    [House Hearing, 113 Congress]
    [From the U.S. Government Publishing Office]

      LEGISLATIVE HEARING ON H.R. 675, H.R. 677, H.R. 732, H.R. 800, H.R.
        1067, H.R. 1331, H.R. 1379, H.R. 1414, H.R. 1569, AND H.R. 1607

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

                                    HEARING

                                   before the

           SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                                     of the

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

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                            TUESDAY, APRIL 14, 2015

                                   __________

                               Serial No. 114-14

                                   __________

           Printed for the use of the Committee on Veterans' Affairs

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Available via the World Wide Web: http://www.fdsys.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE

    98-631                     WASHINGTON: 2016
      _____________________________________________________________________________
      For sale by the Superintendent of Documents, U.S. Government Publishing Office,
    Internet: bookstore.gpo.gov. Phone: toll free (866) 512-1800; DC area (202) 512-1800
                Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001

                         COMMITTEE ON VETERANS' AFFAIRS

                         JEFF MILLER, Florida, Chairman

    DOUG LAMBORN, Colorado               CORRINE BROWN, Florida, Ranking
    GUS M. BILIRAKIS, Florida, Vice-         Minority Member
        Chairman                         MARK TAKANO, California
    DAVID P. ROE, Tennessee              JULIA BROWNLEY, California
    DAN BENISHEK, Michigan               DINA TITUS, Nevada
    TIM HUELSKAMP, Kansas                RAUL RUIZ, California
    MIKE COFFMAN, Colorado               ANN M. KUSTER, New Hampshire
    BRAD R. WENSTRUP, Ohio               BETO O'ROURKE, Texas
    JACKIE WALORSKI, Indiana             KATHLEEN RICE, New York
    RALPH ABRAHAM, Louisiana             TIMOTHY J. WALZ, Minnesota
    LEE ZELDIN, New York                 JERRY McNERNEY, California
    RYAN COSTELLO, Pennsylvania
    AMATA COLEMAN RADEWAGEN, American
        Samoa
    MIKE BOST, Illinois
                           Jon Towers, Staff Director
                    Don Phillips, Democratic Staff Director

           SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                       RALPH ABRAHAM, Louisiana, Chairman

    DOUG LAMBORN, Colorado               DINA TITUS, Nevada, Ranking Member
    LEE ZELDIN, New York                 JULIA BROWNLEY, California
    RYAN COSTELLO, Pennsylvania          RAUL RUIZ, California
    MIKE BOST, Illinois

    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

                                  ----------

                            Tuesday, April 14, 2014

                                                                       Page

    Legislative Hearing on H.R. 675, H.R. 677, H.R. 732, H.R. 800,
      H.R. 1067, H.R. 1331, H.R. 1379, H.R. 1414, H.R. 1569, and H.R.
      1607...........................................................     1

                               OPENING STATEMENTS

    Hon. Ralph Abraham, Chairman.....................................     1
    Hon. Beto O'Rourke Ranking Member................................     2
    Hon. Jeff Miller, Chairman, Full Committee
        Prepared Statement...........................................    28
    Hon. Raul Ruiz, MD
        Prepared Statement...........................................    29

                                   WITNESSES

    Hon. Chellie Pingree, U.S. House of Representatives..............     2
        Prepared Statement...........................................    30
    Mr. David R. McLenachen, Acting Deputy Under Secretary for
      Disability Assistance VBA, U.S. Department of Veterans Affairs.     8
        Prepared Statement...........................................    32

        Accompanied by:

            Ms. Laura H. Eskenazi, Executive-in-Charge and Vice
                Chairman, Board Of Veterans' Appeals, U.S. Department
                of Veterans Affairs

        And

            Mr. David J. Barrans, Assistant General Counsel, Office
                of General Counsel, U.S. Department of Veterans
                Affairs

    Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs
      and Rehabilitation Division, The American Legion...............    15
        Prepared Statement...........................................    70
    Mr. Blake C. Ortner, Deputy Government Relations Director
      Paralyzed Veterans of America..................................    17
        Prepared Statement...........................................    80
    Mr. Paul R. Varela, Assistant National Legislative Director, DAV.    19
        Prepared Statement...........................................    90
    Mr. Ronald B. Abrams, Joint Executive Director, National Veterans
      Legal Services Program.........................................    20
        Prepared Statement...........................................   104
    Mr. Kenneth M. Carpenter, Founding Member, National Organization
      of Veterans' Advocates.........................................    21
        Prepared Statement...........................................   111

                                 FOR THE RECORD

    Veterans of Foreign Wars.........................................   117
    Aleks Morosky, Deputy Director, Veterans of Foreign Wars.........   125

      LEGISLATIVE HEARING ON H.R. 675, H.R. 677, H.R. 732, H.R. 800, H.R.
        1067, H.R. 1331, H.R. 1379, H.R. 1414, H.R. 1569, AND H.R. 1607

                                  ----------

                            Tuesday, April 14, 2015

                  U.S. House of Representatives
                         Committee on Veterans' Affairs
     Subcommittee on Disability Assistance and Memorial Affairs
                                                       Washington, D.C.
        The subcommittee met, pursuant to notice, at 10:34 a.m., in
    Room 334, Cannon House Office Building, Hon. Ralph Abraham
    [chairman of the subcommittee] presiding.
        Present:  Representatives Abraham, Lamborn, Zeldin,
    Costello, Titus, Brownley, Ruiz, Miller, and O'Rourke.

              OPENING STATEMENT OF CHAIRMAN RALPH ABRAHAM

        Mr. Abraham. Good morning. Thank you for being here. This
    legislative hearing of the Subcommittee on Disability
    Assistance and Memorial Affairs will now come to order.
        We are going to ask for unanimous consent for Mr. O'Rourke,
    if you will be the ranking member.
        Hearing no objections, today we are here to have a
    legislative hearing on ten pieces of legislation. In the
    interest of time, I will forego a lengthy opening statement and
    just briefly summarize the two bills on the agenda which I am
    proud to have introduced. The first is H.R. 675, Veterans'
    Compensation Cost-of-Living Adjustment Act of 2015. This bill
    provides a cost-of-living adjustment increase to veterans
    disability compensation rates and other benefits. The amount of
    the increase will be determined by the Consumer Price Index,
    which also controls the cost-of-living adjustment for Social
    Security beneficiaries. As many of us here today know, any
    cost-of-living increase is beneficial to the veterans and their
    families who depend on the VA benefits to make ends meet.
        And although I am very supportive of this annual
    legislation, I would like to state that it is unfortunate that
    we have to pass a bill every year. I, therefore, have also
    introduced H.R. 677, the American Heroes COLA Act, which would
    authorize an annual COLA, without requiring congressional
    action. This would ensure that veterans COLA is not tied to
    political action or inaction in Washington.
        At this time, I would like to thank the committee members
    who are not on the subcommittee, who are here and have
    expressed interest in today's hearing. I would like to ask
    unanimous consent that Representative O'Rourke and
    Representative Walz be allowed to participate in today's
    hearing. Hearing no objection, so ordered.
        I appreciate everybody's attendance here at this hearing
    and now I will call on our ranking member, Mr. O'Rourke for any
    opening statement.

           OPENING STATEMENT OF RANKING MEMBER BETO O'ROURKE

        Mr. O'Rourke. Mr. Chair, I will waive any opening
    statement. Thank you.
        Mr. Abraham. Okay. Thank you.
        Are there any other members who would like to make an
    opening statement? Chairman Miller? Mr. Zeldin? Mr. Costello?
    Okay.
        We appreciate you joining us, Mr. Chair.
        We would like to welcome to our witness table at this time,
    Ms. Chellie Pingree, who is the sponsor of H.R. 1607, the Ruth
    Moore Act of 2015.
        Ms. Pingree, you are now recognized for five minutes.

                   STATEMENT OF HON. CHELLIE PINGREE

        Ms. Pingree. Thank you very much, Chairman Abraham and
    Ranking Member O'Rourke. I appreciate you having me here today
    and for considering the Ruth Moore Act in this morning's
    legislative hearing.
        I want to talk just a little bit about the bill and why we
    still think it desperately needs to become law. It has been
    said that the greatest casualty is being forgotten. I can tell
    you that the hundreds of survivors who have called my office
    since I first introduced this legislation in the 113th Congress
    have felt forgotten by the military system they so proudly
    served. They struggle trying to meet an unfair standard of
    proof, suffer through years of denials and appeals in a process
    that re-traumatizes them. It is a system that is broken and I
    can tell you from the countless stories that I have heard, that
    it hasn't been fixed.
        Ruth Moore, who this bill is named for, is a U.S. Navy
    veteran from Maine who was raped twice during her military
    service. When she reported it, she was discharged and labeled
    as having a personality disorder. She has spent over 23 years
    fighting the VA to get disability benefits and she battled
    homelessness and PTSD during that time.
        Quite simply, this act ensures that the VA treat our
    veterans whose PTSD is caused by sexual assault with the same
    standards and burden of proof that extends to veterans whose
    PTSD is caused by combat and other particularized claims. We
    know that fewer people are being assaulted and more are coming
    forward and that is progress, but still, 19,000 military
    personnel being sexually assaulted or sexually harassed
    annually is hardly a cause for celebration.
        I want to talk a little bit about approval rates, and I
    don't mean our political approval rates that we evaluate every
    day; I want to talk about the rates at which claims for the VA
    benefits are being accepted. The GAO did find that the overall
    approval rate for a PTSD resulting from sexual assault is
    increasing, but it is still lower than the approval rating for
    the PTSD claim ratings for other factors. And what is most
    concerning to me is that despite continued training, the
    subjective standards used to verify victims' sexual assault
    meant approval ratings varied wildly depending on where the
    veteran submitted their claim. In some offices, as few as 14
    percent of claims were approved, while others approved 88
    percent.
        In the GAO report, the VA states that under the current
    regulation, two adjudicators can interpret a marker in opposite
    ways and both will be correct. It is simply not acceptable that
    a veteran faces the roll of the dice of where they live and
    where their claim is reviewed, nor is it acceptable that 62
    percent of the respondents in a recent survey stated that they
    face retaliation for reporting. This, as well as evidence that
    40 percent of assaults were perpetrated by a superior within
    the veteran's chain of command suggests to me that we cannot
    train our way out of this problem.
        After a court ruling in 2002, the VA changed its policy to
    allow veterans a wider range of evidence called ``secondary
    markers'' to be used in a personal assault disability claim.
    The VA will tell you that because the current system allows for
    this alternative evidence for verifying an assault, there is no
    need for patient parity with evidentiary standards. But every
    day I hear from vets who detail claim denials due to the vast
    inconsistencies in the VA application of these standards. What
    one regional office or adjudicator will accept as proof,
    another will deny.
        In 2010 the VA relaxed the evidentiary standards for
    veterans who suffer from combat-related PTSD, as you all know.
    It is the same diagnosis, but a very different evidentiary
    standard. The VA finally acknowledged that far too many
    veterans who have deployed into harm's way suffered the
    emotional consequences of their service but could not, through
    no fault of their own, locate military documentation that
    verified the traumatic events that triggered their PTSD. The VA
    now accepts their statement of traumatic events, along with a
    PTSD diagnosis and medical link as enough to accept the
    disability benefits.
        The VA's less-favorable treatment of veterans who suffered
    sexual assault than those who suffered other forms of combat
    trauma is arbitrary. The VA can articulate no rationale for why
    a veteran's lay testimony may be adequate to establish combat
    trauma, but not trauma from sexual assault.
        The Ruth Moore Act corrects this injustice. Last congress,
    it was endorsed by a very long list of organizations including
    The American Legion, Disabled American Vets, Veterans of
    Foreign Wars, Vietnam Vets of America, Iraq and Afghanistan
    Vets of America. It is all detailed in my testimony--I won't
    give you the whole list--but you can see there is a long list
    of organizations that support this, and I want to thank them
    for their support and applaud them for the work they do for
    veterans.
        This bill also requires the VA to report MST-related claims
    information back to Congress, such as the number of denied and
    approved MST claims each year and the reasons for denial.
        As Members of Congress, we have a responsibility to ensure
    that the VA is providing timely and accurate decisions to
    veterans, but we cannot do that without sufficient data. Over
    the past few years there has been significant public attention
    to sexual trauma in the military and the VA has re-doubled its
    training and prevention efforts. But let me reiterate that the
    problem is not fixed. It is a problem of fundamental fairness.
    If a medical diagnosis and link to a claimed event is enough
    for one group of veterans with the same medical diagnosis, it
    ought to be enough for another.
        Critics of this legislation might say that it makes it too
    easy to get benefits and veterans can say just anything to get
    those benefits. First of all, that is simply not true. There
    still needs to be a medical diagnosis of PTSD and a medical
    link, which are not at all easy to come by, and less easy to
    live with, and, secondly, we heard that same argument when the
    VA proposed a similar change for combat veterans, but, in fact,
    I haven't heard the veterans administration (VA) say they have
    had big problems with veterans lying about their service.
        Mr. Chair, over the last four years, I have heard from
    dozens and dozens of veterans from all over the country, men
    and women who volunteered to serve their country, many of them
    planning on a career in the military, only to have that career
    cut short by the horror of a violent sexual assault. The
    survivors were blamed and harassed, crimes were covered up, and
    the survivors themselves became the subject of further
    harassment and incrimination. All too often what followed was
    years of mental health issues, lost jobs, substance abuse, and
    homelessness.
        But these stories don't have to end this way. With the Ruth
    Moore Act, we can change the VA's policy so veterans who
    survive sexual assault get the benefits they earned and
    deserved. Thousands of veterans, survivors of sexual assault
    have fought for years to get the benefits that are owed them,
    but they didn't give up, so we are not going to give up in our
    fight to reform this process to make sure that those brave
    women and men get the justice that they deserve.
        So, thank you again, Mr. Chair, Ranking Member, now Titus,
    and Members of the committee for considering this legislation.
    I appreciate your hearing me out today.

