[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R.
5549, AND DRAFT LEGISLATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JULY 1, 2010
__________
Serial No. 111-89
__________
Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE
58-056 WASHINGTON : 2011
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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
DEBORAH L. HALVORSON, Illinois BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas VERN BUCHANAN, Florida
JOE DONNELLY, Indiana DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia
Malcom A. Shorter, Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
JOHN J. HALL, New York, Chairman
DEBORAH L. HALVORSON, Illinois DOUG LAMBORN, Colorado, Ranking
JOE DONNELLY, Indiana JEFF MILLER, Florida
CIRO D. RODRIGUEZ, Texas BRIAN P. BILBRAY, California
ANN KIRKPATRICK, Arizona
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
__________
July 1, 2010
Page
Legislative Hearing on H.R. 3407, H.R. 3787, H.R. 4541, H.R.
5064, H.R. 5549, and Draft Legislation......................... 1
OPENING STATEMENTS
Chairman John J. Hall............................................ 1
Prepared statement of Chairman Hall.......................... 35
Hon. Doug Lamborn, Ranking Republican Member, prepared statement
of............................................................. 36
WITNESSES
U.S. Department of Veterans Affairs, Thomas J. Pamperin,
Associate Deputy Under Secretary for Policy and Program
Management, Veterans Benefits Administration................... 26
Prepared statement of Mr. Pamperin........................... 50
______
Adler, Hon. John H., a Representative in Congress from the State
of New Jersey.................................................. 5
Prepared statement of Congressman Adler...................... 39
American Legion, Barry A. Searle, Director, Veterans Affairs and
Rehabilitation Commission...................................... 14
Prepared statement of Mr. Searle............................. 45
Disabled American Veterans, John L. Wilson, Assistant National
Legislative Director........................................... 12
Prepared statement of Mr. Wilson............................. 42
Donnelly, Hon. Joe, a Representative in Congress from the State
of Indiana..................................................... 6
Prepared statement of Congressman Donnelly................... 39
Hastings, Hon. Alcee L., a Representative in Congress from the
State of Florida............................................... 3
Prepared statement of Congressman Hastings................... 37
Walz, Hon. Timothy J., a Representative in Congress from the
State of Minnesota............................................. 2
Prepared statement of Congressman Walz....................... 36
Veterans of Foreign Wars of the United States, Eric A. Hilleman,
Director, National Legislative Service......................... 16
Prepared statement of Mr. Hilleman........................... 48
Vietnam Veterans of America, Richard F. Weidman, Executive
Director for Policy and Government Affairs..................... 10
Prepared statement of Mr. Weidman............................ 40
SUBMISSIONS FOR THE RECORD
Association of the United States Navy, Captain Ike Puzon, USN
(Ret.), Director of Government Affairs-Legislation, statement.. 54
Enlisted Association of the National Guard of the United States,
Master Sergeant Michael P. Cline, USA (Ret.), Executive
Director, statement............................................ 57
Military Officers Association of America......................... 60
National Guard Association of the United States, Peter J. Duffy,
Deputy Director Legislation, statement......................... 61
Reserve Officers Association of the United States and Reserve
Enlisted Association, joint statement.......................... 61
The Retired Enlisted Association, Master Sergeant Larry D.
Madison, USAF (Ret.), Legislative Director, Washington Office.. 63
MATERIAL SUBMITTED FOR THE RECORD
Post-Hearing Questions and Responses for the Record:
Hon. John J. Hall, Chairman, and Doug Lamborn, Ranking
Republican, Subcommittee on Disability Assistance and Memorial
Affairs, Committee on Veterans' Affairs, to Thomas Pamperin,
Associate Deputy Under Secretary for Policy and Program
Management, Veterans Benefits Administration, U.S. Department
of Veterans Affairs, letter dated July 21, 2010, and VA
responses...................................................... 66
LEGISLATIVE HEARING ON H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R.
5549, AND DRAFT LEGISLATION
----------
THURSDAY, JULY 1, 2010
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 10:00 a.m., in
Room 334, Cannon House Office Building, Hon. John J. Hall
[Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Donnelly, and Lamborn.
OPENING STATEMENT OF CHAIRMAN HALL
Mr. Hall. Good morning, ladies and gentlemen, would you
please rise and join me for the pledge of allegiance.
[Pledge of Allegiance.]
Mr. Hall. Thank you.
The purpose of today's hearing will be to explore the
policy implications of five bills and one draft measure, H.R.
3407, H.R. 3787, and related draft legislation H.R. 4541, H.R.
5064, and H.R. 5549 that were recently referred to the House
Committee on Veterans' Affairs Disability Assistance and
Memorial Affairs Subcommittee.
Ranking Member, Mr. Lamborn and I, because we understand
there are votes coming shortly, will delay our opening
statements until after our first panel has spoken, because
these are Members who are the authors and sponsors, prime
sponsors of these bills. I know they all have busy days and
other meetings to go to.
So with no further ado, if the Committee doesn't mind we
will go to the Honorable Timothy Walz of Minnesota.
Mr. Walz, you have 5 minutes, your full statement is
already entered for the record.
[The prepared statement of Chairman Hall appears on p. 35.]
STATEMENTS OF HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MINNESOTA; HON. ALCEE L. HASTINGS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA; HON. JOHN
H. ADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW
JERSEY; AND HON. JOE DONNELLY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF INDIANA
STATEMENT OF HON. TIMOTHY J. WALZ
Mr. Walz. Well thank you, Chairman Hall and Ranking Member
Lamborn, Mr. Donnelly, and the staff of this Subcommittee, I
personally thank you for the work you do for our veterans, and
I understand and truly appreciate how much you are making a
difference.
I rise today, and I am here to speak on H.R. 3787, the
``Honor America's Guard and Reserve Retiree Act.''
I have submitted my full statement for the record, so I
will just summarize this.
It may seem like it is a small piece of legislation, but it
is an important one that hinges on honor of your National Guard
and Reserve soldiers who served in uniform.
What this piece of legislation does is, those who
volunteered, wore the uniform, were subject to the uniform code
of military justice, learned their jobs, went to training,
stood on the ready to serve this Nation, but were never called
to long enough periods of Federal active service, they can
still be considered veterans. And I think this is really
important.
We already give them retired pay, they already have access
to TRICARE, they can already be buried in a military--a veteran
cemetery, but what it does is, is it gives them the honor of
being ready. These are our true minutemen. They are the ones
that serve on the ready.
I was speaking briefly with a representative of the
Minnesota National Guard, Colonel Eric Ahlness who is here
today, and we had devastating tornados in Minnesota 2 weeks
ago, and I was out there the following morning, and already
throughout the entire night our young National Guard soldiers
were on duty where power lines were down helping the injured,
removing debris.
Those soldiers can be called up to tornados, to floods, to
other things. But they are not considered veterans. So what
this piece of legislation does is it honors that service.
The conclusions by the Congressional Research Service (CRS)
and the U.S. Department of Veterans Affairs (VA) is this is at
no cost to the Federal Government. The benefits are already
there, it doesn't change any of those. We have the unending
support.
As I always say, we always come to this room backed by
those who know best. The Veterans of Foreign Wars (VFW), the
Disabled American Veterans (DAV), the organizations that
support this, and we think it is clear, I think--my friend
Larry Madison is here, he served 31 years in uniform, and now
works making sure that we take care of our veterans. Larry has
earned the right to be called a veteran, and I hope the rest of
you would stand in support of this.
I think it is incredibly important. They have raised their
hand, they did what was needed, and now this Nation can honor
them and allow us to pay back those respects.
So Chairman Hall, I thank you again for all the work you
do. I thank you for considering this piece of legislation and
to the staff that made it possible, and I would certainly
encourage my colleagues to join me in honoring those Guard
retirees for the service they gave us.
And I yield back.
[The prepared statement of Congressman Walz appears on p.
36.]
Mr. Hall. Thank you, Mr. Walz.
Mr. Hastings? The Honorable Alcee Hastings of Florida, you
are recognized for 5 minutes.
STATEMENT OF HON. ALCEE L. HASTINGS
Mr. Hastings. Thank you very much, Chairman Hall and
Ranking Member Lamborn and other Members, and I wish to echo
the sentiments of my colleague and good friend, Mr. Walz, in
thanking you, the staff, and all for holding this hearing and
for the incredible work that you do on behalf of all of us.
I would ask unanimous consent that my full statement be
made in the record, and try to be as brief as Mr. Walz was.
I am here to testify regarding H.R. 4541, the ``Veterans
Pension Protection Act of 2010.''
Before I begin I would like to welcome and recognize the
veterans in the room today and express my gratitude for their
service to our Nation. Each of you has made a difference in the
history of our Nation and in the lives of so many. And I would
also like to thank the veterans' organizations for their
constant hard work improving veterans' lives and for appearing
before the Subcommittee today.
In the spring of 2009, one of my constituents, a Navy
veteran with muscular dystrophy, reached out to the district
office that I am privileged to serve in desperate need of
assistance.
The Department of Veterans Affairs had abruptly canceled
his pension and he had fallen below the poverty line. Unable to
pay for daily expenses, unable to meet his mortgage payments,
Carey Scriber was on the verge of losing his home and joining
the ranks of the 100,000 homeless veterans in our Nation.
Mr. Scriber didn't break any law, nor did he commit any
crime.
In March of 2008 he was hit by a truck when crossing the
street in his wheelchair, along with his service dog.
Mr. Scriber was on his way to the pharmacy. Persons who saw
it, and he said, that he went 10 feet into the air, landed
head-first into the pavement, and suffered numerous injuries,
as well as his service dog was injured and his wheelchair was
destroyed.
As a law-abiding citizen, he reported to the Veterans
Administration the insurance settlement payment that he
received from the driver's insurance ought to cover his medical
expenses and other replacement costs of his wheelchair. As a
result, the VA cancelled his pension benefits for an entire
year.
And I might add, they did that in 2 days after he made the
assertion to them regarding his receipt of the insurance
settlement.
You know the particulars of how veterans are assessed, and
I will skip through that, it is in my full record.
Under the current law, if a veteran is seriously injured in
an accident or is the victim of a theft and receives insurance
compensation to cover his or her medical expenses, the
replacement cost of the stolen items, or for pain and
suffering, he or she will likely lose their pension as a
result. This means that the law effectively punishes veterans
when they suffer from such an accident or theft.
Mr. Scriber reached out to the VA several times asking to
have his pension reinstated and pointed to the particulars
having to do with his circumstances, and each time they refused
to reinstate his pension. This is when I became personally
involved. I contacted the West Palm Beach VA Medical Center,
wrote several letters to Secretary Shinseki, and I do quarrel
with the bureaucracy. I recall very vividly that the first
letter that I wrote to him was in August, the second was in
October, and the third, that was a scathing letter, was in
February, not having heard from the Department.
And I understand that secretaries have an extraordinary
amount of work to do, but too often the bureaucracy, not only
in Veterans Affairs, but in our country, don't respond to
inquiries appropriately. And I am distraught that they can
cancel the pensions of unemployed and disabled veterans without
further notice.
In my view, the VA has a moral responsibility to care for
our veterans and ensure that they live decent lives. After
serving our Nation as valiantly as they have, they deserve no
less than the very best benefits. No veterans should be unable
to pay their medical bills, unable to get the care that they
need, or be in a situation where they could lose their home
because they had an accident and told somebody that they got
the money and then find that they are losing their pension. It
is unacceptable and this is why I introduced this legislation.
This is companion legislation. Our friend and colleague in
the Senate, Mr. Tester of Montana, introduced this provision
last month, we have 45 co-sponsors, and I am fully cognizant,
Mr. Chairman and Mr. Lamborn and other Members, of the backlog
of claims filed by those who serve in uniform and the fact that
it is growing, and I understand these difficulties, but I
refuse, as I am sure you will, to let them overtake our
veterans' well being.
The VA must ensure that no veterans are left behind like
Mr. Scriber was. There is clearly something wrong with the law
that allows for the circumstances that I just described to you.
My full record is in the record, Mr. Chairman. I ask that
for the support of the Committee, and that concludes my
testimony, and I would be pleased to answer any question you
may have, and I thank you for the opportunity to appear.
[The prepared statement of Congressman Hastings appears on
p. 37.]
Mr. Hall. Thank you, Mr. Hastings, and thank you for this
common sense piece of legislation, and I think all of us are
amazed at how slowly the VA moves a lot of the time, but how
quickly they moved in in this instance to cancel a pension. It
is certainly something that we will look into.
Mr. Adler, the Honorable representative from New Jersey.
STATEMENT OF HON. JOHN H. ADLER
Mr. Adler. Mr. Chairman, I thank you, I thank the Ranking
Member, Mr. Lamborn, I thank the Members of the Subcommittee
and the staff for the opportunity to testify on behalf of H.R.
5064, the ``Fair Access to Veterans' Benefits Act.''
The need for H.R. 5064 came from a Federal Appeals Court
ruling in which a Korean War veteran, David Henderson, who
suffers from paranoid schizophrenia, was denied benefits
because his appeal was filed 15 days late. The deadline that
Mr. Henderson missed was one that required filing an appeal
within 120 days of the final notice from the Board of Veterans'
Appeals (BVA), the highest administrative authority in the
claims process.
Mr. Henderson appealed to the U.S. Court of Appeals for
Veterans Claims (CAVC), but he filed his appeal 15 days late.
He tried, but failed, to get the Court to reconsider, arguing
that his service-connected disability caused him to miss the
deadline. The Veterans Court rejected his argument and the U.S.
Court of Appeals for the Federal Circuit Court agreed, in
Henderson v. Shinseki, that the Veterans Court was right to
reject a late appeal.
My bill would require the U.S. Court of Appeals for
Veterans' Claims to hear appeals by veterans of administrative
decisions denying them benefits when circumstances beyond the
veterans control render them unable to meet the deadline for
filing an appeal.
``Fair Access to Veterans' Benefits Act'' would require the
U.S Court of Appeals for Veterans Claims to excuse late filings
if the veteran demonstrates good cause so that meritorious
benefits claims are not denied their day in Court.
This bill also requires the Court of Appeals for Veterans
Claims to reinstate untimely appeals already dismissed as a
result of the Court's failure to toll the filing period for
good cause.
The veterans claims process is extremely difficult to
navigate, especially when doing so without the aid of an
attorney or while suffering from a mental disability.
While the Court of Appeals for Veterans Claims was intended
to be informal and fair, the imposition of rigid deadlines has
resulted in the denial of benefits for many veterans.
Oftentimes, the reason these veterans missed the filing
deadline was because of the very service-connected disabilities
that should entitle them to the benefits they are seeking.
It is my hope that H.R. 5064 will help ensure that no
veteran is denied disability benefits simply because they have
missed an arbitrary rigid deadline.
I would again like to thank Chairman Hall, Ranking Member
Lamborn, and Members of the Subcommittee for allowing me to
testify on this important matter.
I, like the others, would be happy to answer any questions
you may have.
[The prepared statement of Congressman Adler appears on p.
39.]
Mr. Hall. Thank you, Mr. Adler.
Now I will recognize the Honorable Joe Donnelly,
Congressman from Indiana.
STATEMENT OF HON. JOE DONNELLY
Mr. Donnelly. Thank you, Mr. Chairman and Ranking Member
Lamborn, and I want to thank my colleagues for being here with
us today too. Thanks for the opportunity to discuss this bill
before the Subcommittee today.
And I want to give my gratitude to the veterans for the
service they have given and for all the help the veterans
service organizations (VSOs) have given us with these pieces of
legislation.
After closely working with the Iraq and Afghanistan
Veterans of America (IAVA) and the Disabled American Veterans,
H.R. 5549, ``The Rating and Processing Individuals' Disability
Claims Act,'' or the ``RAPID Claims Act,'' was introduced by
myself, along with Chairman Hall. The goal of the ``RAPID
Claims Act'' is to improve the disability claims process for
our Nation's veterans, something we all agree is necessary.
In 2008, Congress passed the Veterans' Benefits Improvement
Act, and included in the bill was the Fully Developed Claim, or
the FDC pilot program. This allows veterans to Fully Developed
Claims, and they can waive the lengthy development period and
receive expedited consideration.
FDC was originally a 1-year pilot program conducted at 10
VA Regional Offices (ROs). Due to its significant success, VA
recently announced that it is going to implement the program
nationwide.
I support this decision to roll out the program nationwide;
however, I would like to see FDC become law with a couple of
small improvements.
The ``RAPID Claims Act'' would codify FDC while also
modifying it to protect a veteran's effective date for
disability compensation and ensuring the veteran who mistakenly
files an unsubstantially complete claim in FDC is given fair
notice what further evidence might be needed to complete the
claim.
When participating in the normal claims process, a veteran
can submit a claim at any time, marking the claim's effective
date, and the veteran still has up to a year to gather
evidence. However, a veteran seeking to participate in FDC may
gather evidence independently, preventing an establishment of
an effective date for that veteran's disability compensation.
This evidence period can take months or up to a year, costing a
veteran hundreds or even thousands of dollars in missed
benefits.
The ``RAPID Claims Act'' allows a veteran gathering
evidence for a Fully Developed Claim to mark an effective date
for his or her compensation by notifying VA that a Fully
Developed Claim is forthcoming. Marking this effective date
would help ensure that the vet's compensation is made
retroactive to an appropriate date.
Additionally, some vets will submit claims through FDC that
VA will decide do not qualify for the program for a number of
reasons, including missing evidence. If VA determines that a
claim submitted through FDC is ineligible, I am concerned that
the Veterans Administration may not immediately notify the
veteran of what else is needed to substantiate his or her
claim. If VA processes the claim before notifying the veteran,
this could lead to incomplete and unsatisfactory results.
The ``RAPID Claims Act'' would modify FDC to require VA to
notify and assist the veteran to help substantiate such claims.
Finally, the ``RAPID Claims Act'' also has a provision
targeted at the appeals process. This bill would require that
the VA appeals form is included with the Notice of Decision
letter, instead of waiting for a veteran to exercise his or her
appeal rights before sending the form to the veteran. This is a
simple courtesy the VA could extend to our Nation's veterans.
Once again, thank you Chairman Hall, Ranking Member
Lamborn, and all of my colleagues for the opportunity today to
highlight what I think are simple solutions to help improve the
disability claims process for our veterans.
We have worked hard to achieve much on behalf of our
veterans in recent years, and there is also further steps that
we can continue to take to help them even more. They certainly
deserve our very best.
Thank you, Mr. Chairman.
[The prepared statement of Congressman Donnelly appears on
p. 39.]
Mr. Hall. Thank you, Mr. Donnelly.
We also will be considering when we get to our next panels,
another piece of legislation that is sponsored by Mr. Buyer,
who is unable to be here to discuss it with us right now.
But before we have the votes called, we will ask a couple
of quick questions, if we may. I have one for Mr. Walz.
In your testimony you stated that the sole purpose of this
legislation is to grant veteran status to those who have been
denied up to this point and to avoid having, in your words,
second class veteran status.
Could you elaborate what you mean by this statement? And is
it your intention to provide these veterans with any benefits
to which they are not already entitled?
Mr. Walz. No. Thank you, Chairman Hall.
No, there are no added benefits that would be here other
than the honor of being called veterans. These are folks that
did 20 years, attended their annual trainings, attended their
schooling that they needed to that were all under the exact
same requirements of active-duty forces, but because they were
under--the way it is titled under title 38, section 101(2), the
definition of a veteran consists of if they did that certain
period of time on Federal service, and many of those veterans
did not.
There was a tendency, and some of the folks in this room
understand, there was a tendency to fall a day or so under that
prescribed amount at one time, so we have a lot of veterans
that did that.
And my point on the--I don't think it is asking so much
that on a Veterans' Day event that these folk can fully
participate being veterans, render a hand salute when the
National Anthem is played, and consider themselves amongst
their colleagues who serve. They were the true minutemen, they
were on the ready.
There is no additional cost, CRS. And we are certainly
willing to work with the Subcommittee if anything should come
up. The VA itself had said there would be no more additional
benefits offered, no cost to the government.
It is just--to me though it is the honorable, the right
thing to do to make sure we move these citizens, especially
with the current reliance on the National Guard and Reserve, of
understanding at any given time any one of these folks could
have been and would have honorably served.
Mr. Hall. Thank you, Mr. Walz.
Mr. Hastings, we greatly appreciate your sharing Mr.
Scriber's story with us.
What pitfalls, if any, do you think this legislation has
that would fail to meet the needs of people such as Mr. Scriber
or could cause them any increased burden?
Mr. Hastings. Well it is really specific, Mr. Chairman, and
addresses accidents, thefts, or casualty loss from being
included in the determination of a veteran's income.
If anything, I would think that there may be other kinds of
situations that veterans might bring to the attention of VA
regarding their impact on their pensions from outside income. I
would think if a veteran hit the lottery, that might be an
entirely proposition. However, feeling very strongly about it,
I don't think that should impact the person's right to receive
their pension, and certainly not for accidents.
The overall set of circumstances, if there is to be a
pitfall, would likely be that most veterans would not be made
aware of a law if we can, as I indicated, Mr. Tester filed it
on the Senate side, and if it does become law, then I hope that
there is early notice. Because I have a suspicion with the
number of claims that veterans can bring about--let us use the
Gulf for example right now, the number of veterans that are in
the fishing business that may receive some kind of
compensation, what are they supposed to do? If they report it
and they are already marginal in terms of whether or not they
are near the poverty line as it were, then are their pension
benefits going to be cut off?
So there is some other things to look at, but ours states a
specific within the realm of casualty, theft, and accident.
Mr. Hall. So it is basically reimbursement----
Mr. Hastings. Yes, sir.
Mr. Hall [continuing]. For medical expenses or loss due to
theft?
Mr. Hastings. That is correct.
Mr. Hall. Thank you so much.
Mr. Adler, we understand that the veterans' claims and
appeals processes are difficult to navigate and need to have
major improvements made to them.
With that said, you mentioned in your testimony that the
Court of Appeals for Veterans Claims can reinstate untimely
appeals that have already been dismissed based on the Court's
failure to toll the filing period for good cause.
Please explain to us how you believe the Court can fairly
determine which appeals should rightly be reinstated for good
cause versus those that simply miss the deadline for another
reason.
In other words, how can we believe that a windfall effect
can be avoided adding to the further delays in appeals?
Mr. Adler. Mr. Chairman, thank you for the question. I
don't think it is a windfall effect, it is a question of making
sure that people who are truly entitled have access to the
right litigation process, right appeals process so they can
have their appeals considered.
This case with Mr. Henderson was a guy that was 100-percent
disabled because of mental incapacity suffered during his
service in the Korean War, 100-percent disability. He wanted to
have a bump up from out of home care to in-home care because of
his disability. Apparently his mental incapacity rendered him
unable to file in a timely way his claim.
I think our courts traditionally have been just, but
tempered with mercy, and I think that is all we are asking here
is for a veteran who is going to win to have a chance to have
that appeal considered. If, in fact, he is not going to win, it
will be denied on the merits, but I would hate to have a timing
issue block fair consideration of a change in his disability
status.
Mr. Hall. Thank you. I think that is something our later
panels may help us address. I mean 100-percent disability for a
psychological or psychiatric condition, there is no question I
think that your proposal is a good one and clear.
The question is, what level, I think the Court will
probably need to define when the disability is sufficient to
justify delaying the deadline.
Let me just move quickly to Mr. Donnelly for one question
and then turn it over to the Ranking Member.
Mr. Donnelly, your testimony highlights the risk that some
veterans may submit Fully Developed Claims without providing
all necessary evidence.
Can you expand upon the steps that VA would be required to
take when informing veterans of insubstantial claims prior to
processing it? Are you suggesting that the VA include a
checklist?
Mr. Donnelly. Well, it explicitly requires the VA to notify
a vet within 30 days if it determines that this is an
incomplete claim, and they would be required to revert back to
notification and assistance regulations under the Veterans'
Claims Assistance Act (VCAA).
So it is just a continuing way to try to be in front with
the vet and be helpful to them.
Mr. Hall. Thank you. Mr. Lamborn?
Mr. Lamborn. Well, Mr. Chairman, I think each of the people
presenting their bills has done a good job of explaining it and
these are well considered bills that I intend to support.
So in the interest of saving time as well I am just going
to refrain from questions for now. But I thank each of them for
appearing and for presenting their bills.
Mr. Hall. You ousted Mr. Walz in brevity, so
congratulations. Thank you, Mr. Lamborn.
I have one more question for Mr. Donnelly since there is
time before these votes are called, which is I am always the
guy that talks longer than anything else, so I am maintaining
my consistency.
Mr. Donnelly, pertaining to your legislation, the date that
a claim is filed is considered the effective date, and upon its
approval the claimant receives benefits retroactively.
The ``RAPID Claims Act'' that you are proposing would
provide, among other things, a way for veterans to signal the
intent of filing an FDC, a Fully Developed Claim, while being
able to file an informal claim to protect the effective date.
Do you foresee any shortcomings or potential exploitations
or confusion to such a system, and would there be a way to
avoid them, such as veterans filing meritless claims and then
using FDC?
Mr. Donnelly. I think what this does is drop a marker down.
And from what we have seen in other voluntary programs, I think
in regards to claims that have been reviewed with findings that
95 percent were exactly what they were supposed to be.
When we give the benefit of the doubt we give the benefit
of the doubt to the veteran, and that is what we are doing
here, is giving them a chance to put a marker down so that in
their diligence and in their work they don't look up and find
themselves 60 days further behind.
So I don't see that there will be any abuse in this
process.
Mr. Hall. Thank you, Mr. Donnelly.
I would like to thank our first panel, Mr. Walz, Mr.
Hastings, Mr. Adler, Mr. Donnelly, for the legislation and the
work that you have done bringing these bills forward, and thank
you for testifying. You are now excused.
And we would ask the changing of the guard, our second
panel to join us, please. Richard Weidman, Executive Director
for Policy and Government Affairs of the Vietnam Veterans of
America (VVA); John L. Wilson, Assistant National Legislative
Director, Disabled American Veterans; Barry A. Searle, the
Director of Veterans Affairs and Rehabilitation Commission for
the American Legion; and Eric A. Hilleman, Director, National
Legislative Service, Veterans of Foreign Wars of the United
States.
Gentlemen, thank you so much for joining us. We will try to
get through as much of this testimony as we can, and if the
bell rings we will have to recess and come back. But we will
start with Mr. Weidman, you are recognized for 5 minutes.
STATEMENTS OF RICHARD F. WEIDMAN, EXECUTIVE DIRECTOR FOR POLICY
AND GOVERNMENT AFFAIRS, VIETNAM VETERANS OF AMERICA; JOHN L.
WILSON, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED
AMERICAN VETERANS; BARRY A. SEARLE, DIRECTOR, VETERANS AFFAIRS
AND REHABILITATION COMMISSION, AMERICAN LEGION; AND ERIC A.
HILLEMAN, DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF
FOREIGN WARS OF THE UNITED STATES
STATEMENT OF RICHARD F. WEIDMAN
Mr. Weidman. Mr. Chairman, thank you very much for the
opportunity to present testimony here this morning. I will take
them in numerical order.
H.R. 3407, the ``Severely Injured Veteran Benefits
Improvement Act.''
First and foremost from our point of view, there was a good
deal of need that was answered by the Caregivers Act which you
all passed earlier this year, and that addressed the needs of a
single generation.
This Committee historically has always sought to have
equity between the generations, and the only problem with the
Caregivers
Act, was that it ignored the fact that caregivers of Vietnam
generation, Korean generation, and World War II generation were
not eligible for this kind, and it provide extraordinary
service to country over many, many years.
In addition to that all of those older generations of
veterans are just that, getting older. And so this increase
from our point of view will bring some degree of equity back
into the situation for those older care providers.
Do I need to stop, Mr. Chairman?
