[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898, AND
H.R. 2349
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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
__________
JULY 7, 2011
__________
Serial No. 112-22
__________
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
__________
July 7, 2011
Page
Legislative Hearing on H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898,
and H.R. 2349.................................................. 1
OPENING STATEMENTS
Chairman Jon Runyan.............................................. 1
Prepared statement of Chairman Runyan........................ 32
Hon. Jerry McNerney, Ranking Democratic Member................... 2
Prepared statement of Congressman McNerney................... 33
Hon. Alcee L. Hastings........................................... 3
Prepared statement of Congressman Hastings................... 33
Hon. Gus M. Bilirakis............................................ 5
Hon. Timothy J. Walz............................................. 5
WITNESSES
U.S. Department of Veterans Affairs, Thomas Murphy, Director,
Compensation Service, Veterans Benefits Administration......... 23
Prepared statement of Mr. Murphy............................. 48
______
American Federation of Government Employees, AFL-CIO, and AFGE
National Veterans Affairs Council, Jimmy F. Sims, Jr., AFGE
Local 1738 Steward, and Rating Veterans Service Representative,
Veterans Benefits Administration Regional Office, Winston-
Salem, NC, U.S. Department of Veterans Affairs................. 13
Prepared statement of Mr. Sims............................... 43
American Legion, Ian de Planque, Deputy Director, National
Legislative Commission......................................... 9
Prepared statement of Mr. de Planque......................... 36
Disabled American Veterans, Jeffrey C. Hall, Assistant National
Legislative Director........................................... 10
Prepared statement of Mr. Hall............................... 38
Enlisted Association of the National Guard of the United States,
Al Garver, Executive Director.................................. 12
Prepared statement of Mr. Garver............................. 42
National Organization of Veterans' Advocates, Inc., Richard Paul
Cohen, Esq., Executive Director................................ 15
Prepared statement of Mr. Cohen.............................. 46
Veterans of Foreign Wars of the United States, Raymond Kelley,
Director, National Legislative Service......................... 7
Prepared statement of Mr. Kelley............................. 35
SUBMISSIONS FOR THE RECORD
Paralyzed Veterans of America, statement......................... 50
Reserve Officers Association of the United States, and Reserve
Enlisted Association of the United States, joint statement..... 51
MATERIAL SUBMITTED FOR THE RECORD
Hon. Eric K. Shinseki, Secretary, U.S. Department of Veterans
Affairs, to Hon. Jon Runyan, Chairman, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, letter dated
September 6, 2011, providing views for H.R. 2349............... 54
Thomas J. Murphy, Director, Compensation and Pension Service,
Veterans Benefits Administration, U.S. Department of Veterans
Affairs, to Director (00/21), All VA Regional Office Centers,
Fast Letter 10-51, dated
November 22, 2010.............................................. 56
LEGISLATIVE HEARING ON H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898, AND
H.R. 2349
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THURSDAY, JULY 7, 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 2:50 p.m., in
Room 334, Cannon House Office Building, Hon. Jon Runyan
[Chairman of the Subcommittee] presiding.
Present: Representatives Runyan, Lamborn, Buerkle,
McNerney, Barrow, and Walz.
Also present: Representatives Bilirakis and Hastings.
OPENING STATEMENT OF CHAIRMAN RUNYAN
Mr. Runyan. Good afternoon, the Legislative Hearing on H.R.
1025, H.R. 1826, H.R. 1898, H.R. 923, and H.R. 2349 will come
to order. I want to thank you all for attending today's
hearing.
As the first order of business, I ask unanimous consent
that all Members present be allowed to sit at the dais, and
hearing none opposed so ordered.
I realize that it was a short turn around time for the
witness's invitations to this hearing due to the recent holiday
we had.
With that, however, we are disappointed in the late
submission of testimony by the U.S. Department of Veterans
Affairs (VA), as this is becoming a habit on their part. And
even in their written testimony they have not submitted any
statement on H.R. 2349.
I am hopeful that the VA will be able to provide us with
the written testimony on that bill by the close of business on
Monday, July 11th, so that we might be able to weigh the VA's
input before the next mark up meeting of the Subcommittee.
[The VA subsequently provided views to the Committee on
September 6, 2011, which appears on p. 54.]
Mr. Runyan. Before I recognize the Ranking Member, Mr.
McNerney, and other Members of the Subcommittee, I wanted to
briefly touch on H.R. 2349, which I have introduced.
H.R. 2349, the ``Veterans Benefit Training Act Improvement
of 2011,'' aims to improve the benefit claims process through
focusing on individual training and skills assessment. The bill
creates an individualized training program for all employees
and managers who process or supervise the processing of
disability claims.
Annually these members would take the test and assess their
skills related to the claims processing.
Following the test, the VA would create an individualized
training program for each employee who took the test. The
individualized program will focus on areas of the test where
the employees showed the greatest deficiency or need for
improvement. The focus on the individual deficiencies would
avoid redundant, blanket training that many employees already
endure.
There is no reason why an employee of 20 years should be
taking the same training as an employee who has been in the VA
for only 2 years.
I hope that by establishing this program, we are able to
encourage employees and managers alike to slow down and do the
claims right the first time. Improving the number of claims
sent out the door is not enough if the veteran is continually
seeing mistakes being made on his claim. Quality must be
improved, and the only way to improve quality is to make sure
the VA employees are trained properly.
While I understand that some believe this bill is very
similar to the certification testing that Congress required a
few years ago, it is different and needed because it provides
individualized metrics and requires follow through with the
training retesting necessary to be truly effective.
I ask all of today's witnesses to summarize your written
statement within the 5 minutes allotted, and without objection
each written statement will be made part of the hearing record.
Before I begin my testimony, I will now yield to the
distinguished Ranking Member from the great State of
California, Mr. McNerney, for any remarks.
[The prepared statement of Chairman Runyan appears on p.
32.]
OPENING STATEMENT OF HON. JERRY McNERNEY
Mr. McNerney. Thank you, Mr. Runyan, I appreciate the
introduction.
Today we are going to consider five bills, the impact of
the legislation, and explore some of the what will come out if
we do pass those bills.
We are going to take up H.R. 923, H.R. 1025, H.R. 1826,
H.R. 1898, and H.R. 2349.
The first one of those, the ``Pension Protection Act of
2011,'' H.R. 923, was introduced by my good friend and
colleague, Alcee Hastings of Florida, and this bill and
prohibit the VA from counting casualty losses and pain and
suffering payments as income for the purpose of determining
eligibility for non-service-connected pension benefits.
I think this is a worthwhile bill, it is on track from a
policy perspective, and I look forward to advancing this to the
full Committee.
The second bill on today's agenda, H.R. 1025, sponsored by
Mr. Walz, again, a good friend and colleague, a hard working
man who always has the interests of veterans at hand, would
grant honorary veteran status to retired members of the Guard
and Reserve who completed 20 years of service.
I support the bill, but I do understand there are
reservations concerning moving the envelope on what type of
service accords veteran status as outlined in the VA testimony
and with some of the veterans service organizations (VSOs).
The next one is H.R. 1826, introduced by our colleague, Mr.
Bilirakis, would provide criminal penalties against any person
who solicits, contracts for, charges, or receives fee or
compensation from a veteran for advice on how to file a
benefits claim or the preparation, presentation, or prosecution
of a claim before the date of which a notice of disagreement is
filed and then proceeding on that claim.
Our Nation's veterans have sacrificed so much that we need
to protect them from those kind of bad actors looking to take
advantage of the benefits that they have earned and deserve;
however, I have heard concerns that this bill may create
unintended negative effects on veterans seeking help from
available resources as well as whether imposition of criminal
provisions are necessary in the light of current law and
regulations--or are even realistically enforceable.
The next is H.R. 1898, the ``Veterans Second Amendment
Protection Act,'' sponsored by Mr. Denny Rehberg of Montana,
would require that a judicial authority adjudicate a veteran or
other beneficiary in need of fiduciary assistance as mentally
defective for the purposes of reporting to the Department of
Justice (DOJ) the national instant background check system
instead of the current system, which requires VA to report
these individuals to the National Instant Check System (NICS).
The final piece of legislation, H.R. 2349, the ``Veterans'
Benefits Training Improvement Act,'' is your bill, Mr.
Chairman, which attempts to hold the Veterans Benefits
Administration (VBA) to greater testing and training
requirements.
I think you have the best interest of our veterans in mind,
nonetheless I have concerns that its provisions may be
duplicative or run counter to the law on testing certification
and training as established in P.L. 110-389; however, I
understand that the VA reports that it received the bill too
late in the time frame to provide views, and I want the
Subcommittee to have the benefit of all stakeholders before
making a final decision on this measure.
These are all worthwhile measures, they deserve
consideration by the Subcommittee, and I thank all the Members
for their thoughtful legislation, and I thank our esteemed
witnesses for joining us today, and I look forward for your
testimony. I thank you again and yield back.
[The prepared statement of Congressman McNerney appears on
p. 33.]
Mr. Runyan. Thank you, Mr. McNerney, and the other three
Members up here on the dais all have a piece of legislation
that they sponsored, so I wanted to open it up to opening
statements. Mr. Hastings?
OPENING STATEMENT OF HON. ALCEE L. HASTINGS
Mr. Hastings. Thank you, Mr. Chairman. I have to go and
help prepare us a rule at the Rules Committee, and that is
going to cause me to stay under the 5-minute limit.
But any way, Chairman Runyan, Ranking Member McNerney,
thank you all as well as the rest of the Members of this
Subcommittee, and I thank my colleague Mr. Walz for letting me
precede him.
I especially am grateful, Mr. Chairman, to the panel that
you have, panels one and two, and I met some of the gentlemen
and know some of the organizations that they work with, and I
am very pleased that they can be here with you today.
I also would like to thank your staff and the Minority
staff for accommodating those on the staff that work with me,
and also for the incredible work that you all do here in this
Committee on behalf of our Nation's veterans.
Exactly a year ago I testified before this Committee, or
the Subcommittee on this Veterans' Pensions Protection Act of
2010. The bill was marked up, forwarded to the Committee on
Veterans' Affairs by voice vote.
I am grateful now for the opportunity to bring it once
again, and I am saddened by the fact that the Senate didn't
consider the bill before Congress adjourned last year, and I am
hopeful this year that they will.
I will accept your admonition, Mr. Chairman, and have any
full statement introduced into the record, but I do want to say
what happened here that gave rise to the office that I work
with coming to this veteran's aid.
His name is Kerry Scriber and he is a Navy veteran with
muscular dystrophy. He had his pension abruptly canceled, and
how it happened, he didn't break the law nor did he commit any
crime.
In March of 2008 Mr. Scriber was hit by a truck when
crossing a street in his wheelchair with his service dog on his
way to the pharmacy. He was thrown 10 feet in the air,
witnesses describe it as absolutely remarkable that he
survived, he suffered broken bones and teeth, and his service
dog was injured and his wheelchair was destroyed.
He reported the incident to the VA, and when assessing his
circumstances after he received an award for his damages, his
pension was summarily rejected, and he made every effort that
he could before it came to the attention of the office in West
Palm beach that I represent. Then staff got involved, I got
involved, the newspapers got involved and I wrote to VA,
sometimes not hearing back from them, talked personally with
then Secretary Shinseki, as well as wrote letters to him, and
they didn't change their policy nor did they resolve Mr.
Scriber's benefits for a whole year.
Now, I understand that the VA faces a whole lot of
challenges and they are going to face a whole lot more. As you
all know better than I, with servicemembers that are going to
be returning from the battle field throughout the world, but I
feel, and I am sure you do Mr. Chairman and Ranking Member and
all the Members of this Subcommittee, that we must do
everything in our power to ensure that our veterans have the
benefits they rightly deserve.
I am distraught that the VA can move so expeditiously to
cancel somebody's pension when they are an unemployed and
disabled veteran without notice, and I feel they have a moral
obligation to undertake to do better.
I have stayed within 5 minutes, Mr. Chairman. My full
statement is going to be available for the record, and I
genuinely am appreciative of you and the Subcommittee for
having an opportunity to present.
[The prepared statement of Congressman Hastings appears on
p. 33.]
Mr. Runyan. Thank you for your words, Mr. Hastings.
Mr. Bilirakis, I believe you are prepared for an opening
statement of 5 minutes.
OPENING STATEMENT OF HON. GUS M. BILIRAKIS
Mr. Bilirakis. Thank you, Mr. Chairman, I appreciate it
very much. Thanks for allowing me to sit on the Committee
today.
I am honored that a piece of legislation that I have
introduced and I have been an advocate for since the 111th
Congress is on today's schedule.
My bill, H.R. 1826, would reinstate criminal penalties on
any individual charging veterans unauthorized fees for claims
before the VA. It is already illegal to charge veterans in
conjunction with filing a benefits claim to the VA, so we are
not changing the law here, we are just adding penalties;
however, as I said, no penalty exists for individuals who
unlawfully charge for such claims, and this has happened
several times in my district. Our veterans are being taken
advantage of.
While many VSOs help veterans to file their claims free of
charge, veterans are often unaware that this benefit exists
thereby opening the door for con artists to charge hundreds or
even thousands of dollars each time a veteran files a claim.
My bill would simply make this offense punishable by up to
1 year in prison or fines.
The VA must have the tools necessary to stop crooked
businesses from preying on our disabled veterans.
This bill does not change veterans current rights to hire
counsel for general advice about benefits or use any accredited
entity for preparation, presentation, or prosecution of a
claim. This is happening quite a bit and it must stop,
Mr. Chairman, again, we are not changing the law, we are
just making it enforceable by adding the legal penalties
because there is no prosecution currently.
Thank you very much, and I yield back the balance of my
time.
Mr. Runyan. Thank you very much, and I believe Mr. Walz
also has an opening statement.
OPENING STATEMENT OF HON. TIMOTHY J. WALZ
Mr. Walz. Well, thank you, Mr. Chairman. I would like to
take a minute to commend both you and the Ranking Member, as
well as the Majority and Minority staff for what I consider to
be a great work ethic in this Subcommittee, a sense of urgency
to get things done, and the pace of works that we are moving
things. I am very appreciative of that. I think the
understanding that it is required of us by our veterans and you
are certainly taking that seriously, so thank you for that, and
thank you for the opportunity to bring this piece of
legislation forward.
H.R. 1025, as many of you know, is a veteran status bill,
and I think the Ranking Member brought up some very good
points, but this is about recognizing the men and women of the
Reserve components, who take the very same oath as our active-
duty counterparts who are asked to do the same physical
training standards and job training standards, who are held to
the same Uniform Code of Military Justice (UCMJ) requirements,
and who on any given day could and are often called to duty.
Their sacrifice of time and energy for this Nation is not
questioned, but I think something that many of us have been
keenly aware of, the public maybe not so much is, is that while
these people can serve 20 years doing this never being called
for a period of 180 days or more denies them only one thing,
they are eligible for the GI Bill, they are eligible for many
veterans benefits, the one thing they are not eligible for is
the official status of being called a veteran.
This piece of legislation does not add any benefits, it
scored at a zero cost, but I would argue that not doing so the
cost to our Nation is to not honor that service the way we
should, and I understand the concerns and I thank the VSOs who
have worked on this.
I understand the concerns about differentiating or this
very hypersensitive to setting precedence when it comes to
veterans, but I think among veterans it is very clear, and each
honors the other for their service, and inside that sisterhood
and brotherhood of arms there is a clear understanding of the
respect and the difference given to people in combat as well as
those who supported that combat to make it possible to be done.
And with that this piece of legislation does nothing more
than change the status in title 38 of veterans of those retired
Guard components who have completed 20 or more years of
service, but not considered veterans.
And many of the people in this room understand for many,
many years many of us in the Reserve component did many tours
of 179 days, and that was on purpose to not get to the 180th
day even though it was 179 days, a day off, and then another
179 days, and I think the issue here is one of correcting an
injustice of setting the record straight amongst those who have
served and conferring that status of veteran.
I think there is a great attention to detail amongst
veterans that if someone says you were awarded two Army
achievement metals, if that is untrue the person would say, no,
one Army achievement metal and one commendation metal or
whatever it might be. We are very clear about that service.
This case is you have a lot of veterans, they did 20 years,
and I would give the example of this, there were many honorable
professional soldiers who came and trained me, and because I
was called to a period of service I am considered a veteran and
they are not. That is an injustice and that is wrong and I
think this piece of legislation straightens that out.
I appreciate the opportunity to have it heard, Mr. Chairman
and the Ranking Member, as I said, and I look forward to the
testimony of some of the concerns or anything that could be put
in to alleviate any of those concerns.
And, I yield back, Mr. Chairman.
Mr. Runyan. Thank you, Mr. Walz, for your personal insight
on this and your passion. It is obviously something, as you
said in your statement, that has been taken advantage of to the
demise of our veterans, so thank you for that.
With that I will ask the first panel to come please step
forward.
Today we have with us Mr. Raymond Kelley representing the
Veterans of Foreign Wars (VFW), Mr. Ian de Planque from the
American Legion, Mr. Jeffrey Hall from the Disabled American
Veterans (DAV), Mr. Al Garver from the Enlisted Association of
the National Guard of the United States (EANGUS), Mr. Jimmy
Sims of the American Federal of Government Employees (AFGE),
and Mr. Richard Cohen representing National Organization of
Veterans' Advocates (NOVA).
Mr. Kelley, you are now recognized for 5 minutes for your
statement.
STATEMENTS OF RAYMOND KELLEY, DIRECTOR, NATIONAL LEGISLATIVE
SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; IAN DE
PLANQUE, DEPUTY DIRECTOR, NATIONAL LEGISLATIVE COMMISSION,
AMERICAN LEGION; JEFFREY C. HALL, ASSISTANT NATIONAL
LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; AL GARVER,
EXECUTIVE DIRECTOR, ENLISTED ASSOCIATION OF THE NATIONAL GUARD
OF THE UNITED STATES; JIMMY F. SIMS, JR., RATING VETERANS
SERVICE REPRESENTATIVE, VETERANS BENEFITS ADMINISTRATION
REGIONAL OFFICE, WINSTON-SALEM, NC, U.S. DEPARTMENT OF VETERANS
AFFAIRS, AND AFGE LOCAL 1738 STEWARD, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AND AFGE NATIONAL VETERANS
AFFAIRS COUNCIL; AND RICHARD PAUL COHEN, ESQ., EXECUTIVE
DIRECTOR, NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC.
STATEMENT OF RAYMOND KELLEY
Mr. Kelley. Thank you, Mr. Chairman, thank you Members of
the Subcommittee.
On behalf of the 2.1 million members of the Veterans of
Foreign Wars and our auxiliaries, thank you for the opportunity
to testify today.
My testimony provides VFW's opinion on all the bills that
are being heard today, but due to time I think I will just
refer to three of them.
The VFW strongly supports H.R. 1025, which would give men
and women who choose to serve our Nation in the Reserve
component the recognition their service demands.
So thank you, Mr. Walz, for your advocacy on this issue.
You understand better than most that many who serve in the
National Guard and Reserve are in a position that train for and
support the deployments of their active-duty comrades to make
sure the unit is fully prepared when called upon.
Unfortunately, some of these men and women serve at least 20
years and are now entitled to retirement pay, TRICARE, and
other benefits, but are not considered a veteran according to
the letter of the law.
It is time to provide the respect that has been earned for
so many years of preparing for and supporting the defense of
our Nation.
This bill is also supported by the Military Coalition,
which is made up of 34 organizations with a member
representation of 5.5 million servicemembers, their families,
and veterans throughout the United States.
The Veterans of Foreign War strongly supports H.R. 1826,
which would make it a crime for individuals or companies to
charge veterans for assistance in applying for disability
benefits. Federal law prohibits charging fees for a disability
claim, but VA is currently unable to enforce the law as there
are no penalties or fines imposed. This bill would make it a
misdemeanor with penalties and up to 1 year in prison.
Protecting our veterans from individuals and companies who
are profiteering from their service and sacrifice will ensure
the veterans interest are the only interest considered when a
disability claim is filed.
Chairman Runyan, thank you for seeing the importance of
producing quality disability claims. The VFW agrees that to
successfully reduce the backlog and to fix the claims
processing system, producing a quality claim the first time is
a critical part of that success. Your bill, H.R. 2349, begins
the task of ensuring VA employees who produce claims have the
core competencies and retain those competencies in an
occupation that is always changing by evaluating their skills;
however, much like the Employee Certification Act of 2008, now
section 7732A of title 38, this bill is a container that will
be filled with a VA solution.
As we have found with the Employee Certification Act, that
training solution has not been beneficial to improving quality
claims. The VFW's concern is that VA's solution will not be
geared towards truly improving quality, but because of the
constant pressure VA is under to reduce the backlog. The
training that will be developed will likely only conform to law
failing to achieve the goal of ensuring that claims processors
have the tools they need to produce quality work.
A more specific evaluation and training system is needed to
ensure that mutual goals of increasing quality claims. To do
this VFW believes the training and evaluation should be based
on the findings of the Systematic Technical Accuracy Review
system or STAR. Each month STAR reports on the quality of each
regional office. To truly improve quality, training should be
ongoing and based on the findings of the STAR report and
conducted monthly to correct deficiencies.
I don't think any of us in employment would like to wait
till the end of the year to find out what we are doing wrong
and then be taught how to correct it. We all want to do the job
right as we are moving along, and doing it this way would take
that into account.
Tying quality assurance with quality control will ensure
that VA employees are being trained on issues that have
negatively impacted the quality of claims. Also, the VFW
suggests that the report to Congress should have an explanation
of how the assessments were conducted. This explanation should
include the types of assessment that were conducted and who was
responsible for the evaluations. Basing success of training on
assessment results alone will not provide a full picture of the
quality of the training.
