[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





                         LEGISLATIVE HEARING ON
               H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484,
               H.R. 1627, H.R. 1647, AND H. CON. RES. 12

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON DISABILITY ASSISTANCE
                          AND MEMORIAL AFFAIRS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 3, 2011

                               __________

                            Serial No. 112-9

                               __________

       Printed for the use of the Committee on Veterans' Affairs








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                     COMMITTEE ON VETERANS' AFFAIRS

                     JEFF MILLER, Florida, Chairman

CLIFF STEARNS, Florida               BOB FILNER, California, Ranking
DOUG LAMBORN, Colorado               CORRINE BROWN, Florida
GUS M. BILIRAKIS, Florida            SILVESTRE REYES, Texas
DAVID P. ROE, Tennessee              MICHAEL H. MICHAUD, Maine
MARLIN A. STUTZMAN, Indiana          LINDA T. SANCHEZ, California
BILL FLORES, Texas                   BRUCE L. BRALEY, Iowa
BILL JOHNSON, Ohio                   JERRY McNERNEY, California
JEFF DENHAM, California              JOE DONNELLY, Indiana
JON RUNYAN, New Jersey               TIMOTHY J. WALZ, Minnesota
DAN BENISHEK, Michigan               JOHN BARROW, Georgia
ANN MARIE BUERKLE, New York          RUSS CARNAHAN, Missouri
TIM HUELSKAMP, Kansas
Vacancy
Vacancy

            Helen W. Tolar, Staff Director and Chief Counsel

       Subcommittee on Disability Assistance and Memorial Affairs

                    JON RUNYAN, New Jersey, Chairman

DOUG LAMBORN, Colorado               JERRY McNERNEY, California, 
ANN MARIE BUERKLE, New York          Ranking
MARLIN A. STUTZMAN, Indiana          JOHN BARROW, Georgia
Vacancy                              MICHAEL H. MICHAUD, Maine
                                     TIMOTHY J. WALZ, Minnesota

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

                               __________

                              May 3, 2011

                                                                   Page
Legislative Hearing on H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484, 
  H.R. 1627, H.R. 1647, and H. Con. Res. 12......................     1

                           OPENING STATEMENTS

Chairman Jon Runyan..............................................     1
    Prepared statement of Chairman Runyan........................    35
Hon. Jerry McNerney, Ranking Democratic Member...................     2
    Prepared statement of Congressman McNerney...................    35

                               WITNESSES

U.S. Court of Appeals for Veterans Claims, Hon. Bruce E. Kasold, 
  Chief Judge....................................................    19
    Prepared statement of Judge Kasold...........................    50
U.S. Department of Veterans Affairs, Diana M. Rubens, Associate 
  Deputy Under Secretary for Field Operations, Veterans Benefits 
  Administration.................................................    25
    Prepared statement of Ms. Rubens.............................    52
U.S. Department of Defense, Kathryn A. Condon, Executive 
  Director, Army National Cemeteries Program, Office of the 
  Secretary of the Army, Department of the Army..................    27
    Prepared statement of Ms. Condon.............................    57

                                 ______

American Veterans (AMVETS), Christina M. Roof, National Acting 
  Legislative Director...........................................     4
    Prepared statement of Ms. Roof...............................    36
Disabled American Veterans, Jeffrey C. Hall, Assistant National 
  Legislative Director...........................................     5
    Prepared statement of Mr. Hall...............................    38
National Veterans Legal Service Program, Barton F. Stichman, 
  Joint Executive Director.......................................     8
    Prepared statement of Mr. Stichman...........................    43
Veterans of Foreign Wars of the United States, Shane Barker, 
  Senior Legislative Associate, National Legislative Service.....     7
    Prepared statement of Mr. Barker.............................    41
Weiner, Hon. Anthony D., a Representative in Congress from the 
  State of New York..............................................     9
    Prepared statement of Congressman Weiner.....................    47

                       SUBMISSION FOR THE RECORD

Paralyzed Veterans of America, statement.........................    58

 
                         LEGISLATIVE HEARING ON
               H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484,
               H.R. 1627, H.R. 1647, AND H. CON. RES. 12

                              ----------                              


                          TUESDAY, MAY 3, 2011

             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 8:02 a.m., in 
Room 340, Cannon House Office Building, Hon. Jon Runyan 
[Chairman of the Subcommittee] presiding.

    Present: Representatives Runyan, Buerkle, Stutzman, 
McNerney, Barrow, and Walz.

              OPENING STATEMENT OF CHAIRMAN RUNYAN

    Mr. Runyan. Good morning. The legislative hearing on H.R. 
811, H.R. 1407, H.R. 1441, H.R. 1484, H.R. 1627, and H.R. 1647, 
and H. Con. Res. 12 will come to order. I want to thank you all 
for your attendance at this hearing at such an early hour. With 
two other hearings in the Committee on Veterans' Affairs today 
we had to do some unorthodox scheduling. I know we have a few 
Members who will be in VA Committee hearings all day today.
    While the scheduling of this hearing was not optimal, it 
was also not utterly unreasonable. My understanding is that 
most of the witnesses were able to submit their testimony on 
time despite the rigid timeline. Therefore, I am very 
disappointed with the lateness of the U.S. Department of 
Veterans' Affairs' (VA's) testimony. It is understandable that 
it can be difficult to get the testimony through the clearance 
process. But it is wholly unacceptable to receive testimony 
15\1/2\ hours before the hearing starts. Members and staff must 
be given time to do our jobs and properly prepare for your 
testimony.
    Before I recognize Ranking Member McNerney and the other 
Members of the Committee, I just wanted to briefly touch on 
three bills on today's agenda that I have introduced. H.R. 1407 
is the ``Veterans' Compensation Cost-of-Living Adjustment Act 
of 2011.'' It provides a cost-of-living increase to veterans' 
disability compensation rates and other benefits. These 
increases are tied to the cost-of-living adjustments (COLAs) 
for Social Security benefits.
    H.R. 1441 codifies regulations and policies that bar 
reservations for burial or interment at the Arlington National 
Cemetery made on or before January 1, 1962. Like many people, I 
was shocked when I learned about the recent allegations that 
veterans had been given unofficial reservations by the former 
management at Arlington National Cemetery. I applaud the 
decision of the new management team, headed by Ms. Condon, to 
not honor these unofficial reservations. And this bill makes 
the policy crystal clear by putting it into law.
    My final bill, H.R. 1647, the ``Veterans' Choice in Filing 
Act.'' This bill directs the VA to establish a pilot program 
that would allow veterans who live in the jurisdiction of the 
five underperforming regional offices (ROs) to choose which 
regional office they would like to have their claim 
adjudicated. While I understand that many stakeholders here 
today have some questions in regard to the logistics of the 
bill I am sure we can all agree that it is inappropriate for 
veterans from one part of the country to have more accurate and 
timely decisions than a veteran living in another part of the 
country. My bill is meant to start the discussion in addressing 
these inequities and I look forward to hearing suggestions from 
our stakeholders here today on how they can work together to 
ensure all veterans' claims are timely and accurate. We will 
continue to discuss this issue at a hearing we will be having 
on underperforming regional offices on June 2nd.
    I would like to ask all of today's witnesses to summarize 
your written statement within 5 minutes and without objection 
the written testimony will be made part of the hearing record. 
Before I begin with testimony I will now yield to the 
distinguished Ranking Member from the great State of 
California, Mr. McNerney.
    [The prepared statement of Chairman Runyan appears on p. 
35.]

            OPENING STATEMENT OF HON. JERRY MCNERNEY

    Mr. McNerney. Thank you, Mr. Chairman. I would like to 
thank you for holding today's hearing. This morning we are 
considering seven pieces of legislation, ranging from claims 
processing, appeals modernization, and memorial services at VA 
cemeteries, and Arlington National Cemetery. However, I would 
be remiss if I did not mention the oddity of the 8:00 a.m. 
hearing this hour. You know, if you are a Californian, 8:00 is 
kind of early. I know you are doing this to torture me. But 
there have been frequent rescheduling and changes in procedure 
of at least five times. I hope this high level of confusion and 
frequency of changes can be avoided in the future, and that 
more consideration can be shown for our colleagues and our 
witnesses.
    Today we consider two pieces of legislation that seek to 
make VA claims processing and appeals and the Board of 
Veterans' Appeals (BVA) appeals process more efficient and 
effective for our Nation's veterans. Specifically, the 
``Veterans Appeals Improvement Act of 2011,'' H.R. 1484, 
introduced by the Ranking Democratic Member of the full 
Committee, Mr. Filner; and your bill, Mr. Chairman, H.R. 1647, 
the ``Veterans' Choice in Filing Act.'' The provisions of the 
Ranking Member's bill aim to continue the successful process 
which began with the enactment of Public Law 110-389 of making 
positive changes to the way our veterans' claims and appeals 
are handled by the Veterans Benefits Administration (VBA), 
Appeals Management Center, BVA, and the U.S. Court of Appeals 
for Veterans Claims (CAVC). Additionally, H.R. 1484 would 
establish a commission to examine some of the overarching and 
longstanding judicial and administrative issues that contribute 
to what many stakeholders refer to as the hamster wheel. I look 
forward to delving into again these issue with all the 
stakeholders in a bipartisan manner.
    I would also like to address your legislation, Mr. 
Chairman, the ``Veterans' Compensation Cost-of-Living 
Adjustment Act of 2011,'' H.R. 1407. This bill has my full 
support. Many of the nearly three million veterans who receive 
these benefits depend on these tax free payments not only to 
provide for their own basic needs but those of their spouses, 
children, and parents as well. We would be derelict in our duty 
if we failed to guarantee that those who sacrificed so much for 
this country received benefits and services that failed to keep 
pace with their needs.
    Finally, four of the remaining measures that we will 
consider today address memorial issues. H.R. 811, H.R. 1441, 
H.R. 1627, and H. Con. Res. 12. I look forward to hearing from 
our U.S. Department of Defense (DoD) witnesses as we discuss 
the three measures related to the placement of monuments and 
grave reservations at Arlington National Cemetery. I am also 
pleased that we will have a chance to consider Ranking Member 
Filner's bill, ``Providing Military Honors for our Nation's 
Heroes,'' H.R. 811, which would help ensure that all of our 
veterans receive full burial honors that they deserve. It is 
critical that we honor our veterans' services and sacrifices 
appropriately as they are laid to rest.
    During times of war, such as today, we must simultaneously 
ensure the proper compensation and support for our current 
veterans, while also creating and implementing innovative 
solutions that will allow us to care for those who will become 
veterans in our current conflicts. I think the bills under 
consideration today strike that balance.
    Mr. Chairman, I thank my colleagues, Chairman Miller, 
Ranking Member Filner, Mr. Weiner, for introducing the other 
measures before us today. I look forward to hearing from all of 
our witnesses. I yield back and thank you.
    [The prepared statement of Congressman McNerney appears on 
p. 35.]
    Mr. Runyan. Thank you. At this time I would like to ask the 
first panel to come forward. Today we have with us Ms. 
Christina Roof, representing AMVETS; Mr. Jeffrey Hall from the 
Disabled American Veterans; (DAV) Mr. Shane Barker representing 
the Veterans of Foreign Wars (VFW); and Mr. Barton Stichman of 
the National Veterans Legal Service Program (NVSLP). Ms. Roof, 
you are now recognized for 5 minutes.

 STATEMENTS OF CHRISTINA M. ROOF, NATIONAL ACTING LEGISLATIVE 
    DIRECTOR, AMERICAN VETERANS (AMVETS); JEFFREY C. HALL, 
  ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN 
VETERANS; SHANE BARKER, SENIOR LEGISLATIVE ASSOCIATE, NATIONAL 
  LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED 
   STATES; AND BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR, 
            NATIONAL VETERANS LEGAL SERVICE PROGRAM

                 STATEMENT OF CHRISTINA M. ROOF

    Ms. Roof. Thank you. Chairman Runyan, Ranking Member 
McNerney, and distinguished Members of the Subcommittee, on 
behalf of AMVETS I would like to extend our gratitude for being 
given the opportunity to share with you our views and 
recommendations on these very important pieces of legislation. 
The Committee has my full statement for the record. So today, 
in the interest of time, I will just touch upon a few bills.
    First, AMVETS supports H.R. 811, the ``Providing Military 
Honors for our Nation's Heroes Act.'' With the growing demand 
for military honors at burials today and the lack of military 
personnel or volunteers with the financial means to perform 
them, many of our Nation's fallen heroes are going without 
proper honors at their funerals. AMVETS finds this poignant 
reality unacceptable and avoidable. AMVETS believes that if 
funds for travel reimbursement were made available to 
organizations providing military honors at burial, more of this 
Nation's fallen soldiers would be guaranteed the proper honors 
they have earned through their greatest sacrifice to this 
country.
    AMVETS also supports H.R. 1407, the ``Veterans' 
Compensation Cost-of-Living Adjustment Act of 2011.'' AMVETS 
strongly supports this bill and urges its swift passage.
    AMVETS strongly supports H.R. 1627. AMVETS believes the 
proposed language in H.R. 1627 will provide the necessary 
clarity, as well as uniform defined requisites for the 
placement of acceptable monuments in Arlington National 
Cemetery. Furthermore, AMVETS believes that mandating monuments 
only be erected in areas not suitable for interment will 
provide the opportunity for more of our Nation's fallen heroes 
and qualifying veterans to be laid to rest in these sacred 
grounds.
    Finally, AMVETS supports H.R. 1441, to codify the 
prohibition against the reservation of gravesites at Arlington 
National Cemetery and for other purposes. It has been brought 
to the attention of AMVETS that de factor reservations of plots 
were still being made in direct violation to the Army's policy 
of prohibition of reservations established in 1962, and that 
there is still an unverified reservation list of about 3,200. 
AMVETS finds this to be objectionable and disgraceful, given 
the importance of what Arlington National Cemetery is tasked 
with. Furthermore, AMVETS believes that while H.R. 1441 stands 
to codify the Army's regulation, it also stands to provide 
accountability and transparency in the daily operations of 
Arlington National Cemetery. AMVETS believes that one's status 
in life should never determine their eligibility of interment 
over anyone else's. Once again, AMVETS supports H.R. 1441 and 
further urges Congress to have the strictest of oversight in 
the implementation of Arlington's electronic tracking system, 
as well as the reservation review process, currently taking 
place.
    Chairman Runyan and distinguished Members of the 
Subcommittee, AMVETS would again like to thank you for inviting 
us to share with you our opinions on these very important 
pieces of legislation and I stand ready to answer any questions 
you may have for me. Thank you.
    [The prepared statement of Ms. Roof appears on p. 36.]
    Mr. Runyan. Thank you. With that, Mr. Hall we yield you 5 
minutes for your testimony.

                  STATEMENT OF JEFFREY C. HALL

    Mr. Hall. Thank you. Chairman Runyan, Ranking Member 
McNerney, and Members of the Subcommittee. It is a privilege to 
be here today on behalf of the Disabled American Veterans to 
offer our views regarding pending legislation under 
consideration by the Subcommittee.
    Mr. Chairman, as you and other Members of the Subcommittee 
are aware the rates of compensation for veterans with service-
connected disabilities and the rates for dependents' indemnity 
compensation, or DIC, have not been increased during the past 2 
years. Many veterans and their families rely solely on 
disability compensation or DIC as their only means of income. 
Without a cost-of-living adjustment, or COLA, especially in a 
difficult economy, causes many sick and disabled veterans to 
struggle financially or to not be able to make ends meet. With 
the rapidly increasing cost of basic necessities such a food, 
medicine, and gasoline, it is absolutely imperative for 
veterans and their families to receive an annual COLA. As such, 
DAV strongly supports the passage of 
H.R. 1407.
    Additionally, DAV calls on Congress to end the practice of 
permanently rounding down COLAs to the next whole dollar 
amount. While this incremental reduction may seem an 
insignificant sum, it is anything but to those disabled 
veterans and their families whose only means of financial 
support comes from these programs. Likewise, consistent with 
The Independent Budget DAV is asking Congress to finally 
implement the recommendation of the IOM (Institute of 
Medicine), the Veterans Disability Benefits Commission (VDBC), 
and the Dole-Shalala Commission to enhance disability 
compensation by including compensation for the loss of quality 
of life suffered by disabled veterans who have sacrificed so 
much serving and defending this great Nation.
    With respect to H.R. 1484, DAV strongly supports section 
two of the bill as this provision could be beneficial to all 
parties involved. Allowing a claimant to submit new or 
supplemental evidence directly to the Board without requiring a 
waiver of VA regional office consideration could alleviate time 
consuming interruptions and unnecessary remands, which can 
cause burdensome delays and waste VBA resources in the process.
    Regarding section three of the bill, which would create a 
Veterans Judicial Review Commission, DAV testified in October 
2009 on a similar commission. However, this new proposal is 
different in two respects. First, as you know, the VBA is 
deeply engaged in reforming the entire claims process to 
improve timeliness, accuracy, and consistency of their 
decisions. The Veterans Benefits Management System (VBMS) and 
the many other VBA pilot programs currently being evaluated 
should lead to significant changes in how VBA, the Board, and 
the Court receive and process claims and appeals. DAV simply 
questions whether the creation of yet another study commission 
is warranted or if it would be an appropriate use of resources.
    Second, giving the Court of Appeals for Veterans Claims, or 
Court, class action authority advances the same concerns we 
previously raised during the October 2009 hearing before the 
Subcommittee. It remains our view that the appeals decided on 
an individual basis afford an appellant the best results. While 
class actions may benefit members of that class, further appeal 
action is precluded once a decision is rendered. Moreover, as 
reported recently in the Washington Post, the Court is 
understaffed and unable to keep pace with its pending caseload 
at this present time. DAV believes adding class action 
submissions would unnecessarily increase the burden on the 
Court at a time when its workload can reasonably be predicted 
to continue rising in the coming years as a result of a growing 
number of new claims filed each year. As such, DAV does not 
support section three of the bill at this time.
    Lastly, H.R. 1647 would authorize a pilot program to allow 
veterans served by certain poor performing VA regional offices 
as designed by the Secretary the option to submit their claims 
for benefits at any VA regional office. DAV agrees with the 
intention of ending the disparities between and improving the 
overall performance of VA regional offices. However, during the 
past 2 years, the VBA has been engaged in a multitude of pilot 
programs directed at reforming the entire claims process. We 
believe creating another pilot program, one allowing claimants 
the ability to choose which VA regional office they want to 
process their claims, could interfere with VBA's ability to 
effectively manage their already backlogged caseload and 
possibly impeded the critical reform of the entire claims 
process. As such, DAV does not support passage of this 
legislation.
    We would, however, be pleased to work with the Subcommittee 
to develop better methods in addressing the performance 
differences between VA regional offices centered around better 
training and quality control programs. With the enormous amount 
of new VBA employees, coaches, and managers sound training is 
absolutely imperative for consistency, accuracy, and producing 
rating decisions that are done right the first time.
    In closing, with respect to H.R. 811, H.R. 1441, H.R. 1627, 
and H. Con. Res. 12, DAV does not currently have adopted 
resolutions from our membership pertaining to these particular 
matters. However, we do not oppose passage of these bills.
    Mr. Chairman and Members of the Subcommittee, this 
concludes my statement and I am happy to answer any questions 
you may have.
    [The prepared statement of Mr. Hall appears on p. 38.]
    Mr. Runyan. Thank you, Mr. Hall. Mr. Barker, you are 
recognized for 5 minutes.

                   STATEMENT OF SHANE BARKER

    Mr. Barker. Mr. Chairman, Ranking Member McNerney, and 
Members of the Committee, on behalf of the 2.1 million members 
of the Veterans of Foreign Wars of the United States and our 
auxiliaries, we offer our thanks for this opportunity to 
present our views on today's pending legislation.
    The VFW strongly supports H.R. 811, the ``Providing 
Military Honors for our Nation's Heroes Act.'' This bill would 
offset costs for military retirees and veterans who volunteer 
to provide military funeral honors. At a time when many of our 
greatest generation are passing on and those serving in current 
conflicts are risking their lives for our country, this measure 
will help to ensure that all receive the honors they have 
earned.
    We also support H.R. 1407, the ``Veterans' Compensation 
Cost-of-Living Adjustment Act of 2011.'' Veterans and their 
survivors have not received COLA increases in 2 years. 
Meanwhile, inflation is taking a toll on their budgets. The 
most recent data from the Department of Labor shows a 2.1 
percent increase in the consumer price index over the 2008 COLA 
base, and this legislation is the vehicle to ensure our 
veterans and survivors receive a corresponding adjustment in 
their payments.
    The VFW strongly supports H.R. 1441, a bill that will 
finally prohibit in law the insider practice of allowing 
certain high-ranking military members and other VIPs to 
preselect their gravesites at Arlington National Cemetery. This 
practice was banned by the Army nearly 50 years ago, yet 
Cemetery administrators have continued to arbitrarily allow 
some to circumvent those rules. Burial at Arlington National 
Cemetery is a tremendous honor and should always depend upon 
honorable service, not rank.
    The VFW supports H.R. 1484, the ``Veterans Appeals 
Improvement Act of 2011.'' This legislation would alter current 
procedures of requiring new evidence submitted for a claim 
under appeal to be considered by a regional office before being 
sent to the Board of Veterans' Appeals, except in cases where 
the appellant waives that review. It also stipulates that the 
Board is required to rate all new evidence submitted after the 
case is sent to them unless the veteran specifically refuses to 
waive that consideration. This bill would allow the Board to 
move more quickly on appeals and would alter, but not 
eliminate, an appellant's right to local consideration. 
According to our internal data, VFW service officers waive 
local consideration about 90 percent of the time for veterans 
we represent. For this and other reasons we do not believe this 
procedural change would have a significant impact on 
appellants.
    The VFW has no position on section three of the 
legislation, which creates a commission to review and report to 
Congress regarding the administrative and judicial appellate 
review process. We reserve the privilege to review that at a 
time when it would be appropriate.
    We support H.R. 1627, a measure to codify procedures used 
at Arlington governing the placement of memorial markers. Any 
decisions that would affect the grounds at Arlington must be 
principled, fair, and based on precedent. This legislation 
advances these principles by taking existing procedures and 
making them the law of the land.
    The VFW does not support H.R. 1647, the ``Veterans' Choice 
in Filing Act of 2011,'' which would create a pilot program 
that would allow veterans at five underperforming regional 
offices to submit benefits claims to any VA regional office of 
their choice. We are concerned this pilot may only complicate 
VA's current process of transferring cases from backed up 
offices to those with excess capacity. It would also create 
concerns for VFW service officers and those from other veterans 
service organizations (VSOs). It is unclear how we or an 
individual veteran would know whom to contact about their claim 
or how effective a service officer could be regarding a claim 
that was sent to a distant state from across the country. 
However, we are hopeful that we can work with the Subcommittee 
to find solutions that would help expedite this process.
    Finally, the VFW does support H. Con. Res. 12. The 
resolution states very clearly the sacrifices that have been 
made by chaplains by the Jewish faith on behalf of the United 
States. Other memorial markers are placed on Chaplains Hill in 
Arlington in memoriam of chaplains of other faiths. Rabbinical 
chaplains who have also served with dignity and honor should be 
similarly memorialized.
    Mr. Chairman, this concludes my statement. I would be happy 
to answer any questions that you or the Members of the 
Committee may have.
    [The prepared statement of Mr. Barker appears on p. 41.]
    Mr. Runyan. Thank you. Mr. Stichman, we would like to yield 
you 5 minutes for your testimony.