        [The prepared statement of Ms. Pingree appears in the
    Appendix]

        Mr. Abraham. Thank you, Ms. Pingree.
        We will forego a round of questions for Ms. Pingree, and
    any questions that anyone may have for our colleague may be
    submitted for the record.
        On behalf of the Committee, I thank you for joining us and
    you are excused.
        Ms. Pingree. Thank you very much.
        Mr. Abraham. The Chair will now ask Chairman Miller to talk
    about his bill.
        Mr. Miller. Thank you, Chairman Abraham, Ranking Member
    Titus. I appreciate the opportunity to be here to talk about
    improving VA's claims process for America's warriors, and I am
    here to talk about H.R. 1379, which I am proud to have
    introduced and which would help streamline the VA appeals
    process.
        Our nation's veterans, particularly those who have service-
    connected disabilities, have a right to have their claims
    decided accurately and fairly the first time, and if an appeal
    is necessary, the final decision should not only be accurate
    and fair, it should be consistent and it should be timely.
    Unfortunately, that has not been the case in recent years. As
    of the first quarter of fiscal year 2015, veterans were forced
    to wait an average of 1,896 days--that is 1,896 days--for their
    appeals to be decided by the Board of Veterans' Appeals and
    that is in addition to the time it took for VA to issue the
    initial decision.
        According to the Board, in fiscal year 2014, 58 percent of
    all Board decisions contained at least one remandable issue. In
    those cases, veterans are left in limbo as their cases are
    bounced back and forth between the Board and the Appeals
    Management Center without a resolution. Imagine the frustration
    of a veteran who has waited for over five years for an appeal,
    only to have the Board remand the case for additional
    development. Then the veteran must wait over thirteen and a
    half months, on average, for the VA to reach another decision.
    If that decision is negative, the appeal will return to the
    Board where it may be remanded again.
        As Chairman Abraham noted in his January 22nd oversight
    hearing on appeals last year, the court of appeals for veterans
    claims held the secretary of Veterans Affairs in civil contempt
    citing the Department's gross negligence in ignoring a veteran
    who repeatedly raised concerns on an appeal that had been
    remanded to the Department. The court noted that VA's inaction,
    quote, ``Conjures a vision of a drowning man watched by a life
    guard in a nearby boat, equipped with life preservers and
    rescue ropes, who decides to do nothing even though the
    drowning man is blowing a whistle and firing flares to call
    attention to his plight,'' end quote. Our nation's veterans
    deserve much better and H.R. 1379 aims to do just that.
        Now, in cases where there is insufficient evidence, H.R.
    1379 would give the Board the authority to obtain all the
    evidence it needs to issue a fair and accurate decision. This
    very simple change to the law will help the Board resolve its
    appeals backlog and give the veterans the finality that they
    deserve, and I would ask that the members, when given the
    opportunity to vote, would support H.R. 1379.
        And I yield back to you, Mr. Chairman, and humbly thank you
    for allowing me to present my bill.
        Mr. Abraham. Thank you, Mr. Chairman, and thank you for
    your presence.
        The Chair now recognizes Ms. Titus for both opening remarks
    and to speak about her bill.
        Ms. Titus. Well, thank you very much, Mr. Chairman. I
    apologize for being late; I was in the office with some
    veterans who had been reunited with their war dogs and it was
    kind of hard to leave them.
        I will forego opening comments for now, and let me say, one
    thing that I wanted to mention is the absence of one bill that
    I had hoped would be in the markup and requested, and that is
    H.R. 1598, the Veteran Spouses Equal Treatment Act. We have had
    a hearing on that. We have been talking about that for years.
    We have had nothing but positive comments and I would hope that
    we could work together to see that this gets passed so that all
    our veterans can receive the benefits that they are entitled
    to, so that one day when they are wearing their uniform they
    get the benefits, and the next day when they take it off, they
    lose them, depending on what state they live in, and we don't
    think that is fair.
        I have got to just flip here--I'm sorry--to talk about my
    bill; I didn't realize that was coming up next. Can you help
    me? I apologize. Yeah, I have got everybody else's bill that I
    was going to address in my opening remarks and I don't even
    have my own list in front of me. It is a bill that we heard
    last time that we--okay, thank you, I will just go from here.
        Okay. It is H.R. 1414, the Pay As You Rate Act. This would
    ensure that all veterans and their families receive the
    benefits they have earned through the military service more
    expeditiously by directing the secretary to pay our veterans as
    their individual medical conditions are rated. Now you have to
    wait until the entire case is analyzed and adjudicated to get
    any benefits; sometimes that is a long time to wait. We thought
    that it would make more sense and would help veterans if, as
    different aspects of the case are rated, you get the benefit
    for that aspect.
        For example, many of the veterans who returned from the
    Middle East today have a series of problems; they don't have
    just one claim, it can be eight, nine, up to eleven sometimes,
    different issues, and some are very complicated and take a long
    time. So why not give the veteran at least some benefit as they
    go along waiting for the entire case to be adjudicated.
        And thank you, Mr. Chairman, for your patience.
        Mr. Abraham. Thank you, Ms. Titus.
        The Chair recognizes Mr. Zeldin to talk about his bill.
        Mr. Zeldin. Thank you, Mr. Chairman.
        I speak today in favor of H.R. 1569. I appreciate you
    bringing it up for the Committee's consideration. In our
    current system, many of our veterans have earned service-
    related benefits due to injuries sustained on the battlefield.
    Those benefits, however, can only pass to a small group of
    individuals should the veteran pass away. If that veteran does
    not have a qualifying family member and passes away, the VA
    recoups the benefits that rightfully belong to the veteran.
        The VA has struggled to complete timely reviews of claims
    and if a veteran passes away while the VA is still reviewing
    the claim, the VA no longer has to award the earned benefits.
    H.R. 1569 would require the VA to pay certain benefits that
    were earned by a veteran to the veteran's estate. Currently,
    only a veteran's spouse, minor child, or dependent parent or
    parents, are eligible to collect the accrued benefits. By
    adding the estate to the current list of beneficiaries, adult
    children can now also receive the benefits earned, should there
    be no other qualifying family members. Servicemembers should be
    able to share the benefits they have earned with their
    families.
        This bill ensures that the benefits a veteran earns during
    his or her service stays with the family. Further, with the
    addition of this piece of legislation, the VA can no longer
    avoid awarding a claim to a veteran due to slow processing
    time. Not only will this bill protect the benefits that our
    veterans have earned, but it will also help maintain stricter
    levels of accountability at the VA.
        I yield back the balance of my time.
        Mr. Abraham. Thank you, Mr. Zeldin.
        The Chair now recognizes Mr. O'Rourke.
        Mr. O'Rourke. Thank you, Mr. Chairman.
        I will speak briefly about H.R. 800, also known as the
    Express Appeals Act, and as Chairman Miller's bill intends to
    do, this is to speed up the appeals process for veterans who
    are now waiting years instead of months to hear back on an
    appeal to an originally filed service-connected disability
    claim. As the Chairman's bill would, this would cut out the
    remand process, whereby a veteran's case is sent back to the
    VBA; instead, that would be decided by the Veterans' Board of
    Appeals. But it would also create a five-year pilot program, an
    alternative to the current system, that would allow veterans to
    file a fully developed appeal, and they would, by having an
    expedited process, forego the ability to add additional
    information to that appeal during that process. We hope, and it
    is the intention, as stated in the bill, that that gets the
    appeal wait-time down to under a year, which is far better than
    what we are doing today.
        And I want to stress to the chairman and to the other
    members of the committee, that this is a voluntary pilot
    program. Should the veteran wish to file an appeal under the
    status quo procedures, he or she is fully able to do that. If
    at any time that a veteran who chooses to enter the pilot
    program, which is to add additional information or return to
    the status quo filing of an appeal, he or she is able to do
    that as well. So no veteran is forced to do anything different
    than what they are doing today; they just have the option to
    enter a pilot program which would expedite their appeal and get
    them an answer much more quickly than we are able to today.
        And I will note that there are many members of the
    committee, including the committee chairman, who are original
    cosponsors and additional cosponsors to this bill, so we
    certainly appreciate the support and I look forward to hearing
    testimony from those who you have on the second and third panel
    today.
        And with that, I yield back.
        Mr. Abraham. Thank you, Mr. O'Rourke.
        The Chair now recognizes Mr. Costello.
        Mr. Costello. Thank you, Mr. Chairman.
        Chairman Abraham, Ranking Member Titus, and fellow Members
    of the Subcommittee, thank you for the opportunity to speak to
    you today on behalf of my legislation, H.R. 1067, the U.S.
    Court of Appeals for Veterans Claims Reform Act; legislation,
    which is a proactive step to ensure that the U.S. Court of
    Appeals for Veterans Claims is able to meet the growing demand
    for review of veterans' claims benefits. H.R. 1067 will ensure
    that not only do we have an adequate number of appellate judges
    to handle current and future demand, it also ensures that we
    continue to attract qualified and capable individuals to serve
    our veterans on this critical panel.
        To provide you with a little background, the U.S. Court of
    Appeals for Veterans Claims is authorized to have seven
    permanent judges and two temporary additional judges. Each
    judge is appointed for fifteen-year terms and each judge has
    the option to be recall-eligible for further service upon
    retirement. Absent legislative action, this Court is expected
    to revert back to its permanent authorization of nine judges in
    2016. H.R. 1067 makes sure that this occurs, as the VA
    continues to chip away at the appeals backlog.
        As you may know, the Court has exclusive appellate
    jurisdiction over decisions of the Board of Veterans' Appeals
    and plays a critical role in ensuring the timely and accurate
    review of veterans' claims. As the VA continues to investigate
    backlogs, reports of data manipulation and excessive wait times
    at the VA, there is a potential for our veterans to experience
    future appeals backlogs; therefore, this legislation would
    continue the temporary authorization for nine judges through
    2020 to ensure that there is no interruption in appellate
    review and service provided to our veterans. Additionally, as
    the Court is part of the U.S. Judiciary, this legislation would
    provide the judges with benefits commensurate to those provided
    to other federal appellate judges.
        I hope my colleagues will join me in supporting this
    legislation. Thank you for the opportunity to speak on behalf
    of H.R. 1067 this morning, Mr. Chairman.
        Mr. Abraham. Thank you, Mr. Costello.
        Okay. We will seat the second panel now. On this panel we
    will hear from Mr. David McLenachen, the Acting Deputy Under
    Secretary for Disability Assistance at the Veterans Benefits
    Administration. He is accompanied by Ms. Laura Eskenazi, the
    executive-in-charge and vice chairman of the Board of Veterans'
    Appeals, and Mr. David Barrans, assistant general counsel for
    the VA. Thank you for joining us.
        Mr. McLenachen, you are now recognized for five minutes,
    sir.

