.
    This Committee is adjourned.
    Mr. Mayes. Thank you, Mr. Chairman.
    [Whereupon, at 4:19 p.m., the Committee was adjourned.]



                            A P P E N D I X

                              ----------                              

           Prepared Statement of Hon. John J. Hall, Chairman
       Subcommittee on Disability Assistance and Memorial Affairs
    Good afternoon:
    I would ask everyone to rise for the Pledge of Allegiance--flags 
are located in the front and in the rear of the room.
    I am proud to be here today and honored to be joined by Ranking 
Member Lamborn in a bipartisan effort to present this historic 
legislation that will reform the VA Benefits Claims Processing System. 
This is in no way a unilateral effort. Many of the provisions within 
this legislation were independent bills offered by Members of this 
Committee on both sides of the aisle. I am confident that when it is 
voted on, it will leave this Committee as a seamless, fluid piece of 
legislation that will grant the wounded warriors of this great country 
the service they deserve.
    I once read, ``Veterans programs are not perfect. Much remains to 
be done by way of improvements along forward looking and constructive 
lines. The dominant problems are the carryover from past decades of a 
backward-looking pension philosophy and our failure to adjust the 
existing veterans' programs to fundamental changes in our society.'' I 
found this quote to be striking as it also captures my observations of 
the Veterans Benefits Administration, yet unfortunately those 
observations were made by Omar Bradley in 1956. We should have listened 
to the General then, but it is imperative that we do it now, especially 
since we have our troops in harm's way around the world.
    The Subcommittee has conducted extensive oversight during this 
Congress and has listened to the testimonies of disabled veterans, 
their families, and survivors who explained their problems with VA 
benefits. Many of their concerns led back to issues with claims 
processing delays, denials, and avoidable remands. For a moment, I want 
to reflect on what they said, since these are the very people at the 
heart of this bill.
    We've heard from a paralyzed veteran who went a year without 
compensation because of lost files and poor communication with VA that 
put his family in dire financial stress and forced his children to drop 
out of college. There were parents who talked to us about suicide and 
mental health problems and the inability of their beloved child to get 
VA healthcare--in many cases, service connection is necessary to 
accessing that care. Another veteran who suffered a Traumatic Brain 
Injury and an amputation, along with his wife, confronted us with how 
exhausting it is to figure out VA benefits and the gaps that exist 
because the model is outdated and archaic--even for a case that is so 
obviously clear cut and simple. It does not account for the loss in 
their quality of life, or their ``real-world'' needs.
    And these atrocities are not just affecting veterans from current 
occupations. They affect veterans of every age and every conflict. I 
heard a story of a World War II veteran who had a mortar shell that 
landed directly in front of his face. He recalled the medic who 
attended him on the battle field and his difficulty in telling the 
difference between his burns and his facial hair. After being taken to 
a medical facility he then learned that this incident had never been 
reported by the medic. As a result, this brave soldier, who served his 
Nation in a time of dire need, had to fight the VA for 51 years before 
finally being awarded his benefits due to the requirements of finding 
witnesses of the event and the burden of proof that is all too often 
impossible or extremely difficult for veterans to both understand and 
complete. As he stood and told me this story, I watched as he grasped a 
folder that contained his disability claim and heard him state that he 
would never let it go in fear that the VA would rescind his claim and 
take back his money.
    For too long the VBA has been allowed to skirt their responsibility 
to reward our veterans with the same type of selfless, heroic service 
that the veterans themselves gave to our country. However, reciprocity 
is at hand. The Veterans' Disability Benefits Commission, Dole/Shalala, 
and other task forces have all made recommendations to improve the 
system. We have data from the Institute of Medicine, the Center for 
Naval Analyses, the Institute of Defense Analyses, and several 
government Accountability Offices and Inspector General Reports that 
highlight inconsistencies, variances, disparities, and errors. The 
Veteran Service Organizations have shared their ideas and experiences 
to reform VBA and have played an integral part in shaping this 
legislation.
    Expert medical, legal, and technological witnesses have enlightened 
us on what is possible in our modern world. VA employees have also 
worked with us to tackle these problems and there is no doubt that this 
is a workforce dedicated to assisting disabled veterans. Unfortunately, 
they work in a broken, outdated environment. So, I am grateful to them, 
and everyone who has been willing to work with us on developing the 
improvements in this legislation.
    With the Veterans Disability Benefits Claims Modernization Act of 
2008, we hope to address the centric issues that have led to the 
enormous and mounting claims backlog, delays in processing, avoidable 
errors, inconsistencies in ratings and lack of accountability that 
amounts to a ``system of injustice'' for our veterans.

    Title I of this bill encapsulates several sections that will:

      Address evidence problems with Post Traumatic Stress 
Disorder (PTSD) claims,
      Study, report, and implement a plan for readjusting the 
VA Schedule for Rating Disabilities so that it includes:
        Medically recognized standards, codes and practices,
        Appropriate compensation for the average loss of 
earnings capacity,
        Quality of life impacts,
        Mental health parity,
        Encouragements for Vocational Rehabilitation, and
        Creates an Advisory Committee on Disability 
Compensation.

    It will also:

      Study the VBA Work Credit and Management Systems,
      Require certification and training for VBA employees and 
managers,
      Assess annually quality assurance,
      Expedite fully developed claims and require a checklist 
for evidence,
      Report on employing medical professionals at VBA,
      Assign Temporary Ratings for severely injured veterans 
while deferring other conditions,
      Enhance information technology that includes:
        A Web portal for claim submission and tracking by 
veterans,
        Rule base expert systems, and
        Automated decision support.

    Title I also contains provisions to assist survivors by allowing 
them:

      A year to submit additional evidence upon the death of a 
veteran, and
      To transfer the claim to another dependent.

    Title II of this bill addresses the servicemember's transition from 
the Department of Defense to VA with the creation of a single VA/DoD 
disability evaluation examination process, whereby DoD determines 
fitness for duty and VA rates level of severity. This reduces the 
duplicity for injured and ill servicemembers who must navigate two 
different systems at a time when they need support and assistance the 
most.
    Title III focuses on matters related to the United States Court of 
Appeals for Veterans Claims. It establishes annual tracking 
requirements for the Court's workload and gives the Court the authority 
to affirm, modify, reverse, or vacate, and remand decisions of the 
board. The Court must also first decide all assignments of error raised 
by an appellant for each benefit claimed.
    Make no mistake--this is an ambitious, landmark piece of 
legislation which will take a great deal of cooperation and 
collaboration on multiple fronts. No doubt, this will need to be a 
collective effort that goes well beyond Congress and VA. It will 
require the support and expertise of the VSOs, DoD, leading experts and 
professionals, academics, and technicians, and other government 
entities, all of whom bring information and experience to the table. I 
know that VA is moving in the general direction of some of the efforts 
outlined in the bill, and I applaud your efforts in this vein--they are 
not overlooked.
    Also, I do not want to fail to recognize the hard work and 
dedication of the VA employees throughout the VBA, from the Regional 
Office to the Central Office. I know that the problems we face today 
are the result of a culmination of events beyond their control, which 
run the gamut from inadequate funding and poor leadership to a 
corporate culture that does not foster accountability. Just as I have 
heard stories of calamity, I have also heard stories of the care and 
compassion of VA employees who genuinely care about our veterans and 
work tirelessly to provide them every service they can.
    But today, time is of the essence and we must stop this 
incomprehensible cycle of ignoring the lack of accountability for 
outcomes of claims at the VBA. Outcomes matter, not just process. I 
repeat, outcomes matter, not just process and I believe that we need to 
modernize our Nation's claims processing system to make it accountable 
to producing better outcomes for our veterans, their families and 
survivors.
    Ladies and Gentlemen, the time has come when we must envision a VA 
of the future, and not leave Omar Bradley's warning unheeded at the 
expense of another generation of veterans.
    I now yield to Ranking Member Lamborn for his opening statement.

                                 
   Prepared Statement of Hon. Doug Lamborn, Ranking Republican Member
       Subcommittee on Disability Assistance and Memorial Affairs
    Good afternoon, thank you Chairman Hall.
    It is an honor to participate in this momentous occasion.
    The Veterans Disability Benefits Claims Modernization Act of 2008 
still has far to go, but for the first time in a long while, I believe 
there is proper alignment of thought and a cooperative effort to make 
substantial improvements to the veterans' benefits claims process.
    This bipartisan bill is comprised of a number of measures that have 
as their foundation, the collective recommendations of Democrats, 
Republicans, veterans' service organizations, and two blue-ribbon 
commissions on veterans' benefits.
    That is not to say this bill is flawless or that there are not 
remaining snags to be worked out.
    Indeed, there are a couple of issues that cause me difficulty, and 
one that I believe is critically flawed.
    I will elaborate more on those concerns in a bit, but I want to 
preface those remarks with the fact that I wholeheartedly agree with 
the intent behind even the faulty provisions; still, I am deeply 
concerned about unintended consequences they may hold.
    Principally, I am troubled over the provision that would have VA 
concede presumption of a stressor for every person who served in 
theater of operation that was subject to combat.
    This could have enormous ramifications for the VA claims system and 
could potentially increase the backlog.
    At the same time, I am empathetic to what the provision attempts to 
accomplish.
    I believe an agreed upon solution can be reached, and I believe the 
expertise needed to arrive at such a fix is gathered here today.
    My other concerns are less troubling, but I remain concerned about 
what might occur if we codify certain regulations and leave less 
discretion for VA.
    I very much look forward to the testimony of our witnesses, 
especially VA's.
    I hope that, based upon recommendations made here, resolutions can 
be reached and this bill will acquire the momentum it needs to make the 
potential historic impact it holds.
    Chairman Hall, I appreciate the favorable rapport we share on this 
subcommittee.
    And I eagerly anticipate working with you during the fleeting time 
left in this session to put some points on the board for veterans.
    Thank you, I yield back.

                                 
           Prepared Statement of Hon. William P. Greene, Jr.
         Chief Judge, U.S. Court of Appeals for Veterans Claims
    Mr. Chairman and Members of the Committee:
    As the Chief Judge of United States Court of Appeals for Veterans 
Claims (the Court), I exercise responsibilities as the Chief 
Administrative Officer of the Court. It is in that capacity, and in the 
spirit of cooperation between the legislative branch and a national 
court of record that I join you today to present the Court's views on 
the proposed legislative changes concerning the Court that are offered 
in ``The Veterans Disability Benefits Claims Modernization Act of 2008, 
HR__.''

 H.__Title III--Sec. 301--Annual Reports on Workload of United States 
                  Court of Appeals for Veterans Claims

    Section 301 of the legislation proposes to add to title 38 of the 
U.S. Code a new section 7288 that would require the Court to submit to 
the Senate and House Committees on Veterans Affairs an annual report 
summarizing the Court's workload.
    The Court's longstanding practice has been to produce an Annual 
Report on its workload. This report is provided routinely with the 
Court's budget request, and whenever requested by Congress. 
Additionally, the report is published on the Court's website, and 
permits the public to compare the Court's performance over the course 
of time. The Annual Report is modeled after the statistical report 
compiled and issued each year by the Administrative Office of the 
United States Courts. Indeed, our automated case-tracking system was 
designed to provide statistics modeled after that report, which are 
then compiled and reconciled by the Clerk of the Court. Our current 
reporting practice provides much of the data identified in the proposed 
legislation. The Court has responded and will continue to respond to 
appropriate requests regarding the Court's caseload, including the 
items in the proposed legislation. We leave to Congress' discretion 
whether codification of this practice is necessary.

H. __Title III--Sec. 302--Modification of Jurisdiction and Finality of 
  Decisions of the United States Court of Appeals for Veterans Claims

    Section 302 of the legislation proposes to amend 38 U.S.C. Sec. 252 
by adding a new paragraph that reads: ``(3) With respect to any appeal 
filed by a claimant, the Secretary may not make an assignment of error 
or concede an error not raised by the appellant, without first 
obtaining written consent from the appellant.'' It is my view that this 
provision has serious jurisprudential concerns requiring Congress' 
careful consideration.
    First, although the amendment requires a veteran's consent to a 
concession of error by the Secretary, this provision presents potential 
ethical ramifications that must be considered before prohibiting an 
attorney, who is an officer of the Court, from identifying to the Court 
what is believed to be a prejudicial error in the Board decision on 
review. However, I leave it to the Secretary to address this 
consideration.
    Further, requiring the Secretary to obtain written consent from an 
appellant not only will likely cause confusion for some appellants, 
especially those unrepresented, but almost certainly will contribute to 
delay in the legal review of all appeals. Timely appellate review by 
the Court is of great importance to veterans, VA, the Court, and 
Congress. And, as I have stated recently in a Congressional response, 
the most obvious and direct way to reduce the amount of time an appeal 
remains pending before the Court is for the parties to reduce the 
number of motions for extensions of time that are filed. In fiscal year 
2007, the parties requested over 13,000 extensions of time to prepare 
and file the record, prepare and file the briefs, and to respond to 
attorney fee applications. Appeals cannot be submitted to the judges 
for decision until the parties have completed the briefing process. The 
legislative proposal requiring the Secretary to obtain written consent 
from an appellant before raising legitimate issues not already raised 
by the appellant is sure to add to the extensive number of motions for 
extensions of time that are filed with the Court. Additionally, if 
written consent is not secured, and the Secretary is precluded from 
bringing to the Court's attention errors not raised by the appellant 
that could be corrected ``the first time'', there is potential for 
repetition of that error if the matter is otherwise returned to VA for 
readjudication.
    Finally, this amendment potentially creates issues involving post 
decisional matters. In an attorney fees application filed pursuant to 
the Equal Access to Justice Act, the Court must decide whether the 
Secretary's actions in the litigation were ``substantially justified.'' 
Making this determination within a system that could prevent the 
Secretary from identifying potentially prejudicial errors would be 
extremely difficult. Further, I can anticipate that questions would 
arise as to whether a veteran waives an error and is precluded from 
later arguing it if he refuses to consent to its presentation by the 
Secretary.
    Section 302 also amends section 7252(a) of title 38, United States 
Code, by mandating that the Court ``may not affirm, modify, reverse, 
remand, or vacate and remand a decision of the Board without first 
deciding all assignments of error raised by an appellant for each 
particular claim for benefits.'' For the reasons discussed below, the 
Court believes such legislation is not necessary and indeed would slow 
down the Court's efforts to resolve appeals timely.
    In conducting appellate review, the Court recognizes the well 
established concepts of employing judicial restraint and conserving 
judicial resources in determining whether to address a particular 
argument when rendering a decision. Several factors are weighed in 
employing these concepts. Indeed, 38 U.S.C. Sec. 7261(a) directs that 
the Court decide all relevant questions of law that are ``necessary to 
its decision and when presented.'' To act within this mandate requires 
a balancing of interests by the Court. As observed by Chief Judge 
Posner in a concurring statement in Rodriguez v. Chicago: ``It is a 
matter of judgment whether to base the decision of an appeal on a broad 
ground, on a narrow ground, or on both, when both types of ground are 
available. If the judges are dubious about the broad ground, then they 
will do well to decide only on the narrow ground; but if they are 
confident of the broad ground, they should base the decision on that 
ground (as well as on the narrow ground, if equally confident of it) in 
order to maximize the value of the decision in guiding the behavior of 
persons seeking to comply with the law.'' 156 F.3d 771, 778 (7th Cir. 
1998) (Posner, C.J., concurring). Similarly, at times, in deciding to 
not address certain allegations of error, judges of our Court have 
concluded: ``A narrow decision preserves for the appellant an 
opportunity to argue those claimed errors before the Board at the 
readjudication, and, of course, before this Court in an appeal, should 
the Board later rule against him.'' Best v. Principi, 15 Vet.App. 18, 
20 (2001). The Court has also recognized that in certain instances it 
is prudent to address multiple arguments, and that a judge has 
discretion to ``determine that, while it is not necessary, it may be 
appropriate to address multiple allegations of error in remanding a 
case.'' Mahl v. Principi, 15 Vet.App. 37, 38 (2001).
    The Court is aware that the practice of often deciding cases on the 
narrowest grounds has been discussed at length by practitioners in many 
venues, and the Court, through its opinions and in other settings (such 
as judicial question-and-answer sessions at the Court's Judicial 
Conference and its Bench and Bar Conference) has participated in this 
dialog. We are sensitive to this issue and have strived to respond to 
the concerns of the litigants who practice before us. As one of our 
judges stated at the Court's 2006 Judicial Conference: ``I believe that 
the Court has listened to these comments and taken them to heart . . . 
[W]e are trying to reach more of the issues [raised on appeal]. But in 
certain instances, clearly jurisprudentially it makes more sense not to 
reach them.''
    I want to make clear that although the Court may not make a 
``decision'' on every argument in every case, we do consider every 
assertion of error raised by the appellant and the Secretary, and give 
thoughtful deliberation on whether the Court's decision should 
specifically address that argument. Indeed, I can say with confidence 
that all of my colleagues are sensitive to the lengthy adjudication 
process that many veterans have endured by the time their appeals reach 
our doors, and my colleagues are cognizant of the wishes of both 
parties to have their arguments heard and considered. Other factors are 
at play, however, in determining whether it is necessary, appropriate, 
or prudent to expend resources and make binding determinations on 
particular arguments.
    When conducting judicial appellate review, the Court, like all 
other appellate courts, does not engage in fact-finding; appeals must 
be considered based on a record established while the matter was 
pending before VA. Many errors argued to the Court are procedural in 
nature, and if persuasive and prejudicial, result in the Court vacating 
the Board's decision and remanding the matter to VA. A remand of this 
nature directs VA to correct the procedural errors, conduct additional 
evidentiary development on the claim that results from the correct 
procedure, and then, considering anew all of the evidence obtained and 
arguments raised, issue a new decision. Where such a remand has been 
ordered, often other allegations of error become factually moot, and 
even if persuasive afford an appellant no greater remedy than that 
which has already been secured--a remand of the matter with direction 
that VA readjudicate the claim. For example, if the appellant argues 
that the Board erred in failing to address a specific authority or 
piece of evidence, a judge can require that such evidence or authority 
be addressed on remand without deciding whether it was sufficiently 
raised or that it was error not to address it the first time. Or, if an 
appellant argues that he did not have an opportunity to submit to the 
VA adjudicator a particular piece of evidence, then he or she will have 
that opportunity on remand regardless of whether a judge decides it was 
error in the original decision.
    Likewise, if an argument is persuasively made that VA failed to 
take required developmental steps or to notify a veteran of how to 
establish entitlement to benefits, the Court may vacate the Board's 
decision and remand the matter so that the error may be corrected and 
the record properly developed. There is no need to rule on other 
factual arguments that are based on an improperly developed record. 
Knowing that VA will reopen the factual basis upon which the claim will 
be adjudicated and issue a new decision based on all of the evidence, a 
judge may reasonably exercise his or her discretion in not making a 
specific determination on other arguments, such as the sufficiency of 
the Board's analysis of the evidence. To do so would be to rule on a 
matter that would no longer have legal consequences because the Board's 
decision is no longer valid or useful to the determination. Therefore, 
it is my view that to statutorily require that the Court mechanically 
address ``all assignments of error,'' regardless of their relevant 
weight or importance, would have an adverse affect on the Court's 
ability to manage its sizable caseload and to sustain a satisfactory 
level of production, and would be wasteful of Court resources with no 
benefit flowing to veterans. The principle of judicial restraint 
counsels that ``when a court can resolve a case based on a particular 
issue, it should do so, without reaching unnecessary issues.'' Black's 
Law Dictionary (7th ed. 1999).
    Moreover, there are certain arguments, such as Constitutional 
challenges, that courts deliberately do not reach unless necessary. For 
example, the U.S. Supreme Court recently reiterated that there is a 
``fundamental principle of judicial restraint that courts should 
neither `` `anticipate a question of constitutional law in advance of 
the necessity of deciding it' '' nor `` `formulate a rule of 
constitutional law broader than is required by the precise facts to 
which it is to be applied.' '' Wash. State Grange v. Wash. State 
Republican Party, 128 S.Ct. 1184 (March 18, 2008) (quoting Ashwander v. 
TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (quoting 
Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of 
Emigration, 113 U.S. 33, 39 (1885)). Requiring the Court to decide all 
assertions of error would not only unnecessarily expend judicial 
resources, but could operate contrary to this principle or require us 
to make decisions beyond the bounds of the ``case or controversy'' 
requirement of Article III of the U.S. Constitution.
    Further, I anticipate that defining when an argument has been 
raised, or sufficiently raised such that it must be addressed, could be 
problematic and result in confusion and disagreement. The legal content 
of appellate briefs filed with the Court, and particularly the numerous 
informal filings by unrepresented or pro se appellants, varies greatly, 
ranging from cryptic statements to lengthy submissions, and often the 
particular allegations of error are unclear. The Court endeavors to 
address the allegations that have merit and to clearly communicate to 
the parties why it is ruling in a particular way.
    Finally, and very importantly, it must be recognized that although 
the appellant may believe that all of his or her assignments of error 
have merit, that belief may not be realized. As observed in Best, 
supra, if the Court rules that some of the errors raised have no merit, 
that determination is binding and those specific errors may not be 
raised in any remand otherwise ordered by the Court. Such a situation 
could work to the detriment of veterans, who would otherwise have the 
opportunity to develop and present any such arguments on remand. It 
could also cause potential further delay in the appellate review 
process because the appellant would have the right to contest that 
Court decision by appealing to the U.S. Court of Appeals for the 
Federal Circuit.
    Simply stated, it is my view that section 302's proposed limitation 
on the Court's discretion to decide alleged assignments of error could 
have numerous unintended negative consequences for appellants and in 
the promptness of our judicial review. I assure the Committee that each 
judge strives to conduct judicial review responsibly and consistently, 
and thus I believe this amendment to 38 U.S.C. Sec. 7252 is not 
necessary.
Conclusion
    On behalf of the judges of the Court, I thank you for your 
consideration of our views on this proposed legislation.