This concludes my testimony, I will be happy to answer any
questions at this time.
[The prepared statement of Mr. Kelley appears on p. 35.]
Mr. Runyan. Thank you very much, Mr. Kelley.
Mr. de Planque.
STATEMENT OF IAN DE PLANQUE
Mr. de Planque. Thank you Chairman Runyan and Ranking
Member McNerney and Members of the Subcommittee.
You already have our positions on the pieces of
legislation. I really just want to take a minute or 2 to
comment largely on H.R. 2349, your bill, Mr. Chairman, the
``Benefits Training Improvement Act.''
At the American Legion, we are very excited for going
towards the area of having real consequences for identifying
these errors. We talked about it last time when we were here
talking about problems within regional offices, we talked about
that a lot, like not seeing consequences for VA. This bill does
appear to have consequences for VA. Look, if there is a problem
then here is the solution. Set up a program that is going to
address that.
Our experiences from having dealt with and spoken with VA
employees throughout the time address one of the things that
you mentioned earlier, the redundant training that if I am a
20-year veteran and I have had the training for the last 20
years on the exact same thing, I should be getting training on
things that are going to matter to me.
Our main concerns that we have are in the implementation,
how this is going to work with the existing testing
requirements and certification requirements that are already
there.
We are willing to come forward to participate as a
stakeholder to work through these issues. We want to recognize
that that is there.
We use the example that when you are in a math class as a
child and you take a test and if you fail a question on
binomial equations, then your teacher knows you need to go back
and study binomial equations. If half the class is failing,
that then the teacher knows the entire class needs a remedial
thing on this.
This seems to be missing in some way, or if it is there it
is not apparent to any of the stakeholders that something like
this is working in the VA with going through the claim system
when you have not just the STAR as my colleague, Mr. Kelley
mentioned, but also the common errors that are cited by the
courts that they are finding the common errors that are found
at the Board of Veterans' Appeals and at the Appeals Management
Center.
In all of these areas we are seeing the repeated errors,
but they are not getting back and we want to work and help make
this bill address that. So not just through testing, but also
through aggregating these errors as they come through to set up
a program that is going to help the VA employees have the tools
they need to succeed, because they want to succeed, they want
to be right, and they want to have confidence in that.
And I will yield the rest of my time back for questions.
Thank you very much.
[The prepared statement of Mr. de Planque appears on p.
36.]
Mr. Runyan. Thank you very much.
Mr. Hall, you are now recognized for your opening
statement.
STATEMENT OF JEFFREY C. HALL
Mr. Hall. Thank you. Chairman Runyan, Ranking Member
McNerney, and Members of the Subcommittee, on behalf of the 1.2
million members of DAV, it is an honor to be here today to
offer our views regarding the pending legislation before the
Subcommittee.
My full statement details DAV's positions on all the
legislation, so I am just going to focus on my oral remarks
today on a couple of bills.
H.R. 2349, the ``Veterans Benefits Training Improvements
Act,'' would require VA to institute annual skills assessments
for all employees and mangers, develop individualized training
and remediation plans for each, and take disciplinary actions
for those who cannot pass the test after repeated attempts.
Mr. Chairman, DAV has long supported the intent of the
legislation to require testing, training, and accountability
for VBA employees and managers involved with claims
progressing. Regular assessment of these individuals is
elemental in determining whether they possess the requisite
skills to properly perform their jobs. Likewise, when
deficiencies are found it is imperative for additional training
to be provided and appropriate personnel action taken when
repeated attempts are met with unsatisfactory results.
We believe a robust training, testing, and accountability
process is the proper way for VBA to ensure only qualified
individuals are involved in the disability claims process.
DAV agrees with the intent of the legislation; however,
before attempting to enact it we feel Congress should examine
how similar laws already in place are being implemented and
enforced.
Mr. Chairman, as you know Public Law 110-389, the Veterans
Benefits Act of 2008, requires certification examinations for
VBA employees and managers who are involved in the disability
claims process; however, almost 3 years after its enactment
there are still gaps and problems with this testing.
It is our understanding that certification examinations are
being utilized, at least in part for veterans service
representatives (VSRs), rating veteran service representatives
(RVSRs), and decision review officers (DROs), but there are not
yet any examinations for VBA coaches, supervisors, or managers
even though required by section 7732A of title 38.
We would also note that despite the plain language of the
statute on consultation with interested stakeholders, VBA did
not consult DAV or other VSOs in the development of these
examinations, which would have served them well. We hope to
hear more from VA today about how existing testing program is
being implemented.
While testing and training are essential to reforming the
claims process system they must be integrated into VBA's
quality assurance control programs to provide effectiveness.
Unless there are direct linkages between training, testing, and
quality control, VBA will miss the opportunity to take full
advantage of the myriad of data that exists, includes STAR
reviews, coach's reviews, Board of Veterans' Appeals remands,
and other quality assurance programs.
Mr. Chairman, should the Subcommittee decide to move
forward with this legislation, we have some recommendations to
strengthen the language.
First, the term assess needs to be clarified in the bill.
Without a definition this could be open to interpretation about
whether it requires an administered test or whether it could be
a subjective review by a manager.
Second, we recommend the Subcommittee consider further
defining who the appropriate employees and managers are so it
is clear to include all coaches, supervisors, and managers, and
that they are being to the same testing standard as those
employees they oversee.
Third, DAV strongly recommends that language regarding test
development and consultation similar to that already contained
in section 7732A be included. This would allow for input from
DAV and other VSOs, as well as employee representatives during
the development and implementation of any new testing
procedures.
Lastly, regarding H.R. 2349, DAV strongly recommends the
Subcommittee change the term disciplinary action to personnel
action, a more conducive phrase which accurately conveys the
importance of the individual accountability without needlessly
appearing punitive.
Mr. Chairman, with respect to H.R. 1826, this legislation
would codify criminal penalties for persons charging claimants
unauthorized fees for representation before the VA prior to a
notice of disagreement being filed. DAV feels the intent of the
legislation is vital to the protection of the often limited
financial resources of veterans. Although current law allows
attorneys to collect fees for representation after a notice of
disagreement has been filed, it does not include penalties for
anyone unlawfully collecting fees for representation prior to
an Notice of Disagreement (NOD) being filed.
While we have not yet adopted a specific resolution on that
matter we do support passage of H.R. 1826.
In closing, Mr. Chairman, DAV and other VSOs provide expert
representation throughout all phrases of the process at no cost
to a claimant. Although attorneys are allowed to collect fees
from a claimant, DAV remains concerned that there is no
limitation on the amount of fees that may be charged by an
attorney.
During our recent national convention in 2010, DAV
membership adopted a resolution calling for legislation to
provide a reasonable cap on the amount of fees an attorney can
charge veterans for representation before the VA, and we urge
this Subcommittee to consider such legislation.
Mr. Chairman, this concludes my statement, I would be happy
to answer any questions you or the Subcommittee may have.
[The prepared statement of Mr. Hall appears on p. 38.]
Mr. Runyan. Thank you, Mr. Hall.
Mr. Garver, you are now recognized.
STATEMENT OF AL GARVER
Mr. Garver. Chairman Runyan, Ranking Member McNerney,
Members of the Subcommittee, thank you for the opportunity to
testify today.
As the Executive Director of the Enlisted Association of
the National Guard of the United States, EANGUS, I am here to
speak on behalf of the 412,000 enlisted soldiers and airmen
currently serving in our Nation's National Guard. In this
instance, I am also speaking on behalf of their families, as
well as the hundreds of thousands of retired Guardsmen across
America.
I hope my testimony might have additional impact due to my
28 years of military service, including 8 years on active duty,
20 years in the Guard and Reserve, and 2 tours in Iraq, and
that I am still serving today as a Senior Master Sergeant in
the U.S. Air Force Reserves at the Pentagon.
While EANGUS supports all five pieces of legislation before
this Subcommittee, I would like to focus my comments
specifically on H.R. 1025.
When I first saw the sister bill or the original bill, H.R.
3787 last year, I frankly read it in disbelief. In the past 20
years of my service in the Guard and Reserve, I was completely
unaware that there were retired Guardsmen and Reservists who
were not considered veterans simply because they served their
entire period of service without ever having been activated for
a qualifying period of Federal active-duty service.
While the actual numbers of Guardsmen who fall into that
category may be relatively small, I think it is safe to state
it is likely that none of them rightly know today, even know
that they are not considered veterans.
When my father, a World War II veteran, died in 1996, I was
in charge of his funeral arrangements. I was told by the
funeral director what his veterans benefits included. I was
asked if we would like to inter him in a veterans cemetery.
He served for 4 years on active duty in the U.S. Navy from
1941 to 1945, and I remember thinking how nice it was that our
Nation wanted to honor his service in that way.
Now imagine the shock of the family of a retired Guardsmen
who served 20 to 40 years, being told by a funeral director and
Veterans Affairs that they would not qualify for those same
honors and that their loved one was technically not a veteran.
It is difficult to fathom how this loophole has gone on
unnoticed and without remedy for so long.
EANGUS is truly indebted to Congressman Tim Walz, a retired
Command Sergeant Major with 24 years of service in the National
Guard, for championing this issue, and EANGUS is proud to
endorse his legislation, H.R. 1025.
The Guard has evolved over 375 years from a simple
volunteer militia to an operational reserve force that can be
activated at both the State and Federal level. This makes for a
rather interesting legal framework required to authorize and
support a variety of missions. Everyone on this Committee
clearly understands the difference between title 10 status,
when the President is in command, and title 32 status, when a
specific State governor exercises command over the Guard.
This difference is not so simple when one takes into
account title 38 and veteran status. As the Federal component
of the Guard's legal structure, title 10 neatly dovetails into
title 38 and veterans issues, but the same cannot be said of
title 32 and title 38.
H.R. 1025 bridges the gap between title 32 and title 38 by
changing the definition of veteran in title 38, section 107A
and by linking veteran status to title 10 retirement pay for
non-regular service.
During last year's consideration of H.R. 3787, which was
similar legislation sponsored by Congressman Walz in the 111th
Congress, the Congressional Budget Office officially stated
those honorary veterans would not be eligible for additional
benefits from the Department of Veterans Affairs based on this
new status. Thus, CBO estimates that the bill would have no
budgetary impact, enacting H.R. 3787 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
A similar endorsement was made by the Department of
Veterans Affairs and H.R. 3787 moved easily through the House,
but languished in the Senate at the end of last year.
H.R. 1025 was carefully drafted to ensure that this broader
definition of the term veteran would not be applicable for
purposes of compensation, for purposes of dependency and
indemnity compensation, or for purposes of hospital, nursing
home, domiciliary, and medical care. If enacted into law, this
bill will be at no cost to the Nation.
Let me emphasize that this issue of bestowing veteran
status is a matter of honor, nothing more, nothing less.
This year the Senate Companion Bill to H.R. 1025, S. 491,
was introduced by Senator Mark Pryor in March, and the Senate
Committee on Veterans' Affairs recently held a hearing on the
bill on June 8th. With movement on both the House and Senate
versions I am optimistic that both chambers of Congress can
advance this worthy legislation before the end of the year and
hopefully in time for Veterans Day on November 11th.
The Enlisted Association of the National Guard of the
United States respectfully requests that the Subcommittee
favorably report the Honor America's Guard Reserve Retirees Act
of 2011 to the full house Committee on Veterans' Affairs.
Thank you for the opportunity to testify today, and I look
forward to your questions.
[The prepared statement of Mr. Garver appears on p. 42.]
Ms. Buerkle [presiding]. Thank you, Mr. Garver.
Mr. Sims, you are now recognized.
STATEMENT OF JIMMY F. SIMS, JR.
Mr. Sims. Thank you, Ms. Buerkle, Ranking Member McNerney,
and Members of the Subcommittee, thank you for allowing me the
opportunity to testify on behalf of the American Federation of
Government Employees and National VA Council.
H.R. 2349 is legislation that we feel will improve the
VBA's overall claim process by focusing on the skills of
supervisors and employees.
As AFGE has testified on a number of occasions before this
Committee, the only effective training is individualized
training. As such we support the concept of this legislation,
which directs the development of such training programs.
Enactment of this legislation would give employees a
meaningful training program to address their areas of weakness
and deficiencies and allow for real improvement in the quality
of their work. This needs to be implemented not only at the
level of the claims processor, but at all levels of supervision
over the claims process.
The claims process is a complex one and we have seen
supervisors put into positions within this process without the
requisite skills and experience to oversee it. This is what has
led to the breakdown in the claims process we see today.
VBA's supervisor's training program specifically states in
the initial training you do not need to be a technical expert
over the area over which you supervise. While this may be true
in many areas of management, in the claims process this has
proven not to be the case.
While AFGE applauds Congress on the concept and direction
of this legislation, there are a few areas of concern with the
legislation, which I would like to voice.
First, annual assessments. The VA has spent countless
millions of dollars in the development and implementation of
certification examinations. AFGE urges the use of the current
certification examinations as assessment tools for all claims
processors and supervisors.
While AFGE believes the use of these examinations would be
the most responsible fiscal action, there are concerns which
have been raised by the prior contractor who stated their
position was only to ensure strong test questions and not to
develop a test of knowledge.
AFGE is concerned the current contractor, Cumber, may fall
into this same trap, thereby resulting in poor certification
testing.
Second, individualized training programs. We urge Congress
to mandate that all VBA training programs, including
individualized training programs, be centrally developed by the
VBA academy in collaboration with the compensation and pension
training staff and a stakeholder advisory group. VBA has a poor
track record of implementing training in a consistent and
effective manner.
In the fall of 2010, I served on a site team, which
reviewed implementation of the final phase of training for new
employees across a sample of stations. As we reported to the
Under Secretary, we found that none of the stations were
implementing the centralized training as directed. Sadly, VBA
has taken no corrective actions to this date.
Third, remediation of skills. This provision of H.R. 2349,
as currently drafted, is vague about how VBA will carry out
skill remediation. Currently, VBA managers utilize performance
improvement plans as a means to reassign or remove low
performing employees. We urge you to spell out the proposed
remediation process in more detail to ensure consistency and
fairness.
For example, the bill could require remediation be
implemented only after an employee who participates in an
individualized training program does not pass the certification
exam.
Lastly, disciplinary action for unsatisfactory performance.
H.R. 2349 proposes the use of disciplinary action in cases of
unsatisfactory performance of employees. This is contrary to
current Federal workforce law and policy on proper responses to
unsatisfactory performance, therefore, we urge the Subcommittee
to amend H.R. 2349 to substitute appropriate personnel action
in place of disciplinary action.
While there are minor issues which I have identified, the
overall direction of the bill is one which has been needed and
called for for many years. Until VBA takes drastic measures to
improve the training programs, there will be no improvement in
the quality of the work performed within the claims process.
Unfortunately, VBA does not have an effective track record
when it comes to implementing change. For this reason, I urge
you to establish an oversight committee comprised of
stakeholders, including AFGE and the VSOs who can report
directly to this committee on the VBA's implementation efforts.
I would also urge you to ensure the stakeholders advisory
group works directly with VBA on review of the annual
certification examinations and individualized training
programs.
Thank you for allowing me to testify and I stand by for
your questions.
[The prepared statement of Mr. Sims appears on p. 43.]
Ms. Buerkle. Thank you, Mr. Sims.
Mr. Cohen, you are now recognized.
STATEMENT OF RICHARD PAUL COHEN, ESQ.
Mr. Cohen. Thank you for inviting the National Organization
of Veterans' Advocates to testify here today.
I will concentrate on only three bills, because those are
in areas where NOVA has some expertise.
The first bill, and I will go in numerical order is H.R.
1826, which would criminalize soliciting or receiving improper
fees.
That bill is necessary for non-accredited agents and
attorneys, because there are some bad actors out there. There
was even a report in the media recently about a so-called
insurance agent in California who was soliciting fees for
helping veterans apply for pension benefits. We have heard
reports about that, and presently there is no effective way to
sanction to those people.
I would contrast that with accredited attorneys and agents,
both of whom are restricted under VA regulations 14.632 and
14.633, and required to only accept and solicit reasonable and
appropriate fees. If they do not do that, the punishment is
loss of accreditation.
For attorneys, there is an additional punishment, through
their State bar. Most States implement the model rules of
professional conduct requiring appropriate fees, and because
most State bars have reciprocal enforcement, an attorney who
solicits an improper fee or receives an improper fee will face
loss of VA accreditation and will also likely get disbarred and
prohibited from practicing law in front of any forum.
So it is not necessary to impose criminal sanctions on
accredited agents and attorneys for improper fee practices, but
is very necessary to impose sanctions on non-accredited people
and to put those sanctions in another section. Section 5904 is
not the appropriate place for it. Perhaps Congress should
create a new section under a new article 60 to provide a
mechanism to deal with those bad actors who are not otherwise
supervised that would be an appropriate idea.
H.R. 1898 is a very important piece of legislation. At
present veterans may oppose a VA finding of incompetency merely
because they are concerned about losing their right to possess
firearms, and even though they would concede that they really
can't manage their money. It is very clear that inability to
manage money does not translate to danger to self or others,
which is the proper standard to prohibit someone from
possessing the right to firearms.
So this bill, which would say that a veteran is not
automatically determined to be a mental defective under 18
U.S.C. 922 if they are found to be incompetent to manage their
money is a worthy bill, which would help veterans and the VA.
H.R. 2349, the ``Veterans Benefits Training Improvement
Act,'' is a very good idea. We question, however, whether H.R.
2349 duplicates some provisions that are presently in 7732A.
Maybe H.R. 2349 should be merged into 7732A.
Our biggest concern is that, at present the work credit
system, which is monitored by the VA's ASPEN system, will
prevent suitable training and assessment, because it limits the
amount of free time that employees will have for the training
and assessment. The VA, right now as we speak, is still very
much concerned with pushing paper, not with correctly
adjudicating claims and not with providing suitable training.
That concludes my prepared statements. I am available for
any questions.
[The prepared statement of Mr. Cohen appears on p. 46.]
Ms. Buerkle. Thank you very much, Mr. Cohen.
And I will begin questioning by yielding myself 5 minutes.
Mr. Hall, regarding H.R. 2349, do you have any specific
recommendations for what skills should be tested?
Mr. Hall. You mean specific skills for the individualized
testing?
Ms. Buerkle. Yes.
Mr. Hall. Sure. A couple of things come to mind, and that
is the ability to understand the evidentiary record when they
are receiving it, to process and understand the development in
the development stage of a claim, understanding that evidence
and how it plays a role in the rating schedule, how it plays a
role in all of that. That is a specific skill that should be
monitored and tested regularly to make sure that they
understand the medical evidence as they are reviewing it.
Another one would be the rating schedule itself. If you
have seen it it is pretty in-depth in understanding what
specific rating criteria must be applied, those are also a
specific area to make sure an individual understands when they
are reviewing the evidence and applies the specific regulation
or part of the rating schedule that they understand how it
really works, anatomy, physiology, all of those things combined
with it. Those are some things that I would start with.
Ms. Buerkle. Thank you. And which managers and employees
would you suggest be tested annually?
Mr. Hall. Coaches, so you have your team coaches definitely
have to be in the mix, any individual that oversees a coach or
how it is aligned within the VA. It is not really quite clear
who those individuals might be, so when we say coaches,
managers, and supervisors they might be one in the same, but
they are definitely--if you are going to train and test VSRs
and you are going to require them VSRs and RVSRs, then those
individuals that are overseeing them have to be included in the
same training, testing, and monitored in the same way that we
would expect of their employees, the same as we do in our own
organization. It doesn't matter what level we are at, if I am
training and testing someone I have to undergo the same
training and testing.
So coaches, DRO, VSRs, RVSRs, as well as probably assistant
service center managers, service center managers should be
included in that as well.
Ms. Buerkle. So should testing be tied into the amount of
time an employee or manager has worked at VBA, or you are
saying everyone should be tested?
Mr. Hall. No, I think everyone should be tested. I think it
should be taken into account with something along the lines
of--and I know it is not maybe specific to the bill H.R. 2349
on the individualized skill assessment--but at the same time if
I had 18 years of doing claims processing national service
officer work in the field, which I did, and I am required to
take the same training as somebody that has less than a year, I
have to be expected to keep it fresh, you know, and more
specific maybe pick a particular area that had a lot of changes
throughout the year, like specific monthly compensation or
maybe a little more difficult to grasp, so we do tailor it, so
I think the VA must tailor it also. If you have a 20-year
employee and a 3-year employee, yes, it should be tailored
specifically, but they should all be required to do so.
Ms. Buerkle. Thank you.
Mr. Kelley, with regards to H.R. 1025, what is your
response in terms of critics who might say we are creating a
slippery slope here and will be providing full veteran benefits
to this entire group?
Mr. Kelley. I believe there is always a risk of when you
start adding new things, but I think in this particular case it
is worth the risk. I know the VFW would fight against and that
voice be heard if benefits would start being associated with
that.
So again, I believe it is worth the risk to give the honor
and respect that is due to these veterans.
Ms. Buerkle. Thank you, Mr. Kelley.
I am yielding now to Mr. McNerney 5 minutes.
Mr. McNerney. Thank you, and I appreciate your questions.
Mr. de Planque, in regard to H.R. 1025, has there been any
movement to oppose or to support such a bill in the form of a
resolution by your membership?
Mr. de Planque. As of right now and the last time that it
was discussed we have no resolution, and as you know we are
grassroots and we work that way.
I know our convention this summer, next month, is going to
be in Minnesota and hopefully we will have a chance to talk to
the sergeant major. I know he has been a tireless and great
advocate for this bill, and I know it is something that is
being looked at and some of the previous concerns that had come
up have been addressed.