Mr. Hall. No, that is okay, you can continue your
testimony. We have 13 minutes to go,
Mr. Weidman. Actually, I have 3 minutes and 43 seconds.
Mr. Hall. You may finish your statement and we will
probably hear one other witness before we recess.
Mr. Weidman. Very good, sir.
Anyway, we are very much in favor of this, and VA's
objections to it we find unpersuasive and in the extreme.
Same with--it does something very important, which is
recognize that people with severe burns and traumatic brain
injury (TBI) need adaptive equipment and access to automobiles,
and we thank Mr. Buyer for addressing that as well in this bill
and all of co-sponsors from both sides of the aisle.
So we believe that it takes a somewhat different approach
than the Caregivers Act, but it is something that is needed and
will restore some degree of equity to the situation between the
generations.
The ``Honor America's Guard and Reserve Retirees Act.''
When I served on active duty in the U.S. military, there was a
dramatic difference between those of us who served on active
duty and those who served in the Guard and Reserve, but that
was in a long, long time ago in a country very far away called
the 1960s, and we are no longer there today.
I believe Congressman Walz is right on the money, is that
being subject to being activated at any given time is something
that all of the Guard and Reserve are subject to today, and it
is materially different than it was at an earlier time.
So we favor the ``Honor America's Guard and Reserve
Retirees Act.''
The ``Veterans Pension Protection Act'' is just simply good
common sense and provides the latitude to make sure that one
time payments are not--then don't turn around and exclude
people from non service-connected pension.
Frankly, some of the VA's testimony is a little surprising,
and sometimes they wonder why the veterans, community, and
others regard them as mean spirited, and it comes across as
mean spirited, whether that is the intent or not. That if an
individual gets a pain and suffering settlement as a result of
being run over by a truck when you are in your wheelchair and
then you are going to strip the guy of his pension, we think
that is just nuts and is not humane and is not in the best
tradition of either the VA or the United States of America.
H.R. 5549, the ``Rating and Processing Individuals'
Disability Claims Act,'' or the ``RAPID Claims Act.'' We think
it is well thought out, it is simple like most things that will
be useful, it conforms to the military axiom of KISS, Keep It
Simple Soldier, some use a different ``S'' for the last word,
but any way it works. And we favor passage, it can only help.
H.R. 5064, the ``Fair Access To Veterans Benefits Act.''
Once again it is just common sense. If an individual is not
intellectually capable of recognizing that a deadline is hard
and fast because of schizophrenia, that first onset of which
was in the military, then shame on the Court and shame on the
Board for not allowing the individual additional time.
We also would note that VA's attitude when they take
sometimes literally years to make basic decisions is la-di-dah,
you will just have to wait. But you can't extend it for I
believe it was 22 days in a particular incident cited for the
individual veteran who is incapable of recognizing the
importance of it?
I think that this will provide the latitude that will allow
the Court to render more just decisions, and I thank Committee
for considering it, and we favor early enactment.
Thank you again, Mr. Chairman. I would be happy to answer
any questions.
[The prepared statement of Mr. Weidman appears on p. 40.]
Mr. Hall. Thank you, sir.
Mr. Wilson.
STATEMENT OF JOHN L. WILSON
Mr. Wilson. Mr. Chairman and Members of the Subcommittee,
good morning. I am pleased to have this opportunity to appear
before you on behalf of Disabled American Veterans to address
legislation under consideration today. There are four bills I
will address in my oral remarks this morning.
First, H.R. 3407, the ``Severely Injured Veterans Benefit
Improvement Act of 2009.'' I will address one of its several
provisions, which is the expansion of eligibility for
automobile and adaptive equipment grants to disabled veterans
and members of the Armed Forces with severe burn injuries.
DAV supports the expansion of this important benefit to
those with severe burns.
We also want to raise a related issue of the adequacy of
automobile and adaptive equipment grants themselves. Because
benefit adjustments have not kept pace with increasing costs of
automobiles over the past 53 years, the value of the allowance
has been substantially eroded.
Today the current $11,000 automobile allowance represents
only 39 percent of the average cost of a larger sedan, which is
typically necessary for such veterans.
To restore equity between the cost of a new vehicle and the
allowance, based on 80 percent of the average cost, the amount
would rise from $11,000 to $22,800.
In accordance with The Independent Budget and DAV
Resolution 171, our recommendation is that Congress increase
the automobile allowance to 80 percent of the average cost of a
new automobile today.
Second, H.R. 5064, the ``Fair Access to Veterans Benefits
Act of 2010,'' which would provide for the equitable tolling of
the timing of review for appeals of final decisions of the
Board of Veterans' Appeals.
Current law does not provide for equitable tolling of the
appeal period if a veteran is physically or mentally
incapacitated and is thus unable to file, as has been
previously indicated. Yet, it is the very disabilities that may
significantly impact a veteran's ability to file the appeal
paperwork in the first place.
DAV certainly supports this legislation to allow good cause
equitable tolling for issues such as physical or mental
incapacities.
Third, H.R. 5549, the ``RAPID Claims Act,'' which would
expedite those claims certified as fully developed for
claimants who waive the development period. If the claimant
submits a written notice of their intent to submit a Fully
Developed Claim and then does so within 365 days of that
notice, the Secretary will accept the then formal claim using
the date of the informal claim. That would protect the
effective date and save them substantial amounts of time as
previously indicated.
In addition, this bill reinstates VA's duty to assist when
VA deems a claim is not ready to rate and moves it into the
traditional claims process, requiring VA to then notify the
claimant accordingly.
DAV was pleased to work with Congressman Donnelly, and add
provisions that strengthen protections for veterans, and we
support this important legislation.
VA recently rolled out the Fully Developed Claim or FDC
program, which as previously indicated, was mandated by
Congress under Public Law 110-389, and seeks to expedite claims
that are ready to rate. However, VA's FDC program was missing
key protections for veterans that H.R. 5549 offers.
VA has since added to the FDC program a provision so
veterans can file an informal claim to protect their effective
date before submitting the formal FDC application.
We also want to be assured by VA however that when a claim
is not ready to rate and, therefore, no longer eligible for the
FDC program, that VA will inform the veteran accordingly.
We are pleased that H.R. 5549 directs VA to inform the
claimant should their claim be returned to the normal claims
process, and we support this legislation as I previously
indicated.
Fourth, I would like to clarify my remarks in my written
statement regarding the amendment in nature of a substitute
offered by Mr. Walz to H.R. 3787. This amendment clearly
addresses our concerns, which was the extension of veteran
status to individuals who had completed 20 years of military
service and reserve status potentially leading to later efforts
to extend benefits to these newly defined veterans. This
potential for the expansion of benefits could then negatively
impact the benefits available to veterans, their dependents,
and survivors as currently defined.
Since that amendment excludes access to such benefits, it
resolves our concern with the original bill.
Mr. Chairman, we are pleased with the interest that
Congress has shown as oversight of the benefits delivery
process, we also applaud the Veterans Benefits Administration's
(VBA's) openness and outreach to VSOs and incorporation of our
suggestions to accept informal claims into the FDA program.
However, we remain concerned about their failure to integrate
us into their reform efforts or solicit our input at the
beginning of the process.
This is a mistake for a number of reasons. VSOs not only
bring vast experience and expertise about claims processing,
but our local and national service officers hold power of
attorney for hundreds of thousands of veterans and their
families. In this capacity, we are an integral component of the
claims process. We make VBA's job easier by helping veterans
prepare and submit better claims, thereby requiring less time
and resources for VBA to develop and adjudicate claims. We
would like to see ourselves more actively involved in each of
these new processes and new pilots as they come on Board.
I would be glad to answer any questions may have, sir.
[The prepared statement of Mr. Wilson appears on p. 42.]
Mr. Hall. Thank you, Mr. Wilson.
We have a few minutes left in the vote across the street,
so at this point we will recess the hearing, and when we come
back we will hear from Mr. Searle and Mr. Hilleman.
This meeting is in recess.
[Recess.]
Mr. Hall. The Subcommittee on Disability Assistance and
Memorial Affairs will resume our hearing on pieces of
legislation, which we have already been discussing. And I
apologize for whoever it is that makes the schedules and calls
these votes when we have important business to do.
Mr. Barry Searle from the American Legion, you are
recognized for 5 minutes.
STATEMENT OF BARRY A. SEARLE
Mr. Searle. Thank you for the opportunity to present the
views of the American Legion on several important topics. H.R.
3407. The American Legion is well-known for its advocacy for
veterans. We feel that all veterans, but particularly severely
injured veterans and those who have received the Purple Heart
deserve our utmost respect and have earned the thanks of a
grateful Nation.
We who do not on a daily basis contend with injuries both
physical and psychological, which were received due to selfless
service to this Nation, can never fully repay these severely
injured heroes.
H.R. 3407 focuses on increased compensation for disabled
veterans and recipients of the Purple Heart. It further adds
traumatic brain injury for eligibility for aid and attendance
benefits, and severe burn injuries for both veterans and
active-duty members for adaptive equipment to automobiles, and
extends the provisions of an existing pension for certain
hospitalized veterans.
Traumatic Brain Injury, the signature wound of Iraq and
Afghanistan, along with severe burns, are a legacy of the
tactics being conducted by our enemies in Iraq and Afghanistan.
The improvised explosive device (IED) is a weapon of choice for
our enemy and is insidious in its utilization and often even
more devastating in its long-term effects than gunshots due to
the multiple wounds, concussion, and burns it produces.
Terrible scars and the attending loss of appendages and
range of motion due to the fires resulting in an IED explosion
are a life-long sacrifice our veterans and military personnel
must endure as a result of service to the Nation.
The American Legion believes that these warriors have
suffered, and will continue to suffer, for their entire life
and should not be forced to pay for daily attendance or
adaptive equipment necessary to bring some normalcy to their
life upon their return.
H.R. 3407 authorizes the VA Secretary to increase monthly
special pension for recipients of the Congressional Medal of
Honor.
The American Legion feels that these recipients are a
special class of veteran. These recipients have given this
Nation conspicuous gallantry above and beyond the call of duty.
The American Legion supports H.R. 3407.
H.R. 3787, to amend title 38 U.S. Code to deem certain
service and Reserve components as active duty service for
purposes of laws administered by the Secretary of Veterans
Affairs, and H.R. 4541, the ``Veterans Pensions Protection Act
of 2010.''
The American Legion has no position on either of these
legislations.
H.R. 5064, the ``Fair Access to Veterans Benefits Act of
2010.'' This bill impacts the issue of equitable tolling, a
principle of tort law stating a statute of limitations will not
bar a claim if despite use of due diligence the plaintiff did
not or could not discover the injury until after expiration of
the limitations period.
Currently the appellant has 120 days from the date of
notice of the final decision of the Board of Veterans' Appeals
is mailed to file a notice of appeal to the United States Court
of Appeals.
A Supreme Court ruling on an unrelated matter rendered its
decision that the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement and thus could not
be waived.
On 24 July, 2008, the Court of Appeals for Veterans Claims
ruled in a two to one decision that this ruling prohibited from
using equitable tolling to extend the 120-day appeal period.
The American Legion supports proposed legislation that
would allow the CAVC to apply equitable tolling in certain
situations, especially in such instances where the veterans
service-connected disability hindered the filing of a timely
appeal.
The American Legion supports H.R. 5064.
H.R. 5549. H.R. 5549 allows for the waiver of a claim
development by VA in those cases where a veteran certifies that
he or she has submitted a Fully Developed Claim.
While this measure stands to potentially increase the speed
with which a veteran may receive benefits, there are still
concerns about this legislation.
The American Legion supports efforts to streamline the
claims process and to fast track those claims where additional
work is unnecessary. However, it is essential that the veterans
ensure and fully understand what is being asked of them when
they submit these waivers.
The American Legion believes that there must be further
clarification on what mechanism is provided by H.R. 5549 to
protect a veteran in situations where a veteran may erroneously
believe, and therefore, certify, that all necessary development
has been performed on a claim.
It is critical that the veteran be entitled to return to
the traditional claims or general population process at any
point when it becomes clear that the claim is in fact not fully
developed. In this way the rights of the veteran would be
protected while allowing more speed in processing.
It is understood that the veteran has a right to file a
notice of disagreement with a decision and enter into an
appeals process; however, this would delay the claim as it
moves through another backlogged system and, therefore, defeat
the purpose of the original intent of H.R. 5549, to expedite
accurate decisions of original claims.
In short, there are still concerns about the implementation
of the measure such as this and how it will affect veterans.
The American Legion would like to see more clarification
and assurances of protection for veterans so that they are not
put in a situation where they sacrifice their ability to
receive thorough review of their claim and in hopes of having
it processed more swiftly.
With the previous concerns noted, the American Legion
supports H.R. 5549.
As always, the American Legion appreciates the opportunity,
and thanks this Subcommittee to testify and present the
position of over 2.5 million veterans of this organization and
their family.
This concludes my testimony.
[The prepared statement of Mr. Searle appears on p. 45.]
Mr. Hall. Thank you, Mr. Searle.
Mr. Hilleman.
STATEMENT OF ERIC A. HILLEMAN
Mr. Hilleman. Thank you, Mr. Chairman, Members of the
Subcommittee.
On behalf of the 2.1 million men and women of the Veterans
of Foreign Wars and our Auxiliaries I thank you for the
opportunity to testify on these bills pending before the
Subcommittee.
Due to the time constraints I will limit my remarks to
three bills.
Beginning with H.R. 5549, the ``Rating and Processing
Individuals' Disability Claims Act,'' or ``RAPID Claims Act.''
The VFW is heartened by this legislation, which would
provide VA a mechanism for identifying and expediting claims
that are ready to rate by granting the Secretary the authority
to wave the mandatory 60-day development period with written
permission of the veteran.
As of June 15th, VA announced a new expedited claims
process reminiscent of this legislation.
VA is seeking to advance ready to rate compensation and
pension through a fast track process.
The details are yet unclear, but this Committee's continued
effort to reduce the backlog through oversight and advancing
ideas such as ready to rate, claims have encouraged the VA to
adopt this practice.
Under this bill, if a veteran submits a statement which
indicates the veteran's intent to submit a Fully Developed
Claim, the veteran would have 1 year from the date of
submission to provide the Secretary with a Fully Developed
Claim and access the expedition treatment of their claim.
If the Secretary determines a claim to be underdeveloped,
the VA would notify within 30 days the veteran of more evidence
and information is required for their case.
The backlog of veterans claims for disability compensation
and pension is approaching 900,000, and over 100,000 new claims
are expected to be filed every year for the foreseeable future.
This legislation will create an incentive for veterans and
their duly appointed representatives to represent VA with fully
developed cases in a timely fashion. In turn, it will reduce
the time and energy required of VA to track down external
evidence while developing the case.
While this legislation creates an incentive to compile
outside evidence quickly and address a veteran's claim, it does
not stress the importance of quality rating decisions.
The VFW has always believed quality rating decisions are
central to addressing a long-term backlog and instilling
confidence in the VA's disability benefits system.
The VFW cannot support this legislation as written due to
the absence of the date of preservation in Section 2, paragraph
2, which allows a veteran to submit a statement of intent to
submit a Fully Developed Claim.
As worded, we believe the intent of this section was to
imply that a veteran could preserve the date of claim and still
access the expedited claims process.
We would be happy to fully support this legislation with
the inclusion of language preserving this right to the date of
claim.
The second bill is H.R. 3407, the ``Severely Injured
Veterans Benefits Improvement Act of 2009.''
We are proud to support this legislation, which would
increase the aid and attendance for severely injured veterans,
qualify severely burned veterans for adaptive grants, increase
pension for housebound veterans, expand aid and attendance to
cover veterans with traumatic brain injury, and increase the
service pension for Congressional Medal of Honor recipients.
We would like to highlight Section 3, which expands the
eligibility for those who have suffered severe burn injuries to
qualify for automotive and adaptive grants.
Given the severe burns caused by many improvised explosive
devices, veterans are living with scar tissue that decreases
the range of motion and limits the use of digits and
extremities. Burn injuries in some cases are extreme enough to
require special adaptation to simply achieve basic
functionality and independent living.
The VFW believes every possible accommodation should be
made to restore the highest level of independence to these
deserving veterans.
H.R. 3787, the ``Honor America's Guard and Reserve Retirees
Act.''
H.R. 3787 has in mind an extremely important goal, to give
men and women who choose to serve our Nation in the Reserve
component the recognition their service demands.
The mission of many Guard and Reservists is to facilitate
and support the developments of their comrades so that the unit
is fully prepared when called upon. Unfortunately, the law does
not currently allow those who serve several years and are
entitled to retirement pay, TRICARE, and other benefits, to
call themselves veterans.
Such men and women have been extremely busy and have made
extraordinary sacrifices in support of missions and Operation
Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF). That
is why we are in full support of this legislation.
Thank you for the opportunity to testify today, and I look
forward to your questions.
[The prepared statement of Mr. Hilleman appears on p. 48.]
Mr. Hall. Thank you, Mr. Hilleman.
First to Mr. Weidman--or is it Weidman, I am sorry.
Mr. Weidman. It is Weidman, sir.
Mr. Hall. Thank you so much. Forgive my memory lapses.
According to your testimony, VVA supports H.R. 3787 on the
grounds that the nature of service of Reservists and members of
the National Guard--reflects the changes in the nature of
service of Reservists and members of the National Guard;
however, the VA differs contending that benefits eligibility
could continue to be based either on active duty or a
qualifying period of active service during which a member was
physically engaged in serving the Nation in an active military
role.
VA argues that this bill would extend the same status to
those who were never called to active duty and did not suffer
disability or death due to active duty for training or inactive
duty training, and hence do not have active service.
Can you tell us why you support this bill and what are the
pros and cons of H.R. 3787 and the draft legislation?
Mr. Weidman. As I mentioned in the brief summary in my oral
remarks, Mr. Chairman, there was a really big difference in
that long ago, far away land known as the 1960s America between
those who went into the Guard and Reserve and those of us who
went into active duty.
Today anybody who joins the Guard and Reserve should have
an expectation that they can be called to active duty at any
given time, number one.
And number two is, because that is the case the training
frankly is a heck of a lot more serious and the preparation is
a heck of a lot more diligent than it was some 40 to 45 years
ago.
And third, the prejudice and the price that one pays in a
society in general is actually very heavy for anybody in the
Guard and Reserve.
In another Subcommittee they have--Ms. Herseth-Sandlin and
Mr. Boozman have heard testimony documenting the prejudice on
the part of employers against employing anybody who is in the
Guard and Reserve because of the likelihood that that
individual will be deployed not just once but possibly multiple
times over the course of the next decade.
And so as a result, you are paying all the price in terms
of giving up latitude of personal freedom and movement, you are
paying the price in terms of an economic price in terms of a
civilian job market, and number three is you essentially signed
on the line.
We often, within Vietnam Veterans of America, have to
really work hard to encourage Vietnam era veterans, those who
served in the military on active duty during Vietnam, but were
not sent in theater, if you will. Well frankly, most of us were
18, 19, 20 years old, and as we used to call it, the big green
machine, didn't give a good doggone where you wanted to go on
your dream sheet, you got sent wherever Uncle Sam wanted you.
And the same is true in today's Guard and Reserve. So it may
well be that people do not get deployed and activated and
deployed.
To not be able to call yourself a veteran when you have
made all of those sacrifices and prepared for war and prepared
to be deployed it seems to us that it is so changed in degree
as to be different in nature today and that retirees should in
fact be recognized as veterans. And you have Members of this
Committee incidentally that would fall under the same category.
Not just because of that, it is because of the change of the
nature of the service itself and where it fits into the total
forced concept.
I hope that hasn't been too meandering an answer, Mr.
Chairman.
Mr. Hall. No, it is been a good one, and I think it is
clear to all of us who are paying attention that men and women
who serve in the Guard and Reserve today and their families
live with the possibility and the expectation that at any
moment, that any day they may be called on for another tour of
duty.
Mr. Weidman. Right.
Mr. Hall. So it is not just not going to training on
weekends anymore and going about your business. Today you may
actually, and will and do serve in combat along with our active
duty troops.
Vietnam Veterans of America supports H.R. 5549 on its
belief that the key to eliminating the backlog is proper
preparation of claims and making the process yield more
accurate determinations.
Could you elaborate on how VVA believes this bill would
achieve this goal and what downside, if any, do you see from
this legislation?
Mr. Weidman. We have maintained for longer than it has been
an issue actually much on the Hill that getting it right the
first time, doing it right the first time was the way to go
when it came to claims. We also believe the same thing is true
in terms of the medical side of the House, which is why we
still take great exception to VA's refusal to take a military
history from every individual and use it in a full diagnosis
and structuring of a treatment plan.
On the benefits side, if you get the case prepared
correctly, the adjudication will take care of itself almost.
What we mean by that and what we have advocated over and
over and over again and don't advocate with the leadership of
VBA, is that there be an agreed upon set format for what goes
into a C-file even while we are working on paper so that you
can find the most salient documents, number one.
Number two, is that there has to be, Secretary Shinseki
calls it, a template, we call it a summary, of what are the
most salient facts in a case so that you cite the law or
regulation then summarize the evidence with footnotes one, two,
three, four, five, and you have a tab in the paper thing. You
can also do that kind of tab in electronic. And you go right to
it so about why the individual qualifies for that particular
disability under the statute. The evidence is either there or
it is not there. Then you cite the second regulation or
statute, and then summarize, and then footnotes, five, six,
seven, eight. All of that goes in the preparation.
If it is properly prepared you could adjudicate a
complicated claim in 1 to 2 hours max. Max. And in many cases
you can do it in 30 minutes. It is either there or it is not
there. But that takes effort in the initial preparation.
The more we can reward by an express line or a RAPID
mechanism as described in this legislation, mechanisms whereby
you are rewarded for putting that effort into a Fully Developed
Claim in the beginning, then your backlog will start to come
down.
The very first meeting that then National President Tom
Corey of Vietnam Veterans of America and I had with Secretary
Principi when he came in in 2001, he said his--and that was 10
years ago, sir--said that his top priority was reducing the
backlog, which at that point was 300,000, and we said, don't go
for speed, go for accuracy. If you get the claims adjudicated
properly, we won't churn them back and forth through the
system, but in order to do that you have to do the stress on
the proper preparation.
So we think that the concepts are advanced in this RAPID
legislation put forth by Mr. Donnelly, are good common sense,
they are not dissimilar than the things that the Congress has
already advanced in the FDC or the Fully Developed Claims
process, but it goes a step further.
So we think it is sound, and as long as the guarantees of
the individual rights are reserved to the individual, as
mentioned by my colleagues from the DAV and the VFW and
American Legion are preserved, we have no problem with this
legislation and think it is worth pursuing.
Mr. Hall. Thank you, sir.
Mr. Wilson, you suggested in your testimony that there are
currently unfair restrictions on the eligibility for adaptive
equipment to veterans who qualify for automobile grants under
section 3901 of title 39 U.S. Code.
To what extent does section 3 of H.R. 3407 address the need
to expand the eligibility for adaptive equipment grants, and
where does it fall short, if at all?
In other words, is there anything else that we need to do
in this area?
Mr. Wilson. That is a good question, sir, and I would like
to respond for the record to have an accurate comment to that
detailed consideration.
If you are going to provide a benefit for an adaptive
equipment for a vehicle, given that we have had 53 years of no
substantial change in how these particular benefits have been
funded and you have a vehicle allowance of $11,000, it will not
cover the cost of a vehicle, which is substantially more today.
Disabled veterans typically are going want a larger sedan to be
able to get your chair in and out, to be able to use it
properly, to have the accessories as far as moving the seat
back and forth electronically, or adjust the steering wheel.
These all seem like simple things to us who have all of our
physical abilities but when you have to use various prosthesis
and the like and have to be dependent upon the chair or the
scooter, these things become key, and only a larger sedan can
do that, and only in the current allowance prohibits such a
purchase for veterans as they usually are not in the most
financially advantageous situation.
So we certainly continue to lobby for an increased
allowance for this particular issue.
And I would be glad to comment as I said for the record on
other provisions regarding that section of the bill.
[The DAV subsequently provided the following information:]
DAV supports this critical provision of Section 3 of H.R. 3407
which expands eligibility for adaptive equipment grants to
veterans who have severe burn injuries. We also contend that
restrictions on the eligibility for adaptive equipment to only
those veterans who qualify for the automobile grant as
specified in section 3901 of title 38, United States Code does
not address the needs of veterans whose service-connected
disabilities prohibit the safe operation of a motor vehicle.
Veterans suffering from joint replacement surgeries or severe
arthritis for example would also be benefit from automotive
adaptive equipment grants as such equipment could facilitate
safer operation of their motor vehicles. We urge Congress to
expand such eligibility accordingly.
Mr. Hall. Thank you, sir. I think I would agree that most
of us probably--most of the public would not view a $22,000
vehicle as a luxury vehicle.
Mr. Wilson. Yes, sir.
Mr. Hall. It is not top of the line. It is sort of medium,
and certainly if you are looking for an adequate sedan or a van
with lift gate capabilities and so on I don't think you will
find it in a smaller less expensive car.
Mr. Wilson. Yes, sir.
Mr. Hall. Which would probably be less reliable too.
Mr. Searle, H.R. 5549 would allow veterans to certify that
they have submitted a Fully Developed Claim, which would
expedite the process in order to get better veteran results and
relieve the VA of some of the backlog.
You have suggested on behalf of the American Legion that
this legislation would benefit from further clarification to
prevent veterans from mistakenly certifying a Fully Developed
Claim.
Could you suggest what further steps or modification might
be necessary in order to ensure veterans to not make this
mistake?
Mr. Searle. Yes, Mr. Chairman. My approach on that was we
have a concern about the adjudication of the claim once it is
submitted and a veteran certifies it is been fully developed.
We are looking at--while there are numerous--most of the
adjudicators are veterans focused and wanting to help the
veterans, there are some cases an attitude that the veteran may
be trying to cheat the government.
What our concern is that a rater, when he gets a veteran,
would say is a Fully Developed Claim he would go with the
attitude of saying okay, I want to justify this claim rather
than reject it. Our concern is that rather than returning the
claim saying that there is something missing, the claim would
simply be rejected and then have to go into the appeals
process.
What we are saying is that the unassisted veteran is not a
professional at this complicated effort. What we may do in good
faith assume, because he has lived the event, it is a Fully
Developed Claim. The claim would then be turned in, certified
as fully developed, the adjudicator would look at it and say
well there is something missing, but rather than returning it
we want the safeguard that it does in fact get returned for
further development rather than simply saying, no, I reject
this claim and then it would have to go into the appeals
process.
Mr. Hall. Mr. Hilleman, you emphasized in your testimony
the importance of addressing quality rating decisions calling
them quote,``central to addressing the long-term backlog and
instilling confidence.''
What do you believe can be done specifically to address the
VA's ability to render quality and consistent rating decisions?
Mr. Hilleman. That is an excellent question,
Mr. Chairman. It is a very broad question though. This
Committee has had a number of hearings based on that issue. You
have gone over issues such as the credit system, you have
addressed issues such as rating decisions and how rating
decisions are made.
At this time, I don't think I could give you an answer that
would satisfy the amount of work that this Committee has put
forward. I am happy to have a conversation with you or with
staff or get back to you for the record if there is some
specifies you would like.
Mr. Hall. That is okay. Just one last brief question to
each of you.
We heard Congressman Hastings' story about his constituent
veteran who had his pension removed in 2 days after having
insurance claim resolved in his favor after being hit by a
truck and having his service dog injured and needing veterinary
care, as well as his wheelchair being totaled and he himself
being injured.
Does it strike you as odd and contradictory and
unbelievable as it strikes me that the VA can make a decision
in 2 days to take somebody's pension away when they get
reimbursed for actual expenses, but yet it takes an average of
180 days to decide a claim for benefits?