                                 
                   Prepared Statement of Kerry Baker
  Associate National Legislative Director, Disabled American Veterans
    Mr. Chairman and Members of the Subcommittee:
    I am pleased to have this opportunity to appear before you on 
behalf of the Disabled American Veterans (DAV) to address the 
``Veterans Disability Benefits Claims Modernization Act,'' (the 
``Act'') under consideration today. In accordance with our 
congressional charter, the DAV's mission is to ``advance the interests, 
and work for the betterment, of all wounded, injured, and disabled 
American veterans.'' We are therefore pleased to support various 
measures insofar as they fall within that scope.
    Section 101 of the Act provides a presumption of service-connection 
for post traumatic stress disorder (PTSD) for veterans diagnosed with 
such and who engaged in combat with the enemy. The DAV fully supports 
this provision. However, the current high standards required by 
Department of Veterans Affairs' (VA's) internal operating procedures 
for verifying veterans who engaged in combat with the enemy are 
impossible for many veterans of the current wars, as well as past wars, 
to satisfy. This is usually due to unrecorded traumatic events taking 
place on the battlefield, unrecorded temporary detachments of 
servicemembers from one unit to another while in a combat theater of 
operations, or simply poor recordkeeping. Our concern is that without 
defining who is considered to have ``engaged in combat with the 
enemy,'' this provision will be rendered moot by VA's internal 
requirements.
    If VA applied 38 U.S.C.A. Sec. 1154 properly, the problems this Act 
targets, and others, would be resolved. Title 38, United States Code, 
section 1154(a) reads in part: ``[I]n each case where a veteran is 
seeking service-connection for any disability due consideration shall 
be given to the places, types, and circumstances of such veteran's 
service. . . .'' 38 U.S.C.A. Sec. 1154(a) (West 2002). Likewise, 
section 1154(b) states:
          In the case of any veteran who engaged in combat with the 
        enemy in active service . . . the Secretary shall accept as 
        sufficient proof of service-connection of any disease or injury 
        alleged to have been incurred in or aggravated by such service 
        satisfactory lay or other evidence of service incurrence or 
        aggravation of such injury or disease, if consistent with the 
        circumstances, conditions, or hardships of such service, 
        notwithstanding the fact that there is no official record of 
        such incurrence or aggravation in such service, and, to that 
        end, shall resolve every reasonable doubt in favor of the 
        veteran.
    38 U.S.C.A. Sec. 1154(b) (emphasis added). Specific to PTSD 
resulting from combat, the VA has determined that service connection 
requires (1) medical evidence of the condition; (2) credible supporting 
evidence that a claimed in-service stressor occurred; and (3) a link, 
established by medical evidence, between the diagnosis and the in-
service stressor. 38 CFR Sec. 3.304(f) (2007). section 3.304(f) appears 
on its face to be consistent with the statute by stating:
          If the evidence establishes that the veteran engaged in 
        combat with the enemy and the claimed stressor is related to 
        that combat, in the absence of clear and convincing evidence to 
        the contrary, and provided that the claimed stressor is 
        consistent with the circumstances, conditions, or hardships of 
        the veteran's service, the veteran's lay testimony alone may 
        establish the occurrence of the claimed in-service stressor.
    38 CFR Sec. 3.304(f)(1).
    It is quite evident that the provisions of the foregoing statute 
and regulation do not require validation by official military records 
of an in-service combat stressor. The law merely requires, absent 
``clear and convincing evidence to the contrary,'' ``credible,' 
satisfactory lay or other evidence'' of an in-service stressor that is 
``consistent with the circumstances, conditions, or hardships of the 
veteran's service.'' Congress made clear its intent of not requiring 
such proof to be in the form of official military records when it 
stated, ``notwithstanding the fact that there is no official record of 
such incurrence or aggravation in such service.'' In cases of combat-
related PTSD, the incurrence of the disability is the actual exposure 
to the event; therefore, requiring proof through official records of 
the incurrence violates the law.
    Notwithstanding the plain language of the foregoing statute and 
regulation, the VA has circumvented the law by conducting improper 
rulemaking through its Office of General Counsel and its adjudication 
procedures manual, M21-1MR, by requiring the proof that a veteran 
engaged in combat as that shown through official military records, thus 
contradicting the intent of the statute. VA Office of General Counsel 
Opinion 12-99 reads in part:
          In order to determine whether VA is required to accept a 
        particular veteran's ``satisfactory lay or other evidence'' as 
        sufficient proof of service connection, an initial 
        determination must be made as to whether the veteran ``engaged 
        in combat with the enemy.'' That determination is not governed 
        by the specific evidentiary standards and procedures in section 
        1154(b), which only apply once combat service has been 
        established.
    VA Gen. Coun. Prec. 12-99 (Oct. 18, 1999). This General Counsel 
Opinion requires veterans to establish by official military records or 
decorations that they ``personally participated in events constituting 
an actual fight or encounter with a military foe or hostile unit or 
instrumentality.'' Further, VA has promulgated internal instructions 
that arguably go beyond the General Counsel's Opinion by instructing 
rating authorities as follows:
          Credible supporting evidence that an in-service stressor 
        actually occurred includes not only evidence that specifically 
        documents the veteran's personal participation in the event, 
        but evidence that indicates the veteran served in the immediate 
        area and at the particular time in which the stressful event is 
        alleged to have occurred, and supports the description of the 
        event.
    M21-1MR, Part IV, Subpart ii, 1.D.13.
    The M21-1 manual gives the following two ``examples'' to VA 
adjudicators considering whether a veteran has submitted sufficient 
evidence of an in-service combat stressor: ``When considered as a 
whole, evidence consisting of a morning report, radio log, and 
nomination for a Bronze Star may be sufficient to corroborate a 
veteran's account of an event, even if it does not specifically include 
mention of the veteran's name.'' The second example states: ``Unit 
records documenting the veteran's presence with a specific unit at the 
time mortar attacks occurred may be sufficient to corroborate a 
veteran's statement that she/he experienced such attacks personally. 
These examples go beyond what is required by statute and regulation. By 
VA requiring official records to prove the ``incurrence'' of a disease 
or injury--the in-service stressor serving as the incurrence, or 
injury, in the case of PTSD--the VA has effectively read ``satisfactory 
lay or other evidence'' out of the law, thereby exceeding its 
authority.
    For decades, the VA has required such proof before recognizing a 
claimant as a ``combat veteran.'' As a result, those who suffer a 
disease or injury resulting from combat are forced to provide evidence 
that may not exist or wait a year or more while the VA conducts 
research to determine whether a veteran's unit engaged in combat. Many 
claims that satisfy the requirements of the statute are improperly 
denied.
    Chairman Hall, the DAV believes your bill would better deliver its 
intended effect if it amends title 38, United States Code, section 
1154(b) to clarify when a veteran is considered to have engaged in 
combat for purposes of determining combat-veteran status. In the 
alternative, the Act could be amended to define under title 38, United 
States Code, section 1101, who is considered to have engaged in combat 
with the enemy. Such clarification would hopefully allow for 
utilization of nonofficial evidence--such as a veteran's statement 
alone if the statement is ``credible'' and ``consistent with the 
circumstances, conditions, or hardships'' of the veteran's service and 
is otherwise not contradicted by clear and convincing evidence--as 
proof of an in-service occurrence of a combat-related disease or 
injury, to include PTSD.
    This type of legislation would remove a barrier to the fair 
adjudication of claims for disabilities incurred or aggravated by 
military service in a combat zone. This legislation would follow the 
original intent of the law by requiring VA to accept as sufficient 
proof lay or other evidence that a veteran engaged in combat with the 
enemy as well as suffered a disease or injury as a result of that 
combat if consistent with that veteran's service.
    Many veterans disabled by their service in Iraq and Afghanistan, 
and those who served in earlier conflicts are unable to benefit from 
liberalizing evidentiary requirements found in the current version of 
the applicable statute, section 1154; and regulation, section 3.304(f). 
This results because of difficulty, even impossibility, in proving 
personal participation in combat by official military documents.
    Oversight visits by Congressional staff to VA regional offices 
found claims denied under this policy because those who served in 
combat zones were not able to produce official military documentation 
of their personal participation in combat via engagement with the enemy 
in light of VA's persistence to exceed statutory and regulatory 
requirements. The only possible resolution to this problem, without 
amending section 1154 or otherwise defining who is considered to have 
engaged in combat, is for the military to record the names and personal 
actions of every single soldier, sailor, airman, and Marine involved in 
every single event--large or small--that constitutes combat and/or 
engagement with the enemy on every battlefield. Such recordkeeping is 
impossible.
    Numerous veterans have been and continue to be harmed by this 
defect in the law. In numerous cases, extensive delays in claims 
processing occur while VA adjudicators attempt to obtain official 
military documents showing participation in combat: documents that may 
never be located. Notwithstanding the possible passage of this bill, 
without codifying who is considered to have engaged in combat, the VA 
will continue to apply criteria that unlawfully exceed regulatory and 
statutory authority. By doing so, this veteran-friendly bill will have 
no practical effect because VA will continue to deny claims of service 
connection for PTSD when veterans are unable to prove combat experience 
in accordance with VA's stringent internal requirements.
    In regards to section 102 of the Act, the DAV fully supports an 
adjustment to the VA Rating Schedule that ensures parity with mental 
health disabilities and physical disabilities. The current disparity 
exists because of the Rating Schedule's requirement that a veteran 
suffer from total occupational and social impairment prior to an award 
of a 100-percent disability rating. VA decision makers generally focus 
only on occupational skills when considering such ratings and therefore 
fail to consider all other aspects of life. This type of disparity can 
result in a veteran that is 100 percent socially impaired, even to the 
point of being unable to maintain close family relations that results 
in an isolated life, being denied a total rating by VA because the 
veteran may be able to earn a living from home. Any change to the 
Rating Schedule should definitely consider these disparities and seek 
to resolve them in favor of disabled veterans.
    There are various possible solutions to this problem. For example, 
if VA required total occupational impairment ``or'' (rather than 
``and'') social impairment; or more preferably, ``near'' total 
occupational impairment ``or'' ``near'' total social impairment, then 
inequities between ratings for physical and mental disabilities would 
be resolved.
    Concerning the study required by this section, one that considers 
using codes in use by the medical and disability profession, we caution 
that ICD codes be carefully implemented. There are well over 10,000 of 
these types of medical codes, but just over 700 current VBA diagnostic 
codes. Therefore, a diagnostic code-ICD code cross reference would be a 
required tool in the simplification process of this type of 
transformation.
    As DAV has stated on the congressional record, we support the 
establishment of an advisory Committee as a first priority to begin 
oversight of any updates and/or adjustments to the Rating Schedule. The 
DAV requests that we be ensured easy access to the advisory Committee 
once formed.
    We currently fail to understand the significance between (c)(1), 
submission of a plan, and (c)(3)(A), report on plan. These requirements 
appear redundant; we are therefore requesting clarification. On this 
note, we also fail to understand the need for the additional studies 
and reports requested of this portion of the Act. The VA is currently 
in the process of conducting various studies recommended by recent 
commissions, such as a quality of life study to include updates to the 
Rating Schedule. It may be more prudent to review the results of these 
studies before implementing additional and overlapping studies. There 
is also the likely chance that the current ongoing studies will be 
completed by the time this Act moves far enough through the legislative 
process to become law.
    Finally, we have reservations with section (b)(2)(B), which 
requires a study on the ``nature of the disabilities for which 
compensation is payable under laws other than laws administered by the 
Secretary.'' This provision appears, at least on its face, to compare 
service-connected disability compensation to private disability 
programs, i.e., workman's compensation. Disabilities incurred on the 
battlefield or during military training are not tantamount to the 
typical on-the-factory-job repetitive motion injury. Nonetheless, some 
disabilities acquired as a result of military service will have 
overlapping symptoms of disability caused by civilian occupations. The 
VA, however, provides a set of benefits that are uniquely pro-claimant 
and veteran-friendly--benefits provided by a Nation grateful to those 
that stand up to defend it. These benefits should not be comparable to 
workman's compensation or Social Security.
    Section 103 of the Act focuses on the VA's work credit system and 
section 104 requires a study on the work management system. The DAV has 
long advocated for a more stringent system of accountability. We 
therefore do not oppose the purpose behind these sections of the bill. 
However, we feel that any improvements in the work credit system, aimed 
at increasing accuracy and accountability, will be less than effective 
if equal or coinciding changes are not made in VA's quality assurance 
practices in conjunction with those of the work credit system. With 
careful and well-planned changes, the VA's quality assurance system, 
the Systematic Technical Accuracy Review (STAR) program, can serve its 
purpose of overseeing accuracy much more effectively and simultaneously 
serve as a tool to implement an accountability program.
    In the STAR program, a sample is drawn each month from a regional 
office workload divided between rating, authorization, and fiduciary 
end products. For example, a monthly sample of ``rating'' related cases 
generally requires a STAR review of ``10'' rating-related end 
products.\1\ Reviewing 10 rating related end products per month does 
not amount even to a tenth of 1 percent of the rating decisions 
produced in many average-sized regional offices. This should serve as 
an example of the lack of importance placed on accuracy. For this 
reason, DAV fully supports the intent of the legislation at hand.
---------------------------------------------------------------------------
    \1\ See M21-4, Ch. 3, Sec. 3.02.
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    As for the issue of suspending the award of work credits if VA 
fails to implement a new system, this may be unfeasible. Suspending 
work credit fails to consider the reality of how multifaceted the VA's 
benefits delivery system has become, particularly when considering the 
various types of claims a beneficiary may file, the various stages of 
development and decisionmaking within each claim, and the potential 
changes that can occur at any particular stage of the claim. Suspending 
work credit may render the VA unable to account for accuracy at every 
stage in the process, particularly those non-rating actions performed 
by claims developers, adjudicators, authorizers, etc, whose work credit 
is fixed to the claim but not necessarily to the rating decision.
    Currently, VA utilizes over 50 pending end-product codes \2\ for a 
multitude of actions. The number of end-product codes may be further 
expanded by using ``modifiers'' that designate specific ``issues'' for 
types of claims within a certain broader category. The VA's end product 
codes are used in conjunction with its productivity and work 
measurement system. The productivity system is the basic system of work 
measurement used by Compensation and Pension (C&P) Service, but it is 
also used for report and tracking. Additionally, VA's end-product codes 
are also utilized in the STAR program. This further supports the notion 
that these two systems should be improved simultaneously in order for 
any improvements to be effective.
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    \2\ M21-4, App. A, Glossary of Terms and Definitions. Manpower 
Control and Utilization in Adjudication Divisions (Pending End Product: 
``A claim or issue on which final action has not been completed. The 
classification code identified refers to the end product work unit to 
be recorded when final disposition action has been taken.'').
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    The program is also used for quantitative measurement, a tool 
utilized in preparing budget forecasts and in distributing available 
staffing. Quantitative and productivity measurement are also tools used 
in comparing and tracking employment of resources. Both productivity 
measurement and work measurement are tools available to management for 
this purpose. Quantitative measurement also allows Central Office and 
Area Offices to compare stations and to track both local and national 
trends. Productivity measurement and work measurement are complementary 
measurement systems that each depend, in part, on VA's end product code 
system. The end-product code system is further used in determining work 
credit provided to VA's employees. The work credit function of these 
programs would have to be disconnected, if possible, from the remaining 
function of the programs; or else, the VA would lose the ability to 
manage and track its day-to-day functions.
    Based on the foregoing, we feel the legislation as written, does 
not take into account the significant interplay between VA's work 
credit system, which utilizes completion of pending end-product codes, 
and the foregoing measurement systems and STAR program, which also 
utilize completion of pending end product codes. Nonetheless, because 
of the positive intent of this legislation, the DAV would welcome the 
opportunity to discuss this issue in more depth. We would look forward 
to working hand-in-hand with Congress, as well as any necessary VA 
officials, in order to help achieve an outcome that satisfies the 
intent of Congress, improves the lives of disabled veterans, and 
assists VA in the success of each.
    Section 105 of the Act would create a required certification for 
employees of the Veterans Benefits Administration (VBA) responsible for 
processing claims. We have long-advocated for better training in VBA 
and therefore fully support this portion of the bill. The DAV has 
maintained the preeminent training program throughout the VSO community 
for many years; of which, many other organizations have adopted. 
Training is tied directly to quality--the DAV would welcome the 
opportunity to assist the VA in developing such a program.
    Section 106 requires an assessment of VA's quality assurance 
program. For this section, please refer to our discussion on sections 
103 and 104 of the Act.
    Section 107 of the Act expands authorization for developing, 
submitting, and certifying a claim as fully developed. The DAV 
understands the need for novel initiatives that have the possibility of 
assisting VA with, or providing VA with the tools for, expediting the 
claims process. Nonetheless, we have concern as to whether this is the 
correct tool.
    The reality of claims development is that the vast majority of 
claims submitted, with the potential exception of claims for 
discharging servicemembers, requires access to internal and external 
developmental tools. Some of these tools include access to, and 
authorization to use intra and inter agency communication platforms 
that are necessary to request records from sources such as the Social 
Security Administration, Department of Defense, and the Veterans Health 
Administration. Currently, veterans service organization 
representatives, whether local, state, or national do not have access 
to these systems because limitations based on representation (power of 
attorney) are not built into the software.
    However, what is more concerning to us than technological and 
logistical limitations is the proper training required to thoroughly 
understand what constitutes a fully developed claim. VA adjudicators 
are usually well versed in the particular and varied details 
surrounding claims development, but only after extensive on-the-job 
experience. Nonetheless, the majority of appealed cases remanded by the 
Board of Veterans' Appeals (``BVA'' or ``Board'') are because of errors 
committed by VA in its duty to assist claimants in the development of 
their cases.
    We fear that this remand rate would increase with the addition of 
potentially unqualified individuals to the claims development arena. 
This is not to indicate that we are absolutely opposed to any plan that 
would allow personnel other than VA employees to assist in the 
development of claims, but only to express our concerns regarding the 
current barriers to success of such an idea.
    Section 108 of the Act requires a study and/or report on employing 
medical professionals to assist VBA. Based on our comprehensive 
experience in the claims process, one that dates back to a time when 
the VBA and the BVA employed medical professionals in the claims 
process, the DAV must oppose this section of the bill.
    The many complications involved in the claims process do not 
include VA decisionmakers facing many challenges interpreting the 
medical data involved in the decisionmaking process. The biggest 
challenges facing VA decisionmakers result from inadequate legal 
training, not inadequate medical training. Misunderstandings of law 
account for far more errors than do misunderstandings of medicine.
    Additionally, integrating the medical and legal segments of the 
claims process will ultimately ensure the disappearance of any 
distinction between the two. Medical professionals are not legal 
professionals and therefore should be restricted to and held 
accountable for accurately reporting medical facts.
    Section 109 codifies the use of pre-stabilization ratings. The DAV 
does not oppose codification of pre-stabilization benefits. However, 
Congress should include provisions for extending such ratings when a 
veteran is not shown to have stabilized within the specified time.
    Section 110 concerns the use of information technology at VBA. A 
reasonable approach would be to enact legislation that requires VA to 
submit to Congress a broad and over-arching plan by a reasonable date 
outlining the technology identified and the manner in which such 
technology would be utilized. Once this plan is complete, the 
groundwork will be laid for VA to coordinate with various entities, 
i.e., Congress, Veterans Service Organizations, Department of Defense, 
etc., in order to begin turning the plan into reality on a larger 
scale. The DAV would welcome the opportunity to work with the Agency, 
to include any contractors, in order to assist in the development of an 
electronic claims process system.
    The goal of any form of electronic claims process should be to 
automate, and thereby shorten as much as possible those portions of the 
claims process that currently consume the majority of time. Expecting a 
form of technology to imitate intelligent human behavior with respect 
to the decisionmaking process of VA's benefits delivery system, 
particularly where evidence weighing and judgment calls on such 
evidence are required, appears as an untenable goal--automation rather 
than human imitation is the first logical phase of this undertaking.
    Contrary to some beliefs, the majority of time spent by VA on 
disability claims is in preparing the case for a decision. This 
includes receiving the claims by VA, establishing the claim in VA's 
current computer systems, and developing the evidence to support the 
claim. Evidence development, whether in the form of gathering military 
records from the service department or the Records Processing Center, 
private health records, VA health records, VA or private medical 
opinions, and stressor verification through the U.S. Army and Joint 
Services Records Research Center consumes the vast majority of the 
claims-processing time. Therefore, any viable electronic claims-
processing system implemented with real expectations of shortening the 
claims process must focus on all VA functions and development leading 
up to the rating decision more so than just the rating decision itself.
    The DAV supports the provisions of section 111 that pertain to the 
management of claims for accrued benefits upon the death of a claimant. 
We do not, however, support the portion stating that the substituted 
party may designate the person who receives benefits if such party does 
not want to be a claimant. The codification should merely follow the 
regulation.
    Section 201 creates a single joint VA and Department of Defense 
disability examinations process. The DAV supports this provision, for 
which a pilot program is currently being conducted.
    Section 301 increases reporting requirements of the United States 
Court of Appeals for Veterans Claims (Court), and section 302 modifies 
the jurisdiction of the Court. Each of the forgoing provisions is 
nearly mirrored in the Independent Veterans Service Organizations, 
Independent Budget for FY 2009. We strongly support each and commend 
Chairman Hall for their recommendation.