      STATEMENTS OF MR. DAVID R. MCLENACHEN, ACTING DEPUTY UNDER
        SECRETARY FOR DISABILITY ASSISTANCE, VETERANS BENEFITS
         ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS,
     ACCOMPANIED BY MS. LAURA H. ESKENAZI, EXECUTIVE-IN-CHARGE AND
     VICE CHAIRMAN, BOARD OF VETERANS' APPEALS, U.S. DEPARTMENT OF
     VETERANS AFFAIRS, AND MR. DAVID J. BARRANS, ASSISTANT GENERAL
    COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS
                                AFFAIRS.

                    STATEMENT OF DAVID R. MCLENACHEN

        Mr. McLenachen. Chairman Abraham, Ranking Member Titus, and
    Members of the Subcommittee, thank you for the opportunity to
    present VA's views on several bills that are pending before the
    Committee. Joining me today are Ms. Laura Eskenazi, executive-
    in-charge and vice chairman of the Board of Veterans' Appeals,
    and Mr. David Barrans, assistant general counsel.
        I first want to thank the Committee for the opportunity to
    testify concerning the cost-of-living adjustment bills, H.R.
    675 and H.R. 677, which will ensure the value of veterans' and
    survivors' benefits will keep pace with consumer prices next
    year and in the future. VA supports these bills.
        We are also pleased to have the opportunity to discuss two
    bills that address VA's administrative appeals process. VA
    fully supports H.R. 732 which would allow for greater use of
    video conferencing hearings by the Board of Veterans' Appeals.
    We believe this measure would both decrease hearing wait times
    and offer convenience for veterans.
        We thank Congressman O'Rourke and the veteran service
    organizations for their efforts related to H.R. 800, which
    would authorize VA to conduct an express appeals pilot program
    for veterans seeking a quicker final decision on a compensation
    claim. VA generally supports the bill and works closely with
    the veterans service organizations to develop the fully
    developed appeals concept. Despite the support, we do have a
    few technical concerns with the approach outlined in the bill,
    specifically with respect to the provision that would allow a
    veteran to elect an express appeal at any time during the
    traditional appeal process and the provision that would limit
    the optional process to original compensation claims. We hope
    to work with the Committee to address these and a few other
    concerns to ensure that VA is able to effectively able to
    implement the pilot.
        VA does not support H.R. 1331. We appreciate the intent of
    the bill, which seeks to provide benefits to veterans more
    expeditiously, but VA already has authority to decide claims
    based upon medical evidence that the claimant submits, provided
    that the evidence is adequate for rating purposes.
        Although VA supports appeals reform such as the Committee's
    efforts regarding H.R. 732 and H.R. 800, VA does not support
    H.R. 1379 because it would not result in faster resolution of
    appeals for veterans who are waiting far too long for a final
    decision on their claims. While some efficiency might result
    from avoiding the need to transfer claims between the Board and
    other VA agencies, the workload itself, developing evidence to
    support a claim would not change. VA believes that it is
    important to consider the entire appeals process and institute
    reforms that will result in overall increased efficiency for
    all veterans.
        VA does not support H.R. 1414 because it already has
    authority to make intermediate rating decisions and has
    implemented this authority in its current policies and
    procedures.
        Also, VA cannot support H.R. 1569 because it would require
    VA to pay taxpayer funds earmarked for veterans disability
    payments to deceased veterans' creditors and other
    organizations or non-family members. The bill would also force
    VA to discontinue its longstanding practice of reimbursing
    individuals for covering the costs of the deceased veteran's
    last sickness or burial in cases where there is no surviving
    spouse, child, or dependent parent.
        Regarding H.R. 1607, the Ruth Moore Act of 2015, I assure
    you this is an important issue for veterans and a high priority
    for the secretary. It is also an issue that the under
    secretary, Under Secretary Hickey, is passionate about
    addressing. As set out in our testimony, we have taken steps on
    a number of fronts over the past several years including a
    close review of past MST claims, focused training and outreach
    to ensure that we take into account the special, sensitive
    nature of these claims. We have seen grant rates increase for
    these claims as a result of these focused efforts; thus, we
    believe H.R. 1607 is unnecessary and do not support it. Also,
    as stated in our testimony, we believe the bill could cause
    negative, unintended consequences.
        Finally, Mr. Chairman, VA takes no position on H.R. 1067.
    This bill pertains to the operations of the court of appeals
    for veterans' claims and we defer to the Court for views on
    that bill.
        This concludes my statement, Mr. Chairman. We are happy to
    entertain any questions that you or the members of the
    committee may have.

        [The prepared statement of Mr. McLenachen appears in the
    Appendix]