And one of the things when you have commissions that meet
on like a quarterly basis basically, they don't necessarily get
to move with the same rapidity, but it is something that is in
the mix and it is being examined, and hopefully like I said, we
are looking forward to hopefully talking with the sergeant
major next month about it.
Mr. McNerney. Thank you.
Mr. Garver, do you see any cons or any reason why we
wouldn't want to pass H.R. 1025?
Mr. Garver. Well, I think what has to happen, especially
anybody that is critical, and I read some of the remarks from
the American Legion and some from the VFW, and the concerns are
valid in that, you know, veterans have long been honored for
their service federally; however, the expanding and changing
role of the Guard is so significant, and especially in this
last 10 years in the Global War on Terror.
Let me give you one example. When 9/11 hit, we stood up
Guardsmen all over this country in Operation Airport Guardian.
We did that under title 32 order because of the posse comitatus
law, Federal troops cannot take up arms in a law enforcement
status, so therefore, all of those troops that were on 180 days
or more should have been--they were protecting our country
against terrorists--but they are not recognized as a veteran.
And so there are a number of instances or examples we could
give of that, and I think you could make the case with any
surveying active duty, with any veteran from the VFW or
American Legion a long-serving veteran and explain that and
they would agree that those veterans should be afforded the
title of veteran for their service.
It is really an administrative glitch that needs to be
remedied. I don't think anyone would question the actual honor
ascribed to those individuals, especially serving 20, 25, 30,
35, 40 years and retiring simply because they didn't serve on
Federal active duty.
Most of us would be surprised if you said I didn't know
they weren't a veteran, and I don't think anyone would begrudge
anyone for gives that title to them.
Mr. McNerney. Okay, thank you.
Mr. Cohen, thank you, I think your testimony was very clear
today, I appreciate that.
On H.R. 1826, could you elaborate on the VA system for
accrediting attorneys and other agents who represent veterans
and other beneficiaries who make claims at the VA?
Mr. Cohen. Yes. Initially whether it is an agent or an
attorney, they must submit to the VA an application, which
shows their background. An attorney would have to state where
he or she is admitted and provide a certificate of good
standing. An agent needs to additionally pass an exam with a
grade of 75 or higher. Both an agent and an attorney has to
show, within the first year, that they have completed 3 hours
of VA law specific training, CLE (continuing legal education)
training. Then there are annual reports that have to be
submitted to show that they are still in good standing and that
the training has continued.
What this does is allows the VA to monitor the actions of
the attorneys and the agents, and in fact as I mentioned
before, the VA does have the responsibility and the power to
sanction anyone who acts improperly.
Mr. McNerney. Do you think that the possible imposition of
criminal penalties will be an effective tool in this
legislation or do you think it is a deterrent?
Mr. Cohen. Well, I don't know that an accredited agent or
attorney would be further deterred by criminal penalties. The
likely loss of the opportunity to practice VA law and for an
attorney to practice any law is a very powerful deterrent. For
that reason, I don't see that that the legislation is
necessary. In fact, what we are seeing in the media, and the
complaints that I hear anecdotally are not concerning attorneys
and agents. They concern insurance agents or financial
consultants who are consulting with veterans regarding
eligibility for pensions and aid and attendance.
Mr. McNerney. Thank you. I have run out of time so I am
going to yield back.
Ms. Buerkle. Thank you very much.
I know yield to the gentleman, Mr. Walz.
Mr. Walz. Thank you, Madam Chairwoman.
And again, I want to thank each of you for your
thoughtfulness you put into that. I am always so proud of this
Committee of serving on it, I feel like it is the way democracy
should work, that suggestions are proposed by citizens, we work
back and forth, and I would like to thank each of you.
Specifically on H.R. 1025, we worked on this quite a while.
Mr. Garver, I want to thank you and EANGUS. In full disclosure
I am certainly a life member of that organization and glad that
you are there, but the thoughtfulness that all of you put into
this of getting this right I am very appreciative of that, and
I also think it is really critical that we do get that right,
that this definition is narrowed to the point where we don't
infringe upon some of those things, because it is not where any
of us wanted to go with it. And I think Mr. Garver is right, I
think the vast majority of the public doesn't understand this.
My concern was, it is that sense of honor that goes with
people of getting their record exactly right and having to
explain technically I am not truly a veteran. I do think it
misses the point and could be a dangerous precedence that we
don't honor those who serve in the capacity, whether it be
support. And I look to it of all the years of training. There
is an awful lot of Guard and Reserve folks down range
performing professionally as well as any force ever has and
they were trained by a lot of these folks that fall into this
category, and so I very much appreciate that. We will watch
very closely as it coming forward.
I also, Mr. Cohen, I appreciate your thoughtfulness on
this, especially on our colleague Mr. Rehberg's second
amendment protection. You made a great point of not linking
money management skills to gun ownership, because I am thinking
not a Member of Congress will ever hunt again if they try and
do that. I am very appreciative of that, I think it is
thoughtful making sure we get this right.
I had one question, Mr. Kelley, on H.R. 923, and I think
some of these, and this is where I always struggle with when
you hear my colleague, Mr. Hastings, describe the situation
with his constituent. VFW I thought brought up a valid point on
this of what is the VA capable of doing when we change some of
these.
So Ray, I don't know if you have something on that you
could--if there is anything or if I could get it from you later
about some of the specifics on this trying to understand what
the implications of the Pension Protection Act will be.
Mr. Kelley. Thank you, Mr. Walz. Currently there are twelve
provisions. And it appears to me that most of it is a piece of
paper that you can take to the VA to show why that money should
not be taken away from you, or factored in. Going forward with
this it appears that it will be a little bit tougher.
Determining pain and suffering payments will be much tougher.
It is not a piece of paper that you can do. The Secretary will
have to do this on a case-by-case basis, and it is going to be
a bigger muscle movement that what they have to do at this
point. That is one particular issue and there are a couple of
others that I can get back with you on.
Mr. Walz. Okay. Are there some fixes to this, you think, to
make that easier? Or do you think it is the nature of this that
there is going to be a fundamental shift if this happens? With
all good intentions, but in the long run causing us more issues
for a broader number of veterans? I am just trying to figure
out as this moves forward where that goes.
Mr. Kelley. I will get back with you on that as well.
Mr. Walz. Okay.
Mr. Kelley. Let me put a little thought into it.
[Mr. Kelley subsequently provided the following
information:]
After speaking with VA, they do not believe that this bill
will affect their ability to accurately assess existing and the
proposed value assessments on loss of property and medical and
insurance reimbursements. Therefore, the VFW withdrawals its
concern that this legislation will impose an undue burden on
VA.
Mr. Walz. No, very good. And again, I appreciate the
thoughtfulness of this entire group. It certainly helps make
our job easier and I yield back.
Ms. Buerkle. Thank you, Mr. Walz. Unless either one of my
colleagues have any further questions? Do you, Mr. Ranking
Member?
Mr. McNerney. Well yes, I do actually, if you allow that?
Ms. Buerkle. Absolutely.
Mr. McNerney. Thank you. Mr. de Planque, on your testimony
regarding H.R. 1826 you mentioned anecdotal evidence that
veterans are being taken advantage of for profit. Do you have
some specific examples so we can get some idea of what we are
talking about here?
Mr. de Planque. One of the things that we have been
noticing happening in the arena, you know, we have service
officers who are out there, you know, trying to help veterans,
is that particularly in the area of elder care, and it was
touched on by a number of people, the aid and attendants
benefits and stuff like that. There are some predatory kind of
bad actors who are swooping in and trying to take advantage of,
you know, accessing a veteran's benefits and getting money back
from them on it when these people are in a particularly weak
position to begin with. And that, as you know, in America in
general, even outside the veterans community, elder care and
how people transition into that area, and whether it is nursing
homes, or pension, or various things, that there is a
tremendous opportunity for predators in that area. And we have
noticed over the last several years more incursions into the
veterans community in that area because people are realizing
that there is a substantial portion of the veterans community
that is reaching that area. And it is, in terms of specific
cases we can try and find some and see if we can get back to on
some specific instances.
But you know, I mention it anecdotally in, you know, we
have annual service officer schools where we will bring
everyone together and it is something that they have definitely
been voicing back to our national staff, of this is what is
going on, you know, is there any way that, you know, we can try
and move in? And I know responsible attorneys who are also, you
know, involved in the process. They are concerned about that as
well because you do not want to have the bad actors who are in
there. And I know most of the VSOs, you know, we all do not
charge veterans for any of our services. We are not there to
take advantage of them. We are there to get all the benefit
back to the veterans. And so that, when I mentioned the
anecdotal evidence that is what I am talking about. Is
specifically in that area, we have been seeing it more in the
elder care and retirement home, and veterans going into old
veterans home areas, people who are preying on that group.
Mr. McNerney. I have one more question, if the Chairman
will allow it? To Mr. Cohen, I see you are anxious to say
something anyway. But I wanted to change the subject to H.R.
2349. You proposed that the Subcommittee remain focused on
reforming the work credit system rather than adopting
increasing training. Would this legislation that is proposed in
your mind help? Or, would it help reduce the backlog, or not?
Mr. Cohen. Well I do not----
Mr. McNerney. I know the backlog is an important issue to
you.
Mr. Cohen. Yes, it is. And I think the biggest impediment
to reducing the backlog is the present work credit system. Yet,
training and assessment is certainly very important. But as a
practical matter I do not believe that the VA is capable, at
this time, of implementing further testing and assessment with
the existing burden of the work credit system and the
monitoring that it requires. The work credit system imposes
tremendous burdens up online workers and supervisors. I just do
not think that this legislation is actually going to accomplish
anything. It is a wonderful idea, and it is necessary. Had the
work credit system already been fixed, this training and
accession program would be a perfect thing to go to. But
without fixing the work credit system first I do not know how
this would actually be implemented.
Mr. McNerney. Okay, thank you. I yield back.
Mr. Runyan [presiding]. Thank you, Mr. McNerney. I
apologize to everybody for having to step out. We had to deal
with some of our current heroes actually being taken advantage
of, and I had to do an amendment on the floor. I do not know if
it has been talked about a little bit but Mr. Hall, you kind of
touched on some of the things. I think the one thing that I
think we disagree on is the word disciplinary action. I like
being forceful with that. I know we have had this discussion in
previous hearings but to that fact I think we are both on the
same page.
But I think what we are missing is the connection to the
individual because we all know as individuals we have
deficiencies. And I realize the data from the regional offices
suggest one thing. But to be able to go down to the individual
level and take care of those deficiencies because they do have
to operate as a team. And like I think we agreed on, someone
there 20 years should not be given the same training as a 2-
year person. And it is being able to go in and give that person
what they need to do their job. Do we have an understanding on
that?
Mr. Hall. We do.
Mr. Runyan. I kind of feel like that is almost like the
sticking point of the whole situation. But that is the
direction we want to go. Because I really think it comes down
to data collection. Where are the deficiencies, and how are we
going to address them? Because obviously the VA says all the
time training is the solution. No, it is proper training is the
solution. I have heard that my whole life. My son was at a
football practice the other day and it came out again. The
football coach says, ``perfect practice makes perfect.'' And if
you are not perfecting your procedures and how you are
adjudicating these claims, it is not going to happen. I just
want you to know that is the intent of the bill and that we
look forward to getting this worked out because I know you had
a couple other issues with it.
Mr. Hall. Well primarily, Mr. Chairman, we are supportive
of the intent. I want to make sure that is clear and I did not
lose that in translation, that we are supportive of the intent
of the bill because as I have appeared before this Subcommittee
and others, other of my colleagues, training, testing, and
accountability. And we have talked about that time and time
again. So I am, you know, DAV is very happy to see this
particular type of legislation being introduced. Specific
language in it, those are some things that we would be happy to
work with you, with the Subcommittee to, you know, to work out
specific language of it if it makes it more conducive, you
know, to the process.
We can agree or not agree on specific verbiage, like
disciplinary action. But in the scope of the entire purpose and
intent of the bill, we are with you on that particular aspect
of it. And as, again, an organization that prides itself on
practice makes perfect, training, 32 months of ongoing training
beyond your initial 16 months, 32 months of ongoing training
for area supervisors, supervisors, and all of the national
service officers below, we are required to complete that 32
months of ongoing training and then when we get done we start
again with new material because laws have changed, things,
regulations have changed. So we are never out of training. So
the first time I have been out of training is coming, you know,
and being part of the legislative staff is the first time. But
I am training in a different way at this point. So we are
supportive of the intent of the bill. We would just like to
make sure that if you could consider those recommendations for
specific change in language.
Mr. Runyan. I do realize that a lot of you and I know the
Ranking Member did also, used the word duplication of the
previous law from 2008. I think there is some carryover. But I
think this is actually taking it to a level to actually get it
to work, make it apply, make it, we talk about efficiencies, I
think more efficient and more tailored to the cause we have.
Because obviously we are dealing with this massive backlog that
we have to get out of our way. And that is ultimately the goal
of the whole situation, to take care of those who take care of
us. And I appreciate that.
I think you guys have probably touched on most of my
questions. I will have to go back and read the rest of the
transcript. With that, unless anybody else has any other
questions? I know you were on your second round. Thank you all
very much and we will have the next panel up.
Welcome. This panel consists of Mr. Thomas Murphy of the
VBA, who is accompanied by Mr. Richard Hipolit from the Office
of General Counsel, Department of Veterans Affairs. Mr. Murphy,
you are now recognized for 5 minutes for your testimony.
STATEMENT OF THOMAS MURPHY, DIRECTOR, COMPENSATION SERVICE,
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
STATEMENT OF THOMAS MURPHY
Mr. Murphy. Thank you, Mr. Chairman. Chairman Runyan,
Ranking Member McNerney, and Members of the Subcommittee, thank
you for providing the opportunity to present the views of the
Department of Veterans Affairs on pending benefits legislation.
Joining me today is Richard Hipolit, Assistant General Counsel.
This is my first time speaking before the Committee and I would
like to tell you that I consider it an honor and a privilege to
be here before you today.
I would like to start out by apologizing to the Committee
for the lateness of our testimony. I realize your time is
valuable and that providing our testimony in advance gives you
the opportunity to prepare for these hearings. I will make
every effort to make sure that this is not repeated in the
future.
H.R. 923, the ``Veterans Pension Protection Act of 2011,''
would expand the existing exemption in 38 U.S.C. 1503(a)(5) by
excluding two types of payments from determinations of annual
income for the purpose of determining eligibility for improved
pension; first would be reimbursements for expenses related to
accident, theft loss, or casualty loss, and reimbursements for
medical expenses resulting from such cause; and second
regarding pain and suffering related to such causes. VA opposes
excluding payments received for pain and suffering from
accountable income because such payments do not constitute a
reimbursement for expenses related to daily living. This
provision with the bill would be inconsistent with a needs
based program.
VA does not oppose the remaining provisions of this bill,
which would exempt payments for reimbursement for accident,
theft loss, casualty loss, and resulting medical expenses
subject to Congress identifying offsets for any additional
costs. VA cannot determine the potential benefit cost because
insufficient data are available regarding the frequency or
amounts of such payments to the population of pension
beneficiaries.
H.R. 1025 would add to chapter 1, title 38 U.S.C. a
provision to honor veterans based on retirement status but who
do not have qualifying service for veteran status under 38
U.S.C. 102(2). The bill states that such persons would be
honored as veterans but would not be entitled to any other
benefit by reason of this amendment.
Veteran status is conditioned on the performance of active
military, naval, or air service. Under current law, a National
Guard or Reserve member is considered to have had such service
only if he or she, one, served on active duty; two, was
disabled or died from a disease or injury incurred or
aggravated in the line of duty during active duty for training;
three, was disabled or died from an injury incurred or
aggravated in the line of duty, or from certain medical
conditions suffered during inactive duty training. VA does not
support this bill because it represents a departure from the
active service as the foundation for veteran status. VA
estimates that there would be no cost benefit or administrative
costs associated with this bill if enacted.
H.R. 1826 would amend 38 U.S.C. 5905 to reinstate in a
modified form an earlier provision that had provided criminal
penalties for charging improper fees in connection with
representation in a claim for benefits before VA. Because this
bill involves criminal benefits, courts are likely to interpret
the phrase, ``advice on how to file a claim for benefits,'' as
referring to advice on how to complete an application for VA
benefits. It would be unlikely to deter the solicitation or
receipt of any fee or compensation for the provision of advice
on how to transfer or shield financial assets in order to
become eligible for certain VA benefits. The proposed penalty
provision could seemingly be easily circumvented by charging
for services other than those specified in the bill while also
providing services that the bill is intended to cover.
VA supports the protection of claimants from unscrupulous
fee practices, but we doubt that this bill would effectively
address the entire scope of the problem. We defer to the
Department of Justice on whether the new provision imposing
criminal penalties would be enforceable as a practical matter.
H.R. 1898, the ``Veterans Second Amendment Protection
Act,'' would provide that a person who is mentally
incapacitated, deemed mentally incompetent, or unconscious for
an extended period will not be considered adjudicated as a
mental defective for the purposes of the Brady Handgun Violence
Prevention Act. We understand and appreciate the objective of
the legislation, to protect the firearm rights of veterans
determined by VA to be unable to manage their own financial
affairs. We believe adequate protections can be provided on
these veterans under current statutory authority. Under the
NICS Improvement Act of 2007, individuals subjected to an
incompetency determination by VA can have their firearm rights
restored in one of two ways. By reversing the determination of
incompetency, or by proving that they are not a threat to
public safety. Although VA has admittedly been slow in
implementing this relief program, we now have a procedure in
place and are fully committed going forward to implement this
program in a timely and effective manner.
But exempting certain VA mental health determinations the
legislation would create a different standard for veterans and
their survivors than is applicable to the rest of the
population. VA estimates that there would be no additional
benefits or administrative costs associated with this bill if
enacted.
This concludes my statement, Mr. Chairman. I would be happy
to entertain any questions from you or other Members of the
Subcommittee.
[The prepared statement of Mr. Murphy appears on p. 48.]
Mr. Runyan. Thank you very much, Mr. Murphy. I know on the
last panel they really discussed the involvement of the
stakeholders and being involved in the examination process.
Because obviously there is a deficiency there. Was it an
oversight? Or you really just shut the door on them, and their
ability to get involved in that?
Mr. Murphy. What do you mean by the examination process?
Mr. Runyan. The testing process. They feel like they have
been left out of the whole deal.
Mr. Murphy. Are we talking about H.R. 2349?
Mr. Runyan. Yes.
Mr. Murphy. Okay. We are not prepared to discuss that----
Mr. Runyan. You are not going to discuss it?
Mr. Murphy. What I can tell you is that we are prepared to
provide any technical assistance you may need between now and
the write up coming up here shortly. And my staff is available
to the Committee staff for any assistance that you may need.
Mr. Runyan. That was about half of my questions for this
panel. But you talked a little bit about providing protections
for our veterans from individuals taking advantage of them,
that this may not go far enough and there may be backdoor ways.
Do you see any way to be able to protect them and help with
legislation so they are not being taken advantage of?
Mr. Murphy. I think, do you want to make a comment?
Mr. Hipolit. Yes, I would like to address that if I could.
I think the difficulty we have is that VA can only regulate
people who practice before VA. We have good authority to do
that now. We have a good program for accrediting
representatives who represent people before VA. We have
disciplinary proceedings that we can take for people and
suspend or remove their accreditation to prevent them from
practicing before VA. We can review attorneys' fee agreements
for attorneys that practice before VA and we can actually tell
the attorneys to refund fees that we consider to be
unreasonable. So we have good authority for people who are
actually practicing before VA.
For people who are may be just advising veterans and who do
not actually come before VA to represent the veterans, we do
not have much authority in that area now and it would be
difficult, I think, for us to enforce in that area. So I think
that this bill that is before the Committee now is intended to
widen the scope a little bit and put some authority out there
to take action against people who we cannot regulate under our
authority.
The difficulty is that the proposed legislation is a
criminal statute so it would be subject to enforcement by the
Department of Justice rather than VA. We are not really sure
how effective it would be from their standpoint. Under previous
law, there was a provision that provided criminal penalties for
charging excessive fees and it was not enforced very often. I
think the U.S. Attorneys Offices were reluctant to bring those
cases for one reason or another because of competing resources.
As there were not very many prosecutions brought under the
prior law, I am not sure how effective this would be. I think
the Justice Department might have a better idea about that. But
there are some concerns about whether it would be effective.
Mr. Runyan. In your experience, have any complaints come to
you? And do you redirect them to the Department of Justice?
Mr. Hipolit. We have heard some complaints about various
practices of people providing advice and charging for it who do
not actually practice before VA and are outside our control.
What we have done in those cases, we have referred some to
State officials to see if there was any State law that might
have been violated. We have also alerted bar associations to
see if there is unauthorized practice of law going on. But as I
have said, we do not have much authority in that area. So we
have made some referrals. I am not sure what has come of that,
if anybody has tried to bring enforcement action at the State
level.
Mr. Runyan. That is all I have for now. Mr. McNerney.
Mr. McNerney. Thank you, Mr. Runyan. Concerning H.R. 923,
your hang up seems to be with the pain and suffering clause.
Are you, as an institution, concerned that pain and suffering
awards might be too big? Or not too big, but big enough so that
the veteran does not need assistance? Or I do not see why that
would be the one provision that you are against.
Mr. Murphy. Yes, sir. This is a pension program primarily
based on needs and income of the individual. We do not know
what the size or amount or the impact is going to be on the
financial livelihood of that individual based on the
compensation they received in the pain and suffering. Because
it is a needs-based program, the dollars received there do not
impact the veteran's life as we are talking about from
accident, death, loss, and the other provision of the bill.