                                 
                 Prepared Statement of Ronald B. Abrams
   Joint Executive Director, National Veterans Legal Services Program
    Mr. Chairman and Members of the Committee:
    I am pleased to have the opportunity to submit this testimony on 
behalf of the National Veterans Legal Services Program (NVLSP). NVLSP 
is a nonprofit veterans service organization founded in 1980 that has 
been assisting veterans and their advocates for 27 years. We publish 
numerous advocacy materials, recruit and train volunteer attorneys, 
train service officers from such veterans service organizations as The 
American Legion and Military Order of the Purple Heart in veterans 
benefits law, and conduct quality reviews of the VA regional offices on 
behalf of The American Legion. NVLSP also represents veterans and their 
families on claims for veterans benefits before VA, the U.S. Court of 
Appeals for Veterans Claims (CAVC), and other Federal courts. Since its 
founding, NVLSP has represented over 1,000 claimants before the Board 
of Veterans' Appeals and the Court of Appeals for Veterans Claims 
(CAVC). NVLSP is one of the four veterans service organizations that 
comprise the Veterans Consortium Pro Bono Program, which recruits and 
trains volunteer lawyers to represent veterans who have appealed a 
Board of Veterans' Appeals decision to the CAVC without a 
representative. In addition to its activities with the Pro Bono 
Program, NVLSP has trained thousands of veterans service officers and 
lawyers in veterans benefits law, and has written educational 
publications that thousands of veterans advocates regularly use as 
practice tools to assist them in their representation of VA claimants.
         TITLE I: Modernizing The VA Claims Adjudication System
Section 101. Presumption of service-connection for veterans who were 
        deployed in support of contingency operation with post 
        traumatic stress disorder
    Section 101 would establish a presumption of service connection for 
veterans who were deployed in support of a contingency operation who 
now suffer from post traumatic stress disorder (PTSD). Proposed 
subsection (d), which would be added to 38 U.S.C. Sec. 1112, states:
          For the purposes of section 1110 of this title, and subject 
        to the provisions of section 1113 of this title, in the case of 
        any veteran who engaged in combat with the enemy in active 
        service with a military, naval, or air organization of the 
        United States during a period of war, campaign, or expedition, 
        and who is diagnosed with post traumatic stress disorder, such 
        disorder shall be considered to have been incurred in or 
        aggravated by such service, notwithstanding there is no record 
        of evidence of such disorder during the period of service.''
    In essence, section 101 would permit veterans who have been 
diagnosed with PTSD to obtain service connection if they can prove that 
they engaged in combat with the enemy. It is NVLSP's experience that 
veterans who can prove that they engaged in combat with the enemy have 
much less trouble establishing service connection for PTSD than 
veterans who cannot prove they engaged in combat with the enemy. See 38 
U.S.C. Sec. 1154(b), and 38 CFR Sec. 3.304(f). Therefore, although well 
intentioned, proposed section 101 would have very limited positive 
impact.
    In Iraq and Afghanistan there really is no specific front or rear 
area. No service Member is really safe in either place and just about 
everyone is subject to enemy attacks and exposure to events that 
threaten their physical safety or the physical safety of others. 
Therefore, NVLSP suggests that section 101 be redrafted to establish a 
presumption of service connection for PTSD if the veteran served on 
active duty in Iraq or Afghanistan and currently suffers from PTSD, 
unless there is clear and convincing evidence that the veteran's PTSD 
is caused by a stressful event that did not occur during a period of 
military service, notwithstanding the fact that there is no record of 
evidence of such disorder during service. NVLSP also suggests that this 
same presumption extend to veterans who did not serve in Iraq and 
Afghanistan, but did serve in a combat zone during active duty. Please 
note that under NVLSP's proposals, to be entitled to service connection 
for PTSD, these veterans would still have to be diagnosed with PTSD and 
the mental health expert would still have to link the current condition 
to an in-service stressor.
    It is the experience of NVLSP that the VA spends a great amount of 
time trying to verify alleged stressors that sometimes are impossible 
to confirm. If the law were changed to acknowledge that service in Iraq 
and Afghanistan and service in a combat zone constituted a stressor for 
PTSD purposes, veterans who claim service connection for PTSD would 
have a much easier time obtaining their rightfully earned benefits and 
the VA would not have to spend so much time developing claims for PTSD.
Section 103. Study on Work Credit System of Veterans Benefits 
        Administration
    Section 103 requires the VA to conduct a study of the work credit 
system of the Veterans Benefits Administration (VBA). VBA uses this 
system to measure the work production of employees of the Veterans 
Benefits Administration. NVLSP believes that this study is long 
overdue. NVLSP supports this study and suggests that the study be 
performed by the Government Accounting Office (GAO) not the VA. Having 
the VA study the impact of its work measurement system is like having 
the fox evaluate the effectiveness of henhouse security.
    As NVLSP has previously stated, the current VA work credit system 
prevents the fair adjudication of many claims for VA benefits. The 
current VA work credit system needs to be overhauled because the 
current system rewards VA managers and adjudicators who claim multiple 
and quick work credit by not complying with the statutory duties to 
assist claimants obtain evidence that would substantiate their claims 
and notify claimants of what evidence would substantiate their claims.
    No matter how much the average VA employee tries to help the 
claimant population, the VA decisionmaking culture, created by the VA 
work measurement system, prevents many VA adjudicators from doing a 
good job. The VA has created a work measurement system for deciding 
critically important claims that is driven by weighty incentives to 
decide claims quickly. How the VA measures its work and evaluates the 
performance of its employees has had a major impact on the adjudication 
of claims for veterans benefits.
    Each year, after a complicated process involving the executive 
branch and Congress, the VA is given its budget. The budget can be 
defined as the resources available to the Secretary of Veterans Affairs 
to be used to accomplish the mission of the VA. Managers at different 
levels within the VA are then given their allocation from the overall 
VA budget. This allocation is determined by the workload and 
performance of the various VA components. For example, the money 
budgeted to a VARO determines how many workers can be hired or fired, 
how equipment is maintained, and what new equipment can be purchased.
    Claims received in VARO are described as ``pending issues.'' These 
claims are assigned an ``end product code,'' alternatively described by 
the VA as a unit of work. When final action is taken on a pending 
claim, or pending issue, the regional office (and eventually the VA) 
receives a credit.
    End products are assigned values based on the average number of 
work hours it takes an employee or group of employees to complete all 
action necessary for that type of claim. Each end product code has a 
different value. For example, VA managers receive more credit for work 
completed on an original claim than they do for adjusting the income of 
a current pension beneficiary. No matter how much work the VARO does on 
an individual claim, however, it receives as credit only the value that 
is provided for the end product code assigned to that particular type 
of pending claim. Therefore, VA managers receive the same credit 
whether or not the claim is granted or denied or whether the claim 
takes the VARO 1 day or 2 years to decide.
    VA manuals describe the end product system as a ``management tool'' 
and indicate that its measure should not be used to evaluate individual 
performance. As is the case with many management information systems, 
however, the measurement system tends to drive what and whom it 
measures, rather than the converse. VA managers are evaluated by how 
many end products they produce, how quickly they can take credit for 
end products, how many employees they need to produce these end 
products, and last, the quality of the work in the office they manage. 
Because it is in the best interest of the VA managers to complete as 
many cases as quickly as they can, the interests of VA managers in many 
cases stands in opposition to the interests of claimants for VA 
benefits.
    Responsibilities of VA managers that protect the fairness of the 
adjudicatory process--such as ``control'' of claims, supervisory review 
of unnecessarily delayed claims, thorough development of the evidence 
needed to decide a claim properly, recognition of all of the issues 
involved, provision of adequate notice, documentation that notice was 
given, and careful quality review--all adversely affect the 
productivity and timeliness statistics (that is, how many decisions on 
claims are made final within a particular period of time) for the VA 
manager. Consequently, proper attention by VA managers to their legal 
obligations very often adversely affects the statistics upon which 
their performance is rated.
    Fixing the VA work credit system is a topic that is near and dear 
to my heart. I have been involved in various aspects of veterans law 
for over 30 years. My experience tells me that unless the system is 
corrected most attempts to improve VA claims adjudication will not be 
successful because the driving force in VA adjudication will not be 
fair and accurate adjudications--but--the need to claim quick work 
credit.
Section 104. Study on Work Management System
    Section 104 requires the VA to conduct a study of the VA work 
management system. NVLSP supports this study.
    According to the VA Monday Morning Workload reports, in early 
January 2006 there were 532,228 total claims pending adjudication at 
the VA regional offices (VAROs). In early January 2007 there were 
603,104 total claims pending adjudication at the VA regional offices 
(ROs). In early January 2008 there were 647,478 total claims pending 
adjudication at the VA regional offices (ROs). These VA statistics 
reveal that the VA admits that there are now 115,250 more claims 
pending adjudication at the ROs in 2008 than there were in 2006. This 
is an increase of over 21 percent in just 2 years.
    If this trend continues the VAROs will have over 947,000 backlogged 
claims in just 4 years. NVLSP believes that the current size of the 
backlog is obviously unacceptable and allowing that unacceptable number 
to grow by 200,000 cases in just 4 years would be insulting to 
veterans.
Why Is There Such A Large Backlog
    In the opinion of NVLSP, the major cause of the VA claims 
adjudication backlog is a VA work credit system that prevents the fair 
adjudication of many claims for VA benefits generating extra work for 
the VA and major problem for claimants. Also, the inadequate quality of 
many VA adjudications and the inadequate number of trained adjudicators 
contribute to the size of the backlog.
The Impact of Judicial Review
    The VA claims processing (or claims adjudication) system has been 
exposed by judicial review. To say there is a crisis in VA claims 
adjudication is an understatement. Statistics from the Board of 
Veterans' Appeals (BVA) and the U.S. Court of Appeals for Veterans 
Claims (CAVC) show that nationally, for FY 2007, over 56 percent of all 
appeals decided by the BVA were reversed or remanded and over 63 
percent of CAVC decisions on the merits were reversed, or remanded. In 
fact, some VAROs were even worse than the national average. Over 60 
percent of the appeals from the New York RO and over 62 percent of the 
appeals from the St. Petersburg Florida RO were reversed or remanded by 
the BVA.
    Based on the experience of NVLSP (over 10 years of quality reviews, 
in conjunction with The American Legion, of approximately 40 different 
VAROs combined with extensive NVLSP representation before the CAVC), 
most of the most egregious VA errors are a result of premature 
adjudications. For example, many errors identified by the Legion/NVLSP 
quality review teams reveal that VA adjudicators failed to even try to 
obtain evidence that could substantiate the claim, and incorrectly 
accepted and prematurely denied claims based on inadequate evidence 
(especially inadequate VA medical examinations).
    Most premature VA adjudications are caused by ROs seeking work 
credit. If the claimant should appeal, the RO can earn another work 
credit for work to process the appeal. The VA manager gets to claim 
three unearned work credits and to show an erroneously low time period 
to adjudicate these claims. That would help the manager earn a 
promotion and a bonus for such ``productive'' work. NVLSP has been 
repeatedly informed by a variety of current and past VARO officials 
that because of pressure to produce end products and reduce backlogs, 
they intentionally encourage the premature adjudication of claims. This 
statement is also based on my experience as a VA employee, and based on 
my experience as a member of the Legion/NVLSP quality review team.
Section 107. Expedited Treatment of Fully-Developed Claims and 
        Requirement for Checklist to be provided to Individuals 
        Submitting Incomplete Claims
    Although NVLSP generally supports expediting VA decisionmaking, 
NVLSP opposes section 107, as written. It creates an alluring, but 
treacherous trap for the hundreds of thousands of VA claimants who have 
not mastered veterans benefits law and the evidence that is in their VA 
claims files. It is very rare that a VA claimant will know enough about 
the law, the evidence that is already in his or her VA claims file, and 
the evidence that is not already in the VA claims file but is possessed 
by VA Medical Centers, other federal agencies like the Social Security 
Administration, and private physicians, to be able to state in a 
knowing and intelligent way that ``no additional information is 
available or needs to be submitted.''
    This is true even if VA provides the claimant in advance with the 
checklist contemplated by section 107. The VA currently provides 
boilerplate notice under section 5103(a) of Title 38 of the information 
and evidence that a claimant needs to submit to substantiate the claim. 
The VA has consistently resisted judicial decisions requiring it to 
tailor section 5103(a) to the individual circumstances of the 
claimant's case, as Congress intended. Moreover, the boilerplate notice 
is often inaccurate, missing important information, and confusing to 
most VA claimants given the complexity of veterans benefits law. As 
worded, VA would plainly interpret the checklist provision in section 
107 to allow it to use similar, confusing boilerplate language that is 
not tailored to the circumstances of the individual's case and does not 
take into account the impact of the evidence already in the VA claims 
file and what particular evidence is lacking that would be necessary to 
submit to support an award of benefits.
    But section 107 would certainly prove attractive to most VA 
claimants. The allure of a guarantee that the claim will be decided in 
90 days will likely influence many unwary claimants to make an 
unknowledgeable statement that ``no additional information is available 
or needs to be submitted'' in exchange for a quick decision. The future 
consequences of making this statement is not, but should be addressed 
in section 107. What happens if the expedited claim is denied? Does the 
statement that ``no additional information is available or needs to be 
submitted'' waive the claimant's right to later complain that VA did 
not, but should have obtained additional information? Does the claimant 
have a right later to submit additional evidence if it turns out the 
claimant was wrong to state that ``no additional information is 
available or needs to be submitted.'' Is VA required to comply with 
current sections 5103 and 5103A of Title 38 before the expedited claim 
is decided. Is VA required to comply with these current provisions 
after the expedited claim is denied. All of these questions would need 
to be answered in a satisfactory manner before NVLSP could support 
section 107.
Section 108. Study and Report on Employing Medical Professionals to 
        assist Employees of Veterans Benefits Administration
    NVLSP supports hiring medical professionals to advise VBA 
employees. We are also pleased that the legislation specifically states 
that these medical professionals shall not be employed to rate claims. 
NVLSP suggests that language be inserted into this section that 
requires these medical professionals to respond only to written 
questions with a written response that must be placed in the claims 
file. Without a paper trail, it would be far too easy for the medical 
professionals working with lay adjudicators to dominate the claims 
adjudication process.
Section 109. Assignment of Temporary Disability Ratings to Qualifying 
        Veterans
    The proposed statute closely follows 38 CFR Sec. 4.28 (2008). This 
regulation currently provides that a veteran may be assigned a 100 
percent rating if he or she suffers from an unstabilized condition that 
was incurred in service resulting in severe disability that makes 
substantially gainful employment not feasible or advisable. The 50 
percent prestabilization rating is appropriate for an unstabilized 
condition manifested by [u]nhealed or incompletely healed wounds or 
injuries where material impairment of employability [is] likely.
    NVLSP supports the proposed statute but suggests that language be 
inserted that makes it clear that veterans who suffer from mental 
conditions are eligible for temporary disability ratings. Also, we note 
with approval that the statute provides the VA the authority to extend, 
if appropriate, the temporary rating beyond the termination date and 
that the VA is required to review all pending claims to determine 
whether the claimant is entitled to a temporary rating.
Section 111. Treatment of Claims Upon Death of Claimant
    NVLSP strongly supports section 111, but believes certain changes 
should be made to the statutory language. First, the third line of new 
section 5121A should be amended to add more precision; this section 
should cover cases awaiting decision by a VA regional office, the Board 
of Veterans' Appeals, the U.S. Court of Appeals for Veterans Claims, or 
other reviewing court. Second, the phrase ``processing the claim'' 
(used twice in the section) should be amended to read ``processing the 
claim or appeal.''
                                TITLE II
Section 201. Creation of Single Joint Department of Veterans Affairs 
        and Department of Defense Disability Examination Process
    NVLSP strongly supports what appears to be the ultimate goal 
underlying Title II of the proposed bill. A large number of military 
personnel are medically discharged each year as a result of a 
determination by a military Physical Evaluation Board (PEB) that the 
individual is unfit for continued military service due to certain 
physical or mental disabilities. But as described briefly below, the 
Federal Government has for decades used a wasteful, redundant, and 
unfair system for evaluating the degree of disability of these physical 
and mental disorders.
    Under current law, the PEB determines the degree of disability of 
those disabilities that are found by the PEB to render the individual 
unfit for continued military service. The PEB uses the VA disability 
rating schedule to rate the degree of disability. If the PEB disability 
rating determinations is 20 percent or below, the veteran will receive 
a lump-sum military disability separation payment. On the other hand, 
if the PEB disability rating determination is 30 percent or above, the 
veteran will receive monthly military disability retirement payments 
for the rest of the veteran's life and the veteran and his or her 
spouse will be entitled for the rest of their lives to free military 
medical care. The PEBs have long been notorious for unfairly assigning 
disability ratings that are lower than the degree of disability ratings 
the VA would assign for the same condition with the end result that the 
individual is barred from military disability retirement payments and 
free military medical care.
    The bill wisely removes the PEBs from the degree of disability 
determination process and relies exclusively on the VA for this 
determination. This removes redundant and often inconsistent degree of 
disability determinations.
    But the devil is in the details. The bill unwisely leaves all the 
details completely within the unbridled discretion of the Secretary of 
Veterans Affairs and the Secretary of Defense without even an 
opportunity for public participation or judicial review. NVLSP strongly 
recommends that the bill be amended to mandate that:

      VA shall, using the VA disability rating schedule, rate 
the degree of disability of both those disabilities found by a PEB to 
be unfitting and those other disabilities from which the individual 
suffers that were not found by the PEB to be unfitting;
      Any determinations made by VA that the disability existed 
prior to service or the result of willful misconduct shall be governed 
by title 38, U.S.C. and CFR;
      The initial VA degree of disability determinations shall 
be subject to appeal with VA under the provisions of title 38, U.S.C. 
and CFR, so that the veteran has a right to submit additional evidence, 
to a hearing, and to representation by an advocate. Final VA 
determinations on the veteran's degree of disability as of the date of 
discharge from military service shall be binding on the military 
department for purposes of determining entitlement to military 
disability separation pay, military disability retirement payments and 
free military medical care and shall be binding on the VA for purposes 
of VA service-connected disability compensation;
      If the veteran appeals the initial VA degree of 
disability determination and the appeal results in a change, the VA 
will promptly notify the military department of the change and the 
military department will promptly correct the veteran's military 
records to be consistent with the change;
      Before implementing the joint disability examination and 
determination process called for in the bill, the Secretaries of 
Veterans Affairs and Defense shall conduct a public rulemaking 
proceeding according to the provisions of section 553 of title 5, 
U.S.C., so that the public has advance notice of the proposal, and an 
opportunity to comment, and so that the Secretaries are required to 
consider public comment before issuance of final rules; and
      The final rules promulgated pursuant to the public notice 
and comment rulemaking proceeding shall be subject to judicial review 
in a U.S. district court under the provisions of the Administrative 
Procedure Act, 5 U.S.C. Sec. Sec. 551, et seq.

    Also, NVLSP supports sections 102, 104, 105, 106, 110, 301, and 302 
of this bill.
    Thank you for allowing NVLSP to present comments concerning these 
very important issues.

                                 
                  Prepared Statement of Steve Smithson
          Deputy Director, Veterans Affairs and Rehabilitation
                      Commission, American Legion
    Mr. Chairman and Members of the Subcommittee:
    Thank you for this opportunity to present The American Legion's 
views on this draft bill being considered by the Subcommittee today. 
The American Legion commends the Subcommittee for holding a hearing to 
discuss this extensive draft bill.
Section 101. Presumption of service-connection for veterans who were 
        deployed in support of contingency operation with post 
        traumatic stress disorder
    There are three requirements that must be established in order to 
establish entitlement to service connection for post traumatic stress 
disorder (PTSD): (1) A current diagnosis of PTSD; (2) credible 
supporting evidence that the claimed in-service stressor actually 
occurred; and (3) medical evidence of a causal nexus between the 
current symptomatology and the claimed in-service stressor.
    According to 38 CFR Sec. 3.304(f)(1):
          If the evidence establishes that the veteran engaged in 
        combat with the enemy and the claimed stressor is related to 
        that combat, in the absence of clear and convincing evidence to 
        the contrary, and provided that the claimed stressor is 
        consistent with the circumstances, conditions, or hardships of 
        the veteran's service, the veteran's lay testimony alone may 
        establish the occurrence of the claimed in-service stressor.
    Unless the veteran was wounded or received a specific combat 
decoration or badge (such as the Combat Infantryman Badge or Combat 
Action Ribbon) or award for valor, it is often very difficult to 
establish that a veteran engaged in combat with the enemy in order to 
verify the claimed combat-related stressor. This is especially true of 
service in the combat theaters of Iraq and Afghanistan. Due to the 
fluidity of the battlefield and the nature of the enemy's tactics, 
there is no defined frontline or rear (safe) area. Servicemembers in 
non-combat occupations and support roles are subjected to enemy attacks 
such as mortar fire, sniper fire, and improvised explosive devices 
(IEDs) just as their counterparts in combat arms-related occupational 
fields. Unfortunately, such incidents are rarely documented making them 
extremely difficult to verify. Servicemembers who received a combat-
related badge or award for valor automatically trigger the combat-
related presumptions of 38 U.S.C. Sec. 1154(b) and 38 CFR 
Sec. 3.304(f)(1), but a clerk riding in a humvee, who witnesses the 
carnage of an IED attack on his convoy, doesn't automatically trigger 
such a presumption and proving that the incident happened or that he or 
she was involved in the incident, in order to verify a stressor in 
relation to a PTSD claim, can be extremely time consuming and 
difficult. Moreover, such claims are often denied due to the veteran's 
inability to verify the alleged combat-related incident (stressor) to 
the satisfaction of the Department of Veterans Affairs (VA).
    For the reasons and examples discussed above, The American Legion 
supports the establishment of a presumption of stressor, for the 
purpose of establishing entitlement to service connection for PTSD, for 
any veteran who served in Operations Iraqi Freedom (OIF) and Enduring 
Freedom (OEF) as long as the alleged stressor is related to enemy 
action and is consistent with the circumstances, conditions, or 
hardships of such service. Such a presumption would not automatically 
presume service connection for PTSD, but would presume the alleged 
stressor occurred as long as the stressor is related to enemy action or 
the result of enemy activities and is consistent with the circumstances 
and conditions of service in Iraq or Afghanistan. As verifying the 
alleged stressor is often the most time and labor intensive requirement 
to satisfy in a PTSD claim, such a presumption would not only benefit 
the veteran, it would also benefit VA by negating extensive 
development, and in some cases overdevelopment, of the stressor portion 
of a PTSD claim and, in doing so, reduce the length of time it takes to 
adjudicate such claims.
Section 102. Readjustment of Schedule for Rating Disabilities
    The American Legion is generally supportive of this section and we 
are pleased with the portion specifically prohibiting the lowering of 
the rating of a particular disability under the readjusted schedule in 
comparison to how it was rated under the rating schedule in effect on 
the date of the enactment of the Act. The American Legion also supports 
the provision of this section establishing an advisory Committee to the 
Secretary of disability compensation. We do, however, note that the 
rating schedule is not the major cause of problems with the VA 
disability compensation process. Inadequate staffing, inadequate 
funding, ineffective quality assurance, premature adjudications, and 
inadequate training still plague the VA regional offices and must be 
satisfactorily resolved otherwise any positive benefit anticipated from 
the implementation of this provision will surely be minimized.
Section 103. Study on Work Credit System of Veterans Benefits 
        Administration
    The American Legion fully supports this provision. We have long 
been a vocal critic of the Veterans Benefits Administration's (VBA's) 
current end product work credit system and we have addressed our 
concerns in testimony before this Subcommittee on several occasions. We 
have also been advised that the portion of this section pertaining to 
suspension of award of work credits will be changed to call for 
suspension of issuance of work credits, only if VA does not devise and 
implement a new system of measuring work production that differs from 
the current system. It currently states that VA will suspend its work 
credit system until a new system is implemented. The American Legion 
supports this anticipated change. We also recommend that the study 
addressed in this section be performed by an agency such as the 
Government Accountability Office (GAO), which is not invested in the 
current flawed VBA work credit system.
Section 104. Study on Work Management System
    The American Legion supports the provisions of this section.
Section 105. Certification of Employees of Veterans Benefits 
        Administration Responsible for Processing Claims
    The American Legion supports this section. As discussed previously 
in The American Legion's testimony before this Subcommittee, VA has 
developed and implemented a job skill certification test for veteran 
service representatives (VSRs). Unfortunately, the current test for 
VSRs is not mandatory as a condition of employment in that position and 
is completely optional. Moreover, it is our understanding that VA did 
not conduct any tests in 2007.
    The ultimate goal of certification or competency testing should be 
to ensure that an individual in any given position is competent, 
proficient, and otherwise qualified to perform the duties required of 
that position. This goal will not be achieved if testing is not 
mandatory, or is not provided for all levels or for all positions, and 
remedial training or other corrective action is not required for those 
who do not successfully pass the test. We, therefore, recommend adding 
language to this section specifically mandating an improvement plan for 
those who do not pass the examination, including eventual termination, 
if necessary.
Section 106. Annual Assessment of Quality Assurance Program
    The American Legion supports the provisions of this section 
requiring VA to contract with a private entity to conduct annual 
assessments of its quality assurance program. Receiving input on VA's 
performance assessment programs from an independent entity would 
undoubtedly provide new insight on how to enhance the current 
processes. Additionally, The American Legion continues to share the 
results of regional office quality review visits (approximately 40 to 
date) with both VA and Congress. Our quality reviews identified many of 
the problems that this draft legislation attempts to cure and The 
American Legion commends the Subcommittee for its efforts to improve VA 
adjudications.
Section 107. Expedited Treatment of Fully Developed Claims and 
        Requirement for Checklist to be provided to Individuals 
        Submitting Incomplete Claims
    The American Legion supports the intent of this section but 
recommends adding the following language:
    Nothing in this section would excuse VA from its duty to assist or 
its duty to notify if the claim is appealed (see 38 U.S.C. 
Sec. Sec. 5103 and 5103A).
Section 108. Study and Report on Employing Medical Professionals to 
        assist Employees of Veterans Benefits Administration
    The American Legion is not opposed to the intent of this section 
which calls for a study to determine the need of VBA hiring medical 
professionals, including those who are not physicians, to act as 
medical reference or consultants to assist VBA employees with the 
assessment of medical evidence. We are also pleased that this section 
specifically states that such medical professionals are not to ``be 
employed to rate any disability or evaluate any claim.'' We do, 
however, recommend that additional language be included specifically 
prohibiting VA adjudicators from relying on regional office medical 
consultants' opinions to make decisions in claims for benefits. We 
oppose this because it would be far too easy for the cadre of medical 
professionals to dominate the adjudication process.
Section 109. Assignment of Temporary Disability Ratings to Qualifying 
        Veterans
    This proposed section closely tracks the current regulation 38 CFR 
4.28. The American Legion recommends that this section make it clear 
that mental conditions qualify for prestabilization or temporary 
ratings.
Section 110. Review and Enhancement of use of Information Technology at 
        Veterans Benefits Administration
    The American Legion welcomes innovative ideas, such as electronic 
claims processing and other uses of technology, which will enable VA to 
improve the service it provides to this Nation's veterans, especially 
in the arena of benefits delivery. We must, however, caution that 
automation does not guarantee quality claim development and speed does 
not guarantee accuracy or quality of data entry. Moreover, although the 
use of such technology might improve the process, it is not a magic 
bullet that will fix all the problems that are currently plaguing VA's 
disability claims process.
    Areas such as inadequate staffing levels, training, quality 
assurance, accountability, premature adjudication of claims and other 
problems resulting from VA's current work measurement system, as 
previously addressed by The American Legion in testimony before the 
Subcommittee, must be adequately dealt with before any real improvement 
resulting from use of artificial intelligence can be realized. 
Therefore, artificial intelligence-based programs that direct the 
development and the adjudication of claims should be published in the 
Federal Register so that the public, especially stakeholders such as 
The American Legion, can provide written comments.
    The American Legion believes that the human element should never be 
removed from this equation and we are pleased that various experts that 
testified before the Subcommittee on the use of artificial intelligence 
in claims processing also agreed with this philosophy. Additionally, it 
must also be kept in mind that the bulk of the time and effort expended 
by VA in the disability claims process is not in the actual 
adjudication or decisionmaking part of the process, rather it is the 
part of the process that involves the development of the claim prior to 
adjudication. This process involves informing the claimant of the 
evidence that is needed to substantiate the claims as well as assisting 
the claimant in obtaining the needed evidence, such as military 
personnel and medical records, relevant medical evidence (both private 
and VA), scheduling compensation and pension examinations and other 
efforts necessary before the claim is ready to be adjudicated. Evidence 
development can be very time consuming and it is extremely important 
that any electronic claims system utilized by VA in the future 
adequately address this important part of the process, not just the 
actual adjudication of the claim, or any actual improvement in the 
current process will be minimal at best.
Section 111. Treatment of Claims upon Death of Claimant
    The American Legion is pleased to support the intent of this 
section. Specifically, we fully support allowing a deceased veteran's 
survivor to continue the claim upon the veteran's death rather than VA 
terminating the claim and requiring the survivor to file a separate 
claim for accrued benefits, as is the current practice. Not only does 
the current practice cause duplication of effort and add to the 
existing claims backlog by requiring a ``new'' claim to be filed, it 
imposes an arbitrary 1-year deadline for the filing of such a claim. 
This deadline is often missed by grief stricken family members who were 
either unaware of the deadline or were not emotionally ready to go 
forward with the claims process within a year of their loved one's 
death. This legislation provides a common sense approach that allows VA 
to avoid ``reinventing the wheel'' by not having to start over from 
scratch with a new claim and, at the same time, provides the deceased 
veteran's survivors with a more user friendly and less complicated 
claims process.
Section 201. Creation of Single Joint Department of Veterans Affairs 
        and Department of Defense Disability Examination Process
    The American Legion supports the intent of this section. We are, 
however, concerned that the current military disability evaluation 
system, including the pilot program referenced in this section, does 
not have an independent appeals route for the servicemembers during the 
Department of Defense (DoD) phase. If the member does not agree with 
the medical determination, diagnosis or extent of the service-connected 
unfitting condition, there is no option for a second medical opinion 
unless the soldier obtains it at his own expense and the Physical 
Evaluation Board (PEB) grants it entry into the case.
    The military Medical Evaluation Board (MEB) and the PEB 
determinations can be formally appealed only to the Physical Disability 
Agency to which the PEB belongs. Thereafter, once separated or retired, 
the servicemembers, now veterans, begin the appeals process at the VA 
regional office level thus taking extensive time before they may 
receive an independent appeal of their case. The American Legion does 
not consider this to be fully mindful of the rights of military 
patients and soldiers who deserve to have an objective an independent 
recourse route in which to appeal the findings in such an important 
medical and benefit determination process. Therefore, The American 
Legion urges that language be included in this section recognizing this 
significant shortcoming and establish an appeals process for both the 
military medical separations and medical retirements.
Section 301. Annual Reports on Workload of United States Court of 
        Appeals for Veterans Claims
    The American Legion does not oppose the provisions of this section.
Section 302. Modification of Jurisdiction and Finality of Decisions of 
        United States Court of Appeals for Veterans Claims
    The American Legion does not oppose the provisions of this section.
Conclusion
    Thank you again, Mr. Chairman, for allowing The American Legion to 
present comments on this important draft legislation. As always, The 
American Legion welcomes the opportunity to work closely with you and 
your colleagues on enactment of legislation in the best interest of 
America's veterans and their families.