It seems to me like the swiftness, alacrity and speediness
of that decision gives us some indication of how quickly the VA
might be able to move if the system were streamlined in the
right way.
Mr. Weidman.
Mr. Weidman. Well that is exactly what I was talking about,
is that most people who work for the VA get up every day and
want to do something good for vets, and that is true in VBA as
well as on the medical side of the House. But when they do
things like that they earn a reputation of being able to move
quickly when it is in the government's quote/unquote
``interest,'' and not in the interest of the individual versus
moving quickly, as an example if someone is on the street and
they need an adjudication quickly and the evidence should be
there to adjudicate quickly. In order to get them off the
street it can still take forever.
But 2 days to take away somebody's non service-connected
pension we just think it smacks a mean spiritedness.
And a lot of what happens within the VA has to do with
organizational structure and rethinking things in a good way. I
am trying to answer your question. It is thinking of things in
a different way.
One of the extraordinary things about General Eric Shinseki
is he is pushing people to think about things in a different
way.
An example of that had to do with the GI Bill and a fact
that we had an instant backlog on the 21st Century GI Bill. So
what did he do? He called all 56 of those education
coordinators into Washington, sat them down and said, what do
we actually need to adjudicate this and why does it take so
long? And they went through the procedures. And he said, well
why does it take so long? Well it takes that long to follow the
procedures. Well who wrote the procedures? And they said, well
we did. And he said, all right, let us come back to, what do
you actually need from these? And they reduced the number of
key strokes per claim from 18 to 4 on the computer.
It is a matter of having the same kind of commitment to
moving with alacrity that you do in a case where there is a
material change that would go against the veteran to move with
that kind of alacrity when it goes to the veteran, that is
number one.
Number two, a one-time shot of cash does not constitute
income, and we think that Mr. Hastings' bill will make that
clear, particularly when it is just to hold the veteran
harmless for something that happened to him or her beyond their
control like an insurance settlement.
And we vehemently disagree with whether it is VA's
contention of Office of Management and Budget's (OMB's)
contention, who knows, but that a veteran should be penalized
for getting an award for pain and suffering for going through
somebody running over him in a truck when they are going down
the street in their wheelchair.
Mr. Hall. Thank you.
Mr. Wilson.
Mr. Wilson. This is one of those circumstance in which you
wish the VA had been more deliberative and taken an extended
amount of time in order to respond to a situation of such
devastation to an individual so severely handicapped as to lose
essentially most every means of ability to manage themselves in
their lives due to the injuries that they suffered and were
fortunate to come back physically from that injury.
We do believe the VA is moving in a proper direction to
modify such outcomes and provide what we would hope would be an
accurate quality decision.
The whole business of the 30 plus pilots that we have in
place now is an effort to do just that. And we have--we as VSOs
sitting at this table have been actively engaged with them on
the issue of pensions, on the issue of every other type of
claim that VA has, and we appreciate being actively engaged. We
would like to see ourselves engaged at the beginning of these
particular processes, not later on, with an approach of oh, by
the way we didn't talk to the VSOs, perhaps we should do so.
For example, there is these VONAPs, Veterans Online
Application, that was rolled out last year with modifications.
After it had been modified we were brought into a briefing to
see it, what does it look like? Mr. Augustine, our Deputy
Services Director was there and said, it would be great to have
a pop-up menu that says you have an opportunity to have a
veteran service organization or other representation provided
to you if you wish, and do you want to do so? Just as a prompt
when you go through the application. That wasn't considered
because we had not been involved in the beginnings of the
VONAPs discussion to provide that kind of input.
The virtual regional office (VRO) in Baltimore. They had
subject matter experts go up and see it. We talked about having
an opportunity to get up there, but they completed the entire
VRO test without a single VSO having an opportunity to see the
process.
Lastly, the Providence, Rhode Island situation. An
excellent idea is being tested there. We didn't have an
opportunity to talk to them about setting it up. When we go and
we find they have a contact center and they are calling up
veterans who they know are represented by powers of attorney
from the screens that they are seeing, asking them for
information with no consideration of the power of attorney hold
that we had and other organizations had. We said, let us know
that you are talking to the veteran asking for information so
then we can advise the veteran, who we hold power of attorney
on, about whether it is wise to submit the information that is
requested or what is the best information that needs to be
provided.
Those are concerns that we have. We are hopeful that
Congress, and this Committee in particular, will continue to
hold oversight hearings on particular issues about to ensure
there is a deliberative and focused structure in place to
monitor all 30 plus pilots; to access if the information
technology (IT) system that they are putting together is
adequate?
We would suggest that perhaps an independent body coming in
and looking at what is being done--not that VA is not perfectly
capable--might be a useful thing to do to validate that the
VA's approach to IT is correct.
That kind of oversight involvement with the VSOs dealing
with issues such as pension and all types of claims we think
would be very useful to all concerned.
Mr. Hall. Thank you, sir.
Mr. Searle, do you have a brief comment to make about my
observation or Mr. Alcee Hastings'?
Mr. Searle. Yes, Mr. Chairman. I think back to your
original question, that is an example of what I was trying to
get at with the original question on the Fully Developed
Claims.
I think a movement like that, while it could technically be
accurate and lawful, lends to the cynicism on the part of some
veterans that the VA really is not there so help there.
I think there is no question that General Shinseki, you
know, has put the policy out and enforces a policy of, you
know, the benefit goes to the veteran.
Our concern is when you get down to the regional level,
down to the individual taking a look at the claims level there
appears to be in some cases more of an adversarial type of
position and not trusting the veterans.
And an example that you had shown would be the same type of
thing you were concerned about with the Fully Developed Claims.
No, everything is not there, we will deny the claim, rather
than okay, let us pull it back out, put it in the general
population and assist the veteran.
Mr. Hall. Thank you.
Mr. Hilleman.
Mr. Hilleman. Mr. Chairman, unfortunately in the case of
this gentleman who lost his pension in 2 days VA was enforcing
the law, and we urge you to change that, because it was
callous. VA was executing as it should have, unfortunately it
was callus.
VFW believes and maintains that any insurance claim,
whether it be life insurance, auto insurance claim for an
accident, or in this individual's case an insurance settlement
for being struck by an automobile be exempt from pension.
Pension is an extremely low threshold for any additional
income.
So we are talking about individuals who are living very
close to the bottom of the poverty line.
Thank you.
Mr. Hall. Thank you, sir. I am pretty certain that this
legislation--Mr. Hastings' legislation will change the law as
you say and probably come out of the Subcommittee without a
dissenting vote, and my guess out of the full Committee
unanimously, and my guess is that it will pass the House and
the Senate and be signed into law.
And so my point is, in my own observation, and maybe it is
not, it is apples and oranges, but if the law can be followed
so quickly in one way, even if it is a mean spirited seeming
decision, it may be legal, but they are following the law in 2
days as opposed to when it is on the veteran's side. When it is
for the veteran's benefit, it seems to take much longer to
follow the law, and I guess that is what we are all getting at.
At any rate, gentlemen, thank you for your testimony, and
your written statements which we have made a part of the
hearing record. And you are now free.
Mr. Weidman. Mr. Chairman, can I just add one short thing?
Mr. Hall. Yes, sir.
Mr. Weidman. And this is I think an important point.
I mentioned before that most people at VA get up in the
morning and they do what they do because they care about
serving vets. Many of them can serve outside of VA and make a
good deal of more money. On both sides of that house whether it
be Veterans Benefits Administration, or the Veterans Health
Administration.
And when they come up here to testify, Tom Pamperin is not
a mean guy, loves his kids, doesn't kick dogs as far as I know,
but you know, the answers are prepared by OMB, and yet they are
the ones who are subject to it.
I would just make one point that I have to make over and
over again about Office of Management and Budget. You have less
than 10 veterans out of 960 permanent employees at OMB, and
they are subject to veteran's preference. Now how the heck does
that happen if they are following the law? Real good question.
The point is that none of them ever served a day in uniform,
and the people that work on veterans.
Back in 2001 they assured the veterans organizations, the
big six, then deputy director, assures us that not only would
she go to a VA hospital in a regional office, but that all of
her staff would--the permanent staff. When we met last spring,
a year ago, with the President and with the Office of
Management and Budget people I saw those same people again on
permanent staff and I said, so have you guys made it to a VA
hospital yet? And the answer is none of them had ever been
across the threshold of a VA hospital or across the threshold
of a VA regional office, and probably didn't know any vets.
My point is this, is that the Committee somehow, it strikes
me and my organization, should communicate with Director Orszag
and with the President that the people at Office of Management
and Budget who are going to be making decisions that
dramatically affect the impact of veterans lives should get
beyond the numbers and go out and at least see what happens at
VA regional offices, what happens at VA hospitals. Because if
we didn't learn anything else in Vietnam we sure as hell
learned that body count, even when accurate, didn't mean you
were winning the damn war.
And the OMB needs to stop setting up essentially a
confrontation between VA staff, who now have a more open
attitude than we have ever seen from Veterans Benefits
Administration and the Congress, and the people who really set
that confrontation up aren't even in the room.
We have a real problem with that kabuki dance, and somehow,
some way Office of Management and Budget and Mr. Orszag and his
people need to be held accountable.
Thank you for that opportunity to express that, Mr.
Chairman.
Mr. Hall. Thank you, Mr. Weidman. Thank you. I am sure Mr.
Pamperin thanks you. And this panel is excused, and we will
call our third panel: Thomas Pamperin, the Associate Deputy
Under Secretary for Policy and Programs Management of the VBA,
U.S. Department of Veterans Affairs, accompanied by Richard J.
Hipolit, Assistant General Counsel of the U.S. Department of
Veterans Affairs.
Welcome gentlemen. Your written statements are made a part
of the hearing record, so you are free to expand or to speak
extemporaneously as you wish.
Mr. Pamperin.
STATEMENT OF THOMAS J. PAMPERIN, ASSOCIATE DEPUTY UNDER
SECRETARY FOR POLICY AND PROGRAM MANAGEMENT, VETERANS BENEFITS
ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS;
ACCOMPANIED BY RICHARD J. HIPOLIT, ASSISTANT GENERAL COUNSEL,
OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. Pamperin. Mr. Chairman, Members of the Committee, I am
pleased to provide the Department of Veterans Affairs' views on
pending legislation. Assistant General Counsel, Richard J.
Hipolit, accompanies me, and I do appreciate Rick's endorsement
of my character.
VA did not have sufficient time to develop and coordinate
the Administration's position and costs on H.R. 5549, the
``RAPID Claims Act.'' With your permission we will provide this
information for record.
We also will provide in writing the completed cost
estimates for Sections 3 and 5 of 3407.
[The VA subsequently provided the cost estimates in the
Post-Hearing Questions and Responses for the Record, which
appear on p. 66.]
Section 2 of H.R. 3407 would increase the special monthly
rates for severely injured veterans.
The VA cannot support the provision as written. We already
have numerous authorities to provide the most severely disabled
veterans with higher levels of care. Congress would need to
identify appropriate offsets for the benefits costs, which are
estimated at $351 million over 10 years.
Section 3 would provide eligibility for automobile and
adaptive equipment to disabled veterans and members of the
Armed Forces with severe burns.
VA does not object to the provision, subject to Congress
identifying appropriate cost savings.
We will provide cost estimates associated with the
enactment of this provision on the record.
Section 4 would increase non service-connected disability
pension for certain wartime veterans.
VA supports the intent of this provision, but VA couldn't
support the provision without a better understanding rather of
how the new proposed pension level was developed.
Benefit costs are estimated at $160 million over 10 years.
VA submitted a legislative initiative on May 26 to address
special monthly pension changes required by the Court of
Appeals for Veterans Claims decision in Hartness v. Nicholson,
and we believe--which we believe to be inconsistent with
Congressional intent.
Section 5 would provide eligibility for aid and attendance
under Section O and R of special monthly compensation (SMC) for
all levels of TBI.
VA believes that expansion of eligibility should be
reserved to those with severe TBI.
Section 6 would authorize VA to increase the Medal of Honor
special pension.
We have serious concerns with this provision. This proposal
does not indicate the purpose for providing only a temporary
rate increase and provides no guidelines to determine the
extent of an increase.
VA estimates the cost of this provision would be $2 million
over 2 years.
Section 7 would extend current provisions relating to
pensions for certain veterans in Medicaid approved nursing
homes.
VA supports this proposal and estimates that enactment of
this provision would result in VA cost savings of approximately
$6.2 million over 10 years.
VA will provide the net budgetary effect to the Federal
Government, including Medicaid costs in writing at a later
date.
Also States may incur costs as Medicaid will pay a larger
share of nursing home care.
H.R. 3787 would deem former members of the National Guard
and Reserve who are not otherwise qualified--who do not
otherwise have qualifying service to have been on active duty
for VA purposes.
VA does not support this bill, and we estimate that it
would incur benefit costs of $15.5 billion over 10 years. VA
administrative costs are estimated at $111 million.
The alternate version of H.R. 3787 would broaden the
definition of the term veteran in Section 101, but the broader
definition of the term would not be applicable for purposes of
compensation, dependency, indemnity compensation, and hospital,
nursing home, domiciliary, or medical care.
VA does not support this alternative version because it
represents a departure from the active services of foundation
for veteran status.
H.R. 4541 would liberalize the existing exemptions from
income for improved pension.
We oppose excluding income payments received for pain and
suffering because such payments do not represent reimbursement
for expenses paid.
VA does not oppose the remaining provisions of this
section.
The current law does permit exclusions from pension income
calculations for reimbursements for any casualty loss that
would not--and there would be no benefit costs associated with
those provisions.
Finally, H.R. 5064 would require the Court of Appeals for
Veterans Claims to extend the 120-day period for appealing a
Board of Veterans' Appeals decision to the Court of Veterans
Appeals.
Although VA supports the extension of the 120-day appeal
period under certain circumstances, VA has several concerns
with this bill.
To avoid potential problems resulting from an unlimited
appeal period and retroactive application, Secretary Shinseki
submitted to Congress the Veterans Benefits Improvement Act of
2010, which would take a more focused approach.
We estimate the enactment of VA's legislation as proposed
would result in no significant costs or savings.
This concludes my statement, sir.
[The prepared statement of Mr. Pamperin appears on p. 50.]
Mr. Hall. Thank you, Mr. Pamperin. And you mentioned
providing cost estimates to some of the bills that you don't
have at the moment, and we would appreciate that--or to the
sections of bills.
You note in your testimony that VA does not support Section
2 of H.R. 3407 stating that the VA already has numerous
authorities to provide the most severely disabled veterans with
higher levels of care. Specifically you named the Caregivers
and Veterans Omnibus Health Services Act of 2010.
Could you please explain why you feel that the Caregivers
Act is more beneficial to veterans than Section 2 of this
legislation?
Mr. Pamperin. Sir, I don't--I would not mean to imply that
it is better, merely that we have the capacity to pay higher
levels of SMC based upon disabilities. They would be
complimentary, but I would not say that one would be better
than the other.
Mr. Hipolit. If I might add to that. There are several
provisions in that Caregivers Act that specifically apply to
veterans with TBI, which I think are very beneficial. You may
be familiar with it, but just to run down it quickly.
Financial assistance and other benefits are given to
caregivers for veterans who have severe disabilities from TBI.
There is also a specialized residential care provision where we
can contract to get care for veterans with TBI. There is also a
provision for use of non-department facilities for rehab for
traumatic brain injuries.
So there are a number of very beneficial provisions in
there for TBI veterans.
I am not saying that qualitatively one is better than the
other, but there are a number of good things in there for TBI
veterans.
Mr. Hall. Are those some of the quote ``numerous
authorities,'' that VA has in place under written submission to
provide care for severely disabled veterans? Are there others
that you could specify?
Mr. Hipolit. I think that basically what we are referring
to are those provisions.
Mr. Hall. Okay, thank you.
Mr. Pamperin. The other thing, sir, that I would point out
is that with the revision of the TBI rating schedule about a
year and a half ago, with the expansion of it to enable the
potential for 100-percent individual evaluation for TBI that
there currently exists the ability to award aid and attendance
benefits, SMC benefits for TBI.
Now they are not at the O or R level, they are at the
special monthly compensation L or aid and attendance rate. But
we do have the authority right now to give SMC for TBI.
Mr. Hall. Thank you, sir.
And according to your testimony VA does not support the
extension of eligibility for increased compensation for those
veterans with multiple levels of TBI, or as you stated,
characterized by minor symptoms.
Could you please describe what you mean by minor symptoms
resulting from TBI?
Mr. Pamperin. Sir, as you may know, TBI is characterized as
mild, moderate, or severe, approximate in time to the time of
the injury, and that basically is a measure of how long a
person is unconscious, and whether or not they have penetrating
head wounds and things like that.
It is possible with a mild TBI for an individual to
completely or nearly completely recover if they only have one.
So the notion that the current bill would enable for any
level of TBI some sort of relatively minor spatial adjustment
that would normally be compensated at the 10 percent level, we
don't quite believe that that is the way SMC has normally been
contemplated.
SMC historically has always required that a veteran have
100-percent disability rather than something less than that.
Mr. Hall. On H.R. 3787, could you please elaborate on why
the VA opposes the draft legislation proposed by Mr. Walz, why
is it problematic, what are the implications?
His intent, as I see it, is to have a--essentially a change
of title of status of a Guard and Reservist to be able to call
himself or herself a veteran but with no costs or benefits
further than, you know, are already there.
So what unintended consequences----
Mr. Pamperin. Sir, I believe that the--obviously the bill
as initially drafted would have been very, very expensive. The
substitute bill----
Mr. Hall. Right.
Mr. Pamperin [continuing]. On its face articulates that it
does not qualify people for additional benefits.
Our concern is not with the immediate event as much as it
is in a blurring of the definition so that over time additional
benefits would be expended, fully recognizing that members of
the Guard and Reserve today do sign up, as Mr. Weidman says,
for the--not only the chance, but the increasing likelihood of
a period of activation. Those individuals who do experience
that activation indication are veterans under the title.
What I would say that we are mostly concerned about is that
a watering down of that particular word, which is foundational
in the entire development of a benefit scheme, would be our
concern.
Mr. Hall. What are the implications of the draft
legislation in amending Section 101 of title 38?
Mr. Hipolit. I want to add on this subject or that there
are a number of State laws that rely on our definition of
veteran in title 38. We did a survey and we found that many
States have laws that use the title 38 definition of veteran
for purposes of various benefits that they give. We haven't
done a complete survey, but I know there are at least a couple
of status laws that we came across where being a veteran under
title 38 gets you something under State law, for example a
veteran's license plate.
For most of the State benefits that we have seen you need
something else, like a service-connected disability, as well as
being a veteran under title 38, so these Reservists wouldn't
qualify. But by changing the definition of veteran it could
have an impact on some State law of benefits.
So that is another thing that probably needs to be
considered.
Mr. Hall. Thank you. I understand your concern about
lowering, or watering down, as you put it, the description or
definition of a veteran and extension by State law of other
benefits. At the same time, I have been to many events where
those who serve this country in uniform are saluting the
colors, and those such as I who have not are holding our hands
over our hearts, and it is a symbolic status that is deserving
of respect and honor. I think that if there is something that
we can do to help Mr. Walz in the intention of this bill to
fulfill that intent it is worth looking into. However, you have
to look, Mr. Pamperin, down the road at future Congresses and
future legislation that may use that definition for other
purposes, but the Guard and Reserve today are not the Guard and
Reserve of 30 years ago, and their service is not.
We had a Colonel Norton who was a West Point grad and
testified and said a number of interesting things before this
Subcommittee, but I believe it was he who said the same
uniform, same war zone, same benefits. We should treat these
people the same way.
So my question is, I guess whether the current definition
of the number of deployments, the number of days, et cetera, is
sufficient or whether Mr. Walz' amended bill is sufficient?
Mr. Pamperin. Sir, we would be glad to work with the
Committee on that, and our concerns in no way imply a lack of
honor and respect for people who wear the uniform every day and
the Guard and Reserve.
Again, those who are activated are considered veterans,
whether it is for--if you were called to active duty as a
result of OEF/OIF, whether that period of service is a year or
it is 6 months or it is 30 days, if you are mobilized under
title 10, as long as you serve the period for which you are
called you are considered a veteran.
Mr. Hall. Regarding H.R. 4541, could you please tell us why
VA opposes the exclusion of pain and suffering payments from
pension and income calculations? How do these reimbursements
differ from accident, theft, loss, casualty loss, or
reimbursements that are addressed in Mr. Hastings' bill?
Mr. Pamperin. Mr. Chairman, it may sound like a cold
distinction, but the law, Public Law 95-588 that created the
current pension law was very, very clear that all income from
all sources other than public assistance is income for VA
purposes.
Through the process of regulations, and there was a
mechanism to having reductions to income, we have made clear
that insurance payments that are to recover for the veterinary
expenses, the medical expenses, the wheelchair, those are
excludable income.
I realize that the individual in that case was injured and
that they no doubt are fully deserving of the pain and
suffering payment that they got, but the law as constructed and
as having been interpreted has always been very clear that
every source of income other than welfare is income.
Mr. Hall. So we are considering changing the law.
Mr. Pamperin. Yes, you are, sir.
Mr. Hall. And can you tell me if you had any cost estimates
or how you would go about costing this bill?
Mr. Pamperin. I will get back to you on the status of the
cost estimate, but I am sure there is data out there about the
number of insurance settlements for pain and suffering that you
could derive a percentage based upon the total veteran
population and go from there.
[The VA subsequently provided the information in the answer
to Question 2(b) of the Post-Hearing Questions and Responses
for the Record, which appear on p. 66.]
Mr. Hall. Now we have been discussing and VA has been
discussing on working on, as Dole-Shalala suggested, among
others, payments for lost quality of life.
Mr. Pamperin. Uh-huh.
Mr. Hall. And it seems to me that--I mean even this
particular incident that Mr. Hastings' constituent suffered
through happened when he was not in the middle of his service
but after his service, resulted in some loss of quality of his
life, which was already suffering from his injuries during
service.
It seems kind of cross purposes to me to on one hand talk
about quality of life and on the other hand exclude--or to
include, to offset pain and suffering payments that are not
coming from the government, they are coming from insurance
companies.
But any way, Mr. Hastings isn't here to ask these
questions, so I am just trying to imagine what he would ask.
Mr. Pamperin. Clearly, sir, this is a public policy issue
that is directly what this body is intended to address.
Mr. Hall. So your understanding of the VA's position today
is that if pain and suffering payments were excluded from this
bill you might support it?
Mr. Pamperin. If pain and suffering is excluded from the
bill, we believe that the items articulated there are already
excludable.
Mr. Hipolit. With the exception of medical expenses. I
think the medical expenses would be a change, but we do not
oppose that part of it. The pain and suffering is the one that
we take a position against.
Mr. Hall. Now do you know if on an occasion like this when
someone in an RO makes a decision that a veteran is going to
have their pension reduced or taken away for a year or whatever
it is and then makes that decision within 2 days of receiving
information and then a Congressional office advocates for the
veteran and gets it reinstated. Does that caseworker at the VA
get some reeducation? Is there some conversation about what
just happened?
Mr. Pamperin. One would hope that there would be. We will
attempt to find out exactly who this particular veteran is.
Mr. Hall. We know who the veteran is, but we don't know who
the----
Mr. Pamperin. Well we know his last name.
Mr. Hall. That is true. Well Mr. Hastings I am sure can----
Mr. Pamperin. Okay. You know, it would be rash of me to
speculate as to what happened. If the benefit was actually
restored, clearly somebody said well what about, you know, all
of these expenses? But we will--we can look into it and find
out exactly what happened.
Mr. Hall. That would be good.
I think we would appreciate having the VA provide a fuller
explanation of the position of the Administration and the cost
estimate for H.R. 4541 for the record if you could do that for
us, please.
And also I would like to know, I have no desire to go after
an individual, but this is an example, about which, that I
think that many of us, and certainly many veterans, would like
to know more.
When something is reversed like this, when an adverse
decision is made for a veteran and then somebody else like a
Member of Congress steps in or their representative or their
staffer steps in and makes a call and it gets changed back
again, and in this case it would seem to me like changing it
back was the just thing to do, whether that ripples out through
the VA to other people so that we try to keep this from
happening again. At any rate, that is enough on that bill.
Regarding H.R. 5064. Mr. Pamperin, in your testimony you
made reference to the General Secretary Shinseki's proposed
VBA--or ``Veterans' Benefits Programs Improvement Act of
2010.'' This act, which would allow the VA to grant a 120-day
extension for appeals, as long as the request is made within
120 days of the expiration of the claimant's previous 120-day
window.
Given the often demanding nature of physical rehabilitation
and debilitating effects of mental disabilities, would setting
yet another strict deadline on top of a previous hard deadline
adequately address the problem and provide the discretion to
the Court to make equitable decisions?
Mr. Pamperin. Sir, I believe that there are not that many
cases where the Court has declined to accept jurisdiction
because the person has not timely filed.
We are talking about people who have gone through a fairly
lengthy adjudication process through the Board of Veterans'
Appeals.
I think that somebody who now at the end of that process is
not capable of fulfilling the 120-day situation when they have
fulfilled every other time filing requirement, that those are
exceptional cases, and that that is what an expectation to what
would normally be a hard and fast rule where it would be
important to have that kind of capability, but that it would be
exercised fairly rarely.
Mr. Hall. Could I ask you, Mr. Hipolit, if you have
anything to say about the equity issue?
Mr. Hipolit. On the good cause exception? Yes, we think
that there needs to be some kind of reasonable extension
available for good cause but that it needs to have some
limitations on it.
I think the bill as originally introduced would be
extremely open ended, so that somebody could come back even 20
years later and ask for a good cause exception and at that
point it would be very difficult to know what the circumstances
really were in the past.
And so we think that our proposal places some reasonable
limits on it. It would give essentially 240 days.
Most of the cases that we have seen where somebody did miss
a deadline, it wasn't by a huge amount of time. I think in Mr.
Henderson's case it was 15 days.
So I think that kind of limited exception would capture
most of the cases and provide the Court with an opportunity to
provide relief in cases where it was equitable.
Mr. Hall. Thank you. And lastly regarding H.R. 5549.
Mr. Pamperin, could you tell us why VA does not support
this bill? Particularly how would the bill change the way VA
currently preserves effective dates and provides VCAA notices?
Mr. Pamperin. We haven't had the time to develop a position
on the legislation. The legislation is very, very similar as
Congressman Donnelly pointed out to the Fully Developed Claim
process that was tested and is now being deployed.
The notion that a person can't have an informal filing date
protected is something that is--I don't believe is consistent
with our perception of what the Fully Developed Claim is, that
there is a possibility of doing an informal claim.
And what happens in a Fully Developed Claim assertion where
in fact the case is not fully developed is not that the case is
denied, it merely reverts to a standard case that is not case
managed to rapidly move it through the process.
I mean, all cases are managed from a workload perspective,
but on a Fully Developed Claim we are trying to move that as
rapidly as possible so that, you know, there is much more
management involvement in that specific case to make sure that
it gets done timely.
Mr. Hall. Is a VCAA then issued?
Mr. Pamperin. Yes.
Mr. Hall. Does the FDC program change the way these things
are currently done, and if so, how?
Mr. Pamperin. It doesn't change the decision process. I
mean you need a claim, you need evidence, you need to decide
it, and you need to notify.
What the Fully Developed Claim does do is relieve you of
some of the VCAA time limits and it puts it in a category of
intensively managed cases so that they are done as quickly as
humanly possible so that they don't spend a lot of time in cues
in various areas of the regional office.
Mr. Hall. Thank you.
Mr. Hipolit, since you are here, this is not actually on
our agenda, but I thought you might have some knowledge of this
when the final language would be revealed on the presumed
service-connection for post-traumatic stress disorder.
The public hearing comment process was last fall, and my
understanding is that is sort of any day now?