        Mr. Abraham. Thank you, sir.
        Mr. McLenachen, in your written testimony, you do note that
    the VA supports the American Heroes COLA Act of 2015, and you
    further note that making permanent, the provision to round down
    the COLA, would result in a savings of approximately $39.6
    million in fiscal year 2016 and $3.1 billion over ten years.
    Please elaborate, then, on the Department's support of this
    bill.
        Mr. McLenachen. Yes, sir. I would be happy to do that. The
    round-down provision was a part of the COLA formula for many
    years. It was only within the last few years that that changed.
    It has also been part of the Administration's baseline budget.
    With that change to again, go to the round-down provision, it
    is VA's view, based on the bill, that it would provide VA an
    opportunity to use those savings to improve benefits for
    veterans and survivors through other legislative proposals, a
    few of which are in the present submission this year.
        Mr. Abraham. Thank you, sir. One more question for you,
    sir: Many veterans find themselves stuck in this hamster wheel,
    as it has been described, in which the Board has to remand the
    case for development several times before the record is
    sufficient for a Board member to render a final decision. By
    way of background information, at a January 22, 2015, DAMA
    oversight hearing, Ms. Eskenazi testified that 75 percent of
    the Board's inventory consists of cases that have been
    previously remanded. Isn't it true that multiple remands
    substantially increase the Board's workload, as opposed to
    allowing the Board to develop the evidence needed to issue a
    final decision?
        Mr. McLenachen. Mr. Chairman, I will defer to Ms. Eskenazi
    on that since it is her workload.
        Mr. Abraham. Okay.
        Mr. McLenachen. Thank you.
        Mr. Abraham. The Chair recognizes you, Laura.
        Ms. Eskenazi. Thank you. Good morning, Dr. Abraham, Ranking
    Member Titus. I first want to thank you for the opportunity to
    speak to you this morning and thank you for your continued
    attention to veterans appeals issues, an area that is greatly
    in need of attention and some reform, so thank you.
        Mr. Abraham. Thank you.
        Ms. Eskenazi. Regarding my testimony in January, I believe
    what I was speaking to was the rate of remands that return to
    the Board after remand, and we had a historical figure that
    showed that when the Board remanded a case back to the Veterans
    Benefits Administration, about 75 percent of those appeals
    would return to the Board after the remand, and the reason was
    that some of those appeals on remand are actually allowed by
    VBA and they do not return to the Board if the benefits are
    granted.
        That is a data point from a few years ago. I think that the
    rate may be a little bit different today, but one thing to
    understand in the remand process is that it is not just the
    gathering of the evidence, it is the opportunity for the
    originating agency, VBA in this case, to look at the entire
    record again and issue a new decision for that veteran. And if
    the veteran is not happy with that decision, they can come back
    to the Board, so it provides them with another bite at the
    apple, so to speak.
        Mr. Abraham. Okay. Thank you.
        Ms. Titus.
        Ms. Titus. Thank you, Chairman.
        Mr. McLenachen, you mentioned that the VA does not support
    H.R. 1414, which is my bill. You continued to say that the VA
    has the authority to do this, to pay as you rate, but I don't
    think that you do it even. But having the authority and doing
    it are two different things, so it doesn't matter if you have
    the authority and you are not making it happen.
        You say, also, that you--you admit that you need
    technological improvements to make it happen, so how about
    telling us how to make it happen if you don't want the
    legislation passed. What are the improvements that you need?
    How will they be enacted? And how much are they going to cost?
        And I will ask you, if you are using it and I am mistaken
    about that, how about telling me the result of using it and how
    many interim decisions have been issued.
        Mr. McLenachen. Yes, I would be happy to answer those
    questions to the best of my ability without additional data.
    But I assure you that we are doing this in the cases where we
    can and where we should.
        Ms. Titus. And I am just supposed to take your word for it?
        Mr. McLenachen. No, ma'am. I will see what data we can get
    and I will provide it to you.
        Ms. Titus. I appreciate that.
        Mr. McLenachen. But let me just give you a little bit of
    context for my answer. In the past, when this--and this is not
    the first time that we have seen this bill introduced, of
    course.
        Ms. Titus. Correct.
        Mr. McLenachen. When it was first introduced in the past,
    VA was in a lot different situation regarding the backlog of
    claims and the inventory. Since March, 2013, veterans are now
    getting decisions on their claims 150 days faster than they
    were at that point; that is a 150-day improvement with an
    average day pending now for our--average days pending for our
    inventory is down to 132 days.
        So, although there may have been a need at one point, to
    look carefully at whether we need to break up our decision-
    making, as your bill suggests, VA is in a very different place
    right now, and in our view, a very good place as far as our
    progress on the backlog. Nonetheless, if there are situations
    where we have a claim that we can grant, in part, we do that.
        Another problem with the bill is that it requires an
    interim payment with a later reconciliation. We don't do that.
    If we have an interim rating that we can do, we grant the
    benefit in whole, regarding that separate piece of the claim.
        I would also like to remind you of VA's priority goal,
    which is to decide all claims within 125 days. We are making
    progress on that and we are going to achieve that goal. If we
    can decide all claims within 125 days, in our view, there is
    less need for those types of intermediate ratings.
        Having said that, we are moving towards a national work
    queue where we are better able to move the work around the
    nation and get the work done, and that is the technical
    advances that are mentioned in our testimony. We would be happy
    to provide you more information on how that will work.
        Ms. Titus. I would appreciate that. Thank you very much.
    And I know you all have made great improvements and cut down on
    backlogs and shortened times, but when do you think that you
    are going to meet that goal?
        Mr. McLenachen. It is our position that we are going to
    meet the goal by the end of the year and we are committed to
    that and that is what is going to happen.
        Ms. Titus. Okay. Thank you.
        I would also like to ask about the outreach on the MST
    claims. You say that you contacted veterans to inform them to
    let them know that they can request a review of those claims
    that were decided before the current reforms were begun. Is
    there any follow-up to the people that you contacted? Did you
    contact them a second time? Did you follow-up if you weren't
    able to find them? How many people have taken advantage of it?
    Do you have some statistics on that?
        Mr. McLenachen. I do have a few that I would be happy to
    provide you. In 2013, we sent out 2500 outreach letters to
    potential claimants. We received 627 requests for a second look
    at those claims; of those, there was approximately a 65 percent
    grant rate of those that we looked at.
        Wanting to do more, in 2014, we sent out 2,000 other
    letters. We received only 54 requests in response to that
    second outreach that we did in 2014. Of those that we looked
    at, the grant rate was approximately 47 percent.
        Ms. Titus. Thank you very much.
        Mr. McLenachen. You're welcome.
        Ms. Titus. And I yield back.
        Mr. Abraham. Thank you, Ms. Titus.
        The Chair recognizes Mr. O'Rourke.
        Mr. O'Rourke. Thank you.
        I wanted to get a little bit more feedback from you on the
    two concerns that you raised with H.R. 800. One, as I
    understand it from your testimony, was H.R. 800's ability to
    allow a veteran to elect to pursue an express appeal at any
    point in the process, and the second one, I believe, deals with
    the ability to re-open an original claim through this, which,
    my understanding is that H.R. 800 would limit. So could you
    describe your concerns with those two and potentially suggest a
    fix that you think is better than what we have in H.R. 800?
        Mr. McLenachen. I would be happy to.
        I just want to reassure you that VA is fully committed to
    doing this pilot. Our concerns are purely technical. We are
    committed to doing this. We think it is essential to looking
    for ways to improve the administrative appeal process; however,
    what I would like to do to make sure that you get the
    information that you need is turn it over to Ms. Eskenazi to go
    into a little bit more detail about those two concerns that we
    had.
        And, again, there are others, but I just want to say that
    primarily what we are concerned about is making sure that this
    pilot program is very successful and that is the reason why we
    raised those concerns.
        Ms. Eskenazi. Thank you, Congressman O'Rourke.
        And, again, just to restate the support for the concept of
    FDA or express appeals, as outlined in H.R. 800, and I echo the
    comments that our concerns are purely technical and can be
    resolved.
        The first item that you mention is the provision in the
    bill that allows veterans in the existing appeals process to
    opt-in to this express appeal concept. That is something that
    we are not recommending. We are recommending that this be a
    pilot for new appeals, and the reason is on the hope is, by
    doing this as a five-year pilot, this will prove as a kind of
    proof-of-concept to see what another type of appeals process
    looks like.
        And a few things to consider by allowing folks in the
    existing appeals process to join midstream, for one, when you
    look at the life of their appeal, if they are already in the
    appeals process, it will be a much more prolonged process. So
    start-to-finish, they are not going to have anything that looks
    express; it will be a lengthy appeal, and that could lead to
    misperception among the community that it is not a program that
    offers anything by nature of express. And also, it would
    provide lots of mixed data as to the success of the program
    itself. And, again, the hope is that this will model some sort
    of--it will prove a concept.
        And for those veterans that wish to elect into this
    voluntary program, we can watch this over the period of time
    during the pilot and hopefully achieve the same types of
    overall results for veterans as with the current more lengthy
    process. So that addresses your first point.
        The second point concerns the types of claims that could
    opt into fully developed appeal from the beginning. And VA
    actually believes that we could leave it open to any type of
    claim; it wouldn't have to be restricted to just original
    claims, which is I believe, how it is outlined in H.R. 800. So
    we would support a broadening of the type of claims that would
    go in.
        Mr. O'Rourke. Okay. Well, thanks for elaborating on that,
    and as you have described it, your suggestions sound very
    reasonable. And, you know, I think our primary goal is to
    expedite the appeals process and we want to fix the entire
    system. We hope this alternative, perhaps, illustrates a way to
    do that. I think it is the reason why you have a pilot program,
    but I want to make sure that we are focused on getting the best
    possible outcome for those veterans, including a timely,
    accurate answer. So I want that to remain the priority.
        But I think a secondary goal is to make sure that we have a
    good data related to this. So I understand your argument on the
    first point, and I am pleasantly surprised on the second one
    that you want to make sure that it is open to as many cases as
    possible.
        As you know, we have done a tremendous amount of work with
    veterans service organizations--I should say that they have
    done a lot of work in vetting this, providing good suggestions,
    committee staff, members on the committee. So I want to make
    sure that we vet these suggestions with them, but they sound
    reasonable, and if we can incorporate them, we would certainly
    want to do that and appreciate the VA's support of this bill.
        So, thank you. Mr. Chair.
        Mr. Abraham. Thank you, Mr. O'Rourke.
        The Chair recognizes Ms. Brownley.
        Ms. Brownley. Thank you, Mr. Chairman.
        I wanted to follow up a little bit on H.R. 732. I am a co-
    author of that bill, and I am happy to see that the VA is
    supporting it.
        I had a couple questions, though, with regards to current
    practices, and wanting to know if every VBA office offers
    videoconferencing for appeals hearings and can the veteran
    choose the location of his or her video hearing?
        Ms. Eskenazi. Certainly, I am happy to address that
    question, and, yes, currently, all VA regional offices have
    facilities for video hearings with the Board of Veterans'
    Appeals. And what happens when the veteran makes the request
    for a hearing, it is usually scheduled in the region that the
    veteran lives, the closest regional office; that is generally
    how it happens.
        Ms. Brownley. So what about for a veteran who lives really
    far away and doesn't have really easy access to a VBA to
    office, is there the option to be able to do the
    teleconferencing in the veteran's home?
        Ms. Eskenazi. Right now, what we do is work with some of
    the medical centers for some of the areas that are more, you
    know, have larger jurisdictions and we will hold some video
    hearings at VA medical centers to offer a little bit more
    convenience to veterans. At this time, we do not hold hearings
    in the veteran's home due to logistics and privacy and things
    of that nature.
        Ms. Brownley. And if H.R. 732 is to become law, how would
    the VA make clear that veterans who prefer an in-person hearing
    can still receive one?
        Ms. Eskenazi. Certainly. We would have to revise the
    election form that veterans generally use to request their
    hearing and make all that very clear on the form. Right now, we
    have to wait for veterans to choose a video hearing and we have
    done quite a bit of outreach to encourage more video hearing
    participation, but we can't schedule them at the outset.
        So H.R. 732 permits a default to scheduling video hearings
    while still permitting veterans to request that face-to-face
    in-person hearing with the understanding that that may take a
    little bit longer to actually schedule. But we are very
    supportive of H.R. 732 as drafted, and it certainly would offer
    a great deal of efficiency in scheduling and time-saving in
    terms of the travel that is involved for our 65 or 64 veterans
    law judges to conduct those hearings.
        Ms. Brownley. Thank you. And I also wanted to follow up on
    Mrs. Titus' questioning on the MST bill and just wondering how
    and what the VA did to update MST training materials for the VA
    claims processors.
        Mr. McLenachen. Yes, thank you for that question. Because
    there are a number of initiatives that we put in place over the
    past few years, let me just list them real quickly for you so
    you have a better idea of where we have been on this. We
    developed nationwide training that we delivered to everybody
    that works on these types of claims. We have dedicated
    processing teams, what we refer to as our ``special operations
    lanes'' where these go into, so our most experienced
    adjudicators work these claims. Our challenge training for
    every new adjudicator that comes into VBA and works claims,
    receives a training module that has been added to the challenge
    training, regarding working these types of claims. We have
    established MST coordinators in every VA regional office. We
    have a certification checklist that must be signed by the
    service center manager or the assistant service center manager
    that allows us to do a consistency study of these types of
    claims to ensure that all regional offices nationally are
    processing claims it within the acceptable tolerance. We have
    training that we developed for women veterans coordinators in
    each of the regional offices. Also, we have quality assurance-
    focus reviews that our compensation service does on these types
    of claims, again, to ensure that we keep variance among all the
    regional offices as low as possible.
        So all of those initiatives have gone on since 2011 when
    Under Secretary Hickey first noted that we needed to pay close
    attention to this issue.
        Ms. Brownley. Thank you. I will yield back.
        Mr. Abraham. Thank you, Ms. Brownley.
        Well, on behalf of the Committee, we thank you for your
    time and your testimony. You are excused.
        The third panel can come to the table as soon as they can.
    So, joining us today on the third panel is Mr. Zachary Hearn,
    the deputy director for Claims, Veterans Affairs and
    Rehabilitation Division of The American Legion; Mr. Blake
    Ortner, the deputy director of Government Relations for
    Paralyzed Veterans of America; Mr. Paul Varela, assistant
    national legislative director of Disabled American Veterans;
    Mr. Ronald Abrams, the joint executive director of the National
    Veterans Legal Services Program; and Mr. Kenneth Carpenter,
    founding member of the National Organization of Veterans'
    Advocates. Thanks for coming again, gentlemen, we appreciate
    you.
        Mr. Hearn, you are now recognized for five minutes.