                                 
                 Prepared Statement of Eric A. Hilleman
             Deputy Director, National Legislative Service
             Veterans of Foreign Wars of the United States
    Mr. Chairman and Members of the Subcommittee:
    On behalf of the 2.3 million men and women of the Veterans of 
Foreign Wars of the U.S. and our Auxiliaries, I thank you for the 
opportunity to present our views on the ``Veterans Disability Benefits 
Claims Modernization Act Of 2008.'' The modernization and improvement 
of the Department of Veterans Affairs (VA) claims processing system is 
a project that has been long time in the making.
    The mounting backlog of claims, which has grown over the past 10 
years has not gone unnoticed by the VA, the Congress, the Veterans 
Service Organization (VSO) Community, or most importantly the veterans 
waiting months and often years for assistance. In response to the 
growing wait times, increasing complexity of claims, and increasing 
numbers of veterans from current and past wars seeking benefits, a 
number of commissions in recent years were formed to address these 
problems.
    The legislation we discuss today represents the most recent 
substantive step on the long road to reforming and improving a system. 
The system has served millions of veterans well over the years, but is 
now falling farther and farther behind. We are encouraged by many of 
the ideas outlined in this bill and the spirit with which they are 
offered. We sincerely hope that the energy expended to craft this 
legislation continues to facilitate the necessary followthrough that 
will ensure implementation of the recommendations contained herein. The 
problems that plague the Veterans Benefits Administration were many 
years in the making and it will take a number of measured improvements 
and change to cure the system's ailments.
    We recognize that this is not the final version of the ``Veterans 
Disability Benefits Claims Modernization Act of 2008.'' That said, we 
offer our opinions and analysis of the most current version of the 
draft this Committee has provided. We thank you for your willingness to 
incorporate our views on this bipartisan measure to overhaul the 
disability claims process.
Section by Section
Section 101: ``Presumption of Service-Connection for Veterans Who Were 
        Deployed in Support of a Contingency Operation with Post 
        Traumatic Stress Disorder.''
    Today, veterans who seek service connection for post traumatic 
stress disorder PTSD must have three things: a diagnosis of PTSD, a 
physician's opinion that the PTSD was caused by an event in service, 
and evidence establishing that the event actually occurred. VA 
regulations lessen the burden of establishing the third criteria, 
proving the existence of the event, by allowing the receipt of certain 
medals awarded for participation in combat to some veterans, along with 
medals presented for valor, to suffice as evidence of an event 
(stressor) in service. Unfortunately, not everyone who engages in 
combat with an enemy receives a qualifying medal.
    Section 101 seeks to establish a presumptive service connection for 
PTSD for veterans that ``engaged in combat with the enemy in active 
service with a military, naval, or air organization of the United 
States during a period of war, campaign, or expedition, and who is 
diagnosed with post traumatic stress disorder.'' While well intended, 
it is our view that this misses the mark. The VA has no problem 
granting service connection for PTSD even many years after service. 
What it does have a problem with is granting PTSD when a veteran who 
was in combat cannot prove it by showing receipt of a medal. It is not 
uncommon for veterans who served in Vietnam during Tet, during the 
Battle of the Bulge in WWII, or following a year or more in Iraq, to be 
forced to wait months, sometimes years, while VA and DoD search unit 
records for any evidence of combat.
    This legislation seeks to redefine how we view and evaluate PTSD as 
a Nation. As Members of our Nation's largest veterans' service 
organization made up of combat veterans, we support the intent of this 
section and its definition for the creation of a presumption to lessen 
the burden on disabled veterans who are diagnosed with PTSD. We suggest 
a substitution in language from ``who engaged in combat with the 
enemy'' to the language of those ``who operated in a combat theater or 
area hostile to U.S. forces.'' This allows veterans exposed to the 
stressors of living and working, day in and day out, in a combat zone, 
driving truck convoys, for instance, across Iraq to require these 
stressors to be recognized. We would also suggest substituting ``armed 
forces'' for ``a military, naval, or air organization.'' In this 
instance too broad of a definition may include a military organization 
such as defense contractors or Federal employees operating in a 
military organizational capacity. In some cases, they would clearly be 
a military organization of the U.S. and operating on government orders. 
For clarity sake, the designation of ``U.S. Armed Forces'' is 
identifiable and clearly defined in law.
Section 102: ``Readjustment of Schedule for Rating Disabilities.''
    Section 102 would authorize a study of the disability ratings 
schedule. The study would be tasked with evaluating an ``average loss 
of a veteran's earnings . . . [and] the veteran's quality of life'' 
measure as determined by specific disabilities. Information to be used 
by this study would include, but not be limited to reviewing the Social 
Security Administration disability ratings, workers compensation 
systems, and foreign government disabilities compensation systems. The 
study would solicit feedback from private industry as well as VSOs. At 
the conclusion of the study, the report must be submitted to Congress 
weighing also this past year's multiple commission reports in concert 
with the views of the Secretary of Veterans Affairs.
    The VFW supports a measured review of the ratings schedule, as 
stated by my colleague, Gerald T. Manar, Deputy Director of the 
National Veterans Service, before this Committee on February 26, 2008. 
We firmly believe that a one-time adjustment of the current schedule 
will not be sufficient to keep pace with the changing nature of 
``quality of life'' and the evolving science of medicine, technology, 
and warfare.
    We are encouraged by the provision of this bill to establish an 
Advisory Committee to review and manage the process of adjusting the 
ratings schedule. We urge you to ensure this Committee is independent, 
beyond reproach, and represents the interests of veterans. We ask that 
prominent experts in the VSO community be appointed to represent the 
veterans' voices on the 18 Member Advisory Committee.
Section 103: ``Study on Work Credit System of Veterans Benefits 
        Administration.''
    Section 103 would require a study of the mechanism that VA uses to 
award credit for claims worked by claims adjudicators. During the 
period of this study the work credit and award system would be 
suspended pending a report on it to Congress. This section further 
delineates a timetable for implementation and reporting. We support and 
encourage a review of this work and management process; however we are 
concerned with section (c).
    In section (c), this legislation calls for a suspension of award of 
work credits during the evaluation period. We believe a wholesale 
suspension of all work credit would be counterproductive. VA is heavily 
dependent on its work credit system for tracking and managing its 
caseload. We urge this committee to consider banning performance awards 
based on production during the evaluation, leaving the mechanism for 
counting and tracking cases intact.
Section 104: ``Study on Work Management System.''
    Section 104 would commission a study of the work management system. 
This section outlines point specific study contents relating to 
quality, efficiency, and increased productivity with an eye toward 
implementation of a rules-based software program to aid in claims 
processing.
    The VFW supports technological advances within the VA with the 
goals of improving work processes. We believe that information 
technologies (IT) can be used to aid and improve the claims process. In 
studying the work management system, all aspects of the work process 
should be structured to incorporate IT applications where applicable. 
With a comprehensive review of VA's process our veterans can be better 
served by a more modern and efficient VA.
Section 105: ``Certification of Employees of Veterans Benefits 
        Administration Responsible for Processing Claims.''
    Section 105 would have VBA employees and managers responsible for 
claims processing take certification examinations. The Secretary would 
develop the exam, in consultation with interested stakeholders, VA 
employees and managers. The exam would be administered within 1 year of 
the enactment of this provision.
    The VFW strongly supports certification of VA employees and 
managers. We view testing as a technical evaluation of the employees' 
knowledge specific to their field. Clearly, team leaders, and Veteran 
Service Center Managers should be able to demonstrate an expert's 
knowledge of the laws and regulations they are tasked with enforcing. 
While we believe that higher-level managers at both the local and 
national levels should have substantial knowledge of the claims 
adjudication process, we cannot support expanding certification to the 
highest levels of the VBA. We feel the VA Secretary should have the 
latitude to determine the levels examinations should be administered.
    We welcome the inclusionary language granting VSO's, public, and 
private entities input into employee certification testing. Veterans 
groups represent the core constituents served by this testing regimen. 
The end goal remains accurate and timely claims processing; technical 
evaluations will aid to inform and improve the process.
Section 106: ``Annual Assessment of Quality Assurance Program.''
    Section 106 would give the VA Secretary the authority to contract 
with an independent 3rd party to study and annually review VA's quality 
assurance program. The purpose of this study, beyond improving quality 
assurance, is to strengthen the employee certification program as 
prescribed by section 105 of this act. The Secretary would be tasked 
with the goals of measuring performance, accuracy, identifying trends 
in the regional offices with an eye toward automating data transfer and 
improving work processes.
    The VFW supports the comprehensive annual assessment of the quality 
assurance program. We are pleased to see independent review of VA 
processes. Given the VA admitted error rate of claims approximated 
between 12 to 14 percent we feel an unbiased review would help VA to 
identify problems with the goal of producing accurate claims. We feel 
an independent body would be free from the countervailing political 
forces that produce pressures to misreport the error rate.
Section 107: ``Expedited Treatment of Fully Developed Claims and 
        Requirement for Checklist To Be Provided to Individuals 
        Submitting Incomplete Claims.''
    Section 107 would establish a mechanism to expedite fully developed 
claims. It defines a fully developed claim as one that has received 
assistance and is submitted to VA from a VSO/county service officer or 
a claim that states the claimant does not wish to submit additional 
evidence. A checklist is prescribed by this section to ensure a 
detailed description of what may be needed by the VA for processing the 
claim as a fully developed claim.
    We support this provision and believe that this practice should be 
encouraged since it reduces the workload on VA staff and ensures that 
the backlog is not unnecessarily increased. To guarantee that this 
practice actually works, VA should require that regional office 
personnel, managers and veteran service officers are adequately trained 
to recognize a properly developed claim and understand that receipt of 
such a claim triggers actions which trigger prompt adjudication.
    We believe that VA should give no preferential treatment to any 
case which, upon review, is found not to be ready to rate. This is 
necessary to ensure that partially developed cases receive no 
preferential treatment, thereby slowing completion of claims already in 
process.
    However, one of the purposes of this program is to educate veteran 
service officers as to the evidence needed to produce a ready to rate 
case. We suggest that VA could do this by offering service officers an 
opportunity to complete development in a case found not ready to rate 
by telling them exactly what evidence is missing and giving them 10 
working days to produce it. The case could be considered ready to rate 
if the service officer is able to provide the necessary evidence. 
Failure to timely complete the claim would simply mean that the case 
would receive no preference and be worked under current procedures.
Section 108: ``Study and Report on Employing Medical Professionals To 
        Assist Employees of Veterans Benefits Administration.''
    Section 108 would study the applicability and effectiveness of 
staffing VBA with medical professionals to better inform the claims 
rating process. This provision would not employ medical professionals 
to rate any disability or evaluate a claim, but it would study how 
medical professionals could assist claims raters from an education 
standpoint.
    The VFW supports the concept of a better-informed claims ratings 
process and we support studying the benefits of employing medical 
professionals to inform the process. The goal should be the continuing 
education of those who evaluate evidence and rate cases. However, we 
are concerned that medical professionals may inadvertently influence 
the process with an opinion on a claimed condition over the course of 
advising of a claims adjudicator. We ask that this Committee clearly 
express its wishes to further educate and inform the process while 
avoiding physicians issuing professional opinions on a claimants' 
diagnosis.
Section 109: ``Assignment of Temporary Disability Ratings to Qualifying 
        Veterans.''
    Section 109 would further grant the VA Secretary the authority to 
award a stabilization rating and distribute moneys to severely disabled 
veterans on case-by-case bases. The Secretary would be allowed to grant 
100 or 50 percent temporary ratings for veterans until their full 
claims folder could be adjudicated. The determining factors for 
granting temporary disability ratings are for recently discharged 
disabled veterans with a disability that prevents them from working or 
an injury with material impairment.
    The VFW recognizes that this section is intended to offer interim 
relief to those veterans who may have to wait an extraordinarily long 
period for a final decision on their claims. Currently, VA has the 
authority that this provision of this bill seeks to codify in 38 CFR 
4.28, ``Prestabilization Rating from Date of Discharge from Service.'' 
This section of the Code already calls for a 50 or 100 percent 
stabilization rating within 12 months of a veterans discharge from 
service based on unemployability due to disability.
    We support the concept of pre-stabilization ratings. We ask this 
Committee to encourage the VA to train claims adjudicators on this 
provision and encourage its use to the betterment of many seriously 
injured veterans.
Section 110: ``Review and Enhancement of Use of Information Technology 
        at Veterans Benefits Administration.''
    Section 110 calls for VA to review its processes and to develop a 
comprehensive plan to incorporate information technology (IT) into the 
claims adjudication process. VA is asked to examine how it might 
transfer all prescribed benefits processing tasks and information into 
computer software programs that eliminate the need for paper claims 
folders and to provide remote access to a veteran's claim by the 
veteran. The final report produced by VA would evaluate its current IT 
and its best practices as well as lessons learned. The whole of the 
review of IT should be done with the focus of a three-year 
implementation timetable for a comprehensive phase-in of new IT 
processes.
    In our view there is computer programming and ``artificial 
intelligence.'' Nearly everything touted as ``artificial intelligence'' 
is really just computer programmers giving answers to a very large 
number of yes/no questions. There is, however, ample opportunity to use 
computers to decide certain evaluations based on established findings. 
Evaluations for service connected visual impairment or hearing loss, 
largely based on loss of visual acuity, fields of vision or decibel 
loss, could be easily assigned by computers. We encourage VA to utilize 
properly programmed computers to apply regulations to discrete data to 
arrive at concrete evaluations. This will allow rating specialists more 
time to work on decisions requiring judgment and experience.
Section 111: ``Treatment of Claims Upon Death of Claimant.''
    Section 111 allows a veteran's next of kin to be treated as the 
claimant for the purposes of accrued benefits. This bill allows the 
next of kin to designate an individual, other than the next of kin, to 
act in the capacity of the claimant receive the said benefits. New 
evidence pertaining to the claimant's case must be submitted within 1 
year of the veteran's death.
    We strongly support this provision. Many veterans have waited years 
to realize their claim for compensation with the VA. There is a popular 
mantra among many of these aging veterans, ``the VA is trying to 
outlive me.'' This provision demonstrates that the government cares 
about the welfare of its veterans and their families.
Section 201: ``Creation of Single Joint Department of Veterans Affairs 
        and Department of Defense Disability Examinations Process.''
    Section 201 would simplify examinations for medically retired 
members of the military between the Department of Defense (DoD) 
healthcare network and VA. This section calls for one exam conducted by 
DoD for fitness of duty and one exam conducted by VA to determine the 
severity of disability for the purpose of compensation. In creating one 
process with input for a cross agency development of a simplified 
evaluation process, it outlines cost sharing guidelines and agency 
areas of responsibility.
    The VFW enthusiastically supports a simplified process between DoD 
and VA.
Section 301: ``Annual Reports on Workload of United States Court of 
        Appeals for Veterans Claims.''
    Section 301 would establish a reporting standard upon the chief 
judge of the Court of Appeals. The reports would consist of the number 
of appeals, petitions, applications, dispositions, settlements, oral 
arguments, and decisions.
    The VFW has no position on this provision.
Section 302: ``Modification of Jurisdiction and Finality of Decisions 
        of United States Court of Appeals for Veterans Claims.''
    The VFW has no position on this provision.
Section 401: ``Report on Implementation of Veterans' Disability 
        Benefits Claims Modernization Act of 2008.''
    Section 401 states the VA Secretary would submit a report in under 
180 days outlining the Secretary's plan for implementation of the 
Disability Benefits Claims Modernization Act of 2008.
    The VFW supports reporting designed to improve the access to 
benefits for veterans.
    We thank this Committee for this opportunity to submit our views 
and work closely with staff to improve veterans' benefits claims 
processing. We welcome any questions this Committee may have.