That is primarily designed to make that individual whole again
based on the losses they suffered.
Mr. McNerney. Any idea how many veterans would fall into
that category?
Mr. Murphy. I do not know that, sir.
Mr. McNerney. Can you get that to us? Can you get that kind
of a number to us?
Mr. Murphy. Yes, we will take that one for the record.
[The VA subsequently provided the following information:]
NOTE: The HVAC DAMA Minority Staff Director supplemented this
deliverable after the hearing as follows: For the second
deliverable, as we discussed last week, it would likely be more
feasible for VA to indicate whether excluding pain and
suffering from the calculation of income for determining
pension eligibility would impose an administrative burden on
the VA pension program since you indicated that the figure
requested likely would be difficult to deliver.
Response: There is currently no tracking mechanism in place
to determine the number of Veterans denied pension solely on
excessive income that would have been reduced if allowed credit
for monies obtained in the course of ``pain and suffering.''
There would be an increased administrative burden to determine
pension eligibility based on reducing income for pain and
suffering proceeds. This would require additional development
activities and determinations as to which part of the proceeds
is from pain and suffering and which part is from other
categories. This development would impact the number of claims
completed nationwide.
Mr. McNerney. Okay. Regarding H.R. 1025, the Guard and
Reserve bill, is your basic argument the slippery slope? You
are concerned that opening this up will create an avalanche of
people that would want to be veterans? Is that the basic, is
that the crux of your disagreement with that bill?
Mr. Murphy. We would be certainly opening a door that has
not been opened previously. Yes, that is correct.
Mr. McNerney. Okay. Well I guess that is, that clarifies
that. On H.R. 1826--well, actually I think I will skip over to
H.R. 1898. What I heard you say was that you, what Mr.
Hipolit--how do you pronounce that?
Mr. Hipolit. Hipolit.
Mr. McNerney. Hipolit, I am sorry, say that it was not
really needed. That piece of legislation was not needed because
internal regulations are going to take care of that problem. Is
that what you are saying?
Mr. Hipolit. Let me clarify. For people who are actually
practicing before VA, say attorneys or service organization
people or claims agents who actually come in and practice
before VA, who submit things to us, who come in to hearings and
so forth, I think we have very good regulations in place right
now to take care of those people because we have the
accreditation program, we have----
Mr. McNerney. Well I am talking about the Second Amendment
Protection Act.
Mr. Murphy. Yeah----
Mr. Hipolit. Oh, oh, I am sorry.
Mr. Murphy. I will take that one.
Mr. Hipolit. Okay.
Mr. Murphy. There are two ways right now that a veteran
that has a fiduciary appointed can seek relief under this act.
We have regulations in place, a specific fast letter that went
out last November. There have been 142 requests for relief. At
this point we are averaging approximately 130 days to reach a
decision on that, and we are going back in and trying to cut
that timeline in half again. But the bottom line is, a veteran
that is declared incompetent here has a relief method to
address it with VA and has his rights restored, and that has
happened in many instances.
Mr. McNerney. Well on the earlier panel we heard one of the
testifiers said that veterans would be reluctant to be
classified as mentally incompetent for fiduciary reasons if it
meant that their Second Amendment rights would be eliminated.
So, I mean, that is a legitimate concern.
Mr. Hipolit. Yes, but there is a relief mechanism because
as an initial mechanism you could have your competency
restored. Then there is a petition for relief. If you can come
in and demonstrate that you would not be a threat to public
safety to have a handgun, then we can provide relief and the
person would be taken off the list.
Mr. McNerney. And you are confident that that would be
expeditious? If, I mean, the veterans, the VA, for all its
virtues, is bureaucratic. And you do hear more often than not
that things take longer than they should. Someone might have a
6-month waiting period, or a 1-year waiting period to have
relief on that sort of adjudication? Is that going to be any
different at this point forward?
Mr. Hipolit. Yes, I think initially we were kind of slow in
getting a procedure in place to hear the petitions for relief.
But we do have something in place now, since last fall, and I
think there have been a large number of adjudications under
that. I think it has been a timely system since we have
actually gotten our procedures in place.
Mr. McNerney. So by timely you mean 2 months? A year?
Mr. Murphy. At this point with all of the ones that we are
doing, which is 142 cases, we are averaging 130 days to
complete those. That starts from when the letter was published
from last November to now. The back half of that, the most
recent cases, are running significantly shorter. We have an
internal goal that we are driving to of 60 days.
Mr. McNerney. Okay, thank you. I yield back.
Mr. Runyan. Mr. Walz.
Mr. Walz. Thank you, Mr. Chairman. And thank you, Mr.
Murphy, for your service, for being here, and for being a
partner in getting it right for our veterans. And I want to
just say I very much, the counsel and the input of VA is a very
strong, it very strong weighs on us as we craft this
legislation.
I want to go to H.R. 1025. We spent a lot of time, on this,
thought about it. I would expect you to be in the position
where you are at, and I am appreciative of that. Your job is to
guard as it is written now that law and how we view that. And I
understand. Any time you change a definition, especially one,
veteran, that is pretty fundamental to everything else that
comes afterwards. So I am very appreciative of where you are
at. I am very appreciative of the cautiousness. I think Mr.
McNerney was getting at it. I think he is right that you, and
rightfully so. I do not make light of a slippery slope argument
because I think it is legitimate in many cases. I just want to
ask in this, this thing was crafted very narrowly. And being
very conscious of that very point.
But I think as Mr. Garver said and many of us have
recognized is we and our job on this side of the table is to be
conscious of the societal changes and things that happened. And
that Guardsman no longer looks the way they did 30 years ago. I
think I could have made a case then even that 20 years of Guard
or Reserve service would warrant that title of veteran. Not
the, we differentiate already on what veterans benefits you
get. My retired pay will not be the same as an active-duty
command sergeant major, and rightfully so. It will be prorated
to the time that I did. But we would each serve on that.
Is there any way that the VA, and I know we have run this
by you, we have run it by your counsel or whatever, is this
just one of those issues that is that bright line that you
cannot cross and say we support because of what it opens up?
And I do not know if that is a fair question or not. I am just
trying to get, because what I am trying to get across to you is
we want this to work exactly right for you, and the concerns
you are bringing up are all exactly valid. And I am
appreciative of them. But I think our concerns and the changing
nature of this warrants that this is a good piece of
legislation. I will just get your insights. And I know when you
are sitting at that table it is a little harder than just
telling us.
Mr. Murphy. Yes. Thank you for appreciating that. What I
can do with this is take this back and discuss it with the
Secretary's staff and possibly look for a way where we may be
able to modify this bill and come back with a support of it.
Mr. Walz. Well I would certainly appreciate that. And as I
said, I think we are working together, majority, minority
staff, and Senate, of trying to get there. I just want to make
it very clear that I am very sensitive to where you are at on
this. Very sensitive to the need to get this right. But I am
also just trying to convey that there is a very strong sense
amongst especially the Reserve component, you heard it here.
This is a very emotional issue. There are some of these that
rise to the top. This is just one as I think, you know, Chief
Garver said, it is just about honor and they feel very strongly
about it. I want to get this right and your input is absolutely
critical. So I think that, Mr. Murphy, that is fair if you take
it and try and see what you can do with the----
Mr. Murphy. You stated a moment ago about the passion that
is there behind the Guard and the Reserve members. That same
passion exists in the VA for this. This was a very hotly
contested and debated in discussion before we came out with an
official position here. There is a whole lot of passion.
Mr. Walz. I appreciate that.
Mr. Murphy. There is passion about the service that the
Guard and Reserve members have provided to this Nation,
including myself. This bill directly affects me. The person
they are describing right here is me.
Mr. Walz. Yeah.
Mr. Murphy. So I get this. And I understand.
Mr. Walz. Well I appreciate that. I just, convey that on if
you----
Mr. Murphy. I will work with the VA staff and see if there
is a way that we can get to yes with this and return that as a
question for the record.
[The VA subsequently provided the following information:]
After further consideration, VA has not changed its position
regarding H.R. 1025, nor found a workable alternative that
might ameliorate VA concerns. Please refer to VA's testimony to
further analyze our position, as it remains unchanged.
Mr. Walz. I appreciate that. Again, thank you both for your
service. I yield back.
Mr. Runyan. Thank you, Mr. Walz. And for your passion on
this, because you are in that wheel house also. And going back
to H.R. 1898 and with the Second Amendment rights. Now how long
did it take you to create the appeals process?
Mr. Hipolit. The NICS Improvement Act was enacted in 2008,
I believe. And to be honest with you, we just got the procedure
in place last year. So it was a very slow start, I will admit
that. I think now we are up to speed. We are doing it in a
timely manner.
Mr. Runyan. Okay. And that being do you have a percentage
of reinstatement as they go through this process? I mean, how
many people are actually being reinstated?
Mr. Murphy. I do. I have specific numbers.
Mr. Runyan. Not that I agree with it being taken away in
the first place, but.
Mr. Murphy. As of May 2011, VA received a total of 142
requests for relief. Of those, VA restored competency to 6
individuals, granted the relief for 1 individual, and denied 91
requests for relief. There is a specific set of detailed
criteria, outlined in the letter, that these are the items that
must be met in order to provide relief. What we have done is
written this in a way that it is not taken in a personal light.
It is taken as, ``is the individual a risk to the safety, to
society or not?'' ``Does the individual have a history of
violence?'' It is outlined by bullet in detail when we would
grant relief and when we would not. And those are the numbers
that we have as of today, or as of May, excuse me.
Mr. Runyan. And I am very hesitant in taking that right
away from anybody. I know that the Social Security
Administration has a similar kind of criteria, except it goes
to a judicial forum not a bureaucratic forum, which I think is
a more sound way to do it. Not that I would totally agree with
that either. But here you are having bureaucrats taking away
people's constitutional rights and it is very, very frustrating
to me. I am almost at a loss for words I think, kind of like
Mr. Walz is with his bill. And it being a Second Amendment
right it is just mind boggling that a bureaucrat can take that
away, let alone a judge having that ability. I am just at a
loss for words.
Do either of the other two gentlemen have any further
questions? Mr. McNerney.
Mr. McNerney. Thank you, Mr. Chairman. I would ask if Mr.
Murphy, you would you be able to provide the fast letter to the
Committee?
Mr. Murphy. Yes, sir.
[The VA subsequently provided the Fast Letter 10-51, dated
November 22, 2011, from Thomas J. Murphy, Director,
Compensation and Pension Service, Veterans Benefits
Administration, U.S. Department of Veterans Affairs, to
Director (00/21), All VA Regional Office Centers, which appears
on p. 56.]
Mr. McNerney. Thank you. Regarding H.R. 1826, under the
previous statute, the prior enactment of P.L. 109-461. How
many, what was the prevalence of folks being fined and found
guilty of criminal, or committing acts of soliciting,
contracting, charging, or so on? What was the prevalence of
violation?
Mr. Hipolit. Really, I cannot recall a single prosecution
in the time I was involved in overseeing attorney fee matters.
I just do not think it was being enforced as a criminal matter.
We did pull the accreditation of some attorneys to practice
before VA based on misconduct, but as far as criminal
prosecutions, I just do not think they were being done in the
time that I have been involved in it.
Mr. McNerney. And that, at that point that would have been
done through the DOJ as it would be with the new provisions
that we are considering, is that correct?
Mr. Hipolit. That is correct. Because it is a criminal
statute, the Department of Justice would have to enforce it,
not VA.
Mr. McNerney. So we are looking at the same situation
potentially, where violators really are not prosecuted?
Mr. Hipolit. I think it would be up to DOJ to do it, and
based on their priorities, or how strong they thought a case
might be, they would use their discretion whether or not to
prosecute.
Mr. McNerney. Okay. Thank you. I yield back.
Mr. Runyan. Mr. Walz, anything further? Well Mr. Murphy and
Mr. Hipolit, thank you for your testimony. And you both are
excused. Mr. McNerney do you have anything else? Closing
statement or anything? Well, I thank all of our witnesses today
for your testimony. And we always value your input and look
forward to working with you to perfect these bills.
I will remind everyone that the Subcommittee on Disability
Assistance and Memorial Affairs will hold a markup at 2:30 p.m.
next Thursday, July 14th in Room 334. If there is no further
business, we are adjourned.
[Whereupon, at 4:25 p.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 afternoon. The legislative hearing on H.R. 1025, H.R. 1826,
H.R. 1898, H.R. 923, and H.R. 2349 will come to order.
I want to thank you all for attending today's hearing.
As the first order of business, I ask unanimous consent that all
Members present be allowed to sit at the dais.
Having heard none opposed, so ordered.
I realize that there was a short turnaround time for the witness
invitations to this hearing due to the recent holiday.
However, I am disappointed that the VA is again considerably late
in submitting their testimony for this hearing.
It is my understanding that the written testimony submitted does
not address H.R. 2349.
I am hopeful that the VA will be able to provide us with written
testimony on that bill by close of business Monday, July 11th, so that
we might be able to weigh the VA's input on that bill before next
week's mark-up meeting of this Subcommittee.
Before I recognize Ranking Member McNerney and other Members of the
Committee, I wanted to briefly touch on H.R. 2349--which I have
introduced.
H.R. 2349, the Veterans' Benefits Training Improvement Act of 2011,
aims to improve benefit claims processing through focusing on
individualized training and skills assessment.
The bill creates an individualized training program for all
employees and managers who process or supervise the processing of
disability claims.
Annually, these employees would take a test that assesses their
skills relating to claims processing.
Following this test, VA will create an individualized training
program for each employee who took the test. This individualized
program will focus on the areas of the test where the employee showed
the greatest deficiency or need for improvement.
This focus on individual deficiencies will avoid the redundant
blanket training that many employees already endure.
There is no reason why an employee of 20 years should be taking the
same training as an employee who has been in the VA for only 2 years.
I hope that by establishing this program we are able to encourage
employees and managers alike to slow down and do the claim right the
first time. Improving the number of claims sent out the door is not
enough if the veteran is continually seeing mistakes being made on his
claim. Quality must be improved, and the only way to improve quality is
make sure that VA employees are properly trained.
While I understand that some believe this bill is very similar to
the certification testing that Congress required a few years ago, it is
different and needed because this bill provides the individualized
metrics and required follow through with training and retesting
necessary to be truly effective.
I ask all of today's witnesses to summarize your written statement
within the 5 minutes allotted, 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
The purpose of today's hearing will be to explore the policy
implications of five bills, H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898
and H.R. 2349.
The Pension Protection Act of 2011, H.R. 923, introduced by Mr.
Alcee Hastings of Florida, would prohibit VA from counting casualty
loss and pain and suffering payments as income for the purposes of
determining eligibility for the non-service-connected pension benefit.
I think this is a worthwhile bill that is on track from a policy
perspective and I look forward to advancing it to the Full Committee.
The second bill on today's agenda, H.R. 1025, sponsored by Mr.
Walz, a hard-working Member of this Committee, would grant honorary
veteran status to retired members of the Guard and Reserve who
completed 20 years of service.
I support this bill but understand the reservations concerning
moving the envelope on what type of service accords veteran status as
outlined in VA testimony and in that of some of the VSOs.
H.R. 1826, introduced by Mr. Bilirakis, would provide criminal
penalties against any person who solicits, contracts for, charges, or
receives any fee or compensation from a veteran for advice on how to
file a benefits claim or the preparation, presentation, or prosecution
of a claim before the date on which a notice of disagreement is filed
in a proceeding on the claim.
Our Nation's veterans have sacrificed so much and we must protect
them from those bad actors looking to take advantage of the benefits
they have earned and deserve.
However, I have heard concerns that this bill may create unintended
negative effects on veterans seeking help from available sources, as
well as whether imposition of criminal provisions are necessary in
light of current law and regulations or even realistically enforceable.
Next, H.R. 1898, the Veterans 2nd Amendment Protection Act,
sponsored by Mr. Denny Rehberg of Montana would require that a judicial
authority adjudicate a veteran or other beneficiary in need of
fiduciary assistance as mentally defective for the purposes of
reporting to the DOJ National Instant Background Check System (NICS),
instead of the current system which requires VA to report these
individuals to NICS.
The final piece of legislation, H.R. 2349, the Veterans' Benefits
Training Improvement Act, is your bill, Mr. Chairman which attempts to
hold the VBA to greater testing and training requirements.
I applaud your effort. Nonetheless, I have concerns that its
provisions may be duplicative or run counter to the law on testing,
certification and training as established in P.L. 110-389.
However, I understand that VA reports that it received the bill in
too late of a time frame to provide views and I want the Subcommittee
to have the benefit of all stakeholders before making a final decision
on this measure.
These are all worthwhile measures that deserve consideration by
this Subcommittee.
I thank the Members for their thoughtful legislation.
I thank our other esteemed witnesses for joining us today and look
forward to receiving their testimonies.
Thank you and I yield back.
Prepared Statement of Hon. Alcee L. Hastings,
a Representative in Congress from the State of Florida
Chairman Runyan, Ranking Member McNerney, and Distinguished Members
of the Subcommittee:
Exactly 1 year ago, I testified before this Subcommittee on H.R.
4541, the Veterans Pensions Protection Act of 2010. On July 27, 2010,
the bill was marked up and forwarded to the Committee on Veterans'
Affairs by voice vote. On September 28, 2010, the bill passed by voice
vote as part of H.R. 6132, the Veterans Benefits and Economic Welfare
Improvement Act of 2010.
Indeed, the Veterans Pensions Protection Act is a common sense and
much-needed piece of legislation. It is also well supported by numerous
veterans' organizations. I am grateful for the opportunity to once
again testify in favor of this important legislation and thank the
Subcommittee for holding today's hearing. However, I am saddened that
the Senate did not consider this bill before Congress adjourned last
year. It is my sincere hope that Congress can work together to pass
this legislation in an effort to build better lives for all of
America's veterans and their families.
I would also like to welcome and recognize the veterans in the room
today and express my gratitude for their service to our Nation. Each of
you has served our Nation with honor and dignity and for that I am
truly humbled by your service. Furthermore, I would like to recognize
and thank the countless veterans' organizations for their ongoing
commitment to our veterans.
I decided to introduce the Veterans Pensions Protection Act after
one of my constituents, Mr. Kerry Scriber, a navy veteran with muscular
dystrophy, had his pension abruptly cancelled. Mr. Scriber did not
break the law, nor did he commit any crime. In March 2008, he was hit
by a truck when crossing the street in his wheelchair with his service
dog on his way to the pharmacy. He flew 10 feet into the air and landed
head-first on the pavement, suffering broken bones and teeth.
Additionally, his service dog was injured and his wheelchair destroyed.
As a law-abiding citizen, Mr. Scriber reported the incident to the
Veterans Administration (VA), including the insurance settlement
payment that he received from the driver's insurance to cover his
medical expenses and the replacement cost of his wheelchair. As a
result, the VA cancelled his pension benefits for an entire year.
When assessing a veteran's eligibility for a pension, the VA
considers a variety of sources of revenue to determine a veteran's
annual income. If this amount exceeds the income limit set by the VA,
the veteran does not qualify for a pension or loses their benefits.
Currently, the VA considers any reimbursement that compensates a
veteran for his or her expenses due to an accident, theft, or loss as
income.
Under current law, if a veteran is seriously injured in an accident
or is the victim of a theft and receives insurance compensation to
cover their medical expenses; the replacement cost of the stolen items;
or for pain and suffering, they will likely lose their benefits. In
effect, the law punishes veterans when they suffer from such an
accident or theft.
Mr. Scriber reached out to the VA several times, asking to have his
pension reinstated because he could not cover his medical bills;
replace his wheelchair; pay for daily expenses; or afford his mortgage
without his pension. Each time, the VA refused to reinstate his
pension. He had fallen below the poverty line and was on the verge of
losing his home and joining the ranks of over 100,000 homeless veterans
nationwide. In the spring of 2009, Mr. Scriber reached out to my office
in desperate need of assistance. I contacted the West Palm Beach VA
medical center and wrote several letters to Secretary Eric Shinseki,
however they did not change their policy, nor did they restore Mr.
Scriber's benefits for a whole year.
I understand that the VA faces greater challenges as more
servicemembers return from the battlefield, but we must do everything
in our power to ensure that our veterans have the benefits they rightly
deserve. I am distraught that the VA can move so expeditiously to
cancel the pension of an unemployed and disabled veteran without
notice. The VA has a moral obligation to care for our veterans and
their families. It is disheartening that veterans are overlooked and
mistreated at times due to flaws in VA regulations.
The Veterans Pensions Protection Act amends the U.S. Code to exempt
the reimbursement of expenses related to accidents, theft, loss or
casualty loss from being included in the determination of a veteran's
income. This will guarantee the continuity of our veterans' pensions
and that no veteran will have their benefits unfairly and abruptly
depreciated or cancelled. My distinguished colleague from Montana,
Senator Jon Tester, has introduced a companion bill after a similar
incident happened to one of his constituents. The Senate Committee on
Veterans' Affairs held a hearing on the bill last month.
Clearly, there is something wrong with our current law. It is
imperative that the VA ensure that no veteran face the grave
difficulties that Mr. Scriber did. We must enact regulations that help
veterans live better lives, not hurt them, which includes issuing
pension benefits to veterans who legitimately meet the income criteria
and rely on such assistance to survive. Our veterans have shown their
devotion to our Nation with their bravery and sacrifice. We must now
prove our dedication to those heroes by treating them in accordance
with the values and ideals upon which this great Nation was founded.
Mr. Chairman, Ranking Member McNerney, Distinguished Members of the
Subcommittee, I ask for your support of this important legislation.
This concludes my testimony. I am now pleased to answer any questions.
Thank you.