                       STATEMENT OF ZACHARY HEARN

        Mr. Hearn. Thank you. Good morning, Chairman Abraham,
    Ranking Member Titus, and Members of the Committee. On behalf
    of National Commander Mike Helm and the 2.3 million members of
    The American Legion, we are pleased to offer remarks regarding
    pending legislation. The slate of bills offered covers a wide
    range of topics, proof that the impact of Department of
    Veterans Affairs and its benefits are due to the wide range and
    needs of the veterans community, many of whom have physical and
    emotional scars related to their service in the Armed Forces.
        The American Legion understands the intent of the American
    Heroes COLA Act of 2015 is to eliminate the political wrangling
    with veterans benefits annually. While this bill would
    eliminate the annual political debates surrounding adjusting
    veterans disability compensation, it also links the benefit to
    the chained Consumer Price Index. This bill had been floated in
    Congress in 2012, and as in 2012, The American Legion remains
    steadfast against the bill.
        We are not the only organization with significant concerns
    surrounding linking veterans benefits to the chained CPI. Two
    years ago, AARP reported that, quote, ``A 30-year-old veterans
    of the Iraq or Afghanistan war who has no children and is 100
    percent disabled would likely lose about $100,000 in
    compensation by age 75 in today's dollars.'' While The American
    Legion understands the intention of Congress to remove veterans
    from the annual political debate, hundreds of thousands of
    dollars potentially lost to some of our most desperate veterans
    is a serious concern. As a result, The American Legion
    continues to not support the notion of linking veterans
    benefits to cost-cutting measures that could have devastating
    impact in the long run for America's veterans.
        Turning our focus to appeals, a recent review of data
    provided by VA indicates that the amount of appeals within the
    appeals inventory has grown by over 55 percent in the last five
    years. While these figures apply to only veterans awaiting
    adjudication within the Department, it is reasonable to expect
    that an increased burden on the Court of Appeals for Veterans'
    Claims could occur. VA routinely states that with increased
    adjudications, you should expect increased appeals.
        Using that logic, it would stand to reason that the CAVC
    should also expect an increased number of claims appealed to
    the Court. Couple this with the knowledge that within two
    years, the sequence of retirements could occur and veterans
    that have experienced years of backlog at regional offices and
    the Board of Veterans' Appeals could experience a significant
    wait prior to having their case heard at the court.
        Instead of waiting to see this impact and watch veterans
    continue to suffer, we ask Congress to act now and expand the
    number of judges to the court to ensure that veterans have
    their cases heard in a timely manner. The American Legion
    supports a notion of expansion of judges within H.R. 1067.
        H.R. 1414, the Pay As You Rate Act seeks to get benefits to
    veterans as soon as the evidence determines they are eligible
    regardless of other issues that may be pending in their claims.
    VA's manual for claims adjudication, the M21-1MR, states with
    provided exceptions that VA is to, quote, ``Decide every issue
    for which sufficient evidence has been obtained and a benefit
    can be granted, including service connection at a non-
    compensable level, even when the issue of service connection
    for other disabilities or entitlement to a higher evaluation on
    another issue must be deferred.''
        VA already has the capability to do what this bill intends,
    unfortunately, it has been our experience that veterans' claims
    are not adjudicated as they become available for benefits;
    instead, VA often waits to adjudicate all issues en masse. This
    practice can be costly to veterans. Not only is a veteran
    potentially losing hundreds of dollars monthly in compensation
    benefits, the veteran is also potentially losing the ability to
    seek treatment for the condition from VA or receive other
    benefits associated with service connection for the condition.
    The American Legion fully supports getting these benefits to
    the veterans as quickly as possible, and as a result, we
    support the Pay As You Rate Act.
        Again, on behalf of National Commander Mike Helm and the
    members that comprise the nation's largest wartime veterans
    service organization, we appreciate the opportunity to speak
    before you this morning to discuss these bills that could have
    long-lasting effects upon the veteran community.
        I will be happy to answer any questions that the Committee
    may have. Thank you.

        [The prepared statement of Zachary Hearn appears in the
    Appendix]

        Mr. Abraham. Thank you, Mr. Hearn.
        Mr. Ortner, you are recognized for five minutes to provide
    the testimony of the Paralyzed Veterans of America.

                      STATEMENT OF BLAKE C. ORTNER

        Mr. Ortner. Chairman Abraham, Ranking Member Titus, Members
    of the Subcommittee, Paralyzed Veterans of America would like
    to thank you for the opportunity to testify today on the
    pending legislation. As identified in our written testimony,
    PVA supports many of the bills before us today, and in light of
    limited time, I will confine my testimony to the legislation
    where we have concerns.
        PVA is very pleased with the introduction of H.R. 800, the
    Express Appeals Act. We see this legislation as a good
    beginning and a framework for critical changes to the appeals
    process that may help veterans receive benefits that they have
    earned more rapidly. One concern we have with the pilot program
    is the opening of the pilot to existing traditional appeals.
    PVA believes that for the pilot to be a true test of the
    express appeals process, it should only allow entrance into the
    pilot at the initial notice of disagreement stage; to do
    otherwise may create a flawed process and an imperfect test. In
    addition, VA should be required to provide more case-specific
    initial notice to veterans at the time of their denial so they
    can better understand why their claim was denied and whether
    election of the pilot program would be advisable.
        PVA also wants to draw attention to the requirement of the
    secretary to transfer employees of the Appeals Management
    Center to the Board. We see this as a critical requirement to
    ensure that the Board has experts to assist with the program;
    however, we fear this may become an excuse by the Veterans
    Benefits Administration for why they are unable to complete
    traditional appeals. While it can be expected that reducing
    resources or manpower will have an impact on AMC's processing
    rate, we ask that the Subcommittee apply detailed oversight to
    ensure that any reduction is appropriate and acceptable.
    Furthermore, oversight is critical to ensure transferred staff
    is properly trained to assist with implementing the pilot.
        In addition, PVA wants to ensure that veteran service
    representatives who are working under a power of attorney for a
    veteran have the ability to also be notified of actions on the
    appeal; as such, we believe it should include language that
    adds ``and his or her representative'' to ensure that a POA
    receives copies of whatever was done as part of the development
    and get another opportunity to provide argument.
        PVA strongly supports H.R. 1331, the Quicker Veterans
    Benefits Delivery Act of 2015. This bill is a high priority for
    PVA's members and we have consistently recommended that VA
    accept valid medical evidence from non-Department medical
    professionals. The continuing actions of VA to require
    Department medical examinations does nothing to further efforts
    to reduce the claims backlog.
        PVA would also like to see VA better adhere to its own
    reasonable doubt provision when adjudicating claims that
    involve non-VA medical evidence. We still see too many VA
    decisions where the veteran-friendly rule was not applied
    properly. More often, it appears VA raters exercise arbitrary
    prerogatives to avoid ruling in favor of the claimant, adding
    obstacles to the claimant's path without adequate
    justification. While due diligence and gathering evidence is
    absolutely necessary, too often it seems that VA is working to
    avoid a fair and legally acceptable ruling favorable to a
    veteran. Both the failure to accept and tendency to devalue
    non-VA medical evidence are symptoms of this attitude.
        PVA cannot support H.R. 1379 as it is currently proposed.
    While PVA generally supports modifications to the remand
    process as it currently exists to allow for more expeditious
    and accurate resolution of appeals, H.R. 1379 is so vague that
    we believe it is unworkable. While there may be some advantages
    to oversight of all remands development by the Board, it will
    require significant investment of resources to ensure quality
    is better and results in better decisions; however, it raises
    significant unanswered questions.
        The legislation indicates that, quote, ``The Board may not
    remand any appeal case to the Veterans Benefits
    Administration,'' unquote, but does not describe what
    constitutes a remand. Many orders from the Board involve
    scheduling and completion of an examination by VBA. Is the
    process for scheduling and quality of examinations going to be
    improved? Will the process be adequately funded and staffed?
    Will there be additional emphasis on private and VA treating
    evidence? Will the entire SSOC process be eliminated? Until
    these questions are answered, PVA cannot offer its support.
        Additionally, there is an absence of language that directs
    a pre-decisional review of the case by the appellant's
    designated power of attorney. It will be significantly easier
    for the Board to shut VSOs out of the process in the name of
    expediency. Perhaps PVA's greatest concern is that it almost
    eliminates VBA accountability. It allows for errors and poor
    initial decisions with no penalty or retribution. In too many
    cases, AMC ensure the specific orders from the veterans law
    judge are followed and completed. How much worse will it be
    when VBA can essentially wash their hands of their claims with
    no repercussions against the VBA or incompetent adjudicators
    who already have minimal accountability when they fail?
        Mr. Chairman, this concludes my statement. I would be happy
    to answer any questions.

        [The prepared statement of Blake C. Ortner appears in the
    Appendix]

        Mr. Abraham. Thank you, Mr. Ortner.
        Mr. Varela, you are now recognized for five minutes for
    testimony on the Disabled American Veterans.

                      STATEMENT OF PAUL R. VARELA

        Mr. Varela. Chairman Abraham, Ranking Member Titus, and
    Members of this Subcommittee, good morning and thank you for
    inviting DAV to testify at today's legislative hearing. As you
    know, DAV is a nonprofit veterans service organization
    comprised of 1.2 million wartime service-disabled veterans
    dedicated to a single purpose: Empowering veterans to lead
    high-quality lives with respect and dignity.
        For my oral remarks today, I will highlight several bills
    of particular importance to our organization. First, H.R. 675,
    the Veterans' Compensation Cost-of-Living Adjustment Act of
    2015, the legislation DAV supports that would increase
    compensation rates for wounded, ill and injured veterans, their
    survivors, and dependents, commensurate with the rate provided
    to Social Security recipients effective December 1st, 2015.
    Customarily, Congress has determined these COLA's in parity
    with recipients of Social Security benefits to include years in
    which Social Security recipients received no increased COLA.
    Consequently, VA beneficiaries also received no increased COLA.
    DAV has always supported legislation that provides veterans
    with a COLA, however, DAV is adamantly opposed to the practice
    of rounding down COLAs to the nearest whole-dollar amount. This
    bill does contain a round-down provision and we oppose the
    round-down feature of this bill.
        Second, H.R. 677, the American Heroes COLA Act of 2015, a
    bill seeking to couple COLAs for wounded, injured and ill
    veterans, their dependents and survivors to that of Social
    Security recipients. While we do not oppose the automatic
    adjustment, DAV will continue to oppose legislation that seeks
    to permanently round-down veteran and survivor compensation
    payments. H.R. 677 would permanently link VA compensation COLAs
    to that of Social Security recipients, provide for an automatic
    adjustment whenever there is an increase, and make permanent
    the practice of rounding down veteran and survivor COLAs to the
    nearest whole dollar, again, a provision we adamantly oppose.
    DAV and our IB partners call on Congress to end, permanently
    the practice of rounding down COLAs.
        Next, H.R. 800, the Express Appeals Acts, a bill supported
    by DAV and other VSOs. This legislation would provide
    appellants with alternate appeals options designed to safely
    bypass some current VBA appeal processing requirements,
    potentially saving appellants up to 1,000 days of processing
    time and ensures appellants retain the absolute right to
    withdraw from the pilot, thus reverting them to the standard
    appeals process without any penalty at any time prior to the
    Board's disposition.
        On January 22nd, 2005, DAV testified before this
    Subcommittee and recommended creating a new, fully developed
    appeals pilot program. Our proposal benefitted from subject
    matter expert input that spent weeks deliberating the pros and
    cons of establishing such a pilot. The FDA continues to gain
    widespread and growing support within the VSO stakeholder
    community, including full buy-in from both VBA and the Board
    leadership. The FDA is not envisioned to replace either the DRO
    or the traditional appeals process; it is another option, a
    fully voluntary one. Several of the leading VSOs responsible
    for representing the majority of claims and appeals before the
    Department of Veterans Affairs believe this pilot to hold real
    promise.
        An FDA pilot that addresses some of the overall workload
    challenges can be modified during its operational period and
    will supply Congress and stakeholders with tangible information
    that has the potential to lead to true appeals process reform.
    In the pilot, participants voluntarily agree to undertake
    development of private evidence, if any, in order to enter the
    FDA program. They may not later submit additional private
    evidence. Such supplemental submission results in pilot
    discontinuance, with one exception. When the Board develops any
    new evidence, appellants would receive copies of said evidence
    with 45 days to provide supplemental evidence in response to
    VA's findings.
        To ensure the success of the pilot while preserving the
    best interests of appellants, we have made several formal
    recommendations that include increased reporting requirements,
    replacing the word ``traditional'' with ``standard,'' limiting
    the FDA entry point, language preserving the DRO process, and
    enhanced VBA outreach.
        Dr. Abraham, we want to take this opportunity to publicly
    thank the ongoing efforts of Congressman O'Rourke, who
    introduced similar legislation last year. Congressman O'Rourke
    and his staff worked closely with DAV and other VSOs on this
    initiative.
        We also want to take this opportunity to thank the Chairman
    of the House Veterans Affairs Committee, Mr. Miller, who is the
    lead cosponsor for this bill, for his continued leadership and
    willingness to reach across party lines to support efforts at
    improving the lives of our nation's wounded, injured and ill
    veterans, their dependents, and survivors.
        We appreciate the opportunity to present our views on these
    bills and look forward to answering any questions you or the
    committee members may have.