                                 
                    Prepared Statement of Carl Blake
      National Legislative Director, Paralyzed Veterans of America
    Mr. Chairman and Members of the Subcommittee, on behalf of 
Paralyzed Veterans of America (PVA) I would like to thank you for the 
opportunity to testify today on the ``Veterans Disability Benefits 
Claims Modernization Act of 2008.'' PVA appreciates the emphasis this 
Subcommittee has placed on making real reforms to a disability claims 
system that is being crushed by the weight of the claims backlog. We 
hope that addressing the issues outlined in this legislation will 
better benefit today's veterans and the veterans of tomorrow.
    PVA generally supports the provisions outlined in Title I of the 
proposed legislation. However, we do have some concerns with different 
aspects of the various provisions. With respect to the provisions of 
section 101, PVA generally supports the intent of the proposal to 
establish a presumption for service-connection for veterans who were 
deployed to a combat theater and who present symptoms of Post Traumatic 
Stress Disorder (PTSD). However, we believe there are serious flaws in 
the legislation as drafted.
    First, the legislation establishes a standard that we believe is 
very difficult to prove in order to qualify for presumption. 
Specifically, the legislation states that the veteran must have engaged 
in combat with the enemy. This places the burden on the veteran to 
identify a specific event and submit evidence demonstrating that he or 
she was under fire from the enemy. We do not believe that this is the 
actual intent of the legislation, as it would make it even harder to 
receive a presumptive rating for PTSD.
    Second, this section allows for a very significant increase in the 
claims backlog. As written, the legislation would allow a veteran who 
meets the defined criteria to file a claim for presumptive service-
connection, including veterans of all war periods. If this is in fact 
the intent of this Subcommittee, that needs to be clarified. 
Furthermore, while we recognize the implication that the men and women 
currently serving in combat theaters in Iraq and Afghanistan are under 
constant, intense pressure, and that the situation alone can allow for 
PTSD to manifest itself, we are concerned that this may create a 
possibility for veterans to be compensated for PTSD that is not the 
result of service in a combat operation or theater.
    PVA generally supports the requirement that the Department of 
Veterans Affairs (VA) readjust the schedule for rating disabilities 
called for in section 102. This is a concept addressed by both the 
Dole-Shalala Commission and the Veterans' Disability Benefits 
Commission (VDBC). It is important to note that the VA is currently 
undergoing a complete rewrite of its regulations governing application 
of the ratings schedule. However, we certainly understand the desire of 
Congress to see to it that the VA updates the disability ratings 
schedule.
    The only concern is the continued emphasis on adding a component to 
disability compensation that takes into account quality of life issues. 
While severe disabilities have an obvious impact on the ability to seek 
gainful employment, the affect on quality of life of individuals is far 
greater. Moreover, we are not convinced that there is a method to 
equitably and reasonably compensate disabled veterans for lost quality 
of life. We do believe that current compensation rates for VA 
disability compensation take into account the impact of a lifetime of 
living with a disability and the every day challenges associated with 
that disability.
    PVA supports section 103 that calls for a study of the work credit 
system used by the Veterans Benefits Administration (VBA). This is the 
system that the VBA uses to evaluate the production of its claims 
adjudication staff. PVA particularly appreciates the emphasis placed on 
performance standards and accountability measures in the development of 
a new work credit system. We would, however, caution the Subcommittee 
on the language concerning implementation of a new work evaluation 
system. The language suggests that the current work credit system 
should be eliminated. While we certainly agree that there are flaws in 
that system, given the focus on quantity rather than quality, it is 
premature to assume that the framework of the current system might not 
be the best measuring stick with appropriate changes.
    PVA likewise supports the requirement to study the work management 
system outlined in section 104. We appreciate the emphasis placed on 
maximizing the use of information technology (IT) applications, 
particularly in light of the frustrations expressed over the last year 
with the VBA's IT systems.
    PVA has no problems with section 105 of the legislation that 
requires VBA employees and managers to take a certification 
examination. PVA requires this from its service officers who provide 
direct support to veterans seeking benefits. This has proven to be an 
effective tool in evaluating the knowledge of our employees and 
ensuring that the best qualified individuals are assisting veterans. It 
only makes sense that the VA be taking similar steps. Likewise, we 
support section 106 of the legislation that will support the 
development of the certification examination.
    We have no objection to section 107 of the proposed legislation 
that is meant to expedite consideration of a fully developed claim. We 
appreciate the recognition given to the work of service officers of the 
veterans' service organizations under the newly created section 5109C 
of Title 38. However, we do have some concern about the requirement for 
a checklist to be provided to individuals submitting claims. It seems 
that in order for the VA to provide a checklist of missing items in an 
incomplete claim, it will have to already adjudicate the claim. We 
certainly do not believe that this is the intent of the Subcommittee, 
and we believe that this provision warrants further consideration and 
clarification.
    PVA has no objection to section 108 of the legislation that 
requires a study and report on employing medical professionals to 
assist employees of the VBA. However, we believe that the language 
needs to be clear as to what the desired role of medical professionals 
is meant to be in the process. We have no problem with medical 
professionals serving as a resource to claims adjudication staff on 
questions directly related to general health issues. However, we do not 
believe medical professionals should be called on to make judgments on 
issues as they relate to adjudication of veterans claims specifically.
    PVA has no objection to the provisions of section 109 that would 
require the VA to provide a temporary disability rating to certain 
veterans with a disability or who might not be employable. However, it 
is important to ensure that provision of a temporary disability rating 
will not preclude the VA from completing a veteran's claim in a timely 
manner. We particularly appreciate the language that will allow the 
temporary rating to be extended, if necessary.
    Recent hearings have demonstrated how far behind the VBA is in 
using information technology in its claims adjudication process. While 
we believe that the entire claims process cannot be automated, there 
are many aspects and steps that certainly can. We have long complained 
to the VA that it makes no sense for severely disabled veterans to 
separately apply for the many ancillary benefits to which they are 
entitled. Their service-connected rating immediately establishes 
eligibility for such benefits as the Specially Adapted Housing grant, 
adaptive automobile equipment, and education benefits. However, they 
still must file separate application forms to receive these benefits. 
That makes no sense whatsoever.
    Furthermore, certain specific disabilities require an automatic 
rating under the disability ratings schedule. It does not take a great 
deal of time and effort to adjudicate a below knee single-leg 
amputation. An advanced information technology system can determine a 
benefit award for just such an injury quickly. With these thoughts in 
mind, PVA fully supports the provisions of section 110.
    PVA supports the provisions of section 111 of the legislation. We 
have supported similar legislation in the past. It is only appropriate 
that the original claimant's beneficiary be permitted to complete the 
claims process if the veteran dies during the process.
    With respect to the transition of servicemembers from active duty 
to veteran status outlined in Title II of the legislation, we certainly 
support the intent. We supported the recommendations of both the 
Veterans' Disability Benefits Commission and the Dole-Shalala 
Commission that called for a single separation physical. As mentioned 
in the legislation, the VA and DoD are currently conducting a pilot 
program that addresses this issue and we look forward to their findings 
during the conduct of this program.
    We do believe that the language should stipulate that the VA be 
responsible for actually performing the separation physical. The VA has 
greater experience at providing a comprehensive medical examination as 
it requires the most thorough medical review of a veteran to determine 
degree of disability. DoD separation physicals tend to be singularly 
focused on the immediate health issue that impacts fitness for duty.
    We are pleased with the fact that the legislation calls for the DoD 
to only determine fitness for duty as a part of the process and the VA 
to determine the degree of disability. This reaffirms the 
responsibility that each department has in a single separation process. 
The DoD simply needs to be concerned about whether or not a service 
Member can perform his or her military responsibilities. The VA is the 
subject matter expert on determining degree of disability for 
compensation purposes.
    PVA supports the requirement in section 301 of the legislation for 
the United States Court of Appeals for Veterans Claims to file an 
annual report detailing the workload it handles each year. The list of 
required information seems to be comprehensive. This section is in 
accordance with the recommendations of The Independent Budget. We would 
only hope that the information provided is put to good use.
    With respect to section 302, we have had extensive discussion at 
PVA between our Veterans Benefits staff and our General Counsel. This 
section would amend the jurisdiction of the United States Court of 
Appeals for Veterans Claims to require it to essentially address all 
issues raised by an appellant, and it would preclude the VA from 
confessing error. While we recognize that this issue is addressed in 
The Independent Budget for FY 2009, our General Counsel has expressed 
some concerns with this provision of the legislation that I would like 
to outline.
    While we understand that it is sometimes frustrating when the Court 
fails to address issues raised to it, there is no Court that is 
required by its jurisdictional statute to address all issues raised by 
an appellant. We believe that requiring the Court to address all issues 
raised in an appeal will certainly result in a significant increase in 
processing time for cases on appeal to the Court. We believe that this 
could create a situation where the Court may find cases and even issues 
to be frivolous whenever it can as a means to discourage appellants 
from bringing cases and issues that are not relevant to a decision on 
the matter.
    We also believe that it can be harmful to veterans to preclude the 
VA from confessing error in cases on appeal to the Court. Confessing 
error is something that we should encourage the government to do when 
appropriate. Over the years, PVA has achieved a great deal of success 
by working with the VA and encouraging them through negotiation to 
confess error resulting in our clients obtaining benefits in the most 
expeditious manner.
    Mr. Chairman and Members of the Subcommittee, PVA would once again 
like to thank you for the opportunity to provide our views on this 
important legislation. We look forward to working with you to continue 
to improve the benefits and services available to veterans.
    Thank you again. I would be happy to answer any questions that you 
might have.

                                 
                 Prepared Statement of Bradley G. Mayes
     Director, Compensation and Pension Service, Veterans Benefits
          Administration, U.S. Department of Veterans Affairs
    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to testify today on the draft ``Veterans Disability 
Benefits Claims Modernization Act of 2008.'' I am accompanied today by 
Richard J. Hipolit, Assistant General Counsel, and Steven L. Keller, 
Senior Deputy Vice Chairman, Board of Veterans' Appeals. I will address 
today only those provisions of the draft bill for which the 
administration could develop and coordinate its views in the time 
provided.
Section 101
    Section 101(a) of the draft bill would add post traumatic stress 
disorder (PTSD) to the statutory list of diseases that are presumed to 
have been incurred in or aggravated by service under certain 
circumstances. The presumption would apply to any veteran who engaged 
in combat with the enemy in active service during a period of war, 
campaign, or expedition and who is diagnosed with PTSD. Section 101(b) 
would make the presumption applicable to compensation claims pending on 
or after the date of enactment.
    The Department of Veterans Affairs (VA) does not support section 
101. Currently, in cases involving an in-service diagnosis of PTSD by a 
mental health professional, VA will accept any reasonable in-service 
stressor as long as it appears consistent with the circumstances of the 
veteran's service and, if a VA examination and other evidence support 
the decision, establish service connection on a direct basis. However, 
PTSD may first be diagnosed many years after service. Under such 
circumstances, VA regulations require a link between the symptoms of 
properly diagnosed PTSD and an in-service stressor. If a veteran 
establishes that he or she engaged in combat and the claimed stressor 
is related to combat, VA concedes (in the absence of clear and 
convincing evidence to the contrary) the existence of a stressor 
sufficient to establish service connection. Nonetheless, in the case of 
a post-service diagnosis of PTSD, we believe it is necessary that 
medical evidence establish a link between the PTSD and the in-service 
stressor. Because section 101 would eliminate this requirement, we 
cannot support it.
Section 102
    Section 102 would require VA to conduct a study within 180 days of 
the date of enactment on adjustment of the Schedule for Rating 
Disabilities so as to base the schedule on current standards, 
practices, and codes in common use by the medical and disability 
profession and determine, among other things, how the schedule could be 
adjusted to take into account the loss of quality of life resulting 
from specific disabilities. VA would be required to report to Congress 
on its conclusions and recommendations based on the results of the 
study within 60 days of its completion and submit to Congress not later 
than 120 days thereafter a plan to readjust the rating schedule within 
5 years to align the schedule with medical best practices, prioritize 
readjustment with respect to PTSD, traumatic brain injury, and certain 
other disorders, ensure the schedule is automated in accordance with a 
comprehensive plan called for in section 110 of the draft bill, and 
ensure provision of a transition plan to ease transition to the 
readjusted schedule. VA would be directed to revise the schedule in 
accordance with this plan and to form an Advisory Committee on 
Disability Compensation with which to consult regarding the maintenance 
and periodic readjustment of the rating schedule.
    VA does not support section 102. On October 16, 2007, the 
Administration submitted to Congress proposed legislation, ``America's 
Wounded Warriors Act.'' Section 201(b) of that bill contains a proposal 
for a study regarding creation of a schedule for rating disabilities 
based on current concepts of medicine and disability, taking into 
account loss of quality of life and loss of earnings resulting from 
specific injuries or combination of injuries. We believe that bill 
provides the most promising prospect for meaningful revision of the 
rating schedule and urge its enactment instead of section 102 of the 
draft bill under consideration today. Among our concerns with the draft 
bill is the requirement of section 102(c)(1)(A) that the plan for 
readjustment of the rating schedule that VA would be required to submit 
to Congress contain provision for alignment of the schedule with 
concepts drawn from the Current Procedural Terminology Manual, the 
International Classification of Diseases, the Diagnostic and 
Statistical Manual of Mental Disorders, and the applicable American 
Medical Association Guides. These sources represent highly complex 
coding systems intended for purposes other than rating of disabilities 
for compensation purposes. We believe reliance on these sources would 
introduce unwarranted complexity to our disability evaluation process 
and could undermine our efforts to enhance consistency in rating 
disabilities. In addition, VA has contracted for studies on Quality-of-
Life and Loss-of-Earnings compensation and on transition payments. The 
results of these studies are due in August and could form the basis for 
a reform such as this legislation would require.
Section 103
    Section 103(a) would require VA to study the Veterans Benefits 
Administration's (VBA's) work credit system, which is used to measure 
VBA employees' work production. Section 103(b) would require VA, in 
carrying out the study, to consider the advisability of implementing: 
(1) performance standards and accountability measures to ensure that 
benefit claims are processed objectively, accurately, consistently, and 
efficiently and that final decisions on claims are consistent and 
issued within a certain time; (2) guidelines and procedures for the 
prompt processing of claims that are ready to rate when submitted; (3) 
guidelines and procedures for processing claims submitted by severely 
injured and very severely injured veterans; and (4) requirements for 
assessing claim processing at each regional office for the purpose of 
producing lessons learned and best practices.
    Section 103(c) would require VA to establish a new system for 
evaluating the work production of VBA employees. The system would have 
to be based on findings of the study required by subsection (a), would 
have to focus on evaluating the accuracy and quality of ratings 
decisions made by VBA employees, and could not resemble or be based on 
any concept on which the current system is based. Section 103(c) would 
also prohibit VA from awarding a work credit to any VBA employee until 
VA has implemented the new system. Section 103(d) would require VA to 
submit to Congress, not later than 180 days after the date of 
enactment, a report on the study and VA's progress in implementing the 
new employee evaluation system.
    VA does not support section 103. VBA periodically conducts work 
measurement studies, and employee performance standards are derived 
from those studies. Suspension of work credit until implementation of a 
new system would delay provision of feedback to employees and may have 
the effect of concealing organizational weaknesses. The potential 
impact of this provision on VA's ability to effectively manage 
organizational performance and determine resource needs is of great 
concern to us. Furthermore, while VA is not opposed to studying new 
work-rate measurement methodologies, we are concerned that the 
provision of section 103(c) prohibiting the contemplated new system for 
evaluating work production from resembling or being based on any 
concept on which the current system is based would seem to prejudge the 
results of the study that section 103 would authorize.
Section 104
    Section 104(a) would require VA to study and report to Congress on 
the VBA work management system, which is designed to reduce claim 
processing time. Section 104(b) would require VA to contract for an 
evaluation of VA's training and performance assessment programs for VBA 
employees who are responsible for matters relating to compensation and 
pension benefits and to report to Congress on the results of that 
evaluation.
    VA does not support this provision because it is unnecessary. We 
are currently implementing a comprehensive strategy to integrate 
various information technology initiatives to improve claims 
processing. At the core of our strategy is the implementation of a 
business model for compensation and pension claim processing that is 
less reliant on paper documents. Initial pilot efforts have 
demonstrated the feasibility of using imaging technology and computable 
data to support claims processing in the compensation and pension 
programs. In addition to use of imaging and computable data, we are 
incorporating enhanced electronic workflow capabilities, enterprise 
content and correspondence management services, and integration with 
our modernized payment system, VETSNET. Further, we are exploring the 
utility of business rules engine software for both workflow management 
and to potentially support improved decisionmaking by claims processing 
personnel. We recently contracted with IBM to analyze our current 
business processes and provide recommendations to further improve our 
operational efficiency and consistency. The recommendations and plans 
provided by IBM are consistent with VBA's goal to completely transition 
compensation claims processing to a paperless, electronic environment. 
We are focused on developing an integrated plan, including milestones 
and performance metrics, so that we and our stakeholders will be able 
to assess our progress in this endeavor. We would prefer to maintain 
our focus on the measures we are already taking, rather than divert 
resources to a new evaluation effort.
Section 105
    Section 105(a) would require VA to require appropriate VBA 
employees and managers who are responsible for processing benefit 
claims to take a certification examination. The examination would have 
to be developed in consultation with examination development experts, 
interested stakeholders, including the VBA employees and managers, and 
appropriate public and private entities, including veterans service 
organizations and other service organizations. Section 105(b) would 
require VA to implement administration of, and procedures relating to, 
the certification of employees not later than 90 days after the date of 
enactment and develop the certification examination not later than 1 
year after that date.
    VA does not support this provision because it is unnecessary. VBA 
already has a thorough certification examination process for Veterans 
Service Representatives and that process is being expanded. Pilot 
testing has been conducted for Rating Veterans Service Representatives, 
and a field test is scheduled for next month. In addition to being 
unnecessary, Section 105 would also impose unrealistic deadlines 
considering that aspects of this activity would be subject to 
collective bargaining requirements.
Section 106
    Section 106 would amend 38 U.S.C. Sec. 7731 to require VA to enter 
into a contract with an independent third-party entity to conduct 
annual assessment of the quality assurance program required under that 
section. VA would be required to use the information gathered through 
the annual assessments in developing the employee certification 
required under section 105 of the draft bill.
    VA does not support this provision because it is unnecessary. VBA 
currently has a robust quality assurance program under which over 
15,000 individual claim folders containing decisions will be reviewed 
annually by 2009. Site visits are scheduled so that each regional 
office is visited a minimum of once every 3 years. Additionally, VA 
conducts specialized reviews where appropriate. VA has conducted 
initial piloting and validation of tools to monitor consistency of 
decisionmaking across regional offices. We have determined that the 
methodology we have developed is effective, and we will soon begin 
regular assessments of the most frequently rated diagnostic codes to 
evaluate consistency of service-connection and rating determinations 
across regional offices. We have also implemented a quality assurance 
program using silent monitoring to assess the quality of assistance 
provided on our toll free call-in number. The Government Accountability 
Office, in a recent assessment of the Department of Defense (DoD) 
Disability Evaluation System, referenced the VA compensation and 
pension quality review program as a favorable model for adoption.
Section 107
    Section 107(a) would add a new section 5109C to title 38, United 
States Code, requiring VA to take such actions as necessary to provide 
for the expeditious treatment of fully developed claims to ensure that 
any such claim is adjudicated not later than 90 days after submission. 
A fully developed claim would be one for which: (1) the claimant 
received assistance from a veterans service officer or with which the 
claimant submits an appropriate indication that the claimant does not 
intend to submit any additional information in support of the claim and 
does not require additional assistance with respect to the claim; and 
(2) submits a written certification stating that no additional 
information is available or needs to be submitted in order for the 
claim to be adjudicated. Section 107(b) would amend 38 U.S.C. Sec. 5103 
to require VA, as part of its notice to claimants of the information 
and evidence necessary to substantiate a claim, to provide the claimant 
with a checklist including a detailed description of any information 
and evidence required to be submitted by the claimant to substantiate 
the claim. These measures would be required to be implemented within 
180 days of enactment.
    VA does not support section 107(a) because claims that are received 
ready-to-rate are already fast tracked. Further, claims submitted by 
unrepresented veterans or veterans represented by veterans service 
organizations may in some instances be incomplete, and VA must work 
with the veterans and their veterans service officers, if any, to 
assist them in fully developing their claims. Thus, section 5109C could 
have the unintended consequence of requiring VA to prematurely 
adjudicate claims that warrant additional development, including claims 
that are meritorious and would result in an award of benefits upon full 
development.
    We also do not support section 107(b). While we desire to improve 
the utility of our notice letters, to the extent that the intention of 
the bill is to require a checklist containing claim specific 
information, we believe the provision may actually result in delayed 
claim adjudications and unnecessary litigation. For instance, section 
5109C, as drafted, requires VA to furnish a checklist, including ``a 
detailed description of any information or evidence required to be 
submitted by the claimant to substantiate the claim.'' This language 
appears to impose upon VA a duty to ``preadjudicate'' a claim for 
benefits, that is, to conduct a review of the information or evidence 
submitted to date and provide a detailed assessment to the claimant as 
to what portion of the evidence, if any, needed to substantiate the 
claim is missing. This ``preadjudication'' of a claim, if required, 
would unduly burden our personnel and would hamper our ability to serve 
veterans.
    Moreover, because the checklist would be provided as part of VA's 
required Veterans Claims Assistance Act notice, we believe that it 
would run a high risk of being considered by a court to be incomplete 
because relevant issues may not be recognized early in the adjudication 
process. Our experience with the current notice requirements clearly 
indicates that any notice requirement will be subject to judicial 
interpretation that may necessitate large scale reworking of claims. 
For the foregoing reasons, a claim-specific notice such as that 
apparently contemplated by section 107(b) would place too great a 
burden on VA claim adjudication personnel and severely hamper our 
efforts to reduce our claim backlog.
Section 108
    Section 108 would require VA to conduct a study of the need of VBA 
to employ medical professionals, including medical professionals who 
are not physicians, to act as a medical reference for employees 
required to assess medical evidence submitted in support of claims. VA 
would be required to report to Congress within 180 days of enactment on 
the results of the study.
    VA does not support this legislation because VA has physicians 
available in its Veterans Health Administration who can offer medical 
opinions to VBA claim adjudicators.
Section 109
    Section 109 would add a new section 1156 to title 38, United States 
Code, requiring VA to assign for compensation purposes a temporary 
disability rating of 100 percent or 50 percent for a veteran who has 
been discharged from active duty for 365 days or less, for whom a 
permanent disability rating cannot be immediately assigned, and who has 
a severe disability making substantially gainful employment not 
feasible or advisable or an unhealed or incompletely healed wound or 
injury where material impairment of employment is likely. The temporary 
rating would remain in effect until the earlier of the date on which 
the veteran receives a permanent disability rating under the rating 
schedule or the date that is 365 days after the date of the veteran's 
last separation from active duty. VA would be required to review all 
pending disability compensation claims within 30 days of the date of 
enactment to determine whether the veteran is entitled to a temporary 
disability rating under this provision.
    VA does not support this provision because it is unnecessary. VA 
already has sufficient authority under its regulations to award 
prestabilization ratings for all disabilities using criteria comparable 
to those specified in the legislation. Further, the review of all 
pending claims within 30 days after the date of enactment is not 
feasible using currently available resources.
Section 110
    Section 110 would require VA, within 1 year after the date of 
enactment, to conduct a review of the use of information technology by 
VBA and develop a comprehensive plan for the use of such technology in 
claims processing to reduce subjectivity, avoidable remands, and 
regional office variances in disability ratings. This section would 
also require VA to develop a plan that, within three years of 
implementation, would reduce claim processing time for each claim 
processed by VBA to not longer than the average time required to 
process a claim as identified in the most recent annual report 
submitted under 38 U.S.C. Sec. 7734. VA would further be required to 
submit a report to Congress on the required review and plan not later 
than January 1, 2009.
    VA does not support section 110 because a comprehensive approach to 
accomplishment of the goal of this legislation is already underway. As 
I noted in my comments on section 104 of this bill, we are currently 
implementing a comprehensive strategy to integrate various information 
technology initiatives to improve claims processing.
Section 111
    Section 111 would add a new section 5121A to title 38, United 
States Code, to provide that the person who, under current law, would 
receive accrued benefits based on the death of a veteran claimant who 
dies while awaiting the adjudication of the claim (the veteran's 
surviving spouse, child, or dependent parent) be treated as the 
claimant for purposes of processing the claim to completion. It would 
permit the person to submit new evidence in support of the claim during 
the 1-year period beginning on the date of the veteran's death. If that 
person certifies to VA that he or she does not want to be treated as 
the claimant, the person may designate the individual who would receive 
accrued benefits based upon the first person's death to be treated as 
the claimant for purposes of processing the claim to completion. This 
provision would apply to the claim of any veteran who dies on or after 
the date of enactment.
    We do not object to this section, which would allow the submission 
of evidence in support of a claim that was pending before VA when the 
veteran died. Such legislation would be consistent with the Veterans 
Disability Benefits Commission's recommendation to allow a veteran's 
survivors, but not a creditor, to pursue the veteran's due but unpaid 
benefits and any additional benefits by continuing a claim that was 
pending when the veteran died, including presenting new evidence not in 
VA's possession at the time of death.
    However, as currently drafted, section 111 would raise several 
issues with respect to its implementation. Section 5121(a) of title 38, 
United States Code, requires VA to pay accrued benefits (periodic 
monetary benefits to which a deceased claimant was entitled at death 
under existing decisions or evidence in the file at the time of death) 
to certain specified individuals (for a deceased veteran, the veteran's 
spouse, children, or dependent parents). Nothing is required of those 
individuals other than the filing of an application within 1 year of 
the claimant's death and proof that the individual qualifies as a payee 
under section 5121. However, only if an application is timely filed and 
the applicant establishes entitlement to accrued benefits would that 
person ``receive any accrued benefits due to the veteran.'' Only then 
could the person be treated as the claimant under section 111. 
Furthermore, permitting a substitute claimant upon a veteran's death 
could require VA to develop the claim, including obtaining medical 
evidence on the deceased veteran who could no longer be examined or 
authorize the release of protected health information. The laws of the 
various states govern the disclosure of protected health information by 
private health care providers, so VA and the substitute claimant would 
be limited by such laws in obtaining medical evidence concerning the 
deceased veteran.
    Under the bill's language, it would be possible that more than one 
person could simultaneously be ``the claimant.'' Under section 5121, 
upon the death of a veteran and in the absence of a surviving spouse, 
the veteran's children or dependent parents may be entitled to accrued 
benefits. Therefore, under section 111 of the bill, in the absence of a 
surviving spouse, ``the claimant'' could be two or more children of a 
veteran or two dependent parents. This situation could create 
complications if the persons disagreed as to how to prosecute the 
claim.
    Section 111 is unclear as to what would happen if the person who 
would receive a deceased veteran's accrued benefits does not want to be 
treated as the claimant. If, as section 111 would permit, that person 
designates as the claimant ``the person who would receive such benefits 
upon the death of the person who would otherwise be treated as the 
claimant'' under the provision, but also pursues a claim for accrued 
benefits, then both persons would be pursuing a claim for the same 
benefits. Furthermore, the two claims could be decided on different 
evidence because a claim for accrued benefits under section 5121 is 
limited to the decisions existing or evidence on file when the veteran 
died, but a claim pursued under section 111 would not be so limited.
    At this time, we cannot estimate the cost of this section because 
we do not have sufficient data to determine the number of veterans who 
die with a claim pending. Additionally, we cannot determine whether 
their claims would be granted with a compensable evaluation.
Section 201
    Section 201(a) would require VA and DoD to review the results of 
the Single Disability Evaluation/Transition Medical Examination pilot 
study conducted pursuant to law and jointly create a single disability 
examination process for medically transitioning members of the Armed 
Forces and members of the reserve components. Section 201(b) would 
require VA and DoD to: (1) ensure that DoD determines fitness for duty 
and VA rates the severity of disability for members who medically 
separate or retire from active duty service or reserve component 
service; (2) establish a cost-sharing arrangement for the examination 
process; (3) consider the reports and applicable recommendations on a 
single examination process made by the Independent Review Group on 
Rehabilitative Care and Administrative Processes at Walter Reed Army 
Medical Center and the National Naval Medical Center, the Secretary of 
Veterans Affairs Task Force on Returning Global War on Terror Heroes, 
the President's Commission on Care for America's Returning Wounded 
Warriors, and the Veterans' Disability Benefits Commission; and (4) 
ensure that DoD and VA share the costs associated with conducting 
examinations under the examination process.
    Section 201(c) would require VA and DoD to implement the single 
disability examination process not later than 1 year after the date of 
enactment. Section 201(d) would require VA and DoD to submit to 
Congress an interim report not later than 3 months after the date of 
enactment and a final report not later than 6 months after that date.
    VA does not support section 201 because it assumes that the pilot 
program currently underway will be successful and should be expanded to 
all service personnel subject to the disability evaluation process. VA, 
DoD, and Congress should wait for the results of the pilot project 
before determining whether continuation and expansion of the joint 
program would be beneficial.
Section 301
    Section 301 would require the Chief Judge of the United States 
Court of Appeals for Veterans Claims (Veterans Court) to report 
annually to the House and Senate Committees on Veterans' Affairs on the 
Court's workload during the previous fiscal year. Because this section 
would impose the reporting requirement on the Court and require nothing 
of VA, we defer to the Court on this matter.
Section 302
    Section 302(a) would make the following changes with respect to the 
Veterans Court's review of decisions of the Board of Veterans' Appeals 
(Board). It would prohibit VA from making an assignment of error or 
conceding an error not raised by the appellant unless first obtaining 
the appellant's written consent. It would add to the Veterans Court's 
current powers (to affirm, modify, or reverse a Board decision or 
remand the matter, as appropriate) the power to ``vacate and remand'' a 
Board decision. It would prohibit the Court from affirming, modifying, 
reversing, remanding, or vacating and remanding a Board decision 
without first deciding all assignments of error raised by an appellant 
for each particular claim for benefits. Finally, it would permit the 
Court, if the Court reverses a decision on the merit of a particular 
claim and orders an award of benefits, not to decide any additional 
assignments of error with respect to that claim. Under section 302(b), 
these changes would apply to Board decisions made on or after the date 
of enactment.
    VA opposes enactment of section 302. The provision prohibiting VA 
from making an assignment of error or conceding an error not raised by 
the appellant, without first obtaining the appellant's written consent, 
is undesirable and unnecessary. If an appellant has retained a 
representative, then the parties to the litigation jointly negotiate 
the terms of a remand, and there is no need to require the appellant's 
consent to any confessions of error. If, on the other hand, the 
appellant is not represented (as is often the case), then the Veterans 
Court typically orders the appellant to respond to VA's remand motion 
and thereby provides ample opportunity for the appellant to object to 
the remand and any confessions of error made by VA. Moreover, the 
appellant can waive an error noted by VA if the appellant believes that 
such error was harmless or otherwise not worthy of the Court's 
consideration. Thus, the existing system already safeguards the 
appellant's interests.
    Anywhere from 19 percent to 47 percent of appellants represent 
themselves before the Veterans Court. Many have limited educations, are 
otherwise unsophisticated in litigation and adjudication matters, or 
suffer the effects of mental disorders. Many are suspicious of the 
government. These factors would hinder VA's ability to assign errors 
for the Court's consideration and, perhaps, act as a disincentive to do 
so. Given these realities, it is not viable to require written consent 
from an appellant before VA may submit the issues to the Court for 
resolution.
    Moreover, this provision would create ethical problems. For 
example, VA counsel are ethically bound to represent VA's interests. 
Counsel cannot ethically cede VA's interests to his or her adversary by 
permitting VA's adversary to determine what issues VA may argue before 
the Court.
    In addition, this provision would implicate counsel's duty of 
candor to the Court. The Veterans Court observed in Johnson v. Brown, 7 
Vet. App. 95 (1994), ``[a]s to the General Counsel's general 
responsibilities, Rule 3.3(a)(3) of the American Bar Association's 
Model Rules of Professional Conduct, the Code of Professional 
Responsibility, adopted in Rule 1(b) of the Appendix to Rule 46 of this 
Court's Rules of Practice and Procedure [Court's Rules] (see Misc. 
Order No. 3-92 (Aug. 1, 1992) (en banc)), states: `A lawyer shall not 
knowingly . . . fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the lawyer to be directly adverse to 
the position of the client and not disclosed by opposing counsel'. 
Model Rules of Professional Conduct Rule 3.3(a)(3) (1991). The 
Secretary's confession of errors here is thus a disclosure of legal 
authority, `not disclosed by opposing counsel', that is worthy of the 
Court's attention, not its disregard.'' Johnson, 7 Vet. App. at 98. It 
is undesirable for section 302 to so constrain counsel's duty of candor 
to the Court.
    Importantly, the Veterans Court is authorized by law to review the 
entire record and consider all errors. Although an appellant is 
entitled to seek judicial review by filing a notice of appeal, the law 
does not afford an appellant the right to frame the issues or to 
otherwise control the appeal once the Court is vested with 
jurisdiction. As noted in Johnson, ``[t]he law has specifically 
assigned to this Court `exclusive jurisdiction to review decisions of 
the Board.' 38 U.S.C. Sec. 7252(a). In carrying out this review, the 
Court is directed to, inter alia, `decide all relevant questions of 
law, interpret constitutional, statutory, and regulatory provisions, 
and determine the meaning or applicability of the terms of an action by 
the Secretary'. 38 U.S.C. Sec. 7261(a)(1). Under this broad authority--
indeed, mandate--to carry out comprehensive judicial review of [Board] 
decisions, the Court undoubtedly would have jurisdiction to consider 
those same Board errors if raised by the appellant or noted, sua 
sponte, by the Court itself. Hence, the fact that these errors were 
here raised by the Secretary cannot deprive the Court of jurisdiction 
to consider them.'' Johnson, 7 Vet. App. at 98-99.
    The provision that would prohibit the Veterans Court from deciding 
an appeal without first addressing every allegation of error raised by 
the appellant is also problematic. The notion of requiring the Court to 
delay remanding a case until it decides all assignments of error raised 
by an appellant was cogently rejected by the Court in Best v. Principi, 
15 Vet. App. 18 (2001) (per curiam order). Such a rule would harm 
rather than help veterans.
    In Best, the Court had remanded the appeal for VA's consideration 
of a recently enacted public law, but the appellant objected on the 
basis that the Court had not considered allegations of error that he 
had raised which might be capable of repetition on remand. The Court 
offered a compelling analysis regarding why a remand on narrow grounds 
is in the best interest of appellants and the sound administration of 
justice. First, the Court explained that, when it issues a remand, the 
underlying Board decision is vacated (i.e., rendered a nullity), and 
the claim must be adjudicated anew. The Board must reexamine the case 
and permit the claimant to submit additional evidence and additional 
arguments. In other words, the claimant retains the right to raise to 
the Board all putative errors in the handling of the claim, without 
being limited by the specific grounds of the Court's remand order.
    Second, the Court noted in Best that the practice of remanding a 
case on narrow grounds was consistent with the practice in other 
courts, and consistent with the statute defining the Court's scope of 
review. It warned, for example, that the Court might be relegated to 
the role of issuing a mere advisory opinion regarding the putative 
errors asserted by an appellant, because further development of factual 
and legal issues can change the landscape of the case on remand.
    Finally, the Court in Best also warned that, if it were to rule on 
every allegation raised by an appellant, then any rulings against the 
appellant would foreclose him from reasserting the issues on remand. 
``A narrow decision preserves for the appellant an opportunity to argue 
those claimed errors before the Board at the readjudication, and, of 
course, before this Court in an appeal, should the Board rule against 
him.'' Best, 15 Vet. App. at 20. Such foreclosure would deprive an 
appellant of the opportunity to craft a more persuasive argument below 
against the new legal and factual context of the readjudicated claim, 
and would deprive the appellant of judicial review of the issue if VA 
decides against him or her.
    The Best holding is a flexible rule, and it does not require a 
judge to disregard other putative errors asserted by an appellant when 
remanding a case. Instead, the Best rule leaves to the discretion of 
the judge which arguments will be addressed, depending upon the 
circumstances of each case. Indeed, in several remanded appeals, the 
Veterans Court has chosen to address each putative error raised the 
appellant, notwithstanding Best.
    This provision of the draft bill would be unfair to those who are 
waiting in the queue for the judges to get to their cases. The parties 
before the Veterans Court are entitled to a timely decision. Many 
appellants before the Veterans Court are in poor health or are elderly. 
The purely conjectural allure of the provision must yield to the very 
real possibility that some appellants will die before obtaining a 
decision from the Veterans Court, if the judges are required to address 
every argument in every case without regard to whether the argument 
would make a difference to the ultimate outcome of the appeal.
    Moreover, this provision would deprive the judges of the 
flexibility that they need to manage a burgeoning caseload with limited 
resources. Notably, the provision makes no distinction between 
colorable arguments and frivolous arguments--the Veterans Court must 
address them all. This requirement is antithetical to the principle of 
judicial economy and is counterproductive to Congressional efforts to 
reduce the inventory of appeals at the Veterans Court. If section 302 
were enacted, decisions on appeals would be delayed, the backlog would 
grow, and veterans and VA would be deprived of timely resolution of 
their disputes.
    For all these reasons, VA believes that enactment of section 302 of 
the draft bill is undesirable, and we oppose it.
Section 401
    Section 401 would require VA to submit within 180 days of the date 
of enactment a report to Congress describing how VA plans to implement 
the legislation and the amendments made by it.
    A number of provisions of the draft bill include requirements for 
reports to Congress on studies and actions to implement particular 
provisions of the bill. The report contemplated by section 401 would 
seem to duplicate, and in some instances conflict with, the timing of 
reports otherwise called for in the bill. For this reason, VA does not 
support enactment of section 104.
    This concludes my statement, Mr. Chairman. I would be pleased to 
entertain any questions you or the other Members of the Subcommittee 
may have.