Prepared Statement of Raymond Kelley, Director,
National Legislative Service, Veterans of Foreign Wars of the United
States
MR. CHAIRMAN AND MEMBERS OF THIS COMMITTEE:
On behalf of the 2.1 million members of the Veterans of Foreign
Wars of the United States and our Auxiliaries, the VFW would like to
thank this Subcommittee for the opportunity to present its views on
these bills.
H.R. 923, Veterans Pensions Protection Act of 2011
The VFW appreciates the intent of this legislation, but believes it
will impose an undue burden on VA. It would require VA to make further
determinations regarding replacement values in cases of insurance
settlements, thus reducing resources available to the timely processing
of other pension claims. These additional decisions will further delay
and complicate a relatively simple benefit. We urge the Committee to
craft a less burdensome method for accomplishing this laudable goal.
H.R. 1025, To amend title 38, United States Code, to recognize the
service in the reserve components of certain persons by
honoring them with status as veterans under law
The VFW strongly supports this legislation and its companion bill
in the Senate, S. 491, which would give the men and women who choose to
serve our Nation in the Reserve component the recognition that their
service demands. Many who serve in the Guard and Reserve are in
positions that support the deployments of their active duty comrades to
make sure the unit is fully prepared when called upon. Unfortunately,
some of these men and women serve at least 20 years and are entitled to
retirement pay, TRICARE, and other benefits, but are not considered a
veteran according to the letter of the law.
H.R. 1826, To amend title 38, United States Code, to reinstate
penalties for charging veterans unauthorized fees
The VFW strongly supports legislation that would make it a crime
for individuals or companies to charge veterans for assistance in
applying for disability benefits. Federal law prohibits charging fees
for a disability claim, but VA is currently unable to enforce the law
as there are no penalties or fines imposed. H.R. 1836 would make it a
misdemeanor with penalties and up to 1 year in prison. Protecting our
veterans from companies looking to make a profit off their service and
sacrifice will give many veterans peace of mind when filing a
disability claim. The VFW applauds this change in law, and looks
forward to its enactment.
H.R. 1898, Veterans 2nd Amendment Protection Act
The VFW supports H.R. 1898, which would provide a layer of
protection for veterans who might be seeking or undergoing mental
health care for service-related psychological disorders from losing
their Second Amendment right. Adding a provision that will require a
finding through the legal system that the veteran's condition causes a
danger to him or herself or others will prevent a veteran's name from
being automatically added to Federal no-sell lists.
H.R. 2349, The Veterans' Benefits Training Improvement Act of 2011
Chairman Runyan, thank you for seeing the importance of producing
quality disability claims. The VFW agrees that to successfully reduce
the backlog and to fix the claims processing system, producing a
quality claim the first time is a critical part of that success. Your
bill, H.R. 2349, begins the task of ensuring VA employees who process
claims have core competencies and retain those competencies in an
occupation that is always changing by evaluating their skills. However,
much like the ``Employee Certification Act of 2008,'' now section 7732A
of title 38, U.S.C., this bill is a container that will be filled with
a VA solution. As we have found with the Employee Certification Act,
that training solution has not been beneficial in improving quality
claims. The VFW's concern is that VA's solution will not be geared
toward truly improving quality, but will only be training that conforms
to the law, failing to achieve the goal of ensuring that claims
processors have the tools they need to produce quality work.
A more specific evaluation and training system is needed to ensure
our mutual goal of increasing quality claims. To do this, the VFW
believes the training and evaluation should be based on the findings of
the Systematic Technical Accuracy Review system (STAR). Each month,
STAR reports on the quality of each Regional Office. To truly improve
quality, training should be ongoing and based on the findings of the
STAR report, and conducted monthly to correct deficiencies. Tying
quality assurance with quality control will ensure that VA employees
are being trained on issues that have negatively impacted quality
claims. Also, the VFW suggests that the report to Congress should have
an explanation of how the assessments were conducted. This explanation
should include the type of assessment that was conducted and who was
responsible for the evaluations. Basing success of training on
assessment results alone will not provide a full picture of the quality
of the training.
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 Ian de Planque, Deputy Director,
National Legislative Commission, American Legion
EXECUTIVE SUMMARY
H.R. 923: American Legion supports
H.R. 1025: American Legion neither supports nor opposes
H.R. 1826: American Legion supports
H.R. 1898: American Legion supports
H.R. 2349: American Legion supports in principle with
reservations
Chairman Runyan, Ranking Member McNerney, and Members of the
Committee, thank you for this opportunity for The American Legion to
present its views on the following pieces of pending legislation.
H.R. 923: Veterans Pensions Protection Act of 2011
This bill would exclude from annual income, for purposes of
eligibility for pensions for veterans and their surviving spouses and
children, reimbursements resulting from: (1) any accident; (2) any
theft or loss; (3) any casualty loss; (4) medical expenses resulting
from any such accident, theft, or loss; and (5) pain and suffering
(including insurance settlement payments and general damages awarded by
a court) related to such accident, theft, or loss.
Currently, any money received from an insurance claim, court
judgment, or injury settlement counts toward a veteran's income when
the VA determines pension eligibility. This means low-income veterans
who are compensated even for small settlements risk losing their
pensions. The bill seeks to change the rules surrounding the income
eligibility rules. Veterans should not have to worry about losing their
pensions because they became victims by some other person's actions.
The American Legion supports this bill.
H.R. 1025: To amend title 38, United States Code, to recognize the
service in the reserve components of certain persons by honoring them
with status as veterans under law
The purpose of this legislation is to ``honor as a veteran'' those
servicemembers who complete 20 years of service in the Guard or Reserve
components, yet ``not for any purpose of benefits.'' This represents an
unusual distinction which requires further clarification. ``Veteran''
as a legal status confers certain benefits. Title 38 is quite clear in
providing specific definitions. There are legal considerations for
``claiming veteran status improperly'' here and elsewhere that carry
serious consequences.
If someone serves in the reserve components and chooses to call
themselves a veteran yet not hold out that distinction for any legal
benefit, it should not take an act of Congress to allow them to. If
instead a group of servicemembers are seeking recognition for their
service and will derive benefit from that recognition, then this should
be acknowledged. This bill seems squarely in a no-man's land between
these two possible scenarios.
Certainly, the role of the Reserve Component service-member has
changed since the Gulf War that began in 1990. Prior to that war the
reserve component was regarded as a strategic force to be called upon
when greater mobilization of the armed forces was required for our
national security. However, much of the combat power that comprises our
warfighting efforts now resides in the reserve component. For this
reason, the reserve component has changed from a strategic force to an
operational force. Thus, in a wartime era where we as a Nation are more
reliant on the Guard and Reserve, it is imperative that earned benefits
fairly reflect level of sacrifice. The American Legion will continue to
review the issue of fair entitlements for Reserve and Guard members to
develop a fair and complete organizational resolution that supports
fair equity in benefits for all who have served.
However, in the case of this piece of legislation, there still
remain too many unanswered questions, and as The American Legion is a
grassroots organization deriving its operational mandate from the will
of the 2.4 million members, we cannot support or oppose this
legislation without a more clear position in the form of a resolution
provided by membership.
The American Legion neither supports nor opposes this legislation.
H.R. 1826: To amend title 38, United States Code, to reinstate criminal
penalties for persons charging veterans unauthorized fees
This bill does exactly what is stated in the title, reinstating
criminal penalties for those who seek to exploit veterans with
unauthorized fees. The American Legion supports this needed
legislation, and recognizes its importance in the changing landscape of
veterans benefits.
As a greater proportion of veterans are reaching retirement age and
older, the group is growing increasingly vulnerable to predatory
influences already preying on the segment of the population requiring
elder-care. As this trend continues, the potential for fraud increases
more and more. Already The American Legion has recognized anecdotal
evidence of veterans being taken advantage of for profit. This practice
is particularly despicable when it is considered the majority of
veterans falling prey to predatory schemes are those in need of non-
service-connected pension, and therefore the most financially needy of
veterans. This practice cannot continue.
The American Legion does not and will not charge veterans for
assistance with their claims for deserved benefits. While we recognize
some parties may justly charge veterans for services, particularly at
the higher court levels, this is indeed an area where the veterans most
deserving of benefits are seeing their earned benefits leached away.
Real consequences are needed to help curtail this practice.
The American Legion supports this legislation.
H.R. 1898: Veterans 2nd Amendment Protection Act
The American Legion firmly supports the right of all Americans to
keep and bear arms as protected in the Bill of Rights. We support this
legislation because it recognizes certain provisions of the veterans
disability process are separate and distinct from those in other
portions of the law, and there should not be an automatic
transferability of findings.
Put simply, a veteran found incompetent to manage their own funds,
as may be the case in fiduciary findings, is not necessarily
incompetent to make other choices about their life, such as the
responsible use of firearms. Often findings in a veterans disability
case may reflect competency issues with finances which in no way
reflect their rest of their capacity to make responsible and adult
choices about behavior inherent to participation in polite society.
In some ways, an automatic structure to the law reinforces already
negative stereotypes about ``crazy post-traumatic stress disorder
(PTSD) veterans'' and ``Rambo like sprees'' when the facts clearly bear
out the reality is far to the contrary. The vast and overwhelming
majority of veterans suffering from mental disorder suffer only
partially, and while they may have diminished emotional performance
necessitating compensation, they are hardly unfit to make adult
decisions and live their lives responsibly. When stigmas are
reinforced, they unnecessarily contribute to the problem of veterans
refusing to seek treatment because of associated stigma, and they
therefore compound their disability by letting it remain untreated.
The law still allows for veterans to be found a by judge,
magistrate, or other judicial authority of competent jurisdiction that
such person is a danger to himself or herself or others, so this is not
a wholesale removal of a bar to truly dangerous individuals. This
merely removes the unjust situation wherein veterans are judged solely
by a class to which they belong, and not due to the individual merits
of their situation.
The American Legion supports this legislation.
H.R. 2349: Veterans' Benefits Training Improvement Act of 2011
This bill is intriguing in principle and addresses in some way a
key concern of The American Legion regarding the operation of the
claims benefits system, namely the lack of consequences to VA employees
for failing to understand the system they are implementing. As it
presently stands, veterans and veterans alone bear the lion's share of
consequences from faulty decision-making. This is fundamentally unfair
in a system ostensibly designed to compensate them for service derived
disabilities.
While this proposal is intriguing, there are some concerns which,
if properly addressed could make the overall proposal a helpful tool in
moving the benefits system in the direction of providing the aid to
veteran as intended.
The bill proposes an annual assessment of skills of appropriate
employees and managers, with a required remedial development plan
demanded when employees and managers prove deficient in areas
identified by testing. While the concept behind this is laudable, there
is already certain required testing, and perhaps the real question is a
lack of enforcement or consequences for testing already in place.
Certainly, there have been anecdotal complaints from employees of being
managed by personnel with no knowledge of the required tasks. This is
problematic in some senses, because in order to develop an effective
management plan one should certainly have knowledge of the operations
being performed.
Any remedial program should be conducted with the ultimate aim of
improving the overall operations. As The American Legion has previously
stated on numerous occasions, there is a fundamental flaw in VBA's
error reporting system in that it does not have a mechanism to direct
training. If there is to be testing of skills, this also should
naturally flow into directing a training mechanism. If a child fails
all of the problems on a math test relating to binomial equations, a
teacher or parent knows to work with that child on binomial equations.
Similarly, if the entire class or a lion's share of the class fails the
same problems, the teacher can realize there may be systemic inadequacy
in how the portion of the class relating to binomial equations is being
taught. This is what The American Legion believes must drive VBA's
training regimen.
Whether though testing or examination of errors through STAR and
evaluation of common errors at the Board of Veterans Appeals and the
Appeals Management Center, VBA must find a way to identify their weak
points and strengthen them.
In principle, The American Legion believes this legislation could,
with some refinement to ensure it meshes more properly with existing
testing structures, be helpful in changing the problem with training as
outlined above. Follow through to ensure compliance will be essential,
and as we have been previously critical of VBA's policy of granting
bonuses while failing to meet mission goals, perhaps some mechanism
could be devised to also tie knowledge of material to bonus criteria,
in addition to meeting mission goals. We cannot afford a repeat
situation, such as in 2010, where VBA saw a decrease in accuracy rate,
and an increase in number of claims pending over 125 days, and yet the
average Senior Executive Service bonus in VBA exceeded the annual
income of a veteran living on pension.
The American Legion supports this bill with reservations, related
to implementation.
As always, The American Legion thanks this Committee for the
opportunity to provide commentary and to explain the position of the
over 2.4 million veteran members of this organization.
Prepared Statement of Jeffrey C. Hall,
Assistant National Legislative Director, Disabled American Veterans
EXECUTIVE SUMMARY
H.R. 2349--the Veterans' Benefits Training Improvement Act of 2011
would direct the Secretary of Veterans Affairs to annually assess the
skills of certain employees and managers of the Veterans Benefits
Administration.
DAV supports the intent of this legislation to train,
test and hold accountable all employees and managers involved in claims
processing, however Congress should first enforce existing testing
requirements before moving new legislation.
VBA training and testing programs must be fully
integrated with existing and new quality assurance and quality control
programs to ensure that claims are done right the first time.
If new testing requirements are to be implemented, VBA
must be required to consult with VSO stakeholders and employee
representatives in developing such tests.
H.R. 1025--would recognize, as veterans, members of the reserves
who retire due to age; however, these individuals would not be entitled
to benefits by virtue of this status alone. DAV is concerned about
creating misunderstanding in the American public about who is a
``veteran'', while also causing confusion amongst reservists as to
their entitlement to veterans benefits.
H.R. 1826--would establish criminal penalties for persons
unlawfully charging veterans unauthorized fees for claims
representation. DAV supports this legislation in order to strengthen
legal protection for disabled veterans' resources.
H.R. 1898--the Veterans 2nd Amendment Protection Act would prevent
veterans from being adjudicated as mentally incompetent to purchase a
firearm without an order or finding from a judge, magistrate or other
judicial authority. DAV has no position on this legislation.
H.R. 923--the Veterans Pensions Protection Act of 2011 would
exclude from annual income calculations for non-service-connected
pension benefits, insurance reimbursements resulting from accidents,
theft or loss. DAV does not oppose passage of this legislation.
__________
Chairman Runyan, Ranking Member McNerney 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 non-profit
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 the bills under consideration by the
Subcommittee.
H.R. 2349, the Veterans Benefits Training Improvements Act of 2011,
would require appropriate Veterans Benefits Administration (VBA)
employees and managers involved in processing claims for compensation
or pension benefits to have their skills assessed annually. Any
employee or manager who receives a less than satisfactory result on any
part of the assessment would be subject to remediation to address each
deficiency in their skills. The legislation also requires each of these
employees and managers to have individualized training plans developed
and implemented related to their skills or lack thereof. If after two
opportunities for remediation, the employee or manager is still unable
to receive a satisfactory result on their assessment, they would be
subject to disciplinary actions. The legislation also requires an
annual report detailing the results of the new annual skills
assessments, including a summary of the remediation efforts and
disciplinary actions.
Mr. Chairman, DAV has long supported the intent of this
legislation: to require testing, training and accountability for all
employees and managers involved in processing claims for veterans
disability compensation benefits. Like you, we believe regular testing
of all relevant employees and managers is an effective way to determine
if they have the requisite skills to properly perform their jobs. When
testing finds gaps or deficiencies in the skills or knowledge required
to properly process veterans' benefit claims, it is imperative that
additional, targeted training be provided to those employees or
managers in order to bring their skills up to the level required by
their positions. However, should repeated attempts to correct such
identified deficiencies be unsuccessful, it is incumbent upon VBA to
take appropriate personnel actions so that only qualified employees and
managers are involved in processing claims. Only through such training
and testing, as well as comprehensive quality control measures, can VBA
develop a claims processing system that provides both accurate and
timely results for disabled veterans, their loved ones and survivors.
DAV's employee training and development program includes
significant training and testing requirements for each of our
approximately 300 National Service Officers (NSOs) and Transition
Service Officers (TSOs). Each of them are required to successfully
complete our comprehensive 32-month Structured and Continued Training
program approximately every 3 years, which includes numerous
examinations that must be passed in order to continue moving forward.
We hold our supervisors to the same high standards set for the
personnel they manage, including all testing requirements.
However, while we agree that new testing requirements may be
necessary at VBA, we would recommend that before attempting to enact
new legislation, Congress should first examine how similar laws already
on the books are being implemented and enforced. Perhaps more
importantly, we believe it is imperative that all training and testing
programs are made part of and fully integrated within existing and new
quality assurance and quality control programs. The goal must be to
create a continuous improvement program that identifies employee
errors, as well as systemic flaws and weaknesses before they lead to
inaccurate decisions for veterans.
Mr. Chairman, as you know Public Law 110-389, the Veterans Benefits
Act of 2008, which was enacted on October 10, 2008, required VBA to put
in place a certification examination process for VBA employees and
managers involved in processing claims, which included some language
very similar to language found in H.R. 2349. Yet, almost 3 years after
enactment of that legislation there are still gaps in and problems with
this testing process. While certification exams were developed for
Veterans Service Representatives (VSRs), Rating Veterans Service
Representatives (RVSRs) and Decision Review Officers (DROs), there are
not yet any examinations for coaches, supervisors or managers in VBA
Regional Offices (ROs).
Although the law required it, VBA did not consult with ``interested
stakeholders'' in developing these examinations; neither DAV nor other
veterans service organizations involved in claims process were
consulted. Considering DAV's role, experience and expertise in the
processing of claims for disability compensation, we believe VBA would
be well served to consult with DAV and other VSOs when developing tests
or examinations for their employees and managers.
While the intention of P.L. 110-389 was to ensure that all relevant
VBA employees had the requisite skills to do their jobs, we have been
told that the examinations are primarily being done only when there is
a GS-level grade increase or other promotion under consideration. We
have also heard complaints that the examinations do not properly assess
the skills or knowledge required for each position. There have also
been some reports that early versions of the examinations resulted in
extremely high failure rates. We would encourage the Subcommittee to
require VBA to provide comprehensive information on the development and
implementation of the certification examinations required by section
7732A of title 38, including examinations for managers. While there are
still problems and questions related to the implementation of these
certification examinations, DAV believes it would be premature to
insert into title 38 a new section 7732B creating an annual employee
assessment program without first fixing the problems with the existing
testing program created by section 7732A.
While testing and training are essential to reforming the claims
processing system they must be integrated into VBA's quality assurance
and control programs to provide effectiveness. Results of employee
testing do not just point out individual weaknesses that must be
addressed; they also reveal systemic problems in both the claims
process as well as employee training programs themselves. Unless there
are direct linkages between training, testing and quality control, VBA
will miss the opportunity to take full advantage of the myriad of data
that exists, including STAR reviews, coaches reviews, Board of Veterans
Appeals remands and other quality assurance programs. VBA may want to
consider whether to consolidate training, testing, and quality control
programs in a single location under the control of the Compensation
Service.
Additionally, we offer the following recommendations to strengthen
the language in H.R. 2349 should this or something similar be advanced
by the Subcommittee. As introduced, the bill would require that the
Secretary, ``. . . annually assess the skills of appropriate employees
and managers . . .''. While we understand that the term ``assess'' is
intended to be mean an objective test, the terminology is not specific
enough and should be clear on the type of assessment required. Since
section 7732A of the statute that would precede this new section uses
the term ``examination'', we would recommend that more specific
language be used to indicate exactly what type of assessment is
intended in a new section 7732B.
We also recommend that the Subcommittee consider further defining
who the ``appropriate employees and managers'' would be. In particular,
DAV believes that coaches, supervisors and managers who have the
authority to overrule the judgment of an employee should be held to the
same testing standard as that employee. It is important for any new
legislation to specify exactly which employees and managers to be
tested annually, as well as what testing requirements for managers that
are substantially similar to those taken by the employees they
supervise.
Likewise, DAV strongly recommends that language about test
development, similar to that already in section 7732A, be included in
any new testing legislation. This would allow proper consultation with
VSO stakeholders, as well as employee representatives, so that our
input can be fully integrated in the development and implementation of
new testing procedures.
Moreover, DAV recommends that the Subcommittee include new language
to ensure that the results of any new testing be used to identify not
just employee deficiencies, but also problems in the training and
claims processing systems. All quality assurance and control measures,
whether for employees, stations or the entire claims processing system,
should be aggregated and analyzed together in order to identify error
trends. For example, if a statistically relevant number of employees
all fail a particular part of a skills test or exam, VBA must not just
remediate those employees, but also consider whether there are system-
wide problems related to this aspect of the job, or whether training
modules need to be changed, or whether the test itself needs to be
changed. The new Veterans Benefits Management System should serve as
the backbone to bring together all of this separate data into a unified
quality control system that is continuously using test results to
strengthen training and to strengthen claims processing accuracy.
Finally, we strongly recommend that the Subcommittee change the
term ``disciplinary action'' to ``personnel action'', which accurately
conveys the importance of individual accountability without needlessly
appearing to be punitive. Disciplinary actions imply misconduct or the
breaking rules or laws. Employees who perform unsatisfactorily on tests
or who are unable to properly perform their jobs may need to be moved
out of their position, which should not be seen as a disciplinary
action or punishment.
Mr. Chairman, like you, we believe that training and testing are
important components of a benefits system designed to decide each claim
right the first time. However, we believe Congress must first examine
if and how current training and testing requirements are being
implemented and enforced before adding new testing requirements,. More
importantly, we believe that training and testing must be fully
integrated with quality assurance and quality control programs to truly
reform the claims processing system and would welcome the opportunity
to work with the Subcommittee towards that goal.