        [The prepared statement of Paul R. Varela appears in the
    appendix]

        Mr. Abraham. Thank you, Mr. Varela.
        Mr. Abrams.

                     STATEMENT OF RONALD B. ABRAMS

        Mr. Abrams. Thank you, Mr. Chairman and Members of the
    Committee.
        I want to get right to it and talk about H.R. 800. NVLSP
    must oppose the passage of this bill. As written, H.R. 800
    would act as a trap for unwary veterans who are focused on
    seeking a prompt resolution of their appeals. First, the notice
    letters sent by the VA are often lacking in crucial detail. The
    VA doesn't inform veterans, and other claimants, as to what
    elements of the claim have been proven, what issues haven't
    been decided, and what elements of the claim have been
    disproved. The VA notice letter should tell the claimant the
    specific reason why the claim was denied and what evidence, if
    any, might support the claim. Without this, how can anyone make
    a knowing decision to give up important procedural and due
    process protections?
        We find there is a great deal of uncertainty among veterans
    regarding their entitlement to VA benefits. Working with The
    American Legion we have interviewed hundreds of veterans in the
    last year and found that many of these veterans don't know why
    they are getting benefits. They are misinformed as to what
    claims have been denied. Therefore, because H.R. 800 invites
    veterans to give up important procedural protections without
    providing adequate information to make an intelligent decision,
    we can't support the bill as written.
        Another problem is that while the bill invites the
    involvement of the service representative, it should require
    their involvement. The VA should send a form to the veteran
    that indicates that the veteran has consulted his or her
    representative and a place on the form to identify the service
    group and the name of the representative.
        It is a good idea to require the Board to conduct
    appropriate development, but the bill says that the veteran,
    after giving up the right to submit evidence all through the
    process, will be given 45 days to respond to a negative medical
    exam. That is not enough time; they are going to need at least
    90 days with an extension of another 90 days. It is hard to get
    a doctor to give you a medical opinion in 90 days. I have been
    doing this for a long time, and even when I call family members
    who are doctors, it can take three, four months to get a good
    opinion.
        I want to shift now to 1379, NVLSP strongly supports this
    bill; however, we think that H.R. 1379 should prohibit the
    Board from developing negative evidence against the claim
    unless the Board explains in writing why the evidence is not
    sufficient to award benefits. This would eliminate some of the
    problems caused by what we call the ``hamster wheel.''
        NVLSP supports the package of H.R. 1414, but wants to note
    that the VA has a manual provision that also calls for the VA
    to service connect claims that are at a non-compensable level
    so the veteran can get healthcare treatment. We would like that
    added to that bill. It is already in their rules, they ought to
    not have a problem adding that in.
        I see I am running out of time, and I will be happy to take
    any questions. Thank you.

        [The prepared statement of Ronald B. Abrams appears in the
    Appendix]

        Mr. Abraham. Thank you, Mr. Abrams.
        Mr. Carpenter, you are recognized for five minutes, sir.

                   STATEMENT OF KENNETH M. CARPENTER

        Mr. Carpenter. Thank you very much, Members of the
    Committee. NOVA thanks you for inviting us to testify. Because
    of the limited time, we will address only four bills in our
    oral testimony.
        The first bill we would like to address is the Quicker
    Veterans Benefits Delivery Act. We believe that this is an
    opportunity for Congress to codify the treating physician rule
    that has been adopted by regulation with the Social Security
    Administration. We believe that this will reduce appeals by
    getting favorable decisions in the first instance and reduce
    the appeals backlog by allowing treating physicians to be given
    deference in their medical judgment of the veteran's condition
    based upon their relationship and treatment relationship with
    the veteran. This rule has been in place with Social Security
    and veterans should be afforded the same benefit. This bill
    acknowledges that there is a place for non-VA medical
    professional opinions and acknowledges that they should be
    placed upon equal footing with VA medical professionals. We
    encourage the adoption of the treating physician rule, which we
    believe will result in the quicker delivery of benefits to
    veterans.
        The second bill we would like to address is the Court of
    Appeals for Veterans Claims Reform Act. This bill correctly
    provides for an appropriate salary increase for the judges of
    that court, and of equal importance, we believe that this bill
    recognizes the need for the important continuation of the size
    of the court.
        The Ruth Moore Act of 2015 is necessary, in our view, to
    place a thumb on the scales of justice for those servicemembers
    who have been victims of sexual assault and need this
    legislation in order to obtain benefits for their resulting
    disabilities. The need for this legislation, we believe is
    obvious and it certainly is to myself, having represented
    several dozen veterans who have been the victims of sexual
    assault. If this Congress does nothing else this year, Congress
    needs to enact this bill in order to do the right thing by the
    victims of sexual assault in service.
        Finally, we would like to address the Appeals Express Act.
    We believe that this act does not provide the structural change
    needed in the appeals process and simply delays for five years
    that necessary structural change. A pilot program is not what
    is needed to deal with the unacceptable delays in processing.
    At best, this will deal with one quarter of the appeals
    process. We believe that immediate and fundamental change is
    what is needed and with modification, we believe that this act
    could provide that immediate restructuring of the VA's appeal
    process.
        The Express Appeals Act does contain two very necessary
    changes. First, the elimination of the statement of the case in
    the VA 9, as well as the elimination of Board remands for
    development. This is the type of structural change that is
    needed and should be in place for the benefit of all veterans
    who are appealing their cases immediately.
        H.R. 1379 authorizes the Board of Veterans' Appeals to
    develop evidence and this is the kind of structural change that
    is required and should be incorporated into an overall
    structural change for the benefit of all veterans. There are
    currently 29,000 appeals on remand from the Board to the agency
    of original jurisdiction. Having the Board responsible for
    evidence development on appeal will result in faster and more
    efficient decision-making of appeals.
        A pilot program, as proposed by the Express Appeals Act and
    allowing the Board to develop evidence, however, is not enough.
    NOVA would like to make five specific additional statutory
    changes. First--and I am not obviously going to be able to get
    through all of those, as I see my time is expiring--so I will
    conclude my remarks and make myself available for any
    questions. Do not interpret my not addressing the other bills
    as not support, as we have indicated in our written testimony,
    and we will be willing to respond to any questions on any of
    the bills.

        [The prepared statement of Kenneth M. Carpenter appears in
    the Appendix]