                                 
                Prepared Statement of Raymond C. Kelley
       National Legislative Director, American Veterans (AMVETS)
    Chairman Hall, Ranking Member Lamborn, and Members of the 
Subcommittee:
    I am pleased to submit to this Committee on behalf of AMVETS our 
views on the ``Veterans Disability Benefits Claims Modernization Act'' 
(Act).
    Section 101 of the Act will provide presumption of service-
connection for veterans who were deployed in support of contingency 
operation with post traumatic stress disorder (PTSD). This would allow 
those who engage in combat with the enemy and diagnosed with PTSD to be 
granted presumption of a stressor for service-connection. AMVETS 
supports the spirit of this provision, however, due to the Department 
of Veterans Affairs' high standard of proof for consideration of 
engaging in combat with the enemy it will be difficult in many 
circumstances for the veteran to verify their role in combat. Poor 
recordkeeping and servicemembers being moved from one unit to another 
during their deployment could, under current VA internal requirements, 
make it impossible for a veteran to prove they engaged in combat with 
the enemy.
    Therefore, AMVETS suggests that either the language be changed to 
more clearly define who and under what circumstances veterans would be 
granted presumption or amend section 1101, Title 38 United States Code 
to clarify who has engaged in combat and to what degree they must 
support their claim. This would take the subjective nature of the 
presumptive claim out of the adjudicator's hands.
    AMVETS supports section 102 of the Act that will allow for parity 
between mental health disabilities and physical disabilities. Under the 
current rating schedule, VA decisionmakers often only focus on 
occupational impairment and not social impairment when awarding a 100 
percent disability rating. AMVETS would support any provision that 
would require rating specialists to consider both mental and/or 
physical disabilities as grounds for disability ratings.
    AMVETS also supports the study of using codes that are being used 
by the medical and disability profession as a model for the VA rating 
code. There are less than 800 diagnostic codes used by VBA and more 
than 10,000 ICD codes in use. Because of this, it will be imperative 
that some sort of cross reference be established to simplify the 
change.
    Concerning section 103, AMVETS supports the study concerning the 
work credit system within the VBA, and had testified in the past of the 
need for change in the current work credit system. AMVETS believes that 
with quality assurance added to the Systematic Technical Accuracy 
Review (STAR) program oversight of accuracy of decisions will improve 
the accountability system.
    AMVETS supports any effort to improve the quality of claims 
processing as presented in section 104. However, a study on the work 
management system may not be necessary if sections 103 and 105 are 
correctly implemented.
    AMVETS wholly agrees with the creation of certification of 
employees of the VBA who are responsible for processing claims as 
outlined in section 105. AMVETS has testified in the past that not only 
certification, but centralized training and continuing education are 
important to ensure timely and accurate claims processing. AMVETS 
believes a large portion of the claims disparities are related to not 
only the lack of certification but also the human factors that vary 
from one region to the next. Centralized training will remove a 
considerable amount of the personality that has been established in 
these regions. Also, in all medical-related fields continuing education 
is required. New medical discoveries can change the way a claim is 
developed. If the developer is unaware to the changes, the veteran will 
be denied a claim; Therefore, AMVETS supports the idea of continuing 
education training for VBA employees who handle claims.
    With regard to section 107, AMVETS has concerns not with outside 
agents developing claims, but with their ability to access information. 
VBA employees have access to documents that are not accessible by non-
employees. Although the development phase of the claims process would 
be expedited, it would also increase the rate of remands because of the 
claims that are improperly developed by those outside the VBA.
    AMVETS opposes the study and report on employing medical 
professionals to assist employees of Veterans Benefits Administration. 
This would build in redundancy in the system, because VBA staff already 
has access to medical professionals who can answer any questions. Most 
claims complications are legal in nature, not medical; therefore, the 
medical professionals would be giving legal not medical advice in many 
instances.
    AMVETS does not oppose section 109.
    As outlined in section 110, AMVETS has publicly supported the use 
of electronic claims filing. AMVETS must reiterate that Information 
Technology must be used throughout the entire claims process to shorten 
the claims process.
    AMVETS supports section 111 with exception to the substituting 
party may designate who receives the benefits of the original claimant.
    AMVETS continues to support the provision outlined in section 201.
    The matters relating to the United States Court of Appeals for 
Veterans Claims as outlined in sections 301 and 302 are supported both 
by AMVETS and the Independent Budget.
    Chairman Hall, this concludes my testimony. I am happy to respond 
to any questions the Subcommittee may have.

                                 
                Prepared Statement of Rose Elizabeth Lee
Chair, Government Relations Committee, Gold Star Wives of America, Inc.
    Thank you for this opportunity to submit a Statement for the Record 
on behalf of the members of Gold Star Wives of America, Inc. (GSW).
    GSW was founded in 1945 and is a Congressionally chartered Veterans 
Service Organization comprised of surviving spouses of military 
servicemembers who died while on active duty or as a result of a 
service-connected disability. GSW currently has approximately 10,000 
members who are surviving spouses of those who served in World War II, 
the Korean war, the Vietnam War, the current wars in Iraq and 
Afghanistan and other smaller conflicts.
    I have read through the draft issue of the Veterans Disability 
Benefits Claims Modernization Act of 2008, and its provisions are well 
crafted and much needed.
    We are very happy that this proposed law specifically mentions 
survivors. Survivors have a unique set of benefits and a unique set of 
problems.
    GSW requested that a few of our members who have personal 
experience in dealing with the Department of Veterans Affairs claims 
system and professional experience in converting manual business 
systems to computer systems read the proposed law and make suggestions 
and comments.
    We are well aware that the Veterans Affairs claims system has a 
huge backlog of claims as well as a very long wait for processing. A 
large portion of this backlog is generated by having to file claims and 
appeals over and over again before they are properly and fully 
adjudicated. One surviving spouse's husband filed a claim five times 
before he died, and she has filed the same claim twice since he died. 
If the claims had been fully and competently processed, no more than 
two claims should have been required.
    We fully support the provisions of this proposed legislation that 
call for proper training and certification of adjudicators. We would 
also like to see provisions that require that any rejected claim be 
reviewed by a knowledgeable, competent adjudicator before they are 
rejected or denied.
    We also fully support all efforts to inform the claimant of the 
type and quality of information that the VA adjudicators need to 
properly process a claim.
    Many of our servicemembers have participated in black or classified 
missions and in subsequent years they have developed illnesses as a 
result of those missions. In some instances portions of their service 
records are still classified or heavily redacted, and VA cannot 
adjudicate a claim without full access to those records. Some provision 
needs to be made to alleviate the situation whereby the claimant cannot 
receive compensation for his illness or injury because the records 
pertaining to it are classified or heavily redacted. It would seem 
reasonable to assume that if records are classified or heavily 
redacted, the claim should be adjudicated in favor of the claimant 
without the records that are usually required. The more cumbersome 
alternative would be that adjudicators to have a high enough security 
clearance to read the necessary records.
    In the last few years GSW has encountered many surviving spouses 
who have filed for Dependents Indemnity Compensation (DIC) and have had 
a significant delay in receiving benefits. Some of these survivors have 
lost or nearly lost their homes and/or their credit ratings have been 
lowered before the claim was processed and benefits were awarded. Many 
of these claims were very routine, straight forward claims which should 
have been processed quickly and easily.
    Other surviving spouses have had to go without medical care or go 
heavily in debt to obtain medical care because the DIC claim was not 
processed expeditiously or the surviving spouse was not properly 
entered into the ChampVA system.
    GSW also has many members who are unaware that they are entitled to 
a military identification card for commissary and exchange privileges 
if their deceased spouse was 100 percent disabled veteran and they are 
eligible for DIC. These surviving spouses are not receiving the 
information or the required letter from the VA. Additionally, the 
personnel in the military who are supposed to issue the identification 
cards do not know how to get the information into the various computer 
systems as required and therefore cannot issue the identification 
cards.
    Temporary Aid and Attendance awards should be available for the 
surviving spouse and dependent children of a 100 percent totally and 
permanently disabled veteran or deceased veteran whose surviving spouse 
is entitled to DIC. These awards would be applicable in cases of 
catastrophic illness, surgeries where the anticipated length of 
recovery is greater than 10 days, chemotherapy, etc. Actual payments 
could be prorated to the actual recovery time involved.
    If the condition becomes permanent, the Aid and Attendance could be 
continued on a permanent basis. Surviving spouses and dependent 
children should be allowed to claim housing modifications if the 
condition is permanent and the modifications are necessary.
    Temporary Aide and Attendance is a real necessity for the surviving 
spouse and dependent children as there is only one parent and one adult 
in the household once the veteran dies.
    In reference to:
    (Page 14) Advisory Committee on Disability Compensation, GSW would 
like to have one of our well qualified members included on this 
Committee. The needs of family members and survivors also need to be 
addressed by this Committee.
    (Page 15) Title 1, section 102. ``assemble and review relevant 
information relating to the needs of veterans with disabilities''. 
Please add their families and survivors. The needs of families and 
survivors also need to be addressed.
    (Page 16) Title 1, section 102. ``An assessment of the needs of 
veterans with respect to disability compensation''. Please add their 
families and survivors. The needs of families and survivors also need 
to be addressed.
    (Page 21) Title 1, section 105. Employee Certification. This 
employee certification examination for adjudicators needs to include 
DIC claims and survivor benefits.
    (Page 24) Title 1, section 106. Annual Assessment of Quality 
Assurance Program.
    It is our understanding from comments made at other hearing that 
there is a great deal of difficulty involved in training and certifying 
adjudicators. One comment was made that only 27 percent of the 
adjudicators could pass the certification exam; another comment was 
that adjudicators remained in their positions for only about 2 years. 
With the vast amount of knowledge needed to perform adequately in these 
positions and with this difficulty in training and retaining 
adjudicators, some thought needs to be given to raising the grades of 
these employees and to creating upward mobility positions. Perhaps the 
adjudicators could be monetarily rewarded or promoted to the next level 
on an upward mobility path based on passing the examinations.
    Different regional offices often rate veterans with similar 
illnesses and injuries very differently. Hopefully the reports required 
by this legislation and the certification examinations will allow the 
regional offices to rate veterans with similar illnesses and injuries 
in a more equitable manner.
    (Page 29) Title 1, Sec 109. Assignment of Temporary Disability 
Ratings to Qualifying Veterans.
    When a claim is incomplete and a checklist is provided to the 
claimant will there be time constraints involved? If there are time 
constraints involved, can those time constraints be extended if, 
through no fault of their own, the claimant cannot comply with the time 
constraints?
    Veterans who have been declared terminally ill should be included 
in the provisions for Temporary Disability Ratings. There should be a 
specific set of procedures for terminally ill veterans. Pending claims 
should automatically be expedited without the need for a special 
request.
    In the case of a terminal diagnosis stemming from a previously 
rated service connected disability, the veteran should be rated as 100 
percent totally and permanently disabled from the date of the original 
claim.
    (Page 30) Qualifying Veteran. ``(1) who has been discharged from 
active duty service for 365 days or less.''
    And on (Page 31) Termination of Temporary Rating (B) ``The date 
that is 365 days after the date of the veteran's last separation or 
release from active duty.''
    The two dates specified above could be the same or very close to 
each other. Perhaps it would be better to specify under Termination of 
Temporary Rating that the Temporary Rating would be terminated 365 days 
after it was received or 365 after the first temporary compensation 
check was mailed.
    (Page 32) Sec 110. Review and Enhancement of Use of Information 
Technology at Veterans Benefits Administration.
    Security of online records should be a prime consideration. All 
access to those records should be logged and the reason for that access 
specified. Digital signatures should be provided for all access and a 
record kept of what information was accessed and why it was accessed. 
All HIPPA provisions should be used to safeguard the information in 
these records.
    A veteran should have access to his own records. A copy of the 
records should be provided to the veteran upon request without charge. 
If a surviving spouse requires access to the deceased veteran's 
records, a copy of those records should be provided without charge.
    If there is incorrect information in the records, it should be 
corrected upon request of the veteran.
    If a veteran's record is included in the registries (cancer, Agent 
Orange, Gulf War, etc.) the veteran should be advised that the record 
is being included in these registries and how the data in those 
registries will be used.
    If a veteran's record is used for research all identifying data 
should be stripped from the record. If for some reason all identifying 
data cannot be stripped from the record, then written approval of the 
veteran to use the information in his records should be required.
    (Page 36) Sec. 111. Substitution in case of death of claimant.
    Minor dependent children should automatically be considered as co-
claimants, if the claimant of record is not the custodial parent. This 
will ensure that the original claimant's minor dependent children are 
not forsaken in lieu of a current spouse or in the cases of a 
guardianship or custodial grandparents. The dependent child or 
children's financial interests are then protected until the reach the 
age of majority.