Mr. Hipolit. I think we are pretty close on that now. We
received a very large number of comments on that proposed rule
and it took quite a while to sort that out, but the process is
pretty far along now.
I can't give a specific date when we will have the final
rule out, but that is moving along very well now. I think we
are----
Mr. Hall. Well as we approach one of the more patriotic
weekends that we celebrate, 4th of July, Independence Day, it
would seem like a really good time to announce that all men and
women who have served in uniform in this country in a war zone
and who later have post-traumatic stress disorder will be not
just treated, but compensated if they are unable to work
because of their injuries. But if it is not this weekend one
can hope that it will be soon.
Mr. Pamperin. Sir, I believe you may get your wish.
Mr. Hall. Well I'll keep my fingers crossed, thank you.
Thank you very much for the work you do for our veterans,
and I would like to talk to you about your relationship with
OMB and with Mr. Weidman's comments in mind. Maybe we could set
up a field trip for all of us to, you know, go visit some VA
facilities together.
I never see enough myself and learn enough myself, and the
folks who are doing the financial analysis of some of these
proposals perhaps could use some more exposure to what is
really going on with our veterans. So we will work on that. We
will put our staff to work on that.
But thank you again.
All Members have 5 legislative days to revise and extend
their remarks.
We thank all of our panelists for their service to our
country and to our veterans. We thank everybody here for their
testimony.
And this hearing stands adjourned.
[Whereupon, at 12:34 p.m., the Subcommittee 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 Morning Ladies and Gentlemen:
Please rise for the Pledge of Allegiance.
The purpose of today's hearing will be to explore the policy
implications of five bills and one draft measure, H.R. 3407, H.R. 3787
and accompanying draft legislation, H.R. 4541, H.R. 5064 and H.R. 5549
that were recently referred to the House Committee on Veterans'
Affairs' Disability Assistance and Memorial Affairs Subcommittee.
The first bill we will discuss is the Severely Injured Veterans
Benefits Improvement Act, H.R. 3407, introduced by Ranking Member Buyer
which seeks to significantly increase the level of benefits available
to our severely disabled veterans and Medal of Honor recipients. As a
cosponsor of this bill, I support its provisions which would amplify
the ancillary benefits relating to aid and attendance for traumatic
injury for our veterans and to severe burn injuries of both veterans
and active duty members for adaptive equipment automobiles, as well as
increases for the non service-connected pension and Medal of Honor
special pension.
The second bill on today's agenda, H.R. 3787 and its accompanying
draft legislation, Honor America's Guard-Reserve Retirees Act, both
sponsored by Chairman Walz would grant honorary veteran status to
retired members of the Guard and Reserve who completed 20 years of
service. I support this bill and look forward to working through the
kinks to ensure that these deserving men and women receive the
distinction of being called veterans. Our Guard and Reserve comprise a
large component of those called to serve in our two current wars. Those
changing dynamics need to be reflected in the policy to reflect their
level of sacrifice.
Third is the Pension Protection Act of 2010, H.R. 4541, introduced
by Mr. Alcee Hastings of Florida, which would prohibit VA from counting
casualty windfall payments as income for the purposes of determining
eligibility for the non service-connected pension benefit.
Our fourth bill is the Fair Access to Veterans Benefits Act, H.R.
5064 introduced by Congressman Adler of New Jersey which deals with the
issue of equitable tolling for appeals filed before the Court of
Appeals for Veterans Claims. The Court recently decided in Henderson v.
Shinseki that it does not have the ability to extend its 120-days
filing period deadline and the Federal Circuit Court affirmed that
decision. As a cosponsor of this legislation, I clearly believe that
our veterans deserve the benefit of the doubt and the CAVC should be
able to exercise its judgment to give it to them unfettered. This bill
would ensure that those veterans who have good cause, just like in the
case of Mr. Henderson, are not shut out of the appeals process without
recourse.
Our last bill is the Rating and Processing Individuals Disability
Claims Act, or RAPID Act, H.R. 5549, introduced by a veteran member of
the DAMA Subcommittee, Mr. Joe Donnelly. H.R. 5549 seeks to improve on
the VA's adoption of the Fully Developed Claims Pilot provision in P.L.
110-389 by ensuring that veterans are able to protect their effective
date while fully developing their claim. It would also ensure that
veterans are apprised of their appeals right when VA denies a claim.
These are all worthwhile measures that will help our veterans
tremendously. I thank the Members for their thoughtful legislation. I
thank our other esteemed witnesses for joining us today and look
forward to any further insight they may provide.
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
Thank you Chairman Hall,
I look forward to this opportunity to confer with our witnesses on
the bills we are considering this morning.
To allow maximum time for discussion, I will limit my opening
remarks to H.R. 3407 the Severely Injured Veterans' Benefits
Improvement Act.
This commendable bill was introduced by full Committee Ranking
Member Steve Buyer to improve benefits for our most deserving veterans.
These are the men and women who are so severely injured that they
require assistance attending to daily personal needs such as bathing
and eating.
For veterans in need of regular aid and attendance, H.R. 3407 would
provide a 50 percent increase in the amount they receive for special
monthly compensation.
This increase will ensure that they are able to acquire
professional medical services that will allow them to remain in their
homes.
It would also expand eligibility for veterans with severe traumatic
brain injury to receive aid and attendance, and it would authorize
veterans with severe burns to receive specially adapted auto grants.
H.R. 3407 would make these needed improvements without increases in
direct spending.
I urge my colleagues to support this bipartisan bill.
Thank you, and I yield back.
Prepared Statement of Hon. Timothy J. Walz,
a Representative in Congress from the State of Minnesota
Chairman Hall, Ranking Member Lamborn, fellow Members of the
Committee, thank you for the opportunity to testify to the Subcommittee
today regarding H.R. 3787, the Honor America's Guard Reserve Retirees
Act.
As a 24 year guardsman and a veteran myself, I am proud to sponsor
this legislation, which has been a priority among the veterans
community for years. As you are all well aware, the reserve component
of our military performs an invaluable role in supporting the active
duty component, responding in times of national emergency, and most
importantly standing ready to deploy to overseas missions in times of
need, as so many of those who have served in the Guard and Reserve
post-September 11th have done.
And for those who take on that responsibility and that risk for 20
or more years, we reward their service much as we do the members of the
active duty military, with things like military retired pay, medical
care through the TRICARE program, and even burial in a veterans'
cemetery.
However, under current law, if members of the reserve component
have not served a qualifying period of federal active duty, there is
one honor that we do not bestow upon them: we do not give them the
right to call themselves ``veterans'' of the armed forces.
I believe that this oversight does a disservice to those who, like
their counterparts in the active duty component, volunteered to serve
their country and made themselves liable for activation at any time.
Furthermore, I think it is a matter of basic common sense that if
qualification for reserved retired pay is sufficient to secure
government sponsored burial in a federal veterans' cemetery, it should
also grant the right to offer a hand salute during the playing of the
national anthem, or take part in official Veterans' Day events.
While this may not seem important to some, for those who wore the
same uniform, were subject to the same code of military justice,
received the same training and spent 20 years or more being liable for
call-up, this lack of recognition is a gross injustice.
H.R. 3787 would finally correct this injustice in the most
straight-forward way possible: by adding reserve component military
retirees to the Title 38, section 101(2) definition of the term
``veteran.'' This particular section of the U.S. Code is considered the
most fundamental in defining who is and is not a veteran under our law.
By including Guard and Reserve retirees under this, the most basic
definition of veteran, we ensure that they are not relegated to second
class veteran status, but are instead full, unalloyed veterans.
As I have said, the sole purpose of this legislation is to grant
veteran status to those who have been denied it up to this point. In
light of this fact, we have gone to great lengths to ensure that no new
material benefits accrue to those who would gain veteran status under
this legislation.
To begin with, as I have already mentioned, Guard and Reserve
retirees already have access to a number of veterans' benefits, such as
retirement pay, TRICARE medical care at age 60, space available
military aircraft travel, and burial in veterans' cemeteries.
Furthermore, due to the nature of their service, even as veterans they
would not qualify for a host of other benefits such as those granted
under the Post-9/11 GI Bill, which have a minimum active service
requirement, or for things like VA Health care which have low-income
requirements (the overwhelming majority of Guard Reserve retirees would
be Priority Group 7 or 8).
The original text as introduced used section 106 to qualify reserve
component retirees by deeming their service active duty. While it would
have achieved the goal of including this group in the section 101(2)
definition of veterans, it would also have qualified them for a whole
slew of benefits which are available only to veterans of active
service.
Because of my commitment that this legislation not create any new
entitlements or benefits, I decided to reject that approach, and intend
to introduce an amendment in the nature of a substitute that goes at
the section 101(2) language directly. Furthermore, in order to avoid
even the potential for any unintended or unforeseen benefits accruing
to reserve component retirees, we have also included conforming
amendments to Chapters 11, 13, and 17, covering all disability
benefits, DIC payments and VA health care, which ensures that those
servicemembers who qualify for veteran status under the new language
shall not have access to any benefits to which they would not otherwise
be entitled.
The conclusion that this legislation will not result in any
unintended consequences has been supported by both the non-partisan
Congressional Budget Office, which has certified this legislation as
adding no new burden on the Federal budget or cost to taxpayers, and by
the Congressional Research Service, which has gone through the statute
with a fine toothed comb and identified every single active reference
to 38 USC 101(2)--a list which I will gladly share with anyone who is
interested.
And of course, in case there is anything the CBO and CRS experts
have missed, I would be happy to work with the Disability and Memorial
Affairs sub-committee staff to ensure that those issues are addressed
in the final legislation.
Finally, I would like to point out that this legislation is
supported by the members of The Military Coalition, as well as the
National Military Veterans Alliance, which together represent several
million active duty servicemembers, veterans and their families.
It is my hope that this hearing will address any outstanding issues
with this legislation so that we can see this long overdue change made,
and give the members of the reserve component the honor that they have
earned.
Prepared Statement of Hon. Alcee L. Hastings,
a Representative in Congress from the State of Florida
Chairman Hall, Ranking Member Lamborn, Distinguished Members of the
Subcommittee:
Thank you for holding today's hearing and for the opportunity to
testify on H.R. 4541, the Veterans Pensions Protection Act of 2010. I
am grateful for the leadership of the Subcommittee and its long-
standing and unwavering commitment to America's veterans. I share with
you the goal of building better lives for all veterans and their
families.
Before I begin, I would like to welcome and recognize the veterans
in the room today and express my gratitude for their service to our
Nation. Each of you has made a difference in the history of our Nation
and in the lives of so many. I would also like to thank the veterans'
organizations for their constant hard work improving veterans' lives
and for appearing before the Subcommittee today.
In the spring of 2009, one of my constituents, a navy veteran with
muscular dystrophy, reached out to my office in desperate need of
assistance. The Department of Veterans Affairs (VA) had abruptly
cancelled his pension and he had fallen below the poverty line. Unable
to pay for daily expenses, unable to meet his mortgage payments, Mr.
Scriber was on the verge of losing his home and joining the ranks of
the 100,000 homeless veterans in our Nation.
Mr. Scriber did not break the law, nor did he commit any crime. In
March 2008, he was hit by a truck when crossing the street in his
wheelchair, with his service dog. Mr. Scriber was on his way to the
pharmacy. ``People who saw it said I went 10 feet into the air. I
landed head-first into the pavement,'' he told me. Mr. Scriber suffered
from broken bones and teeth. His dog was also injured and his
wheelchair destroyed.
As a law-abiding citizen, Mr. Scriber reported to the VA the
insurance settlement payment that he received from the driver's
insurance to cover his medical expenses and the replacement cost of his
wheelchair. As a result, the VA cancelled his pension benefits for an
entire year.
When assessing a veteran's eligibility for a pension, the VA
considers a variety of sources of revenue to determine a veteran's
annual income. If such income exceeds the income limit set by the VA,
the veteran does not qualify for a pension or loses their benefits.
Currently, the VA considers any reimbursement that compensates a
veteran for his or her expenses due to accidents, theft or loss as
income. Only reimbursements of expenses related to casualty loss are
currently exempted from determination of income.
Under the current law, if a veteran is seriously injured in an
accident or is the victim of a theft and receives insurance
compensation to cover his or her medical expenses, the replacement cost
of the stolen items, or for pain and suffering, he or she will likely
lose their pension as a result. This means that the law effectively
punishes veterans when they suffer from such an accident or theft.
Mr. Scriber reached out to the VA several times, asking to have his
pension reinstated because he could not cover his medical expenses,
replace his wheelchair, pay for daily expenses, and afford his mortgage
without his pension. Each time, the VA refused to reinstate his
pension. This is when I became personally involved. I contacted the
West Palm Beach VA medical center and wrote several letters to
Secretary Shinseki but the VA did not change its policy, nor did they
restore Mr. Scriber's benefits for a whole year.
I am distraught that the VA can cancel the pensions of unemployed
and disabled veterans without further notice. The VA has a moral
responsibility to care for our veterans and ensure that they live
decent lives. After serving our Nation so valiantly, they deserve no
less than the very best benefits. No veterans should be unable to pay
their medical bills, unable to get the care that they need, or be in a
situation where they could lose their home. This is simply unacceptable
and this is why I introduced H.R. 4541, the Veterans Pensions
Protection Act.
The Veterans Pensions Protection Act will amend the U.S. Code to
exempt the reimbursement of expenses related to accidents, theft, loss
or casualty loss from being included in the determination of a
veteran's income. This will guarantee the continuity of our veterans'
pensions and that no veteran will have their benefits unfairly and
abruptly depreciated or cancelled. My distinguished colleague in the
Senate, Mr. Tester of Montana introduced the Veterans Pensions
Protection Act last month after a similar incident happened to one of
his constituents.
I understand that the VA is facing increasing issues with regards
to providing care and benefits to our returning servicemembers, and the
veterans of previous conflicts. With more veterans coming home from
Iraq and Afghanistan, the costs of transition and long-term care
continue to increase. The backlog of claims filed by those who served
in uniform is growing. While I understand these difficulties, I refuse
to let them overtake our veterans' well-being. The VA must ensure that
no veterans are left behind, like Mr. Scriber was.
There is clearly something wrong with a law that cancels veterans'
pensions for a whole year following the award of an insurance payment,
which was only intended to cover exceptional medical expenses. Mr.
Scriber will never be compensated for his loss. It disheartens me that
veterans are overlooked and mistreated due to flaws in VA regulations.
I urge the VA to support the Veterans Pensions Protection Act and the
Subcommittee on Disability Assistance and Memorial Affairs to take
action on it.
Mr. Chairman, we must ensure that pension benefits are issued to
veterans who legitimately meet the income criteria and rely on such
assistance to survive. We must enact regulations that help veterans
live better lives, not hurt them. Our veterans have shown their
devotion to our Nation with their bravery and sacrifice. We must now
prove our dedication to those heroes by treating them in accordance
with the values and ideals upon which we have founded this great
Nation.
Mr. Chairman, Ranking Member Lamborn, Distinguished Members of the
Subcommittee, this concludes my testimony. I would be pleased to answer
any questions you may have. Thank you.
Prepared Statement of Hon. John H. Adler, a Representative in Congress
from the State of New Jersey
I would like to thank Chairman Hall, Ranking Member Lamborn, and
Members of the Subcommittee for the opportunity to testify on behalf of
H.R. 5064, the Fair Access to Veterans Benefits Act. This Subcommittee
has been integral in ensuring that our veterans are receiving the
benefits they deserve. I commend you on your leadership.
The need for H.R. 5064 came from a federal appeals court ruling in
which a Korean War veteran, David Henderson, who suffers from paranoid
schizophrenia, was denied benefits because his appeal was filed 15 days
late. The deadline that Mr. Henderson missed was one that required
filing an appeal within 120 days of the final notice from the Board of
Veterans' Appeals, the highest administrative authority in the claims
process.
Mr. Henderson served in the military from 1950 to 1952. He was
discharged after being diagnosed with mental health problems and
assigned a 100 percent disability rating, making him eligible for
disability compensation. In 2001, Henderson sought an increase in
compensation based on his need for in-home care. His claim was denied
at the VA regional office, and the denial was upheld in 2004 by the
Board of Veterans' Appeals.
Mr. Henderson appealed to the U.S. Court of Appeals for Veterans'
Claims, but he filed his appeal 15 days too late. He tried but failed
to get the court to reconsider, arguing that his service-connected
disability caused him to miss the deadline. The veterans' court
rejected his argument and the U.S. Court of Appeals for the Federal
Circuit agreed, in Henderson v. Shinseki, that the veterans' court was
right to reject a late appeal.
My bill would require the U.S. Court of Appeals for Veterans'
Claims to hear appeals by veterans of administrative decisions denying
them benefits when circumstances beyond their control render them
unable to meet the deadline for filing an appeal. The Fair Access to
Veterans' Benefits Act would require the U.S Court of Appeals for
Veterans' Claims to excuse late filings if the veteran demonstrates
``good cause'' so that meritorious benefits claims are not denied their
day in court. This bill also requires the Veterans' Claims Court of
Appeals to reinstate untimely appeals already dismissed as a result of
the court's failure to toll the filing period for good cause.
The veterans' claims process is extremely difficult to navigate,
especially when doing so without the aid of an attorney or while
suffering from a mental disability. While the Veterans' Claims Court of
Appeals was intended to be informal and fair, the imposition of rigid
deadlines has resulted in the denial of benefits for many veterans.
Oftentimes, the reason these veterans missed the filing deadline was
because of the very service-connected disabilities that entitle them to
the benefits they are seeking. It is my hope that H.R. 5064 will help
ensure that no veteran is denied disability benefits simply because
they have missed an arbitrary deadline.
I would again like to thank Chairman Hall, Ranking Member Lamborn,
and Members of the Subcommittee for allowing me the time to testify on
this important matter. I would be happy to answer any questions you
might have.
Prepared Statement of Hon. Joe Donnelly,
a Representative in Congress from the State of Indiana
Chairman Hall and Ranking Member Lamborn, Members of the
Subcommittee, thank you for the opportunity to discuss my bill before
the DAMA Subcommittee today.
After closely working with the Iraq and Afghanistan Veterans of
America and the Disabled American Veterans, I have introduced H.R.
5549, The Rating and Processing Individuals' Disability (RAPID) Claims
Act, along with Chairman Hall. The goal of The RAPID Claims Act is to
improve the disability claims process for our Nation's veterans,
something we all agree is necessary.
In 2008, Congress passed The Veterans' Benefits Improvement Act
(P.L. 110-389). Included in the bill was the Fully Developed Claim
(FDC) pilot program, which allows veterans filing fully developed
claims to waive the lengthy development period and receive expedited
consideration. FDC was originally a 1-year pilot program conducted at
10 VA Regional Offices, and, due to its success, VA recently announced
that it would implement the program nationwide.
I support VA's decision to rollout this program nationwide;
however, I would like to see FDC become law with a couple small
improvements. The RAPID Claims Act would codify FDC while also
modifying it to protect a veteran's effective date for disability
compensation and ensuring a veteran who mistakenly files an
unsubstantially complete claim in FDC is given fair notice what further
evidence is needed to complete the claim.
When participating in the normal claims process, a veteran can
submit a claim at any time--marking the claim's effective date--and the
veteran still has up to a year to gather evidence. However, a veteran
seeking to participate in FDC may gather evidence independently,
preventing an establishment of an effective date for that veteran's
disability compensation. This evidence period can take months or up to
a year, costing a veteran hundreds or even thousands of dollars in
missed benefits. The RAPID Claims Act would allow a veteran gathering
evidence for a fully developed claim to mark an effective date for his
or her compensation by notifying VA that a fully developed claim is
forthcoming. Marking this effective would help ensure that the
veteran's compensation is made retroactive to an appropriate date.
Additionally, some veterans will submit claims through FDC that VA
will decide do not qualify for the program for a number of reasons,
including missing evidence. If VA determines that a claim submitted
through FDC is ineligible, I am concerned VA may not immediately notify
the veteran of what is needed to substantiate the claim. If VA
processes the claim before notifying the veteran, this could lead to
incomplete and unsatisfactory results for the veteran, causing more
appeals and longer processing periods for veterans. The RAPID Claims
Act would modify FDC to require VA to notify and assist the veteran to
help substantiate such claims.
Finally, The RAPID Claims Act also has a provision targeted at the
appeals process. The bill would require that the VA Appeals form is
included with the Notice of Decision letter, instead of waiting for a
veteran to exercise his or her appeal rights before sending the form to
the veteran. I believe this is a simple courtesy VA could extend to our
Nation's veterans.
Once again, thank you Chairman Hall, Ranking Member Lamborn, and my
Subcommittee colleagues for the opportunity today to highlight what I
feel are simple solutions to help improve the disability claims process
for our veterans. While we have achieved much on behalf of our veterans
in recent years, I think we all agree further steps are needed to
reduce the wait times faced by veterans and to simplify the process.
Thank you.
Prepared Statement of Richard F. Weidman,
Executive Director for Policy and Government Affairs,
Vietnam Veterans of America
Good morning, Mr. Chairman, Ranking Member Lamborn, and
distinguished Members of the Subcommittee. Thank you for giving Vietnam
Veterans of America (VVA) the opportunity to offer our comments on the
important legislative proposals under consideration today.
H.R. 3407, the ``Severely Injured Veteran Benefit Improvement Act''
would increase rates of the following veterans' benefits: (1) wartime
disability compensation for veterans in need of regular aid and
attendance or higher levels of care; and (2) the non service-connected
disability pension for veterans of a period of war whose disability is
rated permanent and total and who are permanently housebound.
H.R. 3407 also makes disabled veterans with severe burn injuries
eligible for automobile and adaptive equipment assistance; and, it
makes veterans who suffer traumatic brain injury eligible for wartime
disability compensation; and, this bill also authorizes the Secretary
of Veterans Affairs (VA) to increase the rate of the special pension
for persons entered on Medal of Honor rolls.
Lastly, H.R. 3407 would extend to September 30, 2021, provisions
concerning the treatment of pension amounts of Medicaid-covered
veterans who are receiving nursing facility services.
Vietnam Veterans of America applauds Congressman Buyer for
introducing this much needed legislation, and also commends the more
than two dozen co-sponsors from both sides of aisle. This proposal
would recognize the needs of veterans with severe Traumatic Brain
Injuries (TBI) and terrible burns to make sure that the special needs
of these severely wounded veterans are properly recognized and
compensated to put them on an appropriate par with veterans suffering
more ``traditional'' catastrophic injuries. Frankly TBI and terrible
burns from explosive devices have become ``signature wounds'' of our
current conflicts in Iraq and Afghanistan, along with Post Traumatic
Stress Disorder (PTSD). When Congressman Buyer introduced this
important legislation, almost 1 year ago, he correctly noted that many
(if indeed not most) of these servicemembers would likely have died of
their wounds in earlier conflicts, therefore it is incumbent on us to
make sure that the law (and the regulations) reflect the fact that they
survived and have significant needs that need to be properly addressed.
It is right and fitting to modify the statutes to ensure that those
with severe TBI and burns are eligible for automobile and for adaptive
equipment, and that those with TBI be eligible for wartime disability
compensation and eligible for aid and attendance.
Earlier this year Congress passed the so-called ``Care Givers''
bill, which VVA supported, even though this bill only assisted the
caregivers for the veterans of a single conflict. This distinguished
Committee has a long and history and deep tradition of at least trying
to ensure equity among the generations, and trying to ensure that one
generation of veterans is not in effect pitted against another
generation. The referenced legislation was and is much welcomed by the
caregivers for the current generation of veterans who have returned
from the Global War On Terror, as well as by all of us who care deeply
about their well-being, and the Congress is to be commended for this
important step. That program is indeed needed to ensure that these
veterans and their families have every opportunity to stay together,
solvent, and in their home with dignity and with a relatively decent
standard of living. The motivation to ``do right by this new
generation'' and not repeat what the country did to those returning
from Vietnam and our families is very strong.
While H.R. 3407 takes a somewhat different approach, enactment of
this proposed legislation would go a long way toward restoring equity
for those who have been providing care for veterans of earlier
conflicts by significantly increasing the rate of special compensation
to all severely disabled veterans, thereby easing the strain of caring
for these veterans most in need. It would also accord a major increase
to non service connected severely disabled wartime veterans who are
housebound, many of whom served our country well in earlier wars and
are now in need of such assistance. It will have the effect of making
it possible for these veterans to stay in their homes, with dignity, as
they approach the end of life. While we are grateful for COLAs when
they come, this has not been enough to have nearly the effect that this
bill will have on these deserving veterans.
Lastly, H.R. 3407 authorizes the Secretary of Veterans Affairs to
increase the special pension for persons entered on the Medal of Honor
rolls, within the limit of existing funds, up to $2,000 per month. As
there are only 80 or fewer living recipients, this will obviously not
be fiscal strain on the country, but will help better recognize these
extraordinary Americans.
H.R. 3787 the ``Honor America's Guard-Reserve Retirees Act'' (As
Amended By Nature of A Substitute) would deem as active duty service,
for purposes of benefits provided through the Department of Veterans
Affairs (VA), service of a person entitled to retired pay for non-
regular (reserve) service or, but for age, would be so entitled.
With the advent of the ``total force'' concept in the overall
United States military, and the very heavy reliance on Reserve forces
of all of the braches of our military, and also heavy reliance on the
National Guard, to wage war and to accomplish the mission of defending
the Nation, the very nature of service in these units has so
dramatically changed for these personnel since they first entered
service as to make the previous distinction between active duty and
Guard-Reserve a very blurred line indeed. There is a need to change the
law regarding benefits accorded by the VA to reflect these changes in
the nature of service. The axiom ``same hostile fire--same benefits''
is appropriate here. VVA strongly favors enactment of this bill.
H.R. 4541 the ``Veterans Pensions Protection Act of 2010'' would
exclude from annual income, for purposes of eligibility for pensions
for veterans and their surviving spouses and children, reimbursements
resulting from: (1) any accident; (2) any theft or loss; (3) any
casualty loss; (4) medical expenses resulting from any such accident,
theft, or loss; and (5) pain and suffering (including insurance
settlement payments and general damages awarded by a court) related to
such accident, theft, or loss.
The VA practice of including all funds received from any source,
including one time receipt of restitution of property for theft or
fire, as income for those on non service connected pension from VA was
never a particularly wise one, and was often seen a just plain perverse
and mean spirited. VVA commends Mr. Hastings and his colleagues who
have co-sponsored this measure, and urge the Congress move toward
enactment at an early date.
H.R. 5549 ``The Rating and Processing Individuals' Disability
Claims Act' or the `RAPID Claims Act' '' would allow a veteran who has
representation from an accredited representative to waive lengthy
waiting periods when filing a claim if they and their representative
have gathered all evidence and relevant information, and it would
further require the Secretary to consider the claim in an expeditious
manner.
VVA has long maintained that the key to eliminating the backlog is
proper preparation of claims, and making the process yield more
accurate determinations. This very simple and straightforward bill will
codify what is just common sense.
VVA favors early passage of this legislation.
H.R. 5064 the ``Fair Access to Veterans Benefits Act of 2010''
would extend the 120-day limit for the filing of an appeal to the Court
of Veterans Appeals after a final decision of the Board of Veterans'
Appeals upon a showing of good cause for such time as justice may
require. The proposal considers as good cause the inability of a person
to file within the 120-day period due to a service-connected
disability. Further, the bill would make such extension applicable to
appeals of final Board decisions issued on or after July 24, 2008.
It has never made any sense to those of us at Vietnam Veterans of
America (VVA) that the VA can take any amount of time such as they may
consume to take an action on a claim by an individual veteran, but woe
to the veteran who misses a VA deadline, no matter how valid the
reason. This proposed action simply makes this process a bit more
equitable in that if the veteran misses a deadline due to that very
disability in question, or a related disability, then the appeal will
be considered.