                STATEMENT OF BARTON F. STICHMAN

    Mr. Stichman. Thank you, Mr. Chairman. Thank you for the 
opportunity for the National Veterans Legal Service Program to 
present their views today. I would like to focus on one part of 
the short time that I have on a part of H.R. 1484 that would 
create a commission to study, among other things, whether the 
Court of Appeals for Veterans Claims should be given class 
action authority. You do not need a commission to conclude that 
legislation creating class action authority in the Veterans 
Court is long overdue.
    We know we have an inefficient VA adjudicatory system that 
has had problems for years. We know that there is a hamster 
wheel phenomenon between the VA regional offices and the Board 
of Veterans' Appeals and the Court of Appeals for Veterans 
Claims. Class action authority will help, not totally resolve 
but will help alleviate those problems.
    Traditionally the rights of similarly situated U.S. 
citizens, denied Federal Government benefits for the same 
reason, have been able to be resolved through the expeditious, 
efficient system called a class action. For decades Social 
Security claimants have been able to file in U.S. District 
Courts class actions for resolution of similarly situated 
cases. The VA benefits system prior to the Veterans' Judicial 
Review Act of 1988 had a system where U.S. District Courts 
could consider class actions. For example, there is a case 
called Nehmer in which a U.S. District Court in California 
certified a class and struck down the VA's Agent Orange 
compensation rules so that all Agent Orange compensation are 
decided in a similar fashion.
    The Veterans' Judicial Review of 1988 changed all that 
because it changed the jurisdiction over veterans cases to the 
U.S. Court of Appeals for Veterans Claims without requiring a 
class action rule, and the Court of Appeals for the Federal 
Circuit, which does not have class action review authority. 
This causes problems for veterans and I will give you one 
example to illustrate it.
    A number of years ago the VA issued a directive requiring 
the regional offices not to send veterans two types of 
decisions they made. One, decisions granting over $250,000 in 
retroactive benefits. Two, decisions granting over 8 years of 
retroactive benefits. Instead those decisions were to be sent 
to the VA Central Office for review in a secret proceeding that 
veterans never knew about. They did not have a right to a 
hearing before the Central Office, or to participate. The 
Central Office overturned half of those hundreds of decisions 
that were sent pursuant to that directive to the Central Office 
and the Central Office decision was substituted for the 
regional office grant of benefits that the veteran never got to 
see.
    The Military Order of the Purple Heart filed a lawsuit in 
the Federal circuit challenging that rule. It could not file a 
lawsuit in the Court of Appeals for Veterans Claims because 
that Court has rule that organizations cannot file suit in that 
Court, only individual veterans. And Military Order of the 
Purple Heart did not know which members of that organization 
had been denied pursuant to this procedure because it was a 
secret procedure. Nobody knew whether their cases were 
involved.
    They went to the Federal circuit, which struck down that 
directive. But refused to require the VA to overturn the 
individual decisions that were made in violation of the Court's 
decision. So none of the individuals have gotten relief, 
because that Court has no authority to grant that relief. Class 
action authority would end that problem. It would require, have 
required the VA to identify all of the people whose cases were 
overturned by their Central Office pursuant to the secret 
process that the Federal circuit struck down and require the 
veterans to get the benefits that were originally awarded.
    Now class actions are an efficient system, tried and true 
in other benefit systems, for requiring an agency to decide 
similarly situated cases in a similar fashion without 58 
regional offices, considering each one on an individual basis. 
And we urge the Committee without the necessity for a 
commission to enact such type of legislation. I would be happy 
to answer any questions the Committee may have.
    [The prepared statement of Mr. Stichman appears on p. 43.]
    Mr. Runyan. Thank you very much. And respecting the time of 
one of my colleagues who wanted to come and testify I am going 
to recognize Mr. Weiner for 5 minutes for his testimony.

STATEMENT OF HON. ANTHONY WEINER, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF NEW YORK

    Mr. Weiner. Well, thank you, Mr. Chairman. I doubt I will 
take that. And I just wanted to tell you I am impressed by a 
Subcommittee that meets at 8:00 a.m. I guess your Subcommittee 
has the slogan you get more done by 9:00 a.m. than most 
Subcommittees get done all day.
    I thank you very much Mr. Chairman, Ranking Member 
McNerney, my colleagues for allowing me to briefly testify on 
House Concurrent Resolution 12, which would designate a plot of 
land at Arlington Cemetery to be used for a memorial honoring 
Jewish chaplains of our armed services. As you know, this is 
Jewish Heritage Month and I very much appreciate your 
leadership and Congressman Rooney who is the lead Republican 
sponsor on this bill.
    Unlike many things in Congress this bill is simple, it is 
straightforward. Jewish chaplains have served our country for 
149 years and yet they still do not have a place next to their 
Protestant and Catholic brothers on Chaplain Hill in Arlington 
Cemetery. Today all that is standing between Arlington Cemetery 
and a memorial is the passage of H. Con. Res. 12. And that is 
all there is to this resolution.
    I am not the person who thought of a memorial for these 
Jewish chaplains. In fact, many Jewish Americans and veterans 
nationwide, I was surprised to learn that no memorial existed 
at Arlington Cemetery for Jewish chaplains. Ken Kraetzner, son 
of a World War II Army officer, noticed the lack of a monument 
for Jewish chaplains while researching the stories of the four 
immortal chaplains who died while giving final rites on board 
the USS Dorchester in 1943. Ken located the four men on 
Chaplains Hill. He noticed that Rabbi Alexander Goode was the 
only one of the four chaplains not distinguished by a memorial. 
Ken partnered with two other veterans, Rabbi Harold Robinson 
and Sol Moglen, to help lead a fundraising effort. In just a 
few months they raised over $50,000 mainly from war veterans 
across the Nation who wanted to do the right thing.
    They used three other memorials as the model for the new 
monument for the 13 Jewish chaplains who lost their lives from 
1943 to 1974. Thirteen, as you know, is a very significant 
number in the Jewish faith and it is appropriate that a 
memorial be for those chaplains and any that come after them.
    The monument was designed, will stand 7 feet tall with a 
bronze plaque mounted on a granite slab listing the 13 names, 
as well as a Jewish proverb: ``I ask not for a lighter burden, 
but for broader shoulders,'' and an inscription of the Star of 
David. There will also be a place at the bottom for future 
chaplains if, God forbid, it is needed. While planning this 
project Mr. Kraetzner, Rabbi Robinson, and Mr. Moglen were in 
touch with Arlington Cemetery. They were notified of a 2001 law 
that requires Congressional approval for memorials in Arlington 
Cemetery, and that is what brings us here. The group quickly 
alerted Jewish War Veterans of the United States, the Jewish 
Welfare Board, and the Jewish Chaplains Council, and they 
reached out to those of us in Congress. Senator Schumer has 
introduced the Senate version of this, and in less than 4 
months the resolution has collected 72 bipartisan cosponsors 
including you, Mr. Chairman, and the Chairman of the full 
Committee. And it has been endorsed by 35 national Jewish 
organizations and 47 local Jewish War Veterans chapters.
    The Jewish Federations of North America and Shelly Rood 
have been working to help pass the bill to recognize the 
achievements of these chaplains. Surviving family members of 
the chaplains have also been involved in the process, including 
David Engle, son of Rabbi Meir Engle, and Vera Silberberg, 
daughter of Morton Singer.
    If I may, Mr. Chairman, I would like to submit with 
unanimous consent the letter of support from all of these 
groups for the record. And I am grateful that we are one step 
closer to erecting this monument properly honoring these 
chaplains. It is an excellent way, I believe, to celebrate 
Jewish Heritage Month.
    At this point, if it would be appropriate, I would just 
like to read the names of the thirteen Jewish chaplains as well 
as their rank? Army Captain Nachman Arnoff, who passed away on 
May 19, 1946; Army Lieutenant Colonel Meir Engel, who passed 
away December 16, 1964; Army 1st Lieutenant Frank Goldenberg, 
deceased on May 22, 1946; Army Lieutenant Alexander D. Goode, 
deceased February 3, 1943; Army Lieutenant Henry Goody, 
deceased October 19, 1943; Major Samuel Hurwitz, deceased, 
December 19, 1943; Major Herman Rosen, deceased June 18, 1943; 
Air Force Captain Samuel Rosen, May 1, 1955; Air Force 1st 
Lieutenant Solomon Rosen, deceased November 2, 1948; Army 
Captain--these I do not have the ranks for these, actually, so 
these are just a member of the--Army Chaplain Morton Singer, 
deceased December 17, 1968; Air Force Chaplain David Sobel, 
deceased March 7, 1974; Army Chaplain Irving Tepper, August 13, 
1944; and Army Chaplain Louis Werfel, December 24, 1944.
    May we honor them with this memorial, and honor them and 
all the chaplains that have come before them and will serve in 
the future. And I thank you very much, Mr. Chairman, for the 
opportunity to express my support for this resolution.
    [The prepared statement of Congressman Weiner appears on p. 
47.]
    Mr. Runyan. And Mr. Weiner, thank you for the early hour. I 
said in my opening statement that this is abnormal. We do not 
plan to make this a regular occurrence. So thank you again for 
your testimony.
    Mr. Weiner. Thank you, sir.
    Mr. Runyan. With that I am going to start the questioning 
as we alternate back and forth between parties in their order 
of arrival. I am going to start with Mr. Stichman would you 
talk about the class action authority? You touched on it in 
your testimony. But I always look at the unintended, not so 
much the unintended consequences, but is the process in itself 
going to create a backlog at another level? And that is one of 
my first worries.
    Mr. Stichman. Well, with regard to unintended consequences, 
often when something new is created it will have unintended 
consequences. But class action authority is not new. It has 
existed for decades in other benefits systems and it existed at 
the VA for quite a while prior to 1988. So I do not think you 
have, should fear unintended adverse consequences. It will 
alleviate, rather than create, backlogs. It will alleviate the 
backlog because when somebody files a class action, the Court 
can take the authority to order the VA not to adjudicate 
similarly situated cases. Do not waste your time deciding 
similarly situated cases until the Court has finally resolved 
the rights of the veterans who are bringing the lawsuit. So the 
VA can save resources. Instead of deciding all these cases 
while the case is going on, they can put them on hold. Then 
when the Court finally issues a decision, no more appeals 
possible, then the VA can decide all those cases in the way 
that the Court says it should under the law. So it will 
actually alleviate VA resources being expended on cases they 
should not have to spend time on.
    Mr. Runyan. Thank you for that. Ms. Roof, can you share 
with the Members of the Subcommittee how your members currently 
volunteer their time at military funerals? And is the DoD 
meeting its mission there. I just wanted to get the background 
from your perspective on it.
    Ms. Roof. Just a brief overview. We have many, many members 
of our organization that actually travel the country and 
provide honors at military funerals at no cost to the family. 
These men and women, our members, are volunteering their time 
and their money. They are not asking for anything, to be 
reimbursed, but obviously with the influx in gas prices and so 
on they are being able to perform less of these funerals. Not 
because they do not want to, but because they do not have the 
means to. Does that answer your question?
    Mr. Runyan. Yes, but as we move forward and set something 
up, how can the VSOs really work to ensure that fraud and abuse 
is not going to be existent in this? Because it has that 
potential to come down the road.
    Ms. Roof. Fraud and abuse of people taking advantage of 
this?
    Mr. Runyan. Taking advantage of it, as it would be 
developed.
    Ms. Roof. You know, I do not know if I can give you any 
clear answer to that. I think with anything we do, and any 
program that we do within VA, there is always going to be that 
chance for fraud and abuse. I think that is why it is very 
important that there be strict oversight in these programs. And 
again, I do not want to see people not receive the honors they 
deserve because we are worried about fraud and abuse.
    Mr. Runyan. Well, thank you very much. With that, I will 
turn it over to Ranking Member Mr. McNerney.
    Mr. McNerney. Thank you, Mr. Chairman. I thank the 
witnesses for coming here this morning. Ms. Roof, I understand 
there are several downsides to the Veterans Choice of Filing 
Act of 2011, H.R. 1647. Would you please elaborate a little on 
the reasons that AMVETS opposes this legislation?
    Ms. Roof. Well, we have some concerns with the current 
language. As I had stated in my written testimony, we are more 
than happy to work on addressing some of this stuff with the 
Committee. However, one of our main concerns is that VA has 
done this in the past. They have addressed disparities in 
production by sort of brokering work out from regional office 
to regional office. And what it has proven to do is to sort of 
flood the higher performing regional offices. And there is no 
improvement. Does that make sense?
    Also, we have a personal concern of when it comes to 
residency, your service officer. Where are you going to have 
your claim adjudicated? And lastly again, when you are flooding 
these higher performing offices we have the question of is 
there going to be an increase in budget and an increase in 
personnel to deal with these newer claims?
    Mr. McNerney. So would it be fair to say that you would 
prefer, or AMVETS would prefer, a comprehensive overhaul rather 
than an approach that looks at transferring loads from one 
center to another?
    Ms. Roof. I think comprehensive overhaul is what we are all 
working towards, absolutely. How we choose to get there I think 
is still kind of up in the air. But I absolutely think a 
comprehensive overhaul is needed.
    Mr. McNerney. Mr. Hall, a similar question. I believe that 
you and the DAV oppose that legislation. 
Could you explain why, please?
    Mr. Hall. Initially--thank you for the question. Initially, 
we feel it is the wrong time. With the multitude of the pilot 
programs that are currently pending out there, and the goal of 
reforming the entire claims process, we simply believe that the 
timing of this is off. Now as a deeper concern, when a claim is 
filed, to allow the opportunity to file a claim at any VA 
regional office, as my colleague has testified, it is going to 
create an influx to a VA regional office that may not be 
prepared for or expectant of an increased amount of claims. 
Where the claims end up, you know, it is not clear with the 
intent of the bill how that is going to be decided. But we also 
have the concerns of how the claimants in these five VA 
regional offices that are chosen, how are they, how is the VA 
going to notify the claimants? All of them that are in the 
system within, say, a particular regional office are going to 
get a letter. So we have a concern about how they are going to 
be notified that they can opt in for this particular program.
    And lastly I would just say in filing a claim for benefits, 
and unlike brokering, brokering of a claims file usually occurs 
after an examination and it is usually done to simply process 
the claim once all of the evidence or data is gathered. In this 
particular scenario if this should happen, an individual is a 
New York City claimant. If that is one of the offices that is 
chosen so a veteran that would normally be served by that 
regional office could file in, say, St. Petersburg, Florida, as 
an example. If they choose to do that the file would be 
transferred to St. Petersburg, Florida. Then an examination 
would be requested in that case. So the file would have to be 
transferred back because the examiner just review that file. 
Then the file would have to be transferred back to St. 
Petersburg. And so we have this, you know, a lot of things 
intertwine with that, with the possibility of losing, and----
    Mr. McNerney. Okay. I guess what you are saying is that it 
could add complexity, it could add layering. In your opinion 
would it make the situation worse with respect to the backlogs? 
Or better? Or have no effect on the backlog?
    Mr. Hall. We believe that it would definitely adversely 
affect the current process with the already outrageous backlog 
that there is.
    Mr. McNerney. All right. Thank you, Mr. Hall. Mr. Barker, 
please elaborate a bit please on how VSOs and other volunteers 
are reimbursed for rendering military honors when there is no 
military representation?
    Mr. Barker. Currently?
    Mr. McNerney. Yes.
    Mr. Barker. I do not know that I am fully aware of the 
process by which they are currently reimbursed.
    Mr. McNerney. Would it be fair to say that there are cases 
where there is no reimbursement?
    Mr. Barker. Yes.
    Mr. McNerney. Okay, and how would H.R. 811 change that?
    Mr. Barker. Well, reading the legislation it is not clear 
what aspects of the provision of funeral honors would be 
reimbursed. I think that it would be advantageous to have it 
more elaborated in the legislation. Which it is not now, but it 
would be nice to see very clear provisions of what would be 
reimbursed and what is not, I think, getting back to the 
Chairman's concerns that there is potential for waste, fraud, 
and abuse.
    Mr. McNerney. Well, right now is it at the discretion of 
the Secretary, is that not correct?
    Mr. Barker. Correct.
    Mr. McNerney. Okay. All right, thank you, Mr. Chairman.
    Mr. Runyan. Mr. Stutzman.
    Mr. Stutzman. Thank you, Mr. Chairman. Thank you for being 
here today. My question goes towards Mr. Stichman. First of 
all, you had said in your testimony that you support waiving 
regional office jurisdiction. Do you feel this would just cause 
a shift of paperwork around from one level to the other?
    Mr. Stichman. I think my testimony goes to the legislation 
that would, after a substantive appeal is filed by a veteran, 
and the veteran submits additional evidence, that evidence 
should be considered initially by the Board of Veterans' 
Appeals unless the veteran indicates that the veteran wants the 
regional office to consider it and render a new decision. It is 
an attempt to streamline the system which currently requires 
the regional office to make decision after decision, time and 
again, each time the veteran submits evidence which the veteran 
thinks is going to be considered by the Board of Veterans' 
Appeals because the veteran has appealed to the Board of 
Veterans' Appeals.
    Mr. Stutzman. So you believe that the appeal would actually 
streamline the process rather than----
    Mr. Stichman. No, this occurs after an appeal has been 
filed. So it is a given that there is an appeal existent. And 
the question is, if while the appeal is going on during the 600 
days that the case is sitting at the regional office doing 
nothing, and the Board is not ready to hear the case, if the 
veteran submits new evidence at that point should the regional 
office reconvene, rereview the claims file all over again----
    Mr. Stutzman. Okay.
    Mr. Stichman [continuing]. Look at the new evidence and 
make a new decision while the case is on appeal to the Board? 
And it is intended to alleviate the problem of multiple 
decisionmaking at the regional office level, which has already 
heard the case, in favor of a single review by the Board of 
Veterans' Appeals.
    Mr. Stutzman. If the average delay between a veteran filing 
an appeal and the case being certified to the BVA can exceed 
1\1/2\ years, can you comment on how this might be improved if 
this legislation is enacted?
    Mr. Stichman. How the 600-day process might improve?
    Mr. Stutzman. Mm-hmm.
    Mr. Stichman. I think the case would be more likely to be 
sent to the Board in a shorter period of time because it will 
not be on someone's desk at the regional office redeciding it.
    Mr. Stutzman. Okay. And this is just in the case when there 
is new evidence?
    Mr. Stichman. That the veteran submits.
    Mr. Stutzman. To move forward? Okay.
    Mr. Stichman. Exactly.
    Mr. Stutzman. All right. Thank you. Thank you, Mr. 
Chairman. I yield back.
    Mr. Runyan. Thank you. Mr. Walz.
    Mr. Walz. Well, thank you Mr. Chairman. And thank you for 
holding this hearing, moving some good bills forward, and 
having this open discussion and with our experts. I am very 
appreciative of that. Mr. Stichman I just wanted to ask you, 
and I have to in full disclosure think I agree with you very 
much on H.R. 1484, that class action is probably the way to 
maybe alleviate some of this and make it more accessible for 
veterans. But what gives you any confidence at all after the 
recent Supreme Court decision on AT&T that we are going to get 
any movement on that at all?
    Mr. Stichman. Any movement on a bill to require, to allow 
class actions?
    Mr. Walz. Yeah. Well, it appears like we are in a state 
right now where everything is stacked against the ability to 
try and move anything further to expand class action 
availability. Or do you think that is the wrong interpretation 
of what the Supreme Court ruling was?
    Mr. Stichman. I am afraid I am not familiar with the 
Supreme Court decision. But I cannot see how it would affect 
the ability of a veteran to file a class action when you have 
legislation that carefully discussed how one can go about doing 
so.
    Mr. Walz. Okay. Well, I agree with you. I just think, I 
appreciate that optimism. I am just afraid we have seen some 
resistance on that. The next question I have on H.R. 1407, 
which again I thank the Chairman for addressing a serious issue 
and bringing this forward. The issue really here, and I do not 
know if any of you can comment on this, the issue is how we 
calculate cost of living and the real core inflationary values, 
is it not? If we did an overall evaluation, because I think 
this very issue starts to resonate down with Social Security 
cost-of-living increases and all of the COLAs. Is the best way 
to do it to attack that think systemically to get us a better 
indicator of inflationary values where we are looking at 
gasoline, we are looking at food, we are looking at those 
thing? Or is this needed to go and to make sure until that 
happens that this is the way to go? The reason I ask is, I 
think you are bringing up some very good points about do we 
tackle thing with small pilot programs? Or does that bring us 
leverage on systemic change? So if anybody could answer on H.R. 
1407 because I am in agreement with it, but is that the right 
way to go?
    Mr. Barker. I think from our perspective it does. One of 
the problems with the current system is that it takes so long 
to get Social Security recipients, veterans, survivors the 
increases that they need to reflect increases in what they are 
having to spend for basic commodities. I do not know what the 
solution to that would be, but it does seem to be behind the 
curve.
    Mr. Walz. There is not a, it is, there is no true reflect 
of cost of living right now. Because the cost of living I would 
argue for all of us, if you filled up this weekend, it has gone 
up. I mean, there is no doubt about that. But yet it is not 
reflective. I am just trying to get at are we, again, are we 
setting ourselves up in the wrong way instead of fixing it 
systemically? But I am certainly supportive of it. Anyone else 
on that one?
    And the last one I would say is again, and while I think 
the sentiment is exactly right on, and I think all of us the 
frustration we feel with benefits claims, on H.R. 1647, I too 
have deep concerns on that. And do not get me wrong. This is 
not my provincial looking out for southern Minnesota. We have a 
good claims system there. My fear is that if we with a pilot 
program in this, is that that burden will be shifted and will 
go to a lowest common denominator. And the high performing 
offices will be burdened as well as those that need to be 
fixed, or redone. So I share your concerns on this. I also note 
that the sentiment is exactly in the right place of trying to 
figure this thing out, trying to get it cracked. I am just not 
certain this is the right approach. And again, I appreciate the 
comments from each of you. I yield back, Mr. Chairman.
    Mr. Runyan. Thank you. Ms. Buerkle.
    Ms. Buerkle. Thank you, Mr. Chairman. And thank you for 
holding this hearing, and thank you to our panelists for being 
here this morning. My question, I just want to follow up on 
H.R. 811. Is there any reimbursement taking place at this time? 
For any of the volunteers?
    Ms. Roof. I can only speak to what our members do. And 
again, this is to the best of my knowledge. I can get back to 
you with factual data. Is that our members that are performing 
these are not being reimbursed. And I am guessing you are 
asking by VA? Are not being reimbursed by VA at this time.
    Ms. Buerkle. Okay. And then as far as any other 
reimbursements, you do not know that for sure?
    Ms. Roof. Again, I do not want to tell you inaccurate 
information. But I would be happy to get back to you with that.
    [Ms. Roof subsequently provided the following information:]

          By law DoD is the only Federal agency authorized to reimburse 
        properly trained personnel or volunteers to perform ``Military 
        Honors'' at a funeral. DoD Directive 1300.15, ``Military 
        Funeral Support'' of September 30, 1985, directs the Military 
        Departments to provide ``appropriate tribute within the 
        constraints of available resources.'' This Directive specifies 
        different levels of support for (1) members on active duty and 
        Medal of Honor recipients; (2) retirees; and (3) veterans and 
        National Guard/Reservists not on active duty. The levels of 
        support indicate minimum requirements, but are subject to the 
        availability of resources, both financial and what DoD 
        considers properly trained personnel. Recent studies show that 
        DoD neither reimburses volunteers or provides Military Honors 
        to over 65 percent of eligible veterans and volunteers.
          The National Cemetery Administration (NCA) within the 
        Department of Veterans Affairs does not provide funeral honors 
        or reimburse volunteers that provide Military Honors at a 
        veterans funeral. The Department of Veterans Affairs provides 
        an American flag to drape the casket of a deceased veteran or 
        eligible reservist. There are also some private sector 
        nonprofits that partially reimburse volunteers that provide 
        military honors at eligible veterans funerals.

