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