VVA strongly favors early passage of this legislation.
Mr. Chairman, this concludes my remarks. Many thanks to you and
your colleagues again for allowing Vietnam Veterans of America (VVA) to
share our views with this distinguished committee today. I will be
pleased to answer any questions you or your colleagues may have.
Prepared Statement of John L. Wilson,
Assistant 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 various
bills under consideration by this Subcommittee today.
H.R. 3407, the Severely Injured Veterans Benefit Improvement Act of
2009, would amend title 38, United States Code, to make certain
improvements to laws administered by the Secretary of Veterans Affairs
relating to benefits for severely injured veterans.
Section 2 would increase the rate of monthly disability
compensation for severely injured veterans subject to section 5503 (c)
of title 38 in need of regular aid and attendance from $1,893 to $2,840
and from $2,820 to $4,230 for those eligible under paragraphs one and
two respectively. DAV supports this increase in monthly compensation
for this important group of veterans who must deal with significant
levels of disability as a result of their service-connected conditions.
Section 3 would expand the eligibility for automobile and adaptive
equipment grants to disabled veterans and members of the armed forces
with severe burn injuries. Currently a veteran or servicemember must
have the loss, or permanent loss of use, of one or both feet; loss, or
permanent loss of use, of one or both hands, or permanent impairment of
vision in both eyes to a certain degree. Those qualified for the
automobile grant must currently have ankylosis, immobility of the
joint, of one or both knees or hips resulting from an injury or disease
incurred or aggravated by active military service may also qualify for
the adaptive equipment grant. Adaptive equipment includes power
steering, power brakes, power windows, power seats, and special
equipment necessary to assist the eligible person into and out of the
vehicle.
While DAV supports the expansion of this benefit, we must also
raise the related issue of the adequacy of automobile and adaptive
equipment grants themselves. Because sporadic adjustments have not kept
pace with increasing costs, over the past 53 years the value of the
automobile allowance has been substantially eroded. In 1946, the $1,600
allowance represented 85 percent of the average retail cost and was
sufficient to pay the full cost of lower priced automobiles. The
Federal Trade Commission cites National Automobile Dealers Association
data that indicate that the average price of a new car in 2009 was
$28,400. The current $11,000 automobile allowance represents 62 percent
of the 1946 benefit when adjusted for inflation by the Consumer Price
Index (CPI); however, it is only 39 percent of the average cost of a
new automobile. To restore equity between the cost of an automobile and
the allowance, the allowance, based on 80 percent of the average new
vehicle cost, would be $22,800. In accordance with The Independent
Budget and DAV Resolution 171, our recommendation is that Congress
enact legislation to increase the automobile allowance to 80 percent of
the average cost of a new automobile in 2009 and then provide for
automatic annual adjustments based on the rise in the cost of living.
We also recommend that Congress consider increasing the automobile
allowance to cover 100 percent of the average cost of a new vehicle and
provide for automatic annual adjustments based on the actual cost of a
new vehicle, not the CPI.
Additionally, in accordance with DAV Resolution No. 172, we note
that section 3902 of title 38, United States Code, and section
17.119(a) of title 38, Code of Federal Regulations, restrict the
eligibility for adaptive equipment to those veterans who qualify for
the automobile grant as specified in section 3901 of title 38, United
States Code. Not all veterans whose service-connected disabilities
prohibit the safe operation of a motor vehicle meet the requirements of
section 3901 of title 38, United States Code and we contend that
veterans should be provided the adaptive equipment necessary to safely
operate a motor vehicle. Therefore, DAV recommends that Congress adopt
legislation to provide or assist in providing the adaptive equipment
deemed necessary to any veteran whose service-connected disability
interferes with the safe operation of a motor vehicle.
Section 4 would increase the non service-connected pension payments
for certain veterans. DAV has no position on this issue.
Section 5 would expand the eligibility of veterans with traumatic
brain injury for aid and attendance benefits. Veterans currently
eligible in this category include bilateral deafness (and the hearing
impairment in either one or both ears is service connected) rated at 60
percent or more disabling and the veteran has also suffered service-
connected total blindness with 20/200 visual acuity or less, or if the
veteran has suffered service-connected total deafness in one ear or
bilateral deafness (and the hearing impairment in either one or both
ears is service connected) rated at 40 percent or more disabling and
the veteran has also suffered service-connected blindness having only
light perception or less, or if the veteran has suffered the anatomical
loss of both arms so near the shoulder as to prevent the use of
prosthetic appliances. DAV has no position on this issue.
Section 6 would authorize the Secretary of Veterans Affairs to
increase the Medal of Honor special pension by up to $1,000 more per
month, as funds are appropriated. DAV would not be opposed to this
group of veterans who have rightfully earned this Nation's highest
honor to also received increased compensation as detailed in this
legislation.
Section 7 amends title 38, United States Code, section 5503, which
addresses hospitalized veterans and estates of incompetent
institutionalized veterans. This bill extends the statute for
hospitalization eligibility dates for treatment of veterans with non
service-connected disabilities from September 30, 2011 to September 30,
2021. DAV has no position on this issue.
H.R. 3787 would amend title 38, United States Code, to deem certain
service in the Reserve components as active service for purposes of
laws administered by the Secretary of Veterans Affairs. Specifically,
this bill seeks to extend ``veterans status'' to individuals who have
completed 20 years of military service in Reserve status. While DAV has
no resolution on this matter, we do have concerns that by granting
veterans status now there may be unintended consequences in the future.
A redefinition of the term veteran may then lead to efforts to extend
benefits due those newly defined and their dependents and survivors.
This potential for the expansion of benefits could then negatively
impact the benefits available to current veterans, their dependents and
survivors.
H.R. 4541, the Veterans Pensions Protection Act of 2010, would
exempt reimbursements of expenses related to accident, theft, loss, or
casualty loss from determinations of annual income with respect to
pensions for veterans and surviving spouses and children of veterans.
This legislation is outside the scope of the DAV's mission as it
addresses pension benefits for non service-connected conditions. We
nonetheless have no opposition to its favorable consideration.
H.R. 5064, the Fair Access to Veterans Benefits Act of 2010, would
provide for the equitable tolling of the timing of review for appeals
of final decisions of the Board of Veterans' Appeals. Essentially, 120-
day period would be extended to claimants when they can provide a
showing of good cause for not previously having been able to file a
notice of appeal within the normally prescribed timeline. Examples of
``good cause'' include issues such as physical or mental incapacities.
Current law does not provide for equitable tolling of the appeal period
if a veteran is physically or mentally incapacitated and unable to file
the appeal within the allotted time period. Yet, it is these very
disabilities that may significantly impact a veteran's ability to file
the appeal paperwork in the proper time frame. DAV has testified on
this proposal. This bill partially fulfills DAV Resolution No. 226,
which calls for legislation to broaden the definition of equitable
tolling, or the addition of a good cause provision to ensure that all
veterans are not prevented from timely filing appeals for adverse
decisions due to physical or mental incapacities, sending the request
for appeal to the wrong office or other good cause reasons. DAV
certainly supports this legislation as it moves the appeals process
closer to providing a reasonable opportunity for veterans in certain
circumstances to continue their appeals.
H.R. 5549, the Rating and Processing Individuals' Disability Claims
Act or the RAPID Claims Act seeks to provide expedited procedures for
the consideration of certain veterans' claims. Specifically, the bill
would expedite those claims certified as fully developed for
individuals represented by veterans service organizations (VSOs) or
other representatives who waive the development period afforded them by
the Veterans Claims Assistance Act. Further, if the claimant submits
written notification of their intent to submit a fully developed claim
and then does so within 365 days of that notice, the Secretary will
accept this informal claim when it is submitted with the date of claim
as that of the claimant's original informal claim notice. Lastly, this
bill would reinstate VA's duty to assist when VA deems a claim is not
ready to rate and requires them to notify the claimant accordingly.
The Fully Developed Claim (FDC), mandated by Congress under Public
Law 110-389, was recently launched by the VA and is similar to this
bill in seeking to expedite claims that are ready to rate. However the
VA's FDC program is missing key protections for veterans that this bill
offers. First, under the FDC pilot there is no provision that would
allow a veteran to file an informal claim to protect their effective
date before submitting the FDC application.
Also, under the current claims system, a veteran may submit an
informal claim before beginning development in order to secure an
earlier effective date for a later disability rating. The FDC program,
while quicker once adjudication begins, does not protect this earlier
date, forcing a veteran to choose between an earlier effective date or
quicker claims processing. Second, when a veteran elects to participate
in the FDC program and waives some VCAA notice requirements, there are
no provisions requiring that VA comply with notice requirements should
that claim be returned to the normal claims process.
H.R. 5549 offers important adjustments to current processes that
the VA has yet to incorporate into its many pilots. We recommend its
passage.
We are pleased with the interest that Congress has shown in its
oversight and investigation of the benefits delivery process. While we
also applaud the Veterans Benefits Administration (VBA) for their
openness and outreach to the VSO community, we still remain concerned
about their failure to integrate us into their reform efforts or
solicit our input at the beginning of the process. This is a mistake
for a number of reasons: VSOs not only bring vast experience and
expertise about claims processing, but our local and national service
officers hold power of attorney (POA) for hundreds of thousands of
veterans and their families. In this capacity, we are an integral
component of the claims process. We make VBA's job easier by helping
veterans prepare and submit better claims, thereby requiring less time
and resources for VBA to develop and adjudicate veterans' claims. We
would encourage VBA to integrate us during the planning stages of new
initiatives and pilots, as well as throughout the ongoing Information
Technology (IT) development.
We also encourage Congress to await enactment of other legislation
modifying any particular approach in the claims process until the
results of the 30-plus pilots are known. Additionally, we would
encourage Congress to continue to use its oversight and investigation
authority in working with the Administration in examining the many
initiatives currently underway. Questions for your consideration remain
in the midst of this flurry of activity. For example, is there a
deliberative, focused structure in place to monitor these pilots? What
was the planning for each of them? How are the findings for each of
them organized? What is the plan to assess the successes and lessons
learned? What is the standard for success? What metrics are in place?
Do the metrics include timeliness, accuracy and quality measures? How
are best practices being captured and integrated into other pilots?
Does the IT piece of this plan respond to the call by VSOs to ensure we
are kept in the information loop when new evidence is requested from a
veteran?
We are concerned that in an effort to meet the Secretary's goal of
``breaking the back of the backlog'' there could be a bias towards
process improvements that result in greater production over those that
lead to greater quality and accuracy. Is the Veterans Benefit
Management System (VBMS) being rushed to meet self-imposed deadlines in
order to show progress towards ``breaking the back of the backlog?'' We
have been told that rules-based decision support will not be a core
component of the VBMS, but that it will be treated as a component to be
added-on after its rollout, perhaps years later. We question whether
the VBMS can provide maximum quality, accuracy and efficiency without
taking full advantage of the artificial intelligence offered by modern
IT through the use of rules-based, decision support. In addition, the
VBMS must have comprehensive quality control built in, as well as
sufficient business practices established, to ensure that there is
real-time, in-process quality control, robust data collection and
analysis and continuous process improvements.
We would urge the Committee to fully explore these issues with VBA.
With regard to IT, we offer that an independent, outside, expert review
of the VBMS system might be helpful while it is still early enough in
the development phase to make course corrections, should they be
necessary.
The last bill to address is an amendment to H.R. 3787, which seeks
to modify the original bill's title and other provisions. As previously
stated, while DAV is not opposed, we do have concerns that by granting
veteran status to those who completed a full career in a Reserve
status, there may well be unintended consequences in the future.
That concludes my testimony and I would be happy to answer any
questions the Subcommittee may have.
Prepared Statement of Barry A. Searle, Director,
Veterans Affairs and Rehabilitation Commission, American Legion
Mr. Chairman and Members of the Subcommittee.
Thank you for the opportunity to present the views of The American
Legion on: H.R. 3407, Severely Injured Veterans Improvement Act of
2009; H.R. 3787, To deem certain service in the Reserve Components as
active service for the purpose of laws administered by the Secretary of
Veterans Affairs; H.R. 4541, Veterans Pensions Protection Act of 2010;
and, H.R. 5064, Fair Access to Veterans Benefits Act of 2010; and H.R.
5549, the Rapid Claims Act.
H.R. 3407: Severely Injured Veterans Benefit Improvement Act of 2009
The American Legion has a proud history of advocacy for America's
veterans. All veterans, particularly severely injured veterans and
those who have been awarded the Purple Heart deserve the utmost respect
and have truly deserved the thanks of a grateful Nation. The American
Legion recognizes the importance of caring for those injured through
service as expressed through an organizational resolution titled: The
American Legion Policy on VA Compensation. This resolution states that
we, who are not forced on a daily basis, to contend with physical and
psychological injuries received as a result of selfless service to this
Nation, can never fully repay these severely injured heroes.
H.R. 3407, the ``Severely Injured Veterans Benefit Improvement Act
of 2009,'' focuses on increased compensation for disabled veterans, and
recipients of the Purple Heart. It further adds Traumatic Brain Injury
(TBI) for eligibility for aid and attendance benefits, and severe burn
injuries of both veterans and active duty members for adaptive
equipment to automobiles, and extends the provisions of an existing
pension for certain hospitalized veterans.
The American Legion has testified before Congress numerous times
concerning the need for increased assistance to veterans who have been
injured in service to this country. We are pleased that this bill
increases the special monthly compensation rate for aid and attendance
for severely injured veterans. While overall inflation is relatively
low in today's economy, the costs of caring for severely injured
veterans at home to include personal health care services on a daily
basis continue to increase.
Traumatic Brain Injury (TBI), ``the signature wound for Iraq and
Afghanistan,'' along with severe burns, is a legacy of the tactics
being conducted by our enemies in Iraq and Afghanistan. The improvised
explosive device (IED) is the weapon of choice for our enemy, and is
insidious in its utilization and often even more devastating in its
long-term effects than gunshots due to the multiple and terrible wounds
and burns it produces. The American Legion has undertaken an effort to
better understand TBI and Post Traumatic Stress Disorder (PTSD) in
order to become more of a subject matter expert on the issues. On a
regular basis new information is being developed both by military and
civilian medical authorities which show how vulnerable the brain is to
impacts, even those from sporting events such as professional football.
It can be surmised that in the near future research will conclusively
show that TBI is a debilitating and long lasting injury. Clearly,
veterans who in many cases have been exposed to multiple severe
explosions should be added to the need for aid and attendance.
Likewise, the terrible scars and the attending loss of appendages
and range of motion due to the fire resulting in an IED explosion are a
life-long sacrifice our veterans and military personnel must endure as
a result of service to this Nation.
H.R. 3407 authorizes adaptive equipment for automobiles of veterans
and servicemembers with severe burns and other disabilities. The
American Legion believes that these warriors have suffered and will
continue to suffer for their entire lives and should not be forced to
pay for the adaptive equipment necessary to bring some normalcy to
their lives upon their return. The cost to adapt personal vehicles to
improve mobility and to give some semblance of personal independence is
not too great a cost for this Nation to give these wounded warriors.
Finally, H.R. 3407 authorizes, subject to the availability of
appropriations for the purpose, the VA Secretary to increase the
monthly special pension by not more than $1,000. Once again The
American Legion feels that a recipient of the Congressional Medal of
Honor is of a special class of veteran. These recipients have given
this Nation ``conspicuous gallantry above and beyond the call of
duty.'' It is right that this Nation give some token of esteem in the
form of an increase to their special pension.
The American Legion supports H.R. 3407
H.R. 3787: To amend title 38, United States Code, to deem certain
service in the reserve components as active service for
purposes of laws administered by the Secretary of Veterans
Affairs.
The American Legion has no position on this specific legislation at
this time.
However, The American Legion does feel that there is a need for
appropriate entitlements based on levels of sacrifice. In the case of
H.R. 3787 reserve component members must meet the criteria of having
completed a minimum of 20 ``good'' years for retirement. In those 20
years the servicemember is required to maintain physical fitness and
professional standards to include military and civilian education, and
weapons and equipment qualifications. In some cases these activities,
in particular, maintaining physical fitness, and weapons qualification
can have long term negative impact on hearing, and sensitive joints
such as knees and shoulders.
The role of the Reserve Component servicemember has changed since
the Gulf War that began in 1990. Prior to that war the reserve
component was regarded as a strategic force to be called upon when
greater mobilization of the armed forces was required for our national
security. However, much of the combat power that comprises our
warfighting efforts now resides in the reserve component. For this
reason, the reserve component has changed from a strategic force to an
operational force. Thus, in a wartime era, where we as a Nation are
relying more and more on the Guard and Reserve, it is imperative that
earned benefits fairly reflect level of sacrifice. The American Legion
will continue to review the issue of fair entitlements for Reserve and
Guard members to develop a fair and complete organizational resolution
that supports fair equity in benefits for all who have served.
H.R. 4541: Veterans Pensions Protection Act of 2010
This legislation would amend title 38, United States Code, to
exempt reimbursements of expenses related to accident, theft, loss or
casualty loss from determinations of annual income with respect to
pensions for veterans and surviving spouses, and children of veterans.
The American Legion has no position on this legislation
H.R. 5064: Fair Access to Veteran's Benefits Act
H.R. 5064 reflects current procedures concerning equitable tolling.
Equitable tolling is a doctrine or principle of tort law: a statute of
limitations will not bar a claim if despite use of due diligence the
plaintiff did not or could not discover the injury until after the
expiration of the limitations period.
Under 38 U.S.C. Sec. 7266(a), an appellant has 120 days from the
date the notice of a final decision of the Board of Veterans' Appeals
(BVA) is mailed to file a notice of appeal (NOA) to the United States
Court of Appeals for Veterans Claims (CAVC). From 1998-2008, previous
precedential decisions of the United States Court of Appeals for the
Federal Circuit (Bailey) had permitted equitable tolling by the CAVC
for the 120 day time period under Sec. 7266(a). The Supreme Court,
however, in Bowles v. Russell, 551 U.S. 205 (2007), made it clear that
the timely filing of a NOA in a civil case is a jurisdictional
requirement and that courts have no authority to create exceptions. The
Supreme Court further concluded that only Congress can make such
exceptions.
In Henderson v. Shinseki, the CAVC ultimately dismissed the
veteran's appeal because he had missed the 120 day deadline by 15 days.
The veteran argued that his service-connected mental disorder, rated
100 percent disabling, caused him to miss the deadline. While Mr.
Henderson's appeal was pending at the CAVC, the Supreme Court rendered
its decision in Bowles, in which it stated that ``the timely filing of
a notice of appeal in a civil case is a jurisdictional requirement,''
and thus cannot be waived. The Court also stated that it had no
authority to create equitable exceptions to jurisdictional
requirements.
On July 24, 2008, the CAVC ruled in a 2-1 decision that the holding
in Bowles prohibited it from using equitable tolling to extend the 120-
day appeal period set forth in Sec. 7266(a). The CAVC determined that
Congress had ``specifically authorized'' it to conduct ``independent
judicial appellate review'' of the BVA, and that well-settled law
established that its cases were ``civil actions.'' Starting from that
premise, the CAVC concluded that Sec. 7266(a) was a notice of appeal
provision in a civil case, and that it was jurisdictional and could not
be equitably tolled. Accordingly, the court ruled that the Federal
Circuit's precedent in Bailey was effectively overruled, and it
dismissed Mr. Henderson's appeal for lack of jurisdiction.
Mr. Henderson subsequently filed a timely appeal of the CAVC
decision with the United States Court of Appeals for the Federal
Circuit. On December 17, 2009, the Federal Circuit affirmed the
decision of the CAVC dismissing the veteran's appeal for lack of
jurisdiction.
The Federal Circuit decision in Henderson, citing the Supreme Court
decision in Bowles, has made it quite clear that equitable tolling in
veterans' appeals at the Federal court level is prohibited. In April of
this year, Senator Arlen Specter introduced S. 3192, the ``Fair Access
to Veterans Benefits Act,'' to require the CAVC to consider if a
veteran's service-connected disability would have made it difficult or
impossible for him or her to meet a deadline for filing an appeal.
The American Legion Resolution No. 32, adopted at the 2008 National
Convention, supports proposed legislation that would extend the 120 day
CAVC appeal deadline to 1 year following the BVA final denial of an
appeal. It is in keeping with both the spirit and intent of Resolution
No. 32 to support legislation, such as H.R. 5064, that would allow the
CAVC to apply equitable tolling in certain situations, especially in
such instances where the veteran's service-connected disability
hindered the filing of a timely appeal.
The American Legion supports H.R. 5064.
H.R. 5549
The Rating and Processing Individual's Disability Claims Act (RAPID
Claims Act)
This legislation would amend title 38, United States Code, to
provide for expedited procedures for the consideration of certain
veteran's claims, and for other purposes. H.R. 5549 allows for the
waiver of claim development by VA in those cases where a veteran
certifies that he or she has submitted a ``fully developed claim.''
While this measure stands to potentially increase the speed with which
a veteran may receive benefits, there are still concerns about this
legislation. The American Legion supports efforts to streamline the
claims process, and to fast track those claims where additional work is
unnecessary. However, it is essential to ensure that veterans fully
understand what is being asked of them when they submit to these
waivers.
The intent is to relieve VA of certain required waiting periods so
that they may move more swiftly to a decision provided the veteran
certifies that no additional research is needed. While this is very
beneficial in many cases, unrepresented veterans may not fully
understand what is required to grant their claim, and therefore may
place themselves in jeopardy by not submitting crucial evidence.
The American Legion believes that there must be further
clarification on what mechanism is provided by H.R. 5549 to protect a
veteran in situations where a veteran may erroneously believe, and
therefore certify that all necessary development has been performed on
a claim. It is critical that the veteran would be entitled to return to
the traditional claims process at any point when it becomes clear that
the claim is in fact, ``not fully developed.'' In this way the rights
of the veteran would be protected while allowing for more speed in
processing.
It is understood that the veteran has the right to file a Notice of
Disagreement (NOD) with a decision and enter into the appeals process.
However, this would delay the claim as it moves through another bag
logged system and thereby defeats the purpose of the original intent of
H.R. 5549 to expedite accurate decisions of original claims.
In short, there are still concerns about the implementation of a
measure such as this and how it will affect veterans. The American
Legion would like to see more clarification and assurances of
protections for veterans so that they are not put in a situation where
they sacrifice their ability to receive thorough review of their claim
in the hopes of having it processed more swiftly.
With the previous concerns noted, The American Legion American Legion
supports H.R. 5549
As always, The American Legion appreciates the opportunity, to
testify and represent the position of the over 2.5 million veterans of
this organization and their families. This concludes my testimony.
Prepared Statement of Eric A. Hilleman, Director,
National Legislative Service, Veterans of Foreign Wars of the United
States
MR. CHAIRMAN AND MEMBERS OF THIS COMMITTEE:
On behalf of the 2.1 million members of the Veterans of Foreign
Wars of the United States and our Auxiliaries, the VFW would like to
thank this committee for the opportunity to present our views on
today's pending legislation.
H.R. 3407, Severely Injured Veterans Benefits Improvement Act of 2009.
We are proud to support this bill, which would increase aid and
attendance for severely injured veterans, qualify severely burned
veterans adaptive grants, increase pension for housebound veterans,
expand aid and attendance to cover veterans with traumatic brain injury
(TBI), and increase the service pension for Congressional Medal of
Honor (CMH) recipients.
Under this legation aid and attendance would increase by 50
percent. Section 2 increases the rate from $1,893 to $2,840 for
veterans qualifying for specific levels of Special Monthly Compensation
(SMC) and from $2,820 to $4,230 for veterans in receipt of SMC and in
need of regular aid and attendance. Further, section 5 allows veterans
suffering from TBI to qualify for SMC, as well as aid and attendance.
Veterans suffering from seriously debilitating injuries, such as TBI
and other injuries that qualify for SMC, will benefit greatly from this
increase in compensation. Rising costs of in-home care and assistance
have forced veterans and their families into tradeoffs between seeking
the assistance needed and purchasing basic staples. With this increase,
veterans will be able to live with a higher level of dignity and
quality of life.
Section 3 expands eligibly for those who have suffered severe burn
injuries to qualify for automobile and adaptive equipment grants. Given
the severe burns caused by many improvised explosive devices, veterans
are living with scar tissue that decreases range of motion and limits
the use of digits and extremities. Burn injuries, in some cases, are
extreme enough to require special adaptation to simply achieve basic
functionality and independent living. The VFW believes every possible
accommodation should be made to restore the highest level of
independence possible to these deserving veterans.
Section 4 increases certain special monthly pension by 10 percent
for veterans from $4,340 to $4,774 for a single veteran and from $5,441
to $5,985 for veterans with dependents. The VFW supports this increase.
The VFW enthusiastically supports this raising the CMH monthly
pension to $2000. Section 6 seeks to increase the rate of special
pension for CMH recipients from $1,000 a month up to an additional
$1,000 a month; but this additional pension is to be determined by the
Secretary subject to funding availability. We encourage Congress to
appropriate the necessary funding to provide CMH recipients with a full
monthly pension of $2,000. These extraordinarily brave American heroes
deserve our support and recognition for their sacrifice. As the few
remaining CMH recipients age, this compensation will serve to support
our prized heroes in their latter years.
Finally, the VFW supports Section 7, to extend pension to support
certain hospitalized veterans from September 30, 2011, to September 30,
2021.
H.R. 3787, the Honor America's Guard-Reserve Retirees Act
H.R. 3787 has in mind an extremely important goal: to give the men
and women who choose to serve our Nation in the Reserve Component the
recognition that their service demands. The mission of many guard and
reservists is to facilitate and support the deployments of their
comrades, so the unit is fully prepared when called upon.
Unfortunately, the law does not currently allow those who serve several
years and are entitled to retirement pay, TRICARE, and other benefits,
to call themselves `veterans'. Such men and women have been extremely
busy and have made extraordinary sacrifices and we believe they have
earned the right to call themselves a veteran.
In recent years, Congress has enhanced benefits to the members of
the Guard and Reserve to reflect our Nation's continued reliance on
their service. This bill adds noble recognition to those Americans who
stand at the ready for the duration of their career. Congressman Walz
has reaffirmed his intent by amending the language to ensure there will
be no budgetary impact to by bestowing the noble distinction of
`veteran' on this group of men and women.
The VFW is proud to support passage of this bill.
H.R. 4541, Veterans Pensions Protection Act of 2010
This legislation would protect pension payments from including
insurance settlements of any kind from the calculation amount in
determining pension. Further, this bill would require VA to make
determinations on the fair market value and replacement value of any
assets claimed for exclusion under the insurance settlement.
The VFW supports the intent of this legislation, but cannot support
this language. We believe that this bill would require VA to make
further determinations regarding replacement value in the cases of
insurance settlements. The current pension threshold for a veteran
without dependents is $11,830 annually. In order to exclude any income
resulting from an insurance settlement from factoring against that
amount, VA would need to further examine the values associated with the
insurance settlement. These additional decisions will further delay and
complicate a relatively simple benefit.
We would suggest this legislation be rewritten to accept any
insurance settlement as excluded from the calculation of pension. It is
likely this will achieve the noble goal of aiding a veteran in serious
financial distress, while allowing them to replace the loss of damaged
property. This also prevents VA from expending more resources to
develop other pension claims.
H.R. 5064, Fair Access to Veterans Benefits Act of 2010
VFW supports this bill, which would provide some flexibility in the
equitable tolling of timelines for the Board of Veterans' Appeals, and
for other purposes. We believe that this bill creates flexibility that
could favor veterans within the claims appeal process. The current 120-
day deadline to file an appeal to the U.S. Court of Appeals for
Veterans Claims (CAVC) does not leave room for veterans that may have
unique circumstances due to medical or mental health problems. An
example of this is the David Henderson case. Because he suffers from
paranoid schizophrenia, he was unable to meet the 120-day deadline and
was denied the right to appeal to the CAVC.