    Ms. Buerkle. Good. And then I just wanted to follow up on 
my colleague's question regarding cost-of-living increase, the 
basis for that, and how that would be calculated? Or how we 
would determine what the cost-of-living increase would be? If 
anyone could speak to that?
    Mr. Hall. In our opinion, I guess the best way would be, as 
Congressman Walz had indicated, an over, you are going to have 
to look at everything, and deeply. Geographically, you know, 
location is going to have to be taken into consideration. I 
mean, simply put, and it is not just veterans, but veterans 
especially, disabled, sick and disabled veterans, how are they 
expected to even go to their medical appointments aside from 
the fact that we have a volunteer transportation program that 
we can get them to and from? But for those that do not, or are 
not able to take advantage of that, to simply pay for the 
gasoline to get to and from their necessary medical 
appointments at over $4 a gallon is astronomical. So not just 
gasoline, food, and things. But yes, it is going to have to 
take, you know, an overarching look at the entire country in 
that way.
    Ms. Buerkle. Does anyone else have any comments?
    Ms. Roof. If I could just add one little thing? I think 
this year even more important than past years is to look at a 
lot of the things that people do not usually look at of what 
has gone up. For example, this bill addresses clothing. The 
cost of cotton has risen 150 percent over the last year. You 
know? Just little things like that are going to mean a lot. You 
know, gas, we all know about that stuff. But there are smaller 
things, like the price to produce clothing that a lot of 
disabled veterans depend on.
    Ms. Buerkle. Thank you. Anyone else on the panel wish to 
comment? I think, my concern is not so much, I think the 
concern is that we give the veterans what they need and that 
the calculation of this cost-of-living increase is one that is 
going to really fit their needs and not just be a nominal 
increase. So that is my concern when we look at the calculation 
for that cost of living. Thank you very much. I yield back.
    Mr. Runyan. Thank you. Mr. Barrow.
    Mr. Barrow. I thank the Chair. I have no real questioning 
for the witnesses, but I do want to take this opportunity to 
share my concerns and reservations about H.R. 1647. As someone 
whose constituents reside in a regional office that does not 
enjoy a great reputation for moving matters expeditiously, I 
share the Chairman's concern that until we fix what is broke 
with this system we ought to at least provide folks an escape 
valve. We ought to give them a chance to go someplace where 
they can get their case decided a little bit quicker. But I 
have concerns about how that is going to work in practice.
    I guess it is sort of inevitable in today's economy that 
the reward you get for doing a good job is you get to do even 
more work with less resources. That seems to be a given in the 
public and the private sectors. But this is kind of different. 
The reward that you get for doing a good job is you get to do 
more of the work of the folks who are doing a lousy job. And 
that has the unintended effect of sort of rewarding, or 
papering over, or obscuring the inefficiencies that are left 
untreated in those areas where there is systemic inefficiency. 
And if we are only going to allow those wheels that would 
otherwise squeak the loudest to get some relief someplace else 
we might actually delay the implementation of real reform 
trying to make the underperforming systems measure up to the 
standards set by the best.
    So I share the Chairman's concern. I think systemic 
inefficiencies exist throughout many areas, my area in 
particular. But I want us to attack the root cause and not try 
and add to the burdens of those folks who are already doing a 
great job. So with that I just want to share my support for the 
reservations and concerns expressed by AMVETS, the DAV, and the 
VFW. I think they are on the right track about how we need to 
go about this. And with that, I yield back.
    Mr. Runyan. Well, thank you. But also asking that question, 
Mr. Hall, do you have any ideas of how we are going to get 
there?
    Mr. Hall. With this particular matter, no I do not have any 
ideas, or DAV, at this particular time. But as we said, we 
would be happy to work with the Subcommittee and come up with 
some type of solution that is tangible that can possibly work 
with the goal or the intent of the bill as it stands.
    Mr. Runyan. I understand my colleague's frustration, and 
also yours with it. But you know, it is a delicate situation 
and I think it really needs to be addressed because ultimately 
we are here fighting for our veterans and the needs that they 
have. And the door is open to ideas. And, this is an idea we 
are having and how we are trying to fix it. And I understand, 
as I said in previous questions, there are unintended 
consequences to everything that we do within the legislation 
here in the House. So it is, I know it is difficult. But I 
appreciate any and all input you guys can have, especially 
because of how close you are to the situation.
    Mr. Hall. Mr. Chairman I would say regarding unintended 
consequences of this particular matter might be the 
demoralization of those five offices that now fully realize 
they are, we are the worst. That is an unintended consequence 
of what is trying to be a good thing to be helpful, and move 
things along in the process, and alleviate the backlog. 
However, there is no joy in being labeled as one of the bottom 
five.
    Mr. Runyan. No, there is not. But I have had many, many 
conversations with Secretary Shinseki. And the word always 
comes up in our conversations, accountability. And that is 
ultimately at the root of what we need to do to step up and 
take care of our veterans. You know, I have been on many teams 
in my life and I do not like being the last place either. But 
when you have the personal pride and the accountability factor 
in there, human nature is very competitive. And I think to 
reinstate, you know, to instill that into people again is only 
going to help our veterans in the long run.
    Mr. Hall. I fully agree with the accountability, as we have 
testified over and again, regarding this. So we fully agree 
with the accountability. I am just simply suggesting that we 
need to be careful with the unintended consequence of what it 
may do, or the impact it may have in the process.
    Mr. Runyan. Thank you. Mr. McNerney, do you have any 
further questions?
    Mr. McNerney. No, I do not. I think everyone here 
sympathizes with the intent of H.R. 1647. What the best way to 
move forward is, it is not clear to me. I thank the panel for 
their testimony on that, and I look forward to working with the 
Committee to finding the right solution. Thank you.
    Mr. Runyan. Do any of the other Members have anything? Mr. 
Stutzman. Mr. Barrow. Ms. Buerkle. None? At this time the panel 
is excused, and thanks now, thanks for your testimony. I 
appreciate your coming out and your time.
    The second panel consisting of the Honorable Bruce Kasold, 
Chief Judge of the U.S. Court of Appeals for Veterans Claims. 
Judge Kasold, welcome back to the Subcommittee. Welcome back, 
and I recognize you for 5 minutes.

        STATEMENT OF HON. BRUCE E. KASOLD, CHIEF JUDGE, 
           U.S. COURT OF APPEALS FOR VETERANS CLAIMS

    Judge Kasold. Thank you, Mr. Chairman, Mr. McNerney, 
Members of the Committee. I would first like to make two 
comments based on what I was listening to. One is the burial at 
Arlington and the secret preselection of sites. I would 
personally agree with looking into that but I would just note 
that I do not think Arlington is the only DoD cemetery and you 
might broaden that to include all of them.
    Second, with respect to the testimony on legislation that 
would permit the Board to review new and material evidence in 
the first instance, actually the Secretary did that in the past 
and then the Federal circuit noted that Congress had created 
two reviews for the veteran. The RO, the regional office, and 
the Board. The veteran, however, can waive the requirement to 
go back to the RO and it could go to the Board. Now, whether 
veterans are aware of that I do not know. But I just throw that 
out--that it was viewed that way legislatively and then the 
Federal circuit said that the two reviews were required. And it 
actually can be a benefit to a veteran. So whether they decide 
to waive it, whether they know they can waive it, are issues 
that you might consider.
    I have been asked to specifically talk about two bills, 
H.R. 1484, the ``Veterans Appeals Improvement Act,'' and H.R. 
1647, the ``Veterans' Choice in Filing Act.'' As I note in my 
written statement, I do not have a comment on the Choice in 
Filing Act. It is really in the purview of the Secretary.
    But with regard to H.R. 1484, particularly section three, 
we support the establishment of a commission to study judicial 
review of the veterans benefit determinations. The Court was 
created 20 years ago to ensure fairness and consistency of VA 
benefits decisions by adding for the first time the right of 
veterans to seek judicial appellate review following the 
agency's processing of their claims. At that time, Congress 
thought it prudent to create a system where veterans could 
appeal agency decisions to the newly created Court where they 
would be provided an objective and impartial review of the 
processing of their claims by VA. Once a decision is rendered 
by the Court, the nonprevailing party, either the veteran or 
the VA, may file an appeal at the Court of Appeals for the 
Federal Circuit, and from there to the Supreme Court.
    Now, with over 20 volumes of case law and developed 
expertise in judicial review of veterans benefits appeals, the 
time is right for a working group to step back and review the 
judicial appellate system we have, critically examine its 
strengths and weaknesses, and identify measures that could 
benefit the overall judicial appellate review process. Although 
not specifically stated in H.R. 1484, I would anticipate and 
encourage the commission to weigh the costs and benefits of the 
unique two-tiered Federal appellate review system currently in 
place for veterans benefits decisions and consider if there is 
added value to having multiple layers of Federal appellate 
review.
    With regard to the specifics of the legislation, I urge the 
Committee to clarify the scope of the commission's study, which 
is laid out in the title of section three. It is quite broad. 
It includes reviewing the administrative as well as the 
judicial veterans benefits determinations. The Court of Appeals 
for Veterans Claims is part of the judiciary, separate and 
distinct from the Department of Veterans Affairs. The judicial 
review that the Court takes of the claims appealed to us each 
year from the Board of Veterans' Appeals proceed under a wholly 
separate set of laws and rules than occur during the processing 
of the claims at VA during the administrative claims and review 
process. VA's regional offices process over a million claims 
each year and VA's Board of Veterans' Appeals decide another 
60,000. In contrast to the numbers related to judicial review 
of those decisions are the Court's 4,000 yearly appeals, the 
Federal circuit's roughly 150 veterans appeals, and the handful 
that end at the Supreme Court. Numbers alone would require very 
different case processing methods.
    But the administrative review process involves 
significantly different issues than the judicial appellate 
review process with different rights and responsibilities 
placed on the claimants and the Secretary. Thus, it is 
important to maintain the distinction between the judicial 
appellate review process, which is entirely independent of VA 
and where the Secretary is one of the adversarial parties, and 
the Department of Veterans Affairs claims adjudication process 
where the Secretary is required to work hand in glove with the 
veteran. To permit focus and timely feedback of the judicial 
appellate review process, the Court recommends the legislation 
be amended to clarify the commission's focus is to be on 
evaluating the judicial appellate review process by simply 
dropping the reference to ``administrative.''
    Should the Committee believe it is time to study the VA 
administrative claims adjudication process, we would recommend 
a separate commission be established for that. The amount of 
time to review the judicial process, I think, would be much 
less than it would be to review the administrative process.
    On behalf of the judges of the Court, I thank the Committee 
for its consideration and review of the proposed legislation. I 
am happy to answer any questions you may have at this time and 
ask that my written statement be submitted for the record.
    [The prepared statement of Judge Kasold appears on p. 50.]
    Mr. Runyan. Thank you, Judge Kasold. Just kind of 
elaborating a little bit on your testimony, what impact do you 
really believe that the class action authority would have on 
the Court's backlog?
    Judge Kasold. I am not sure. You have two issues that are 
really going on. One is class action authority and the other is 
associational standing. The Court early on made a determination 
that it did not appear we had class action authority but 
ultimately made a determination that it was not needed. And one 
of the reasons was because our published cases are 
precedential: they are totally binding on the Secretary. So if 
a veteran came up through the process and raised the issue of 
this secret review that was testified to by the previous panel 
of witnesses, it could be reviewed by the Court. If it were 
found to be illegal, that would be binding on all the other 
cases and the Secretary would then take action.
    With regard to the Federal circuit, we also have a two-
tiered review here, which I think goes back to the need for the 
commission. The Federal circuit can review the legality of a 
regulation directly. We review it when a Board decision comes 
up. So with regard to the prior testimony, the reason they went 
to the Federal circuit, I submit, was not because they could 
not come to us but because they could go directly to the 
Federal circuit for a review of the authorization of this other 
review process. And the Federal circuit's decisions are also 
binding on the Secretary. So I was a little perplexed at Mr. 
Stichman's statement, and I can talk to him about it later and 
get clarification. But the Secretary would be bound by the 
Federal circuit decision, assuming that it did not get appealed 
to the Supreme Court, and the Secretary would have to follow 
that decision and would not be able to use that other process 
anymore.
    If you came to our Court, given that we do not have 
associational standing--that was another case where the Court 
made a determination; brilliant dissent--I am joking. But 
anyway, it was a split decision where the majority determined 
that we did not have associational standing. One of the reasons 
stated by the majority was the individual veteran could bring 
the case. That case involved a stay by the Secretary, and that 
meant the cases could not be appealed to the Court. Under the 
All Writs Act a determination was made that we could review the 
stay action because VA was holding back the cases. The case was 
filed by an individual veteran so associational standing was 
not necessary to getting a resolution of the particular issue. 
So I do not think you are going to have the impact that has 
possibly been suggested here.
    On the other hand, a commission to seriously review this 
and had that discussion with Mr. Stichman and others who are 
involved in the process, I think would be very helpful.
    Mr. Runyan. Okay. And really unrelated to the bills before 
us, but in a way kind of, can you discuss your Court's 
vacancies and its impact? Your Court vacancies and the impact 
on your workload?
    Judge Kasold. Yes. Mr. Chairman, I think it is having a 
significant impact at this time. Judge Greene retired, which 
brought us down to six judges. And I think at seven we were 
struggling, and getting a little bit of a delay in certain 
areas that I had testified to that I was going to look into as 
Chief Judge. With the retirement of Chief Judge Greene, who by 
the way is recalled during the year to continue at about 25 
percent in his retired status, those 250 cases that he would 
have decided are now being spread among the other judges who 
are already at a peak. So it would be helpful and beneficial to 
the Court if the nominations were to come.
    Mr. Runyan. Thank you very much. And that is all I had. Mr. 
McNerney.
    Mr. McNerney. Thank you, Judge, for appearing this morning. 
This is kind of a muddy issue. It is going to be hard for us to 
sort through it, so I appreciate your insights here. How many 
appeals are currently pending before the CAVC today? And how 
does that compare with, say, 2 or 3 years ago?
    Judge Kasold. It is about 4,500. And I would say 2 or 3 
years ago, it was somewhere close. But compared to 5 years ago? 
We are not at about double.
    Mr. McNerney. So it has risen, then?
    Judge Kasold. It has absolutely risen, yes, sir.
    Mr. McNerney. Well, what is the remand rate, then, of 
appeals back?
    Judge Kasold. It is still about 70 percent. We have a new 
process that was instituted by former Chief Judge Greene who 
expanded the conferencing process. Previously cases had been 
selectively viewed for a determination as to whether or not our 
central legal staff--staff attorneys--thought they might be 
able to get an agreement between the parties. A few years ago, 
the Board of Judges mandated that process for all appeals 
wherever there is attorney representation. At the end of the 
day, there is about 65-70 percent attorney representation. Of 
those cases, in about half, the Secretary in review agrees to a 
remand for the various reasons that have been cited. And that 
remand could be because of the Board's statement, which must be 
understandably by the veteran a requirement that Congress has 
imposed on the Board. Court interpretations have stated VA has 
to address the material evidence, explain to the veteran why he 
lost--those are all we are going to see; the ones where 
veterans have lost. It could be that the duty to assist was not 
fulfilled, or the medical examination came back but did not 
address a particular area and the Board did not explain why 
that was important. So those are reasons why it might be sent 
back.
    So you have the Board, which is independent and makes the 
final decision for the Secretary. But then you have the 
Secretary and his counsel reviewing the Board's decision after 
an appeal has been made and making a judgment that a remand is 
appropriate for that Board to review it, and then to possibly 
send it back to the regional office which was discussed before. 
Again, I think the veteran can waive that in certain instances. 
But he is entitled to the two reviews.
    Mr. McNerney. Okay. The class action issue has been raised 
today. It has been raised before today. We have heard cases 
where a large number of veterans did not receive compensation 
rewards without knowing that the VA personnel services had 
provided an additional level of review. How do you feel about 
that with regard to the Improvement Act? Do you think that it 
is going to make the situation better with regard to backlog? 
With regard to cases that are adjudicated? And so on?
    Judge Kasold. Again, I am not sure. A class action you 
ultimately identify all of the people that are involved and 
proceed. My understanding is that in the case discussed 
earlier, the parties did go--the associational standing issue 
did go to the Federal circuit. The Federal circuit determined 
that the regulatory provisions the additional review allowed 
that were not consistent with statute, and overturned that. I 
am not sure you can get much--you cannot get any different 
relief going to the Court of Appeals for Veterans Claims even 
if you had a class action. You still would have someone coming 
up to the Court. You then would have all the time and delay, et 
cetera, associated with the fact finding necessary to determine 
if all these people were appropriately in the class.
    I know Mr. Stichman had concerns with the Secretary in 
implementing that case but I do not know the ultimate facts. 
But the Secretary should have stopped that process and 
immediately sent those decisions either back to the regional 
office or directly on up to the Board. Some of those cases were 
on appeal to our Court, I imagine, because I think I have seen 
one or two, and we enforced the Federal circuit and remanded 
back for the proper process to be taken.
    Mr. McNerney. So, I mean----
    Judge Kasold. The commission might be able to elaborate on 
that and study it, but I am not sure I am following why a class 
action would have been necessary or valuable.
    Mr. McNerney. Well, what I think I am hearing you say is 
that the amount of time and effort to decide if people are 
actually legitimate members of a class is going to make up for 
the savings in handling these cases en masse. Is that what you 
are saying?
    Judge Kasold. No. I do not think we would ever--in a class 
action--a legal issue as to whether or not a claim could be 
processed by this separate action, the review office. But we 
would not handle the individual case in a class action because 
a class action has to have commonality on the issues. The only 
issue that would be common in those cases is whether or not VA 
could conduct this separate review. So once we determined that 
the separate review could not be done, all the cases would go 
back for a final individual determination by the Board. After 
that, in our Court you would have to come up with an All Writs 
Act petition based on cases being delayed improperly, and then 
we might be able to grant jurisdiction. Again, you could go to 
the Federal circuit, as they did, and get a decision directly 
in the Federal circuit.
    But again, in a class action we would not be rendering a 
decision on their individual claims because they are all going 
to be different. They are all going to have a different 
disability. They are all going to have a different rating 
schedule. They are all going to have a different fact basis 
associated with their case, whether or not it is service-
connected. So the individual case would have to go back.
    Mr. McNerney. But I mean, that is true in general with 
regard to class action. So I mean what you are arguing is 
against class action in general, not even just related to 
veterans cases in my opinion.
    Judge Kasold. Well, again, the class action would have 
resolved, could have resolved--if we had the broad enough 
jurisdiction to take it--the issue as to whether or not VA 
could use that separate review. All I am saying is I think the 
veterans got a decision on that issue, and my understanding was 
they got it from the Federal circuit in a direct review.
    If you were to do away with the Federal circuit review, you 
would eliminate that dual track that exists. It would all come 
into our Court. And I think the commission could study that 
entire process. That is why I think the commission does make 
sense.
    Mr. McNerney. Okay. So it could do away with the judicial 
review, which you are not too much in favor of?
    Judge Kasold. Oh, I am not against the judicial review. I 
think if you gave it to us--I was a dissent in associational 
standing. I do not think it is going to impact us significantly 
one way or the other. And to the extent I would have granted in 
that case the association to make the argument for the veteran, 
personally I do not care if the veteran makes it or the 
association makes it. It is going to be reviewed, and it did 
get reviewed. And I think the majority pointed out that you 
could get review in our Court on the issue of--I have shifted 
now, to the issue of whether or not the Secretary could stay 
matters at the Board. That issue got to our Court; it got 
reviewed. Associational standing would have permitted the 
associations to come in and directly raise that argument. 
Instead we had a veteran raise that argument and the 
associations came in as amicus. I do not know that it mattered, 
is my personal view. But jurisdictionally? Again, I thought we 
had jurisdiction.
    As far as the class action, I do think the class action 
entails an awful lot of fact finding associated with that 
class----
    Mr. McNerney. Right.
    Judge Kasold. And I will submit that once we render a 
decision, it is binding on the Secretary. So I am not sure, 
again, what you gain by a class action. Once one person found 
out that their case was being handled by this alternate review 
process, there was a way to ultimately get to the Court. 
Whether or not we would have granted extraordinary relief I 
cannot say. I do not recall that we have seen that. But if it 
came up in a regular decision at the Board, we would have 
reviewed it. If we had found it illegal, the Secretary would 
have been bound by that unless he took it to the Federal 
circuit and got it overturned. He would have been bound by that 
process.
    Mr. McNerney. Okay, I have exceeded my time. So----
    Judge Kasold. Okay.
    Mr. McNerney [continuing]. I yield back.
    Judge Kasold. I would just like to add though, if he wanted 
to--let us say the Secretary wanted to appeal to the Federal 
circuit--he would also have to seek a stay of our order before 
he could stop enforcing it.
    Mr. Runyan. Thank you. Mr. Stutzman.
    Mr. Stutzman. Thank you, Mr. Chairman. Judge Kasold has 
already answered the question that I had, so I will just yield 
back.
    Mr. Runyan. Okay. Ms. Buerkle.
    Ms. Buerkle. Thank you. I have no questions, Mr. Chairman.
    Mr. Runyan. Well, obviously you answered everyone's 
questions in your statement. Thank you again for your 
testimony.
    Judge Kasold. Thank you very much. Have a nice day.
    Mr. Runyan. You, too. The next panel, please come forward. 
The third panel consisting of Ms. Diana Rubens, the Associate 
Deputy Under Secretary for Field Operations for the Department 
of Veterans Affairs, who is accompanied by Mr. Dick Hipolit 
from the VA's Office of General Counsel and Mr. Steve Keller, 
Acting Chairman of the Board of Veterans' Appeals. We also have 
Ms. Kathryn Condon, the Executive Director of the Army's 
National Cemeteries Programs. Let us begin with the VA.

STATEMENTS OF DIANA M. RUBENS, ASSOCIATE DEPUTY UNDER SECRETARY 
 FOR FIELD OPERATIONS, 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; AND STEVEN KELLER, ACTING 
   CHAIRMAN, BOARD OF VETERANS' APPEALS, U.S. DEPARTMENT OF 
 VETERANS AFFAIRS; AND KATHRYN A. CONDON, EXECUTIVE DIRECTOR, 
 ARMY NATIONAL CEMETERIES PROGRAM, OFFICE OF THE SECRETARY OF 
               THE ARMY, DEPARTMENT OF THE ARMY, 
                   U.S. DEPARTMENT OF DEFENSE

                  STATEMENT OF DIANA M. RUBENS

    Ms. Rubens. Mr. Chairman, Ranking Member McNerney, Members 
of the Committee, thank you for the opportunity to provide the 
VA's views on pending legislation that would affect VA 
programs. As you said, I am accompanied by Acting Chairman 
Steve Keller and Assistant General Counsel Dick Hipolit.
    I do apologize for the delay for getting the testimony to 
you in a timely manner. While there were only four bills, it 
did require coordination among various organizations within VA. 
We will work to meet your timeliness in the future.
    H.R. 1407, the ``Veterans' Compensation Cost-of-Living 
Adjustment Act,'' would mandate a cost-of-living adjustment in 
the rates of disability compensation and dependency and 
indemnity compensation payable to periods beginning on or after 
December 1, 2011. VA supports this bill and believes that our 
veterans and their dependents deserve no less.
    H.R. 811, the ``Providing Military Honors for Our Nation's 
Heroes Act'' would authorize VA to reimburse a member of a 
veterans service organization or other organization approved by 
VA for transportation and other appropriate expenses incurred 
in connection with the voluntary provision of a funeral honors 
detail at a veteran's funeral in any cemetery, including a 
funeral honors detail requested by a funeral home.
    While VA appreciates the bill's focus on supporting the 
provision of funeral honors, VA does not support the bill for 
the following reasons. The Department of Defense currently 
provides funeral honors details for veterans funerals. DoD is 
required to provide on request a funeral honors detail at the 
funeral of any veteran. VA and DoD have successfully partnered 
to provide funeral honors at VA national cemeteries and funeral 
honors at national cemeteries are provided by servicemembers as 
well as VSOs and individual volunteers on behalf of DoD. 
Reimbursement by VA under H.R. 811 would duplicate 
reimbursement by DoD, which is currently authorized by statute 
to reimburse persons who participate in a funeral honors 
detail.
    Additionally, by authorizing reimbursement for expenses 
incurred by one category of volunteers, H.R. 811 would create 
an inequity between them and other VA volunteers. Volunteers 
who provide essential services at our VA medical centers, who 
assist families at committal services, or who place gravesite 
flags on Memorial Day may feel their service is somehow less 
valued because they receive no reimbursement for their 
expenses.
    H.R. 1647, the ``Veterans' Choice in Filing Act of 2011'', 
would require VA to carry out a 2-year pilot program under 
which certain veterans may submit claims to any RO. VA opposes 
this bill and conducting this pilot program would not benefit 
VA claimants by improving either the efficiency or quality of 
the VA claims benefits process nationwide. Of primary 
importance is the danger that this program would create forum 
shopping. The expectations about speed and outcomes created by 
such legislation would likely only frustrate claimants. VA's 
energies are best spent on a systemwide effort to improve 
performance at all regional offices.
    Under existing statutory authority, VA distributes or 
brokers claims among regional offices based on performance, 
workload, and other factors when necessary and feasible. In 
fact, from 2008 through 2010 over 300,000 claims were moved 
among offices. VA determines whether to broker cases in or out 
of ROs based on various factors, including the allocation of 
workload and resources at those offices. If claimants were to 
determine where to file claims, many ROs might not be equipped 
to handle an unexpected workload that may result.
    H.R. 1484, the ``Veterans Appeals Improvement Act of 
2011,'' seeks to improve VA's appeals process and would 
establish a veterans judicial review commission. In section two 
of the bill, focus on the process would require new evidence 
submitted by a claimant after filing a substantive appeal be 
submitted to the Board of Veterans' Appeals unless the claimant 
specifically requests the evidence be reviewed by a regional 
office before being submitted to the Board. This section two of 
the legislation actually has a common theme with a provision in 
a draft bill Secretary Shinseki submitted to Congress in May of 
2010. VA would be very happy to work with the Subcommittee on 
any technical language in section two of 
H.R. 1484.
    Section three of H.R. 1484 would establish the Veterans 
Judicial Review Commission to evaluate the administrative and 
judicial appellate review processes of veterans and survivors 
benefits determinations and recommend whether the Court of 
Appeals for Veterans Claims should have authority to hear class 
action cases. VA does not support section three. The 
administrative and judicial appellate review processes have 
been the focus of extensive studies and Congressional hearings 
that have resulted in a number of recommendations. While VA 
appreciates the aims expressed in section three, we believe the 
commission would duplicate the ongoing work of VA, Congress, 
the VSOs, and others who are now able to engage in policy 
discussion aimed at improving the claims process.
    With regard to whether the Veterans Court should have the 
authority to hear class action cases, such authority would not 
be beneficial because the outcome of each veteran's case 
depends largely on very specific facts of each case. Class 
actions are also not necessary because under rules already in 
place potential members of a class receive a benefit of a 
precedent decision by the Veterans Court. Class action 
authority is unnecessary. It would largely be redundant.
    This concludes my statement, Mr. Chairman. I appreciate the 
opportunity to share views on the proposed legislation, and I 
would be happy to entertain any questions you may have.
    [The prepared statement of Ms. Rubens appears on p. 52.]
    Mr. Runyan. Thank you. Mr. Hipolit, do you have a 
statement?
    Mr. Hipolit. No, I do not have a prepared statement.
    Mr. Runyan. Thank you very much. Mr. Keller.
    Mr. Keller. I, too, do not have a prepared statement.
    Mr. Runyan. Oh, Ms. Condon.