                                 
                Prepared Statement of Richard Paul Cohen
 Executive Director, National Organization of Veterans' Advocates, Inc.
    Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to present the views of the National 
Organization of Veterans' Advocates, Inc. (``NOVA'') on the ``Veterans 
Disability Benefits Claims Modernization Act of 2008.''
    NOVA is a not-for-profit Sec. 501(c)(6) educational organization 
incorporated in 1993 and dedicated to train and assist attorneys and 
non-attorney practitioners who represent veterans, surviving spouses, 
and dependents before the Department of Veterans Affairs (``VA''), the 
United States Court of Appeals for Veterans Claims (``CAVC'') and 
before the United States Court of Appeals for the Federal Circuit 
(``Federal Circuit'').
    NOVA has written many amicus briefs on behalf of claimants before 
the CAVC and the 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 fifteen-year experience representing 
claimants at all stages of the veteran's benefits system from the VA 
Regional Offices to the Board of Veterans' Appeals to the CAVC as well 
as before the Federal Circuit.
    Overall, NOVA supports the provisions contained in the ``Veterans 
Disability Benefits Claims Modernization Act of 2008'' (``the Act''). 
The legislators and their staff are to be commended for their concerted 
efforts to fix and update the VA's benefits system. However, NOVA has 
suggestions regarding various sections. Accordingly, this statement 
will deal with the sections of the Act seriatim.
    NOVA recognizes the intent behind section 101; that is, to provide 
significant assistance to veterans who have been diagnosed with PTSD 
after military service and who were in a combat zone where they were 
exposed to ``stressors'', but who have difficulty proving they 
``engaged in combat with the enemy'' due to the nature of their 
military service. However, as it exists now, section 101 will not bring 
about its intended purpose. At present, 38 U.S.C. Sec. 1154(b) does not 
provide a presumption that a veteran is entitled to benefits for a 
service connected injury or disorder even for those veterans who the VA 
concedes engaged in combat with the enemy. Rather, 1154(b) has been 
interpreted as providing only a presumption of service incurrence which 
still requires proof of medical nexus, Dalton v. Nicholson, 21 Vet. 
App. 23 (2006).
    In order to accomplish the intended result, section 101 needs the 
following addition at line 22 of p. 6:

        ``(3) by adding at the end the following new paragraph:
        `(3) In the case of a veteran who has been diagnosed with PTSD 
        after military service and who engaged in combat with the enemy 
        as defined in (2) above, a connection between PTSD and active 
        military service shall be presumed and may be rebutted only by 
        clear and convincing evidence to the contrary.'

    It would be an obvious inequity to apply this liberalizing change 
only to pending claims, thus excluding veterans who saw considerable 
combat in a theater of combat operations, but are unable to prove it. 
Accordingly, the effective date provisions, p.6, line 24, et.seq., 
should state that this section is to be applied retroactively.
    Concerning section 102, NOVA supports adjustment of the schedule of 
ratings and ensuring parity between the rating of mental and physical 
disabilities, especially regarding total disability. Additionally, NOVA 
supports the Veterans' Disability Benefits Commission's two specific 
recommendations (4.1 and 7.6) that veterans receive an immediate 25 
percent increase in disability payments for loss of or impairment in 
quality of life. Accordingly, NOVA recommends inserting a new section 
102(b) which would specifically require a 25 percent increase in 
current disability payments to reflect the loss or impairment in 
quality of life and that proposed section 102(b) be renumbered 102(c).
    Concerning section 102(d), NOVA supports the creation of an 
Advisory Committee on Disability Compensation and suggests that the 
eighteen Committee members include 1-2 veteran advocates from the 
private sector. Such inclusion will ensure that the issues integral to 
veterans' disability compensation are considered from all relevant 
perspectives.
    NOVA supports, generally, sections 103 and 104, regarding the VA's 
work credit and work management systems, respectively and supports the 
suspension of the work credit system upon failure of the VA to 
implement a replacement system within a stated timeframe. Although it 
may seem draconian to require suspension of the work credit system, 
NOVA has, by citing to the 2005 OIG report in our prior testimony, 
highlighted the effect of rewarding the quantity versus quality of 
decisions made and its impact on the VA's backlog. For obvious reasons, 
NOVA recommends that the mandated studies should be performed by either 
the Office of Inspector General or the Government Accounting Office, 
rather than by the VA.
    NOVA supports section 105 to the extent that it requires 
certification and training of VBA employees. NOVA notes an apparent 
typographical error at p.21, line 23 which should read ``Sec. 7735 
Employee Certification and Training.'' Substantively, NOVA recommends 
inserting a specific training requirement by amending Line 25, et seq, 
to read as follows: ``The Secretary shall provide appropriate semi 
annual training sessions of 10 hours each involving VA regulation and 
Court decisions for appropriate employees and managers of the Veterans 
Benefits Administration and shall require such employees. . . .''
    NOVA supports section 106, Annual Assessment of Quality Assurance.
    Although NOVA generally supports section 107, Expedited Treatment 
of Fully Developed Claim, because of the value of expeditiously 
deciding claims that require no further development, NOVA is wary of 
the language contained in page 28. Specifically NOVA foresees the 
likelihood that VA may utilize this language to support the assertion 
that the unsuspecting veteran waive the right to adequate development 
of the claim. In many cases, a veteran who is not represented by an 
attorney or a well-trained veteran's advocate is not fully aware or 
informed of the legal significance of a waiver. To require the veteran 
waive further assistance or development is a dangerous, ill-advised 
procedural short-cut.
    NOVA questions the feasibility of section 108, the use of medical 
professionals to assist VBA employees, because of the danger that the 
medical professionals may--by default and, or contrary to the intent 
and language of the statute--become the person who rates and evaluates 
the claim. Moreover, there is a strong likelihood that the selected 
medical professional will be from QTC, a company with which VA 
contracts to conduct medical evaluations. However, veterans repeatedly 
report to NOVA Members that QTC-employed medical professionals perform 
medical examinations that tend to be inadequate, deficient, 
unprofessional and, or biased. Thus, if medical consultants are to be 
utilized, the statute should specifically require that all 
communication (written and oral) between VBA employees and the medical 
consultants be documented, available in the VA claims file, and the 
veteran be notified that such consultation was part of the development 
and, or adjudication of their claim.
    While suggesting the use of medical consultants, Congress should 
also recommend that the VA implement a ``treating physician's rule'' 
similar to that which as has been enacted by the Social Security 
Administration (``SSA''). The SSA treating physician rule contained in 
SSR 96-2p: http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-02-di-01.html 
provides that if a treating source's medical opinion is well-supported 
and not inconsistent with the other substantial evidence in the record, 
then it must be given controlling weight, i.e., it must be adopted.
    Recognition by the VA that treating physicians have unique insight 
into the veteran's medical condition(s) is long overdue. A treating 
physician rule would be beneficial to both the veteran and the VA. The 
veteran benefits because the opinion of the medical professional with 
the most complete knowledge about the veteran's condition would be 
given ``greater weight'' and would provide the VA decisionmaker with 
valuable information regarding the etiology and, or severity of the 
veteran's medical condition. The treating physician would also help 
counter the opinion of a VA physician who examined the veteran on only 
one occasion and typically for less than 30 minutes. The VA would also 
benefit because claims for VA benefits would be decided more 
efficiently since any issue regarding conflicting medical reports would 
be resolved easily by using a treating physician rule.
    Partial disability ratings which are contained in section 109 are 
supported by NOVA.
    NOVA supports that portion of section 110 which provides for 
automated decision support software and electronic examination 
templates. However, although NOVA questions the utility of utilizing 
Artificial Intelligence, the ability of the veteran to check on the 
status of a claim on the web, contained in (b)(7) is a good idea.
    Section 111, involving substitution where claimant dies while a 
claim is pending is long overdue. NOVA assumes that the intent is to 
apply Sec. 5121A to claims which are pending in the Court or before the 
VA, and to eliminate uncertainty in that regard, recommends that the 
language ``before the VA or a Court'' be inserted at page 36, line 6, 
after ``adjudication.'' NOVA also recommends deleting the language at 
lines 6-7, ``the person who would receive any accrued benefits'' and 
substituting the language ``the person who would receive any accrued 
benefits or the adult children of the claimant''. This revision would 
hopefully correct the current disparate treatment experienced by adult 
children when their mother or father has predeceased the veteran, 
thereby precluding any family member from being eligible to receive 
accrued benefits.
    In view of its status as an Article I Court, and the resulting need 
for Congressional oversight, NOVA supports the reporting requirements 
imposed upon the CAVC which are contained in section 201. Additionally, 
NOVA recommends that the court be required to report on the time that 
elapses from when the case is fully briefed until the Court renders its 
disposition.
    NOVA also supports section 202. Moreover, NOVA views the deleted 
provisions requiring the Court to decide all assignments of error 
raised by an appellant as appropriate and essential. This provision is 
appropriate because of the CAVC's status as an Article I Court, and is 
essential because, as NOVA has asserted on previous occasions, the 
CAVC's practice of narrowly deciding appeals is a major contributing 
factor to veterans' repeat visits to the Court and to the Court's ever-
increasing caseload. This provision may appropriately be founded on the 
distinction between this Article I Court which renders narrow decisions 
in cases which frequently return to the Court raising the same errors, 
and Article III Courts which tend to decide appeals containing one 
issue which is unlikely to return. Finally, to deal with the Court's 
concern about unnecessarily being required to decide Constitutional 
claims the following language could be inserted in the provision 
dealing with the Best/Mahl issue: ``except that Constitutional 
arguments need not be decided if the appeal could be resolved by 
deciding the other assignments of errors raised.''

                                 
                 Prepared Statement of Richard Weidman
          Executive Director for Policy and Government Affairs
                      Vietnam Veterans of America
    Vietnam Veterans of America (VVA) is pleased to submit this 
Statement for the Record concerning the discussion draft of a bill to 
be entitled the ``Veterans Disability Benefits Claims Modernization Act 
of 2008.''
    Certainly, no one can object to the purpose of this legislation: 
``to ensure the accurate and timely delivery of compensation to 
veterans and their families and survivors.'' In its findings, Congress 
has identified the crux of the problem: ``The paper-based, labor-
intensive [system of rating claims] employed by the Department [of 
Veterans Affairs] leaves many disabled veterans and survivors waiting 
months or years to receive the benefits they have earned.''
    Nor can one dispute the premise of this bill: that the VA ``must 
modernize the claims processing system of the Veterans Benefits 
Administration to make it a first-class, veteran-centered system that 
uses 21st century technologies and paradigms and reflects the dignity 
and sacrifices made by disabled veterans, their families, and 
survivors.''
    However, we caution that any legislation needs to take into account 
two factors. First, what we will call the ``null hypothesis,'' that the 
laws as currently written are not inadequate; rather, the culture, 
processes, and regulations of the VBA, and its personnel, are the 
culprits behind the unconscionably long list of claims awaiting 
adjudication and the time it takes to rate them. And second, that the 
regulation rewrite project currently being undertaken by VA personnel 
may embrace many of the recommendations of this legislation, as well as 
offer other recommendations that ought to be included in any 
legislation enacted by Congress.
    Be that as it may, we will offer comments relevant to various 
sections of the proposed legislation.
Section 2. Findings
    (1) In referring to the ``nearly 24,000,000 American veterans,'' it 
is perhaps more appropriate to say ``veterans in America.'' Currently 
foreign nationals serving in the American military number in the 
hundreds if not thousands; upon discharge from active service, they do 
not automatically become ``American veterans.''
    (12) Of the 345,713 veterans whom the Veterans Health 
Administration treated for Post Traumatic Stress Disorder (PTSD), how 
many have filed claims for disability compensation? How many were 
informed by VA staffers that they, in fact, could file?
    (16) Nowhere in this section is it noted that the VA fails to 
consider cost of living differentials. Other Federal departments in 
fact do use locality pay.
Title I--Matters Relating To Modernizing the Disability Compensation 
        System of [the] Department of Veterans Affairs.
Sec. 102. Study on Readjustment of Schedule for Rating Disabilities.
    VVA has no objection for the Secretary of Veterans Affairs to 
commission a study ``on adjusting the schedule for rating disabilities 
. . . so as to base the schedule on standards, practices, and codes in 
common use by the medical and disability profession[s].''
    While this section notes that the Secretary may enter into a 
contract (page 7, line 14), this seems at odds with the language on 
page 9, lines 5-9, to wit: ``In conducting the study . . . the 
Secretary shall consult with appropriate public and private entities, 
agencies, and veterans service organizations, and shall employ 
consultants.''
    VVA agrees with the determination of previous reports of relevant 
commissions that the ratings schedule should be adjusted ``to take into 
account the loss of quality of life and loss of earnings that result 
from specific disabilities.''
    (1) On line 12, the word ``profession'' should be plural: ``. . . 
the medical and disability professions that. . .''
    (2)(C) We question, however, why direct a study to ``examine 
whether disparities exist'' with PTSD and other mental disabilities and 
not with other disabilities?
    (E)(iii) We would request clarification of this provision regarding 
``the extent to which benefits for veterans may be used to encourage 
veterans to seek and undergo vocational rehabilitation.'' It seems to 
us that this language is loaded for misinterpretation.
    (5)(B) There seems to be a misstatement of fact here, inasmuch as 
1155 does not currently consider ``the loss of quality of life.'' 
Certainly, any fix, or ``modernization'' of the disability benefits 
system needs to incorporate a measure to embrace quality of life.
    (5)(H) VVA agrees with providing, ``to the maximum extent possible, 
the benefit of the doubt to veterans . . . in the absence of official 
military records pertaining to the service-connection of a veteran's 
disability, and in particular, of post traumatic stress disorder, when 
a determination of service-connection would be consistent with the 
duties, conditions, and hardships of service in the Armed Forces.'' 
More importantly to note, however, is that the regulations pursuant to 
section 1154 of title 38, United States Code, are in fact 
``consistent.'' The problem lies in that they are not applied 
consistently.
    (b)(1) Requiring the VA Secretary to submit to Congress ``a plan to 
readjust the schedule for rating disabilities'' in 120 days imposes a 
very tight deadline. If VA personnel are to get it right and do it 
right the first time, the VA must be accorded a more reasonable amount 
of time in which to prepare this plan.
    (b)(1)(A) Aligning the schedule with ``best practices'' needs 
leeway in the instance that a new treatment modality requires testing 
before the VA can consider employing it.
    (b)(1)(D) We are not quite sure just what the term ``automated'' 
means. We do believe, however, that a creative use of modern electronic 
technology can be applied in the adjudication of claims, particularly 
in the realm of ensuring that all facets, or sections, of a claim are 
properly completed so that a rater can make a determination as to the 
viability of a claim and what percentage of disability ought to be 
granted.
    (c)(2) The 3-year timeline for when the VA Secretary intends to 
readjust the schedule is, we believe, unrealistic. Because of the 
potential for massive changes, for the need for notice and comment 
periods, this timeline should be extended based on input from VHA 
personnel and VSO service representatives who can offer their expert 
opinion.
546. Advisory Committee on Disability Compensation.
    VVA is particularly pleased as to the charge to the VA Secretary, 
who ``shall seek to ensure that members appointed to the [Advisory] 
Committee [on Disability Compensation] include individuals from a wide 
variety of geographic areas and ethnic backgrounds, individuals from 
veterans service organizations, individuals with combat experience, and 
women.'' This is a critical provision if the work and determinations of 
said committee are to be respected by the veterans community at large.
    (a)(2)(B) Language should be changed from ``or'' to ``and/or'' to 
wit: ``have experience with the provision of disability compensation by 
the Department and/or are leading medical or scientific experts in 
relevant fields.''
    (b)(2)(B) VVA believes that language pertaining to dependents and 
survivors ``of veterans who have served in a theater of combat 
operations'' needs to be included in this provision; also, to add ``. . 
. veterans who have served in a theater of combat operations or area of 
hostilities as determined by DoD and the VA.''
    (c)(1) A clause on benefits due the survivors of veterans ought to 
be included in this section.
Sec. 103. Study on Work Credit System of Veterans Benefits 
        Administration.
    (b) There is too much wiggle room in language that specifies only 
that ``the Secretary shall consider the advisability of implementing--
'' This provision must be made mandatory for it to be effective.
    (b)(3) Why note two ``classes'' of veterans, the ``severely 
injured'' and the ``very severely injured''? What about others who have 
been disabled to a lesser, or even greater, extent, e.g., 
``catastrophically injured''?
    (c)(1) We are not convinced that a ``new system'' is required ``for 
evaluating the work production of employees'' of the VBA. The bottom 
line is that the VBA needs enough experienced raters--and supervisors--
to handle the ever-increasing caseload. And these employees need the 
training and supervision to enable them to be productive, to meet 
realistic goals. Now, raters seemingly are caught between the 
proverbial rock and hard place: they are asked to accurately rate more 
cases faster.
    (d)(1)(C) Potential danger lurks in this language. As VVA has 
testified before the Veterans' Disability Benefits Commission, the 
``null hypothesis'' needs to be considered: What if the current system 
of laws and regulations really is valid and workable, but that the 
issue is, and problems arise because, the system is improperly 
implemented?
    We might suggest adding language that directs VBA supervisors to 
properly triage cases for adjudication. For instance, a relatively 
simple claim for tinnitus that comes in with all fields appropriately 
filled out ought not take more than 60 days to be processed fully.
    We might suggest, too, that the VBA be required to use experienced 
raters to handle complex, multi-faceted cases, with teams of raters 
attuned to mental health issues assigned to handle PTSD and other 
mental health claims.
Sec. 104. Study on Work Management System.
    In this section, VVA harkens back to our null hypothesis. The VBA 
already has, but does not use, ``a simplified process to adjudicate 
claims'' [(b)(3)]. The VBA also has laws, rules, and regulations for 
``rules-based applications and tools for processing and adjudicating 
claims efficiently and effectively'' [(b)(5)].
    Attempting to develop ``methods of reducing the time required to 
obtain information from outside sources'' [(b)(6)] is complicated by 
the fact that stressor research is a major problem, one that cannot be 
``fixed'' by a prescription in a provision.
Sec. 105. Certification and Training of Employees of [the] Veterans 
        Benefits Administration Responsible for Processing Claims.
7735. Employee Certification.
    (b) VVA suggests that the Secretary shall require all employees and 
managers, not only ``appropriate employees and managers . . . 
responsible for processing claims for benefits under the laws 
administered by the Secretary'' to take a certification examination. 
VVA submits, further, that VSO, state, and county service 
representatives should be required to take a certification exam as 
well.
    Also, just what does the term ``processing'' mean here in context? 
Does this include the copy clerks who run the copy machine?
    (c) Again, let's not sweep out all facets of the current disability 
benefits system. Part of the consideration must be questions as to the 
efficacy of implementation of laws and regs currently on the books.
    (c)(2)(B) This needs to be rewritten into readable English. After 
reading it and rereading it, we still are not quite sure as to its 
meaning.
Sec. 106. Annual Assessment of Quality Assurance Program.
    (c)(1)(E) Assessing the performance ought not be limited to 
employees and managers of the VBA. Contractors and consultants should 
be added to this provision.
Sec. 107. Expedited Treatment of Fully Developed Claims and Requirement 
        for Checklist to be Provided to Individuals Submitting 
        Incomplete Claims.
5109C. Expedited Treatment of Fully Developed Claims.
    (a) A fully developed claim ought to take well under 90 days to 
adjudicate. Perhaps this needs to read to the effect that initially 
such a claim must be completed within 90 days. Within 2 years(?), 
however, this must be reduced to 60 days, an eminently reasonable 
amount of time.
    (b) What if claimant waives his/her rights?
    (c)(1)(A) The assumption that a claim will be fully developed if a 
claimant has ``received assistance from a veterans service officer, a 
State or county veterans service officer, an agent, or an attorney'' is 
misplaced. Such representation simply does not ensure that a claim is 
fully developed. The reality is that just as there are service 
officers, agents, and attorneys who are competent and dedicated, there 
also are service officers, agents, and attorneys whose competence and 
knowledge must be questioned. (This is another reason why these folks 
should be required to take, and pass, a certification exam.)
    (c)(1)(B)(2) In addition to said certification being signed by a 
claimant, his/her service representative should also be compelled to 
sign as well, sort of like your accountant does who prepares your 
taxes.
Sec. 108. Study and Report on Employing Medical Professionals to Assist 
        Employees of [the] Veterans Benefits Administration.
    (a) It should be noted that the VBA already uses the services of 
these professionals. And the term ``medical professionals'' ought not 
be repeated four times in the first sentence in this clause.
Sec. 109. Assignment of Temporary Disability Ratings to Qualifying 
        Veterans.
1156. Temporary Disability Ratings.
    VVA endorses the concept of assigning temporary disability ratings. 
Because this provision has the potential for abuse, it must be 
carefully structured and enforced. We do question, though, why a 
``qualifying veteran'' is one who ``has been discharged from active 
duty service for 365 days or less'' [(b)(1)]. Why limit this to 1 year?
    (d)(2) Placing a 30-day time limit for VA personnel to ``review 
each pending claim for disability compensation . . . [to] determine 
whether the claimant submitting each such claim is entitled to a 
partial disability rating'' is a bit restrictive and could prove quite 
onerous and could even hamstring the VA. How many such claims are 
there?
Sec. 110. Review and Enhancement of Use of Information Technology at 
        Veterans Benefits Administration.
    (b)(1) VVA endorses the use of ``rules-based processing and 
information technology systems and automated decision support software 
at all levels of processing claims.'' Appropriate software can, we 
believe, be developed expeditiously--or can be adapted from software 
currently available. Even with the inevitable kinks in introducing such 
IT into the claims adjudicating and rating process, this is an 
initiative that ought to be undertaken. It is past time for the VBA to 
enter the 21st century.
    (b)(3) ``Survivors'' needs to be added to the litany of active-duty 
members of the Armed Forces, veterans, and their dependents.
    (b)(7) VVA is particularly supportive of making available ``on the 
Internet Website of the Department, of a mechanism that can be used by 
a claimant to check on the status of any claim submitted by that 
claimant.''
Sec. 111. Treatment of Claims Upon Death of Claimant.
5121A. Substitution in Case of Death of Claimant.
    (a) VVA endorses the proposal that, if ``a veteran who is a 
claimant dies while a claim for any benefit under a law administered by 
the Secretary is pending and awaiting adjudication, the person who 
would receive any accrued benefits due to the veteran . . . shall be 
treated as the claimant for the purposes of processing the claim to 
completion.'' We believe, however, that placing a cut-off of 1 year 
from the date of the veteran that such person may only submit new 
evidence in support of the claim is too restrictive. For example, it 
can take far longer than 1 year to obtain a copy of a ship's deck log 
for a specific date.
    (b) What if two individuals are eligible?
Title II--Matters Relating to United States Court of Appeals for 
        Veterans Claims.
7288. Annual Report
    (10) With regard to ``the number of cases pending longer than 18 
months,'' the Court should be required to enumerate the reasons why 
these cases have been pending for so long. Simply providing a number 
doesn't tell the whole story.
          POST-HEARING QUESTIONS AND RESPONSES FOR THE RECORD

                                     Committee on Veterans' Affairs
         Subcommittee on Disability Assistance and Memorial Affairs
                                                    Washington, DC.
                                                       May 19, 2008

Mr. Bradley Mayes
Director
Compensation and Pension Service
Veterans Benefits Administration
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW.
Washington, DC 20420

Dear Mr. Mayes:

    Thank you for your appearance before the House Committee on 
Veterans' Affairs Subcommittee on Disability Assistance and Memorial 
Affairs at the ``Legislative Hearing on the Veterans Disability 
Benefits Claims Modernization Act of 2008, H.R. 5892'' held on April 
10, 2008. As noted during the hearing additional questions for the 
record would be provided. Please answer the enclosed questions for the 
record by June 30, 2008.
    In an effort to reduce printing costs, the Committee on Veterans' 
Affairs, in cooperation with the Joint Committee on Printing, is 
implementing some formatting changes for material for all full 
committee and subcommittee hearings. Therefore, it would be appreciated 
if you could provide your answers consecutively on letter size paper, 
single-spaced. In addition, please restate the question in its entirety 
before the answer.
    Due to the delay in receiving mail, please provide your response to 
Ms. Megan Williams by fax at (202) 225-2034. If you have any questions, 
please call (202) 225-3608.