This is but one of many instances where a veteran was unable to
file a timely appeal due to the effects of a mental condition.
Subsequently, he was denied the ability to have his appeal heard by the
appropriate appellate body. We applaud the change that this legislation
makes in granting veterans, of past and present, latitude in the
appeals process. It provides a just and equitable system for those who
have suffered due to circumstances beyond of their control and ensures
they have their day in court.
H.R. 5549, the Rating and Processing Individuals' Disability Claims Act
or the Rapid Claims Act
The VFW is encouraged by this legislation, which would provide VA a
mechanism for identifying and expediting claims that are `ready-to-
rate' by granting the Secretary the authority to wave the mandatory 60-
day development period with the written permission of the veteran. If a
veteran submits a statement, which indicates the veteran's intent to
submit a fully developed claim, the veteran would have 1 year from the
date of submission to provide the Secretary with a fully developed
claim and access to the expeditious treatment of their claim. If the
Secretary determines a claim is not fully developed, the VA will notify
the veteran within 30 days of the evidence and information required to
rate the case.
The backlog of veterans' claims for disability compensation and
pension is approaching 900,000 and over a hundred thousand new claims
are expected to be filed every year for the foreseeable future. This
legislation will create the incentive for veterans and their duly
appointed representatives to present VA with fully developed cases in a
timely fashion. In turn, it will reduce the time and energy required of
VA to track down external evidence while developing cases.
While this legislation creates an incentive to compile outside
evidence and quickly address a veteran's claim, it does not stress the
importance of quality rating decisions. The VFW has always believed
quality decisions are central to addressing the long-term backlog and
instilling confidence in the VA's disability benefits system.
The VFW cannot support this legislation as written due to the
absence of the preservation of the date of claim in cases described
under Section 2, paragraph (2); which allows a veteran to submit a
statement of intent to submit a fully developed claim. As worded, we
believe the intent of this section was to imply that a veteran could
preserve a date of claim and still access the expedited claim process.
We would be happy to fully support this legislation with the inclusion
of language preserving the right to the date of claim.
Thank you for the opportunity to present our views before this
Subcommittee, and we welcome your questions.
Prepared Statement of Thomas J. Pamperin,
Associate Deputy Under Secretary for Policy and Program Management,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Mr. Chairman, I am pleased to provide the Department of Veterans
Affairs' (VA) views on pending legislation. I am accompanied today by
Assistant General Counsel Richard J. Hipolit.
I will not be able to address H.R. 5549, the Rating and Processing
Individuals' Disability Claims Act (RAPID Claims Act), included on
today's agenda, because we did not have sufficient time to develop and
coordinate the Administration's position and cost estimates. With your
permission, we will provide that information in writing for the record.
We also will provide in writing the completed cost estimates for
sections 2 and 5 of H.R. 3407, which we are currently completing.
H.R. 3407
H.R. 3407, the ``Severely Injured Veterans Benefits Improvement Act
of 2009,'' includes provisions that would: (1) increase special monthly
compensation rates for severely injured Veterans; (2) provide
eligibility for automobiles and adaptive equipment to disabled Veterans
and members of the Armed Forces with severe burn injuries; (3) increase
non service-connected disability pension for certain wartime Veterans;
(4) provide eligibility for aid and attendance benefits to Veterans
with traumatic brain injuries; (5) authorize the Secretary of Veterans
Affairs to increase Medal of Honor Special Pension; and (6) extend
current provisions relating to pensions for certain hospitalized
Veterans. The amendments made by this bill would become effective
September 30, 2011.
Section 2
Section 2 of the bill would increase the monthly rates of
disability compensation specified in 38 U.S.C. Sec. 1114(r)(1) and
(r)(2) as payable for aid and attendance, from $1,893 to $2,840, and
for higher levels of care, from $2,820 to $4,230.
VA supports the objective of H.R. 3407, to ensure that severely
injured Veterans are provided with the financial means to receive
proper care for their service-connected disabilities. However, we do
not support this provision. VA already has numerous authorities to
provide the most severely disabled Veterans with higher levels of care,
including the recently passed Caregivers and Veteran Omnibus Health
Services Act of 2010. There is no evidence that the proposed rate is
the correct rate. In addition, Congress would need to identify
appropriate cost-saving PAYGO offsets to offset the benefit costs which
are estimated to be $30.9 million for the first year, $163.4 million
over 5 years, and $351.3 million over 10 years. VA estimates that there
would be no additional administrative costs associated with this
provision.
Section 3
Section 3 would expand the category of persons eligible for
automobile allowance and adaptive equipment as specified in 38 U.S.C.
Sec. 3901(1) to include certain Veterans and members of the Armed
Forces serving on active duty who are disabled with a severe burn
injury, as determined under regulations prescribed by the Secretary.
VA recognizes that burn injuries are a likely result of the current
conditions of warfare in Iraq and Afghanistan because of the ubiquitous
use of improvised explosive devices (IED) by enemy forces. We also
understand the importance of providing Veterans disabled because of
severe burn injuries with eligibility for automobiles and adaptive
equipment benefits to help better manage their disability. Therefore,
VA does not object to this provision, subject to Congress identifying
appropriate cost-saving PAYGO offsets.
We are unable at this time to provide cost estimates associated
with enactment of this provision, but will provide that information in
writing for the record.
Section 4
Section 4 would increase monthly payments of non service-connected
disability pension under 38 U.S.C. Sec. 1521(e) to Veterans who, in
addition to being permanently and totally disabled, have additional
disability rated 60-percent or greater or are permanently housebound.
The rates would increase from $4,340 to $4,774 for unmarried Veterans
without dependents and from $5,441 to $5,985 for Veterans with a spouse
or dependent. VA supports the intent of providing for those Veterans
who served our country during wartime but who have limited income and
are severely disabled or permanently housebound because of non service-
connected disabilities. However, VA cannot support this provision
without better understanding how the new proposed pension level was
developed.
Under the 2006 precedent of the United States Court of Appeals for
Veterans Claims in Hartness v. Nicholson, the increased pension rate
under section 1521(e) would also be payable to wartime Veterans who are
not totally disabled but who are 65 years of age or older and who are
permanently housebound or have a disability rated at least 60-percent
disabling. Because we do not believe Congress intended payment of the
heightened pension rate to Veterans who are not totally disabled,
Secretary Shinseki on May 26, 2010, submitted to Congress proposed
legislation, the Veterans Benefit Programs Improvement Act of 2010, to
clarify that the rates payable under section 1521(e) apply only to
Veterans who are permanently and totally disabled and are also
permanently housebound or have additional disability independently
rated at least 60-percent disabling. That proposal would ensure that
the payments to which this legislation pertains are consistently based
on the existence of severe disability that includes permanent and total
disability.
Benefit costs are estimated to be $14.3 million for the first year,
$77.3 million over 5 years, and $160.3 million over 10 years. VA
estimates that there would be no additional administrative costs
associated with this provision.
Section 5
Section 5 would amend 38 U.S.C. Sec. 1114(o) to include traumatic
brain injury (TBI) among the list of disabilities that qualify for
special monthly compensation at the rated specified in section 1114(o).
Under the provision as written, this level of compensation would be
payable without regard to the severity of the TBI or the resulting
disability. Further, eligibility for payment under section 1114(o)
would also make Veterans with a TBI of any severity who are also in
need of aid and attendance eligible for payment of the higher rate
payable under 38 U.S.C. Sec. 1114(r) to Veterans in need of aid and
attendance.
We support the intent of providing equitable benefits to Veterans
suffering from severe traumatic brain injury symptoms. However, VA
cannot support the provision as written. The proposal would extend
eligibility for increased compensation rates currently payable only for
severe disabilities to Veterans suffering from any level of severity of
TBI disability, including mild TBI characterized by minor symptoms. The
inclusion of all levels of TBI as a basis for the payment rates under
section 1114(o) and (r) would be inconsistent with the purpose of those
provisions to address the needs of severely disabled Veterans. VA
believes any expansion of eligibility for the rates under section
1114(o) and (r) should be reserved for severe TBI cases with
significant physical, cognitive and/or emotional or behavioral
impairment. In addition, VA is implementing several new benefits for
Veterans with severe TBI through the recent regulation and legislation,
including the Caregivers and Veteran Omnibus Health Services Act of
2010.
We are unable at this time to provide cost estimates associated
with enactment of this provision, but will provide that information in
writing for the record.
Section 6
Section 6 would authorize the Secretary to increase by no more than
$1,000 the monthly rate of Medal of Honor Pension for fiscal years 2012
and 2013. The proposed increase is subject to the availability of
appropriations.
VA has serious concerns with this provision. Congress generally
prescribes rates of pension, compensation, and related benefits, and it
would be appropriate for it to prescribe a specific rate should it
choose to effect an increase in rates, dependent upon appropriations.
This proposal does not indicate the purpose of providing only a
temporary rate increase and provides no guidelines to determine the
extent of the increase. Further, we have significant concerns with the
prospect of using discretionary funds to provide a temporary enhanced
benefit on top of an existing mandatory entitlement. Two equally
eligible Veterans could receive different levels of compensation should
the discretionary funds appropriated for the purpose be insufficient.
VA estimates that costs for this provision, if the maximum
authorized increase were provided, would be $1.0 million per year and
$2.0 million over 2 years.
Section 7
Section 7 would amend 38 U.S.C. Sec. 5503(d)(7) to extend current
provisions governing pensions for certain Veterans in Medicaid-approved
nursing facilities that will expire on September 30, 2011. The proposal
would extend until September 30, 2021, the provisions in section
5503(d) providing such Veterans a protected pension payment that cannot
be used to reduce the amount of Medicaid benefits payable for the
Veteran's care. VA supports this proposal to extend valuable benefits
to deserving wartime Veterans who have limited incomes and require
hospitalization for non service-connected disabilities.
VA estimates that enactment of this provision would result in VA
cost savings of approximately $560 million during the first year, $2.9
billion for 5 years, and $6.2 billion over 10 years. There will be
Medicaid costs, and VA will provide the net budgetary effect to the
Federal Government in writing at a later date. Also, States may incur
costs as Medicaid will pay a larger share of nursing home care.
H.R. 3787
H.R. 3787 would revise 38 U.S.C. Sec. 106 to deem certain persons
(namely, former members of the National Guard or Reserves who are
entitled under chapter 1223 of title 10, United States Code, to retired
pay for nonregular service or who would be entitled to such retired pay
but for their age) who have not otherwise performed ``qualifying active
duty service'' to have been on active duty for purposes of VA benefits.
Under current law, a National Guard or Reserve member is considered
to have served on active duty only if the member was called to active
duty under title 10, United States Code, and completed the period of
duty for which he or she was called to service. Eligibility for some VA
benefits, such as disability compensation, pension, and dependency and
indemnity compensation, requires a period of ``active military, naval,
or air service,'' which may be satisfied by active duty, or by certain
periods of active duty for training and inactive duty training during
which the servicemember becomes disabled or dies. Generally, those
periods are: (1) active duty for training during which the member was
disabled or died from disease or injury incurred or aggravated in line
of duty; and (2) inactive duty training during which the member was
disabled or died from an injury incurred or aggravated in line of duty.
H.R. 3787 would eliminate these service requirements for National
Guard or Reserve members who served in such a capacity for at least 20
years. Retirement status alone would make them eligible for all VA
benefits, despite not having served on active duty or in active service
or, if called to active duty, not having served the minimum active-duty
period required for eligibility.
VA does not support this bill. Current benefits eligibility is
based either on active duty or a qualifying period of active service
during which a member was physically engaged in serving the Nation in
an active military role. Active service is the foundation for providing
VA benefits. In recent years, the National Guard and Reserves have
played an important role in our Nation's overseas conflicts. Virtually
all those who served in recent conflicts were called to active duty,
which qualifies them as Veterans and provides potential eligibility for
VA benefits. This bill, however, would extend the same status to those
who were never called to active duty and did not suffer disability or
death due to active duty for training or inactive duty training, and
hence do not have active service. VA would be obligated to provide
compensation and health-care for disabilities resulting from injuries
incurred in civilian activities, as well as from diseases that develop,
during the 20 years that count toward retirement, regardless of any
relationship to actual active duty or training drills. Providing
compensation and other VA benefits based solely on retirement status
would be inconsistent with VA's mission of providing benefits to
Veterans who earned them as a result of active service.
Statutes already authorize memorial benefits (burial in national
cemeteries, burial flags, and grave markers) to this group of
individuals. Therefore, H.R. 3787 would not provide any additional
benefit related to the National Cemetery Administration (NCA), nor
would it present any additional budget concerns related to the benefits
NCA provides.
If H.R. 3787 as currently drafted were enacted, VA would incur
estimated benefit costs of $957.5 million during the first year, $6.0
billion over 5 years and $15.5 billion over 10 years. Veterans Benefits
Administration administrative costs are estimated to be $50.0 million
the first year, $73.2 million over 5 years, and $110.9 million over 10
years.
An alternate version of H.R. 3787 introduced as an amendment would
revise the definition of the term ``veteran'' in 38 U.S.C. Sec. 101(2)
to include these individuals. This broader definition of the term
Veteran would not be applicable for purposes of compensation under
chapter 11 of title 38, dependency and indemnity compensation under
chapter 13 of title 38, and hospital, nursing home, domiciliary and
medical care under chapter 17 of title 38. VA does not support this
alternative version of H.R. 3787 because it represents a departure from
active service as the foundation for Veteran status. VA estimates that
there would be no additional benefit or administrative costs associated
with this alternate version of H.R. 3787.
H.R. 4541
H.R. 4541, the ``Veterans Pensions Protection Act of 2010,'' would
liberalize the existing exemption in section 1503(a)(5) of title 38,
United States Code, by excluding from income, for purposes of
determining eligibility for improved pension, payments regarding
reimbursement for expenses related to: accident, theft, loss, or
casualty loss; medical expenses resulting from such causes; and pain
and suffering related to such causes.
The exemption for payments received to reimburse Veterans for
medical costs and pain and suffering is an expansion of the current
exclusions. We oppose excluding from countable income payments received
for pain and suffering because such payments do not represent a
reimbursement for expenses related to daily living. The proposed
treatment of such payments would be inconsistent with a needs-based
program. We believe that payments for pain and suffering are properly
considered as available income for purposes of the financial needs test
for entitlement under section 1503.
VA does not oppose the remaining provisions of this section
exempting reimbursement for accident, theft, loss, casualty loss, and
resulting medical expenses, subject to Congress identifying offsets for
any additional costs.
Because the current law excludes from pension income calculations
reimbursements from any casualty loss, there would be no benefit costs
associated with the provisions relating to accident, theft, loss, or
casualty loss. VA estimates there would be no additional administrative
or full-time employee costs associated with this bill.
H.R. 5064
H.R. 5064, the ``Fair Access to Veterans Benefits Act of 2010,''
would require the Court of Appeals for Veterans Claims (Veterans Court)
to extend ``for such time as justice may require'' the 120-day period
for appealing a Board of Veterans' Appeals (Board) decision to the
Veterans Court upon a showing of good cause. It would apply to a notice
of appeal filed with respect to a Board decision issued on or after
July 24, 2008. It would require the reinstatement of any ``petition for
review'' that the Veterans Court dismissed as untimely on or after that
date if, within 6 months of enactment, an adversely affected person
files another petition and shows good cause for filing the first
petition on the date it was filed.
Although VA supports the extension of the 120-day appeal period
under certain circumstances, VA has several concerns with this bill.
Because the bill would not limit the length of time the appeal period
could be extended, appellants would potentially be able to appeal a
Board decision at any time after it was issued--even decades later--as
long as good cause is shown. This would create great uncertainty as to
the finality of Board decisions, which could burden an already
overburdened claim-adjudication system and create confusion as to
whether a VA regional office, the Board, or the Veterans Court has
jurisdiction over a claim.
Petitions for relief under the ``good cause'' provision could
potentially add hundreds of cases to the Veterans Court's docket, which
could increase the processing time for all cases in the court's
inventory. The reinstatement of already dismissed untimely appeals
could add even more cases. In view of the open-ended and retroactive
nature of the provision, the potential number of new appeals is
impossible to quantify, but it might be enormous.
To avoid these and other potential problems resulting from an
unlimited appeal period and retroactive application, Secretary Shinseki
submitted to Congress the Veterans Benefit Programs Improvement Act of
2010, mentioned earlier in this testimony, which would take a more
focused approach. It would permit the Veterans Court to extend the
appeal period for up to an additional 120 days from the expiration of
the original 120-day appeal period upon a showing of good cause,
provided the appellant files with the Veterans Court, within 120 days
of expiration of the original 120-day period, a motion requesting
extension. The proposal would ameliorate harsh results in extreme
circumstances, e.g., if a claimant were mentally incapacitated during
the entire 120-day appeal period, but by limiting how late an appellant
could request extension and how long the period could be extended,
would not unduly undermine the finality of Board decisions, which is
necessary for efficient administrative functioning. Placing an outer
limit on the appeal period would maintain the purpose of the rule of
finality, which is to preclude repetitive and belated adjudication of
Veterans' benefits claims.
In addition, the proposal would be applicable to Board decisions
issued on or after the date of enactment and to Board decisions for
which the 120-day period following the 120-day appeal period has not
expired as of the date of enactment. It would provide a generous
approach but one that is carefully crafted so as not to unduly increase
the court's caseload and delay Veterans' receipt of timely final
decisions on their appeals.
We estimate that enactment of VA's legislative proposal as
contemplated would result in no significant costs or savings.
This concludes my statement, Mr. Chairman. I would be happy to
entertain any questions you or the other Members of the Subcommittee
may have.
Statement of Captain Ike Puzon, USN (Ret.), Director of Governmental
Affairs--Legislation, Association of the United States Navy
Mister Chairman and distinguished Members of the Committee, the
Association of the United States Navy is very grateful to have the
opportunity to submit testimony for the record on H.R. 3787, to amend
title 38, United States Code, to deem certain service in the reserve
components as active service for purposes of laws administered by the
Secretary of Veterans Affairs.
Our newly transitioned VSO-MSO association, since 1954, has worked
diligently to educate Congress, our members, and the public on Navy
veterans, Navy equipment, force structure, policy issues, and
personnel, DoD civilian and family issues.
I thank this Committee for the on-going stewardship on the
important issues of national defense and on behalf of veterans. Our
military and veterans along with their families are watching what
Congress is considering very carefully. At a time of war, non-partisan
leadership sets the example.
H.R. 3787--Full Veteran Status For Certain Guard/Reserve Retirees
Issue: Certain members of the Guard and Reserve components with 20
years or more service do not otherwise qualify under current law (Title
38) as veterans.
Background. All members of the Selected Reserve--those who
regularly train in designated military positions--volunteer for service
to the Nation and are liable for activation in its defense.
In the event that a reserve component member has not been called to
federal active duty during a 20-year-or-more service career, that full
reserve career service should be recognized as equivalent qualification
for full veteran status under the law. Over time, Congress has
authorized a number of veteran's benefits for such `gray area' reserve
retirees. In establishing such benefits, it's clear that these former
servicemembers are indeed veterans. (See accompanying rationale)
Twenty or more years of service in the reserve forces and
eligibility for reserve retired pay should be sufficient qualifying
service for full veteran status under the law.
This issue is a matter of honor to those who through no fault of
their own were never activated, but served their Nation faithfully for
20 or more years. It's now time for Congress to take the final step and
formally authorize these volunteer career citizen-warriors as veterans
under the law.
Military Coalition Position and The National Military Veterans
Alliance Position. Amend Title 38 to include in the definition(s) of
`veteran' retirees of the Guard/Reserve components who have completed
20 or more years of service, but are not otherwise considered to be
``veterans'' under the current statutory definitions. Career military
service in the reserve forces of our Nation should constitute
qualification for veteran status under the law.
Status. The Military Coalition recommends the introduction of
legislation that would accomplish this change. Suggested language
follows:
Adding a new subsection (g) in Section 106, 38 USC, `Certain
service deemed to be active service':
`(g) Any person--
(1) who is qualified for reserve retired pay under section
12731 of title 10 and is in receipt of reserve retired pay for
non-regular service under the provisions of chapter 1223 of
title 10; or,
(2) who is qualified for reserve retired pay under section
12731 of title 10 and has been separated or retired from the
Ready Reserve but is not yet age 60; and,
(3) has not otherwise performed qualifying active duty
service shall be considered to have been on active duty for the
purpose of all laws administered by the Secretary' [of Veterans
Affairs]
Rationale
As defined in law, members of the reserve components who have
completed 20 or more years of service are military retirees and
eligible upon reaching age 60 for all of the benefits of active duty
military retirees. However, they are not considered to be ``veterans''
if they have not served the number of consecutive days on federal
active duty (defined as active duty other than active duty for
training) required by law.
According to the Department of Veterans Affairs, ``Reservists who
served on active duty establish veteran status and may be eligible for
the full-range of VA benefits, depending on the length of active
military service and a discharge or release from active duty under
conditions other than dishonorable. In addition, reservists not
activated may qualify for some VA benefits''.
National Guard members can establish eligibility for VA benefits if
activated for federal service during a period of war or domestic
emergency. Activation for other than federal service does not qualify
Guard members for all VA benefits.''
Over time, Congress has authorized certain veterans benefits for
these retirees, indicating their `quasi-veteran' status. For purposes
of this discussion, these individuals will be referred to as ``non-
veteran retirees.''
VA benefits for non-veteran retirees who have not served on federal
active duty for the consecutive number of days required by law include:
VA disability compensation and VA health care for a non-
veteran retiree who is injured and/or disabled while performing
inactive duty for training regardless of length of service.
VA home loan eligibility in exchange for six or more
years of honorable service in the Selected Reserve
VA burial and memorial benefits for the non-veteran
retiree entitled to reserve retired pay at the time of death
Servicemen's Group Life Insurance (SGLI) and Veterans
Group Life Insurance (VGLI)
To qualify for a reserve retirement at age 60, a Guard or Reserve
member must accrue the equivalent of 20 years of ``points'' based on
the performance of military duty at a minimum of 50 points per year.
The minimum of 1000 qualifying retirement points roughly equates to
2.77 years of military duty based on the performance of drill duty
(inactive duty training), annual training, and professional development
in military science. (20 yrs. 50 points = 1000 pt minimum div
by 360 = 2.77 years military duty). Moreover, as volunteers, reservists
are liable for activation throughout their careers and required to
maintain their readiness for such eventualities.
Budgetary Considerations
Of primary concern to policy makers is the cost of designating non-
veteran retirees as veterans. We believe there would be little or no
cost for the following reasons:
By definition, non-veteran retirees will not have a VA disability
rating. Indeed, if they were injured while on military duty, they would
be eligible for a VA disability rating and VA health care. Most would
have assets and incomes above the VA Priority Group 8 means test, which
has been closed to new applicants for more than 4 years. A few
individuals in the non-disabled, non-veteran retiree cohort might
qualify for VA health care as Priority Group 7 means-tested
individuals. Very few would qualify for enrollment in Priority Group 5
as indigent veterans.
In almost all instances, these individuals will have other full-
time employment, either in the private sector, or as civilian
government employees. Many have health care insurance through their
employer. Once they reach age 60, they will be eligible for TRICARE.
Finally, the Nation's operational reserve policy requires the
routine activation of Guard and Reserve servicemembers for 12 months
every fifth or sixth year. Going forward, there will be a negligible
number of career reservists who would not qualify as active duty
veterans.
Summary
For the vast majority of non-veteran retirees, this issue is about
honor not benefits. They seek public and statutory recognition as
``veterans of the Armed Forces of the United States''. They volunteered
to serve, served honorably, and were prepared to serve on active duty
if called. The absence of statutory recognition is a vestige of the
Cold War, when the Nation relied upon conscription for its manpower. A
small cohort of today's volunteers should not be penalized for
decisions beyond their control concerning federal activation.
AUSN Request that you pass H.R. 3787, including as it may be amended
by Congressman Walz.
__________
Association of the United States Navy
Alexandria, VA.
June 28, 2010
The Honorable John Hall The Honorable
U.S. House of Representatives Douglas L.
Washington, DC 20515 ``Doug''
Lamborn
U.S. House of
Representati
ves
Washington,
DC 20515
Dear Chairman Hall and Ranking Member Lamborn:
The Association of the United States Navy (AUSN) representing
veterans, military members and their families strongly support H.R.
3787, a bill to assign veterans status to members of the Reserve
Components of the United States Military who have served for 20 years
or more--thus becoming military retirees--but who were never on active
duty status long enough to qualify as a ``veteran.''
All members of the Selected Reserve volunteer for service to the
Nation and are liable for activation in its defense. In the event that
a Reserve component member has not been called to federal active duty
during a twenty-year-or-more service career, we believe that service
should qualify the member for full status as a veteran under the law.
This issue is a matter of honor to those who through no fault of their
own were never activated, but served their Nation faithfully for 20
years.
As a Nation, our military cannot function without the Guard and
Reserve. Our Reserve Components are `operational reserve' and have been
for a long time. The large numbers of Reserve component members who
have been called to serve in OEF/OIF will qualify as veterans. However,
there are those who serve at the armories and bases and whose jobs are
to make sure the other members of their units are qualified and ready
to deploy. Almost all members do deploy in some format but do not stay
on active duty for the required amount of time--for at least 30 days
continuous. There are others who, while ready to deploy had they been
needed, were not called to active duty during their time of service.
Under current law, even if they serve for 20 years or more, they are
not and will not be considered as veterans under Title 38. These
members serve less than 30 days active duty time--but, over a 20 year
span--serve our Nation in natural disasters, current boarder duty, and
even deploy to overseas bases--in support of conflicts--but, all in
less than 30 days. Thus, the simple step of recognizing the service of
those who spend 20 years or more as meriting the distinction of being
called a veteran is a major issue for them and our country, one of
pride and one of having their sacrifices recognized. Our Total Force
includes the Guard and Reserve Components. They wear the same uniforms
and earn the same medals and awards for honorable service and in our
Nations conflicts. They are worthy of the honor of being called
``veteran.''
H.R. 3787 would eliminate this inequity. This legislation as it is
written will not qualify Reserve components for any additional benefits
that they already do not have access to. It does redefine them as
Veterans in Title 38, and in some cases they will be recognized as
Veterans for burial in some states. All current wartime veterans that
serve in a combat zone will already qualify.
The Association of the United States Navy ask the Committee to pass
this important piece of legislation. A briefing paper is attached. Our
point of contact is Ike Puzon, Captain, USN, retired, Director of
Governmental Affairs--Legislation AUSN, 703-548-5800,
[email protected]. Written testimony has been submitted.
Sincerely,
C. Williams Coane RADM, USN (Ret)
Executive Director
Statement of Master Sergeant Michael P. Cline, USA (Ret.), Executive
Director, Enlisted Association of the National Guard of the United
States
Mister Chairman and distinguished Members of the Committee, the
Enlisted Association of the National Guard of the United States
(EANGUS) is very grateful to have the opportunity to submit testimony
for the record on H.R. 3787.
Our association has worked diligently since 1972 to educate
Congress, our members, and the public on National Guard veterans,
equipment, force structure, policy issues, and personnel, DoD civilian
and family issues.
I thank this Committee for the on-going stewardship on the
important issues of national defense and on behalf of veterans. Our
military and veterans along with their families are watching what
Congress is considering very carefully. At a time of war, non-partisan
leadership sets the example.
H.R. 3787--Full Veteran Status For Certain Guard/Reserve Retirees
Issue: Certain members of the Guard and Reserve components with 20
years or more service do not otherwise qualify under current law (Title
38) as veterans.
Background. All members of the Selected Reserve--those who
regularly train in designated military positions--volunteer for service
to the Nation and are liable for activation in its defense.