H.R. 1025 would amend title 38, United States Code, by recognizing
as veterans those members of a reserve component of the armed forces
who are entitled to retired pay for nonregular service. Should this
legislation be passed, it would honor this group of reserve component
retirees with the status of veteran; however, this new status alone
would not entitle these individuals to any benefit provided to those
who served on active duty.
DAV does not have a resolution on this matter. We are concerned,
however, that measures such as this may lead to a misunderstanding in
the minds of the American public about those veterans who earned the
designation of veteran by virtue of their active duty service, compared
to those who would be granted the honorary title of veteran. Moreover,
we feel a subsequent confusion might be created amongst reservists as
to exactly what benefits they would be entitled to receive.
H.R. 1826 would institute criminal penalties for persons charging
veterans unauthorized fees for representation before the Department of
Veterans Affairs (VA). Specifically, this bill would establish
penalties, including fines and/or imprisonment of not more than 1 year
as provided under title 18, for anyone who solicits, contracts for,
charges, receives, or attempts to solicit, contract for, charge, or
receive, any fee or compensation for advice on how to file a claim for
benefits or the preparation, presentation, or prosecution of a claim
before a claimant has submitted a ``notice of disagreement'' (NOD) in a
proceeding on the claim.
While DAV has no specific resolution on this matter, we see the
intent of legislation as vital to the protection of veterans'
resources, which are often limited or fixed. The process upon which
veterans, their families and beneficiaries receive benefits is designed
so that they will receive the full measure of aid from disability
compensation and other monetary payments without unnecessarily having
part of that benefit diverted into the pockets of others who have no
entitlement to them. Although current law only allows attorney's to
collect fees for representation once a claimant enters into the
appellate process, it does not include penalties for anyone who
unlawfully collects fees for representation prior to an NOD being
filed. If enacted, this legislation would codify criminal penalties in
order to better protect veterans from such abuse.
Although DAV has not yet adopted a specific resolution on this
particular matter, we support passage of H.R. 1826.
Mr. Chairman, we would also note that from the inception of a claim
and through all phases of the process, a claimant can obtain
professional quality representation at no cost from accredited Veterans
Service Organizations (VSOs), such as DAV, or from other accredited
organizations. Although the current process allows an attorney to
collect fees from a claimant we continue to be concerned that there is
no limitation on the amount of fees that may be charged by attorneys
for representing a veteran. During our 2010 National Convention DAV's
membership adopted resolution #288 calling for legislation to provide a
reasonable cap on the amount of fees an attorney can charge veterans
for benefits counseling and claims services before VA and we urge the
Subcommittee to consider such legislation.
H.R. 1898, the Veterans 2nd Amendment Protection Act, would clarify
the conditions under which certain persons may be treated as
adjudicated mentally incompetent without an order or finding from a
judge, magistrate or other judicial authority. This legislation
provides that, in the absence of a judicial determination of mental
incompetency, VA would be prohibited from reporting an individual
veteran's identity or competency status to any authority that could
restrict that veteran's ability to purchase a firearm.
DAV has no resolution on this matter and takes no position on this
bill.
H.R. 923, the Veterans Pensions Protection Act of 2011,would exempt
or exclude reimbursements of expenses related to accident, theft, loss,
or casualty loss from determinations of annual income with respect to
non-service-connected pension benefits. This legislation is intended to
ensure those individuals who are in receipt of this income limited
benefit will not have their benefit reduced because their loss was
covered by insurance.
Although this issue is outside the scope of our mission we would
not oppose passage of H.R. 923.
Mr. Chairman, this concludes my testimony and I would be happy to
answer any questions the Subcommittee may have. Thank you.
Prepared Statement of Al Garver, Executive Director,
Enlisted Association of the National Guard of the United States
Chairman Runyan, Ranking Member McNerney, Members of the Committee,
thank you for the opportunity to testify today.
As the Executive Director of the Enlisted Association of the
National Guard of the United States (EANGUS), I am here to speak on
behalf of the 412,000 soldiers and airmen currently serving in our
Nation's National Guard. In this instance, I am also speaking on behalf
of their families, as well as the hundreds of thousands of retired
Guardsmen across America. I hope my testimony might have additional
impact due to my 28 years of service--including 8 years on active duty
and 20 years in the Guard and Reserve--and that I am still serving
today as a Senior Master Sergeant in the U.S. Air Force Reserves at the
Pentagon.
When I first learned of this bill last year, I frankly read it in
disbelief. In the past 20 years of my service in the Guard and Reserve,
I was completely unaware that there were retired Guardsmen and
Reservists who were not considered ``veterans'' simply because they
served their entire period of service without ever having been
activated for a qualifying period of Federal active duty service. While
the actual numbers of Guardsmen who fall into that category may be
relatively small, I think it is safe to state it is likely that none of
them--right now . . . today--even know that they are not considered
``veterans.''
When my father, a World War II veteran, died in 1996, I was in
charge of his funeral arrangements. I was told by the funeral director
what his veterans benefits included. I was asked if we would like to
inter him in a veterans cemetery. He served for 4 years on active duty
in the U.S. Navy, from 1941 to 1945, and I remember thinking how nice
it was that our Nation wanted to honor his service in that way. Now
imagine the shock of the family of a retired Guardsmen who served 20-40
years, being told by a funeral director and the Veterans Administration
that they would not qualify for those same honors and that their loved
one was ``technically not a veteran.'' It is difficult to fathom how
this loophole has gone on unnoticed and without remedy for so long.
EANGUS is truly indebted to Congressman Tim Walz, a retired Command
Sergeant Major with 24 years of service in the National Guard, for
championing this issue and EANGUS is proud to endorse his legislation,
H.R. 1025.
The Guard has evolved over 375 years from a simple volunteer
militia, to an operational reserve force that can be activated at both
the State and Federal level. This makes for a rather interesting legal
framework required to authorize and support a variety of missions.
Everyone on this Committee clearly understands the difference between
title 10 status, when the President is in command, and title 32 status,
when a specific State governor exercises command over the Guard. This
difference is not so simple when one takes into account title 38 and
veteran status. As the Federal component of the Guard's legal
structure, title 10 neatly dovetails into title 38 and veterans issues,
but the same cannot be said between title 32 and title 38. H.R. 1025
bridges the gap between title 32 and title 38, by changing the
definition of veteran in title 38, section 107(A) and by linking
veteran status to title 10 retirement pay for non-regular service.
During last year's consideration of H.R. 3787, which was similar
legislation sponsored by Congressman Walz in the 111th Congress, the
Congressional Budget Office officially stated:
``Under H.R. 3787, those honorary veterans would not be eligible
for additional benefits from the Department of Veterans Affairs based
on this new status. Thus, CBO estimates that the bill would have no
budgetary impact. Enacting H.R. 3787 would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.''
A similar endorsement was made by the Department of Veterans
Affairs and H.R. 3787 moved easily through the House, but languished in
the Senate at the end of last year. H.R. 1025 was carefully drafted to
ensure that this broader definition of the term veteran would not be
applicable for purposes of compensation; for purposes of dependency and
indemnity compensation; or for purposes of hospital, nursing home,
domiciliary and medical care. If enacted into law, this bill will be at
NO COST to the Nation. Let me emphasize that this issue of bestowing
veteran status is a matter of honor, nothing more . . . nothing less.
This year, the Senate companion bill to H.R. 1025, S. 491, was
introduced by Senator Mark Pryor in March, and the Senate Committee on
Veterans' Affairs recently held a hearing on the bill on June 8th. With
movement on both the House and Senate versions, I am optimistic that
both chambers of Congress can advance this worthy legislation before
the end of the year, and hopefully in time for Veterans Day on November
11th.
The Enlisted Association of the National Guard of the United States
respectfully requests that the Subcommittee favorably report the Honor
America's Guard Reserve Retirees Act of 2011 to the full House
Committee on Veterans' Affairs.
Thank you for the opportunity to testify today, and I look forward
to your questions.
Prepared Statement of Jimmy F. Sims, Jr., Rating Veterans Service
Representative, Veterans Benefits Administration Regional Office,
Winston-Salem, NC, U.S. Department of Veterans Affairs, and AFGE
Local 1738 Steward, American Federation of Government Employees,
AFL-CIO, and AFGE National Veterans Affairs Council
EXECUTIVE SUMMARY
AFGE supports the goal of H.R. 2349 to improve the VBA training
process by focusing on the skills of managers as well as employees.
Managers are in great need of more subject matter expertise and hands-
on experience to carry out their supervisory, quality assurance, and
teaching roles. We also support individualized training plans that
would give each employee a meaningful opportunity to improve the
quality of his or her work and provide management with a valuable
feedback loop for identifying deficiencies in training, supervision and
information technology.
When employees and managers fail to make performance improvements
after attempts at remediation, the appropriate response is a personnel
action (e.g. reassignments, demotions, and terminations), not a
disciplinary action.
We strongly urge the creation of a Joint AFGE-VSO Advisory Group
that would consult regularly with VA officials on training, skills
certification, performance standards and other aspects of the claims
process.
The proposed assessment and remediation processes should leave less
discretion to local managers to ensure consistency across ROs and
reduce the risk of continued misuse of Performance Improvement Plans.
VBA's current training capability will not support this
legislation. A stronger centralized training program and greater
expertise among trainers and supervisors are essential first steps to
effective implementation of H.R. 2349. To increase training
consistency, the Subcommittee may also wish to consider centralized
video training.
Annual assessments (Sec. 7732B(a)(1)), using skills certification
tests, would be helpful for identifying both individual employee
deficiencies as well as RO-wide and/or national deficiencies.
The proposed Individualized Training Plans (section 7732B(a)(2))
will only be effective if VBA addresses existing weaknesses in its
training programs. Local managers under intense production pressures
have full discretion to design training for 40 of the 85 hours, and too
often, fixed hours of classroom training with significantly less
``excluded time'' to learn complex concepts online.
For remediation of deficient skills (section 7732B(b)(1), AFGE
urges a clearer and more consistent use of ``Performance Improvement
Plans'' (PIP) governed by 5 U.S.C. section 4302, to ensure that PIPs
are used to employees with meaningful opportunities to overcome
deficiencies, not as a tool to target disliked employees.
__________
Dear Chairman Runyan, Ranking Member McNerney and Members of the
Subcommittee:
Thank you for the opportunity to testify on H.R. 2349 on behalf of
the American Federation of Government Employees and the AFGE National
VA Council (hereinafter ``AFGE''). AFGE is the exclusive representative
of Department of Veterans Affairs Veterans Benefits Administration
(VBA) employees who process disability claims.
AFGE commends the Chairman for introducing legislation that would
improve the VBA training process by focusing on the skills of managers
as well as employees. Given the growing complexity of VBA claims, any
effort to improve the claims process must tackle the problem of
managers who lack sufficient expertise and experience to carry out
their supervisory, quality assurance, and teaching roles.
We also support the concept of individualized training plans that
target deficiencies in specific skills. This approach would give each
employee a meaningful opportunity to improve the quality of his or her
work. Equally important, it would give management a valuable feedback
loop for identifying deficiencies in training, supervision, information
technology and other factors that are adversely impacting the workforce
as a whole.
We have several general comments on the bill:
We urge elimination of the proposal for disciplinary
actions for employees and managers who fail to improve their
performances. Rather, Federal employers use personnel actions (e.g.
reassignments, demotions, and terminations) to address performance
after attempts at remediation.
We strongly support the creation of a Joint AFGE-VSO
Advisory Group that would consult regularly with VA officials on
training, skills certification, performance standards and other aspects
of the claims process.
We are concerned about the lack of specific details in
the proposed assessment and remediation processes; too much local
discretion will lead to great inconsistencies across regional offices
(RO), and continued misuse of the performance improvement process, at
the cost of workplace morale and missed opportunities for quality
improvement.
Currently, VBA lacks the training capability and
sufficient subject matter experts to carry out the mandates of this
bill. A stronger centralized training program and greater expertise
among trainers and supervisors are essential first steps to effective
implementation of H.R. 2349.
Section-by-Section Comments (referring to 38 U.S.C. 7732)
Sec. 7732B(a)(1): Annual Assessment
Annual assessments would be helpful for identifying both individual
employee deficiencies as well as RO-wide and national weaknesses in
training, supervision, information technology and other factors that
impact quality and production.
We urge the Subcommittee to use the existing skills certification
tests as an assessment tool rather than develop a new assessment tool.
VBA already administers certification tests for VSRs, RVSRs and DROs.
However, these certification tests have been plagued by longstanding
problems with test design, test administration and test preparation
curriculum.
Section 225 of P.L. 110-389 requires VBA to develop certification
exams for ``appropriate employees and managers'' in consultation with
stakeholders and employee representatives. Again, AFGE strongly
supports the creation of the Joint AFGE-VSO Advisory Group to carry out
these functions. With the regular input of front line employees and
veterans service officers, who have critical expertise in both process
and subject matter, the VSR, RVSR and DRO tests can better assess the
skills that are actually needed to get the claims processed correctly
the first time. Our members report that too often, these tests measure
test taking skills rather than needed job skills, or that they are too
basic and fail to assess skills needed to handle more complex issues.
H.R. 2389 requires that ``appropriate employees and managers''
undergo annual assessments. We urge the Subcommittee to include all
managers involved in supervision, training, mentoring and quality
assurance. We find it very troubling that VBA new supervisor training
currently states in very specific terms that supervisors do not need to
know the job of the employees they supervise!
AFGE was troubled to learn from the last consultant team working on
skills certification tests that their goal was to develop strong test
questions, rather than test knowledge. We are concerned that the
current contractor (Camber) will continue to take this approach.
Employees must be able to rely on these tests to maintain their jobs.
It is both unfair to the workforce and poor policy to judge employees
based on the number of times they take an exam that does not adequately
test knowledge.
Finally, VBA has still not implemented the manager skills
certification test. Public Law 110-389 required that that this test be
developed by October 2009 and administered within 90 days after
development (January 2010). If managers had been subject to a reliable
skills certification test for the past year and a half, we would
already be seeing improvements in the quality of claims, VBA training
programs and production levels.
Sec. 7732B(a)(2): Individualized Training Plan
The proposed Individualized Training Plan will only be effective if
VBA addresses existing weaknesses in its training programs. AFGE has
longstanding concerns about the consistency and quality of training
provided to meet the 85 hour yearly training mandate. Currently, only
45 of the 85 hours of training are designed centrally.
Consequently, local managers under intense production pressures who
often lack training expertise have full discretion to design training
for the remaining 40 hours. Our members report that managers regularly
substitute fixed hours of classroom training on complex concepts with
significantly less ``excluded time'' to learn this information online
without any instruction.
Individualized training plans will only be effective if they are
designed with the input of front line employees and their
representatives and VSOs working with managers who possess adequate
skills in claims processing and training. In some offices, simply being
promoted to a Decision Review Officer or Super Senior VSR automatically
qualifies the employee as a trainer who is immediately thrust into an
instructor role.
VBA also needs to develop and update training curriculum on a
timelier basis. Employees are forced to process complex new claims
(e.g. in response to a court case or legislation) for months and
sometimes years before receiving pertinent training and guidance.
Section 7732B(b)(1): Remediation of Deficient Skills
This bill provision generally describes a process similar to the
``Performance Improvement Plan'' (PIP) for Federal employees that is
governed by 5 U.S.C. section 4302. Our members experience widely
inconsistent uses of PIPs in their ROs, and far too often, managers use
PIPs to get rid of employees they do not like, rather than provide
employees with meaningful opportunities to receive training and
assistance to overcome deficiencies. Abuse of the PIP process lowers
morale, results in unnecessary terminations, and wastes VA human
resource dollars.
Therefore, a remediation process must be clear and consistent
regarding time frames and number of times that remediation is provided.
Also, the manager assessing the deficient employee's progress during
remediation must have sufficient expertise and be impartial. If not, RO
managers will continue to let favored employees (and managers) succeed
while depriving others of a fair chance to improve their skills and
retain their jobs, leading to more errors and delays in the claims
process.
Section 7732B(b)(2): Disciplinary actions for unsatisfactory
performance
As noted, AFGE strongly objects to the use of disciplinary actions
to address unsatisfactory performance. This approach is inconsistent
with Federal personnel law and practice. Rather, after remediation
efforts have failed, employees should be subject to personnel actions,
e.g. reassignment, demotion or termination as a last resort.
Across the country, our members report that front line employees
are working in good faith under intense pressure to meet production
standards. They work through lunch, breaks, evenings and weekends to
work claims and learn new skills. If they try, but fail to improve
their skills in their current position, the proper and efficient
response is to first attempt reassignment to a different position.
These employees have already received training and have useful
experience that can be put to use in another position at VBA.
Greater Oversight of VBA Training Is Critical
In the fall of 2010 I served as a member of a special Site Team
that looked at the implementation of the final phase of new employee
initial training. We found that this training phase was not being
implemented consistently across the Nation. We also found that many
employees were not receiving the training designed by the Central
Training Staff. This report was provided to the Under Secretary for
Benefits, yet to this date, no action has been taken to correct these
discrepancies.
We also fear that efforts to improve VBA training will continue in
the same path as the Systematic Technical Accuracy Review (STAR)
program. In March 2009 the VA Office of Inspector General (OIG)
identified numerous problems with the training and monitoring of the
STAR staff. It was more than 1 year before VBA took steps to act upon
the OIG findings. A 2010 Government Accountability Office investigation
revealed that STAR continued to be plagued by significant problems that
were directly linked to the issues identified in the 2009 OIG report.
Given VBA's poor track record at implementing needed changes, AFGE
strongly encourages the creation of the Joint AFGE-VSO Advisory Group
previously discussed that will regularly report back to Congress on the
progress of VBA reforms.
Prepared Statement of Richard Paul Cohen, Executive Director,
National Organization of Veterans' Advocates, Inc.
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
Thank you for the opportunity to present the views of the National
Organization of Veterans' Advocates, Inc. (``NOVA'') concerning pending
legislation.
NOVA is a not-for-profit Sec. 501(c)(6) educational membership
organization incorporated in 1993. Its primary purpose and mission is
dedicated to train and assist attorneys and non-attorney practitioners
who represent veterans, surviving spouses, and dependents before the
Department of Veterans Affairs (``VA''), the Court of Appeals for
Veterans Claims (``CAVC''), and the United States Court of Appeals for
the Federal Circuit (``Federal Circuit'').
NOVA has written amicus briefs on behalf of claimants before the
CAVC, the Federal Circuit and the Supreme Court of the United States of
America. The CAVC recognized NOVA's work on behalf of veterans when it
awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000.
The positions stated in this testimony have been approved by NOVA's
Board of Directors and represent the shared experiences of NOVA's
members as well as my own 19-year experience representing claimants
before the VBA.
H.R. 1826
This bill seeks to amend 38 U.S.C. Sec. 5905 to impose a penalty of
fine or imprisonment on those accredited attorneys and agents who are
found to be soliciting, contracting for, charging or receiving fees or
attempting to do so, for providing advice on how to file for VA
benefits or for preparing a claim. It also penalizes unlawfully
withholding any part of a benefit that is due the claimant.
It is unnecessary to create additional penalties for improper fee
practices of accredited attorneys, because if such improper conduct
occurs it will be sufficiently regulated by the VA and by State Bar
Associations. Thus, the VA's regulations prohibit soliciting,
contracting for or receiving fees from claimants prior to the filing of
a Notice of Disagreement. An accredited attorney who violates the VA's
regulations is subject to suspension or cancellation of accreditation,
that is, the right to represent claimants before the VA. 38 CFR
Sec. Sec. 14.632 (c)(5), (c)(6), 14.633. Punishment of improper fee
practices by accredited attorneys does not stop with losing
accreditation because, most State Bar Associations have adopted
variations of the ABA Model Rule 1.5(a), ABA Model Rules of
Professional Conduct which prohibit unreasonable fees and which can
result in disbarment, or loss of the privilege of practicing law. Even
without State Bar Association rules, loss of VA accreditation may
result in disbarment because of reciprocal enforcement of disciplinary
findings and sanctions. See, for example, Rules 6 and 22, ABA Model
Rules for Lawyer Disciplinary Enforcement.
Similarly, accredited agents, who are not attorneys, are also
subject to the VA's rules prohibiting improper fees and may be punished
by removal of their privilege to represent veterans.
There may be, however, unregulated persons representing veterans
who should be subject to criminal sanctions. For example, NOVA has been
told that there are some insurance agents and ``VA advisors'', who are
neither VA accredited attorneys nor accredited agents, and who have
been receiving fees from elderly veterans and their families for legal
advice regarding and for assistance with preparation of applications
for aid and attendance benefits from the VA.
In order punish the conduct of those insurance agents NOVA
recommends that the bill be rewritten to target the under regulated
conduct of insurance agents and VA benefits advisors and to establish
penalties for improper fees in a new chapter 60 added to title 38 and
directed toward persons other than accredited agents and attorneys who
are not now regulated.
H.R. 1898
This bill would add 38 U.S.C. Sec. 5511 to insure that a veteran
who is deemed mentally incapacitated or incompetent or who experiences
extended loss of consciousness will not be automatically considered
adjudicated as a mental defective under 18 U.S.C. Sec. 922(d)(4) or
(g)(4), and thus prohibited from purchasing or possessing a firearm,
without a specific judicial finding that such person is a danger to
himself or others.
This is important to prevent veterans from unjustly losing their
right to a firearm merely because of a VA determination of
incompetency. Presently, regulations from Bureau of Alcohol, Tobacco,
Firearms, and Explosives, Department of Justice define a person as a
mental defective, who is prohibited from buying or possessing a gun, in
27 CFR Sec. 478.11 as a person who has had:
(a) A determination by a court, board, commission, or other
lawful authority that a person, as a result of marked subnormal
intelligence, or mental illness, incompetency, condition, or
disease:
1. Is a danger to himself or to others; or
2. Lacks the mental capacity to contract or manage
his own affairs.