                 STATEMENT OF KATHRYN A. CONDON

    Ms. Condon. Mr. Chairman, Ranking Member McNerney, and 
distinguished Members of the Subcommittee, thank you for the 
opportunity to provide the Department of the Army's views on 
the proposed legislation that impacts Arlington Cemetery. Those 
views in support of that legislation are reflected in my 
written statement that I would like to submit for the record.
    On behalf of the cemeteries, Arlington National Cemetery 
and the U.S. Soldiers' and Airmen's Home National Cemetery, and 
the Department of the Army, I would like to express our 
appreciation for the support that Congress has given to the 
cemeteries. And in particular, Mr. Chairman, I would like to 
thank you for the support that you have personally given to the 
Superintendent and I of late.
    I decided to keep my opening remarks short, and I look 
forward to answering any questions you may have on the 
legislation and Arlington's views.
    [The prepared statement of Ms. Condon appears on p. 57.]
    Mr. Runyan. Thank you very much. I am going to start off 
with Ms. Rubens, actually. In your written testimony you stated 
that you are concerned that under the Choice inFiling Act the 
information about the performance of each RO could be driven--
excuse me. You have a lot of VA health facilities. And they are 
rated, and it is public knowledge. And the concern is, and we 
talked about it a little bit with the last panel, of making it 
public knowledge and kind of allowing veterans to know what 
they are going into as part of this process. And is there any 
way we can try to make this process happen and just make them 
aware of what is going on? I understand we do not want to tag 
people as underperforming and all that kind of thing. But we do 
want to make them aware of the situations they are getting 
into.
    Ms. Rubens. Mr. Chairman, thank you, yes. I am very 
familiar, particularly I think as you are referring to the 
Veterans Health Administration's (VHA's) public facing 
information on all of the medical centers. VBA is in the 
process of standing up a very similar Web site that will be 
outward or public facing very shortly. Internally, we have 
access across all regional offices to that information, and 
share that freely with VSOs and Members of the Subcommittee and 
the Committees on the Hill here. But we are interested in 
making that available to veterans. It will have some of that 
same effect, although I agree with your statement in terms of 
it is human nature to be competitive. Our hope is that as 
employees realize information is being shared about the 
regional offices in an exterior way that we will all be much 
more cognizant of how we can improve not just in each regional 
office but at the national level in a systemic way.
    Mr. Runyan. Going back to being competitive, when will that 
Web site be up and operational?
    Ms. Rubens. Sir, I will have to get back to you. It will 
probably be within the next 6 to 8 weeks, at the latest. We are 
very close to having that information. The Web site internally 
is being vetted at the highest levels within VA and is nearly 
ready to be posted formally to the public.
    [The VA subsequently provided the following information:]

        The ASPIRE Web site went live on June 30, 2011. VBA's press 
        release to announce this is available at: http://www.va.gov/
        opa/pressrel/pressrelease. cfm?id=2125.

    Mr. Runyan. Do you have, I mean, obviously we do not want 
any of our veterans to be put at a disadvantage because of 
where they live. And we really need to work together on this. 
Do you have any further ideas on how we can accomplish this?
    Ms. Rubens. Yes, sir. Thank you. I will tell you that when 
Secretary Shinseki arrived he set some very aggressive goals 
with VA, and for VBA in particular. So that by 2015 no claim 
takes over 125 days. And we do that with a 98 percent quality 
level. No small undertaking by any stretch. We have been 
engaged in the last nearly 2 years in a process that looks at 
people, the process, and the technology engaged in providing 
veterans benefits. The goal here is to ensure that veterans 
across the country receive a consistent high quality service. 
The issue of accountability that came up earlier, I will tell 
you that from my standpoint it is about hiring the right 
people, giving them the right training, setting the 
expectations, and then holding them accountable. VBA has done 
that from front line employees, to division-level managers, to 
directors, from regional office to regional office.
    As we implement our transformation plan, the goal will be 
to ensure that we get the right people in the right places. 
That we get the process that is as streamlined as we possibly 
can make it. Add the technology, the Veterans Benefits 
Management System that will take us to a paperless environment 
that will ensure 125 days at 98 percent quality is very doable 
by 2015.
    Mr. Runyan. Thank you. My next question is for Ms. Condon, 
and your comments on H.R. 1627. You state that you believe that 
Congress should maintain the requirement of having a joint or 
concurrent resolution in order for a commemorative monument to 
be placed at Arlington. Since it can take Congress such a long 
time to move such legislation, would it be easier if we gave 
that authority to the Army?
    Ms. Condon. Sir, I really think that there is a benefit to 
having a joint and concurrent resolution by Congress so that 
there is oversight by all jurisdictions. And the reason why I 
would not want that in the Army is I really do think that that 
is a decision that should be made by Congress and we will 
comply with that.
    Mr. Runyan. Well, my thoughts in my line of questioning are 
at some times up here on the Hill it can become very political, 
a decision like that. And I just wanted to put that out there 
because as you, if you would turn something, there would be 
specific criteria that would have to be met in that process. 
And any comment to that?
    Ms. Condon. Sir, I really do think that there should be 
criteria, and the most important thing is that when a monument 
is erected at Arlington, that it does not use a space that we 
could bury an eligible veteran. So it would have to be placed 
in a space where we could not bury someone. As for criteria, I 
realize that it could be political. But when you look at the 
reason why someone would erect a monument at Arlington, it 
would be for their service to our Nation. So I do not know if 
that could be deemed as political or not.
    Mr. Runyan. Thank you very much. And with that, Mr. 
McNerney.
    Mr. McNerney. Thank you again, Mr. Chairman. Thank you, Ms. 
Condon, Ms. Rubens. Ms. Condon, given the sort of sacrifices 
that are made by veterans, what do you think would be 
appropriate standards for determining when a monument should be 
placed in Arlington?
    Ms. Condon. Sir, I think that should be for a significant 
event. The resolution that is currently on the floor is for a 
chaplains monument for all of the Jewish chaplains that served 
our country because they were not on any other monument in the 
cemetery. I think it would have to be for a specific event that 
occurs, or a specific battle, etcetera. We should put a 
monument for the Cemetery.
    Mr. McNerney. Okay. What is the problem with the current 
set of standards then for monument placement?
    Ms. Condon. Sir, I really do not have a problem with the 
current set of standards. What I really am supporting is that 
we do have a Congressional resolution and that we do go through 
the Commission of Fine Arts to make sure that we have a 
standard that they agree with as well. So I do not have any 
issue right now with the standards that we are using today.
    Mr. McNerney. Thank you. Ms. Rubens, you indicate that the 
language in section two of H.R. 1484 does not provide an 
automatic waiver. However, you propose language that seems to 
put the onus on the veterans, or her or his representative, to 
specify what to send and who to send the information to. On the 
other hand, I think the onus should be on the VA. So is it your 
understanding that the substantive appeals process is governed 
by statute?
    Ms. Rubens. I am going to ask Mr. Hipolit to address that 
question, sir.
    Mr. Hipolit. The problem that we see with the current 
system is that it requires the veteran to affirmatively waive 
review by the agency of original jurisdiction before the Board 
can consider new evidence. We think that our bill would create 
greater efficiency because it would allow new evidence to 
automatically be considered by the Board when it is submitted 
after the substantive appeal is filed. The veteran would still 
have the right to request agency of original jurisdiction 
review if they wanted to do that, but it would I think 
encourage review in the first instance by the Board when new 
evidence comes in while the appeal is pending. And we think 
that would be a substantial efficiency improvement and benefit 
all veterans. We do not think we can do that under our existing 
authority.
    Mr. McNerney. Okay. Well, if section two of H.R. 1484 is 
enacted, the VA would have to make changes in its regulations 
and forms consistent with the law. Is that also your 
understanding?
    Mr. Hipolit. Yes. Of course, we would implement the 
statute; we would model our procedures and so forth to fit 
whatever the statutory standard is.
    Mr. McNerney. Okay. On the Military Honors for Our Nation's 
Heroes, with the understanding that providing military honors 
at veterans' burials and reimbursing those who participate is a 
DoD function, what does the VA recommend with regard to 
reimbursing volunteers who participate? I took it from your 
testimony that you feel that they should not be reimbursed at 
all. Is that your position?
    Mr. Hipolit. I will take that question. Currently under 
title 10, U.S. Code, the Department of Defense has substantial 
authority to organize and reimburse funeral honors details. 
There is substantial authority there to provide funeral honors 
details for any veteran where there would be armed forces 
participation. To the extent that there are veterans service 
organization participants or other volunteers, the Defense 
Department currently has authority to reimburse those 
volunteers, to pay travel expenses, and other expenses, or to 
pay a daily stipend for their participation. So for those 
volunteers, the Defense Department currently has authority to 
reimburse them when they participate in a DoD organized funeral 
honors detail.
    Mr. McNerney. I have been to funerals where there was just 
barely a ragtag group that managed to put together whatever 
they could, and I found that fairly unsatisfying, including my 
own father-in-law. What are the rules for the DoD to reimburse? 
Or what are the rules? I mean, just give me a broad outline.
    Ms. Condon. Sir, even though I was here to speak for the 
Arlington legislation I did do my homework on that prior to 
coming to----
    Mr. McNerney. I figured you would.
    Ms. Condon [continuing]. Prior to coming here today. As you 
know, this falls under OSD Personnel and Readiness. But the 
bottom line is the rules are that there would be providing two 
individuals for each funeral service and also that taps would 
be played. If there was not a bugler, then it would be played 
with a very distinct recording. That is what is supposed to be 
provided for a veteran who requests to have honors at their 
ceremony.
    Mr. McNerney. It seems to me that someone who has served 
and deserves, if a VSO wants to participate, that they should 
be compensated to some degree. And that seems to be opposed to 
what Ms. Rubens is saying. And I would like to see if there is 
some way to get by that purpose.
    Mr. Hipolit. To clarify, we are not saying we are opposed 
to reimbursement for expenses for volunteers. We are just 
saying there is existing DoD authority to do that. So instead 
of creating a new program that would overlap to a large degree 
with the DoD program by providing VA new authority to do this, 
we think that there is existing authority. And if there are 
problems with it how that is working, maybe the best thing to 
do would be to look at that to see if there needs to be some 
adjustments to that authority.
    Mr. McNerney. Well, one might be when there is no military 
presence. I mean, certainly there are not military personnel, 
active-duty personnel, at every veteran's funeral. In which 
case we need to have some set of guidelines for compensation. 
That is----
    Mr. Hipolit. And we are not opposed to that compensation. 
We are just saying we should look at the existing DoD authority 
and see if maybe that needs to be adjusted before we create a 
whole new program.
    Mr. McNerney. I yield back.
    Mr. Runyan. Ms. Buerkle, do you have any questions?
    Ms. Buerkle. Thank you, Mr. Chairman, and thank you to our 
panelists. I just want to follow up on my colleague Mr. 
McNerney's with regard to this whole DoD versus VA, and the 
funeral. Is there an instance where DoD would turn down a 
request if asked?
    Mr. Hipolit. I cannot speak for DoD on that. I will defer.
    Ms. Condon. Ma'am, I would have to take that for the record 
and get an answer back to you if we actually denied a request. 
But I do know that we do have the authority to reimburse for 
actual expenses, travel to and from, and provide a daily 
stipend for those volunteers who meet the requirements. But 
actually denial? I will have to take that for the record and 
get an answer back to you.
    [The DoD subsequently provided the following information:]

          Yes, a request for compensation would be turned down for 
        those units who perform funeral honors without participating 
        with a military unit who had the primary mission of providing 
        military funeral honors for the veteran.
          The Secretary of Defense is responsible for military funeral 
        honors as established in Public Law 106-65, the National 
        Defense Authorization Act (NDAA) of FY 2000. The NDAA FY 2000 
        amended section 1491 of title 10, United States Code to require 
        at a minimum, a two-person detail from the armed forces (other 
        than members in a retired status) and at least one of whom 
        shall be from the service of the deceased veteran. The funeral 
        honors detail shall, at a minimum, perform at the funeral a 
        ceremony that includes the folding and presentation of the flag 
        to the veteran's family and the playing of Taps. A live bugler 
        is preferred, but a recorded version is authorized.
          To comply with the provisions of title 10, section 1491, the 
        DoD developed existing procedures outlined in Department of 
        Defense Instruction Number 1300.15, ``Military Funeral 
        Support'' which includes expense reimbursement or support to 
        Veterans Service Organizations (VSO) or other volunteers.
          In addition to requiring a two-person detail to provide 
        military funeral honors, the law also recognizes the valuable 
        role that members of Veteran Service Organizations (VSO) play 
        in honoring our veterans. Section 1491(b) authorizes members of 
        VSOs, and other approved organizations, to participate with the 
        Military Services in providing funeral honors. It stipulates 
        that the Secretary of a military department may provide either 
        transportation (or reimbursement for transportation) and 
        expenses or a daily stipend that is designed to defray the 
        costs for transportation and other expenses incurred by the 
        participant in connection with participation in the funeral 
        honors detail.
          The Department of Defense initiated a program that focuses on 
        using volunteers. This program, known as the Authorized 
        Provider Partnership Program (or AP3), trains volunteers to 
        assist in providing MFH as ``Authorized Providers.'' Volunteers 
        may provide funeral honors elements in addition to flag folding 
        and the sounding of Taps. Volunteers can augment a DoD detail 
        in several ways including participation as firing party 
        members, pallbearers, honor guard members, or as buglers. It is 
        important to note that the law stipulates that Authorized 
        Providers can only be provided reimbursement or the stipend 
        when they participate with the military in rendering funeral 
        honors. VSO or other volunteer units who provide funeral honors 
        at the direct request of funeral directors are not eligible for 
        this support. In these cases, the military service concerned is 
        unaware of the veterans' passing or a request for military 
        funeral honors.

    Ms. Buerkle. Okay. Thank you very much. I want to ask Ms. 
Rubens regarding H.R. 1427, going back to the veterans and the 
cost-of-living increase, your testimony here mentions that the 
COLA would be the same as the COLA provided under current 
Social Security benefits, which currently I estimate to be an 
increase of 0.9 percent. Now I have heard from many Social 
Security recipients that the last 2 years they have not 
received a cost-of-living increase, and they also object to the 
fact that this cost-of-living increase is based on not food, 
and not gasoline, and not the things that we use most. So my 
concern would be we give this cost-of-living increase to the 
veterans but it really does not address their needs, and it 
does not address where we have seen inflation, and where we 
have seen the cost of living go up. So I just, if you could 
speak to that issue?
    Ms. Rubens. Yes, ma'am. Thank you. The cost-of-living 
adjustment is currently scheduled at 0.9 percent. Similar to 
Congressman Walz I did fill up this weekend and did feel the 
pinch at the pump, and recognize that it will not cover perhaps 
some of those things that are day to day living and we will 
look at. But I do not know that we have any authority to do 
anything other than look at the proposal on the table and 
support. I would say that because we have not had something in 
the last few years we want to make sure we are supporting the 
COLA. And we will look at that dollar amount and have that 
discussion.
    Ms. Buerkle. Thank you very much. I yield back, Mr. 
Chairman.
    Mr. Runyan. Thank you. I just have one more question for 
Ms. Rubens. After the Nehmer settlement, how much brokering is 
actually going on at the VA?
    Ms. Rubens. Sure. Chairman Runyan, if I understand the 
question, this fiscal year, our, what had formerly been known 
as our resource centers where we had brokered claims, and I had 
mentioned between 2008 and 2010, because in 2011 we have been 
engaged in the readjudication of the Nehmer claims. The 
Secretary in October of 2009 added the three new presumptive 
conditions due to the exposure of Agent Orange. And that 
completed the regulatory period and the Congressional review 
act on October 30, 2010. What we are now referring to as our 
day one brokering centers, formerly the resource centers. And 
the difference is we have staffed those offices to now do both 
development of evidence for claims as well as rating of claims 
and making final decisions in our resource centers, day one 
brokering centers. They have actively been engaged this year in 
processing the 93,000 claims that we identified that would need 
readjudication under the provisions of the Nehmer decision. And 
so brokering has been very limited this fiscal year, to some 
small offices that are not engaged in working those Nehmer 
claims. And so within service centers we have provided support 
to challenged offices to ensure that veterans are being 
attended to for their claims.
    Mr. Runyan. Thank you. Mr. McNerney, do you have any 
further questions?
    Mr. McNerney. Yes, I do actually. Thank you. Ms. Rubens, 
the average waiting period for an appeal filed at the BVA is 
almost 3 years now. How might section two of H.R. 1484 improve 
that situation?
    Ms. Rubens. The process that would allow us to refer new 
evidence once we had a substantive appeal from the veteran 
directly to the Board of Veterans' Appeals would make that a 
quicker, more streamlined effort so that the regional office or 
the agency of original jurisdiction would not have to first 
weigh in on that evidence. It would be referred to the Board, 
saving time. I'd also ask Mr. Keller if he had any additional 
comments to add to that?
    Mr. Keller. It would save time in that evidence submitted 
by the claimant would go directly to the Board unless the 
claimant wished it to go to the RO. We know at least 1,600 
cases in the past year would have been affected by this. There 
are other cases which since we have colocated VSOs with us here 
in Washington, we just run it downstairs and ask them if they 
would wish to waive regional office consideration. That is 
convenient for the colocated VSOs, but other representatives 
are not colocated. And that creates delays. So we would 
experience some improvement in the timeliness of claims.
    Mr. McNerney. Well, it looks to me like we have about 4,800 
currently pending? Forty-eight thousand, excuse me, currently 
pending cases. So 1,600 is the number you said per year that 
you felt would be improved?
    Mr. Keller. Yes. Those are claims physically at the Board. 
We have a total of about 30,000 claims at the Board, many of 
which are with the veterans service organizations. They 
represent the veterans.
    Mr. McNerney. So we still have a lot of room for 
improvement.
    Mr. Keller. Oh, yes we do. Absolutely.
    Mr. McNerney. Okay. Thank you.
    Mr. Runyan. Ms. Buerkle, do you have any further questions?
    Ms. Buerkle. Thank you, yes. I just want to follow up, Ms. 
Rubens, with regards to you mentioned Secretary Shinseki has 
been very aggressive and by 2015 that there would be this 125 
days for claim adjudication. Is that happening now? I mean, it 
is not just going to happen automatically in 2015. This is the 
common complaint you hear from veterans. It just takes so long, 
and there is such uncertainty. So should we expect to begin to 
see improvement? And if you could, elaborate a little bit on 
how this will take care of the backlog, and how it will improve 
so dramatically?
    Ms. Rubens. Certainly. VBA has been very fortunate in the 
last few years to have the opportunity to bring quite a few new 
people onto our rolls to help us process claims. From that 
standpoint we are working very hard to get them trained. It 
takes about 2 years to get to full journey-level status. The 
good news is we have the challenge in front of us of getting 
those folks trained. We are also working very hard across VA, 
it is not just within VBA but across VA, to address the process 
of the claims adjudication itself, working not only with 
members of the Board on the appellate piece, but also in 
particular our counterparts in VHA. As we have worked on this 
transformation plan we have also actively engaged members of 
the veterans service organization to participate with us, to 
look for things that will help us streamline the process and 
improve the process for veterans.
    No, it will not happen overnight. I do anticipate that in 
fiscal year 2011 as we move beyond the readjudication of the 
Nehmer claims that we have got, we will begin to see 
improvements in individual regional offices and across the 
country for claims processing throughout the end of 2011 and 
2012. That will, I think, be accelerated in 2012 in particular 
as we begin to implement more fully the Veterans Benefits 
Management System. It is a three-phased approach. Phase one 
started last November in Providence. We have platformed, if you 
will, a paperless technology, working to ensure that we have 
all the advantages of technology and working in a paperless 
environment. We will roll into phase two later this month, with 
phase three scheduled to begin in November of this year. With 
the expected full roll out of VBMS beginning at the end of 
fiscal year 2012. In an effort to a very all encompassing 
approach ensure that all veterans across the country are 
getting improved service as we go, working to meet those very 
aggressive timelines that the Secretary has set for us.
    Ms. Buerkle. And so the three pillars were technology, and 
what were the other two?
    Ms. Rubens. People, process, and technology. So we think it 
is about having the right people in the right jobs. We think it 
is about making sure we have the right process in place. And 
that technology overlaid on that will give us much improved 
service across the board as well. So those three things in 
combination.
    Ms. Buerkle. Very good. Thanks so much.
    Mr. Runyan. Thank you. With that, Mr. McNerney, do you have 
any closing statement or further questions?
    Mr. McNerney. No, I just yield back.
    Mr. Runyan. Well, thank you very much. I want to thank all 
the witnesses today for your testimony. It is always welcome 
and we value your input. I want to remind everyone that the 
Subcommittee on Disability Assistance and Memorial Affairs will 
hold a markup at 1:30 p.m. this Thursday in Room 334.
    I would ask unanimous consent that Members have 5 
legislative days to revise and extend their remarks on any of 
the bills we have discussed today. And if there is no further 
business we are adjourned.
    [Whereupon, at 9:48 a.m., the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

            Prepared Statement of Hon. Jon Runyan, Chairman,
       Subcommittee on Disability Assistance and Memorial Affairs
    Good morning. The legislative hearing on H.R. 811, H.R. 1407, H.R. 
1441, 
H.R. 1484, H.R. 1627, H.R. 1647, and H. Con. Res. 12 will come to 
order. I want to thank you all for your attendance at this hearing at 
such an early hour. With two other hearings of the Veterans Committee 
today we had to do some unorthodox scheduling.
    While the scheduling of this hearing was not optimal, it was also 
not utterly unreasonable. To my understanding most of the witnesses 
were able to submit their testimony on time despite the rigid timeline. 
I therefore am very disappointed with the lateness of VA's testimony. 
It is understandable that it can be difficult to get testimony through 
the clearance process; but it is wholly unacceptable to receive 
testimony 15\1/2\ hours before the hearing. Members and staff must be 
given time to do our jobs and properly prepare for your testimony.
    Before I recognize Ranking Member McNerney and other Members of the 
Committee I wanted to just briefly touch on three bills on today's 
agenda that I have introduced.
    H.R. 1407, the Veterans Cost of Living Adjustment Act of 2011 
provides a cost-of-living increase to veterans' disability compensation 
rates and other benefits. This increase is tied to the cost-of-living 
adjustment for Social Security benefits.
    H.R. 1441 codifies regulations and policies that bar reservations 
for burial or interment at Arlington National Cemetery, made on or 
after January 1, 1962.
    Like many people I was shocked to learn about recent allegations 
that veterans had been given unofficial reservations by the former 
management at Arlington National Cemetery.
    I applaud the decision of the new management team, headed by Ms. 
Condon, to not honor these unofficial reservations. This bill makes the 
policy crystal clear by putting it into law.
    My final bill is H.R. 1647 the Veteran Choice in Filing Act. This 
bill directs VA to establish a pilot program that would allow veterans 
who live in the jurisdiction of five underperforming regional offices 
to choose which regional office they would like to have their claim 
adjudicated.
    While I understand that many stakeholders here today have some 
questions in regard to the logistics of the bill, I am sure we can all 
agree that it is inequitable for veterans in one part of the country to 
have more accurate and timely decisions than a veteran in another part 
of the country.
    My bill is meant to start the discussion on addressing this 
inequity and I look forward to hearing suggestions from our 
stakeholders here today on how we can work together to ensure all 
veterans claims are timely and accurate. We will continue to discuss 
this issue at a hearing we are having on underperforming regional 
offices on June 2nd.
    I would ask all of today's witnesses to summarize your written 
statement within 5 minutes and without objection, each written 
testimony will be made part of the hearing record.
    Before we begin with testimony, I now yield to the distinguished 
Ranking Member from the great State of California for any remarks he 
may have.

                                 
     Prepared Statement of Hon. Jerry McNerney, Ranking Democratic
   Member, Subcommittee on Disability Assistance and Memorial Affairs
    Thank you, Mr. Chairman.
    I would like to thank you for holding today's hearing.
    This morning, we are considering seven pieces of legislation 
ranging from the claims process, appeals modernization and memorial 
issues at VA cemeteries and Arlington National Cemetery.
    However, I would be remiss if I did not mention the oddity of the 
8:00 a.m. hearing hour and the frequent scheduling changes that 
preceded it--of at least five. I hope that this high level of confusion 
and frequency of changes can be avoided in the future--and that more 
consideration can be shown for our colleagues and our witnesses.
    Today, we will consider two pieces of legislation that seek to make 
the VA claims process and the appeals process more efficient and 
effective for our Nation's veterans--specifically, the Veterans Appeals 
Improvement Act of 2011, H.R. 1484, introduced by the Ranking 
Democratic Member of the Full Committee, Mr. Filner, and your bill, Mr. 
Chairman, H.R. 1647, the Veterans' Choice in Filing Act.
    The provisions of Ranking Member Filner's bill, aim to continue the 
successful process began with enactment of P.L. 110-389 of making 
positive changes to the way our veterans' claims and appeals are 
handled by the Veterans' Benefits Administration (VBA), Appeals 
Management Center (AMC), Board of Veterans' Appeals (BVA), and Court of 
Appeals for Veterans Claims (CAVC). Additionally, H.R. 1484 would also 
establish a Commission to examine some of the overarching and 
longstanding judicial and administrative issues that contribute to what 
many stakeholders refer to as the ``hamster wheel.'' I look forward to 
delving again into these issues with all of the stakeholders in a 
bipartisan manner.
    I'd also like to address your legislation, Mr. Chairman, the 
Veterans' Compensation Cost-of-Living Adjustment Act of 2011. H.R. 
1407, has my full support. Many of the nearly 3 million veterans who 
receive these benefits depend upon these tax-free payments not only to 
provide for their own basic needs, but for those of their spouses, 
children and parents as well. We would be derelict in our duty if we 
failed to guarantee that those who sacrificed so much for this country 
receive benefits and services that fail to keep pace with their needs.
    Finally, four of the remaining measures that we will consider today 
address memorial issues, H.R. 811, H.R. 1441, H.R. 1627 and 
H.Con.Res.12.
    I look forward to hearing from our DoD witnesses as we discuss the 
three measures relating to the placement of monuments and grave 
reservations at Arlington National Cemetery. I also am pleased that we 
will have a chance to consider Ranking Member Filner's bill, Providing 
Military Honors for our Nation's Heroes Act, H.R. 811, which would help 
ensure that all our veterans receive the full burial honors that they 
deserve. It is critical that we honor our veterans' service and 
sacrifice appropriately as they are laid to rest.
    During times of war, such as today, we must simultaneously ensure 
the proper compensation and support for our current veterans while also 
creating and implementing innovative solutions that will allow us to 
care for those who will become veterans of our current conflicts. I 
think the bills under consideration today strike that balance.
    Mr. Chairman, I thank my colleagues, Chairman Miller, Ranking 
Democratic Member Filner, and Mr. Weiner for introducing the other 
measures before us today. I look forward to hearing from all of our 
witnesses.
    Thank you and I yield back.

                                 
                Prepared Statement of Christina M. Roof,
    National Acting Legislative Director, American Veterans (AMVETS)
    Chairman Runyan, Ranking Member McNerney and distinguished Members 
of the Subcommittee, on behalf of AMVETS, I would like to extend our 
gratitude for being given the opportunity to share with you our views 
and recommendations regarding H.R. 811, H.R. 1407, H.R. 1441, H.R. 
1484, H.R. 1627, H.R. 1647 and 
H. Con Res. 12.
    AMVETS feels privileged in having been a leader, since 1944, in 
helping to preserve the freedoms secured by America's Armed Forces. 
Today our organization prides itself on the continuation of this 
tradition, as well as our undaunted dedication to ensuring that every 
past and present member of the Armed Forces receives all of their due 
entitlements. These individuals, who have devoted their entire lives to 
upholding our values and freedoms, deserve nothing less.
    Given the fact this testimony will be addressing several pieces of 
legislation, I shall be addressing each piece of legislation 
separately, as to make AMVETS testimony clear and concise on the 
individual subject matters of the bills.
    AMVETS supports H.R. 811, the ``Providing Military Honors for our 
Nation's Heroes Act.'' With the growing demand for Military Honors at 
burials today and the lack military personnel or volunteers with the 
financial means to perform them, many of our Nation's fallen heroes are 
going without proper honors at their funerals. AMVETS finds this 
poignant reality unacceptable and avoidable. Even with the low number 
of volunteers capable of performing these earned burial honors, many 
more could be performed if there were resources available to these 
selfless organizations who travel the country to ensure every veteran 
and soldier has a proper funeral. Moreover, if reimbursements were made 
available more organizations and individual volunteers could start to 
offer their services of providing military honors as well. Finally, 
AMVETS is quite clear on the State of our Nation's budget, however 
while we fully support fiscal responsibility we do not believe that any 
man or woman who has served this great Nation should be denied a proper 
burial in an effort to balance the budget. AMVETS again lends their 
strong support to H.R. 811.
    AMVETS strongly supports H.R. 1407, the ``Veterans' Compensation 
Cost-of-Living Adjustment Act of 2011.'' H.R. 1407 or ``COLA'' is 
critical in ensuring the areas of need regarding today's cost of living 
are adjusted annually. Wartime Disability Compensation, the Clothing 
Allowance for severely disabled veterans, Dependency and Indemnity 
Compensation to Surviving Spouse and Dependency and Indemnity 
Compensation to Children monetary values must be increased every year 
to sustain veterans, dependents and survivor's current quality of life. 
AMVETS urges the swift passage of H.R. 1407 and offers our unwavering 
support.
    AMVETS supports H.R. 1441, to amend title 38, United States Code, 
to codify the prohibition against the reservation of gravesites at 
Arlington National Cemetery, and for other purposes.
    Under title 32 U.S.C., Chapter V, section 553, subsection 
553.18(a), the present policy of the Department of the Army, only one 
gravesite is authorized for the burial of a servicemember and eligible 
family members. Furthermore, 5553.18(b) states that gravesites may not 
be reserved. However, it has been brought to attention of AMVETS that 
``de facto reservations'' of plots were still being made in direct 
violation to the Army's policy of prohibition of reservations 
established in 1962. According to Kathryn Condon, the executive 
director of the Army National Cemeteries Program, as of March 2011 
there were 3,500 reservations on file, although it is unclear how many 
of those 3,500 are valid. AMVETS finds this to be unacceptable and 
disgraceful, given the importance of what Arlington National Cemetery 
is tasked with. Moreover, while AMVETS completely understands the 
esteem and honor of being interred at Arlington National Cemetery, we 
find it objectionable for any person to go against the Army's 1962 
regulation prohibiting of burial site reservations and to reserve a 
site that just might be needed for someone who perishes in combat 
tomorrow. Furthermore, AMVETS believes H.R. 1441 stands to codify the 
Army's regulation and also stands to provide accountability and 
transparency to the process. One's status in life should not determine 
their eligibility of interment over anyone else's. Once again, AMVETS 
supports H.R. 1441 and further urges Congress to have the strictest of 
oversight in the implementation of the electronic tracking system at 
Arlington National Cemetery, as well as the reservation review process, 
currently taking place at Arlington National Cemetery.
    AMVETS supports H.R. 1484, the ``Veterans Appeals Improvement Act 
of 2011.'' AMVETS believes H.R. 1484 stands to expedite the claims 
process, especially in light of the recent changes to laws regarding 
mental health, Agent Orange and several other areas. AMVETS further 
believes that through the amending of title 38, section 7104 the claims 
process will be sped up through the avoidance of duplication of efforts 
and unnecessary paper shuffling. Moreover, AMVETS believes that an 
unpaid committee tasked with identifying the weaknesses and 
duplications within the Veterans Benefit Administration's claim process 
only stands to assist VBA in developing accurate and expedited claims 
processing practices, as well as identifying the causes that have led 
VBA to be stuck in a never ending cycle of backlogs and improperly 
adjudicated claims. While AMVETS applauds VA in their recent efforts to 
electronically streamline the claims process, unfortunately little 
improvement has been made and the backlog continues to grow. AMVETS 
believes that if the proposed ``Veterans Judicial Review Commission'' 
is held accountable to meeting all standards, guidelines and deadlines 
as outlined in H.R. 1484, VBA stands to gain valuable information that 
could lead to great improvements to the entire VA claims process. The 
unpaid commission will be able to focus strictly on the overall 
process, thus being able to identify strengths and weaknesses 
throughout the entire VBA claims system. AMVETS strongly believes to 
effectively, efficiently and correctly run any program there must be 
regular internal and external audits to identify the aforesaid. 
Therefore, AMVETS lends our support to H.R. 1484.
    AMVETS strongly supports H.R. 1627, to amend title 38, United 
States Code, to provide for certain requirements for the placement of 
monuments in Arlington National Cemetery, and for other purposes. 
AMVETS believes the proposed language in H.R. 1627 will provide 
necessary clarity, as well as uniformed defined requisites for the 
placement of acceptable monuments in Arlington National Cemetery. 
Furthermore, AMVETS believes that mandating monuments only be erected 
in areas not suitable for interment will provide the opportunity for 
more of our Nation's fallen heroes and qualifying veterans to be laid 
to rest in these sacred grounds.
    AMVETS cannot support H.R. 1647, the ``Veterans' Choice in Filing 
Act of 2011,'' in its current form. While AMVETS is happy to see new 
ideas and ``out of the box'' thinking, we still have concerns on the 
language in H.R. 1647. So at this time, AMVETS cannot support H.R. 
1647, however we are willing to work with the Committee on H.R. 1647 to 
see if any language could be changed, so that it addresses AMVETS 
current concerns.
    AMVETS supports H. Con. Res. 12, expressing the sense of Congress 
that an appropriate site on Chaplains Hill in Arlington National 
Cemetery should be provided for a memorial marker to honor the memory 
of the Jewish chaplains who died while on active duty in the Armed 
Forces of the United States. Currently there are three monuments at 
Arlington National Cemetery for chaplains. One for those killed in 
World War I and one each for Roman Catholic and Protestant chaplains 
who died in 20th-century conflicts, including Korea and Vietnam. The 
three sit side-by-side in an area known as ``Chaplains Hill.'' The 13 
Jewish Chaplains died between 1943 and 1974. Though not all were killed 
in overseas combat, they still served this country. Given the facts 
that memorial meets the guidelines for erecting a monument at Arlington 
National Cemetery, the proper congressional steps are being followed 
and that it will be privately funded, AMVETS lends our support to H. 
Con. Res. 12.
    Chairman Runyan and distinguished Members of the Subcommittee, 
AMVETS would again like to thank you for inviting us to share with you 
our opinions and recommendations on these very important pieces of 
legislation. This concludes my testimony and I stand ready to answer 
any questions you may have for me.

                                 
                 Prepared Statement of Jeffrey C. Hall,
  Assistant National Legislative Director, Disabled American Veterans
                           EXECUTIVE SUMMARY
      H.R. 811--``Providing Military Honors for our Nation's 
Heroes Act.'' DAV does not oppose passage of this legislation.
      H.R. 1407--``Veterans' Compensation Cost-of-Living 
Adjustment Act of 2011.'' DAV would support passage of this 
legislation, while also seeking enactment of legislation for an 
automatic annual COLA and the discontinuance of the longstanding 
practice of ``rounding down'' of the COLA. DAV is also asking Congress 
to enhance VA disability compensation by including compensation for 
non-work disability and the loss of quality of life.
      H.R. 1441--DAV does not oppose passage of this 
legislation.
      H.R. 1484--``Veterans Appeals Improvement Act of 2011.'' 
DAV would support passage of section 2 of the bill; however, DAV would 
not support section 3 of the bill at this time, as we question whether 
the creation of yet another study commission is warranted or if it 
would be an appropriate use of VBA's resources.
      H.R. 1627--DAV does not oppose passage of this 
legislation.
      H.R. 1647--``Veterans Choice in Filing Act of 2011.'' 
While DAV agrees with the goal of reducing disparities between and 
improving the overall performance of regional offices, we do not 
believe the insertion of a new pilot program that could potentially 
interfere with VBA's ability to manage their workload would be helpful 
or contribute to the achieving the fundamental reform needed in this 
system; therefore, DAV does not support passage of this bill at this 
time.
      H. Con. Res. 12--DAV does not oppose passage of this 
legislation.

                               __________
    Mr. Chairman and Members of the Subcommittee:
    Thank you for inviting the Disabled American Veterans (DAV) to 
testify at this legislative hearing of the Subcommittee on Disability 
Assistance and Memorial Affairs. As you know, DAV is a nonprofit 
organization comprised of 1.2 million service-disabled veterans focused 
on building better lives for America's disabled veterans and their 
families.
    Mr. Chairman, at the Subcommittee's request, DAV is pleased to be 
here today to present our views on seven (7) bills under consideration 
by the Subcommittee.
    H.R. 811, the ``Providing Military Honors for our Nation's Heroes 
Act'' would authorize the Secretary of Veterans Affairs (VA) to 
reimburse a member of a veterans' service organization or other 
organization approved by the Secretary for transportation and other 
appropriate expenses incurred in connection with the voluntary 
provision of a funeral honors detail at the funeral of a veteran, 
including for times when the honors are requested by a funeral home.
    This bill would allow volunteers from veterans' service 
organizations (VSOs) and other organizations to be reimbursed for 
transportation costs and other expenses, such as cleaning uniforms, 
incurred while providing military funeral honors. Currently, members of 
VSOs and other volunteers can assist the military by providing a color 
guard, pallbearers, a bugler or firing party, and be reimbursed for 
their expenses, but the law does not address ceremonies in which VSOs 
render honors without military representation. Approval of this bill 
would allow volunteers to be reimbursed even when no military person is 
part of the honor guard, thereby increasing the number of military 
funeral honor details that would be available to families. While DAV 
does not have an adopted resolution from our membership pertaining to 
this particular matter, we do not oppose passage of this legislation.
    H.R. 1407, the ``Veterans' Compensation Cost-of-Living Adjustment 
Act of 2011'' would increase, effective December 1, 2011, the rates of 
compensation for veterans with service-connected disabilities and the 
rates of dependency and indemnity compensation (DIC) for the survivors 
of certain disabled veterans. For each of the past 2 years, there has 
been no increase in the rates for compensation and DIC because the 
Social Security index used to measure the cost-of-living adjustment 
(COLA) did not increase. However, many disabled veterans and their 
families who rely heavily or solely on VA disability compensation or 
DIC as their only means of income have struggled during these difficult 
times. While the economy has faltered, their personal economic 
circumstances have been negatively affected by rising costs of many 
essential items, including medicines and gasoline. As inflation becomes 
a greater factor, it is imperative that they receive a COLA and DAV 
supports this legislation.
    In addition, DAV also calls on Congress to enact legislation that 
would make a realistic COLA automatic each year. Furthermore, we call 
on Congress to end the practice of ``rounding down'' COLA increases, 
which incrementally reduces the support to disabled veterans and their 
families. The practice of permanently ``rounding down'' a veteran's 
COLA to the next lower whole dollar amount can cause undue hardship for 
veterans and their survivors whose only support comes from these 
programs and it is time to end this practice.
    Mr. Chairman, consistent with the position of The Independent 
Budget (IB), DAV would also ask that Congress consider finally 
implementing the recommendation made by the Institute of Medicine 
(IOM), the Veterans' Disability Benefits Commission (VDBC), and the 
Dole-Shalala Commission (President's Commission on Care for America's 
Returning Wounded Warriors) to enhance disability compensation by 
including compensation for non-work disability, or noneconomic loss, 
and the loss of quality of life suffered by disabled veterans. Non-work 
disability specifically refers to limitations on the veteran's ability 
to engage in usual life activities other than work, while loss of 
quality of life refers to the loss of physical, psychological, social, 
and economic well-being in one's life. Such compensation is provided by 
other countries who have similar comprehensive systems for compensating 
veterans for disabilities, including Canada and Australia, and it is 
time for Congress to finally address this matter of equity for the men 
and women who have suffered to defend this great Nation.
    H.R. 1441 would codify the prohibition against reserving gravesites 
at Arlington National Cemetery prior to the death of an eligible 
veteran. Additionally, this bill would prohibit the assignment of more 
than one gravesite to a veteran or member of the Armed Forces eligible 
for interment at a national cemetery and their eligible family members. 
While DAV does not have an adopted resolution from our membership 
pertaining to this particular matter, we do not oppose passage of this 
legislation.
    H.R. 1484, the ``Veterans Appeals Improvement Act of 2011'' seeks 
to improve the appeal process in two ways. Section 2 of the bill would 
allow a claimant to submit new or supplemental evidence in support of a 
case for which a substantive appeal has been filed, directly to the 
Board of Veterans' Appeals (Board) and not to the VA Regional Office of 
jurisdiction. This provision does, however, preserve the claimant's 
right to request VA Regional Office consideration of the new or 
supplemental evidence should they prefer that option.
    Currently, when the Board receives new or supplemental evidence not 
previously considered by the VA Regional Office, the case must be 
returned to the VA Regional Office of jurisdiction for appropriate 
rating or authorization activity, unless the claimant submits a waiver 
of VA Regional Office consideration. This current practice requires the 
case to be remanded or transferred back to the VA Regional Office which 
unnecessarily delays what is already a lengthy appellate process.
    DAV strongly supports approval of this provision which would be 
beneficial to all parties involved. It would allow a claimant to submit 
new or supplemental evidence directly to the Board where the case is 
pending without requiring a waiver of VA Regional Office consideration, 
and thereby avoiding a time consuming remand process that delays final 
decisions to veterans and also wastes VA resources in the process.
    Section 3 of H.R. 1484 would create a ``Veterans Judicial Review 
Commission'' to study the administrative and judicial elements of 
claims adjudication in order to make recommendations about improving 
the ``. . . accuracy, fairness, transparency, predictability, 
timeliness and finality . . .'' of claims decisions. In addition, the 
Commission would be specifically required to make a recommendation as 
to whether the Court of Appeals for Veterans Claims should be given the 
authority to hear relevant veterans' class action lawsuits. Although 
DAV testified in support of a similar commission during a hearing on 
October 8, 2009, this new proposal is different in two respects.
    First, the inclusion of a specific requirement to consider giving 
the Court class action authority raises concerns that DAV has expressed 
previously, including during the October 2009 hearing. As we said at 
that time, the call for the grant of authority for class action is one 
that we do not have a resolution on but wish to express concern as to 
the benefit this would provide veterans. It is our view that appeals 
decided on an individual basis rather than by class offer the appellant 
the best result for their specific case. Class actions may well benefit 
those who comprise that class but once decided they in fact preclude 
further appeal action on the issue decided. Moreover, as a recent 
front-page story in the Washington Post from April 23, 2011 indicated, 
the Court is currently understaffed and unable to meet its pending 
caseload. The addition of class action filings would certainly further 
burden the Court at a time when its workload can reasonably be 
predicted to continue rising in the coming years given the increasing 
number of new claims filed each year.
    Second, over the past 18 months VBA has been engaged in 
comprehensive and historic efforts to reform the entire claims 
processing system in order to reduce the backlog of pending claims and 
dramatically increase the accuracy and consistency of decisions. 
Central to this transformation effort will be the new Veterans Benefits 
Management System (VBMS), VBA's new paperless, rules-based IT system. 
When fully operational, the VBMS should lead to significant changes in 
how VBA, including the Board, and the Court receive and process claims 
and appeals work. DAV questions whether the creation of yet another 
study commission is warranted or if it would be an appropriate use of 
VBA's resources. As such, DAV does not support section 3 at this time.
    H.R. 1627 seeks to clarify the statute regarding the requirements 
for placement of markers or monuments in Arlington National Cemetery. 
The bill would codify specific requirements related to the type, 
purpose and designated areas for emplacement of monuments, as well as 
the authorization or approval process and sponsoring individuals or 
organizations required. While DAV does not have an adopted resolution 
from our membership pertaining to this particular matter, we do not 
oppose passage of this legislation.
    H.R. 1647, the ``Veterans' Choice in Filing Act of 2011'' would 
authorize a 24-month pilot program to allow veterans served by certain 
poor performing VA regional offices the option to submit a claim for 
benefits at any regional office of their choice. Under the proposal, 
five regional offices would participate in the pilot based upon 
criteria to be established by the VA Secretary. Upon completion of the 
pilot program, the Secretary would be required to send a final report 
to Congress containing recommendations about the future allocation of 
resources amongst VA regional offices. Although this legislation 
contains few specifics about its purpose or implementation, it appears 
the bill is intended to serve as a catalyst to improve and/or 
reorganize poor performing VA regional offices through a sense of 
competition.
    While DAV agrees with the goal of reducing disparities between and 
improving the overall performance of regional offices, for the reasons 
outlined below, we do not support this pilot program at this time. Over 
the past 2 years, VBA has been engaged in a comprehensive effort to 
reform its claims processing system that already includes dozens of 
innovative pilot programs as well as a complete redesign of the IT 
systems used to initiate and process benefit claims. DAV and other VSOs 
have been working closely with VBA in these efforts to ensure that the 
current claims processing system is redesigned and rebuilt in a manner 
that assures each claim for benefits will be processed right the first 
time. With VBA halfway through this transformation cycle, we do not 
believe the insertion of a new pilot program that could potentially 
interfere with VBA's ability to manage their workload would be helpful 
or contribute to achieving the fundamental reform needed in this 
system. As such, DAV does not support this legislation.
    Instead, DAV would like to work with this Subcommittee to develop 
better approaches to addressing performance differences between 
regional offices, primarily focused on better and more consistent 
training and quality control programs. With thousands of new employees 
entering the VBA workforce in the past couple of years, as well as the 
large number of new coaches and managers appointed to oversee them, it 
is imperative that VBA have continuing training programs to ensure 
consistency and accuracy of their work. It is equally important that as 
VBA continues developing and subsequently deploying the VBMS, that 
sufficient time and attention be paid to the inclusion of real-time 
quality control programs which can help to identify issues and areas 
that need new or better training programs. Mr. Chairman, DAV stands 
ready to work with you to achieve these shared goals.
    Finally, H.Con.Res. 12, would express the intent of Congress to 
honor the memory of the Jewish chaplains who have died while on active 
duty in the Armed Forces of the United States with the emplacement of a 
memorial marker on Chaplains Hill in Arlington National Cemetery. While 
DAV does not have an adopted resolution from our membership pertaining 
to this particular matter, we do not oppose passage of this 
legislation.
    Mr. Chairman and Members of the Subcommittee, this concludes my 
statement and I would be happy to answer any questions you may have.