        Mr. Abraham. Mr. Hearn, in your written testimony, you note
    that the VA's current organizational structure and remand
    process creates an awkward relationship whereby the Board,
    which is independent of the VBA, directs a VBA agency to
    conduct the necessary development to issue a final decision. As
    a result the Board members must rely on VBA employees to
    conduct development over whom the BVA has no oversight. Please
    describe why this situation leads to inefficiencies and delays
    in the appeals process.
        Mr. Hearn. If you have a lack of oversight, there is no
    sort of recourse that the Board can take, and as I indicated
    during the testimony or The American Legion indicated during
    the testimony, is that you can sense the frustration that the
    judges are feeling at the BVA. I think one of the questions
    that should be asked of VA, if the Appeals Management Center is
    put underneath the Board of Veterans' Appeals, do the Appeals
    Management Center employees need further training? If the
    answer is yes, then perhaps that speaks to the nature of
    training within VBA. If they say no, then the question has to
    be, why do you have repeated remands and why do you have
    overturns at the Board of Veterans' Appeals?
        And I think this is what the frustration is that the
    veterans feel. Having worked over at the Board of Veterans'
    Appeals for several years for The American Legion, this
    frustration is sensed in conversations that I have had with
    individuals over there because the AMC is just not responding.
    There is this disconnect between the independent BVA and the
    VBA.
        Mr. Abraham. Thank you.
        This question goes to the whole panel. Although a few
    members of the panel have expressed some reservations about
    H.R. 675 and H.R. 677, you are all aware that the annual COLA
    was held up in the Senate in 2012--and I think you alluded to
    that, Mr. Hearn. As representatives of veterans, could you
    please put a face on this issue and provide some real-life
    examples of how the veterans and their families are impacted
    when they can't count on this COLA from year to year. Any of
    you can respond.
        Mr. Hearn. You're from Monroe?
        Mr. Abraham. Right.
        Mr. Hearn. The average income is roughly 19,000 and change,
    according to census figures.
        Mr. Abraham. I agree.
        Mr. Hearn. Las Vegas, you are around 25,000.
        Sorry, I didn't check El Paso ahead of time.
        If you are looking at a hundred thousand dollars worth of
    benefits in today's dollars, that is five years' worth the
    benefits in your district and four years' worth of benefits in
    your district, as far as income is concerned. So that is the
    face of it. No veteran wants to sit there and be the pawn in
    this political game, you know, as the winds of change occur in
    these halls; nobody wants to be in that, and we understand
    that, but we also recognize that we can't be diluting benefits
    to veterans simply for the course of expediency.
        Mr. Ortner. Chairman, I think in the case of--I will
    address 677 because that is the one we kind of had a little bit
    of problem with, and I think we completely understand why it
    makes perfect sense to have it be automatic. DAV had indicated
    that some of the issues that may come along tying it in the way
    it is, but until Congress gets to a point where there is not
    the confrontational or the inability to get things through it,
    we still see--or the ability to have to go through the process
    of approving and having that bill passed to raise the COLA as
    something that provides a vehicle to deal with some of the
    issues that may get hung up in a more confrontational
    congressional aspect.
        As you say, we concur with the idea that it makes sense to
    have something be automatic, but unfortunately, removing the
    ability to have one shot at oversight on what is involved in
    that COLA just, we are not sure that this is going to be the
    best benefit to the veteran.
        Mr. Abraham. Okay. Thank you.
        Mr. Varela.
        Mr. Varela. Dr. Abraham, as having helped veterans directly
    for over a decade working with DAV, one of the questions that
    came up regularly as we get closer and closer to December is,
    are we going to get a COLA? Are we going to get a COLA? Are we
    going to get a COLA? And there were a couple of years where we
    didn't get a COLA, where veterans didn't receive a COLA, and
    that made them feel very sour that the Government couldn't
    provide them with a small cost-of-living adjustment.
        So they feel the strain. They feel the uncertainty. They
    deal with the doubt. But if we turn around and tell them that
    we are going to permanently round-down--and that is the issue
    that DAV has primarily is the permanent round-down provision--
    if we tell them that we are going to round-down their benefits
    to the tune of saving the Government $39 million and whatever
    the forecasted estimate was in the reports that we received
    earlier, that is going to make them feel even worse.
        Mr. Abraham. Okay. Thank you, Mr. Varela.
        Mr. Abrams, did you have a comment?
        Mr. Abrams. Just that compared to all other people getting,
    entitlement benefits, veterans, more than others are entitled
    to a COLA.
        Mr. Abraham. Any words, Mr. Carpenter.
        Mr. Carpenter. No.
        Mr. Abraham. Okay. Ms. Titus, the Chair recognizes you for
    five minutes.
        Ms. Titus. Thank you, Chairman.
        I appreciate all of your concerns about locking in the
    automatic increase to Social Security, and something I don't
    hear you say, but I think might be in the back of some of your
    minds is what happens if Social Security goes to change CPI
    like some people have been talking about? And I will ensure you
    that I would never support having either Social Security or
    veterans benefits being tied to a chained CPI because that cuts
    out a lot of needed assistance that veterans have.
        Also, I just want to say I appreciate your support for the
    Pay As You Rate Act, and you seem to have some of the same
    concerns I do about the fact that the VA has the authority to
    do it, but they are not doing it or they are not doing much of
    it. Also, I think you had good suggestions, especially about
    putting in the manual, and I appreciate that.
        I would just ask you, how can you help us, if we move
    forward with this, assure that the interim payment doesn't
    become the ceiling of the claim because we certainly don't want
    that to happen. I know that this committee has oversight down
    the road and we can do something through legislation, but how
    about let's eliminate the tendency to create a change before it
    happens for once, can stop it from going in the wrong direction
    at the front end and not deal with it at the back end. Do you
    have any suggestions for how we might do that, anybody?
        Yes, sir?
        Mr. Abrams. The VA could be proactive and do a study that
    reviews the subsequent rating after an interim rating has been
    assigned. For example, if they service-connect a particular
    condition with a 10 percent rating and then they are going to
    do an evaluation to evaluate the severity of the particular
    condition, the VA may want to do a study of those evaluations
    and you can ask for a report given to Congress as to how that
    worked out. That would probably ensure that the VA would pay
    attention to providing the right info, and you would also want
    to know how long it took to get to the final rating.
        Ms. Titus. Thank you.
        Any other suggestions or comments?
        Mr. Varela. Yes, just so I understand the question, though,
    Ranking Member, so you are saying that the VBA issues an
    interim decision and then they are done and then we grant a
    service connection at zero or ten percent and that is the
    ceiling and we want to avoid that, correct?
        Ms. Titus. Well, if you have a pay as you rate system and
    you get some kind of benefit for a veteran, maybe there would
    be a disincentive to look for others if you have already paid
    that veteran something. We don't want that to happen; we want
    it to be the opposite, that you get something while you are
    waiting for the rest, not that you get something and then you
    are done.
        Mr. Varela. Right. And as was mentioned earlier, the VA has
    the authority to do that. How often they do it we don't know,
    but typically, they will grant and then re-examine. And as Mr.
    Abrams mentioned earlier, you would have to have some kind of
    pending workload that shows you what was granted on an interim
    basis so that the VA closes that out and that may require an
    examination.
        And they also have DBQs now, and if the DBQs are simply
    going to be what the examiners complete anyway, why would we be
    doing two identical examinations? So we would have to look at
    that, what type of claims came in with adequate DBQs and what
    type of evidence came in that wasn't in a DBQ format; that is
    another component.
        Ms. Titus. Thank you.
        Mr. Ortner. I think you actually have a very big challenge
    in trying to determine--I mean trying to determine something--
    you know, correct something in advance before you see what
    happens. And we have an example of the challenge with it today
    where VA thinks they are granting interim things and we don't.
    I guess the greatest concern I have with it is once you
    establish a rating or a level or whatever it might be, I think
    there is somewhat of a tendency to see that as a ceiling,
    regardless, just, I mean human nature, because now you have got
    to decide that you are going to go beyond what has already been
    granted.
        And I think that gets you to the point where you are going
    to have to put much more work into something to try to
    determine how to argue, well, no, we are already giving them 60
    percent, now we have to give them more or a higher rating. And,
    you know, the challenges that we see in some cases with the VA
    is that they are not even giving them the first rating to begin
    with and claims are being denied. So I think that would be a
    very difficult thing to overcome. Maybe checking it, being able
    to look at how it is being done over time and seeing, you know,
    with an outside entity that then reviews what was decided, you
    know, that might be a technique, but I think it is a very
    difficult undertaking.
        Ms. Titus. Okay. Thank you.
        Mr. Hearn. I think also as we are moving closer and closer
    to the national work queue, this is something that we need to
    look at very closely, because what I have said before is let's
    say that you are brokering a case out to Cleveland and you are
    talking about a knee situation and that person denies it, but
    then you have a regional office down in Texas who says, well,
    no, we are going to grant the service connection for the ankle
    condition. Well, now you are going to have to backtrack and
    make the argument for a secondary or aggravated condition.
        So by having the national work queue, you are going to have
    this kind of a bit of a cycle going on there to make sure that
    all possible situations are exhausted, and the pay as you rate
    is going to even become a little more complicated with that
    because it is no longer just going to be a situation where a
    case is being adjudicated within one regional office; you are
    talking one of fifty-six, so there is going to have to be some
    oversight by VA and, you know, history has shown, perhaps by
    Congress.
        But that is where I think where we are going to have to
    start moving towards in that direction.
        Ms. Titus. Well, thank you. That has been very helpful.
        Thank you, Mr. Chairman.
        Mr. Abraham. Thank you, Ms. Titus.
        Mr. O'Rourke.
        Mr. O'Rourke. Thank you, Mr. Chairman, and I want to thank
    each of you for your testimony and your response to our
    questions. That is the reason that I am here, even though I am
    not a permanent member of this subcommittee, I asked to be here
    today because I wanted to get your feedback on the legislation
    that we will be marking up and voting on in committee and
    hopefully we will see on the floor of the House in the not-too-
    distant future.
        And I also want to thank you, because along with the
    employees at the VBA, it is your organizations and your members
    who make a deeply flawed, and I would say under-resourced
    system, work to the degree that it does today. We all agree
    that we are not seeing the outcomes in terms of accuracy and
    wait times that we want, but to the degree that we have
    success, I think it is largely in part to those who work with
    your organizations who advocate for veterans who need this kind
    of help, so I really appreciate that.
        Specific to H.R. 800, the Express Appeals Act, I am hearing
    from Mr. Ortner and Mr. Varela that we have some unanimity with
    the VA on limiting the point at which a veteran can enter this
    pilot program, you know, at that point of entry, not allowing
    somebody to come in at a later point. And I think we are
    largely on the same page today, and just that in itself has
    made today's hearing productive, from my perspective.
        You also offered some additional suggestions like adding
    language that includes, quote, ``and his or her
    representative,'' which I think makes a lot of sense and
    reflects the work that you all are already doing that you will
    need to do going forward to make this successful.
        To Mr. Abrams, I think you brought a lot of good
    suggestions to the table. Language that we might want to change
    or look at from 45 days to potentially 90 days, make sure that
    a veteran has adequate time to make that necessary response. I
    agree with your proposal that the response back on an initial
    claim should provide some specific detailed language so that
    the veteran can make an informed decision going forward; no one
    can argue with that.
        And so I would certainly love to work with you to see if
    those kinds of changes are incorporated in the final bill, that
    we could gain your support. We would love to have it and we
    would love to make it a better bill.
        And for Mr. Carpenter, again, I can't argue with much of
    what you had to say, which is that this bill does not solve the
    problem; it certainly doesn't. I agree with you. And we should
    have a comprehensive solution that completely figures this out.
    I am with you on that.
        In the absence of that, however, I do think that we need to
    make some progress, and I think there is value in a pilot
    program that could inform whatever that ultimate solution is.
    Now, if someone has that, it had been vetted and we have the
    facts and the figures and the support to get it done, I will
    get behind that and drop this, because I do agree with you that
    is the most important thing to do. But I also don't want to
    allow the perfect to become the enemy of the good, and if we
    have something that can allow us to make some progress or help
    us to make a more informed decision on the final product, then
    I think we should get behind it. But I think you also offered
    some suggestions on how we could do it, and I am certainly open
    to those.
        So I just really wanted to say thank you to each of you for
    the feedback, the commentary. And then, Mr. Carpenter, you
    said, as you were running out of time, that you had some
    further suggestions that time did not allow you to make, I
    would love to hear those if you would like to use the last
    minute and a half of my time.
        Mr. Carpenter. Pardon me. These are things that need to be
    incorporated, in our view, into the bill as a structural change
    to the system. The first is to amend 5904 to allow agents and
    attorneys in after the initial decision--currently it is after
    the notice of disagreement. The problem that we have with this
    bill is the limitation on evidence submission. Claimants need
    to understand what evidence is needed in order to be successful
    in their claim, and as Mr. Abrams correctly points out, that
    that information is not being currently provided by the VA.
        Additionally, we believe that this bill needs to
    specifically state that the appeal is completed with the notice
    of disagreement. Your bill says that implicitly, but in your
    view, it needs to say it explicitly, and that results in the
    elimination of the statement of the case in the VA.
        Also, we believe it is critically important to codify the
    VA's regulation for a decision officer review and allow
    decision review officers the express authority for evidence
    development.
        Fourth, to allow claimants up to one year from the adverse
    decision to submit evidence. This would segway back to the
    first point about being able to get representation and advice
    on what kind of evidence needs to be submitted.
        And then we would propose that there would be a dual system
    for decision-making; one, appellate decision-making on the
    evidence in the first instance at the regional office and the
    second at the Board, by incorporating 1379 into this to allow
    the Board to make evidence development, allow the submission
    from the point that the case goes into appeal for one decision
    on that evidence by the Board.
        Thank you very much.
        Mr. Abraham. Thanks again for coming.
        Mr. McLenachen and Ms. Eskenazi, thank you, again for
    appearing.
        And I think that we all see on the committee, certainly
    with the VSO organizations, everybody in this room wants to do
    what is best for the veteran, and as you see, we are certainly
    willing to listen to suggestions and ideas of things that we
    may need to tweak or change. We just want to do what is best
    for veterans, and I think everybody in the room agrees.
        So we thank you again. It is good to see you. You are
    excused.
        Any closing remarks, Ms. Titus, from you?
        Ms. Titus. No.
        Mr. Abraham. Okay. You are excused, gentlemen.
        I now ask unanimous consent that the statements from the
    Veterans of Foreign Wars and the U.S. Court of Appeals for
    Veterans Claims be submitted for the record. Hearing no
    objections, so ordered.
        And I ask unanimous consent that all members have five
    legislative days to revise and extend their remarks and include
    extraneous material. Having no objection, so ordered.
        I thank the members and the witnesses for their attendance,
    and this hearing is now adjourned. Thank you.
        [Whereupon, at 12:07 p.m., the subcommittee was adjourned.]