In the event that a reserve component member has not been called to
federal active duty during a 20-year-or-more service career, that full
reserve career service should be recognized as equivalent qualification
for full veteran status under the law. Over time, Congress has
authorized a number of veteran's benefits for such `gray area' reserve
retirees. In establishing such benefits, it's clear that these former
servicemembers are indeed veterans. (See accompanying rationale)
Twenty or more years of service in the reserve forces and
eligibility for reserve retired pay should be sufficient qualifying
service for full veteran status under the law.
This issue is a matter of honor to those who through no fault of
their own were never activated, but served their Nation faithfully for
20 or more years. It's now time for Congress to take the final step and
formally authorize these volunteer career citizen-warriors as veterans
under the law.
Military Coalition Position and The National Military Veterans
Alliance Position. Amend Title 38 to include in the definition(s) of
`veteran' retirees of the Guard/Reserve components who have completed
20 or more years of service, but are not otherwise considered to be
``veterans'' under the current statutory definitions. Career military
service in the reserve forces of our Nation should constitute
qualification for veteran status under the law.
Status. The Military Coalition recommends the introduction of
legislation that would accomplish this change. Suggested language
follows:
Adding a new subsection (g) in Section 106, 38 USC, `Certain
service deemed to be active service':
`(g) Any person----
(1) who is qualified for reserve retired pay under section
12731 of title 10 and is in receipt of reserve retired pay for
non-regular service under the provisions of chapter 1223 of
title 10; or,
(2) who is qualified for reserve retired pay under section
12731 of title 10 and has been separated or retired from the
Ready Reserve but is not yet age 60; and,
(3) has not otherwise performed qualifying active duty
service shall be considered to have been on active duty for the
purpose of all laws administered by the Secretary' [of Veterans
Affairs]
Rationale
As defined in law, members of the reserve components who have
completed 20 or more years of service are military retirees and
eligible upon reaching age 60 for all of the benefits of active duty
military retirees. However, they are not considered to be ``veterans''
if they have not served the number of consecutive days on federal
active duty (defined as active duty other than active duty for
training) required by law.
According to the Department of Veterans Affairs, ``Reservists who
served on active duty establish veteran status and may be eligible for
the full-range of VA benefits, depending on the length of active
military service and a discharge or release from active duty under
conditions other than dishonorable. In addition, reservists not
activated may qualify for some VA benefits''.
National Guard members can establish eligibility for VA benefits if
activated for federal service during a period of war or domestic
emergency. Activation for other than federal service does not qualify
Guard members for all VA benefits.
Over time, Congress has authorized certain veterans benefits for
these retirees, indicating their `quasi-veteran' status. For purposes
of this discussion, these individuals will be referred to as ``non-
veteran retirees.''
VA benefits for non-veteran retirees who have not served on federal
active duty for the consecutive number of days required by law include:
VA disability compensation and VA health care for a non-
veteran retiree who is injured and/or disabled while performing
inactive duty for training regardless of length of service.
VA home loan eligibility in exchange for six or more
years of honorable service in the Selected Reserve
VA burial and memorial benefits for the non-veteran
retiree entitled to reserve retired pay at the time of death
Servicemen's Group Life Insurance (SGLI) and Veterans
Group Life Insurance (VGLI)
To qualify for a reserve retirement at age 60, a Guard or Reserve
member must accrue the equivalent of 20 years of ``points'' based on
the performance of military duty at a minimum of 50 points per year.
The minimum of 1000 qualifying retirement points roughly equates to
2.77 years of military duty based on the performance of drill duty
(inactive duty training), annual training, and professional development
in military science. (20 yrs. 50 points = 1000 pt minimum div
by 360 = 2.77 years military duty). Moreover, as volunteers, reservists
are liable for activation throughout their careers and required to
maintain their readiness for such eventualities.
Budgetary Considerations
Of primary concern to policy makers is the cost of designating non-
veteran retirees as veterans. We believe there would be little or no
cost for the following reasons:
By definition, non-veteran retirees will not have a VA disability
rating. Indeed, if they were injured while on military duty, they would
be eligible for a VA disability rating and VA health care. Most would
have assets and incomes above the VA Priority Group 8 means test, which
has been closed to new applicants for more than 4 years. A few
individuals in the non-disabled, non-veteran retiree cohort might
qualify for VA health care as Priority Group 7 means-tested
individuals. Very few would qualify for enrollment in Priority Group 5
as indigent veterans.
In almost all instances, these individuals will have other full-
time employment, either in the private sector, or as civilian
government employees. Many have health care insurance through their
employer. Once they reach age 60, they will be eligible for TRICARE.
Finally, the Nation's operational reserve policy requires the
routine activation of Guard and Reserve servicemembers for 12 months
every fifth or sixth year. Going forward, there will be a negligible
number of career reservists who would not qualify as active duty
veterans.
Summary
For the vast majority of non-veteran retirees, this issue is about
honor not benefits. They seek public and statutory recognition as
``veterans of the Armed Forces of the United States''. They volunteered
to serve, served honorably, and were prepared to serve on active duty
if called. The absence of statutory recognition is a vestige of the
Cold War, when the Nation relied upon conscription for its manpower. A
small cohort of today's volunteers should not be penalized for
decisions beyond their control concerning federal activation.
Addendum
According to 38 USC,
(2) The term ``veteran'' means a person who served in the active
military, naval, or air service, and who was discharged or released
there from under conditions other than dishonorable.
(10) The term ``Armed Forces'' means the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard, including the reserve
components thereof.
(21) The term ``active duty'' means----
(A) full-time duty in the Armed Forces, other than active duty
for training;
(22) The term ``active duty for training'' means----
(A) full-time duty in the Armed Forces performed by Reserves
for training purposes;
(B) full-time duty for training purposes performed as a
commissioned officer of the Reserve Corps of the Public Health
Service (i) on or after July 29, 1945, or (ii) before that date
under circumstances affording entitlement to ``full military
benefits'', or (iii) at any time, for the purposes of chapter
13 of this title;
(C) in the case of members of the Army National Guard or Air
National Guard of any State, full-time duty under section 316,
502, 503, 504, or 505 of title 32, or the prior corresponding
provisions of law;
(D) duty performed by a member of a Senior Reserve Officers'
Training Corps program when ordered to such duty for the
purpose of training or a practice cruise under chapter 103 of
title 10 for a period of not less than four weeks and which
must be completed by the member before the member is
commissioned; and
(E) authorized travel to or from such duty.
The term does not include duty performed as a temporary member of
the Coast Guard Reserve.
(23) The term ``inactive duty training'' means----
(A) duty (other than full-time duty) prescribed for
Reserves (including commissioned officers of the Reserve Corps
of the Public Health Service) by the Secretary concerned under
section 206 of title 37 or any other provision of law;
(B) special additional duties authorized for Reserves
(including commissioned officers of the Reserve Corps of the
Public Health Service) by an authority designated by the
Secretary concerned and performed by them on a voluntary basis
in connection with the prescribed training or maintenance
activities of the units to which they are assigned; and
(C) training (other than active duty for training) by a
member of, or applicant for membership (as defined in section
8140(g) of title 5) in, the Senior Reserve Officers' Training
Corps prescribed under chapter 103 of title 10.
In the case of a member of the Army National Guard or Air National
Guard of any State, such term means duty (other than full-time duty)
under sections 316, 502, 503, 504, or 505 of title 32, or the prior
corresponding provisions of law. Such term does not include (i) work or
study performed in connection with correspondence courses, (ii)
attendance at an educational institution in an inactive status, or
(iii) duty performed as a temporary member of the Coast Guard Reserve.
(24) The term ``active military, naval, or air service'' includes--
--
(A) active duty;
(B) any period of active duty for training during which the
individual concerned was disabled or died from a disease or
injury incurred or aggravated in line of duty; and
(C) any period of inactive duty training during which the
individual concerned was disabled or died----
(i) from an injury incurred or aggravated in line
of duty; or
(ii) from an acute myocardial infarction, a cardiac
arrest, or a cerebrovascular accident occurring during
such training.
EANGUS Requests that you pass H.R. 3787.
Statement of Military Officers Association of America
Chairman Hall, Ranking Member Sanborn and Members of the Disability
and Memorial Assistance Subcommittee, the Military Officers Association
of America (MOAA) is pleased to submit for the official record of this
hearing the following statement in support of H.R. 3787.
MOAA does not receive any grants or contracts from the Federal
Government.
H.R. 3787 (Rep. Tim Walz, D-MN), the Honor America's Guard and Reserve
Retirees Act.
The purpose of the bill is to establish in law that members of the
National Guard and Reserve who are qualified for a non-regular
retirement under Chapter 1223 of 10 USC but who were never called to
active federal service during their careers, are ``veterans of the
Armed Forces of the United States'' as defined in Title 38.
This issue is a matter of honor to those who through no fault of
their own were never activated, but served their Nation faithfully for
20 or more years. It's now time for Congress to take the final step and
formally authorize these volunteer career citizen-warriors as veterans
under the law.
MOAA understands that the intent of this bill is honorific only:
the bill does not seek to award any benefit for which these veterans
have not qualified for elsewhere in law.
Justification for H.R. 3787
All members of the National Guard and Reserve forces volunteer for
service to the Nation and are liable for activation in its defense.
Over time, Congress has authorized a number of veterans' benefits
for National Guard and Reserve members, including military reserve
retirees. In establishing such benefits, the Nation acknowledges that
these servicemembers are ``veterans'' in many respects except for
specific recognition in the statute.
In the VA's booklet, Federal Benefits for Veterans and Dependents,
``Reservists who served on active duty establish veteran status and may
be eligible for the full-range of VA benefits, depending on the length
of active military service and a discharge or release from active duty
under conditions other than dishonorable. In addition, reservists not
activated may qualify for some VA benefits''.
Some of the benefits available to never-activated career reservists
include:
VA home loan eligibility at six or more years of
honorable service in the Selected Reserve
burial in a national cemetery or state veterans'
cemetery; and, memorial benefits for the non-veteran retiree entitled
to reserve retired pay at the time of death
Servicemen's Group Life Insurance (SGLI) and Veterans
Group Life Insurance (VGLI)
During the course of a military reserve career, a Guard or Reserve
member who is disabled in the line-of-duty during military training--
either inactive duty (drill) or active duty training--or traveling to
or from such duty on competent military orders may be awarded a VA-
rated disability, compensation and access to VA health care for life.
Survivors of reservists who die from an injury incurred during such
duty are entitled to survivors' benefits. See Section 106(d), 38 USC.
In terms of military benefits under Title 10, members of the
reserve components who have completed 20 or more years of qualifying
service are entitled, upon reaching age 60, to all of the benefits of
active duty military retirees. These earned entitlements include a
monthly pension, military health care--TRICARE and TRICARE for LIFE--
and other benefits related to their status as military retirees.
Notwithstanding eligibility for certain veterans benefits and
entitlement to military retired pay and other Title 10 benefits,
reserve retirees who have not been called to active duty during their
military careers are not cited as ``veterans of the Armed Forces'' in
Title 38.
Under the Nation's ongoing ``operational reserve'' policy, over
time there will be fewer and fewer Guard and Reserve members who will
not have served at least one qualifying tour of active duty in the
course of a normal reserve career. For the remaining cohort, the issue
of their status as veterans is about honor not benefits.
Never-activated reserve retirees seek public and statutory
recognition as ``veterans of the Armed Forces of the United States''.
They volunteered to serve, served honorably, and were prepared to serve
on active duty if called. The absence of specific statutory recognition
of this cohort as ``veterans'' is a vestige of the Cold War, when the
Nation relied upon conscription for its manpower. These career
servicemembers--all volunteers--should not be penalized for decisions
beyond their control concerning federal activation.
MOAA understands that the bill's sponsor, Rep. Tim Walz, may offer
an Amendment in the nature of a substitute bill at today's hearing to
clarify the bill language to ensure that no unearned veterans' benefits
would accrue to these veterans subsequent to the bill's enactment.
The Military Officers Association of America strongly supports
enactment of H.R. 3787, the Honor America's Guard-Reserve Retirees Act.
In the event that Rep. Walz offers an Amendment in the nature of
substitute language to clarify the intent of the bill, MOAA supports
that objective, namely that no veterans' benefits not otherwise
authorized in law would accrue to these veterans should the bill
subsequently be enacted.
Statement of Peter J. Duffy, Deputy Director Legislation,
National Guard Association of the United States
The National Guard is unique among components of the Department of
Defense in that it has the dual state and federal missions. While
serving operationally on Title 10 active duty status in Operation Iraqi
Freedom (OIF) or Operation Enduring Freedom (OEF), National Guard units
are under the command and control of the President. However, when not
deployed on title 10 orders, members of the National Guard serve under
the command and control of their governors to protect their communities
from all manner of threats while continuing to train. As a special
branch of the Selected Reserves they train not just for their federal
missions but for their potential state active duty missions such as
fire fighting, flood control and providing assistance to civil
authorities in a variety of possible disaster scenarios.
While serving in their states, members are scattered geographically
with their families as they hold jobs, own businesses, pursue academic
programs and participate actively in their civilian communities.
Against this backdrop, members of the National Guard remain ready to
uproot from their families and civilian lives to serve their governor
domestically or their President in distance parts of the globe as duty
calls and to return to reintegrate within the same communities when
their missions are accomplished. The National Guard is always ready and
always there as the daily national news will certainly reflect.
When persons join the National Guard or Reserve they give the
President a blank check to use them as the President deems necessary.
It remains up to the President to decide just how to use them.
Historically there was no assurance that those serving in the National
Guard would be deployed in federal service under title 10 orders that
would qualify them as veterans as that term is defined in the U.S.
Code. It was not unusual for members to serve their state and Nation
honorably for 20 years trained and ready for a call to federal service
which never came. This was through no design or machinations on their
part but strictly a function of the President's exercise of discretion
in deciding whether to activate them for federal service or not.
Because of an oddity in the law, those members of the National
Guard and Reserve who have served honorably for 20 years to earn
military retirement pay cannot call themselves veterans unless they
have served on qualifying title 10 active duty. This is neither fair
nor respectful as these members remained trained and ready for federal
missions throughout their honorable service. But for the chance call up
order from the President, their service is indistinguishable from that
of the active forces who can freely separate from service and use the
veterans appellation irrespective of any overseas deployment.
NGAUS strongly supports H.R. 3787. The time is long past due to
extend the well earned status of veteran to our dedicated career men
and women of the National Guard and Reserve without conditioning the
same on a chance call to serve on qualifying title 10 active duty.
Their selfless and honorable service deserves nothing less than to
bestow upon them the right to call themselves veterans.
Statement of Reserve Officers Association of the United States,
and Reserve Enlisted Association
INTRODUCTION
Mr. Chairman and distinguished members of the House Veterans
Affairs Subcommittee on Disability Assistance and Memorial Affairs on
behalf of 1.1 million Reserve Component members, the Reserve Officers
Association (ROA) of the United States and the Reserve Enlisted
Association (REA) expresses our appreciation for the opportunity to
testify.
Many Guard and Reserve servicemembers have served admirably for 20
plus years and qualify for retirement without having been called to
active duty service during their careers. At age 60, they are entitled
to Reserve military retired pay, government health care, and other
benefits of service, including some Veterans' benefits. Yet current law
denies them full standing as a Veteran of the armed forces.
Veteran Status
Often times those Reserve Component members who after serving their
country, particularly for 20 years or more, believe they are considered
to be a veteran. Unfortunately as many of you may know by now, this is
not the case. Both ROA and REA have listed in our 2010 legislative
agendas that Veteran status is a top issue.
Reserve Component members, as defined in law, who have completed 20
or more years of service are military retirees and eligible once
reaching 60 years of age for all of the active duty military retiree
benefits. Conversely they are not considered to be ``Veterans'' if they
have not served the required number of uninterrupted days on Federal
active duty (defined as active duty other than for training).
REA's executive director, Lani Burnett, retired Chief Master
Sergeant of the U.S. Air Force, wrote in THE OFFICER, January 2009, in
regards to Veteran status, that, ``It may surprise you to know that
even after serving honorably in the Reserve or Guard for 20 years, you
may not be considered a `veteran' of the armed forces, under the
current statutory definition, if you were not called to active duty
during your career.'' This statement shocked many of our readers.
As she pointed out later in a May 2009 article, servicemembers
focus on numerous things such as the mission at hand, the job, training
and development, the troops, going where needed, and others, but not
much thought is given to making sure they had the right kind of duty to
qualify to become a Veteran upon retirement.
Those Reserve Component members that have been called to serve in
Operation Enduring Freedom or Operation Iraqi Freedom will undoubtedly
qualify as Veterans. Though there are many others who stand in front of
and behind these men and women--preparing them and supporting them--
individuals that are also ready to deploy but because of their assigned
duties may never serve in that capacity. Nevertheless they serve
faithfully.
Twenty or more years of service in the reserve forces and
eligibility for reserve retired pay should be sufficient qualifying
service for full Veteran status under the law.
This issue is a matter of honor for those, who through no fault of
their own were never activated, but served their Nation faithfully for
20 or more years.
Hurdles
Seemingly, the biggest hindrance to passing H.R. 3787 to grant
Veterans status, is the misconception that passage would have
unintended consequences, causing this group of Veterans to receive
benefits that they would not otherwise qualify for. The argument is to
not use Section 101 language, rather select a different section. This
would be a grave error.
The pending legislation would change the legal definition of
`Veteran' so that proper acknowledgment and recognition that comes with
the designation of `veteran' would be made. BUT it would NOT change the
legal qualification for access to any benefits.
Each benefit has a different set of qualifications because each was
created at a different time. Every time Congress passes new legislation
that is signed into law authorizing new Veteran benefits, the
eligibility requirements are determined for that specific benefit.
Veteran status depends on which Veteran program or benefit you are
applying for.
There are innumerable programs to outline, but an example could be
``Veteran's Preference for Federal Jobs'' in which preference is given
to separated Veterans who received an honorable or general discharge
and served on active duty (not active duty for training). Furthermore
Reservists that are retired from the Reserve but not receiving retired
pay (such as Gray-area retirees) are not considered ``retired
military'' for purposes of Veterans' preference.
Thus allowing the utilization of Section 101 language does not
generate unintended consequences. Although if that were to happen, and
it was placed elsewhere it would cause harm because a disparate outcome
would be created causing this specific group to be classified as
second-class veterans. Such a result would not only, not grant these
admirable men and women the honor they deserve for their 20 years plus
service, but denigrate it.
H.R. 3787 would amend Title 38 to include in the definition of
Veteran retirees Guard and Reserve Component members who have completed
20 or more years of service, but are not considered to be Veterans
under the current statutory definitions. ROA and REA have signed
letters supporting the efforts of Congressman Tim Walz (D-Minn.) on
this issue.
Cost
Reserve Component members with 20 years or more service without
qualifying consecutive active duty time, cannot have a Veterans Affairs
(VA) disability rating. Though, if they are injured while on military
duty, they would be eligible for a VA disability rating and VA health
care. Some would have assets and incomes above the VA Priority Group 8
means test (closed to new applicants for over 4 years). Some in the
non-disabled and non-veteran retiree group might qualify for VA health
care for Priority Group 7. Only a very small amount would qualify for
enrollment in Priority Group 5 as indigent veterans.
In the majority of circumstances these individuals will have other
full-time employment in the private sector or as a civilian government
employee. Therefore many have health care insurance through their
employer. Upon reaching 60 years of age they will be eligible for
TRICARE.
Lastly, the operational reserve policy requires routine activation
of Reserve Component members for 12 months every fifth or sixth year.
There will be as we move forward a small number of career reservists
that will not qualify as active duty veterans.
CONCLUSION
The Reserve Officers Association and Reserve Enlisted Association,
again, would like to thank this sub-committee for the opportunity to
present our testimony.
America's servicemen and women from the Reserve Components come
from the heart of communities across this great country and its
territories. They have proven themselves to be worthy and capable, and
have earned the respect they so richly deserve from their fellow
citizens. What they also deserve is the honor to be called Veteran.
ROA and REA appreciate efforts by this Subcommittee to address
employment issues that veterans face. We are looking forward to working
with you, and supporting your efforts in any way that we can.
Upon request ROA and REA can provide copies of THE OFFICER articles
referenced.
Statement of Master Sergeant Larry D. Madison, USAF (Ret.),
Legislative Director, Washington Office, The Retired Enlisted
Association
Mr. Chairman, Ranking Member Lamborn, and Members of the Committee,
thank you for this opportunity to provide testimony for the record to
the Disability Assistance and Memorial Affairs Subcommittee of the
House Committee on Veterans Affairs.
The Retired Enlisted Association is a Veterans Service Organization
founded 46 years ago to represent the needs and points of view of
enlisted men and women who have dedicated their careers to serving in
all the branches of the United States Armed Services: Active Duty,
National Guard and Reserves, as well as the members who are doing so
today.
The Retired Enlisted Association enthusiastically supports the
passage of H.R. 3787, the Honor America's Guard and Reserve Retirees
Act, and whatever amendments may be offered by Congressman Walz of
Minnesota.
As currently defined in law, members of the reserve components who
have completed 20 or more years of service are military retirees and
eligible upon reaching age 60 for all of the benefits of active duty
military retirees. However, they are not considered to be ``veterans''
if they have not served the number of consecutive days on federal
active duty (defined as active duty other than active duty for
training) required by law.
According to the Federal Benefits for Veterans, Dependents and
Survivors handbook, 2009 edition, published by the Department of
Veterans Affairs, ``Reservists who served on active duty establish
veteran status and may be eligible for the full-range of VA benefits,
depending on the length of active military service and a discharge or
release from active duty under conditions other than dishonorable. In
addition, reservists not activated may qualify for some VA benefits''
[emphasis added].
It adds further that ``National Guard members can establish
eligibility for VA benefits if activated for federal service during a
period of war or domestic emergency. However, activation for other than
federal service does not qualify Guard members for all VA benefits''
[emphasis added].
Over time, Congress has authorized certain veterans benefits for
these retirees, indicating their `quasi-veteran' status. For purposes
of this discussion, these individuals will be referred to as ``non-
veteran retirees.''
VA benefits for non-veteran retirees who have not served on federal
active duty for the consecutive number of days required by law include:
VA disability compensation and VA health care for a non-
veteran retiree who is injured and/or disabled while performing
inactive duty for training regardless of length of service.
VA home loan eligibility in exchange for six or more
years of honorable service in the Selected Reserve
VA burial and memorial benefits for the non-veteran
retiree entitled to reserve retired pay at the time of death
Servicemen's Group Life Insurance (SGLI) and Veterans
Group Life Insurance (VGLI)
These are substantial and appreciated benefits and this legislation
contemplates adding no new benefits if veterans status is granted.
To qualify for a reserve retirement at age 60, a Guard or Reserve
member must accrue the equivalent of 20 years of ``points'' based on
the performance of military duty at a minimum of 50 points per year.
The minimum of 1000 qualifying retirement points roughly equates to
2.74 years of military duty based on the performance of drill duty
(inactive duty training), annual training, and professional development
in military science. (20 yrs. 50 points = 1000 point minimum
divided by 365 = 2.74 years military duty). Moreover, as volunteers,
reservists are liable for activation throughout their careers and
required to maintain their readiness for such eventualities.
It is not well known that members of the Reserve Components who are
sent for duty on the southern border of the United States are sent in
other than active duty orders. So no matter how long those individuals
may be on duty, their time does not count as active duty time and
therefore does not count toward gaining veterans status.
In addition, for many years members of the air Reserve Components,
including the Naval Air Reserve, the Air National Guard and the Air
Force Reserve have flown missions to many destinations around the
world, doing what the active duty components would otherwise have to
do. Again, many, if not most of these missions are flown in other than
active duty status, once again depriving these individuals of time that
could count for veterans status.
In short, an individual may serve a career in the Reserve
Components of the United States Armed Forces and become a military
retiree, with all of the earned benefits that come with that status,
and yet not be a ``veteran'' as defined by law. Frankly, this makes no
sense in today's world, if it ever did.
When one looks at the uniform of someone serving in the United
States military, several things are very noticeable. Among these are
the ribbons and medals worn on the uniform, the branch of service, and
on some, the unit patch. As the Army says on its Web site, ``Soldiers
wear a wide assortment of insignia, ribbons, medals, badges, tabs and
patches. To the uninitiated, the variety can be bewildering. Yet, each
device represents a Soldier's accomplishment--or that of his or her
unit--and is a great source of pride and accomplishment'' [emphasis
added]. The same can be said of all the other branches of service.
Within the U.S. Armed Forces, things without monetary value are
meaningful and are a source of great pride and honor. Clearly, one of
those things is the distinction of being called a ``veteran.'' And yet
that honor is denied to some who serve honorably and with distinction
for 20 years or more in the Reserve components. It is time to change
that.
The Congressional Budget Office has said there is no cost involved
in making this change because there are no new benefits that will be
granted to the personnel involved. The fact is, this is strictly an
issue of honor.
It should be noted that the Guard-Reserve, Veterans, and Retiree
Committees of The Military Coalition have each put this initiative on
their top 10 priorities list for 2010, and it is endorsed by both The
Military Coalition and the National Military Veterans Alliance.
Finally, the Nation's operational reserve policy requires the
routine activation of Guard and Reserve servicemembers for 12 months
every fifth or sixth year. Going forward, there will be a negligible
number of career reservists who would not qualify as active duty
veterans.
Summary
For the vast majority of non-veteran retirees, this issue is about
honor not benefits. They seek public and statutory recognition as
``veterans of the Armed Forces of the United States.'' They volunteered
to serve, served honorably, and were prepared to serve on active duty
if called. The absence of statutory recognition is a vestige of the
Cold War, when the Nation relied upon conscription for its manpower. A
small cohort of today's volunteers should not be penalized for
decisions beyond their control concerning federal activation.
This is a chance for the House Veterans Affairs Committee and the
Congress to honor the service of those individuals at virtually no cost
to taxpayers. We sincerely hope Congress will do the right thing and
pass the Honor America's Guard and Reserve Retirees Act.
MATERIAL SUBMITTED FOR THE RECORD
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
July 21, 2010
Thomas Pamperin
Associate Deputy Under Secretary for Policy and Programs Management
Veterans Benefits Administration
U.S. Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20402
Dear Mr. Pamperin:
Thank you for testifying at the House Committee on Veterans'
Affairs' Subcommittee on Disability Assistance and Memorial Affairs'
legislative hearing on ``H.R. 3407, H.R. 3787 and related draft
legislation, H.R. 4541, H.R. 5064, and H.R. 5549'' held on July 1,
2010. We would greatly appreciate if you would provide answers to the
enclosed follow-up hearing questions by Wednesday, August 18, 2010.
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 responses
by fax at (202) 225-2034. If you have any questions, please call (202)
225-3608.
Sincerely,
John J. Hall Doug Lamborn
Chairman Ranking Republican Member
__________
Questions for the Record
The Honorable John J. Hall, Chairman
Subcommittee on Disability and Memorial Affairs
The Honorable Doug Lamborn, Ranking Member
Subcommittee on Disability and Memorial Affairs,
House Committee on Veterans' Affairs
``Legislative Hearing on H.R. 3407, H.R. 3787 and
Related draft legislation, H.R. 4541, H.R. 5064, H.R. 5549''
July 1, 2010
Question 1: Please provide the completed cost estimates for H.R.
3407.
Response: Please see attachment for cost estimates for H.R. 3407.
H.R. 3407, the ``Severely Injured Veterans Benefits Improvement Act
of 2009,'' includes provisions that would: (1) increase special monthly
compensation rates for severely injured Veterans; (2) provide
eligibility for automobiles and adaptive equipment to disabled Veterans
and members of the Armed Forces with severe burn injuries; (3) increase
non service-connected disability pension for certain wartime Veterans;
(4) provide eligibility for aid and attendance benefits to Veterans
with traumatic brain injuries; (5) authorize the Secretary of Veterans
Affairs to increase Medal of Honor Special Pension; and (6) extend
current provisions relating to pensions for certain hospitalized
Veterans. The amendments made by this bill would become effective
September 30, 2011.