                                 
   Prepared Statement of Shane Barker, Senior Legislative Associate,
 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. 811, the Providing Military Honors for our Nation's Heroes Act
    This bill is intended to help mitigate costs to military retirees 
and veterans who are taking it upon themselves to assist in providing 
military funeral honors for veterans. Ordinarily, this sacred task is 
the responsibility of our military, however, because of our ongoing 
commitments overseas they are often unable to meet the demand for such 
honors. The VFW strongly believes that all who have earned such honors 
should receive them in full. This commitment is the basis on which we 
support H.R. 811. This legislation promotes volunteer participation by 
providing a reimbursement for travel and incidental expenses to members 
of Veteran Service Organizations and other groups approved by the 
Secretary of Veterans Affairs. At a time when many of our greatest 
generation are passing on, and those serving in current conflicts are 
risking their lives for our country, this measure is appropriate and 
well-deserved.
H.R. 1407, the Veterans' Compensation Cost-of-Living Adjustment Act of 
        2011
    The VFW supports this legislation. Veterans have not received a 
COLA increase in 2 years, but are still paying more at the grocery 
store, pharmacy, gas pump, and elsewhere. We are encouraged that recent 
data shows a 2.1 percent increase in the CPI-W over the 2008 COLA base, 
and are hopeful that veterans and survivors will see a corresponding 
increase in their pensions and other compensation, such as DIC, in the 
coming year. This legislation is the vehicle to ensure that takes 
place.
H.R. 1441, a Bill To Codify the Prohibition of Gravesites at Arlington 
        National Cemetery, and For Other Purposes
    This legislation is long overdue. It will finally prohibit, in law, 
the insider practice of allowing certain high-ranking military members 
and other VIPs to pre-select their gravesites. This practice was banned 
by Army policy in 1962--nearly 50 years ago--yet cemetery 
administrators continued to arbitrarily allow some to skirt the rules. 
Burial at Arlington National Cemetery is a tremendous honor that 
depends on honorable service, not rank. It is obvious that greater 
accountability and transparency is needed, so we appreciate language in 
this bill that requires a full audit and a report back to Congress.
H.R. 1484, the Veterans Appeals Improvement Act of 2011
    Section 2 would make significant changes to the claims appeals 
process. Specifically, it would reverse the current procedure of 
requiring new evidence submitted for a claim under appeal to be 
considered by a regional office before being sent to the Board of 
Veterans Appeals, except in cases where the appellant waives that 
review. It would also stipulate that the Board is required to rate all 
new evidence submitted after the case is sent to them unless the 
veteran specifically refuses to waive their consideration.
    To be sure, the procedures currently in place often make for a 
lengthy appeals process. When new evidence for an appeal claim is 
submitted, the Board puts the appeal on hold and contacts the appellant 
to inquire whether or not he or she wants to waive local consideration 
of the new evidence. That alone often tacks a few months onto the 
length of a claim. When appellants want a regional office to review new 
evidence, the appeal is remanded back to that office from the Board, 
and that can easily add another year onto the appeal process. In some 
cases, however, new evidence being reviewed locally can bring about a 
local grant of the benefit sought through the appeal, and can put the 
matter to rest more quickly. Additionally, this local review provides 
appellants one more opportunity to have the appeal looked at and 
decided in their favor.
    These changes would allow the Board to move more quickly on 
appeals, and would alter but not eliminate an appellant's right to 
local consideration. Among our VFW service officers, we waive local 
consideration about 90 percent of the time for veterans we represent. 
Furthermore, most veterans who file claims unrepresented often do not 
know they have the ability to waive local consideration. We do not 
believe this procedural change would have a significant impact on 
appellants, and the VFW supports section 2 of the bill.
    Section 3 would create a Veterans Judicial Review Commission and 
charge it with reviewing the administrative and judicial appellate 
review process, and to report to Congress recommendations for improving 
the process. The VFW would reserve the privilege to review the work of 
the Commission and respond after having a chance to read and digest any 
specific recommendations they would choose to make.
    For these reasons, the VFW has no official position on this section 
of the legislation.
H.R. 1627, a Bill To Amend Title 38, United States Code, to Provide for 
        Certain Requirements for the Placement of Monuments in 
        Arlington National Cemetery, and For Other Purposes
    The VFW supports this effort to codify procedures used at Arlington 
Cemetery to place memorial markers. We strongly believe that any 
decisions that would affect the grounds at Arlington must be 
principled, fair, and based on precedent. We also believe that the 
individual placement of memorial markers should not hinge upon the 
legislative process. This legislation advances these principles by 
taking existing procedures for placing memorial markers and making them 
the law of the land.
H.R. 1647, the Veterans Choice in Filing Act of 2011
    The VFW does not support this legislation.
    H.R. 1647 creates a 2-year pilot program under which veterans at 
five underperforming regional offices would be able to submit benefits 
claims to any VA regional office of their choice. The VFW is by no 
means opposed to identifying and using any appropriate means to raise 
poorly performing offices up to standards. In fact, we are so committed 
to that goal, we would rather see our collective efforts focused on a 
permanent solution to the complicated and systemic problems with claims 
processing. This pilot would merely require VA to shuffle work around--
a practice, in fact, that already takes place within VBA. The VA uses 
the term ``brokering'' to describe the way in which they address 
disparities in production by transferring cases from backed up offices 
to those with ``excess capacity.'' One of our concerns is the 
possibility that this pilot program could create even more brokering in 
response to claims being sent by veterans to the regional office of 
their choosing, and could lead to those underperforming offices 
receiving the same amount of work from across the country through the 
already existing brokering process.
    It also creates serious headaches for VFW service offices and those 
from other Veteran Service Organizations--and potentially the veterans 
themselves. It is unclear how we or an individual veteran would know 
whom to contact about their claim, or how effective a service officer 
could be regarding a claim that was sent to a distant State from across 
the country.
    At a time when VA is conducting dozens of other pilot programs 
while applying significant resources to get ahead of the curve on the 
backlog, we believe measures with no apparent value added should be 
deferred.
H. Con. Res. 12, a Resolution Expressing the Sense of Congress That an 
        Appropriate Site on Chaplains Hill in Arlington National 
        Cemetery Should Be Provided for a Memorial Marker To Honor the 
        Memory of the Jewish Chaplains Who Died While on Active Duty in 
        the Armed Forces of the United States
    The VFW supports this resolution. One needs to look no further than 
the resolution itself to find testimony of the dedication, 
selflessness, and sacrifices made by chaplains of the Jewish faith on 
behalf of the United States. Today there stands three other memorial 
markers on Chaplains Hill in Arlington, two of which are in memoriam of 
chaplains of other faiths. It seems appropriate and fitting that a 
marker of similar design should be allowed to pay tribute to the many 
Rabbinical Chaplains who have also served with dignity and honor.
    Mr. Chairman, this concludes my statement. I would be happy to 
answer any questions that you or the Members of the Committee may have.

                                 
               Prepared Statement of Barton F. Stichman,
   Joint Executive Director, National Veterans Legal Services Program
                           EXECUTIVE SUMMARY
    National Veterans Legal Services Program (NVLSP) is a nonprofit 
veterans service organization. NVLSP's views on the Veterans Appeals 
Improvement Act of 2011 (H.R. 1484) and the Veterans' Choice in Filing 
Act of 2011 (H.R. 1647) are informed by the widespread frustration and 
disappointment in the VA claims adjudication system experienced by 
disabled veterans.
    NVLSP supports the proposed legislation that would waive Regional 
Office (RO) jurisdiction over new evidence submitted after a veteran 
has filed a substantive appeal but before the case is certified to the 
BVA. The average delay between a veteran filing a substantive appeal 
and the case being certified to the BVA can exceed 1\1/2\ years. A 
primary culprit of this unreasonable delay is VA's policy with respect 
to evidence submitted during this period: VA sends the new evidence and 
the claims file back to the RO for consideration and preparation of a 
new decision. Section 2 of the Veterans Appeals Improvement Act of 2011 
would change this policy to the benefit of veterans, while preserving 
the ability of a veteran to request RO consideration of evidence, 
should he or she so desire.
    NVLSP also supports the proposed legislation that would create a 
Veterans Judicial Review Commission. Of the appeals decided by the CAVC 
in 2009, it found reversible or remandable error in more than 60 
percent of the BVA's decisions. The errors by the BVA include 
inaccurately stating or applying the facts or the law and/or failing to 
adequately explain its decision. The high percentage of wrongly decided 
cases demonstrates that improvements must be made in the BVA's 
accuracy, fairness, and transparency. Section 3 of the Veterans Appeals 
Improvement Act of 2011 would aid in achieving this goal.
    NVLSP also supports giving the CAVC and Court of Appeals for the 
Federal Circuit (Federal Circuit) clear class action authority. The 
benefit of class actions is that they conserve the resources of the 
government and the Courts, serve as a mechanism for identifying 
affected individuals, and help ensure that the government treats all 
similarly situated individuals in the same way. That said, NVLSP 
maintains that a Commission--as contemplated by section 3--to explore 
the viability of granting class action authority is not necessary. The 
need is clear now.
    Finally, NVSLP supports the creation of a pilot program to allow a 
veteran whose local RO has ``below average performance'' to file his or 
her claim in a different RO. Many VA adjudicators are inadequately 
trained and many ROs are improperly managed and inadequately staffed. 
Section 2 of the Veterans' Choice in Filing Act of 2011 would provide 
veterans an alternative to filing in an RO plagued by these 
inadequacies. That said, NVLSP maintains that section 2 should specify 
that a veteran who chooses a different RO will not have to travel for 
VA medical examinations or hearings. Section 2 also should include 
specific guidelines to inform the Secretary of Veterans Affairs in his 
selection of ROs with ``below average performance,'' as well as a 
mechanism to review his selections.
    NVLSP thanks you for the opportunity to express its views.
                               __________
    Thank you for the opportunity to present the views of the National 
Veterans Legal Services Program (NVLSP) on the bills entitled the 
``Veterans Appeals Improvement Act of 2011'' (H.R. 1484) and the 
``Veterans' Choice in Filing Act of 2011'' (H.R. 1647). As explained 
below, NVLSP strongly supports (1) creating a Commission to investigate 
methods to improve the efficiency and fairness of the appeals process, 
(2) giving clear class action authority to the Court of Appeals for 
Veterans Claims (CAVC) and Court of Appeals for the Federal Circuit 
(Federal Circuit), and (3) implementing a pilot program giving veterans 
the option to file their claims in a better-performing VA Regional 
Office (RO).
    NVLSP is a nonprofit veterans service organization founded in 1980. 
Since its founding, NVLSP has represented thousands of claimants before 
the Board of Veterans' Appeals (BVA) and the CAVC, as well as the 
Federal Circuit and other Federal Courts. NVLSP is one of the four 
veterans service organizations that comprise the Veterans Consortium 
Pro Bono Program, which recruits and trains volunteer lawyers to 
represent veterans who have appealed a BVA decision to the CAVC without 
a representative. In addition to its activities with the program, NVLSP 
has trained thousands of veterans service officers and lawyers in 
veterans benefits law, and has written educational publications that 
thousands of veterans advocates regularly use as practice tools to 
assist them in their representation of Department of Veterans Affairs 
(VA) claimants.
    My testimony today is informed by the widespread frustration and 
disappointment in the VA claims adjudication system experienced by 
disabled veterans and their survivors. They face a number of serious 
challenges at both the BVA and the CAVC. We believe that the proposed 
Commission and pilot program, as well as giving class action authority 
to the CAVC and Federal Circuit, would make the process both more 
efficient and fairer to those who have served our country.

I. The Veterans Appeals Improvement Act of 2011
A. Section 2: Addressing Waiver of RO Jurisdiction Over Evidence 
        Submitted After the Substantive Appeal
    One of the reasons for the unreasonably long delays that occur in 
VA decisionmaking is the time it takes for VA to forward an appeal to 
the BVA for a decision. This interval occurs after the veteran files 
his or her claim, the RO issues a decision denying the claim, the 
veteran files a notice of disagreement with the RO decision, the RO 
issues a statement of the case (SOC), and the veteran files a 
substantive appeal. The BVA reported in its Report of the Chairman for 
Fiscal Year 2010 that it took an average of 609 days (1 year and 8 
months) after the filing of the substantive appeal for the RO to 
``certify'' the appeal, or forward the VA claims file to the BVA for a 
decision.
    A primary cause for this large time lag is the legal requirements 
governing VA's handling of evidence submitted by the veteran after the 
substantive appeal but before certification to the BVA. While veterans 
wait for their cases to be sent to the BVA, they often decide to submit 
additional evidence in support of their claims. Since they have already 
appealed to the BVA, they often assume that this evidence will go to, 
and be reviewed by, the BVA. To the contrary, VA is required, upon 
submission of new evidence during this time period, to send the case to 
an RO adjudicator for review of both the new evidence and the claims 
file and preparation of a new decisional document, called a 
Supplemental Statement of the Case (SSOC). If the veteran submits still 
additional evidence after the SSOC, the case is again sent to an RO 
adjudicator for review and preparation of yet another SSOC. In some 
cases, VA has taken the time to prepare four or more SSOCs before the 
case is forwarded to the BVA for a decision.
    Section 2 of the bill would change this VA requirement, to the 
benefit of the veteran and VA. It would mandate that any evidence 
submitted after a certain point in the process is forwarded directly to 
the BVA for review, unless the veteran or his representative 
specifically requests that it go to, and be reviewed by, the RO first. 
NVLSP strongly supports this change, as it will bring the process more 
in line with the expectations of veterans and will help alleviate the 
delay and waste of judicial resources that currently plagues the BVA 
appellate process.
    NVLSP also notes that submission of the substantive appeal is the 
appropriate point in the process at which to transfer jurisdiction over 
new evidence to the BVA. At that point, the veteran has had the 
opportunity to exercise his or her right to a hearing before a Decision 
Review Officer and has received an SOC.
B. Section 3: Addressing Creation of a Veterans Judicial Review 
        Commission and the Need for Class Action Authority
    Another cause of the unreasonable length of time it takes for 
veterans to obtain relief, and the attendant frustrations of said 
veterans, is the high number of errors made by the BVA. The CAVC 
reported in its Annual Report for Fiscal Year 2009 that, of the 4,379 
cases it decided, it ``affirmed or dismissed in part, reversed/vacated 
& remanded in part'' 498 cases; ``reversed/vacated & remanded'' 397 
cases; and ``remanded'' 1,758 cases. This means that, of those cases 
that the veteran or his survivors appealed to the CAVC, the BVA 
decision is vacated in more than 60 percent of the cases. Most of these 
remands are due to administrative error by the agency (rather than 
merely a post-decisional change in law). These mistakes often include 
an inaccurate recitation and application of the facts or law and/or an 
inadequate statement of the BVA's rationale for its decision. 
Additionally, veterans advocates have noted that a decision from one 
Veterans Law Judge may differ substantially from a decision by another 
based on similar facts. In those cases requiring remand for additional 
development or explanation, a subsequent appeal to the CAVC may be 
necessary.
    Given the high percentage of BVA decisions requiring reversal or 
remand, the creation of a Veterans Judicial Review Commission to 
evaluate, and make recommendations for the improvement of, the 
accuracy, fairness, transparency, and predictability of the BVA review 
process is necessary. Therefore, NVLSP strongly supports the creation 
of a Commission for this purpose.
    A third reason for the longstanding delays and inefficiency in the 
VA adjudication system derives from the fact that neither the CAVC nor 
the Federal Circuit has clear authority to certify a veteran's lawsuit 
as a class action. When Congress enacted the Veterans' Judicial Review 
Act (VJRA) in 1988, it inadvertently erected a significant roadblock to 
justice. Prior to the VJRA, U.S. District Courts of Appeal had 
authority to certify a lawsuit challenging a VA rule or policy as a 
class action on behalf of a large group of similarly situated veterans. 
See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404 
(N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F. 
Supp. 34 (D.P.R. 1993). If the district Court held that the challenged 
rule or policy was unlawful, it had the power to ensure that all 
similarly situated veterans benefited from the Court's decision.
    The ability of a veteran or veterans organization to file a class 
action ended with the VJRA. In that landmark legislation, Congress 
transferred jurisdiction over challenges to VA rules and policies from 
district Courts (which operate under rules authorizing class actions) 
to the Federal Circuit and the newly created CAVC. In making this 
transfer of jurisdiction, Congress failed to clearly address the 
authority of the CAVC and the Federal Circuit to certify a case as a 
class action. As a result of this oversight, the CAVC has ruled that it 
does not have authority to entertain a class action (see Lefkowitz v. 
Derwinski, 1 Vet. App. 439 (1991)), and the Federal Circuit has 
indicated the same (see Liesegang v. Secretary of Veterans Affairs, 312 
F.3d 1368, 1378 (Fed. Cir. 2002).
    The benefit of class actions in litigation against the government 
is that they conserve the resources of the government and the Courts 
and help ensure that the government treats all similarly situated 
individuals in the same way. Class actions are typically used by Courts 
to resolve efficiently a legal issue that affects a large number of 
similarly situated individuals. There are literally hundreds of 
individual VA rules and policies that affect the entitlement to VA 
benefits for a large number of VA claimants. From time to time, a VA 
claimant will file an appeal at the CAVC or the Federal Circuit that 
challenges the legality of one of these rules or policies. Injustice 
and inefficiency result from the fact that these Courts do not have 
class action authority.
    A pertinent example is the lawsuit filed by NVLSP and the Military 
Order of the Purple Heart in the Federal Circuit challenging VA 
directive (Fast Letter 07-19) issued on August 27, 2007. This Fast 
Letter instituted a new decisionmaking process for the adjudication of 
certain claims involving a large amount of benefits.
    The Fast Letter required VA, in any case in which an RO awarded a 
veteran more than $250,000 in benefits or awarded 8 or more years of 
retroactive benefits, to withhold its award decision from the veteran 
and representative and to send it to Washington, D.C., for a review by 
the Compensation & Pension Service. No RO decisions denying a large 
amount of benefits were subject to the Fast Letter. The Compensation & 
Pension Service would then decide the claim anew. If it disagreed with 
the RO award of a large amount of benefits, it would order the RO to 
rewrite the decision to comply with the Compensation & Pension 
Service's view and then send the rewritten decision to the veteran and 
representative. The RO had to destroy or discard the initial favorable 
decision and the instructions of the Compensation & Pension Service 
that caused the denial.
    On September 10, 2009, the Federal Circuit ruled that the Fast 
Letter procedure, ``whereby certain regional office decisions are 
redetermined by the Compensation & Pension Service . . . without the 
knowledge and participation of the claimant, does not comply with the 
extant Regulations, and that [VA's] promulgation [of the Fast Letter 
without public notice and comment] violated the Notice and Comment 
provisions of the'' Administrative Procedure Act. As such, the Federal 
Circuit invalidated the Fast Letter. VA then ordered a halt to 
Compensation & Pension Service review of RO awards of a large amount of 
benefits. Military Order of the Purple Heart of the USA and National 
Veterans Legal Services Program v. Secretary of Veterans Affairs, 580 
F.3d 1293 (Fed. Cir. 2009).
    The problem with the judicial resolution of this case is that for 2 
full years--from August 2007 to September 2009--the Compensation & 
Pension Service had been allowed to continue to review RO decisions 
awarding a large amount of benefits. In fact, over 800 large awards 
were reviewed, and in more than 50 percent of these cases the large 
award was overturned by the Compensation & Pension Service. The 
hundreds of veterans who were each denied hundreds of thousands of 
dollars in disability benefits cannot identify themselves as entitled 
to the benefits initially granted by the RO and validated by the 
Federal Circuit's decision.
    If the Courts had class action authority, this injustice and 
inefficiency would not occur. As soon as NVLSP and the Military Order 
of the Purple Heart filed suit, the Court could certify the case as a 
class action, order the Compensation & Pension Service to halt its 
review until the Court could consider the legality of the Fast Letter, 
and order VA to keep track of the identity of each of the veterans 
subject to the Fast Letter. Then, if the Court determined that the Fast 
Letter was illegal, as the Federal Circuit did in this case, it would 
have authority to order VA to reinstate each of the RO decisions 
awarding a large amount of benefits.
    Justice would thereby be served because the hundreds of veterans 
who were each illegally denied hundreds of thousands of dollars in 
benefits under the Fast Letter would actually receive these benefits. 
VA efficiency would be improved because the scarce resources of the 
Compensation & Pension Service and ROs would not have been expended in 
deciding whether to overturn the initial RO decisions, an activity 
deemed invalid by the Federal Circuit.
    Moreover, class actions would be manageable in the CAVC and Federal 
Circuit. They are done uniformly in district Courts and are considered 
manageable there.
    For these reasons, NVLSP strongly advocates giving the CAVC and 
Federal Circuit clear class action authority. That said, NVLSP does not 
believe that creation of a Commission to evaluate whether to give class 
action authority--as contemplated by section 3 of the bill--is 
necessary. By the terms of the bill, the Commission would not render a 
final report until December 31, 2012, more than 1\1/2\ years from now. 
However, the need for class action authority is clear now. In the 
interim, cases may arise that are appropriate for certification, and 
veterans whose rights were abridged (like those discussed above) would 
be denied justice.

II. The Veterans' Choice in Filing Act of 2011
A. Section 2: Addressing Creation of a Program To Give Veterans a 
        Choice of RO in Which To File a Claim
    It is clear that the quality of VA adjudications is not 
satisfactory and is a major contributor to the size of the backlog. In 
many cases, claims are improperly denied, VA adjudicators are 
inadequately trained, ROs are improperly managed, and ROs are 
inadequately staffed. Because VA Central Office management has not 
acted to fix these problems in any meaningful way, veterans and other 
claimants for VA benefits have to file unnecessary appeals, wait 
several years for a BVA remand, and wait for VA to obtain evidence that 
should have been requested during the original adjudication of the 
claim. These appeals clog the system and create unneeded work for VA. 
Of course, it would have been better for the RO to do the work 
correctly the first time
    Given these problems that plague many ROs, NVSLP supports the 
creation of a pilot program for allowing a veteran whose local RO is 
deemed to have ``below average performance'' to file his or her claim 
in a different RO. While NVLSP agrees with the legislation, we suggest 
two additions to the bill.
    First, section 2 should specify that a choice of non-local RO does 
not strip the veteran of his or her right to have any VA medical 
examination or hearing conducted locally. A veteran who chooses to file 
his or her claim in an out-of-state RO should not be required to travel 
for a VA medical examination or hearing. Requiring travel would be 
unduly prohibitive to veterans, who are frequently advanced in age and 
ill in health, and would have a chilling effect on their decisions to 
choose a different RO.
    Second, section 2 should include specific guidelines to inform the 
Secretary of Veterans Affairs (Secretary) in his selection of ROs with 
``below average performance,'' as well as a process to review the 
Secretary's selections and rationale. As the bill is written, the 
Secretary has complete discretion to choose which five ROs are subject 
to the pilot program: his choice is not guided by either a stated goal 
for the pilot program or a recommendation of what constitutes ``below 
average performance.'' The criteria for choosing which ROs qualify 
should include a quality component based on the RO's remand and 
reversal rate at the BVA, as well as the Veterans Benefits 
Administration's Systematic Technical Accuracy Review (STAR) report.
    That completes my testimony. Again, NVLSP appreciates the 
opportunity to express its views on these important pieces of 
legislation and thanks you for your continued dedication to veterans.

                                 
             Prepared Statement of Hon. Anthony D. Weiner,
        a Representative in Congress from the State of New York
    Chairman Runyan, Ranking Member McNerney, thank you for allowing me 
to testify today on House Concurrent Resolution 12, which would 
designate a plot of land in Arlington Cemetery to be used for a 
memorial honoring the Jewish chaplains of our armed services.
    Unlike many things in Congress, this bill is simple and 
straightforward.
    Jewish chaplains have served our country for 149 years, yet they 
still do not have a place next to their Protestant and Catholic 
counterparts on Chaplains Hill in Arlington Cemetery.
    Today, all that is standing between Arlington Cemetery and a 
memorial for Jewish chaplains is the passage of H. Con. Res. 12.
    That is all there is to this resolution.
    I am not the one who thought of creating a memorial for Jewish 
veterans.
    In fact, like many Jewish-Americans and veterans nationwide, I was 
surprised to learn that no such memorial existed in Arlington Cemetery 
at all.
    Ken Kraetzner, son of a World War II Army officer, noticed the lack 
of a monument for Jewish chaplains while researching the stories of the 
four immortal chaplains who died while giving final rites on board the 
USS Dorchester in 1943.
    Ken located the four men on Chaplains Hill; he noticed that Rabbi 
Alexander Goode was the only one of the four chaplains not 
distinguished by a memorial.
    Ken partnered with two other veterans, Rabbi Harold Robinson and 
Sol Moglen, to help lead fundraising efforts. In just a few months, 
they raised over $50,000.
    They used the three other memorials as a model for the new monument 
they envisioned for the 13 Jewish chaplains that lost their lives from 
1943 to 1974.
    As you know, Mr. Chairman, the number thirteen is significant in 
Judaism. We have the 13 attributes of divine mercy on Yom Kippur, the 
13 Maimonedian principles of the Jewish faith and of course, the 13 
tribes of Israel.
    The monument, as designed, will stand about 7 feet tall, with a 
bronze plaque mounted on a granite slab listing the 13 names as well as 
a Jewish proverb--``I ask not for a lighter burden, but for broader 
shoulders''--and an inscription with the Star of David. There will also 
be space at the bottom for future chaplains if needed.
    While planning this project, Ken Kraetzer, Rabbi Harold Robinson 
and Sol Moglen were in touch with Arlington Cemetery; however, they 
were only notified of a new 2001 law that requires congressional 
approval for memorials in Arlington Cemetery.
    The group quickly alerted the Jewish War Veterans of the United 
States of America, the Jewish Welfare Board Jewish Chaplains Council, 
and they finally reached out to me.
    I was touched by the work of these great men and quickly introduced 
this resolution. Senator Schumer has also introduced the Senate version 
of this bill.
    In less than 4 months, the resolution collected 72 bi-partisan 
cosponsors (including Chairman Runyan and full Committee Chairman Jeff 
Miller), and has been endorsed by 35 national Jewish organizations and 
47 local Jewish War Veterans chapters.
    The Jewish Federations of North America and Shelly Rood have been 
working to help pass this bill to recognize the achievements of the 13 
Jewish chaplains. Surviving family members of the chaplains have also 
been involved in the process, including David Engle, son of Rabbi Meir 
Engle and Vera Silberberg, daughter of Morton Singer.
    If I may, Mr. Chairman, I would like to submit the letter of 
support from all these groups into the record.
    I am very grateful that we are one step closer to erecting this 
monument and properly honoring the brave Jewish chaplains that served 
our country.
    What better way to celebrate Jewish Heritage Month.
    I look forward to the passage of this resolution on the House 
floor.
    Now, Mr. Chairman, please let me take a moment to repeat the names 
of the 13 chaplains honored through this resolution.