                                    APPENDIX

                   Prepared Statement of Chairman Jeff Miller

        Good afternoon.
        Dr. Abraham, thank you for holding this hearing focusing on the
    various proposals to improve the VA's claims appeals process. Our
    nation's veterans--particularly those who have service-connected
    disabilities--deserve to have their claims decided accurately and
    fairly the first time and, if an appeal is necessary, the final
    decision should not only be accurate and fair, it should be timely.
        Unfortunately, that has not been the case. As of 2014, veterans
    were forced to wait an average of 1011 days--almost 3 years--to get
    their case on the BVA docket. According to the VA's figures,
    approximately half of the cases are remanded. Even worse, the VA puts
    these cases on the backburner in order to focus on certain initial
    claims. Imagine the frustration of a veteran who has waited almost 3
    years only to have the BVA remand the case for lack of evidence and
    then wait even longer for the VA to reach another decision.
        As Dr. Abraham noted in the January 22nd oversight hearing, last
    year the Court of Appeals for Veterans Claims held the Secretary of
    Veterans Affairs in civil contempt, citing the Department's gross
    negligence in ignoring a veteran who repeatedly raised concerns on an
    appeal that had been remanded to the Department. The court noted that
    VA's inaction, quote ``conjures a vision of a drowning man watched by a
    lifeguard in a nearby boat equipped with life preservers and rescue
    ropes who decides to do nothing even though the drowning man is blowing
    a whistle and firing flares to call attention to his plight,'' end
    quote.
        Our nation's veterans deserve better.
        I introduced HR 1379 to streamline the claims process by reducing
    the number of remands. In cases where there is insufficient evidence,
    HR 1379 would require the BVA to develop the evidence necessary to
    issue a final decision. It would also give the BVA the authority it
    needs to obtain all the evidence it needs.
        There is no reason that the BVA should not be able to develop the
    evidence in order to have all the information it needs to reach a final
    decision. This simple change in the law will help the BVA resolve its
    claims backlog and give the veterans the finality they deserve.
        I yield back.

                   Prepared Statement of Hon. RAUL RUIZ, M.D.

        I thank the Chairman and Ranking Member for including my bill, H.R.
    732, the Veterans Access to Speedy Review Act in this hearing, and I
    appreciate the Chairman's support as a cosponsor of this bill. This
    simple, bipartisan legislation will provide the Department of Veterans'
    Affairs (VA) the flexibility they need--and have requested before this
    committee--to expand the use of video teleconferencing (VTC) for
    hearings before the Board of Veterans Appeals. This authority will
    expand VA's capacity to adjudicate appeals, thereby expediting results
    for waiting veterans. My bill will also eliminate substantial travel
    costs to the veteran and the administration.
        Under current law, veterans may involuntarily encounter an extended
    wait period for a judge to visit the veteran's region or for the
    veteran to travel to Washington, DC. Additionally, veterans are
    required to pay all travel expenses to and from an in-person hearing,
    even if they would prefer a video teleconference. My bill would center
    the appeals process on the veteran's needs and save money for all
    parties involved. Importantly, veterans will retain the right to an in-
    person hearing, and under my bill the VA must honor the veteran's
    preference for hearing type--whether in-person or via VTC.
        In 2012, the VA Board of Veterans' Appeals submitted a report to
    Congress highlighting recent activities which include four policy
    recommendations that seek to expedite or streamline the claims process
    for our nation's veterans. Video teleconferencing by default was
    included in these recommendations. In last year's committee report on
    the amended Veterans Access to Speedy Review Act, the VA committee
    noted that the Board has historically been able to schedule video
    conference hearings more quickly than in-person hearings, saving
    valuable time in the appeals process. As the VA testified before this
    subcommittee, in FY 2014, on average, video conference hearings were
    held 124 days sooner than in-person hearings.
        This bipartisan solution will get many veterans their appeal
    results sooner, at no cost, which is why each Veterans Service
    Organization that testified at this legislative hearing supported my
    bill, as did the VA. This overwhelming support from both parties, the
    Administration, and veterans is why this bill passed the VA Committee
    by voice vote last Congress.
        I urge the members of this subcommittee to come together again to
    advance this essential measure out of committee, and to advocate for
    the Speaker to bring it to the floor. It is understandable to delay
    controversial and contentious policy proposals until an agreement is
    reached, but denying veterans relief when a consensus has been reached
    is unacceptable.

                     Prepared Statement of Chellie Pingree

        Thank you Chairman Abraham and Ranking Member Titus for having me
    here today, and for considering the Ruth Moore Act in this morning's
    legislative hearing. I appreciate the opportunity to talk more about
    this bill and why I think we still desperately need it to become law.
        It has been said that the greatest casualty is being forgotten. I
    can tell you that the hundreds of survivors who have called my office
    since I first introduced this legislation in the 113th Congress have
    felt forgotten by the military system they so proudly served. They
    struggle trying to meet an unfair standard of proof, suffer through
    years of denials and appeals in a process that re-traumatizes them. It
    is a system that is broken and I can tell you from the countless
    stories I've heard that it hasn't been fixed.
        Ruth Moore, who this bill is named for, is a US Navy veteran from
    Maine who was raped twice during her military service. When she
    reported it, she was discharged and labeled as having a personality
    disorder. She spent over 23 years fighting the VA to get disability
    benefits, and she battled homelessness and PTSD during that time.
        Quite simply, the Ruth Moore Act ensures that the VA treat our
    veterans whose PTSD is caused by sexual assault with the same standards
    and burden of proof that it extends to veterans whose PTSD is caused by
    combat and other particularized claims.
        We know that fewer people are being assaulted and more are coming
    forward--and that is progress. But still, 19,000 military personnel
    being sexually assaulted or sexually harassed annually is hardly cause
    for celebration.
        I want to talk a little bit about approval rates--the rates at
    which claims for VA benefits are accepted.
        The GAO did find that the overall approval rate for PTSD resulting
    from sexual assault is increasing but it's still lower than the
    approval rating for PTSD claims for other factors.
        And what is most concerning to me is that, despite continued
    training, the subjective standards used to verify victims' sexual
    assault meant approval ratings varied widely depending on where a
    veteran submitted their claim. In some offices, as few as 14 percent of
    claims were approved, while others approved 88 percent. In the GAO
    report, the VA states that under the current regulation, two
    adjudicators can interpret a marker in opposite ways and both will be
    correct. It is simply not acceptable that a veteran faces the roll of
    the dice on where they live and where their claim is reviewed.
        Nor is it acceptable that 62% of respondents in a recent survey
    stated that they faced retaliation for reporting. This, as well as
    evidence that 40% of assailants were perpetrated by a superior within a
    victim's chain of command suggests to me that we cannot train our way
    out of this problem.
        After a court ruling in 2002, the VA changed its policy to allow
    veterans a wider range of evidence--called secondary markers--to be
    used in a personal assault disability claim. The VA will tell you that
    because the current system allows for this alternative evidence for
    verifying an assault, there is no need for parity with evidentiary
    standards. But every day I hear from vets who detail claim denials due
    to the vast inconsistencies in the VA's application of these standards.
    What one Regional office or adjudicator will accept as proof, another
    will deny.
        In 2010, the VA relaxed the evidentiary standards for veterans who
    suffer from combat related PTSD--same diagnosis, but different
    evidentiary standard. The VA finally acknowledged that far too many
    veterans who have deployed into harm's way suffered the emotional
    consequences of their service but could not, through no fault of their
    own, locate military documentation that verified the traumatic events
    that triggered their PTSD. The VA now accepts their statement of
    traumatic events, along with a PTSD diagnosis and a medical link, as
    enough to receive disability benefits.
        The VA's less favorable treatment of veterans who suffered sexual
    assault than those who suffered other forms of combat trauma is
    arbitrary. The VA can articulate no rationale for why a veteran's lay
    testimony may be adequate to establish combat trauma, but not trauma
    from a sexual assault.
        The Ruth Moore Act corrects this injustice. Last Congress it was
    endorsed by the American Legion, Disabled American Veterans, Veterans
    of Foreign Wars, Vietnam Veterans of America, Iraq and Afghanistan
    Veterans of America, Service Women's Action Network, Military Officers
    Association of America, the National Organization of Veterans'
    Advocates, and the Fleet Reserve Association. I want to take this
    opportunity to thank them for their support and applaud the work they
    do for veterans.
        This bill also requires the VA to report MST related claims
    information back to Congress, such as the number of denied and approved
    MST claims each year, and the reasons for denial. As members of
    Congress, we have a responsibility to ensure that the VA is providing
    timely and accurate decisions to veterans, but we cannot do that
    without sufficient data.
        Over the past few years, there has been significant public
    attention to sexual trauma in the military, and the VA has redoubled
    its training and prevention efforts. But let me reiterate--this problem
    is not fixed. This is a problem of fundamental fairness: If a medical
    diagnosis and link to a claimed event is enough for one group of
    veterans with the same medical diagnosis, it ought to be enough for
    another.
        Critics of this legislation might say that it makes it too easy to
    get benefits and veterans could just say anything to get those
    benefits. First of all, that's simply not true. There still needs to be
    a medical diagnosis of PTSD and a medical link, which are not at all
    easy to come by and less easy to live with. And secondly, we heard that
    same argument when the VA proposed a similar change for combat
    veterans, and I haven't heard the VA say they've had big problems with
    veterans lying about their service.
        Mr. Chairman, over the last four years, I have heard from dozens
    and dozens of veterans from all over the country. Men and women who
    volunteered to serve their country, many of them planning on a career
    in the military, only to have that career cut short by the horror of a
    violent, sexual assault.
        These survivors were blamed and harassed, crimes were covered up,
    and the survivors themselves became the subject of further harassment
    and recrimination. And too often, what followed was years of mental
    health issues, lost jobs, substance abuse and homelessness.
        These stories don't have to end this way. With the Ruth Moore Act,
    we can change the VA's policy so veterans who survive a sexual assault
    get the benefits they earned and deserve.
        Thousands of veterans--survivors of sexual assault--have fought for
    years to get the benefits that are owed them. But they didn't give up.
    So we are not going to give up in our fight to reform this process to
    make sure these brave women and men get the justice they deserve.
        Again, thank you Mr. Chairman, Ranking Member Titus and members of
    the subcommittee for considering this legislation. I am happy to answer
    any questions you may have.

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