[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

              
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                     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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