         1.  Nachman S. Arnoff, Army
         2.  Meir Engel, Army
         3.  Frank Goldenberg, Army
         4.  Alexander D. Goode, Army
         5.  Henry Goody, Army
         6.  Samuel D. Hurwitz, Army
         7.  Herman L. Rosen, Air Force
         8.  Samuel Rosen, Air Force
         9.  Solomon Rosen, Army
        10.  Morton H. Singer, Army
        11.  David Sobel, Air Force
        12.  Irving Tepper, Army
        13.  Louis Werfel, Army

    Thank you.
                               __________
                             March 22, 2011
          Support Jewish Military Chaplains at Chaplains Hill
                     in Arlington National Cemetery
Dear Members of Congress:

    As you may know, the men and women serving in America's armed 
forces are supported by brave military chaplains of many faiths, who--
at great personal risk and peril--provide spiritual and emotional 
support to soldiers defending our freedom. These heroes who are 
sometimes killed or injured in the line of duty deserve our Nation's 
utmost respect. Chaplains Hill in Arlington National Cemetery 
appropriately memorializes the names of 242 chaplains who perished 
while on active duty, but astonishingly, none of the 13 Jewish 
chaplains who have died while serving are honored on Chaplains Hill.
    As organizations representing Jewish communities across the 
country, we urge you to support H. Con. Res. 12 and S. Con. Res. 4, 
which call for a memorial honoring the Jewish chaplains who perished 
while serving on active duty. Private funds for this memorial have 
already been raised, but Congress must act to designate the space.
    One of the transformational moments in American life was the heroic 
sacrifice of the four chaplains of the USS Dorchester, which was 
transporting 900 soldiers and civilian workers to the European front 
when it was sunk by German torpedoes off the coast of Greenland on 
February 3, 1943. Each of the four chaplains on board spontaneously 
gave his lifejacket to another soldier, and the chaplains perished 
together as they prayed and sang hymns to men in lifeboats and in the 
icy water. The chaplains represented three faith traditions--two 
Protestants, a Catholic, and a Jew--and their death marked the first 
time the term ``Protestant, Catholic and Jew'' was used to describe 
America. Three of the four are memorialized on Chaplains Hill, but 
neither Rabbi Alexander Goode nor any of the other rabbis who died in 
other active service situations are so remembered.
    Members of the Jewish faith have served our country since the days 
of the American Revolution, and Jewish chaplains have bravely served 
alongside. In total 13 Jewish chaplains have perished while on active 
duty in the Armed Forces of the United States. Working with the 
American Legion and the Jewish War Veterans, the Jewish Welfare Board 
Jewish Chaplains Council has raised the funds to establish this 
memorial. We urge you to act swiftly to pass this legislation in the 
House and in the Senate.
    To cosponsor this legislation, please contact Naz Durakoglu in Rep. 
Weiner's office at x5-6616 or [email protected], Jessica 
Moore in Rep. Rooney's office at x5-5792 or 
[email protected], or Rachel Yemini in Sen. Schumer's office 
at x4-6542 or [email protected].
    For additional information, please contact Shelley Rood at the 
Jewish Federations of North America at (202) 736-5880 or 
[email protected].
    Thank you for your consideration.

            Sincerely,

    American Jewish Committee
    Anti-Defamation League
    Association of Jewish Aging Services
    Association of Jewish Chaplains of the Armed Forces and Veterans 
Affairs
    Association of Jewish Children & Family Agencies
    B'nai B'rith International
    Central Conference of American Rabbis
    Foundation for Jewish Culture
    International Association of Jewish Vocational Services
    Jewish American Heritage Month
    Jewish Communal Service Association of North America
    Jewish Community Centers Association
    Jewish Community Relations Council of New York
    Jewish Community Relations Council of the Jewish United Fund of
      Metropolitan Chicago
    Jewish Council for Public Affairs
    Jewish Education Service of North America
    Jewish Federation of Metropolitan Chicago
    The Jewish Federations of North America
    Jewish Institute for National Security Affairs
    Jewish War Veterans
    Jewish Women International
    JWB-Jewish Chaplains Council
    National Association of Jewish Chaplains
    National Council of Jewish Women
    National Council of Young Israel
    National Jewish Democratic Council
    Orthodox Union
    Rabbinical Council of America
    Reconstructionist Rabbinical Association
    Religious Action Center of Reform Judaism
    Republican Jewish Coalition
    The Rabbinical Assembly
    UJA-Federation New York
    Union for Reform Judaism
    United Synagogue of Conservative Judaism

    Local Veterans Organizations
    Jewish War Veterans of Nevada, Post 21
    Jewish War Veterans of Nevada, Post 64
    Jewish War Veterans of Nevada, Post 65
    Jewish War Veterans of Nevada, Post 711
    The Jewish War Veterans of the U.S.A. Sergeant Manny Peven Post 65

    Local Jewish Organizations
    American Jewish Committee New York Regional Office
    Brownstein Jewish Family Service
    Bureau of Jewish Education of Buffalo
    Community Relations Committee of United Jewish Communities of 
MetroWest
    Community Relations Council of the Jewish Federation of San Antonio
    Congregation Beth Shalom, Wilmington, Delaware
    Council of Jewish Organizations of Las Vegas
    FEGS Health and Human Services System
    Jewish Community Center of Staten Island
    Jewish Community Relations Council of the Allied Jewish Federation 
of Colorado
    Jewish Community Relations Council of Greater Boston
    Jewish Community Relations Council of the Jewish Federation of
      Northern New Jersey
    Jewish Community Relations Council of the Jewish Federation of
      Palm Beach County
    Jewish Community Relations Council of Long Island
    Jewish Community Relations Council of United Jewish Council of 
Greater Toledo
    Jewish Community Relations Council of the Youngstown Area Jewish 
Federation
    Jewish Family & Child Service of Portland
    Jewish Family Service of Bergen and North Hudson
    Jewish Family Service of Buffalo & Erie County, NY
    Jewish Family Service of the Cincinnati Area
    Jewish Family Service of Greater Danbury, CT & Putnam County, NY
    Jewish Family Service of Greater New Orleans
    Jewish Family Service of Los Angeles
    Jewish Family Services of Northeastern New York
    Jewish Federation of the Bluegrass
    Jewish Federation of Las Vegas
    Jewish Federation of Nashville Community Relations Committee
    Jewish Federation of Northeastern New York
    Jewish Social Service Agency
    Joint Chaplaincy Committee of MetroWest
    Knoxville Jewish Alliance
    Metropolitan Council on Jewish Poverty
    New Jersey State Association of Jewish Federations
    New York Board of Rabbis
    North Louisiana Jewish Federation
    Ohio Jewish Communities
    Palm Beach County Board Of Rabbis
    Parker Jewish Institute for Health Care & Rehabilitation
    Pennsylvania Jewish Coalition
    Samuel Field YM-YWHA
    Selfhelp Community Services, Inc.
    Westchester Jewish Council

                                 
              Prepared Statement of Hon. Bruce E. Kasold,
         Chief Judge, U.S. Court of Appeals for Veterans Claims
                           EXECUTIVE SUMMARY
      H.R. 1647 (authorizing submission of claims at any 
regional office) and section 2 (waiver of regional office review of new 
evidence) of H.R. 1484 concern operations within the purview of the 
Department of Veterans Affairs (VA). The Court has no special insight 
and no further comment on these proposals.
      The Court supports creation of a Commission, as generally 
proposed in section 3 of H.R. 1484, with the suggestion that subsection 
(b)(1) of section 3 be modified to focus the scope of the Committee's 
duties on evaluating the judicial appellate review process, as is the 
stated scope in the title of section 3. This can be accomplished by 
deleting the words ``administrative and'' from subsection (b)(1).
                               __________
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

    Good morning. Thank you, Mr. Chairman and Members of the Committee, 
for asking for the views of the U.S. Court of Appeals for Veterans 
Claims (Court) on two recent bills introduced this year: H.R. 1484 
(``Veterans Appeals Improvement Act of 2011'') and H.R. 1647 
(``Veterans' Choice in Filing Act of 2011''). Because H.R. 1647 
(authorizing submission of claims at any regional office) and section 2 
(waiver of regional office review of new evidence) of H.R. 1484 concern 
operations within the purview of the Department of Veterans Affairs 
(VA), I have no special insight to offer the Committee and leave 
further comment to the Secretary and Chairman of the Board who would be 
impacted directly by those provisions.
                  COMMISSION TO STUDY JUDICIAL REVIEW
               OF THE DETERMINATION OF VETERANS' BENEFITS
    The Board of Judges of the Court fully supports the creation of a 
Commission to study judicial review of veterans' benefits 
determinations, as the title of section 3 of H.R. 1484 suggests, and to 
make recommendations for improvement as required by subsection (h). 
Indeed, the time is right for a working group to step back and review 
the judicial appellate review system we have, critically examine its 
strengths and weaknesses, and identify measures that could benefit the 
overall judicial appellate review process.
    Although not specifically stated in H.R. 1484, I would anticipate 
and encourage the Commission to weigh the costs and benefits of the 
unique two-tiered Federal appellate review system currently in place 
for veterans' benefits decisions. Similar action was taken in the past 
with regard to the U.S. Court of Appeals for the Armed Forces, whose 
appeals are now final, subject to certiorari review by the Supreme 
Court. With two decades of experience in appellate review of veterans' 
benefits claims, and the resultant seasoned body of case law, it is 
time to consider the added value of a second layer of Federal judicial 
appellate review.
    No doubt, continued bites at the apple, so to speak, will be sought 
by some, but at the end of the day, as the Supreme Court recently 
recognized:

          It is the Veterans Court, not the Federal Circuit, that sees 
        sufficient case-specific raw material in veterans' cases to 
        enable it to make empirically based, nonbinding generalizations 
        about ``natural effects.'' And the Veterans Court, which has 
        exclusive jurisdiction over these cases, is likely better able 
        than is the Federal Circuit to exercise an informed judgment as 
        to how often veterans are harmed by which kinds of notice 
        errors.

Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009).

    Indeed, I suggest it cannot be argued convincingly that a veteran, 
the taxpayer, or anyone is best served by waiting nearly 2 years to 
have a decision of the Veterans Court overturned by the Federal 
Circuit, only to wait approximately another 2 years to have the Federal 
Circuit overturned by the Supreme Court, as was the situation in the 
case of Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009), or to have a 
veteran wait 18 months to have a decision of the Veterans Court upheld 
by the Federal Circuit, only to wait another 9 months to have that 
decision overturned by the Supreme Court, as was the situation in the 
recently decided case of Henderson v. Shinseki, 131 S.Ct. 1197 (Mar. 1, 
2011). Because these cases involve issues of law, their impact is far 
reaching, often causing cases to be stayed, reconsidered, or 
readjudicated below. The extra step in the appellate process is unique, 
time consuming and costly, and worthy of examination for its continued 
need.
    We also support Commission review of whether the Court should have 
the authority to hear class action or associational standing cases. As 
the Committee is no doubt aware, the Court early on indicated that it 
may not have authority to permit a class action suit, but the actual 
basis for denying the class action to proceed in that case was that it 
would be unmanageable and unnecessary. See Lefkowitz v. Derwinski, 1 
Vet.App. 439 (1991) (noting that it ``appear[s]'' Court lacks authority 
to permit class action, and rejecting class action in that case as 
unmanageable and unnecessary), Judge Kramer concurring in result 
(noting that the Court has the authority to grant class action where 
all petitioners meet jurisdictional requirement, and agreeing that 
granting such status was unwise on policy grounds as stated by 
majority). Similarly, the Court has addressed associational standing 
and determined in a 4-3 decision that the Court did not have the 
authority to recognize such standing. See American Legion v. Nicholson, 
21 Vet.App. 1 (2007), Judges Kasold, Hagel, and Schoelen dissenting. I 
recommend both cases to the Committee and the Commission as providing 
an excellent starting point for identifying and analyzing the issues 
raised by class action suits and associational standing litigation, 
which include, inter alia, whether such authority is needed or even 
helpful, and what effect it might have on the timely judicial review of 
appeals.
    I do note, however, what appears to be a significant disconnect 
between the scope of the Commission study as laid out in the title of 
section 3, and the duties of the Commission as stated in subsection 
(b)(1) of section 3, which includes an evaluation of the 
``administrative'' as well as the ``judicial'' appellate review 
processes. The administrative appellate review process involves 
significantly different issues than the judicial appellate review 
process, and is not only beyond the scope as designated in the title of 
section 3, its inclusion within the duties of the Commission very well 
may place so much within the Commission's purview that it would not 
permit the detailed focus sought on either the administrative or the 
judicial appellate review process, particularly not in the time 
provided.
    Indeed, the differences between the administrative and judicial 
appellate review processes are huge. The administrative appellate 
review provided to the veteran is part and parcel of the claims 
adjudication process conducted by VA. The administrative appellate 
review includes a de novo review of the evidence, the benefit of the 
doubt in weighing the evidence, and the ability to submit additional 
evidence. It involves a symbiotic relationship between the Secretary 
and the veteran, with both parties working to maximize benefits for the 
veteran, as permitted by law. Perhaps most significantly, these 
administrative adjudications apply only to the case at hand and set no 
precedent or policy that must be used to decide future cases.
    Judicial appellate review, on the other hand, takes place only 
after the claim has been administratively adjudicated by VA. Judicial 
appellate review is limited to a review of the record upon which VA 
made its decision. Moreover, the parties (the Secretary and party 
seeking benefits) are adversaries, each arguing that the decision below 
was either correct or wrong, and that the remedy for any error should 
be reversal or remand. Judicial appellate review does not permit a 
substitute of the Court's view for the Board's fact finding, unless 
such fact finding is clearly erroneous. And, whereas administrative 
appellate review is focused solely on the application of law as 
interpreted by the Secretary in the individual case under 
consideration, judicial appellate review permits interpretations of the 
law by Federal judges appointed by the President upon the advice and 
consent of the Senate. In contrast to adjudications by VA, the Court's 
interpretations of law are precedential, and binding not only in the 
case at hand, but in all cases decided henceforth by the Secretary and 
the Board.
    Thus, to maintain integrity between the Department of Veterans 
Affairs claims adjudication process (including the administrative 
appellate review process) and the judicial appellate review process 
(which is entirely independent of VA and where the Secretary is one of 
the adversarial parties), and to permit focused and timely review of 
the judicial appellate review process, I recommend that subsection 
(b)(1) of section 3 be amended by deleting the words ``administrative 
and'', thus focusing the Commission's duties on evaluation of the 
judicial appellate review process, consistent with the title of the 
section. Should the Committee believe it is time to study the VA 
claims, administrative adjudication process, I would recommend a 
separate Commission be established for such study.
    On behalf of the judges of the Court, I thank the Committee for its 
consideration of our views on this proposed legislation.

                                 
                 Prepared Statement of Diana M. Rubens,
         Associate Deputy Under Secretary for Field Operations,
 Veterans Benefits Administration, U.S. Department of Veterans Affairs
    Mr. Chairman, Ranking Member McNerney, and Members of the 
Subcommittee, thank you for the opportunity to provide the Department 
of Veterans Affairs' (VA) views on pending legislation that would 
affect VA programs: H.R. 811, H.R. 1407, H.R. 1484, and H.R. 1647. I am 
accompanied today by the Acting Chairman of the Board of Veterans' 
Appeals, Steven Keller, and Assistant General Counsel Richard J. 
Hipolit.
                                H.R. 811
    H.R. 811, the ``Providing Military Honors for our Nation's Heroes 
Act,'' would authorize VA to reimburse a member of a veterans' service 
organization (VSO) or other organization approved by VA for 
transportation and other appropriate expenses incurred in connection 
with the voluntary provision of a funeral honors detail at a veteran's 
funeral in any cemetery, including a funeral honors detail requested by 
a funeral home. The bill as drafted would authorize VA to reimburse 
expenses for honor guards who perform at veteran funeral services, but 
its scope is not limited to honors performed at VA national cemeteries. 
While VA appreciates the bill's focus on supporting the provision of 
funeral honors, VA does not support the bill for the following reasons.
    The Department of Defense (DoD), not VA, provides funeral honors 
details for veterans' funerals. DoD is required by 10 U.S.C. 
Sec. 1491(a) to provide, upon request, a funeral honors detail at the 
funeral of any veteran. VA and DoD have successfully partnered to 
provide funeral honors at VA national cemeteries. Funeral honors at 
national cemeteries are provided by servicemembers, as well as by VSOs 
and individual volunteers on behalf of DoD. VSOs and individual 
volunteers may also perform this service at State veterans cemeteries 
and private cemeteries. It would be anomalous for VA to reimburse 
individuals who provide funeral honors details on behalf of DoD.
    Reimbursement by VA under H.R. 811 would duplicate reimbursement by 
DoD, which is currently authorized by statute to reimburse persons who 
participate in a funeral honors detail, other than a servicemember who 
is not in a retired status or an employee of the United States, with 
transportation and expenses or a daily stipend. These volunteers 
maintain their own log of volunteer hours and expenses. Because DoD is 
already authorized to reimburse honor guard personnel who are not 
otherwise being paid for their services, H.R. 811 is unnecessary.
    Additionally, H.R. 811 raises significant administrative issues for 
VA. To comply with H.R. 811, the National Cemetery Administration (NCA) 
would have to add or reassign cemetery operations staff to manage and 
verify the time and attendance records of our volunteers and reimburse 
them for conducting this DoD-administered program. Also, because no 
funds for this purpose have been identified or included in any VA 
budget request, reimbursement for this unanticipated expense would most 
likely have to be provided from NCA's Operations and Maintenance 
Account, which would divert funds from the essential activities of 
providing burial operations and maintaining the cemeteries as national 
shrines.
    Finally, by authorizing reimbursement for expenses incurred by one 
category of volunteers, H.R. 811 would create an inequity between them 
and other VA volunteers. Volunteers who provide essential services at 
our VA medical centers, assist families at committal services, place 
gravesite flags on Memorial Day, and perform landscaping at VA national 
cemeteries may feel their service is less valued because they receive 
no reimbursement for their expenses.
    VA keeps no data on the number of military funeral honors provided 
at VA or other cemeteries and defers to DoD for costs associated with 
reimbursement under H.R. 811.
                               H.R. 1407
    H.R. 1407, the ``Veterans' Compensation Cost-of-Living Adjustment 
Act of 2011,'' would mandate a cost-of-living adjustment (COLA) in the 
rates of disability compensation and dependency indemnity compensation 
(DIC) payable for periods beginning on or after December 1, 2011. The 
COLA would be the same as the COLA that will be provided under current 
law to Social Security benefit recipients, which is currently estimated 
to be an increase of 0.9 percent. (As a technical matter, we recommend 
the year referenced on page 3, line 11 of the bill be corrected to read 
``2011''.) This increase is identical to that proposed in the 
President's Fiscal Year 2012 budget request to protect the affected 
benefits from the eroding effects of inflation. VA supports the bill 
and believes that our veterans and their dependents deserve no less. VA 
estimates that enactment would result in benefit costs of $329 million 
for fiscal year 2012.
                               H.R. 1484
    H.R. 1484, the ``Veterans Appeals Improvement Act of 2011,'' would 
amend 38 U.S.C. Sec. 7104 to improve VA's appeals process and would 
establish a Veterans Judicial Review Commission to evaluate the 
administrative and judicial appellate review processes of veterans' and 
survivors' benefits determinations. As discussed below, section 2 of 
this legislation has a common theme with a provision in a draft bill 
Secretary Shinseki submitted to Congress in May 2010, and VA asks the 
Subcommittee to review that proposal in connection with H.R. 1484.
Section 2
    Section 2 of this bill would amend 38 U.S.C. Sec. 7104 to require 
that new evidence submitted by a claimant after filing a substantive 
appeal be submitted to the Board of Veterans' Appeals (Board), unless 
the claimant requests that the evidence be reviewed by a VA Regional 
Office (VARO) before being submitted to the Board. This new procedure 
would be applicable to evidence submitted on or after the date 90 days 
after the date of enactment.
    VA fully supports the basic concept behind section 2, namely the 
automatic waiver of agency of original jurisdiction (AOJ) consideration 
of evidence submitted by a claimant following perfection of an appeal 
to the Board, unless the claimant or the claimant's representative 
expressly chooses not to waive initial consideration by the AOJ. 
However, as currently drafted, section 2 would fall short of providing 
such an automatic waiver. Specifically, as explained in more detail 
below, the language of section 2 is inadequate in the following ways: 
(1) it addresses where evidence should be submitted instead of which 
office should consider it; (2) it fails to account for the fact that 
claimants' representatives, rather than claimants themselves, often 
submit evidence; (3) it fails to account for offices in VA, other than 
VAROs, that make decisions appealable to the Board; and (4) it fails to 
require that, if a claimant wants an AOJ, not the Board, to initially 
consider evidence, the claimant or representative must make that 
request when submitting the evidence.
    The establishment of an automatic waiver would improve the 
timeliness of appeals processing as a whole. With an automatic waiver 
provision the AOJ could, in the absence of other development 
requirements, transfer appeals more quickly to the Board following the 
receipt of a substantive appeal, spending less time responding to 
claimants who submit additional evidence after filing a substantive 
appeal.
    Currently, an AOJ may not transfer an appeal to the Board until it 
has made a decision based on all evidence in the file, including all 
new evidence. If a claimant submits new evidence after filing a 
substantive appeal, the AOJ prepares a multi-page supplemental 
statement of the case (SSOC), which largely reiterates content from the 
previously issued statement of the case. If the AOJ's prior decision is 
unchanged, the SSOC explains why the new evidence does not alter that 
decision.
    After sending a claimant an SSOC, the AOJ must allow the claimant 
an additional 30 days to respond. If the claimant responds with more 
evidence, the process of review, SSOC, and 30 days to respond is 
repeated. This back-and-forth cycle sometimes occurs several times, and 
many veterans are unaware that they are delaying the Board's review of 
their appeal simply by submitting new evidence. Furthermore, the new 
evidence submitted often has no bearing on the issue on appeal. For 
example, if a veteran must prove that a current disability is related 
to service, evidence of recent treatment for the disability, without 
any mention of the disability's origin, is immaterial to the appeal. 
Nevertheless, under current law, the AOJ must review the evidence, 
issue a SSOC, and provide 30 days for the claimant to respond. The 
submission of such evidence unnecessarily prolongs the appeals process 
without resulting in a changed outcome.
    The Board is already tasked with conducting a de novo review of all 
the evidence in the file. However, under current law, if new evidence 
is submitted directly to the Board without a waiver of initial 
consideration by the AOJ, the Board must remand the case to the AOJ to 
consider the new evidence in the first instance. With an automatic 
waiver, the Board would avoid time-consuming remands in cases when the 
appellants submit evidence directly to the Board without an explicit 
waiver of AOJ consideration, thereby getting final decisions to 
veterans more quickly and reducing the increased appellate workload 
caused by the reworking of remanded claims.
    As mentioned above, the language of section 2 is inadequate to 
establish an effective automatic waiver. VA therefore requests that the 
language of section 2 be replaced with a provision of a legislative 
proposal the Secretary of Veterans Affairs submitted to Congress on May 
26, 2010. VA's proposed language is better than that of section 2 for 
the following reasons.
    Section 2 would require that evidence submitted by a claimant after 
filing a substantive appeal be submitted to the Board. Directing 
claimants to submit evidence directly to the Board would not clearly 
permit the Board to consider such evidence in the first instance. 
Existing law precludes the Board's initial consideration of evidence 
submitted in connection with a claim, unless the claimant waives the 
right to initial consideration by the AOJ. Under existing case law, 
evidence must first be considered by the AOJ in order to preserve a 
claimant's statutory right under 38 U.S.C. Sec. 7104 to ``one review on 
appeal,'' which the Board provides on behalf of the Secretary. Given 
the current statutory scheme, to be effective, a waiver provision must 
permit the Board to review evidence without initial review by the AOJ, 
rather than address where the evidence may be submitted.
    VA also recommends that section 2 be expanded to apply to evidence 
submitted by both representatives and claimants, not just claimants. 
Claimants often provide evidence to their designated representatives 
for submission to VA. Expanding the automatic waiver provision to 
evidence submitted by representatives on behalf of claimants will 
ensure that the waiver applies to evidence submitted by 
representatives.
    Moreover, section 2 is directed toward VAROs only. However, initial 
decisions appealable to the Board are also made by other VA components, 
including NCA, VA's Office of the General Counsel, and the Veterans 
Health Administration. To better account for other offices in VA that 
make decisions appealable to the Board, and to make the waiver 
provision applicable to evidence submitted in connection with decisions 
made by those offices, the waiver should be directed at AOJ review of 
evidence, not VARO review. The term ``AOJ'' includes not only ROs, but 
also other VA components that make decisions appealable to the Board.
    Finally, VA also recommends revising section 2, to avoid 
inefficiencies in appeals processing, by clarifying that requests for 
initial AOJ review must be made concurrently with the submission of 
evidence. As currently drafted, section 2 would allow claimants to 
request AOJ review of new evidence they submit, at any time following 
the filing of a substantive appeal. If a claimant requested AOJ review 
after the case was transferred to the Board, the Board would have to 
return the case to the AOJ, possibly after having expended considerable 
resources in adjudicating the appeal. This result would be both 
inefficient and counter to the underlying purpose of the waiver 
provision.
    Therefore, VA recommends that section 2 of H.R. 1484 be replaced 
with the following language from VA's legislative proposal:

        AUTOMATIC WAIVER OF AGENCY OF ORIGINAL JURISDICTION REVIEW OF 
        NEW EVIDENCE.

          Section 7105 [of title 38, United States Code] is amended by 
        adding at the end the following new subsection:
          ``([e]) If, either at the time or after the agency of 
        original jurisdiction receives the substantive appeal, the 
        claimant or the claimant's representative submits evidence to 
        either the agency of original jurisdiction or the Board of 
        Veterans' Appeals for consideration in connection with the 
        issue or issues with which disagreement has been expressed, 
        such evidence will be subject to initial review by the Board of 
        Veterans' Appeals unless the claimant or the claimant's 
        representative, if any, requests in writing that the agency of 
        original jurisdiction initially review such evidence. Such 
        request for review must accompany the submission of the 
        evidence.''

    This provision of the Secretary's draft bill addresses each of VA's 
concerns with section 2 of H.R. 1484 while accomplishing its underlying 
purpose.
    Section 2 would have no measurable monetary costs or savings, but 
has the potential to expedite adjudication of appeals at both the AOJ 
and the Board if the draft statutory language is revised as 
recommended. Furthermore, amending 38 U.S.C. Sec. 7104 with the 
statutory language proposed by Secretary Shinseki would result in 
significant labor savings. VA currently issues more than 60,000 SSOCs 
per year. Enactment of the Secretary's proposal would eliminate the 
need to prepare many of these SSOCs, allowing the Veterans Benefits 
Administration to focus additional resources on more timely appeals 
processing. This would free up considerable resources in the VAROs and 
the Appeals Management Center to focus on key appeal activities such as 
promulgation of appeal grants and certification of appeals to the 
Board.
    This proposal would also prevent more than 1,600 remands from the 
Board per year for cases already before the Board in which a claimant 
submits additional evidence to VA but fails to waive initial AOJ 
consideration of that evidence. Under existing law, in such cases, the 
Board must remand the case to the AOJ for the issuance of a SSOC 
addressing the newly submitted evidence, unless the Board grants the 
claim in full. By eliminating these remands, the proposal would allow 
the Board to use this time instead to issue more final decisions. The 
potential benefits--better service to our veterans and improved 
performance of all VAROs--fully justify the enactment of this proposal 
as submitted to Congress on May 26, 2010.
Section 3
    Section 3 of H.R. 1484 would establish the ``Veterans Judicial 
Review Commission'' (Commission) to evaluate the administrative and 
judicial appellate review processes of veterans' and survivors' 
benefits determinations and make specific recommendations and offer 
solutions to improve the accuracy, fairness, transparency, 
predictability, timeliness, and finality of such appellate review 
processes, including a recommendation as to whether the Court of 
Appeals for Veterans Claims (Veterans Court) should have the authority 
to hear class action or associational standing cases.
    VA does not support section 3. The administrative and judicial 
appellate review processes have been the focus of extensive studies and 
Congressional hearings that have resulted in a number of 
recommendations. While VA appreciates the aims expressed in section 3, 
we believe the Commission would duplicate the ongoing work of VA, the 
Congress, VSOs, and others who are now able to engage in policy 
discussions aimed at improving the claims process.
    With regard to whether the Veterans Court should have the authority 
to hear class action or associational standing cases, such authority 
would not be beneficial because the outcome of each veteran's case 
depends largely on the specific facts of each case. Thus, class action 
suits would not increase efficiency by enabling the Veterans Court to 
deal with a large number of claims simultaneously. Furthermore, class 
actions are susceptible to collateral litigation over issues such as 
commonality, typicality, adequacy of counsel, and notice, diverting 
scarce judicial resources. Collateral litigation results in a loss of 
efficiency with respect to the resolution of individual claims. In 
addition, class actions are unnecessary because, under rules already in 
place, potential members of a ``class'' receive the benefit of a 
precedent decision of the Veterans Court, whether it controls because 
of identity of facts and issues, or due to a logical extension of the 
earlier decision. In the interest of economy and efficiency, the 
Veterans Court has often exercised its already existing authority to 
consolidate cases and to stay cases, where there are questions of law 
or fact common to multiple appeals. In this context, class action 
authority is unnecessary because it would be largely redundant.
    Section 3 would not appear to have any direct cost to VA as the 
Commission's expenses would not be paid out of VA's budget.
                               H.R. 1647
    H.R. 1647, the ``Veterans' Choice in Filing Act of 2011,'' would 
require VA to carry out a 2-year pilot program under which certain 
veterans may submit claims to any VARO. The veterans who would qualify 
for this privilege are those whose claims would otherwise be submitted 
to any one of five VAROs determined by the Secretary to be below 
average in performance. The bill would require VA to promptly notify 
each qualifying veteran of the opportunity to participate in the 
program.
    H.R. 1647 would also require VA to report to Congress the five 
VAROs selected on the basis of below average performance and the 
rationale for selecting them. Within 90 days after the pilot program's 
completion, VA would be required to submit to Congress a final report 
on the pilot program including recommendations with respect to the 
allocation of resources among VAROs.
    VA opposes this bill because conducting this pilot program would 
not benefit VA claimants by improving either the efficiency or quality 
of the VA benefit-claims process. Of primary importance is the danger 
that the program will create forum shopping. The program would permit 
claimants under the jurisdiction of one of the five VAROs selected to 
submit their claims to any VARO if they are dissatisfied or unhappy 
with the claim process or outcome at their ``home'' VARO, regardless of 
the reason for their dissatisfaction, so long as they would normally 
have to submit their claims to one of the five VAROs selected on the 
basis of below average performance. Information about which VARO is 
perceived to be best could easily be manipulated by Internet-driven 
rumor and opinion, rather than verified statistical information, 
further contributing to the notion that VA claimants should shop for 
the ``best'' VARO. The expectations about speed and outcomes created by 
such legislation would likely only frustrate claimants. As noted below, 
VA's energies are best spent on systemwide efforts to improve 
performance at all VAROs. VA has especially focused on VAROs that have 
historically been on the low end of critical performance standards.
    Under the existing statutory authority, VA distributes, or brokers, 
claims among VAROs based upon workload and other factors when necessary 
and feasible. VA determines whether to broker cases in or out of VAROs 
based upon various factors, including the allocation of workload and 
resources at those offices. If VA claimants were to determine where to 
file claims, many VAROs might not be equipped to handle the unexpected 
workload that would result. VAROs could not predict changing workload 
demands and sufficiently hire and train employees to timely adjust to 
these changes.
    This experimental pilot program would also interrupt VA's 
transformational efforts to reduce the claims backlog while achieving 
optimum quality. VA is undertaking numerous programs to investigate 
methods to improve claims-processing efficiency. In addition, VA has 
designated certain VAROs to have exclusive jurisdiction over specific 
types of claims. Examples of these types of claims are pension claims, 
radiation claims, and certain Agent Orange claims. This pilot would 
interrupt our efforts to assess the viability and success of VA's 
transformation efforts.
    VA also opposes this bill because of its potential negative impact 
upon the scheduling and conducting of medical examinations, which by 
necessity are scheduled in the medical center closest to the veteran's 
home. The claims file must be sent for review by the examiner. 
Currently, examiners and decision makers are co-located within the 
medical center and VARO of jurisdiction, but in a forum-shopping 
program, the examination could be conducted in a location far from the 
decisionmaking office. The additional movement of claims files that 
would be necessary under this bill would be inefficient and would 
create some risk of losing documents or entire files.
    H.R. 1647's requirement to promptly notify each qualifying veteran 
of the opportunity to file claims at any VARO would create an 
administrative challenge. After selecting the five VAROs with below 
average performance, VA would have to identify all of the veterans 
whose claims would otherwise be filed at one of those VAROs, even if 
they have not yet filed any claim with VA, just to notify them of their 
eligibility to participate in this pilot program.
    Finally, VA has very strong concerns about the concept that there 
would be five designated VAROs whose performance is ``below average.'' 
First, the nature of an average is such that there would always be some 
VAROs whose performance is above average and other VAROs whose 
performance is below average. That is inherent in the definition of an 
average. Furthermore, many factors may affect both the quality and 
production of a VARO at various times. This proposed pilot's 
implication to both claimants and VA employees is that the VAROs 
selected on the basis of below average performance are branded 
substandard. Creating such a high-profile negative designation would 
devastate employee morale and damage VA's extensive ongoing efforts to 
improve performance across the Veterans Benefits Administration so as 
to better serve veterans.
    VA cannot determine potential costs associated with H.R. 1647 due 
to the unavailability of data.
    This concludes my statement, Mr. Chairman. VA appreciates the 
opportunity to share our views on the proposed legislation, and we 
would be happy to entertain any questions you or the other Members of 
the Subcommittee may have.

                                 
                Prepared Statement of Kathryn A. Condon,
         Executive Director, Army National Cemeteries Program,
           Department of the Army, U.S. Department of Defense
                              INTRODUCTION
    Mr. Chairman, Ranking Member McNerney, and distinguished Members of 
the Subcommittee, thank you for the opportunity to provide the 
Department of the Army's views on H.R. 1441, H.R. 1627 and H. Con. Res. 
12.
    Arlington National Cemetery is both the most hallowed burial ground 
of our Nation's fallen and one of the most visited tourist sites in the 
Washington, DC, area. A fully operational national cemetery since May 
1864, Arlington National Cemetery presently conducts an average of 27 
funerals each workday--final farewells to fallen heroes from the fronts 
of Iraq and Afghanistan, as well as to veterans of World War II, the 
Korean conflict, Vietnam and the Cold War and their family members. 
While maintaining the honor, dignity and privacy of each graveside 
service, Arlington National Cemetery hosts approximately 4 million 
guests annually. This duality of purpose serves to bring the national 
shrine of Arlington National Cemetery, and the sacrifices of those 
buried there, closer to the American people. On behalf of the 
cemeteries and the Department of the Army, I would like to express our 
appreciation for the support that Congress has provided over the years.
                               H.R. 1441
    H.R. 1441 would amend title 38, United States Code, to codify the 
prohibition against the reservation of gravesites at Arlington National 
Cemetery. As drafted, H.R. 1441 would prohibit more than one gravesite 
per eligible veteran and would also prohibit gravesite reservations 
prior to the time of need with an exception for written ``requests'' 
for a reserved gravesite made prior to January 1, 1962, regardless of 
current eligibility requirements.
    Current Army regulations establish a ``one-gravesite-per-family'' 
policy. This rule has been in effect since 1961. One important element 
of Army policy is that the Army may allow exceptions to the ``one-
gravesite-per-family'' policy when strict adherence to the policy is 
not feasible. This policy is set forth at 32 CFR Sec. 553.18(a) and 
Army Regulation 290-5 Sec. 2-5(a). H.R. 1441, as drafted, does not, but 
in the Department's view should, provide the Secretary of the Army with 
the requisite authority to make an appropriately justified exception to 
the ``one-gravesite-per-family'' policy. The Army recommends modifying 
H.R. 1441 accordingly.
    Similarly, the Army currently prohibits reserving gravesites prior 
to time of need and does not honor gravesite reservations unless (1) 
the reservation was made in writing before the ``one-gravesite-per-
family'' policy was established, (2) an eligible person was interred 
before the one-gravesite-per-family policy was established, and (3) the 
person holding the reservation for the adjacent gravesite is eligible 
for interment at Arlington National Cemetery under current Army 
eligibility rules. This policy is set forth at 32 CFR Sec. 553.18 and 
Army Regulation 290-5 Sec. 2-5. This exception to the prohibition on 
reservations is necessary because prior to the ``one-gravesite-per-
family'' policy, individuals were not interred at depths that would 
accommodate two or three subsequent burials in the same gravesite like 
they are today.
    As drafted, proposed section 2410A(b) in H.R. 1441 reflects the 
Army's current policy prohibiting reservations. Section 1(c)(2) of H.R. 
1441, however, creates an exception to the prohibition on reservations 
for those who have a ``written request for a reserved gravesite [that] 
was submitted to the Secretary of the Army before January 1, 1962.'' 
This exception would alter current Army policy by allowing reservations 
for those with only a reservation request rather than an approved 
reservation before 1962. The requirement for a valid reservation, not 
just a request, is necessary to implement H.R. 1441.
    The Department has no objection to the reporting requirement 
contained in section 1(d) of H.R. 1441.
                               H.R. 1627
    H.R. 1627 would amend section 2409 of title 38, United States Code, 
to provide for certain requirements for the placement of monuments in 
Arlington National Cemetery, and for other purposes. As drafted, H.R. 
1627 codifies what is already Army policy regarding commemorative 
memorials at Arlington National Cemetery with one notable exception. 
Currently, ``commemorative monuments'' (monuments that commemorate an 
individual, group or event (in contrast to ``individual memorial 
markers'' authorized by 38 U.S.C. Sec. 2409)) may be placed in 
Arlington National Cemetery only after they are authorized by a joint 
or concurrent resolution of Congress. This policy and rule is 
promulgated at 32 CFR Sec. 553.22(l). As drafted, H.R. 1627 does not 
address the Army's current policy requiring joint resolution by 
Congress before a new ``commemorative monument'' is authorized to be 
placed within Arlington National Cemetery. The Department would not 
oppose H.R. 1627 if amended to clearly articulate the requirement that 
Congress authorize, by joint or concurrent resolution, all 
``commemorative monuments'' prior to placement in Arlington National 
Cemetery.
    The Army does not read the proposed amendment to Sec. 2409 to 
alter, or in any way affect, the placement of ``individual memorial 
markers'' for servicemembers and veterans pursuant to Sec. 2409.
                            H. CON. RES. 12
    H. Con. Res. 12 expresses the sense of Congress that an appropriate 
site on Chaplains Hill in Arlington National Cemetery should be 
provided for a memorial marker to honor the memory of Jewish chaplains 
who died while on active duty in the Armed Forces of the United States. 
Reliance on a Congressional resolution to authorize placement of a 
commemorative monument at Arlington National Cemetery is consistent 
with current Army policy. Although H. Con. Res. 12 grants the Secretary 
of the Army ``exclusive authority to approve the design and site of the 
memorial marker,'' because the language does not preclude or address 
the Army's current policy to consult with the Commission of Fine Arts, 
the Army would still require the proposed commemorative monument to 
undergo review by the Commission.
    Although the Department does not take a position on the merits of 
this or any other proposed commemorative monument prior to 
Congressional authorization, the Army stands ready to execute the 
intent of Congress upon passage of the concurrent resolution.
                               CONCLUSION
    The Department, as a general proposition, supports the codification 
of current Army rules and policy pertaining to the operation and 
management of Arlington National Cemetery and the U.S. Soldiers' and 
Airmen's Home National Cemetery. H.R. 1411 and H.R. 1627 both attempt 
to codify existing rules and or policy. The Department does not oppose 
the proposed codifications (H.R. 1411, H.R. 1627), subject to points of 
clarification discussed above. The Army has no objection to H. Con. 
Res. 12 and would be prepared to facilitate Congressional intent 
consistent with current policy if enacted.
    Mr. Chairman, this concludes my testimony. I will gladly respond to 
any questions that you or the Subcommittee Members may have.

                                 
               Statement of Paralyzed Veterans of America
    Mr. Chairman and Members of the Subcommittee, on behalf of 
Paralyzed Veterans of America (PVA), we would like to thank you for the 
opportunity to submit a statement for the record regarding the proposed 
legislation. We appreciate the fact that you continue to address the 
broadest range of issues with the intention of improving benefits for 
veterans. We particularly support any focus placed on meeting the 
complex needs of the newest generation of veterans, even as we continue 
to improve services for those who have served in the past.
    PVA members represent one of the segments of the veteran population 
that benefit most from the many ancillary benefits provided by VA. 
Without the provision of benefits such as Special Monthly Compensation 
(SMC), our members, and other severely disabled veterans, would 
experience a much lower quality of life and would in many cases be 
unable to live independently.
                             H.R. 811, the
       ``Providing Military Honors for Our Nation's Heroes Act''
    PVA does not oppose H.R. 811, the ``Providing Military Honors for 
our Nation's Heroes Act.'' This legislation would authorize the 
Secretary of Veterans Affairs (VA) to reimburse a member of a veterans' 
service organization or other organization approved by the Secretary 
for transportation expenses incurred while volunteering services during 
funeral honors detailed to a veteran and funeral honors requested by a 
funeral home.
    This bill would also authorize volunteers from veterans' service 
organizations (VSOs) and other organizations to be reimbursed for 
expenses associated with travel and uniform cleaning. Current law does 
not reimburse members of the VSOs for service without having military 
representation. This simply means that VSOs and other volunteers can 
assist the military by providing color guard details and be reimbursed 
for expenses incurred. While PVA has no resolution from our membership, 
we do not oppose this legislation.
                             H.R. 1407, the
    ``Veterans' Compensation Cost-of-Living Adjustment Act of 2011''
    PVA supports H.R. 1407, the ``Veterans' Compensation Cost-of-Living 
(COLA) Adjustment Act of 2011,'' that would increase, effective as of 
December 1, 2011, the rates of compensation for veterans with service-
connected disabilities and the rates of dependency and indemnity 
compensation (DIC) for the survivors of certain disabled veterans. This 
would include increases in wartime disability compensation, additional 
compensation for dependents, clothing allowance, and dependency and 
indemnity compensation for children. This legislation also includes 
language specific to rounding each dollar amount increased, if not a 
whole dollar amount, shall be rounded to the next lower whole dollar 
amount.
    For the past 2 years, there has been no increase in compensation or 
DIC rates due to the Social Security index not increasing. While our 
economy has been in disorder, veterans personal finances have been 
affected by rising costs of essential necessities to live from day-to-
day maintaining a certain standard of quality of life. PVA supports 
enactment of this legislation so our veterans receive COLA, this year 
but also urges Congress to enhance language to include an automatic 
annual COLA, compensation for non-work disability, and the loss of 
quality of life.
    Mr. Chairman, PVA also urges Congress to consider the position of 
The Independent Budget (IB) to implement the recommendation made by the 
Dole-Shalala Commission, Institute of Medicine (IOM), and the Veterans 
Disability Commission (VDBC) to enhance disability compensation for 
non-work disability and the loss of quality of life. Specifically, non-
work refers to the veterans limited ability to engage in normal 
functions and activities other than work such as social, physical, and 
psychological. This issue needs to be addressed so our Nations veterans 
can be compensated from the impact on loss of quality of life.
                               H.R. 1441
    PVA does not oppose H.R. 1441, legislation that would codify the 
prohibition against the reservation of gravesites prior to death at the 
Arlington National Cemetery. This bill would also prohibit multiple 
gravesites from being reserved for a servicemember or veteran who is 
eligible for interment, being one gravesite per family.
      H.R. 1484, the ``Veterans Appeals Improvement Act of 2011''
    H.R. 1484, the ``Veterans Appeals Improvement Act of 2011'' seeks 
to improve the appeal process. Section 2 of the bill would allow a 
claimant to submit new evidence to support an appeal case that was 
previously filed, directly to the Board of Veterans' Appeals (Board) 
and not to the claimants VA Regional Office. This legislation does 
allow for the claimant to request VA Regional Office consideration of 
the new evidence, if the claimant prefers.
    PVA strongly supports approval of this legislation, which would be 
very beneficial to the veteran as well as the Board. It would allow a 
claimant to submit new or supplemental evidence directly to the Board 
instead of submitting it and requiring numerous other steps at a VA 
Regional Office. Submitting to a VA Regional Office is very time 
consuming and initiates long delays in the adjudication process.
    While we support section 2 of the bill, PVA does not support other 
sections as written. At this time we question whether the creation of 
another study is warranted or appropriate.
                               H.R. 1627
    H.R. 1627, provides clarification on the requirements for placement 
of monuments in Arlington National Cemetery. This bill will clarify 
specific requirements related to the purpose and type of monument 
requested. In addition, the legislation outlines the requirements and 
authorization process in which sponsoring individuals or organizations 
put forth a request. While PVA does not have a position, we do not 
oppose this legislation.
        H.R. 1647, the ``Veterans Choice of Filing Act of 2011''
    H.R. 1647, the ``Veterans Choice of Filing Act of 2011,'' directs 
the Secretary of Veterans Affairs to carry out a pilot program under 
which certain veterans may submit claims for benefits under laws 
administered by the Secretary to any regional office of the Department 
of Veterans Affairs. This particular pilot program would be authorized 
for 24 months and would allow the veteran who is served by a poor 
performing VA regional office the option to submit a claim for benefits 
to any regional office of their choosing. In the proposal, five 
regional offices would take part in the program.
    PVA believes this legislation has very few specifics regarding the 
purpose of the program and implementation. It appears the bill is 
intended to gauge improvements of certain poor performing VA regional 
offices.
    While PVA does not oppose this bill, we cannot support it at this 
time. We have been working with numerous VSOs and VBA to 
comprehensively improve and streamline the claims processing system. 
Currently, VBA has numerous pilot programs under way as well as a 
redesigning measure of the IT systems used to initiate the claims 
process. PVA believes while good measure is being taken, there is a 
possibility that by inserting another pilot program may interfere with 
VBA's ability to manage their workload and achieve results.
    PVA would like to work with the Subcommittee and other VSOs to 
better develop initiatives that address the current needs of our 
veterans while measures are being met in a performing claims processing 
system. It is important that VBA continues to enhance, develop, and 
deploy the VBMS program. The program we look forward to is one that 
will allow timeliness and quality to be met in one system. PVA as well 
as other VSOs want quality control programs to be a priority. PVA 
stands ready to assist in achieving these benchmarks.
                            H. Con. Res. 12
    Finally, H. Con. Res. 12, would articulate the intent of Congress 
to honor the memory of the Jewish chaplains who have died while on 
active duty with the placement of a memorial marker on Chaplains Hill 
in Arlington National Cemetery. Currently, PVA does not have a 
position, but does not oppose this legislation.
    Mr. Chairman and Members of the Subcommittee, PVA would once again 
like to thank you for the opportunity to provide our views on veterans' 
legislation. We look forward to working with you to continue to improve 
these benefits for our veterans.

                                 
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