Section 2
Section 2 of the bill would increase the monthly rates of
disability compensation specified in 38 U.S.C. Sec. 1114(r)(1) and
(r)(2) as payable for aid and attendance, from $1,893 to $2,840, and
for higher levels of care, from $2,820 to $4,230.
As stated in testimony, costs are estimated to be $30.9 million for
the first year, $163.4 million over 5 years, and $351.3 million over 10
years. VA estimates that there would be no additional administrative
costs associated with this provision.
Section 3
Section 3 would expand the category of persons eligible for
automobile allowance and adaptive equipment as specified in 38 U.S.C.
Sec. 3901(1) to include certain Veterans and members of the Armed
Forces serving on active duty who are disabled with a severe burn
injury, as determined under regulations prescribed by the Secretary.
Benefit costs are estimated to be $14.5 million during the first
year, $75.1 million for 5 years and nearly $148.0 million over 10
years. VA estimates that there would be no additional administrative
costs associated with this provision.
Section 4
Section 4 would increase monthly payments of non service-connected
disability pension under 38 U.S.C. Sec. 1521(e) to Veterans who, in
addition to being permanently and totally disabled, have additional
disability rated 60-percent or greater or are permanently housebound.
The rates would increase from $4,340 to $4,774 for unmarried Veterans
without dependents and from $5,441 to $5,985 for Veterans with a spouse
or dependent.
As stated in testimony, benefit costs are estimated to be $14.3
million for the first year, $77.3 million over 5 years, and $160.3
million over 10 years. VA estimates that there would be no additional
administrative costs associated with this provision.
Section 5
Section 5 would amend 38 U.S.C. Sec. 1114(o) to include traumatic
brain injury (TBI) among the list of disabilities that qualify for
special monthly compensation at the rating specified in section
1114(o). Under the provision as written, this level of compensation
would be payable without regard to the severity of the TBI or the
resulting disability. Further, eligibility for payment under section
1114(o) would also make Veterans with a TBI of any severity who are
also in need of aid and attendance eligible for payment of the higher
rate payable under 38 U.S.C. Sec. 1114(r) to Veterans in need of aid
and attendance.
Benefit costs just for the added beneficiaries under 38 U.S.C.
Sec. 1114(o) are estimated to be $1.6 billion during the first year,
$9.1 billion for 5 years and $20.7 billion over 10 years. Additional
significant costs would be incurred as many of the new 38 U.S.C.
Sec. 1114(o) beneficiaries would now be eligible for the increased aid
and attendance under 38 U.S.C. Sec. 1114(r)(1). VA estimates that there
would be no additional administrative costs associated with this
provision.
Section 6
Section 6 would authorize the Secretary to increase by no more than
$1,000 the monthly rate of Medal of Honor Pension for fiscal years 2012
and 2013. The proposed increase is subject to the availability of
appropriations.
As stated in testimony, VA estimates that costs for this provision,
if the maximum authorized increase were provided, would be $1.0 million
per year and $2.0 million over 2 years.
Section 7
Section 7 would amend 38 U.S.C. Sec. 5503(d)(7) to extend current
provisions governing pensions for certain Veterans in Medicaid-approved
nursing facilities that will expire on September 30, 2011. The proposal
would extend until September 30, 2021, the provisions in section
5503(d) providing such Veterans a protected pension payment that cannot
be used to reduce the amount of Medicaid benefits payable for the
Veteran's care.
As stated in testimony, VA estimates that enactment of this
provision would result in VA cost savings of approximately $563 million
during the first year, $2.9 billion for 5 years, and $6.2 billion over
10 years.
VA regrets any confusion resulting from our response during the
hearing on July 1, 2010, regarding the net budgetary effect to the
Medicaid Program as a result of extending the provisions of 38 U.S.C.
Sec. 5503(d)(7). VA contacted the Center for Medicare and Medicaid
Services of the Department of Health and Human Services, but did not
receive a response as to the budgetary impact of extending
Sec. 5503(d)(7). VA is therefore unable to provide a forecast of costs
that will be incurred by the Medicaid Program as a result of this
amendment.
Question 2: The Department of Veterans Affairs (VA) expressed
opposition to H.R. 4541, the ``Veterans Pensions Protection Act of
2010,'' in so far as it seeks to exclude, from countable income,
payments received by Veterans for pain and suffering from insurance
companies and other third parties. Please inform us how many Veterans
would fall into this category?
Response: VA cannot determine the number of Veterans that this
provision would affect and/or how many fall into this category. Data
are not available regarding the frequency or amounts of such payments
to pension beneficiaries.
Question 2(a): What are the policy considerations for excluding
medical expense reimbursements from countable income and not payments
received for pain and suffering due to severe accidents such as that by
Congressman Hastings' constituent?
Response: The distinction between these two types of payments is
that reimbursement for medical expenses replaces an economic loss,
whereas payment for pain and suffering does not. Disability pension is
a need-based program in which the level of need is determined by
counting the amount of income available to the Veteran. A Veteran who
incurs medical expenses due to an accident may be required to expend
his or her income to pay such expenses. Reimbursement for such
expenditures returns the Veteran's available income to the same level
it would have been at but for the accident, with no net increase in
available income. In contrast, payment for pain and suffering does not
replace expended income, but constitutes additional income available to
the Veteran.
Question 2(b): What are the costs associated with H.R. 4541?
Response: Current law excludes reimbursement for casualty loss as
countable income in determining pension entitlement; therefore, no
benefit costs are associated with this provision. This proposal would
additionally exclude payments received for pain and suffering related
to accident, theft or loss, and casualty loss. VA cannot determine
potential benefit costs related to this proposed provision because data
are not available regarding the frequency or amounts of such payments
to the population of pension beneficiaries.
Question 3: According to your testimony, VA opposes both H.R. 3787
and an alternate draft version of this legislation. Please elaborate on
your opposition to H.R. 3787 and the alternative version of the bill,
including any unintended consequences that VA foresees.
Question 3(a): VA contends that extending even honorary Veteran
status to retired Reservists and National Guard members represents a
departure from the principle that active duty service is the foundation
for Veteran status. What is VA's position in response to proponents of
the draft alternative to H.R. 3787 who argue that a departure in policy
concerning veteran status is appropriate given the new nature and
character of Reserve and National Guard service?
Response: There is minimal value in amending 38 U.S.C. section
101(2) for the purpose of extending honorary Veteran status to retired
Reserve or Guard members who did not otherwise have active military
service at some point during their careers. Proponents of this bill
want Reserve and Guard members to receive proper recognition based on
the enhanced role they have assumed over the last decade. However,
individuals who assume this enhanced role through a period of active
service are currently recognized as ``Veterans'' as defined in 38
U.S.C. 101(2). It is arbitrary and inequitable to provide the same
Veteran status to 20-year Guard or Reserve members who did not serve
the minimum period of active duty time necessary to become a Veteran.
Furthermore, it is not clear what tangible benefits outside of the
currently available VA benefits would be extended based on this status.
Question 3(b): Does VA have an alternative approach to address the
concerns raised by the draft bill's proposal?
Response: Outside the existing benefits and services that are
available to Reserve and Guard members, VA does not have an alternate
approach to recognize these individuals.
Question 3(c): What is the population of retired Reservists and
National Guard members who would benefit from the alternative version
of H.R. 3783?
Response: According to the Defense Finance and Accounting Service,
there are currently 357,726 living National Guard and Reserve Component
retirees. VA estimates 25,000 new National Guard and Reservist retirees
per year. However, we do not know how many of these retirees have or
will have qualifying active duty service. A more precise number would
need to be obtained from DoD.
Question 4: Please provide VA's position on H.R. 5549, specifically
how would this bill change the way VA currently preserves effective
dates and provides VCAA notice?
Response: The legislation would not affect VA's longstanding
regulations and policy regarding determining and assigning effective
dates. Although H.R. 5549 introduces new procedural practices regarding
waiver of development that VA has traditionally provided to claimants,
the effective date for any grant of benefits for a claim filed through
a standard or expedited adjudicatory process will generally still be
the date of claim or date entitlement arose, whichever is later, under
current VA laws and regulations.
We also do not believe this bill would affect VA's provision of
Veterans Claims Assistance Act (VCAA) notice under 38 U.S.C.
Sec. 5103(a), although we note that there is some ambiguity as to the
intent of the bill in this regard. The bill states that, if VA
determines that a claim is not a ``fully developed'' claim, it must
provide VCAA notice. Although this may imply that VA need not provide
VCAA notice if the claim is ``fully developed,'' the bill contains no
language explicitly relieving VA of the duty under section 5103(a) to
provide such notice. Section 5103(a) directs VA to notify claimants of
any information and evidence, not previously submitted to VA, that is
necessary to substantiate the claim. VA interprets that statute to mean
that VA need not provide notice if the claim is substantiated by the
information and evidence submitted with a claim. However, nothing in
current section 5103(a) or H.R. 5549 excuses VA from providing VCAA
notice in cases in which VA determines that additional information or
evidence is needed. H.R. 5549 would define a ``fully developed claim''
as one in which the claimant indicates that he or she does not intend
to submit additional information and evidence and does not require
assistance from VA in developing the claim. It is possible that a claim
may meet this definition of a ``fully developed claim,'' but that VA
may still determine that further information or evidence is needed to
substantiate the claim. In such circumstances, we believe that section
5103(a) would require VA to provide VCAA notice and that H.R. 5549 does
not clearly provide otherwise.
The U.S. Court of Appeals for Veterans Claims has recognized that
claimants may waive the opportunity to submit information and evidence
under 38 U.S.C. Sec. 5103(a), provided the waiver is voluntary and
fully informed. However, absent notice from VA of the information and
evidence needed to substantiate the claim, it is questionable whether
the Court would find a waiver to be fully informed.
VA does not support this legislation, as further statutory
authority is not needed for VA to employ an expedited claims process.
VA has already implemented a Fully Developed Claim (FDC) program across
all regional offices under the existing authority of 38 U.S.C.
Sec. 501(a)(4), which provides the Secretary's authority to prescribe
rules and regulations to include establishing the method in which
claims are adjudicated. The Secretary has complied with the Veterans'
Benefits Improvement Act of 2008, Public Law 110-389, section 221(a),
which directed VA to carry out a 1-year pilot program to assess the
feasibility and advisability of expeditiously processing fully
developed compensation and pension claims within 90 days after receipt
of the claim. Based on the favorable results from the pilot, VA has
expanded and fully implemented the program, thereby rendering H.R. 5549
unnecessary.
The amendment to section 5104 is also unnecessary and adds
ambiguity to the existing statute. The amendment would require VA, when
it denies a benefit sought, to provide the claimant with ``any form or
application required by the Secretary to appeal such decision.'' VA has
never required a notice of disagreement to be submitted on a specific
form or application. Section 7105(b)(2) of title 38 only requires that
a Notice of Disagreement be in writing, and requiring claimants to file
a specific form would place an unnecessary burden on them. Although
H.R. 5549 would not require VA to adopt a specific form for appeal,
amending section 5104 to include reference to such a form would likely
create confusion as to whether claimants are required to use a specific
form to appeal VA decisions.
Question 4(a): Do you foresee any shortcomings or potential
exploitations of the bill's provision that would allow a veteran to
signal his/her intent of filing a Fully Developed Claim (FDC) while
filing an informal claim to secure the earlier effective date? Would
there be a way to avoid potential abuse such as veterans filing
meritless claims and then using FDC?
Response: VA's current Fully Developed Claim (FDC) Program includes
procedures to consider any communication or action that shows intent to
apply for benefits under the FDC Program as an informal FDC. Further,
current VA regulations permit payment from the date of an informal
claim irrespective of whether the claim is fully developed when
received.
Question 4(b): What steps, if any, is VA taking to inform veterans
of claims that lack necessary evidence, prior to processing fully
developed claims?
Response: A claim that does not meet, or no longer meets, FDC
criteria will be processed routinely and the Veteran will be notified
of this status change. An FDC claim must meet criteria that include
all, if any, relevant private medical treatment records and an
identification of any treatment records from a Federal treatment
facility such as a VA medical center. A claim is not qualified for the
FDC Program if the claim requires additional development such as a
request for private medical evidence, Guard/Reserve records, or other
evidence.
Question 4(c): VA contends that including a VA Appeals form along
with notices of claim decisions, as proposed by H.R. 5549, would not
speed up the appeals process and may confuse veterans who still may be
able to avail themselves of administrative processes. Does VA have any
alternative ideas for achieving the bill's aim of better informing
veterans, family members, and survivors of their rights to appeal claim
decisions?
Response: Outside of the current practice of communicating appeal
rights in the decision notification letter, VA does not have an
alternative approach. The following paragraph is included in all
notification letters to claimants. A toll free number is also provided
if claimants have questions or require additional assistance.
What You Should Do If You Disagree With Our Decision
If you do not agree with our decision, you should write and tell us
why. You have one year from the date of this letter to appeal the
decision. The enclosed VA Form 4107, ``Your Rights to Appeal Our
Decision,'' explains your right to appeal.
H.R. 3407
VBA Cost Estimate
Severely Injured Veterans Benefit Improvement Act of 2009
Issue
H.R. 3407: Severely Injured Veterans Benefits Improvement Act of
2009, 1st session of 111th Congress.
Purpose
Section two provides for a special monthly compensation rate
increase for severely injured Veterans. Section three provides
eligibility for automobiles and adaptive equipment to disabled Veterans
and members of the armed forces with severe burn injuries. Section four
provides for an increase in non service-connected disability pension
for certain Veterans of a period of war. Section five provides
eligibility for aid and attendance benefits to veterans with traumatic
brain injuries. Section six provides authority to the Secretary of
Veterans Affairs to increase Medal of Honor Special Pension. Section
seven extends the current provisions relating to pensions for certain
hospitalized Veterans.
Section 2--Increase in Rate of Special Monthly Compensation for
Severely Injured Veterans
Summary
This proposed section would amend 38 U.S.C. Sec. 1114(r)(1) and (2)
by increasing the special monthly compensation rate of aid and
attendance from $1,893 to $2,840 and, for a higher level of aid and
attendance, from $2,820 to $4,230.
Cost
Benefits Costs (Mandatory)
Benefit costs are estimated to be $30.9 million during the first
year, $163.4 million for 5 years and $351.3 over 10 years.
Benefits Methodology
Caseload for R1 (lower level aid and attendance) and R2 (higher
level aid and attendance) recipients in FY 2012 and the out-years were
based on historical trends. In order to calculate the payment amount
for the increase in Special Monthly Compensation (SMC) rates, we
annualized the difference between the benefit rates in FY 2010 at the
R1 ($6,669) and R2 level ($7,650) and the proposed rates ($7507 at the
R1 level and $8,897 at the R2 level). Obligations were calculated by
applying the caseload to the increase in the special monthly
compensation rates. The effective date of this bill is September 30,
2011.
------------------------------------------------------------------------
FY Veteran Caseload Total Obligations (000's)
------------------------------------------------------------------------
2012 2,653 $30,898
------------------------------------------------------------------------
2013 2,671 $31,764
------------------------------------------------------------------------
2014 2,689 $32,652
------------------------------------------------------------------------
2015 2,708 $33,563
------------------------------------------------------------------------
2016 2,726 $34,497
------------------------------------------------------------------------
2017 2,744 $35,490
------------------------------------------------------------------------
2018 2,762 $36,510
------------------------------------------------------------------------
2019 2,780 $37,557
------------------------------------------------------------------------
2020 2,798 $38,631
------------------------------------------------------------------------
2021 2,816 $39,735
------------------------------------------------------------------------
Total 27,347 $351,298
------------------------------------------------------------------------
COLAs commensurate with current economic assumptions and have been
factored into this estimate.
Administrative/General Operating Expense Costs (GOE)
No administrative costs are associated with section 2.
Section 3--Eligibility of Disabled Veterans and Members of the Armed
Forces with Severe Burn Injuries for Automobiles and Adaptive
Equipment.
Summary
This proposed section would amend Chapter 39, which provides
eligibility for an automobile allowance and adaptive equipment to
disabled Veterans and members of the armed forces. It would add to
those who make up the current ``eligible person'' category, under 38
U.S.C. Sec. 3901(1), a category of Veterans and members of the armed
forces serving on active duty who are disabled with ``a severe burn
injury.'' The definition of a severe burn injury is to be determined
through regulations prescribed by the Secretary.
Cost
Benefit costs are estimated to be $14.5 million during the first
year, $75.1 million for 5 years and nearly $148.0 million over 10
years.
The passage of this bill will extend eligibility to those severely
burned Veterans who fall into the 40 percent and 50 percent disability
rating and are not currently in receipt of automobile and adaptive
equipment benefits. Based on the rating schedule, those rated 0 percent
through 30 percent will not be eligible, and it is assumed that those
rated 60 percent and above are highly likely to be already eligible for
adaptive equipment and automotive grants.
To determine caseload, we based estimates on current diagnostic
codes from RCS 20 227: Specific Diagnosis, Major and Largest
Evaluation, by Entitlement and Conflict report. According to third
quarter data for FY 2010 from this report, there are over four thousand
Veterans with burns at 40 percent or greater disability. Of these total
Veterans, 3,611 or 86 percent, are rated 40 and 50 percent and will
become eligible in 2012. Based on this report, we anticipate 76
accessions per year.
C&P service assumes an 85 percent application rate. In year one
through four, an even caseload distribution is assumed for both
automobile and adaptive equipment grants. Accessions are distributed
evenly over a 4-year period. Automobile grants are a one-time payment.
Adaptive equipment benefits are granted once within a 4-year period,
and it is assumed half the eligible population will reapply after every
fifth year in addition to the new accessions.
Average payments from the FY 2011 President's Budget were applied
to the caseload to calculate obligations.
For purposes of this cost estimate, we assume an enactment date of
October 1st 2011.
----------------------------------------------------------------------------------------------------------------
Automobile Adaptive Equipment Total Obligations
FY Grants Grants ($000's)
----------------------------------------------------------------------------------------------------------------
2012 767 767 $14,469
----------------------------------------------------------------------------------------------------------------
2013 783 783 $15,875
----------------------------------------------------------------------------------------------------------------
2014 800 800 $17,479
----------------------------------------------------------------------------------------------------------------
2015 816 816 $19,310
----------------------------------------------------------------------------------------------------------------
2016 64 448 $7,924
----------------------------------------------------------------------------------------------------------------
2017 64 456 $9,102
----------------------------------------------------------------------------------------------------------------
2018 64 464 $10,466
----------------------------------------------------------------------------------------------------------------
2019 64 472 $12,044
----------------------------------------------------------------------------------------------------------------
2020 64 672 $19,164
----------------------------------------------------------------------------------------------------------------
2021 64 684 $22,145
----------------------------------------------------------------------------------------------------------------
Total $147,978
----------------------------------------------------------------------------------------------------------------
Section 4--Increase in Non-Service Connected Disability Pension for
Certain Veterans of a Period of War.
Summary
This proposed section would amend 38 U.S.C. Sec. 1521(e), which
authorizes non service-connected disability pension benefits to
Veterans of a period of war, to increase monthly payments for those
veterans who are eligible for permanently housebound benefits from
$4,340 to $4,774 for unmarried Veterans without dependents, and from
$5,441 to $5,985 for Veterans with a spouse or dependent.
Cost
Benefits Costs (Mandatory)
Benefit costs are estimated to be $14.3 million during the first
year, $77.3 million for 5 years and $160.3 million over 10 years.
Benefits Methodology
Caseload for Veterans and Veterans with dependents for FY 2012 and
out-years were based on historical trends. To calculate the payment
amount for the increase in special monthly pension rates, we annualized
the difference between the benefit rates. In FY 2010, the Veterans'
rate is $14,457 and the Veterans' with dependent rate is $18,120. The
proposed rate for Veterans is $15,563 and $19,513 for Veterans with
dependent. COLAs were factored into the rates in the out-years.
Obligations were calculated by applying the caseload to the increase in
the special monthly pension rates. The effective date of this bill is
September 30, 2011.
------------------------------------------------------------------------
FY Veteran Caseload Total Obligations ($000's)
------------------------------------------------------------------------
2012 10,923 $14,347
------------------------------------------------------------------------
2013 10,813 $15,505
------------------------------------------------------------------------
2014 10,704 $15,655
------------------------------------------------------------------------
2015 10,596 $15,808
------------------------------------------------------------------------
2016 10,490 $15,961
------------------------------------------------------------------------
2017 10,384 $16,249
------------------------------------------------------------------------
2018 10,279 $16,423
------------------------------------------------------------------------
2019 10,176 $16,599
------------------------------------------------------------------------
2020 10,073 $16,776
------------------------------------------------------------------------
2021 9,962 $16,939
------------------------------------------------------------------------
Total $160,262
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Administrative/General Operating Expense Costs (GOE)
No administrative costs are associated with section 4.
Section 5--Eligibility of Veterans with Traumatic Brain Injury for Aid
and Attendance Benefits.
Summary
This proposed section would amend 38 U.S.C. Sec. 1114(o) by adding
the words ``if the Veteran has suffered traumatic brain injury'' to the
statutory list of severe disability combinations that qualify for
special monthly compensation.
Benefits Costs (Mandatory)
Benefit costs just for the added beneficiaries under 38 U.S.C.
Sec. 1114(o) (an SMC rating required before consideration for aid and
attendance benefits) are estimated to be $1.6 billion during the first
year, $9.1 billion for 5 years and $20.7 billion over 10 years.
Additional significant costs would be incurred as many of the new 38
U.S.C. Sec. 1114(o) beneficiaries would now be eligible for the
increased aid and attendance under 38 U.S.C. Sec. 1114(r)(1).
According to the Office of Performance Analysis and Integrity
(PA&I), as of March 2010, there were 31,198 Veterans on the rolls with
an evaluation for TBI. This is 1 percent of the total estimated Veteran
compensation caseload in 2010 from the 2011 President's Budget. This
percentage was applied to the total Veteran compensation caseload from
the 2011 President's Budget to estimate the number of Veterans with TBI
in the out-years. Based on 2009 data, there were 156 Veterans with
service connected TBI and also in receipt of aid and attendance. Based
on this, we estimate that 1 percent of total Veterans with TBI are
currently in receipt of the SMC ``R1'' rate. In order to estimate the
number of Veterans who are eligible to receive SMC at the ``O'' level,
the total number of Veterans on the rolls with TBI was reduced by the
percentage of Veterans who are currently in receipt of SMC R1 rate.
The average degree of disability for Veterans receiving
compensation is 40 percent. Obligations were calculated by taking the
difference between the September average payment at 40 percent (from
the 2011 President's Budget) and the rates at the SMC ``O'' level and
applying it to the estimated caseload.
------------------------------------------------------------------------
FY Veteran Caseload Total Obligations ($000's)
------------------------------------------------------------------------
2012 33,698 $1,639,825
------------------------------------------------------------------------
2013 34,967 $1,717,985
------------------------------------------------------------------------
2014 36,197 $1,813,997
------------------------------------------------------------------------
2015 37,389 $1,911,244
------------------------------------------------------------------------
2016 38,545 $2,009,722
------------------------------------------------------------------------
2017 39,665 $2,109,152
------------------------------------------------------------------------
2018 40,750 $2,212,353
------------------------------------------------------------------------
2019 41,801 $2,317,099
------------------------------------------------------------------------
2020 42,829 $2,423,915
------------------------------------------------------------------------
2021 44,269 $2,558,911
------------------------------------------------------------------------
Total $20,714,204
------------------------------------------------------------------------
COLAs commensurate with current economic assumptions have been
factored into this estimate.
GOE Costs
Based on program knowledge, we believe that there will be minimal
GOE costs associated with this proposal due to the small number of
cases that need to be adjusted due to special monthly compensation.
Section 6--Authority of Secretary of Veterans Affairs to Increase Medal
of Honor Special Pension
Summary
The proposal will amend Subsection (a) Section 1562 of title 38 to
increase Medal of Honor Special Pension by no more than $1,000 per
month for fiscal years 2012 and 2013. The bill states that this
increase is, ``subject to the availability of appropriations.''
Cost
Benefits Costs
The cost of this legislation is estimated to be $1.0 million per
year with a 2-year total of $2.0 million.
Benefits Methodology
According to C&P Service, as of May 2010, there are 84 Veterans in
receipt of the Medal of Honor Pension. The rate for special pension
will increase by $1,000 per recipient with the proposed amendment. For
purposes of this cost estimate, we assumed a constant caseload.
Obligations were calculated by applying the caseload to the annualized
rate increase in special pension. The effective date of this bill is
September 30, 2011. Authority expires September 30, 2013.
------------------------------------------------------------------------
FY Veteran Caseload Total Obligation ($000's)
------------------------------------------------------------------------
2012 84 $1,008
------------------------------------------------------------------------
2113 84 $1,008
------------------------------------------------------------------------
Total $2,016
------------------------------------------------------------------------
Administrative/General Operating Expense Costs (GOE)
No administrative costs are associated with section 6.
Section 7--Extension of Provisions Relating to Pensions for Certain
Hospitalized Veterans
Summary
This proposed section would amend 38 U.S.C. Sec. 5503(d)(7) by
extending the current provisions relating to pensions for certain
Veterans in Medicaid approved nursing facilities [which are scheduled
to expire on September 30, 2011] to September 30, 2021.
Cost
Benefits Savings (Mandatory)
Benefit savings are estimated to be $562.9 million during the first
year, $2.9 billion for 5 years, and $6.2 billion over 10 years.
Although VA will reflect a savings due to lower pension costs, the
states may reflect costs, as Medicaid will continue to pay a larger
share of Veteran pensioners' nursing home care.
Benefits Methodology
According to the Medicaid Nursing Home Beneficiaries report, in
September 2008, there were 14,918 Veterans and 23,968 surviving spouses
in receipt of improved pension (P.L. 95-588) who are being paid $90 per
month under this provision, for an annual payment of $1,080 each.
Should the authority expire, the benefit for each of these Veterans
would be increased to the A&A rate of $19,953 annually, and the benefit
for each surviving spouse would be increased to $12,820 annually.
The cost of the current provision's obligations is calculated by
applying the caseload for both Veterans and survivors to the current
$1,080 annual payment for each. We assume constant caseload through FY
2021. Annual obligations, should the authority expire, are calculated
similarly with the cost of living adjustment applied to the benefit
rates. The total decrease in obligations is derived from taking the
difference between the total annual obligations of assuming the
authority expires and the annual obligations with the current
provision.
------------------------------------------------------------------------
Obligations
FY ($000's)
-----------------------------------------------------------------------
2012 ($562,945)
------------------------------------------------------------------------
2013 ($575,044)
------------------------------------------------------------------------
2014 ($587,385)
------------------------------------------------------------------------
2015 ($599,972)
------------------------------------------------------------------------
2016 ($612,812)
------------------------------------------------------------------------
2017 ($626,563)
------------------------------------------------------------------------
2018 ($640,602)
------------------------------------------------------------------------
2019 ($654,937)
------------------------------------------------------------------------
2020 ($669,573)
------------------------------------------------------------------------
2021 ($684,515)
------------------------------------------------------------------------
Total ($6,214,347)
------------------------------------------------------------------------
Administrative/General Operating Expense Costs (GOE)
No administrative costs are associated with this legislation.
Contact
Thomas J. Kniffen, Chief, Compensation and Pension Service
Regulation Staff (21), 202-461-9625; Sadaf Rahmani 202-461-9956, ORM
Benefits Budget Division (24); or Kerry Baker, Policy Staff,
Compensation and Pension Service (202) 461-1452 (21).