            Sincerely,
                                                       John J. Hall
                                                           Chairman

                                 ______
                                 
                        Questions for the Record
                  The Honorable John J. Hall, Chairman
       Subcommittee on Disability Assistance and Memorial Affairs
                   House Veterans' Affairs Committee
                             April 10, 2008
  Veterans Disability Benefits Claims Modernization Act of 2008, H.R. 
                                  5892
    Question 1: Thank you for sharing the IBM study with us that I 
requested at a previous hearing. Based on their gap analysis the IBM 
consultants made several short- and long-term recommendations that bear 
similarities to many provisions to this bill. Firstly, do you agree 
with all of these recommendations? If so, what are you doing to 
institute the IBM recommendations? What recommendations (if any) don't 
you agree with? Why?
    Response: In concept, the Veterans Benefits Administration (VBA) 
agrees with all of the IBM recommendations. IBM provided a broad 
outline for implementation in the Short Term Action Plan, Long Term 
Action Plan document. VBA is developing a more detailed implementation 
plan and assigning responsibility for each of the short-term 
recommendations to specific staff. Responsibility for the 
recommendations includes developing an implementation approach and 
milestones, obtaining necessary resources/input from other offices, and 
briefing senior VBA leadership on the status of implementation. The 
long-term recommendations are being incorporated as VBA redesigns its 
processing in connection with its paperless initiatives.
    Question 2(a): The studies you have ongoing regarding quality of 
life and earnings capacity losses and transition payments is on a fast-
track for completion by July 2008, as I understand it. These studies 
will be presenting VA with options from which to choose. Do you intend 
to vet those options internally and externally? How will you judge 
their appropriateness, feasibility and effectiveness?
    Response: The Department of Veterans Affairs (VA) will vet options 
presented by the contractor for the payment of quality of life, 
earnings loss, and transition payments internally with those entities 
that would be affected by such a process-altering change, e.g., 
Veterans Health Administration (VHA), VBA, the Office of the General 
Counsel and the Board of Veterans' Appeals (Board). It will be a 
comprehensive task to determine which of the options would be feasible 
to implement, both in terms of training and information technology (IT) 
requirements, and in terms of any statutory or regulatory changes that 
would be required. Once VA identifies feasible options that would best 
serve the needs of veterans, it will be vetted through our external 
stakeholders.
    Question 2(b): In your testimony you mention that reliance on the 
ICD, DSM-IV and AMA Medical Guides will make the rating system 
unnecessarily complex. Yet this is a recommendation of the IOM, the 
VDBC and Dole-Shalala to some extent. How do you reconcile your 
position on readjusting and updating the VASRD with the opinion of so 
many other expert organizations?
    Response: VA has used its Schedule for Rating Disabilities (VASRD), 
with modifications over time, since at least 1933. It contains 
approximately 800 unique diagnostic codes used to identify 
disabilities. The CNA Corporation, in its study for the Institute of 
Medicine and the Veterans' Disability Benefits Commission, found that 
there was ``general parity overall'' when comparing the earnings and 
benefits of disabled male veterans with the earned income of similarly 
situated, non-disabled veterans.
    The ICD and DSM codes are composed of thousands of possible codes. 
We are gathering information concerning the implications of adopting 
such a system; however, we are concerned that increasing the number of 
diagnostic codes in the VASRD would introduce additional complexity 
into the VA disability evaluation system. The Compensation and Pension 
Service recently met with Dr. Robert Rondinelli, Medical Editor of the 
Sixth Edition of the AMA Guides to the Evaluation of Permanent 
Impairment. We also look forward to the findings and recommendations 
from the study of the VA disability compensation system.
    Question 2(c): I know that you have contracted out to study quality 
of life, loss of earnings capacity and transition payments. 
Nonetheless, I still must ask, what is VA's plan for revising and 
updating the VASRD? Do you (VA) not think it needs to be readjusted, 
updated and aligned with modern medical concepts and practices on a 
comprehensive basis?
    Response: The rating schedule is an evolving document, and VA 
understands the need to readjust and update it as medical understanding 
dictates. To that end, we are in the process of recruiting additional 
physicians for our regulations staff to assist in making timely changes 
to the schedule on a regular basis.
    VA fully supports the concept that the VASRD should be current and 
aligned with modern concepts and practices. We are committed to 
achieving that goal. VA is revising the rating schedule as the need 
arises. The rating schedules for 12 of the 16 body systems has 
undergone a comprehensive revision over the past several years, and 
that revision was published in the Federal Register for public comment 
prior to final issue. The rating schedules for the additional body 
systems are either awaiting publication in the Federal Register or are 
in concurrence within VA. Additionally, VA has in concurrence revisions 
to the neurological system schedule for evaluating traumatic brain 
injuries.
    Question 3: It is clear to me that VBA needs to end or revise its 
work credit system immediately. It is task-based, but not outcome-
oriented and seems to the faulty underpinning for the lack of 
accountability in the claims processing system. This may have been a 
good concept at some point, but as the backlog increases and delays 
mount, it is no longer a suitable means to track your work output/
production or success either in processing claims or as a means of 
holding employees or managers accountable. The Veterans Health 
Administration hospitals must comply with several outcomes based 
protocols. Have you looked at how VHA does its oversight or other 
workflow accountability models? Is there any room for adaptability to 
the VBA, especially as you move to a Virtual VA platform and other 
``One VA'' initiatives?
    Response: VA has a process in place to hold both employees and 
regional office directors accountable for work production. Depending on 
their position, employees are responsible for specific tasks within the 
claims process and are evaluated on performance of those tasks. 
Conversely, regional office directors are evaluated on outcome measures 
of station output and quality of total claims processed. VA evaluates 
both individual employee performance and director performance against 
national performance standards established for their respective 
positions.
    We will look at the VHA methods you have mentioned, to determine to 
what extent they are transferable.
    Question 4(a): You disagree with section 107 of the bill indicating 
that section 107(a) is duplicative of what VA is currently doing, which 
was intended to deal with some of the issues surrounding the VA's duty 
to notify--please describe your fast-track procedures. Who uses it and 
how is it activated?
    Response: In certain situations, VA is able to fast-track claims to 
improve the efficiency of benefits delivery. When a Veterans Service 
Center employee reviews evidence submitted with certain claims and 
observes that it is adequate to grant the benefit sought, they can 
immediately refer the claim for a decision. In addition, letters that 
fulfill VA's duty to inform and assist under the Veterans Claims 
Assistance Act (VCAA), as codified at 38 U.S.C. Sec. Sec. 5103 and 
5103A, include attachments describing the evidence or action(s) needed 
to fully develop a claim. The letters also encourage claimants to 
complete and return an enclosed VCAA Notice Response, in which the 
claimant can notify VA that they have no further information to submit, 
and that VA should decide the case as soon as possible, after all 
required development is completed, rather than waiting 30 days, as 
required by regulation. Further, VA routinely expedites applications 
received from such claimants as former prisoners of war, the homeless, 
the terminally ill, and veterans who served in Operation Enduring 
Freedom or Operation Iraqi Freedom.
    Question 4(b): It seems that your main concern with section 107(b) 
is that the court may interpret it to expand VA's duty to assist and 
notify. You inform that there are three types of claims that VBA 
receives. Doesn't it make sense to develop a checklist that is generic 
enough to use for every claim and can be made specific enough to 
properly inform the veteran of what he is expected to give to the VA to 
help adjudicate his claim? I believe your personnel already go through 
a mental checklist in order to develop claims anyway. In fact your 
development is a form of pre-adjudicating because as you stated before, 
if there is enough evidence to rate a claim, you will. When there is 
not, VCAA notice goes and I believe at that point the veteran is 
entitled to and VA should be required to inform what is needed to 
adjudicate the claim.
    Response: The VCAA letter already informs claimants what 
information and evidence is needed to substantiate their claims, as 
well as what claimants need to provide to substantiate their claims and 
what VA will obtain. The letter also asks claimants to provide VA with 
any pertinent evidence in their possession. The computer application 
used to generate the VCAA/development letters creates a checklist for 
VA employees to attach to the claims folder. The checklist summarizes 
the claimant's application, shows the pending type and source of 
development, and shows the date followup action should be taken. The 
checklist is automatically updated each time an employee performs a 
subsequent development action or receives evidence. Development on the 
claim is complete when all of the evidence is either received or the 
time limit for submission of evidence has expired.
    This checklist is not given to the claimant because it would be 
redundant of information already in the VCAA letter. The checklist 
would also require explanation to be meaningful thus lengthening the 
letter. Mandating a checklist that would provide ``a detailed 
description of information or evidence required to be submitted by the 
claimant to substantiate the claim,'' and communicates effectively is 
difficult and could not be provided at the initial point in the claims 
process, when the VCAA requires VA to provide notice, because VA does 
not yet know what kinds of specific evidence are needed to substantiate 
the claim. Also, in light of the recent decision in Vazquez-Flores, 
requiring VA to notify an increased-rating claimant of the criteria 
necessary for a higher rating listed under a previously assigned or 
cross-referenced diagnostic code, when those criteria would not be 
satisfied by the claimant demonstrating that their disability generally 
has worsened or adversely affected his occupation and life, the utility 
of a checklist becomes even more problematic and unlikely to withstand 
court scrutiny.
    Question 5: Would you elaborate on the difference between 
prestabilization and temporary ratings and where I can find the 
authority for each, either in statute or regulations? Would receipt of 
temporary rating impede the final rating process or decision for a 
veteran's claim?
    Response: Prestabilization Ratings: Under 38 CFR Sec. 4.28, VA will 
assign a prestabilization rating of 50 percent or 100 percent for 
severe symptoms of an unstabilized injury or disease or unhealed or 
incompletely healed injury or wound. Prestabilization ratings are 
assigned for the 12-month period immediately following separation from 
military service and provide a period of benefits during which the 
unstabilized or incompletely healed injuries are expected to stabilize 
or heal completely. Prestabilization ratings are provided to assure 
earliest payment to veterans separated from service who have a 
significant disability at a time when they are most likely in need and 
least likely to be self-sufficient. A mandatory examination is to be 
scheduled not earlier than 6 months nor later than 12 months following 
the date of discharge. If, as a result of the examination findings, a 
reduction in evaluation is warranted, the prestabilization evaluation 
will continue until the last day of the 12th month following discharge 
or the expiration of the 60-day period provided under 38 CFR 
Sec. 3.105(e) for reduction in evaluation, whichever is later.
Temporary Total Ratings:

        Hospitalization: Under 38 CFR Sec. 4.29, VA will assign a 
        temporary total evaluation when a service-connected condition 
        requires hospitalization for a period in excess of 21 days for 
        treatment or observation and a 100 percent rating cannot be 
        assigned under other provision of the rating schedule. The 
        temporary total rating is effective the first day of 
        hospitalization and continues through the last day of the month 
        during which hospital discharge occurred. If the treatment 
        during hospitalization requires a period of convalescence, this 
        evaluation may be continued up to 6 months. The effective date 
        of termination of this temporary period of total evaluation is 
        assigned prospectively and not subject to the due process 
        provisions of 38 CFR Sec. 3.105(e).

        Convalescent periods: Under 38 CFR Sec. 4.30, VA will assign a 
        temporary total evaluation, without regard to other provisions 
        of the rating schedule, when it is established by competent 
        medical evidence that a period of convalescence is required 
        following hospital care, surgery or treatment requiring 
        immobilization by cast of one or more major joints, for a 
        service-connected disability. This temporary total evaluation 
        for convalescence is effective the date of hospital admission 
        or outpatient treatment and may be continued for a period of up 
        to 1 year. The effective date of termination of this temporary 
        total evaluation is assigned prospectively and is not subject 
        to the due process provisions of 38 CFR Sec. 3.105(e).

    The assignment of prestabilization ratings or temporary total 
evaluations under either 38 CFR Sec. 4.28, 4.29 or 4.30 creates no 
impediment to the final rating process or decision on a veteran's 
claim.
    Question 6(a): In 2006, approximately 250,000 veterans and 
survivors began receiving compensation, pension, and DIC benefits. Can 
you tell us how many of the total universe of compensation claims 
applications received (approximately 600,000) were denied? How is the 
VA currently keeping track of denied claims? Of the nearly 1 million 
claims you are expecting to receive in FY08, what percentage based on 
past figures do you anticipate will be claims for adjustments and how 
many will be original claims? How will you track the denials?
    Response: We are unable to provide the number of compensation 
claims that were denied in 2006. VA does not track denials because of 
the complicated nature of compensation claims. Claims for service 
connection may be for one disability or many disabilities. When more 
than one disability is claimed, some disabilities may be granted, and 
others denied. A veteran may also reopen a denied claim and provide 
additional evidence that allows VA to grant service-connection. 
Additionally, service connection may be granted, but the evaluation 
assigned is 0 percent or does not result in an increase to the 
veteran's combined evaluation.
    In fiscal year (FY) 2006, VA received more than 806,000 
compensation claims. Of those received 280,000 were original claims 
from first time-filers and 525,000 were reopened claims for increased 
compensation or reconsideration of a previously denied claim. During FY 
2006, VA completed almost 800,000 compensation claims, including 
272,500 original claims and 526,000 reopened claims.
    VA estimates that we will receive approximately 855,000 
compensation claims in FY 2008. In both FY 2006 and FY 2007, 
approximately 35 percent of receipts were original claims. If that 
holds true for FY 2008, we will receive almost 300,000 original claims.
    Question 7: Can you inform whether VETSNET is going to be 
interoperable with DFAS?
    Response: The VETSNET suite of applications currently functions 
independently of DFAS payment systems. Over the past year, both VA and 
DFAS have exchanged access privileges to their respective data systems. 
VA employees can access the DFAS system, and DFAS employees can access 
VA's system. There are also several VA/DFAS data exchanges in place and 
several planned for the future. During the course of a month, VA and 
DFAS exchange several different data files regarding disability 
compensation benefits that military retirees receive. These files are 
used to determine eligibility to VA disability compensation, military 
retired pay, combat-related special compensation (CRSC), concurrent 
receipt disability pay (CRDP), and other benefit programs.
    Future data exchange plans include data files identifying military 
retirees, dependency and indemnity compensation recipients also 
entitled to survivor benefit payments, combat-related disability 
severance pay recipients and CRSC disabilities in VA's system.
    Question 8: You state in your testimony that VA does not support 
section 101 of the bill because VA will accept any reasonable in-
service stressor as long as it appears consistent with the 
circumstances of the veteran's service and if the VA examination and 
other evidence support the decision, establish service-connection on a 
direct basis. I do not think the VA examination is needed to make this 
link of service-connection. If all the other conditions are met under 
section 1154, then according to section 1154, the veteran's injury 
should be presumed to be service-connected if consistent with the 
circumstances, conditions or hardships of service notwithstanding the 
fact that there is no official record of such incurrence or aggravation 
and can only be rebutted by clear and convincing evidence to the 
contrary. I took a look at your M-21-1s pertinent to section 1154 and I 
can only conclude that your interpretation and instructions to your 
employees conflict with the congressional intent of section 1154. Would 
you care to provide some insight on the application of the M-21-1s, 
particularly how even the presence of medals is often not enough to 
prove combat with the enemy? Would you please define what VA interprets 
as ``engaged in combat with the enemy''? Provide supporting documents 
if necessary--i.e. general counsel opinions, etc.
    Response: First, I would like to clarify that my testimony on 
section 101 was given with respect to section 101 of a draft bill, not 
section 101 of H.R. 5892. Section 101 of the draft bill would have 
added post traumatic stress disorder (PTSD) to the statutory list of 
diseases that are presumed to have been incurred in or aggravated by 
service, applicable to any veteran who engaged in combat with the enemy 
in active service during a period of war, campaign, or expedition and 
who is diagnosed with PTSD. Section 101 of H.R. 5892 would provide that 
active duty service in a theater of combat operations during a period 
of war or in combat against a hostile force during a period of 
hostilities be considered ``combat with the enemy'' for purposes of 38 
U.S.C. Sec. 1154(b).
    The purpose of section 1154(b) is to recognize the hardships and 
dangers involved with military combat and acknowledge that military 
recordkeeping during times of combat activity may not be as thorough 
and complete as recordkeeping done at other less stressful times. As a 
result, veterans who engaged in combat with the enemy and file claims 
for service-connected disability related to that combat are not subject 
to the same evidentiary requirements as non-combat veterans. Thus, a 
combat veteran may establish the in-service incurrence or aggravation 
of an injury or disease, for purposes of establishing service 
connection for a resulting disability, with satisfactory lay or other 
evidence if consistent with the circumstances, conditions, or hardships 
of such service. When the claim is based on PTSD, a combat veteran's 
lay statement alone can establish the occurrence of the claimed in-
service stressor that has caused the current symptoms. Nevertheless, to 
establish entitlement to compensation for a service-connected 
disability, more must be shown. The in-service incurrence or 
aggravation of a disease or injury is only one of three elements 
needed. There must also be medical evidence of a current disability and 
medical evidence of a nexus between the in-service disease or injury 
and the current disability. These requirements have been upheld by the 
U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals 
for the Federal Circuit, both of which agree that section 1154(b) 
facilitates the proof of only one element needed to establish 
entitlement to compensation for a service-connected disability.
    VA procedures are consistent with this interpretation of section 
1154(b). Medical evidence, such as a VA examination, is necessary to 
show that there is a current diagnosis of the condition for which 
compensation is sought. In PTSD cases, an examination can establish the 
presence of current PTSD symptoms and provide the required medical link 
between the acknowledged in-service stressor and current PTSD symptoms. 
The examiner must determine whether an in-service stressful event 
actually caused the current PTSD symptoms. For this reason, as well as 
to assess the level of disability for compensation purposes, a VA 
examination may be necessary for service-connected disability 
compensation.
    Furthermore, the procedural manual used by VA to assist employees 
with processing PTSD claims, the M21-1MR, is consistent with section 
1154(b). Although section 1154(b) facilitates the proving of in-service 
incurrence or aggravation of a combat-related injury or disease for 
veterans who engaged in combat with the enemy, it does not facilitate 
proving that a particular veteran did in fact engage in combat with the 
enemy so as to be able to benefit from section 1154(b). The Court of 
Appeals for the Federal Circuit has agreed with this interpretation. 
The manual M21-1MR provides that a veteran's receipt of any of certain 
listed decorations is evidence of exposure to combat-related stressors. 
The manual list includes the Army Combat Infantryman Badge, Combat 
Medical Badge, Combat Action Badge, Combat Action Ribbon, Purple Heart, 
Silver Star, Bronze Star Medal with ``V'' device, and many others. 
Thus, a recipient of one of these decorations can rely on receipt of 
the decoration itself to establish the occurrence of an in-service 
stressor. Medals that are awarded for service in a theater of 
operations, such as the Vietnam Campaign Medal or Iraq Campaign Medal, 
are not proof that the recipient personally participated in combat, but 
may serve as evidence supporting combat status when considered along 
with other evidence.
    If a veteran claims combat status but did not receive one of the 
listed decorations, VA will conduct research on the veteran's military 
unit and seek evidence of any combat activity engaged in by the unit 
during the veteran's service. No claim for disability compensation 
based on combat status, including those for PTSD, will be denied 
without first exhausting all avenues of research for evidence of 
combat. This includes sending an outside request for research to the 
Army and Joint Services Records Research Center.
    Irrespective of whether a veteran establishes that he or she 
engaged in combat with the enemy, VA requires a medical examination to 
determine whether the veteran currently has the disability for which he 
or she filed a claim and whether a link exists between service and the 
veteran's current disability.
    In a precedent opinion issued in 1999, the VA Office of the General 
Counsel defined ``engagement in combat with the enemy'' as 
``participated in events constituting an actual fight or encounter with 
a military foe or hostile unit or instrumentality.'' The Court of 
Appeals for the Federal Circuit sanctioned this definition in Moran v. 
Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008) (``engaged in combat with 
the enemy'' in section 1154 requires that the veteran have personally 
participated in events constituting an actual fight or encounter with a 
military foe or hostile unit or instrumentality, as determined on a 
case-by-case basis).
    Question 9: Please elaborate on your opposition to section 302 and 
how this would negatively impact the BVA. Given the most claims to the 
CVAC begin as pro se wouldn't this provision help these veterans? Be 
mindful that the genesis of provisions pertaining to section 302 come 
from statements and testimony presented by attorneys who ultimately end 
up representing these veterans.
    Response: Again, I want to clarify that section 202 of H.R. 5892, 
which corresponds to section 302 of the draft bill on which VA 
testified at the April 10, 2008, hearing, differs from section 302. 
Section 202 would add to the Veterans Court's powers by enabling the 
court to ``vacate and remand'' a Board decision. Section 202 would also 
condition the Veterans Court's power to affirm, modify, reverse, 
remand, or vacate and remand a Board decision on first deciding all 
relevant assignments of error raised by the appellant for each 
particular claim for benefits, except where the Veterans Court reverses 
a decision on the merits of a claim and awards benefits, in which case 
the court need not decide any additional assignments of error with 
respect to that claim. However, section 202 does not include the 
provision in section 302 of the draft bill that we found most 
objectionable (prohibiting VA from assigning or conceding an error not 
raised by the appellant, without first obtaining the appellant's 
written consent.)
    My April 10, 2008, testimony opposing enactment of section 302 did 
not mention negative impact on the Board. Rather, our concerns focused 
on the court and VA's role before the court. We believe that requiring 
the court to decide every allegation of error raised by the appellant 
would harm rather than help the appellant by unnecessarily delaying the 
court's decision and eliminating the possibility that an issue could be 
resolved in the appellant's favor before being decided by the court. We 
do not see that section 202 would provide any benefit to appellants, 
including the majority who are unrepresented when they file their 
appeals with the Veterans Court. Pro se appellants are more likely to 
raise issues that are not germane to the outcome of their claims, which 
the Veterans Court would be required to address in the event of a 
remand and which, as we explain below, would delay final resolution of 
claim.
    As a result of section 202, the Veterans Court would be required to 
issue longer and more complicated opinions. This would of course 
contribute to the court's backlog. The Veterans Court's caseload has 
doubled in the past 10 years, and it takes approximately 14 months to 
obtain a merits decision on a case. Merits decisions addressing every 
issue raised on appeal by an appellant would significantly extend the 
time from filing to disposition by the court, and final resolution of 
claims would be delayed by court opinions on issues that, in the end, 
may not affect the outcome of the claims.
    Also, when the Veterans Court remands a claim, the underlying Board 
decision is vacated and the claim is adjudicated anew. If the Veterans 
Court were required to decide all issues raised by the appellant, the 
court may be forced to decide an issue adversely, which the appellant 
could not then appeal again to the Veterans Court following the Board's 
decision on remand. However, if the Veterans Court is able to remand 
the case without resolving the issue, the appellant would be allowed to 
present additional evidence and argument on remand and might prevail on 
the issue before the Board.
    In addition, Article III of the Constitution limits Federal-court 
jurisdiction to ``Cases'' and ``Controversies,'' which means there must 
be a real and substantial controversy for which there is specific 
relief that can be provided by a conclusive decree. No justiciable 
``controversy'' exists when parties ask for an advisory opinion, and 
therefore, Federal courts are without power to issue such opinions. St. 
Pierre v. United States, 319 U.S. 41, 42 (1943); Arctic Corner, Inc. v. 
United States, 845 F.2d 999, 1000 (Fed. Cir. 1988) (``At the heart of 
the `case or controversy' requirement is the prohibition against 
advisory opinions.''). The Veterans Court has adopted the case-or-
controversy limitation with respect to its own power to review Board 
decisions. Section 202, however, would require the Veterans Court to 
issue advisory opinions in some cases because section 202 would require 
the court to decide all issues raised by the appellant, including those 
that would not exist if further evidence and argument were developed on 
remand to the Board or those that are frivolous or wholly irrelevant to 
the case.
    Question 10: Can you inform the Committee of the VBA's average cost 
per initial claim and reopened claims? If not, can you provide this 
information?
    Response: Costs would involve such things as employee hours, 
examination costs, facilities, supplies, support personnel, and other 
overhead costs. We do not have the data required to provide these 
calculations.

                                 
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