Although section 105 of the ``NICS Improvement Amendments Act of
2007'' P.L. 110-180 provides the opportunity for veterans who have been
adjudged by the VA to be incompetent to request that the VA not report
their adjudication, this right to request non-reporting by the VA is an
unsatisfactory remedy.
The burden of proof is on the veteran to demonstrate by clear and
convincing evidence that he is not likely to act in a manner dangerous
to public safety, and that granting relief will not be contrary to the
public interest. Receiving benefits for a mental disability rated at
greater than 10 percent disabling, substance abuse or a hostile
demeanor are all considered by the VA to be factors unfavorable to
granting the requested relief. In addition, the usual principles of VA
law do not apply to these determinations, and there is no duty to
assist the veteran. Also, the benefit of the doubt does not apply and
there is no right to appeal an unfavorable determination to the BVA. VA
Fast Letter 10-51.
NOVA supports H.R. 1898 for its protection of veterans who have
been found by the VA to be unable to manage their money, such as those
who suffer from Traumatic Brain Injury, the signature injury of the
Global War On Terror, yet who can still function as law abiding
citizens and who do not present any danger to themselves and others.
H.R. 2349
The ``Veterans' Benefits Training Improvement Act of 2011'' would
add 38 U.S.C. Sec. 7732B to require the Secretary to develop and
implement an individualized training program for each employee and
manager who is responsible for claims processing and to annually assess
their claims processing skills. Additionally, the Act provides for
remediation of any deficiency in skills which is revealed in the
assessment and for an annual report to Congress.
To the extent that H.R. 2349 requires the Secretary to assess the
claims processing skills of each employee and manager who is
responsible for claims processing, this legislation duplicates the
existing provisions of 38 U.S.C. Sec. 7732A(a) which require the
Secretary to provide for an examination of appropriate employees and
managers who are responsible for claims processing.
For that reason, although NOVA supports this bill, generally, NOVA
recommends that the provisions of Sec. 7732B be combined with those of
Sec. 7732A to create an amended Sec. 7732A as follows:
Sec. 7732A Training in and annual assessment of claims processing
skills
``(a) IN GENERAL.--The Secretary shall----
``(1) annually assess the skills of
appropriate employees and managers of the
Veterans Benefits Administration who are
responsible for processing claims for
compensation and pension benefits under the
laws administered by the Secretary; and
``(2) develop and implement an individualized
training plan related to such skills for each
such employee and manager.
``(3) consult with appropriate individuals or
entities, including training and examination
development experts, interested stakeholders,
and employee representatives in order to
develop suitable training and assessment tools.
``(b) REMEDIATION OF DEFICIENT SKILLS.
``(1) In providing training under subsection
(a)(2), if any employee or manager receives a
less than satisfactory result on any portion of
an assessment under subsection (a)(1), the
Secretary shall provide such employee or
manager with remediation of any deficiency in
the skills related to such portion of the
assessment.
``(2) In accordance with this title and title
5, the Secretary shall take appropriate
disciplinary actions with respect to any
employee or manager who, after being given two
opportunities for remediation under paragraph
(1), does not receive a satisfactory result on
an assessment under subsection (a)(1).
``(c) ANNUAL REPORT.--Not later than March 1 of each year,
the Secretary shall submit to the Committee on Veterans'
Affairs of the House of Representatives and the Committee on
Veterans' Affairs of the Senate a report on the assessments and
training conducted under this section during the previous year,
including a summary of-- ``(1) the results of the assessments
under subsection (a)(1); ``(2) remediation provided under
subsection 13(b)(1); and ``(3) disciplinary action taken under
subsection (b)(2).''
Although NOVA supports the idea, in general, of training and
assessing, as contained in this legislation, NOVA urges this
Subcommittee to concentrate on correcting the systemic problems with
the present work credit system prior to or in addition to mandating
that VA implement new training and assessment procedures. The present
work credit system has created an environment in which the employees
and supervisors are rewarded based upon the number of actions they take
each day, and not the quality or those actions nor whether the action
will ultimately lead to correct decision-making. Thus, currently there
is no incentive for these employees or supervisors to take time away
from their duties, and thus, their production time, to invest in
training, quality control and job improvement.
Prepared Statement of Thomas Murphy, Director, Compensation Service,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to testify and present the views of the Department of
Veterans Affairs (VA) on several legislative items of great interest to
Veterans. Joining me today is Richard Hipolit, Assistant General
Counsel.
H.R. 923
H.R. 923, the ``Veterans Pensions Protection Act of 2011,'' would
expand the existing exemption in 38 U.S.C. Sec. 1503(a)(5) by excluding
from determinations of annual income, for purposes of determining
eligibility for improved pension, two types of payments: (1) payments
regarding reimbursements for expenses related to accident, theft, loss,
or casualty loss and reimbursements for medical expenses resulting from
such causes; and (2) payments regarding pain and suffering related to
such causes. This bill is identical to S. 780, on which we provided
testimony before the Senate Committee on Veterans' Affairs on June 8,
2011.
The exemption for payments received to reimburse Veterans for
medical costs and payments regarding pain and suffering is an expansion
of the current exclusions. VA opposes excluding from countable income
payments received for pain and suffering because such payments do not
constitute a reimbursement for expenses related to daily living. This
provision of the bill would be inconsistent with a needs-based program.
Payments for pain and suffering are properly considered as available
income for purposes of the financial needs test for entitlement to
improved pension.
VA does not oppose the remaining provisions of this bill, which
would exempt payments for reimbursement for accident, theft, loss,
casualty loss, and resulting medical expenses, subject to Congress
identifying offsets for any additional costs. Current law exempts from
income determinations reimbursements for any kind of ``casualty loss,''
which is defined in VA regulation as ``the complete or partial
destruction of property resulting from an identifiable event of a
sudden, unexpected or unusual nature.'' H.R. 923 would broaden the
scope of this exemption by including reimbursements for expenses
resulting from accident, theft, and ordinary loss.
VA cannot determine the potential benefit costs related to the
exemption for payments for pain and suffering related to accident,
theft, loss, or casualty loss because insufficient data are available
regarding the frequency or amounts of such payments to the population
of pension beneficiaries.
H.R. 1025
H.R. 1025 would add to chapter 1, title 38, United States Code, a
provision to honor as Veterans, based on retirement status, certain
persons who performed service in reserve components of the Armed Forces
but who do not have qualifying service for Veteran status under 38
U.S.C. Sec. 101(2). The bill provides that such persons would be
``honored'' as Veterans, but would not be entitled to any benefit by
reason of the amendment.
Under 38 U.S.C. Sec. 101(2), Veteran status is conditioned on the
performance of ``active military, naval, or air service.'' Under
current law, a National Guard or Reserve member is considered to have
had such service only if he or she served on active duty, was disabled
or died from a disease or injury incurred or aggravated in line of duty
during active duty for training, or was disabled or died from an injury
incurred or aggravated in line of duty or from an acute myocardial
infarction, a cardiac arrest, or a cerebrovascular accident during
inactive duty training. H.R. 1025 would eliminate these service
requirements for National Guard or Reserve members who served in such a
capacity for at least 20 years. Retirement status alone would make them
eligible for Veteran status.
VA recognizes that the National Guard and Reserves have admirably
served this country and in recent years have played an important role
in our Nation's overseas conflicts. Nevertheless, VA does not support
this bill because it represents a departure from active service as the
foundation for Veteran status. This bill would extend Veteran status to
those who never performed active military, naval, or air service, the
very circumstance which qualifies an individual as a Veteran. Thus,
this bill would equate longevity of reserve service with the active
service long ago established as the hallmark for Veteran status.
VA estimates that there would be no additional benefit or
administrative costs associated with this bill if enacted.
H.R. 1826
H.R. 1826 would amend 38 U.S.C. Sec. 5905 to reinstate in modified
form an earlier provision that had provided criminal penalties for
charging improper fees in connection with representation in a claim for
benefits before VA. In particular, it would impose such penalties for
anyone who, in connection with a proceeding before VA, solicits,
contracts for, charges, or receives, or attempts to solicit, contract
for, charge, or receive, any fee or compensation in connection with
either the provision of advice on how to file a claim for VA benefits
or the preparation, presentation, or prosecution of such a claim before
the date on which a notice of disagreement is filed.
In 2006, Congress enacted Public Law 109-461, which amended VA's
statutory scheme relating to attorney or agent representation in
Veterans benefit cases before VA. Among other things, Public Law 109-
461 authorized attorneys and agents to charge fees for services
provided to claimants after the filing of a notice of disagreement with
respect to a case. The law also amended 38 U.S.C. Sec. 5905 by deleting
a provision imposing criminal penalties for soliciting, contracting
for, charging, or receiving improper fees for representation in a
benefit claim.
In the past few years, VA has received complaints from various
sources about individuals and companies charging, or attempting to
charge, fees for providing advice or assistance concerning the VA
claims process before the filing of a notice of disagreement. VA is
also aware that certain individuals or firms may have charged Veterans
for financial services, which later proved to be ineffective, designed
to assist them in qualifying for VA benefits by transferring or
shielding assets that would otherwise disqualify them.
The bill would subject to criminal penalty the solicitation or
receipt of any fee or compensation for providing ``advice on how to
file a claim for benefits.'' Because this bill involves criminal
penalties, courts are likely to interpret the phrase ``advice on how to
file a claim for benefits'' narrowly as referring to advice on how to
complete an application for VA benefits or where to submit such an
application. Consequently, the bill would be unlikely to deter the
solicitation or receipt of any fee or compensation for the provision of
advice on how to transfer or shield financial assets in order to become
eligible for certain VA benefits. Further, the proposed penalty
provision could seemingly be easily circumvented by charging for
services other than those specified in the bill, while also providing
services that the bill is intended to cover. The criminal penalties
contemplated by H.R. 1826 may provide some deterrent to persons who
would take advantage of claimants for VA benefits, and VA supports in
principle the protection of claimants from unscrupulous fee practices,
but we doubt that this bill would effectively address the entire scope
of the problem. In addition, we defer to the Department of Justice
(DoJ) on whether the new provision imposing criminal penalties would be
enforceable as a practical matter, and whether DoJ would devote scarce
resources to its enforcement.
H.R. 1898
H.R. 1898, the ``Veterans 2nd Amendment Protection Act,'' would
provide that a person who is mentally incapacitated, deemed mentally
incompetent, or unconscious for an extended period will not be
considered adjudicated as a ``mental defective'' for purposes of the
Brady Handgun Violence Prevention Act in the absence of an order or
finding by a judge, magistrate, or other judicial authority that such
person is a danger to himself, herself, or others. The bill would have
the effect of excluding VA determinations of incompetency from the
coverage of the Brady Handgun Violence Prevention Act.
We understand and appreciate the objective of this legislation to
protect the firearms rights of veterans determined by VA to be unable
manage their own financial affairs. VA determinations of mental
incompetency are based generally on whether a person because of injury
or disease lacks the mental capacity to manage his or her own financial
affairs. We believe adequate protections can be provided to these
veterans under current statutory authority. Under the NICS Improvement
Amendments Act of 2007 (NIAA), there are two ways that individuals
subject to an incompetency determination by VA can have their firearms
rights restored: First, a person who has been adjudicated by VA as
unable to manage his or her own affairs can reopen the issue based on
new evidence and have the determination reversed. When this occurs, VA
is obligated to notify the Department of Justice to remove the
individual's name from the roster of those barred from possessing and
purchasing firearms. Second, even if a person remains adjudicated
incompetent by VA for purposes of handling his or her own finances, he
or she is entitled to petition VA to have firearms rights restored on
the basis that the individual poses no threat to public safety.
Although VA has admittedly been slow in implementing this relief
program, we now have relief procedures in place, and we are fully
committed going forward to implement this program in a timely and
effective manner in order to fully protect the rights of our
beneficiaries.
We also note that the reliance on an administrative incompetency
determination as a basis for prohibiting an individual from possessing
or obtaining firearms under Federal law is not unique to VA or
veterans. Under the applicable Federal regulations implementing the
Brady Handgun Violence Prevention Act, any person determined by a
lawful authority to lack the mental capacity to manage his or her own
affairs is subject to the same prohibition. By exempting certain VA
mental health determinations that would otherwise prohibit a person
from possessing or obtaining firearms under Federal law, the
legislation would create a different standard for veterans and their
survivors than that applicable to the rest of the population and could
raise public safety issues.
VA estimates that there would be no additional benefit or
administrative costs associated with this bill if enacted.
This concludes my statement, Mr. Chairman. I would be happy to
entertain any questions you or the other Members of the Subcommittee
may have.
Statement of Paralyzed Veterans of America
Chairman Runyan, Ranking Member McNerney, and Members of the
Subcommittee, Paralyzed Veterans of America (PVA), thanks you for the
opportunity to submit a statement for the record regarding the proposed
legislation being considered today. PVA appreciates the fact that this
Subcommittee is addressing these important 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.
H.R. 923 the ``Veterans Pensions Protection Act of 2011''
PVA supports H.R. 923, the ``Veterans Pensions Protection Act of
2011.'' This legislation would exempt reimbursements of expenses
related to accident, theft, loss, or casualty loss from determinations
of annual income with respect to pensions for veterans and surviving
spouses and children of veterans. Our Nation's veterans should not have
to claim incidental insurance compensation as income that would
inadvertently reduce their pension payment. This is a common sense
amendment to current law.
H.R. 1025
PVA supports H.R. 1025, legislation to amend title 38, United
States Code, to recognize the service of the men and women that have
served in the reserve components of the armed forces. This legislation
will allow those that have served in a reserve component and qualified
for retirement pay under title 10 to be recognized as a veteran under
law.
H.R. 1826
PVA supports H.R. 1826, legislation that would allow criminal
penalties for charging a fee to veterans for assisting with claim
preparation and filing. Although this procedure is currently prohibited
by Federal law, individuals and organizations continue to seek out
veterans that are in need of assistance and proceed to assist for a
fee. There have been no repercussions for these violations of the law.
Every State government, most county governments, and most veterans'
service organizations have designated persons who are trained to help
veterans file claims without charging a fee. This legislation will help
eliminate individuals that are profiting from such activity.
H.R. 1898
H.R. 1898, the ``Veterans 2nd Amendment Protection Act''. PVA has
no position on this legislation.
H.R. 2349
PVA cautiously supports H.R. 2349, legislation to amend title 38,
United States Code, to direct the Secretary of Veterans Affairs to
annually assess the skills of certain employees and managers of the
Veterans Benefits Administration. PVA believes that assessments should
be administered to all positions at all levels in a regional office,
including the Rating Board Specialists and Decision Review Officers.
This would determine if their knowledge is sufficient for performing
the difficult tasks that these positions require. These results will
indicate areas that need more attention for an individual or perhaps a
basic review course in some areas. However, training should be provided
to improve their knowledge and skills to a proficient level, not as a
punishment for a low score. Moreover, testing only for selective
positions or individuals would not foster good will in a system that
currently presents a difficult environment to work in.
Many programs within the VA have allocated training staff members
as a goal in future plans. But, often because of workloads, shortage of
staff and a fast paced environment of most departments in the VA, the
proposed training becomes a low priority. Training of these important
positions should have a high priority and be professionally conducted
in time that is aside from the day-to-day work.
Mr. Chairman and Members of the Subcommittee, PVA would like to
once again thank you for the opportunity to provide our views on the
proposed legislation. We look forward to working with you to improve
benefits for veterans.
Statement of Reserve Officers Association of the United States, and
Reserve Enlisted Association of the United States
INTRODUCTION
Mr. Chairman and Members of the Subcommittee, the Reserve Officers
Association (ROA) and the Reserve Enlisted Association (REA) would like
to thank the Subcommittee for the opportunity to testify. ROA and REA
applaud the ongoing efforts by Congress to address issues facing
veterans and serving members such as veteran status, mental health
assessments, tax exemptions, and claims processing.
Though contingency operations in Afghanistan and Iraq are expected
to drawdown, currently there are still high levels of mobilizations and
deployments, and many of these outstanding citizen soldiers, sailors,
airmen, Marines, and Coast Guardsmen have put their civilian careers on
hold while they serve their country in harm's way. As we have learned,
they share the same risks as their counterparts in the Active
Components on the battlefield. Recently we passed the 800,000th mark
for the number of Reserve and Guard servicemembers who have been
activated since post-9/11. More than 275,000 have been mobilized two or
more times. The United States is creating a new generation of combat
veterans that come from its Reserve Components (RC). It is important,
therefore, that we don't squander this valuable resource of experience,
nor ignore the benefits that they are entitled to because of their
selfless service to their country
PROPOSED LEGISLATION
H.R. 923, Veterans Pensions Protection Act of 2011, introduced by
Rep. Hastings (D-Fl), better defines the types of casualty losses that
could impact a veteran, or surviving family receiving a pension. ROA
and REA support this clarification.
Personal injury or property loss can have a devastating impact on
any family. This just further aggravates the situation faced by veteran
families that are living on a pension. Improving U.S. Code to address
potential losses in advance prevents administrative complications in
the future.
H.R. 1025, introduced by Reps. Tim Walz (D-Minn.), Tom Latham (R-
Iowa) and Jon Runyon (R-N.J), amends title 38 and would recognize the
honorable service of National Guard and Reserve members who qualify for
military retirement, but have never been activated for a long enough
period to be Federally defined as a veteran. ROA and REA support such
legislation including the bill passed by the House in the 111th
Congress which failed to be considered in the Senate.
Most Reserve Component members believe they are veterans after
serving their country, especially for20 years or more. Unfortunately,
this is not the case. They are not considered ``Veterans'' if they have
not served the required number of uninterrupted days on Federal active
duty (defined as active duty other than for training).
While a commonly accepted definition is serving more than 180 days,
not all service qualifies. To gain a veterans preference when applying
for a Federal job, a former member of the armed forces has to have
either earned a campaign badge, or served on active duty, either since
September 11, 2001, or served between August 2, 1990 and January 2,
1992, or after January 31, 1955 and before October 15, 1976, or have
been in a war, earned a campaign or expeditionary ribbon, orserved
between April 28, 1952 and July 1, 1955, as defined by title 5 U.S.C.
section 2108. And if medically discharged through no fault of their own
during the first 180 day period, the servicemember is considered a
veteran.
Yet, as defined in law, Reserve Component members who have
completed 20 or more years of service become military retirees and are
eligible for all of the Active Duty military retiree benefits once
reaching 60 years of age. Whereas Active Duty retirees are veterans,
without the active service Reserve retirees are not.
Those Reserve Component members who have been called to serve in
Operation Enduring Freedom or Operation Iraqi Freedom will qualify as
veterans. Many others who stand in front of and behind these men and
women, preparing them and supporting them for and on overseas missions,
are individuals who are also ready to deploy but because of assigned
duties may never serve in an active capacity. Nevertheless they serve
faithfully.
Twenty or more years of service in the reserve forces and
eligibility for reserve retired pay should be sufficient qualifying
service for full Veteran status under the law. And as written, this
legislation will not increase their benefits.
This issue is a matter of honor for those who through no fault of
their own were never activated, but who still served their Nation
faithfully for 20 or more years.
H.R. 1826, introduced by Reps. Gus Bilirakis (R-Fla.) and Walz
reinstates criminal penalties for persons charging veterans
unauthorized fees. ROA and REA support this reinstatement.
Because of the backlog of benefit claims being processed by the
Department of Veteran Affairs, veterans have been taken advantage by
unscrupulous businesses claiming to be able to shortcut the process.
Individuals or businesses who try to take unethical advantage of
veterans should be penalized for their actions.
H.R. 1898, Veterans 2nd Amendment Protection Act, introduced by
Rep. Denny Rehberg (R-Mont.), which would create a new section 5511 to
chapter 55 of title 38, provides protection to serving members who
could be discharged for mental defectiveness from restrictions under
section 922 of title 18 on the subject of gun ownership. ROA and REA
support such legislation that would require a review by authorities
outside the Departments of Defense or Veteran Affairs to corroborate
mental incompetence for handling civilian matters.
There is a risk of growing public distrust of sufferers of Post-
Traumatic Stress and Traumatic Brain Injury as the media and certain
clinicians label these ailments as disorders. For many veterans, the
transition between military and civilian life is a critical juncture
marked by acute feelings of flux and dislocation. It does not need to
be further hampered by labels affixed at the time of discharge.
Anyone who fights in combat is changed by it, but few are beyond a
cure. This Nation can ill afford to stereotype current veterans the way
they did the veterans from Vietnam as being dysfunctional. Legislation
like Rep. Rehberg's will provide another protection for the veteran.
Additionally, the Army routinely dismissed hundreds of soldiers at
the height of war from the Afghanistan and Iraq theaters for having
personality disorders when they more likely suffering from the
traumatic stresses of war. Defined as a ``deeply ingrained maladaptive
pattern of behavior,'' a personality disorder was considered a ``pre-
existing condition'' relieving the military from paying combat-related
disability pay, and providing adequate health care treatment. Later,
the Army shifted discharges from ``personality disorder'' to
``adjustment disorder'' dismissing hundreds more. The symptoms can be
the same as for post-traumatic stress: flashbacks, nightmares, anger,
sleeplessness, irritability and avoidance.
The military (or the Department of Veterans Affairs) should not be
the determining agency on a veteran's mental capacity. Rep. Rehberg's
legislation provides veterans protection from being mislabeled.
H.R. 2349, the Veterans' Benefits Training Improvement Act of 2011
by Rep. Jon Runyon (R-N.J.) helps ensure standards by assessing
annually those Department of Veteran Affairs (VA) employees who process
claims and by making sure these employees have core competencies. This
assessment will help them retain those competencies in an occupation
where new perspectives on disabilities arise bringing about constant
change. Congressional oversight will remain in order to ensure that the
VA meets expectations and provides the needed tools to keep the
processers current.
With a goal of quality and efficiency in processing VA claims, ROA
and REA can support this legislation.
Conclusion
ROA and REA appreciate the opportunity to submit testimony. ROA and
REA look forward to working with the Subcommittee on Disability
Assistance and Memorial Affairs and the House Veterans' Affairs
Committee, where we can present solutions to these and other issues,
and offer our support, and hope in the future for an opportunity to
discuss these issues in person.
MATERIAL SUBMITTED FOR THE RECORD
U.S. Department of Veterans Affairs
Washington, DC.
September 6, 2011
The Honorable Jon Runyan
Chairman
Subcommittee on Disability Assistance and Memorial Affairs
Committee on Veterans Affairs
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This letter provides the Department of Veterans Affairs' (VA) views
on a revised version of H.R. 2349, the ``Veterans' Benefits Training
Improvement Act of 2011'' you provided in your letter dated July 26,
2011. This bill would amend 38 U.S.C. Sec. 7732A to establish an annual
skills assessment of employees and managers responsible for processing
claims for compensation and pension, and would establish an
individualized training plan related to such skills for each employee
and manager responsible for processing such claims.
For the reasons set forth in the enclosed summary, VA does not
support the proposed amendments. The development and implementation of
these assessments would be redundant with the robust training and
skills assessment program that the Veterans Benefits Administration
already has which sets performance requirements for each employee, and
manages such performance. The assessments and the remediation required
along with the development of individualized training plans would be
costly, would remove key personnel from the act of claims processing,
and produce no benefit over current procedures.
Thank you for the opportunity to provide our views and cost
estimates on the revised version of H.R. 2349.
Sincerely,
Eric K. Shinseki
Secretary
Enclosure
__________
Views and Costs on H.R. 2349, as revised
Section 7732A of title 38 U.S. Code. currently requires employees
and managers of the Veterans Benefits Administration (VBA) who are
responsible for processing claims for compensation and pension benefits
to undergo a certification examination. H.R. 2349 would amend 38 U.S.C.
Sec. 7732A to establish an annual skills assessment of those same
employees and managers and would require establishment of an
individualized training plan related to such skills for each employee
and manager responsible for processing such claims. Additionally, the
bill would require that any employee or manager that receives a less
than satisfactory result on the initial examination be given additional
training, and require such employees or managers to re-take the
examination up to two times. H.R. 2349 requires that the Secretary take
appropriate personnel action with respect to any employee or manager
who does not receive a satisfactory result on the examination. Lastly,
the bill requires the Secretary report to Congress the results of the
assessments, remediation provided, any personnel actions taken, and any
changes made to the training program.
VBA already has a robust training and skills assessment program
that sets performance requirements for each employee, and manages such
performance. VBA's National Training Curriculum consists of
approximately 85 hours of annual mandatory training for each employee.
This includes three separate curricula for entry-, intermediate-, and
journey-level employees. Every curriculum is kept current through an
annual topic reassessment. Training on emerging topics and procedural
and policy changes are added as needed throughout the year. Each
employee must record completed courses within one of the curricula in
the Talent Management System (TMS), and the Compensation Service
training staff verifies completion of the mandatory training
requirements at each regional office by reviewing and analyzing
learning history reports from TMS.
VBA also currently maintains a high degree of accountability
through performance appraisal ratings. Performance requirements must be
stated in a performance plan tailored to each employee's position and
work assignments. Nationwide performance standards are in place for
Veterans Service Representatives (VSRs), Rating VSRs, and Decision
Review Officers. These national performance plans standardize the
evaluation process for these claims processing positions. In the event
that an employee does not meet acceptable performance standards,
remedial training courses are provided along with biweekly mentoring by
their supervisor. If after at least 90 days, the employee's performance
is still deemed unacceptable, the employee will be reassigned, reduced
to a lower grade, or removed.
There has been significant attention given to VA's quality
assurance and training programs in recent years. In 2009, the Center
for Naval Analyses reviewed VA's training efforts for the Veterans'
Disability Benefits Commission and was highly complimentary of VA's
training efforts in testimony before the Commission. Also, in response
to section 224 of the Veterans Benefits Improvement Act of 2007 (Public
Law 110-389), VBA tasked the Institute for Defense Analyses with an
independent assessment of the quality assurance program. The findings
of their 3-year review are due to Congress on October 10, 2011.
The proposed assessments are unnecessary in light of existing VBA
training, assessment and performance evaluation programs. Moreover, the
bill would potentially remove every claims processor and manager from
their job for at least one full day every year for these additional
preparation and testing requirements. If the employee does not pass the
proposed assessment, additional time would be spent in the remediation
process and away from claims processing. The bill would also require
VBA to establish an individualized training plan for these employees.
Time currently spent by supervisors on workload management would
instead be spent ensuring that employees completed this additional
preparation, testing, and possible remediation training as well as
overseeing individualized training plans. The loss of one full day
would result in a loss in production of, at a minimum, 13,500 claims
annually.
Section 2(c)(2)(B) would amend 38 U.S.C. Sec. 7322A to require the
Secretary to take appropriate personnel action in the case of an
employee or manager who, after being given two opportunities for
remediation, does not receive a satisfactory result on an assessment.
This amendment mandates VA to take a personnel action, intruding on
VBA's responsibility and authority to take such action when it deems
appropriate. Such intrusion undermines VBA's managerial discretion. In
addition, there would be labor relations implications with
implementation of the bill. Accordingly, obtaining the views of the
union as an important stakeholder would be appropriate and their input
useful.
The proposed amendment requires the Secretary to report to Congress
the results of the assessments, remediation provided, any personnel
actions taken, and any changes made to the training program. 38 U.S.C.
Sec. 7734 already provides that the Secretary report to Congress on the
quality assurance activities carried out in 38 U.S.C. Sec. Sec. 7731 et
seq. Accordingly, it would be more appropriate to amend 38 U.S.C.
Sec. 7734 to add the additional reporting requirements proposed in H.R.
2349.
VA estimates that costs associated with the legislation would be
approximately $4.8 million during the first year and over $22.2 million
over 5 years.
----------------------------------------------------------------------------------------------------------------
Cost of Production
Additional Loss to Support Cost of Loss in
FY Contract Cost Additional Production due to Total Cost ($000s)
($000s) Assessments Testing ($000s)
($000s)
----------------------------------------------------------------------------------------------------------------
2012 $ 1,000 $ 131 $ 3,700 $ 4,831
----------------------------------------------------------------------------------------------------------------
2013 $ 500 $ 46 $ 3,700 $ 4,246
----------------------------------------------------------------------------------------------------------------
2014 $ 500 $ 46 $ 3,800 $ 4,346
----------------------------------------------------------------------------------------------------------------
2015 $ 500 $ 46 $ 3,800 $ 4,346
----------------------------------------------------------------------------------------------------------------
2016 $ 500 $ 46 $ 3,900 $ 4,446
----------------------------------------------------------------------------------------------------------------
Total $ 3,000 $ 314 $ 18,900 $ 22,214
----------------------------------------------------------------------------------------------------------------
If the bill were enacted, VBA would work with a contractor to
develop, assess, and maintain assessments for at least eight categories
of employees. Because six current skills assessments would be
incorporated into the proposed assessments, resources devoted to the
current skills assessment contract would be devoted to the proposed
assessments. The chart above reflects costs over and above the current
contracting cost to conduct skills assessments for all employees.
An additional 60 field subject matter experts (over and above the
field subject matter experts supporting the current skills assessment
program) would be needed for 1-week sessions to help develop the
proposed assessments during FY 2012. In subsequent years, an additional
25 subject matter experts would be needed for 1-week sessions each year
to evaluate and maintain the proposed assessments. Each subject matter
expert would participate in workshops to draft questions, assess and
finalize tests, score tests, and design the test process. VBA would
need to hire full time employees (FTE) to make up for the claims that
are not completed by subject matter experts while they are providing
contract support.
To make up for claims not completed due to a day of lost production
during the mandatory annual assessment, VA would need to hire
additional FTE. The chart above reflects costs associated with hiring
these FTE to complete claims that would be completed during the
proposed mandatory assessment.
U.S. Department of Veterans Affairs
Veterans Benefits Administration
Washington, DC.
November 22, 2010
Director (00/21)
Fast Letter 10-51
All VA Regional Offices and Centers
SUBJ: Processing Requests for Relief from the Reporting Requirements of
the
National Instant Criminal Background Check System (NICS)
This letter provides new information on the National Instant
Criminal Background Check System (NICS) relief program and procedures
for processing relief requests.
Within 30 days of date of this letter, the Compensation and Pension
(C&P) Service will return all pending requests for relief in its
possession, with their associated claim folders and principle
guardianship folders (PGFs), to regional offices (ROs) and centers for
action in accordance with this letter. Please conclude all actions
within 90 days of receipt of the claims folder.
Background
The Brady Handgun Violence Prevention Act of 1993, Public Law 103-
159 (The Brady Act), prohibits the sale of firearms to certain people.
The NICS Improvement Amendments Act (NIAA) of 2007 sets new
requirements for Federal and state agencies, and contains an amendment
to the Brady Act that obligates VA to allow beneficiaries the
opportunity to request relief from the reporting requirements imposed
by the Brady Act. VA is also obligated to provide beneficiaries both
written and oral notification of the firearms prohibitions, penalties
for violating them, and information regarding the availability of the
relief program.
NICS Relief Program
The NIAA places the responsibility for administering the relief
program on the agency that provided the information to NICS. The
primary focus regarding relief provisions outlined in this letter is
public safety. Further, relief from the reporting requirements is not a
benefit under Title 38 and as such, principles common to the VA
adjudication process, such as benefit of the doubt and duty to assist
(as demonstrated in ordering examinations or securing private medical
records) do not apply to this program. The burden of proof for these
relief requests resides with the claimant, and failure to meet that
burden is sufficient to deny the request. Decisions that deny relief
are not subject to review by the Board of Veterans' Appeals, but VA
denials of requests for relief under the NIAA are subject to review in
Federal district court. Accordingly, it is important that all denials
contain a detailed explanation of the basis for denial.
Handling Requests for Relief
Requests for relief from the Brady Act reporting requirements must
be clear and explicit. Do not infer or interpret a request for relief
as a claim for reconsideration of incompetence or a claim of competency
as a request for relief.
Development
If the request for relief is received following the final rating of
incompetency, establish end product (EP) 290 using the ``NICS Relief
Request'' claim label. If the evidence of record is sufficient to grant
relief according to the criteria outlined below, follow the procedures
under Administrative Decision. If the evidence is insufficient to grant
relief, send the attached development letter (Enclosure 1). Allow the
beneficiary 30 days to respond to the letter.
The beneficiary may submit a request for relief prior to the final
incompetency rating. If the request for relief is received prior to the
final rating of incompetency, send the development letter (Enclosure
1), but do not render a decision on the request for relief until the
rating of incompetency is final and the 30-day development response
time has expired. Then follow the procedures under the Administrative
Decision section below.
If the beneficiary submits a claim for reconsideration of
competency in conjunction with the request for relief, establish EP
020. After any appropriate development, refer the claim to the rating
team. If the rating veterans service representative confirms and
continues incompetency, do not address the issue of relief in the
rating decision. Instead, follow the procedures under Administrative
Decision outlined below.
Note: We will program all NICS development and decision letters in
PCGL as soon as possible. In the interim, copy and paste the text of
the enclosures into a free text document.
Deciding Relief
In deciding requests for relief, decision makers must consider the
beneficiary's record and reputation, as well as the beneficiary's
mental and physical status. To grant relief, the record must show
affirmatively, substantially, and specifically that the beneficiary is
not likely to act in a manner dangerous to public safety, and that
granting relief will not be contrary to the public interest.
In making determinations, consider not just the beneficiary's
desire to own firearms and/or ammunition, but the safety of himself,
his family, and the community. As VA's determinations on requests for
relief have the potential to affect public safety, grant relief on the
basis of clear and convincing evidence.
In determining whether to grant relief, relevant records may
include:
A statement from the primary mental health physician
assessing the beneficiary's mental health status over the last 5 years.
Medical information addressing the extent of mental
health symptoms and whether or not the beneficiary is likely to act in
a manner dangerous to himself/herself or to the public.
Information documenting that a court, board, or
commission that originally determined incompetence has restored
competency status or otherwise determined that the beneficiary has been
rehabilitated through any procedure available under the law.
Statements or records from law enforcement officials,
such as the Federal Bureau of Investigation (FBI), the Bureau of
Alcohol, Tobacco, and Firearms (ATF), or the Attorney General, showing
that the granting of relief would not be contrary to the public
interest.
When determining relief requests, consider if any of the following
unfavorable factors are manifest over the past 5 years:
The presence of any mental disability that has been
evaluated at more than 10-percent disabling. (If there is no rating of
record, consider whether evidence indicates that any current mental
disability causes no more than mild or transient symptoms observable
only during periods of significant stress, or whether symptoms of
mental disability are completely alleviated through the use of
continuous medication (38 CFR 4.130). Also, consider the presence of
any personality disorder when determining relief requests.
Evidence of recurring substance abuse or any substance
abuse within the last year.
Local, state, or Federal convictions for felonies and/or
violent offenses (including, but not limited to, menacing, stalking,
assault, battery, burglary, robbery, rape, murder, and attempts
thereof).
Demonstration of overtly aggressive or hostile behavior
and/or demeanor.
Presence of suicidal or homicidal ideations.
Administrative Decision
The RO or center will handle all requests for relief by preparing
an administrative decision (see M21-1MR, Part III, Subpart v, Chapter
1, Section A, Topic 2). The RO Director must approve all administrative
decisions after concurrence by the Veterans Service or Pension
Management Center Manager, or designee.
Inform the beneficiary of the determination by sending the NICS
relief grant or denial letter (Enclosure 2 or 3). If relief is granted,
notify the NICS Manager within three days at VAVBAWAS/CO/NICS under the
subject ``NICS relief grant.'' The notification must include the
beneficiary's name, claim number, Social Security number (if different
than claim number), date of birth, contact information (including
address and telephone number), and the date of the grant of relief.
Upon granting relief, the C&P Service will notify the FBI, which
manages the NICS database for the Department of Justice, to remove the
beneficiary from the NICS database. The FBI will remove the
beneficiary's name from the database within approximately 2 months
after notification by the NICS Manager.
If a beneficiary who was formerly found incompetent is found
competent, the request for relief becomes moot. In the final competency
rating, include the following statement under Reasons for Decision for
the competency issue:
``We received your request for relief from the Department of
Justice (DoJ) reporting requirements contained in the Brady
Handgun Violence Prevention Act. We have determined you are
competent for VA purposes, so it is not necessary to render a
decision on that request. VA will inform DoJ of your changed
status.''
File all documents exclusive to this relief decision on the right
side of the claims folder.
Questions
Questions concerning information contained in this letter should be
e-mailed to VAVBAWAS/CO/NICS.
Rescission: At the earliest opportunity, we will incorporate into
the M21-1MR the provisions of oral and written notice from pages 4 and
5 of Fast Letter (FL) 09-08, National Instant Criminal Background Check
System (NICS) Improvement Amendments Act of 2007, which is otherwise
rescinded.
Thomas J. Murphy
Director
Compensation and Pension Service
Enclosures
__________
Enclosure 1--NICS Relief Development Letter
XXXXXXXXXXX In reply, refer to:
XXXXXXXXXXXXX File Number: XXXXXXX
XXXXXXXXXXXX
IMPORTANT--reply needed
Dear Mr./Ms.:
We received your request for relief from the Department of Justice
reporting requirements contained in 18 U.S.C. Sec. 922(d)(4) and
(g)(4). VA must report to the National Instant Criminal Background
Check System (NICS) individuals whom VA determines to be unable to
contract or manage their own affairs.
Pursuant to 18 U.S.C. Sec. 925(c) and Sec. 101(c)(2)(A) of the NICS
Improvements Amendment Act of 2007, Public Law 110-180, VA is obligated
to decide whether you are eligible to receive relief from the reporting
requirements of the Brady Handgun Violence Prevention Act. This letter
contains information about what we will do with your request and what
you can do to help us decide it.
We may grant relief if clear and convincing evidence shows the
circumstances regarding your disability, and your record and reputation
are such, that you are not likely to act in a manner dangerous to
yourself or others, and the granting of relief is not contrary to
public safety and/or the public interest.
What Can You Do?
To support your claim for relief, you may submit such evidence as:
A statement from your primary mental health physician
assessing your mental health status over the last 5 years.
Medical information addressing the extent of your mental
health symptoms and whether or not you are likely to act in a manner
dangerous to yourself or to public.
Information documenting that a court, board or commission
that originally determined incompetence has restored your competency
status or otherwise determined that you have been rehabilitated through
any procedure available under the law.
Statements or records from law enforcement officials,
such as the Federal Bureau of Investigation (FBI), the Bureau of
Alcohol, Tobacco, and Firearms (ATF), or the Attorney General, which
show that the granting of relief would not be contrary to the public
interest.
Please put your VA file number on the first page of every document
you send us.
Where Should You Send Your Evidence?
Please send all documents to this address: (include RO address)
How Soon Should You Send What We Need?
We strongly encourage you to send any information or evidence as
soon as you can. If we do not hear from you within 30 days, we will
make a decision on your request based on the evidence of record.
How Can You Contact Us?
Please give us your VA file number, XXXXXXXXXX, when you do contact
us.
Send written correspondence to the address above.
Send us an inquiry using the Internet at https://
iris.va.gov.
Call us at 1-800-827-1000. If you use a
Telecommunications
Device for the Deaf (TDD), the number is 1-800-829-4833.
We look forward to resolving your request in a timely and fair
manner.
Sincerely yours,
Veterans Service Center Manager
__________
Enclosure 2--NICS Relief Grant Letter
XXXXXXXXXXX In reply, refer to:
XXXXXXXXXXXXX File Number: XXXXXXX
XXXXXXXXXXXX
Dear Mr./Ms.:
We received your request for relief under the National Instant
Criminal Background Check System (NICS) Improvement Amendments Act
(NIAA) of 2007 (Public Law 110-180).
What We Decided
We decided that you are eligible for relief from the Department of
Justice reporting requirements imposed by the Brady Handgun Violence
Protection Act.
We reviewed the following evidence in considering your claim:
(enter evidence)
Our review of this evidence reveals that your disability, record,
and reputation are such that you are not likely to act in a manner
dangerous to yourself or others. Further, the granting of relief is not
contrary to public safety or the public interest. Please allow the
Department of Justice up to 8 weeks to update its records in accordance
with our decision.
If You Have Questions or Need Assistance
You may find more information about the Relief from Disabilities
program in 18 U.S.C. Sec. 925(c). If you have any questions regarding
this decision, you may contact us by letter, Internet, or telephone. In
all cases, be sure to refer to your VA file number, XXXXXXXX.
------------------------------------------------------------------------
To Contact VA by Here is what to do.
------------------------------------------------------------------------
Mail Send inquiries to the address at the
top of this letter
------------------------------------------------------------------------
Internet Send an inquiry via VA's Web site at
https://iris.va.gov.
------------------------------------------------------------------------
Telephone Call 1-800-827-1000. If you use a
Telecommunications
Device for the Deaf (TDD), the number
is 1-800-829-4833.
------------------------------------------------------------------------
We sent a copy of this letter to your representative, XXXXXX, whom
you can also contact if you have questions or need assistance.
Sincerely yours,
Veterans Service Center Manager
cc:
__________
Enclosure 3--NICS Relief Denial Letter
XXXXXXXXXXX In reply, refer to:
XXXXXXXXXXXXX File Number: XXXXXXX
XXXXXXXXXXXX
Dear Mr./Ms.:
We received your request for relief under the National Instant
Criminal Background Check System (NICS) Improvement Amendments Act
(NIAA) of 2007 (Public Law 110-180).
What We Decided
We determined you are not eligible for relief from the Department
of Justice reporting requirements imposed by the Brady Handgun Violence
Protection Act.
We considered the following evidence:
(enter evidence)
Based on this review, we are unable to conclude through clear and
convincing evidence regarding your disability, record, and reputation
that
you will not likely act in a manner dangerous to yourself
or others, and
the granting of relief would not be contrary to the
public interest.
Your Right for Review
NIAA relief requests are not matters which fall within the scope of
title 38 of the United States Code and denial of such requests are not
subject to review by the Board of Veterans' Appeals. However, denials
of requests for relief under the NIAA are subject to review in Federal
district court. See 18 U.S.C. Sec. 925(c) for more information
concerning appellate rights.
If You Have Questions or Need Assistance
You may find more information about the Relief from Disabilities
program in 18 U.S.C. Sec. 925(c). If you have any questions regarding
this decision, you may contact us by letter, Internet, or telephone. In
all cases, be sure to refer to your VA file number, XXXXXXXX.
------------------------------------------------------------------------
To Contact VA by Here is what to do.
------------------------------------------------------------------------
Mail Send inquiries to the address at the
top of this letter
------------------------------------------------------------------------
Internet Send an inquiry via VA's Web site at
https://iris.va.gov.
------------------------------------------------------------------------
Telephone Call 1-800-827-1000. If you use a
Telecommunications
Device for the Deaf (TDD), the number
is 1-800-829-4833.
------------------------------------------------------------------------
We sent a copy of this letter to your representative, XXXXXX, whom
you can also contact if you have questions or need assistance.
Sincerely yours,
Veterans Service Center Manager
cc: