[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON: H.R. 3216, H.R. 4150, H.R. 4764, H.R. 5047,
H.R. 5083, H.R. 5162, H.R. 5166, H.R. 5392, H.R. 5407, H.R. 5416, H.R.
5420, AND H.R. 5428
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
THURSDAY, JUNE 23, 2016
__________
Serial No. 114-75
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
25-209 PDF WASHINGTON : 2017
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado CORRINE BROWN, Florida, Ranking
GUS M. BILIRAKIS, Florida, Vice- 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
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
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Thursday, June 23, 2016
Page
Legislative Hearing On: H.R. 3216, H.R. 4150, H.R. 4764, H.R.
5047, H.R. 5083, H.R. 5162, H.R. 5166, H.R. 5392, H.R. 5407,
H.R. 5416, H.R. 5420, and H.R. 5428............................ 1
OPENING STATEMENTS
Honorable Jeff Miller, Chairman.................................. 1
Honorable Corrine Brown, Ranking Member.......................... 3
WITNESSES
The Honorable Dina Titus, U.S. House of Representatives,
Committee Member............................................... 4
The Honorable Raul Ruiz, U.S. House of Representatives, Committee
Member......................................................... 6
The Honorable Beto O'Rourke, U.S. House of Representatives,
Committee Member............................................... 7
The Honorable Ron DeSantis, U.S. House of Representatives,
Committee Member............................................... 8
The Honorable Ted Yoho, U.S. House of Representatives, Committee
Member......................................................... 9
Prepared Statement........................................... 37
The Honorable Jody Hice, U.S. House of Representatives, Committee
Member......................................................... 11
Prepared Statement........................................... 38
The Honorable Dan Newhouse, U.S. House of Representatives,
Committee Member............................................... 12
The Honorable David Young, U.S. House of Representatives,
Committee Member............................................... 13
Prepared Statement........................................... 38
The Honorable Doug Lamborn, U.S. House of Representatives,
Committee Member............................................... 15
Prepared Statement........................................... 39
The Honorable Sloan Gibson, Deputy Secretary, U.S. Department of
Veterans Affairs............................................... 17
Prepared Statement........................................... 40
Accompanied by:
Ms. Laura Eskenazi, Executive in Charge and Vice Chairman,
Board of Veterans Appeals, U.S. Department of Veterans
Affairs
Mr. David McLenachen, Deputy Under Secretary for Disability
Assistance, Veterans Benefits Administration, U.S.
Department of Veterans Affairs
Dr. Maureen McCarthy, Assistant Deputy Under Secretary for
Health Patient Care Services, Veterans Health
Administration, U.S. Department of Veterans Affairs
Mr. Raymond Kelley, Director, National Legislative Service,
Veterans of Foreign Wars of the United States.................. 19
Prepared Statement........................................... 45
Mr. Paul Varela, Assistant National Legislative Director,
Disabled American Veterans..................................... 21
Prepared Statement........................................... 52
Mr. Carl Blake, Associate Executive Director of Government
Relations, Paralyzed Veterans of America....................... 23
Prepared Statement........................................... 62
Mr. Louis J. Celli, Jr., Director, National Veterans Affairs and
Rehabilitation Division, The American Legion................... 24
Prepared Statement........................................... 68
Mr. Rick Weidman, Executive Director for Policy and Government
Affairs, Vietnam Veterans of America........................... 26
Prepared Statement........................................... 74
STATEMENTS FOR THE RECORD
American Battle Monuments Commission............................. 80
AMVETS........................................................... 82
Court of Appeals for Veterans Claims............................. 86
Iraq and Afghanistan Veterans of America......................... 88
Military Officers Association of America......................... 91
Military Veterans Advocacy, Inc.................................. 93
National Organization of Veterans Advocates...................... 94
National Veterans Legal Services Program......................... 100
P.A.W.S. Foundation.............................................. 105
U.S. Department of Labor......................................... 106
QUESTIONS AND ANSWERS FOR THE RECORD
From NOVA........................................................ 108
From MOAA........................................................ 109
From The American Legion......................................... 109
LEGISLATIVE HEARING ON: H.R. 3216, H.R. 4150, H.R. 4764, H.R. 5047,
H.R. 5083, H.R. 5162, H.R. 5166, H.R. 5392, H.R. 5407, H.R. 5416, H.R.
5420, AND H.R. 5428
----------
Thursday, June 23, 2016
Committee on Veterans' Affairs,
U. S. House of Representatives,
Washington, D.C.
The Committee met, pursuant to notice, at 10:30 a.m., in
Room 334, Cannon House Office Building, Hon. Jeff Miller
[Chairman of the Committee] presiding.
Present: Representatives Miller, Lamborn, Bilirakis,
Benishek, Huelskamp, Coffman, Wenstrup, Abraham, Zeldin,
Costello, Radewagen, Brown, Titus, Ruiz, O'Rourke, and
McNerney.
OPENING STATEMENT OF JEFF MILLER, CHAIRMAN
The Chairman. The Committee will come to order. Good
morning. It seems like I just saw a few of you a couple of
hours ago, but it is great to see you again. Thanks for joining
us for today's legislative hearing. Before we begin discussing
the many bills on our agenda this morning, I want to touch on
one important issue regarding our ongoing efforts to instill a
culture of accountability across the Department of Veterans
Affairs.
Last week with no notice to me or anyone else on this
Committee, Secretary McDonald unilaterally decided to no longer
use the expedited removal authority that Congress provided in
the Veterans Access Choice and Accountability Act. I think this
action was improper and is a prime example of the cavalier
attitude that VA has towards holding employees accountable for
their actions. To be clear I completely disagree with the
administration's actions to singlehandedly abandon a sweeping
bipartisan bill that the President eagerly signed just two
years ago. However, in the coming days, I will introduce a
measure to address the appointments clause issue that's been
laid out by the Department of Justice, and ensure that VA has
every necessary tool to hold leaders, managers, and other
employees to account.
Turning to the matter at hand this morning, today we are
going to consider 12 measures pending before our Committee.
These bills are bipartisan in nature and cover a wide range of
health, benefits, burial, and education issues that face
America's veterans and their families. The bills also have
minimal to no cost. And until the Members of this Committee can
agree on acceptable offsets going forward so that our
legislation complies with congressional budget rules, the scope
of legislation that we will review and mark up will be
necessarily limited absent some emergency. I look forward to
receiving any constructive recommendations regarding offsets
within the Committee's jurisdiction that we may once again
advance on a bipartisan basis.
Many of the bills' sponsors are here with us today to
discuss their proposals, and I thank them for their work. There
are two bills in particular that I want to highlight, beginning
with a bill that I introduced, H.R. 5420. It would authorize
the American Battle Monuments Commission to acquire, operate,
and maintain the Lafayette Escadrille Memorial that is located
just outside of Paris. The ABMC is a Federal agency that is
responsible for managing overseas monuments and cemeteries from
World War I and World War II. The Lafayette Squadron included
269 American volunteers who flew combat missions with French
units before the U.S. entered World War I. After the United
States entered the war on April 6, 1917, most of the Escadrille
pilots joined the U.S. Air Service and helped train American
Pilots. In total, 68 members of the Escadrille lost their lives
in air combat over France, and 49 of these brave Americans are
entombed in the Escadrille Memorial.
The Lafayette Escadrille Memorial Foundation has managed
the memorial since its dedication in 1928. However, the
foundation does not have adequate funds to continue its work.
With the agreement of the French government, the foundation has
requested that the ABMC assume responsibility for the
memorial's operation and maintenance, and it is my
understanding that the ABMC will not require additional funds
to preserve the memorial. It is entirely appropriate that our
government assume the solemn responsibility of ensuring that
the sacrifice of those who lost their lives in the service of
our Nation during World War I will never be forgotten.
I also want to discuss H.R. 5083, the VA Appeals
Modernization Act of 2016 which is sponsored by Congresswoman
Titus, the Ranking Member of the Subcommittee on Disability
Assistance and Memorial Affairs. Veterans have the right to
expect that their claims for benefits will be decided
correctly, consistently, and in a reasonable amount of time.
However, if a veteran decides to appeal a decision, the appeals
process must be thorough, swift, and fair. Unfortunately VA's
current broken appeals process is not meeting any of those
standards. As of July 1st of 2015, there were 375,000 appeals
pending in VA, including at the Board of Veterans Appeals.
However, as of June 1st, 2016 there were almost 457,000 appeals
pending, an increase of 82,000 pending appeals in a little more
than a year. Even worse, the 2015 Board of Veterans Appeals
annual report projects that the number of appeals certified to
the Board will increase from 88,183 this year to 359,807 in
fiscal year 2017, which would be a 400 percent increase from
one year to the next.
This appeals backlog explosion has occurred even though
during the last four fiscal years Congress has appropriated a
total of $8 billion for the Veterans Benefit Administration,
$200 million more than the President's request of $7.8 billion.
Obviously Congress must act, and the sooner the better.
H.R. 5083 is the result of several days of an intense
negotiation among the VA, the veterans service organizations,
and other veteran advocates. Everyone involved deserves a great
amount of credit for their efforts to tackle the current
appeals process. However, I do have some questions about how
H.R. 5083 would improve the current system. For example the
bill would allow veterans to keep an appeal active
indefinitely, as long as the veteran submits new and relevant
evidence once a year. So it is hard to imagine how the appeals
backlog can be reduced without inserting finality into the
process. I am also troubled that VA has not yet provided a
concrete plan or a detailed cost estimate for addressing the
current appeals backlog while implementing the changes that
would be required by H.R. 5083, and I hope that we will get
some answers today.
With that, I yield to the Ranking Member Ms. Brown for her
opening statement.
OPENING STATEMENT OF CORRINE BROWN, RANKING MEMBER
Ms. Brown. Thank you, Mr. Chairman. And let me first of all
thank you for agendaing these 12 bills today.
Today I am here in support of H.R. 5407, the Homeless
Veterans with Children Reintegration Act, which is very near
and dear to my heart.
As everyone on this Committee knows, eliminating veteran
homelessness has been a top goal here, as well as the
Departments of Veterans Affairs, Labor, and Housing and Urban
Development.
Tremendous progress has been made, but the truth is
homeless veterans still struggle in many communities, my
district included.
Despite the efforts of many committed community members and
local officials, I frequently see and talk with homeless
veterans on the streets when I am home.
To be clear, there are men and women veterans with children
who are homeless. But all too often, those conversations are
with women veterans with children. In fact, women with children
are the fastest growing segment of the general homeless
population.
Their stories break my heart. Unless these veterans find
safe housing for their children and connect with health care,
transportation, and child care, they will struggle to find
employment and maintain custody of their children.
There is nothing I want to do more as a Member of Congress
than to find ways to help homeless veterans with families.
That's is why this bill I am advocating for today directs
the Secretary of Labor to put homeless veterans with dependent
children at the top of the list to receive services through the
Homeless Veterans Reintegration Program. (HVRP) program
provides grants to local workforce boards, nonprofits, and
community and faith-based organizations to help homeless
veterans find work.
In my district, I have seen the success of this program
through the work of the Sulzbacher Center, and there are two
others, in fact, Five Star and also Clara White. Clara White, I
visited that center with the Secretary, and Five Star I visited
with you, Mr. Chairman. We know that they are great programs.
In fact, with the help of the grants from this program, several
centers in Florida are providing employment and training
services to homeless veterans so that they can find substantial
employment.
By making veterans with children the priority to receive
this temporary housing and the wrap around services necessary
to support a single working parent with children, it is my hope
that vulnerable families will stabilize, move on to permanent
housing and employment, and one by one never be forced to spend
another night in an unsafe environment.
My bill would also require DOL to study access to shelters,
safety, and other relevant services for homeless veterans with
dependent children. This information would help us understand
the problems to identify opportunities to resolve issues facing
homeless veterans with children. I appreciate the statement for
the record submitted by the DOL Assistant Secretary Mike
Michaud, and I am happy to work with him going forward to make
improvements to the bill. And I also want to mention, he also
attended these centers with me.
I urge my colleagues to support H.R. 5407, the Homeless
Veterans with Children Reintegration Act, and look forward to
the testimony of the witnesses here today.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
The Chairman. Thank you very much, Ms. Brown. It is my
honor to be joined this morning by several of our colleagues
who have sponsored measures on today's agenda. The Members
testifying on our first panel are the Honorable Doug Lamborn,
Committee Member from Colorado; the Honorable Dina Titus,
Committee Member from Nevada; the Honorable Raul Ruiz,
Committee Member from California; the Honorable Beto O'Rourke,
Committee Member from Texas; the Honorable Ron DeSantis from
Florida; the Honorable Ted Yoho from Florida; the Honorable
Jody Hice from Georgia; the Honorable Dan Newhouse from
Washington; and the Honorable David Young from Iowa. I want to
thank you all, of you, for being here this morning. And I will
recognize Ms. Titus for five minutes.
OPENING STATEMENT OF HONORABLE DINA TITUS
Ms. Titus. Well thank you very much, Mr. Chairman. And
thank you for including H.R. 5083, the Veterans Appeals
Modernization Act of 2016, on the agenda today. I appreciate
your highlighting it and you point out some of the things I am
going to mention in my comments as well, about the need for an
appeals reform. So thank you very much.
When I became a Member of this Committee and the Ranking
Member of the Disability Assistance and Memorial Affairs
Subcommittee back in 2013, much of the focus of the VA was on
the disability claims backlog. It had ballooned at that time
causing some veterans to wait almost two years just for their
initial claims decision. But thanks to the hard work of the
employees of the VA, in addition to more resources given by
Congress, this backlog has been greatly reduced. Veterans now
are waiting just over 130 days for their initial claim
decision. At the peak of the crisis more than 600,000 claims
were in the backlog and now it is under 75,000 claims. I am
pleased to say that improvements are also reflected in the Reno
Office, which serves my district, and it was the fifth worst in
the country at the time.
As we focused our efforts on tackling this backlog, I
pointed out repeatedly that I was concerned about the
possibility of a growing number of appeals. At first, as the VA
handled more initial claims, the appeal rate remained fairly
consistent, between ten and 12 percent. However, as the VA
squeezed on this end of the balloon, air began to flow to the
other end.
I would repeat some of the figures that you gave earlier
because they are just so compelling they need to be said again.
As a result of that effort the appeals backlog grew from 67,412
in 2005, to 326,000 in December of 2012, to more than 460,000
as of this week which is an increase of 175 percent. Now these
claims were spread out across the various lanes of processing
but the end result was the same for veterans. The average
appeal today takes two and a half years to complete, and
appeals that go all the way to complete take close to 2,000
days to process. Both of these figures are on the increase. So
if we miss this historic opportunity to reform this outdated
and overcomplicated appeals system, the wait for our Nation's
heroes is just going to continue to grow. It has been estimated
that by 2027, we will be telling our veteran constituents that
they will likely have to wait a decade for their appeal to be
resolved, and to the Members of this Committee, and everybody,
we know that is just unacceptable.
Now it is important to keep in mind that the appeals system
was first developed in 1933 and last updated in the late 1980s,
so true reform is long overdue. Accordingly, this has become a
top priority for the VA, for veterans service groups, and it
should be for our Committee as well. As Deputy Secretary Gibson
notes in his written statement, ``addressing the claims appeals
process is a top priority of the VA. H.R. 5083, the VA Appeals
Modernization Act, would provide much needed comprehensive
reform for the VA appeals process, and the VA fully supports
the bill.''
Over the past few months the VA, as you said Mr. Chairman,
has been working closely with experts from the VSOs and veteran
advocates to fix this broken system and replace it with a more
streamlined process designed to provide quicker outcomes for
veterans, while also, and this is important, preserving their
due process rights. The new system refocuses the Board of
Veterans Appeals so it can once again function as a true
appellate body.
The legislation creates three lanes veterans can choose
from to appeal their claim. The first is a high level de novo
review for veterans who want to have a fresh set of eyes review
their cases. The second is a lane for veterans who wish to add
evidence to their claim. And the third is for veterans who
choose to have a full review done either by the Board with new
evidence or as an expedited review without new supporting
documents. Veterans will be able to choose their own lane
depending on the specifics of their individual case, and as
part of the system, the VA will provide more detail to veterans
when their initial claim is delivered. I believe this enhanced
claim decision process will better help veterans decide which
way they want to appeal and which lane to choose.
So I am very appreciate of all the veterans organizations,
the DAV, The American Legion, Veterans of Foreign Wars, Iraq
and Afghanistan Veterans, AMVETS, Paralyzed Veterans, and
others, and I look forward to hearing from them. If you want a
more detailed description of the three lanes, this is on the
Web site. You can look at this chart. And I would refer you to
something we handed all the veterans, called Myths and Facts
about the new proposal. And I thank you, Mr. Chairman.
The Chairman. Thank you very much. Dr. Ruiz, you are
recognized for five minutes. Wake up.
OPENING STATEMENT OF HONORABLE RAUL RUIZ
Mr. Ruiz. I am awake, my friend. I am awake. Mr. Chairman
and Ranking Member Brown, thank you for including this
bipartisan legislation that I introduced alongside Dr. Wenstrup
in today's hearing. Congressman Wenstrup, I appreciate your
willingness to work with me on this issue. I look forward to
our friendly wager, and you having to sponsor an ice cream
social after your team's loss tonight.
I would also like to thank the veterans service
organizations and the VA for supporting this language in past
round tables and Subcommittee hearings. H.R. 4150, the VA
Emergency Medical Staffing Recruitment and Retention Act, will
provide emergency department staff employed by the VA the same
flexibility offered to physicians in the private sector. As an
emergency physician, I know firsthand the unique demands a busy
emergency department can make on the medical staff that work
there. Emergency departments are open 24 hours a day, seven
days a week. Unlike many Federal offices, emergency departments
and hospitals do not close on holidays or weekends. For the
upcoming holidays, such as Independence Day, Memorial Day,
Labor Day, Veterans Day, hospitals continue to be open and
their staff are hard at work.
In the private sector, physicians are allowed to take
advantage of flexible schedules. The schedulers are allowed to
determine when an eight-hour or a 12-hour or maybe even a 24-
hour shift is most beneficial to the department and its
patients. Emergency department and hospital staff employed by
the VA are currently denied this flexibility due to rigid
guidelines developed by the Office of Personnel Management for
application to all Federal employees. The difference between
the policy expert employed by HHS and the physician in an ER is
obvious. The need for his legislation is obvious.
Applying a biweekly 80-hour requirement to this profession
does not make sense. Sometimes physicians work 12-hour shifts,
sometimes 24-hour shifts, four to five days a week, sometimes
six, seven days. And oftentimes, emergency physicians stay for
hours after their shift to finalize their care for their
patients. This results in physicians choosing to avoid working
for the VA. Less physicians within the VA medical system means
lower quality care and longer wait times for our veterans.
As the VA and the Nation continue to experience a physician
shortage, we must ensure that the VA can compete to recruit the
brightest and the best physicians. This legislation would allow
the Secretary of the VA the authority to permit flexibility
when scheduling physicians and physician assistants,
flexibility that matches the work needs of emergency physicians
and other critical staff is of the utmost importance.
The problem is obvious. The solution is simple. And I came
to Congress to offer pragmatic solutions to pressing problems.
This is an easy win-win solution. Again I would like to thank
the VA and VSOs for their support of this legislation, and I
look forward to continuing to work with my colleagues on the
Committee to ensure this legislation is effective. I look
forward to a timely mark up of this legislation. Thank you very
much. I yield back my time.
The Chairman. Thank you very much, doctor. Mr. O'Rourke,
you are recognized. Wait, let me get my--
Mr. O'Rourke. Are you going to livestream this?
The Chairman. Yeah.
OPENING STATEMENT OF HONORABLE BETO O'ROURKE
Mr. O'Rourke. Thank you, Mr. Chairman. Let me begin by
thanking Dr. Benishek, without whose help this bill would not
be possible. What it does is remove a privacy requirement that
is unique to the VA that effectively prohibits the effective
sharing of patient medical records between the VA and community
providers through the Choice program.
So we know that we have a doctor or a provide shortage of
about 43,000 within the VA. It is more critical than ever that
we leverage community providers who want to take care of
veterans in our communities. But The Sequoia Project, which is
the nonprofit agency that HHS has charged with shepherding the
Federal government's e-health exchange initiative, states that
this bill would fix the number one impediment in their efforts
to effectively share veterans' records. The group states that
only three percent of veterans have currently opted in, which
is the current requirement, and that it would take 60 years to
get 100 percent of eligible veterans opted in based on current
rates. Currently, four Federal agencies, 50 percent of U.S.
hospitals, and 100 million patients participate in the
exchange. So the VA is a little bit unique in how it requires
an opt-in to share records. We are going to bring the VA in
line with much of the rest of the country and do so following
the best practices and ensuring that this is effective.
The VA asked for this authority. This was part of a VA
legislative package that was proposed by VHA under Secretary
Dr. Shulkin, and it is critically important to ensuring
continuity of care. We want to make sure that if a veteran is
seen at the VA initially and then later seen in the community,
that that veteran's patient record and medical information
follows. And that is going to be really important for a number
of reasons, including ensuring that we have continuity in
prescribing care. We want to make sure that the doctor in the
community knows what that veteran has been prescribed at the
VA. So it could reduce overprescribing or errors in
prescribing.
There are some understandable privacy concerns whenever we
are dealing with confidential patient information. I look
forward to hearing those from some of the VSOs who have raised
them. But I am confident that we can address those in today's
hearing. I am confident that this is the only way we are going
to make Choice effectively. If we are really serious about
connecting veterans with doctors and providers in the
community, we have got to be able to effectively share their
patient information. And again, this brings us in line with the
best practices in modern medicine throughout the country.
So with that, Mr. Chairman, I will yield back and look
forward to discussing this with the Assistant Secretary and the
VSOs who are present.
The Chairman. Thank you very much. Mr. Lamborn, you are
recognized for five minutes.
Mr. Lamborn. Excuse me for one second. I just got in from
doing a media call.
The Chairman. Okay. Let me, get your breath. Mr. DeSantis,
you are recognized.
OPENING STATEMENT OF HONORABLE RON DESANTIS
Mr. DeSantis. Well thank you, Mr. Chairman, and Members of
the Committee. It is great to be here. I am discussing a great
bill, H.R. 4764, the PAWS Act, Puppies Assisting Wounded
Servicemembers. And what it seeks to do is harness the use of
specially trained service dogs to treat veterans who are
suffering from Post-Traumatic Stress.
And I first became interested in the issue of Post-
Traumatic Stress just when I was serving in Iraq back in 2007
and I noticed the number of people who were over there,
particularly Marines and soldiers, who had done multiple
deployments. You had guys in their mid-twenties who had been in
Iraq more than they had been in the United States since they
had got out of boot camp. And the idea of PTS became something
that more and more people were taking seriously, a lot of
efforts out there. But that takes a toll, when you are doing
those types of deployments.
And then, it just so happened when I got elected to
Congress, I have an organization in my district called Canines
for Warriors. And what they do is, they pair veterans with
specially trained service dogs. They have a campus that has now
expanded. It is a great facility. They have a great track
record of reducing dependence on opioids, reducing the suicide
rate, and really getting veterans back on their feet. And so, I
thought that this was a great organization. It was something
that I was very supportive of just personally. But then I met a
veteran, a former Marine named Cole Lyle, who came to Congress
telling his story about his battles with Post-Traumatic Stress
and how he really was in the dumps after going to the VA, being
given counseling, prescribed a bunch of different medications,
and he was really looking for answers. And it just so happened
that his family had enough money to get him a service dog. And
he quit the drugs cold turkey, really turned his life around,
and is doing a great job right now. And so this is a Marine who
had served in Afghanistan under very difficult circumstances,
comes back to the United States, has these problems, and really
the service dog has been a boon for him. And he is one of the
leaders in arguing for this legislation.
Now this Congress had the VA conduct a study about whether
service dogs could be a part of treating PTS back in 2010. The
study was supposed to be done in 2013. It has been riddled with
all types of problems, and so we do not have any results yet.
They say 2018, but I think if history is a guide, it likely
will not happen by then. And so that has been a major failure
on the part of the VA. And so our bill, the PAWS Act, takes
these veterans, particularly the ones that have severe Post-
Traumatic Stress, and authorizes a small amount of funding so
that the VA can pair them with specially trained service dogs.
So they would be going to organizations who do this for a
living, like Canines for Warriors, pairing the veteran. We
earmark about $27,000 per dog, but the good thing is, as these
organizations become more robust, they are actually able to
train them for less now. And so that is exciting because I
think that that is going to be good bang for the buck.
And we are seeing, in addition to the anecdotal evidence, a
lot of, or some initial scientific evidence, about people who
have these symptoms, who get a specially trained service dog
that understands the symptoms, that can help the veteran deal
with certain situations. We see a decline in opioid use. We see
a decline in suicide. And I think that is obviously good for
the veteran. It is also good for taxpayers if the veteran does
not need to be on drugs.
This has strong support from key veterans groups, like the
VFW and The American Legion. It also has very strong bipartisan
support, which I am very proud to say, and bring before the
Committee. So we have a situation in our country where 22
veterans commit suicide everyday. That is something that I know
everyone in this room is concerned about, and we want to do
everything we can to reduce that or eliminate that. The PAWS
Act, I think, is one way, one tool, where we can strike at this
problem. I believe that if we pass this bill and get it up and
running, I think it will save lives. Part of it is from the
study I have done and how we have done the bill, but part of it
is also practical. I have actually had veterans come up to me
who have PTS, who were paired with service dogs, tell me if
they did not get the service dog when they did, they probably
would have committed suicide. So that is very powerful
testimony, and I am great to be able to talk about the bill.
And Mr. Chairman, I thank you for giving me the opportunity. I
yield back.
The Chairman. Thank you very much, Mr. DeSantis. A very
timely piece of legislation. I would also tell you that we had
a viewing in here yesterday of a film produced by a gentleman
from Mr. Coffman's district called Acronym, in which it talked
about the dramatic effects of canine therapies with PTSD. If
you have not seen it, I would be glad to get you a copy of it.
It is excellent.
Dr. Yoho, you are recognized for five minutes.
OPENING STATEMENT OF HONORABLE TED YOHO
Mr. Yoho. Thank you, Mr. Chairman, and Ranking Member
Brown, and all of the distinguished Committee Members. I want
to take a moment to thank you all for allowing us to come in
and testify on behalf of the veterans and their families
nationwide who stand to benefit from the enactment of H.R.
5166. The acronym is WINGMAN. It stands for Working to
Integrate Networks Guaranteeing Members Access Now Act. It is a
mouthful.
Over the past two years, my office has urged the Department
of Veterans Affairs to work with Members of Congress to grant
certified constituent advocates read only access to the
Veterans Benefit Management System. Three letters were sent to
the Veterans Affairs Secretary Bob McDonald by a bipartisan
group of Members of Congress asking for the VA to act on its
own and provide this access, but to no avail. Over 102 Members
of Congress have signed, bipartisan Members of Congress have
signed one or more letters, including Members of this
Committee. And the request was endorsed by the Veterans of
Foreign Wars.
During this time, a July 10th, 2015 story broke out
reporting that the Los Angeles Veterans Affairs Regional Office
was shredding documents needing to process claims, further
adding the necessity of the VA to grant read only access to e-
claims. During this time thousands of veterans and their
families remained in limbo awaiting resolution on their claims,
some who had already been waiting for years. Veterans and their
families should have to wait no longer for the VA and this
institution to act. And it is unconscionable that a single man
or woman who has answered the call to serve our Nation, protect
our freedoms, and potentially sacrifice their lives, should
have to wait to receive the care and benefits they have already
earned.
Unfortunately, the sentiment and sometimes the reality for
many of our veterans is, the system is designed to have their
back that leaves them questioning whether or not the country
cares at all about what happens after they fulfill their
contract. The narrative or perception is that they become
statistics or numbers on a page that can wait until it is
convenient for the bureaucrats in Washington to act. I
requested a report regarding wait times to hear back from the
VA for my constituent advocates who work hundreds of cases of
veterans. And I want to interject that about 54 percent of our
time is spent on veterans cases and in our district, we border
not far from yours, Mr. Chairman, we are home to about 122,000
veterans in our district. The average time it takes to receive
a response from the VA is six months, and in one case, it took
over a year, a year for the VA to respond to a congressional
office inquiry about a veteran's claim. And I just find this
unacceptable. And you can understand why the veterans come in
and they are aggravated.
With read only access, certified staff need only make a
single request for the VA after obtaining the constituent's
privacy release form. The mechanism we would recommend the VA
use to permit certified staff for access would be similar to
that currently used by the claims agents from 21-22A. This
process would limit access solely to the veterans who have
requested the congressional office act on their behalf, as well
as limit access for cases specific to each congressional
person's district. WINGMAN also ensures the integrity of the
VSO remains intact through the non-recognition clause of the
bill. This means that congressional advocates will continue
refer first time claimants to the service officers and claims
agents, and only take on veterans' cases after all other
resources have been exhausted, which is the current process
followed.
Additionally, the cost to implement WINGMAN is assumed by
whichever congressional office is requesting access. I
recognize not every office wants this or needs this access as
they have significantly smaller veteran populations in their
district. District 3, like I said, is home to over 122,000
veterans. However, for offices that do want access, they will
use their MRAs to cover the cost to train and certify their
staff. This is an opportunity for Congress to literally put
their money where their mouth is and alleviate some of the
barriers preventing veterans from receiving the consideration
they deserve in a timely fashion. I would also like to stress
that this bill does not grant access to files constituent
advocates do not already have permission to possess, and it
simply removes the VA as a middle man and allows advocate
access to records more quickly.
My Republican co-lead on this bill, Rodney Davis of
Illinois, knows all too well the pitfalls of maintaining the
status quo and not making this critical change. As a district
staffer for 16 years he experienced firsthand the difficulties
of navigating through the VA and has personal testimony on
this. There are over 132 Members on this bipartisan bill and I
ask for your support of H.R. 5166. Thank you.
[The prepared statement of Ted Yoho appears in the
Appendix]
The Chairman. Thank you very much, doctor. Another timely
piece of information, something that I have been hoping would
happen for quite some time. And I hope the VA can help us move
that along. Representative Hice, you are recognized for five
minutes.
OPENING STATEMENT OF HONORABLE JODY HICE
Mr. Hice. Chairman Miller, thank you so much, and Ranking
Member Brown. I appreciate you holding this hearing and
allowing me to come and testify on my bill, H.R. 5047, the
Protecting Veterans' Educational Choice Act.
Right now, today, there are nearly one million student
veterans who are using their Post-11 G.I. Bill benefits to
pursue additional education. They are in the process of
transitioning from military life to civilian life, and part of
that transition includes education. That number, nearly a
million, is expected to grow over the next several years and
despite the benefit that we provide them, which is the most
generous education benefit that our Nation has ever offered,
still we have many veterans today who are taking out loans for
their education, and my bill addresses the reason why and helps
to alleviate this problem.
In many cases, bottom line, veterans do not realize, or
they have in some instances deliberately been misled by college
recruiters, that credits from one school do not always transfer
to another school. And that becomes a problem when a veteran
uses up their G.I. benefits in this school hoping to transfer
to another, and then they find out that they are unable to do
so and much of their benefits have been used up at that point.
So the issue has to do with articulation agreements between one
school and another. Often for for-profit or nonprofit schools,
the articulation agreements differ. And so to prevent this
situation--by the way, many of these veterans who are
attempting to go to school are the first generation college
students for their families. But my bill, the Protecting
Veterans' Educational Choice Act, basically requires the
Department of Veterans Affairs to include information about
articulation agreements to the veterans ahead of time so that
they know beforehand what the articulation agreements are so
that they do not use up their G.I. benefits up front only to
find out that they cannot transfer.
So what the bill will do is require the Department of
Veterans Affairs to include information about articulation
agreements as well as information about educational counseling
services provided by the VA to every veteran on the front end
rather than on the back end. In addition, the bill would
require VA counselors to provide educational or vocational
counseling to inform veterans about these various agreements
between schools, particularly when they are trying to transfer.
So the bottom line, Mr. Chairman, the goal of this bill is
not to dictate what school a veteran chooses to go to. That is
totally up to them. All we are trying to do is protect them
from, on the back end of their educational experience, finding
out that they are out of money and that their credits do not
transfer. We are trying to give them the information up front
so that they are able to make the best choice for their career
as they are transitioning from the military into civilian life.
And I believe it is incumbent upon Congress to ensure to the
best of our ability that the benefits and opportunities that we
afford them, that they have earned, that they are able to use
it in the wisest way they deem for their families. So Mr.
Chairman, I look forward to working with you and all my
colleagues here on the Committee to help our veterans. And I
appreciate the bipartisan support on this bill, and would
really encourage support from each of you to help our veterans
in this role. Thank you very much, and I yield back.
[The prepared statement of Jody Hice appears in the
Appendix]
The Chairman. Thank you very much, Mr. Hice. Congressman
Newhouse, you are recognized for five minutes.
OPENING STATEMENT OF HONORABLE DAN NEWHOUSE
Mr. Newhouse. Good morning. Thank you, Chairman Miller,
Ranking Member Brown, and Members of the Committee for inviting
me to testify before you today on H.R. 3216, the Veterans
Emergency Treatment Act.
I believe one of the most important functions of our
Federal government is to support and sustain those who have
been willing to sacrifice all they have to defend our Nation.
Whenever our government fails to meet this responsibility I
believe swift action must be taken.
As everyone on this Committee is well aware, we have heard
far too many distressing stories in recent years of the
Department of Veterans Affairs failing to provide our veterans
with the care they deserve. This legislation seeks to address
one of these problems. In short, H.R. 3216 would ensure that
every enrolled veteran who arrives at an emergency department
of a VA medical facility, and indicates an emergency condition
exists is assessed, and treated in an effort to prevent further
injury or death. It would accomplish this by applying the
statutory requirements of the Emergency Treatment and Labor
Act, or EMTALA, to emergency are furnished by the VA to
enrolled veterans.
EMTALA grants every individual a right to emergency care.
While a 2007 Veterans Health Administration directive indicates
that the VA complies with the intent of EMTALA requirements, VA
hospitals are non-participating hospitals and therefore are not
obligated to fulfill EMTALA requirements. It has become
abundantly clear that the VA is not fulfilling the EMTALA
directive. All too frequently the policy is to turn down those
who access the emergency room.
My attention was first drawn to this issue because of the
experience of one of my constituents. In February of 2015 64-
year-old Army veteran Donald Siefken from Kennewick, Washington
arrived at the Seattle VA Hospital emergency room in severe
pain and had a broken foot that had swollen tot he size of a
football. No longer able to walk, he requested emergency room
staff assist him in traveling the ten feet from his car to the
emergency room. Hospital personnel promptly hung up on him
after instructing him that he would need to call 911 to assist
him at his own expense. He was eventually assisted into the
emergency room by a Seattle fire captain and three
firefighters.
Another notable incident related occurred in New Mexico in
2014 when a veteran collapsed in the cafeteria of a VA facility
and ultimately died when the VA refused to transport him the
500 yards across the campus to the emergency room. It is
actually the Veterans Health Administration's stated policy
that all transfers in and out of VA facilities of patients in
the emergency department or urgent care units are accomplished
in a manner that ensures maximum patient safety and is
compliance with the transfer provisions of EMTALA and its
implementing regulations. Unfortunately, however, this policy
is not always followed and occasionally locally designed
transfer policies at VA facilities serve to undermine efforts
to provide emergency care to veterans in these critical
moments.
Additionally in some of these incidents, there was clear
confusion on the part of the VA facilities about their own
transfer policies. This is why Congress must act.
I am grateful for the support that this legislation has
received from leading veterans organizations, including The
American Legion, Disabled American Veterans, as well as the
Veterans of Foreign Wars. And I look forward to working with
these organizations to make adjustments as needed that the
legislation may need to ensure veterans receive improved
medical services during emergency medical situations.
Thank you again, Mr. Chairman, for holding this hearing
today. I look forward to answering any questions you may have.
And I ask unanimous consent to submit for the record a response
from the VA to my letter of June, 2015, as well as a letter of
support from the Retired Enlisted Association on my
legislation.
The Chairman. Without objection, so ordered.
Mr. Newhouse. Thank you.
The Chairman. Thank you very much, Mr. Newhouse.
Congressman Young, you are recognized for five minutes.
OPENING STATEMENT OF HONORABLE DAVID YOUNG
Mr. Young. Thank you, Chairman Miller, Ranking Member
Brown, and Members of this distinguished Committee. My
colleagues, thank you for the invitation to testify on my bill,
H.R. 5392, the No Veterans Crisis Line Call Should Go
Unanswered Act. I greatly appreciate this opportunity to appear
before you this morning.
I want to share with you all here a story. In April, an
Iowa veteran called the VA veterans crisis line, the
confidential, toll-free hotline providing 24-hour support for
veterans seeking crisis assistance. This veteran was having a
rough day and he needed help. As the veteran sought the help he
desperately needed, the phone keep ringing, and ringing, and
ringing. He tried again, and again, but the only answer was all
circuits are busy, try your call later. This hotline designed
to provide essential support for veterans and their families
and friends had let him down. This heartbreaking story is
tragically true. It is not unique. And thankfully, this veteran
was able to contact a friend who got him the help he was
seeking.
In 2014, a number of complaints about missed or unanswered
calls, unresponsive staff, as well as inappropriate and delayed
responses to veterans to crisis prompted the VA Office of
Inspector General to conduct an investigation into the veterans
crisis line. The investigation found gaps in the quality
assurance process, and provided a number of recommendations to
address the quality, responsiveness, and performance of the
veterans crisis line, and the mental health care provided to
our veterans.
Now despite promises by the VA to implement changes to
address problems facing veterans who use the crisis line, these
problems, unfortunately, they are still happening. Mr.
Chairman, they happen to the constituents in the district I am
privileged to represent, and they happen in other districts as
well, and are without a doubt continuing to happen today.
Veterans deserve more. They deserve quality, effective
mental health care. A veteran in need cannot wait for help, and
any incident where a veteran has trouble with the veterans
crisis line is simply unacceptable.
Now the story I shared of the Iowa veteran's experience
that Saturday evening has troubled me. His experience is why I
am here before you today, working to introduce a bill that
ensures we follow through on the promises our country has made
to our veterans. This bill requires the VA to create and
implement documented plans to improve responsiveness and
performance of the crisis line, an important step to ensure our
veterans have unimpeded access to the mental health resources
that they need.
The unacceptable fact is while these quality standards
should already ben in place, they are simply not. My bill does
not duplicate existing standards or slow care for veterans.
Instead, it puts in place requirements aligning with the
recommendations made by the OIG, the Office of the Inspector
General, and other government accountability organizations to
improve the veterans crisis line. My bill requires the VA to
develop and implement a quality assurance program, and process
to address responsiveness and performance of the veterans
crisis line and backup call centers, and a timeline of when
objectives will be reached. It also directs the VA to create a
plan to ensure any communication to the veterans crisis line or
backup call center is answered in a timely manner by a live
person and document the improvements they make providing those
plans to Congress within 180 days of the enactment of this
bill.
Mr. Chairman and Ranking Member, my colleagues, this bill
would help the VA deliver quality mental health care to
veterans in need, Iowa veterans, and all veterans, have faced
enormous pressures, sacrificed personal and professional gains,
and experienced dangerous conditions in service to our Nation,
and many are returning home with Post-Traumatic Stress Disorder
and other unique needs which require counseling and mental
health support. And we should thank them for their service and
we do, but we need to make sure that we provide that promise to
them. This is why I introduced this bill, to honor and thank
our veterans, and let them know America supports them. Our
veterans answer our Nation's call and we shouldn't leave them
waiting on the line.
I appreciate and I thank the Committee for working with me
on this bill, and for your attention on this important issue. I
look forward to continuing to work with you to provide our
veterans with the best care possible. I thank the chair, the
Ranking Member, my colleagues, and I yield back.
[The prepared statement of David Young appears in the
Appendix]
The Chairman. Thank you very much, Mr. Young. Our final
Members testifying today on a piece of legislation is Mr.
Lamborn from Colorado. You are recognized for five minutes.
OPENING STATEMENT OF HONORABLE DOUG LAMBORN
Mr. Lamborn. Thank you, Mr. Chairman, and I will be brief.
I ask Members to support H.R. 5416, which would help the
families of deceased veterans who received care through the
Choice program.
Currently, the family of a deceased veteran who passes away
in a non-VA hospital that is under contract is given a burial
allowance of $747. However, if the veteran dies while receiving
health care at a non-VA facility under the Choice program the
family is only provided a $300 burial allowance. Mr. Chairman,
it is not right that families are penalized if a veteran uses
the Choice program. Veterans should be able to participate in
the Choice program without having to worry about the financial
impact on their loved ones.
My bill, H.R. 5416, would correct this inequity and allow
families of veterans in the Choice program to qualify for the
$747 burial allowance. This would make things fair and
equitable. I ask the Committee to consider it favorably, and I
yield back.
[The prepared statement of Doug Lamborn appears in the
Appendix]
The Chairman. Thank you very much, Mr. Lamborn. I
appreciate your brevity this morning, and I would ask Members
if you have any questions of any of the legislative sponsors?
Ms. Brown. I think I have one.
The Chairman. Ms. Brown?
Ms. Brown. Is it Mr. Rice? Hice. Mr. Hice, my question is,
it is very interesting, is this just Veterans Affairs? Or is
this Veterans and the Department of Education, who really know
more about accreditation and other things?
Mr. Hice. Of course we would work together with both, but
this is directly with the VA and trying to help. And again, all
we are doing is providing information to the veterans, which
obviously comes under the VA, to make sure that they get the
information that they need.
Ms. Brown. Well I guess my question is, does the VA have
that information as far as whether or not a program is
accredited?
Mr. Hice. Yes, in that regard we are working with other
departments, of education and so forth, to gather all of the
accurate information that is needed. And all of the schools
already are under law, required to place their articulation
information on their Web sites, but some of those schools it is
not easily found. And so this would just help, take that
information that already is available and put it in a very
easily available manner for the veterans.
Ms. Brown. Thank you. You know, many schools have a
transfer policy, you may be taking a class at the community
college and maybe the university does not take it. So I would
be interested in talking more about it as we move forward with
the bill. Thank you.
Mr. Hice. Well, thank you. And we would be interested in
talking as well. And again, the choice of a school is
irrelevant to us. They can go wherever they want to. We just
want to make sure they have the appropriate information.
The Chairman. Dr. Ruiz? And we do have a very large second
panel. So you are--no, no, you can go ahead.
Mr. Ruiz. Absolutely. I will be quick. Congressman
Newhouse, your bill, my understanding is that all emergency
departments are, need to function under EMTALA. Your bill, is
it, what is the difference with the current law that we have
now? There are some emergency departments who have difficulty
complying with EMTALA, both public, private, and within the VA.
So does this help with the implementation of EMTALA?
Mr. Newhouse. The, thank you for your question. The
Veterans Administration facilities are directed to comply with
the intent of EMTALA but they are not legally required to
fulfill those obligations. And so this would clear up any
question there might be on the part of employees or
administrators of those facilities. So it just makes it, brings
them under the same requirements as every other medical
facility in the country.
Mr. Ruiz. Thank you. I yield back my time.
The Chairman. Ms. Brown?
Ms. Brown. I will be quick. I do have one question for Mr.
Yoho. I think your bill is, I will probably cosponsor it, I
don't know for sure. Can you give me some information on how
much it would cost the office, because I have a large veteran
population, and, you say $100,000, we can discuss more about
the cost later. How much would it cost each Member? It is a
good bill but to pay for it out of our office account I find
very interesting.
Mr. Yoho. The certification costs would be minimal. We
would be certified through the VA, the Department of Veterans
Affairs. I do not have an exact cost but the estimate was under
$1,000. So it is something that, again, we are already doing
this work. We have already got a privacy form. The veterans
come to us as a last resort. And it goes back to customer
service for our veterans and expediting that.
Ms. Brown. But we, you know, they have up here, they train
our staff in casework. Would this be a part of that training?
Mr. Yoho. Right. We could, you know, tie it in with that.
We would work that out with the Veterans Administration.
Ms. Brown. Well thank you very much.
Mr. Yoho. Yes, ma'am.
The Chairman. Thank you very much, Members. Thank you to
the first panel. We appreciate your testimony today. And as you
depart, we would ask the second panel if they would come on up
to the table.
Thank you very much, Members, and welcome to the second
panel. If you would, before we begin, I was remiss, I should
have done this at the beginning of the hearing today. Our
colleague Tim Walz lost his brother in a tragic camping
accident on Sunday. His brother was killed in a freak accident
during a storm while he was camping with his son. The son was
seriously injured. Tim is not with us today, and I would just
like to pause for a moment of silence for Tim in honor of his
brother and his family.
[Moment of silence.]
The Chairman. Thank you very much, and thank you to the
second panel for joining us today. And joining us Honorable
Sloan Gibson, Deputy Secretary for the Department of Veterans
Affairs. He is accompanied today in the first row by Laura
Eskenazi, the Executive in Charge and Vice Chairman of the
Board of Veterans Appeals; David McLenachen, the Deputy Under
Secretary for Disability Assistance for the Veterans Benefits
Administration; and Dr. Maureen McCarthy, the Assistant Deputy
Under Secretary for Health, Patient Care Services for the
Veterans Health Administration. Also with us on the second
panel this morning is Mr. Raymond Kelley, the Director of
National Legislative Service for the Veterans of Foreign Wars
of the United States; Paul Varela, the Assistant National
Legislative Director for the Disabled American Veterans; Carl
Blake, the Associate Executive Director for Government
Relations for Paralyzed Veterans of America; Lou Celli, the
Director of the National Veterans Affairs and Rehabilitation
Division for The American Legion; and Mr. Rick Weidman, the
Executive Director for Policy and Government Affairs of Vietnam
Veterans of America. Again, thank you all for being here today.
Thank you to the Deputy Secretary for agreeing to appear in a
second panel so that we could kind of compress everything
today. But Mr. Secretary, you are recognized now for your
opening statement. My script says five, but I think I actually
scripted you for a little bit longer. So you are recognized.
OPENING STATEMENT OF HONORABLE SLOAN GIBSON
Mr. Gibson. Okay, thank you very much, Mr. Chairman. And a
very special thank you for including appeals in this hearing.
And Congresswoman Titus, thank you very much for your
sponsorship of the appeals legislation.
We are pleased to be here to share our views and very
grateful for the opportunity. You have already introduced the
others that are with me. I also want to acknowledge our
partners from the veterans service organizations, as well as
state and county veterans groups, and the myriad of other
veterans stakeholders. They all did some very heavy lifting,
and spent many hours helping us craft the appeals modernization
draft legislation.
While my written statement covers the broad and extensive
range of bills on the docket today, I will reserve most of my
remarks for reform of the appeals process. Let me start by
making three quick points. First, a reminder that while we
support many of the bills on the agenda today, we also know how
important it is to veterans now, and in the future that the
bills' requirements are resources for successful
implementation.
Second, I would like to thank the Committee for inclusion
of H.R. 4150, which will yield dividends for VA health care by
allowing implementation of more flexible work schedules for
doctors, and make us more competitive with the private sector.
And lastly, let me touch just briefly on H.R. 5166, also
known as the WINGMAN Act. We believe that veterans should be in
control of who has access to their private information. We are
concerned that under this bill, that may or may not be the
case, and we would approach this in a different way by
continuing the work that we have already got underway to make
the veteran's entire case file, claims file, available to the
veterans through e-benefits so that the veteran would be in a
position to be able to share that with whomever the veteran
wished to do.
Moving on to appeals, H.R. 5083, the VA Appeals
Modernization Act of 2016, will help veterans immensely by
modernizing a process that is now failing them.
Appeals reform, as noted earlier, is a top priority to VA,
and we fully support this legislation. It is critical to
remember that the cost associated with implementing this new
legislation is essentially zero. The additional funds that we
hope Congress will provide year by year to reduce the inventory
in the current system is separate and distinct from the
legislation to modernize the process.
Current appeals process leaves veterans frustrated and
waiting far too long. It is conceived, as noted earlier, over
80 years ago, a collection of process that have accumulated
over time, unlike any other appeals process in government.
Layers of additions to the process have made it a complicated,
opaque, unpredictable, and less veteran-friendly. It makes
adversaries out of veterans, and VA and it is ridiculously
slow; average processing time for all appeals is about three
years. For appeals that make their way to the Board of
Veterans' Appeals, the average is five years.
Many appeals are much older than that. Last year, the Board
was still adjudicating an appeal that originated 25 years ago,
which has been decided 27 times. It is not right for veterans
and it is not right for taxpayers, and it is only going to get
worse, unless we find a way forward. We now have over 450,000
appeals pending. Without major reform, average wait times will
grow from the current three to five years, to something on the
order of ten years of veterans waiting for a decision.
In the meantime, we are working within existing restraints
and resources to try to respond to the problem. We are
upgrading our technology around appeals, applying lessons
learned from VBA's modernization and transformation of the
claims process, adopted a standard notice of disagreement form
to initiate appeals. In VBA, we have added 300 additional
staff, just focused on appeals work over the last year, and in
2016, we allocated $10 million in overtime, just for appeals
work; we had previously been having some of our appeals staff
working overtime on disability claims. Now when an appeals
staffer is working overtime, they are working exclusively on
appeals.
Output by the Board of Veterans' Appeals has risen 33
percent since 2013. We are actually processing peels at the
highest rate since 1988, which was before a number of changes
in the appeals process that occurred at that time. Despite our
best efforts, veterans keep waiting longer for appeals
decisions, and without reform enabled by legislative action,
the wait will grow much longer.
Problems rooted in our antiquated, complex and inefficient
appeal process, which makes it impossible to keep up with a
growing workload. Between an aging veteran population and some
younger veterans returning home with higher levels of
disability, it is no surprise that we are seeing record numbers
of disability claims with more medical issues per claim.
Looking back from 2010 to 2015, VBA completed more than a
million claims annually. 2015, they completed a record number
of 1.4 million claims, but more claims decided means more
appeals. As was noted earlier, the ratio has remained about the
same. The rate of appeal has remained about the same, and the
result is that we have, Chairman, as you noted, a 35 percent
increase in total appeals pending, just in the last three
years.
The current appeal process is failing veterans. The status
quo is not an option. The solution is fundamental reform, and
without that, we are going to have veterans waiting much, much
longer for their appeals decision.
We strongly support this legislation which has brought VA,
veterans service organizations, and other stakeholders together
in support of this bill. Time to act is now.
I know I am giving short shrift to many other bills on the
agenda, many of which VA supports or proposes some modification
to in order to better serve veterans, but I felt like it was a
priority to address this critical need of our veterans, fixing
the broken appeals system.
Thank you, and we look forward to answering your questions.
[The prepared statement of Sloan Gibson appears in the
Appendix]
The Chairman. Thank you very much. You did do that in five
minutes.
Mr. Kelley, you are recognized for five minutes.
STATEMENT OF RAYMOND KELLEY
Mr. Kelley. Mr. Chairman, on behalf of the 1.7 million
members of the Veterans of Foreign Wars and our Auxiliaries,
thank you for the opportunity to testify today. The VFW is
supportive of the majority of the bills that are under
consideration, but I am going to limit my remarks to just three
of them.
H.R. 5047: The VFW supports the intent of this legislation.
However, we do not believe VA can provide specific articulation
agreements to veterans, due to the fact that the Department of
Education does not track these types of agreements between
individual institutions.
The VFW does agree with section 1, paragraph B of this
legislation, which would require the Secretary of Veterans
Affairs to include information regarding counseling services
and articulation agreements with the certificate of eligibility
for education benefits.
H.R. 5166: The VFW does not support this legislation at
this time. While we agree that there should be more efficient
ways for congressional constituents' service staff to assist
veterans, there are current controls in place to limit access
to veterans' records, and those controls must be preserved
under any expansion of access. The VFW listed our concerns in
our written testimony.
H.R. 5083: The VFW has actively participated in a series of
meetings with VA and other VSOs in an attempt to identify
opportunities for improvement to the current appeals process.
While the VFW is supportive of the legislation, there are
several areas that have not been fully addressed. Solutions to
these areas must be found.
These areas include duty to assist. We have two concerns
about limiting duty to assist at BVA. First, it is unclear
what, if any, action is required if a claimant submits new
evidence during the appeals process. It is likely that
additional development is required, however, the proposal does
not address how that will be accomplished.
Second, we are concerned that if there is limited duty to
assist requirements of the Board, veterans who submit new
evidence to the Board would not know to take that evidence back
to the middle lane because the Board would not require further
development; instruction from the Board to the veteran must be
made clear.
Docket flexibility: Currently, the Board is limited to only
one docket. Under this proposal, VBA would have to maintain at
least two dockets in order to be efficient to work cases. The
VFW suggests a total of five dockets during the transition--two
dockets during the resolution of the current backlog, and then
three additional dockets for the new proposal.
New evidence: It is our belief that eliminating the new
material standard would reduce non-substantive appeals by
allowing regional offices to make a merit decision on the
evidence of record. The VFW proposes that the only requirement
to obtain reconsideration of a claim should be submission of
new evidence.
Higher-level review: The VFW believes that the decision
review officer position must be retained, as opposed to
allowing a higher grade to conduct the review, as proposed
under this legislation. Further, the VFW believes that the
difference of opinion reviewer should be able to remand claims
for additional development based on evidence received during a
difference of opinion review.
Claims in different lanes at the same time: Another
unresolved issue is whether claimants may have the same issue
in more than one lane simultaneously. It is for this reason, we
urge Congress to address the submission of evidence during an
appeal, and to which entity it should be submitted. The VFW
suggests that if the Board cannot order a remand to properly
develop evidence submitted during an appeal, then a claimant
should have the right to submit that evidence in the center
lane while the appeal is pending at the Board.
Reports: We recommend a requirement that VA collect data,
analyze it, and report that information to Congress and to the
public.
The Court of Appeals for Veterans Claims: To ensure that
veterans are not discouraged from appealing to the Court, we
urge Congress to amend this proposal to allow claimants to
submit evidence within one year of a Court decision.
This legislation, even if approved with VFW's
recommendation, is only one-third of the solution. A
comprehensive plan by VA to address the current backlog of
pending appeals, and an allocation of sufficient resources by
Congress to allow VA to execute that plan, must be fully
developed.
Thank you again for the opportunity to testify today, and I
look forward to any questions you or the Committee may have.
[The prepared statement of Raymond Kelley appears in the
Appendix]
The Chairman. Thank you very much, Mr. Kelley.
Mr. Varela, thank you. You are recognized for five minutes.
STATEMENT OF PAUL VARELA
Mr. Varela. Chairman Miller, Ranking Member Brown, and
Members of this Committee, good morning. Thank you for inviting
DAV to testify at this legislative hearing, and to present our
views on the bills under consideration.
All bills under consideration are important today. I will
focus my oral remarks on H.R. 5083, VA Appeals Modernization
Act of 2016, and direct the Committee to our written testimony
for DAV's position on the remaining bills.
Mr. Chairman, H.R. 5083 comes as a result of collaboration
between VBA, the Board of Veterans' Appeals, or Board, and the
11 major stakeholder organizations, including DAV, that assists
veterans each and every day with their claims and appeals.
For the past four months, this workgroup has been meeting
intensively with the goal of developing a new structure for
processing claims and appeals. DAV and other VSO stakeholders
continue to work with the Board and the VBA to resolve and
clarify some unresolved issues to further improve the proposed
new framework. While we support the H.R. 5083, some issues need
to be further explored to ensure veterans do not suffer any
negative unintended consequences.
Furthermore, changes to any part of H.R. 5083 could affect
our ultimate support of the bill, therefore, we urge this
Committee and VA to continue working alongside DAV and other
stakeholders in a transparent and collaborative manner. In
change to the current process must protect the due process
rights of veterans. As VSOs, we understand the current system,
its benefits, and its weaknesses. Core tenets of any new system
must ensure to protect effective dates and due process rights
for veterans; they earned it, and they deserve it. Veterans
must also be allowed opportunities to introduce new evidence
without having to endure a long and arduous formal appeals
process to the Board.
Three options to redress VBA decisions are contemplated
within the new framework; first, readjudication; second, a
higher-level review; and finally, a formal appeal to the Board.
One of these three options must be elected within one year of a
decision.
We are pleased that H.R. 5083 contains one additional
change that we have suggested, and VA agreed to income, which
is language to clarify that all higher-level reviews would be
done as de novo reviews, without the veteran having to
affirmatively elect this review option. This provision must be
maintained in any legislation--within any legislation moving
forward.
H.R. 5083 would also amend existing statute to change the
new and material evidence standard to a new and relevant
evidence standard, as it relates to readjudication and
supplemental claims. We understand VA's intent as it pertains
to adjudication of unrelated evidence, however, this revised
standard would not prevent submission of truly unrelated or
irrelevant evidence; instead, creating a new and untested
standard could result in additional appeals on procedure before
the substance of the claim is adjudicated.
Veterans must be made aware of new notification provisions
and the redesigned claims, and appeals process being proposed.
We recommend legislation include a requirement that VA create,
in conjunction with stakeholders, an online tutorial and
utilize other Web or social media tools to enhance veterans'
understanding of how claims decisions are made, and how to
choose the best options available in the new framework.
Some questions remain unresolved, such as how the
introduction of new evidence would be treated by VBA and the
Board, and how duty to assist requirements will apply; how will
the Board handle new evidence received outside the limited
evidentiary filing periods; how will new employees be trained
under both, the old and new systems, so that there is efficient
administration of these two parallel systems; how will be the
Court view the existence of two different standards for
critical matters such as the duty to assist?
We are pleased that VA has developed a plan to run the new
framework, while simultaneously addressing the almost 450,000
pending appeals, however, this will require additional
resources. Unless VA requests and Congress provides adequate
resources to meet VBA and Board staffing, infrastructure, and
IT requirements, success would be unlikely. We are encouraged
to CVA's proposal for greater resources to make this new claims
and appeals system successful.
We implore Congress to seriously consider appropriate
funding levels as H.R. 5083 moves forward. There is some work
that still needs to be done and clarifications that need to be
addressed, but we remain committed to partnering with Congress,
VA, and other stakeholders to resolve these issues. Mr.
Chairman and Members of this Committee, thank you for the
opportunity to testify today, and I look forward to your
questions.
[The prepared statement of Paul Varela appears in the
Appendix]
The Chairman. Thank you very much, Mr. Varela.
Mr. Blake, you are recognized for five minutes.
STATEMENT OF CARL BLAKE
Mr. Blake. Chairman Miller, Ranking Member Brown, Members
of the Committee, on behalf of Paralyzed Veterans of America, I
would like to thank you for the opportunity to testify today.
There is no question that many of these bills will have a
significant impact on delivery of care, and also the benefits,
through the appeals process. You have our written statement and
many of the recommendations related to some of these bills, so
I will limit my comments to only a couple of the bills under
consideration.
Obviously, the hot topic of the day is H.R. 5083, the
appeals modernization bill. I will say up front that PVA
supports the framework as outlined by H.R. 5083. I think that
this bill goes a long ways towards addressing many of the
concerns that were raised throughout the process that we were
part of, along with our colleagues here at the table, and with
the VA. I would actually like to applaud the VA for the effort
that they put forth to work through this appeals modernization
process.
In my time here, this is probably the first time I have
ever actually seen it work this way in this extensive, a
process with all issues being considered and proper
consideration being given to addressing those concerns, so that
when the legislation was brought forward by Ms. Titus, it
properly reflected the concerns that we raised. We appreciate
the fact that this bill takes into account our concerns, and we
hope that it will be considered and moved forward.
I think the other big issue that has been raised in
previous testimony to the Senate, and it has come up in our
discussions is, what to do about the legacy appeals, the
backlog, whatever you want to call it. I think that that
problem cannot be overlooked. We would hate to see the
mishandling of the current legacy appeals undermine all the
work that has been put into this appeals modernization process.
We appreciate the fact that the VA has already begun the
process of meeting with us, with the organizations here at the
table to try to come up with a workable solution to the legacy
appeals problem. I would say that a lot of progress has been
made. We are still not there. There are a couple of options
that are floating around right now that are being considered. I
would say that one of them would allow for sort of an off-ramp
process into the knew appeals modernization framework. I think
on its face, that probably sounds like a good thing, but I
think just shifting a significant portion of those legacy
appeals into that system doesn't change the fact that those are
still existing appeals, and could create a backlog that might
undermine this new system before it ever gets started.
So we appreciate the time that has been invested into it.
We look forward to continuing the work. We realize that this is
an absolutely critical problem that must be addressed because,
as the deputy secretary said, you know, it will be unacceptable
that a decade from now, some of these appeals could be ten
years on average and that there could be up to two million
appeals if this process continues as it is in the backlog; that
would be totally unacceptable.
With regards to H.R. 4764, the PAWS Act, we clearly
understand and support the intent of the legislation. We
recognize the benefit that service animals provide. I think
there is still some debate over how that fits into the issue of
veterans with severe mental illness, in the case of this bill,
severe PTSD, but I think there has been a lot of work that
suggests that this is a useful and important tool for veterans
as they go through the rehabilitation process.
A couple of the concerns that I would raise with that bill
are, one, as with many other pieces of legislation that have
been considered in the halls of Congress over the last several
years, we don't like the inequity created by the post-9-1-1
versus pre-9-1-1 connection that is in the bill. The fact is,
there are many veterans of previous eras that could benefit
from these provisions, just as much as the post-9-1-1 era, and
we would hate to see those folks be left out in the cold by
this legislation.
Secondly, I think the bill overlooks how service animals
are currently provided through VA. It is my understanding that
the VA has no direct cost in procuring a service animal that is
trained and provided to a veteran. They make the determination
a veteran is deemed eligible. These individuals typically are
referred to nonprofit entities that basically manage the
service animal empire, we will call it, and those individuals
or those entities, then, provide the service animals for
veterans.
I think the intent of the bill is good. I would hate to see
the construct of the bill upend the process that seems to work
in the vein of trying to get veterans who have a severe mental
illness or PTSD access to these same service animals. So I
think some of those considerations need to be given before this
bill is just advanced as it is constructed.
Lastly, I would like to thank Mr. O'Rourke for his work on
H.R. 5162. We support the intent. I think there is still a
little more work that needs to be done. But his office has been
great in reaching out to us and expressed a great deal of
interest in trying to work through whatever details need to be
hashed-out to make sure that the bill does exactly what he
intends, and that veterans are best served by that legislation.
So with that, Mr. Chairman, I would like to thank you for
the opportunity to testify. I would be happy to answer any
questions that you may have.
[The prepared statement of Carl Blake appears in the
Appendix]
The Chairman. Thanks.
Mr. Celli, you are recognized for five minutes.
STATEMENT OF LOUIS CELLI
Mr. Celli. As we wind down this legislative session, The
American Legion is eager to see this Congress address
legislative reforms that will help tune-up VA offerings, and
the restorative services we maintain for our community of
defenders that have earned our respect, our loyalty, and our
admiration.
Chairman Miller, Ranking Member Brown, distinguished
Members of this extremely important Committee, on behalf of
National Commander Dale Barnett and The American Legion, we
thank you for the opportunity to testify regarding The American
Legion's position on the pending and draft legislation. Before
I begin, I would just like to take a minute to pause and
recognize Chairman Miller on behalf of The American Legion, as
this might very well be the last opportunity we will have the
privilege of presenting formal testimony to this Committee
while under the Chairman's leadership. Chairman Miller, The
American Legion salutes you and your service and your
dedication to the veterans of this Nation. It has been an honor
and a pleasure working with you and your team, and we will
always remember our time together with respect, admiration.
Thank you for your service, sir.
Of the 12 bills being discussed today, The American Legion
would like to highlight two as a complete discussion of each of
these bills is contained in our previously submitted testimony,
a copy of which I am sure you all have. H.R. 5083, the Appeals
Modernization Act of 2016, is an important step toward the
exact type of good stewardship this Committee has ensured is a
hallmark of your work. Streamlining a complicated and legally
burdensome process while preserving and actually increasing the
rights of claimants and doing so in a manner that will
ultimately save taxpayer dollars, is a rare and noble
accomplishment.
H.R. 5083 represents a combined effort between your staff,
the Department of Veterans Affairs, and the veterans service
organizations who serve our veterans every day. We are proud of
the work we have done here and the product that we have
produced. In addition, we have developed an intelligent and
comprehensive plan for addressing the existing inventory of
appeals that is logical, reasonable, and continues to serve
veterans' best interests.
You have already heard much about the mechanical details of
this plan, so I won't belabor them, but what I will say is that
it was extremely gratifying to have all of the stakeholders in
the room at one time acting as good stewards for veterans, the
process, and the Nation. The American Legion strongly urges
this Committee and the Full House of Representatives to pass
this measure together with the Senate, and to get this bill
signed into law before we run out of time, in this
administration.
The next bill that I want to address is the WINGMAN Act.
While The American Legion appreciates the tireless support
congressional liaisons provide at the district and national
level, VA disability claims and appeals management is a
complicated and technical process. Merely having access to view
a claimant's record would in no way enable the moderately
trained viewer of the record to offer the type of comprehensive
and legally supported advice that these claimants are looking
for.
A simple request of: "I just want to know what is happening
with my claim because it has been a year since I have heard
anything", is actually a much more complicated discussion than:
I see your claim is at the X, Y, Z regional office, but I don't
see what is happening to it now.
Highly trained service officers, who have years of
experience, often have difficulty tracking down the exact
status as on specific claims, and because many, if not most,
are co-located in the regional offices, have vastly more
resources at their disposal to assist the veteran or their
family member. Further, each record accessed is authorized by a
power of attorney. If The American Legion is representing a
claimant and the claimant contacts their representative's
office seeking a status, and that staff member changes the
power of attorney, The American Legion will no longer represent
that veteran; the congressional representative will.
When veteran claimants call congressional offices, the best
thing that that office can do is recommend that the claimant
secure an accredited representative to assist them with the
process. And if they already have, the congressional
representative is always welcome to call the accredited rep to
help the claimant understand his or her status.
If congressional leaders would like accredited
representatives in their office to process constituent claims,
The American Legion would be happy to facilitate such a program
once your office secures the appropriate funding.
With that, The American Legion opposes the WINGMAN Act, and
would be happy to answer any questions you may have.
[The prepared statement of Louis J. Celli appears in the
Appendix]
The Chairman. Thank you very much, Mr. Celli.
Mr. Weidman, you are recognized for five minutes.
STATEMENT OF RICK WEIDMAN
Mr. Weidman. Good morning, Mr. Chairman. VVA would like to
associate their--ourselves with the remarks of the Legion in
regard to your leadership of this Committee, which has been
strong, not always uncontroversial, but always zeroing in on
what is good for the veteran, and we applaud and absolute you,
as well, sir.
I am going to comment just on a couple of bills. The first
is Mr. Hice's bill, H.R. 5047. We applaud this bill and would
like to see it moved to enactment fairly quickly, what is
missing is something that specifically says that VA has the
authority to enforce this act, and what measures can be taken,
in regard to reducing or eliminating G.I. Bill payments to said
institution until they articulate all of the things in the bill
that are basic that should be shared up front. And so we would
be happy to work with you and Mr. Hice in order to do that.
The second piece that I wanted to comment on--we wanted to
comment on is Ms. Brown's bill, H.R. 5407. We strongly favor
this to zero in on the families that are homeless, particularly
single parents. But a concomitant thing we encourage you to put
in this bill, a section that ups the authority of the Homeless
Veterans' Reintegration Program. HVRP is the most cost-
effective, cost-efficient program the Department of Labor has,
and can prove it, because it is all based on payments.
This is the first time that we have ever gotten up to the
fully authorized--this year--the fully authorized request from
the president for 50 million. We would suggest that the cap be
raised to at least 75 million, if indeed, not 100 million for
this program. The reason is, it works. I mean, what part of
veterans, homeless, getting a job and getting off the street
don't people understand? And, particularly, if it is a single
parent that involves a child.
The last bill I would like to--we would like to comment on
here, and a lot of these are extremely important, although very
targeted bills and we favor most of them, the Appeals
Modernization Act. We also participated and applaud Deputy
Secretary Sloan Gibson for participating and convening this
authority. It is never been done before, of us talking directly
of all the folks who had a stake, from National Veterans Legal
Service Program to NOVA, to the big six, to you name it was
represented, all the way down to the county veteran service
officers.
So, it was intense sessions, more time than any of us, I
think, had ever directed in such a short time to trying to look
at policy together. The recognition that has--that we have to
move together is key.
What didn't happen at those meetings, even though Vietnam
Veterans of America, we regularly raised it, is, we have to
have something that sets precedent in veterans' claims. It is,
in the end, a set of legal laws, of statutes. And the American
jurisprudence system could not operate without setting
precedent and having lower courts follow the precedent, one.
Two, you are not going to be able to really automate this into
an automated system if you don't have precedent that is set.
Because once you have precedent on a certain kind of claim,
then you can write the rules, change the rules, and automate
it, and nobody needs to touch it ever again. You still would
have all the rights to appeal if you disagreed with that, but,
frankly, we believe that most veterans--or a significant number
of veterans anyway--appeal, because nobody explains to them why
their initial claim was turned down, but this would eliminate
that drag. For the taxpayers to continue to spend more money,
we think is crazy--to have more bodies--and many of those
individual adjudications are going to be wrong.
We believe that there is about 15 to 20 claims that are
basically the same, and each one being adjudicated for the
10,000 times to 100,000 times each makes no sense. It should be
automated rules and it is not that difficult. I talked
extensively with Bud Bucum, who is a BVA leader, and Bud was
the operations person for H. Ross Perot when EDS, electronic
data systems, went into existence. He certainly worked writing
rules-based adjudication of claims on a much larger scale than
VA, so, I want to bring him in if you have a chance before this
Congress goes out, Mr. Chairman.
Last but not least, we don't oppose many of the things that
have been suggested here, with the exception of, if you are
going to let a veteran through all the other permutations, keep
the original date of claim, then the things that go to the CVAC
should also be able to retain, if they mandate it back, that
original filing date. And so it is a disincentive vote, then,
for anybody to ever take it to the Court of Veterans Appeals.
And we would like to see that modified in this. But lastly, and
most importantly, we have got to have precedent or we're never
going to get out of this big hamster wheel.
Thank you, Mr. Chairman.
[The prepared statement of Rick Weidman appears in the
Appendix]
The Chairman. Thank you very much, Mr. Weidman. I
appreciate it.
Members, I have two quick questions I want to ask Deputy
Secretary Gibson before the clock starts. The first one is
about the notice last week that Secretary McDonald was not
going to use expedited removal authority from the Choice Act. I
don't think that is appropriate, but that was not my decision,
obviously. There is a pending legal case on the issue. DOJ has
only said they won't defend a small portion of that.
And so I guess the Members would probably want an update on
what the secretary's plan is moving forward withholding senior
VA leaders accountable.
Mr. Gibson. Yes, sir. Great question.
First of all, that was my decision--I own it--not Bob's. We
should have done a better job of communicating it. Bad on us.
Bad on me.
Secondly, as we looked at the situation, recognizing that
the Justice Department would not be defending that particular
provision of the Choice Act, we work hard to build a case that
we believe will withstand appeal. The concern that we had was,
regardless of how hard we worked, and all the evidence that we
compiled to support a removal or a removal from the senior
executive service, that if we made that, put that forth under
the expedited authority of the Choice Act, that we were giving
the senior executive a, basically, a roadmap for having our
decision overturned.
So the idea is reverting back to the old authority. When
you gave us the authority--and I made the decision, every
single senior executive action that we took to the department
that involved either removal or removal of the senior executive
service, we used the expedited authority for that. Not one
single time did we go back to the old authority.
So we feel like we have to do that in this interim period
of time so that the decisions that we make can actually stick
and not be overturned on this legal technicality. And my hope
would be that Congress would approve the Veterans First Act,
which basically addresses this issue both, for by transitioning
medical center directors and network directors, to Title 38,
changing the appeal right and process for other senior
executives, and then for rank and file members of the staff,
being able to appeal to the full MSPB.
The Chairman. The other issue, I think that we need to have
a little clarity on is some comments that Dr. Shulkin made
yesterday in front of the Senate as it related to some IT
provisions and retiring VistA, possibly, in favor of a modern,
commercial platform. Can you elaborate a little bit on what is
going on and how long before the Department gets an official
notification?
Mr. Gibson. Sure. First of all, it would appear as though
we are batting zero on our timely communication on issues.
Apologies. And I say that only--am very serious about it, even
though I make it with a little levity.
I think the timing of the hearing and the subject of the
hearing, and the witnesses of the hearing really put us in a
position where we really needed to go ahead and raise the issue
in that particular forum. What we have done is, really, at this
stage, only look from a planning standpoint. As you know very
well, the plan all along has been to continue to invest in
VistA evolution.
As we have brought in a new information and technology--a
new chief information officer from the private sector; a new
under secretary from health, from the private sector; a new
principal deputy under secretary for health, who came to us
from DoD, and actually participated in the work that was done
that resulted in the Cerner contract at DoD. What we have done
is taken a look forward and concluded that we believe, based on
everything we know, and the way the electronic health care
market exists today, that the right long-term solution for us
is a solution with a commercial off-the-shelf application.
That happens also to be the recommendation that we expect
to be coming out of the Commission on Care. We are at the
absolute earliest stage. I would say that, you know, that is
what we sensed the direction is. We need to come sit down with
you, and with the staff, and with other Members of the
Committee and discuss our sense of all of that in much more
fulsome detail, because ultimately, whatever direction we go in
will be dependent upon the Congress' willingness to authorize
and appropriate the funds required in order to be able to move
ahead.
The Chairman. Thank you very much for the update. We look
forward to further discussion--
Mr. Gibson. Yes, sir.
The Chairman [continued]. --and with that, I will waive my
question time and move to Ms. Brown.
Mr. Gibson. Thank you, sir.
Ms. Brown. And I will be expedited, quick. First of all,
let me thank you all for your comments and your testimony.
Just a quick comment. Mr. Weidman, I am very interested in
working with you to make my bill as--our bill as doing the
things that we want to do, so we can do away with families that
are homeless on the street, because that is just not
acceptable. And I feel that the agencies need to work closer
together, whether it is the Department of Labor, Agriculture,
whoever--whatever services, wraparound services, we need to
work together to make sure that they get what they need--we
need to do it. So thank you very much.
On the issue about the dogs being on transportation, there
is really a shortage of dogs. I mean we use them for security.
We use them for veterans. We use them for a lot of different
things, so we need to look at that as we move forward.
The Federal prison system actually do the initial training
of the dogs--I have seen it, and they do an excellent job--and
then there is a program that once they leave there, they go
down to Orlando and stay with whoever's training them for a
year, and then they are placed in different organizations. So,
it is amazing that there is really a shortage of these dogs.
So, as we move forward--I don't know why everybody is
looking at me kind of blank--but the dogs--I am a person that
in the past, I have not been a dog lover, but now I am a dog
lover, and I see how wonderful they respond to veterans, but
they also--we use them for security. We use them for so many
things.
So, thank you very much, and as we move forward, we need to
take a look at it, and I yield back the balance of my time.
The Chairman. Thank you very much, Ms. Brown.
Dr. Benishek, you are recognized.
Mr. Benishek. Thank you, Mr. Chairman.
Well, good morning or good afternoon, I guess, it is now.
Mr. Gibson, I have got a few questions for you, unfortunately,
I guess.
Mr. Gibson. I'm sure they are great questions.
Mr. Benishek. Well, you know, I have been concerned about
this mental health crisis line thing--
Mr. Gibson. Yes.
Mr. Benishek [continued]. --and my pet peeve about not
being able to reach the crisis line at a VA medical center via,
you know, a one-digit thing. And I am a proud co-sponsor of Mr.
Young's legislation to have quality control standards for a
mental health crisis.
And in conversations with you, I think there was some
concern over the fact that we weren't converting to a single-
digit number because you didn't have enough people to answer
that call. Well, that would be still be the same as if you had
to dial a ten-digit number. Where are we? I mean, apparently,
you don't believe that Mr. Young's bill makes any sense, but
there is still a problem in the VA, and why not, why doesn't
this make any sense?
Mr. Gibson. Thank you for the question.
What we have begun rolling out--we started, actually, in
the middle of May--it is called Option 7. And by, I believe it
is the beginning of the second week of August, every single
medical center in the country, the first item on the IVR when
the veteran calls in will be: If you are in crisis, press 7.
And the call will go immediately and directly to the Veterans
Crisis Line.
Mr. Benishek. So, by August 2nd?
Mr. Gibson. By the second week of August--
Mr. Benishek. Second week of August.
Mr. Gibson [continued]. --you will have that implemented.
What we are doing right now--
Mr. Benishek. At every VA in the country, you are saying?
Mr. Gibson. Yes, every single one. And I recall your
conversation at breakfast about that. And as we looked at that,
we took that into account as we were doing our planning.
As we--we have been investing in technology and staff and
facilities--
Mr. Benishek. Well, that answers my question, directly,
and, you know, I look forward to making a few calls the second
week of August.
Mr. Gibson. You know, I would be glad to give you a list of
facilities that we have already converted and you can start
calling now.
Mr. Benishek. Well, last time, it was 14--only 14 the last
time I asked.
Mr. Gibson. Fifty-five is the last count that I got.
Mr. Benishek. All right. Well, that is an improvement.
Thank you for that.
Mr. Gibson. Yes, sir.
Mr. Benishek. What is the reason that the burial benefits
to veterans differs between people going to one hospital versus
another?
Mr. Gibson. I have no earthly idea. We support the change
in the legislation and, in fact, what we have asked for in TA
is allow us to pay the maximum amount, because $747 didn't go
very far to pay burial expenses.
If we are able to pay the maximum amount routinely, then
what that does is, it let's us expedite the process. Rather
than having the veteran submitting invoices and all that sort
of thing, just let us pay the maximum amount, $747, and we get
it done.
Mr. Benishek. Well, I am just--go to another bill, this
WINGMAN bill, there were some concerns about this. And, you
know, we spend a lot of time in our office investigating and
trying to help veterans with a variety of issues related to
their claims and all that. And our staff, you know, has to--I
mean the veteran has to sign off in order to give our staff
permission to even learn about the file--
Mr. Gibson. Right.
Mr. Benishek [continued]. --and I--you know, we want that.
But I think the staff just wants to have--and I think,
communicate with veterans services officers all the time trying
to find out what the problem is with these claims. And I think
it is just a matter of the time.
We want to be able to have access to the accurate
information and try to improve the time that we can solve these
problems faster. And I don't think--what is the concern amongst
the--is there a problem? I guess some people raised the
question as to there is a problem--this is a problem.
So why is it a problem, since the caseworker from my office
has to get this information eventually anyway in order to be
effective. So--I don't know--Mr. Gibson, please answer shortly
so it will give the other guys a chance to voice their
concerns.
Mr. Gibson. One of the issues is, even if you grant that
access, if a claim has been brokered, you may not know where
that claim went. So you don't know where it is in the process.
So there is a lot of behind-the-scenes things that won't be
solved immediately with that.
Also, on the back end of that, if a VFW service officer
looks at a claim that they are not supposed to look at, they
lose their certification. They lose their job.
If your employee looks at it, they just lose their
certification. There is no real incentive not to violate and
get curious, and see who they are going to look at, and whose
cases they may open up and just look through. So, those are the
types of concerns; we need to make sure there is a back end to
protect veterans' privacies. For us, it is being fired. That is
not necessarily the case with the congressional office.
Mr. Benishek. Does anyone else have a comment?
Mr. Blake. Dr. Benishek, if I understand the bill, right,
it would essentially give a congressional staff Member an
access point so they can look into a claims file and then see
it. They could look into the system and see where it is at.
And a veteran, on average, would call and say, I would like
to know what the status of my claim is, what is going on with
my claims? And if an individual looks at it out of context,
they can't tell that veteran what they really want to know. And
being able to see the claim in space, doesn't tell the veteran
anything. It doesn't tell them where it actually is in the
process, what is being considered, what evidence issues there
may be. It doesn't fully contemplate--
Mr. Benishek. Well, no, I--you know, I think the veterans
service officers, you know, are critical in this process, and
that the people that I employ probably have no idea as to the
details, although I think they may not be happy if I said that,
but--because they are very interested in adjudicating and
helping, you know, these veterans get service. And have a
legislative liaison person that we can reach out to, to
facilitate this is helpful, I think.
Mr. Celli. All right. Well, I know you are out of time, but
I can tell you that I know The American Legion and I suspect my
colleagues also would be more than happy to come in and sit
down with your staff and try to work something out that works
for everyone--
Mr. Benishek. All right.
Mr. Celli [continued]. --something we would all be able to
get behind.
Mr. Benishek. All right. Thanks.
Sorry, Mr. Chairman.
The Chairman. That is quite all right.
Ms. Titus?
Ms. Titus. Well, thank you, Mr. Chairman. I would like to
thank all the witnesses for all their help in putting together
the appeals bill. I don't know if you all can see this or not,
but this is the current appeals process; it looks like some
kind of Rube Goldberg scheme.
But, anyway, this is a historic moment, so I appreciate
your suggestions and comments, but let us not move forward with
this. This is a time we have got to do it, and if we don't do
it now, the situation is just going to get worse.
Mr. Gibson, thank you, especially, for being here too. I
have talked to the CBO, the Congressional Budget Office, to try
to get a score on the bill, and so far they have told us that
it is going to be kind of negligible; the only cost would be to
do training some of the employees on the new process.
Could you--I understand you have done some budget analysis
too. Can you tell us what you found about cost?
Mr. Gibson. That parallels the analysis that we have done
and all the conversations that have been had, all the
information that we have furnished to the CBO, we continue to
believe that the modernization of the appeals process has a
negligible cost.
Ms. Titus. And related to that, I know that we have seen
the figure that by 2027 it will take ten years to do an appeal,
and under the new system, I think the goal is under one year.
Can you tell us what the cost would be to get to that goal if
we keep the old system instead of going to the new system?
Mr. Gibson. Well, you know, what we have modeled there is
an additional $2.6 billion on top of the three and a half
billion that we would expect to spend in ordinary course of
business adjudicating appeals over the coming ten-year period
of time. That actually doesn't quite get you to the one-year
standard; it gets you to about a two-year standard, but it is a
very, very expensive way to try to solve a fundamental problem.
And, frankly, it still leaves us with a process that is
hard to understand, it is not simple, it is not an opaque
process, and so it doesn't meet all the needs of our veterans.
Ms. Titus. So, from rather insignificant costs with the new
system to 2.6 billion additional dollars with the old system--
Mr. Gibson. Yes, ma'am.
Ms. Titus [continued]. --besides, then you still have the
old system, that would be the difference?
Mr. Gibson. Yes, ma'am.
Ms. Titus. We came at this through a very collaborative
effort. The VSOs were very much involved, and at the table; we
have heard that repeatedly. But would you kind of describe for
us, the system, where we came up with this new framework?
Mr. Gibson. Well, I would--you know, I would start by
saying the fact that there were no fisticuffs over the previous
four months as we were going through this process, is one of
the really great positive signs. As a couple of my colleagues
here have mentioned, this is not something that we have really
done before.
The plea was: The process is broken, we are failing
veterans, the time to fix it is now. And the approach was:
Let's put it all on the table.
I would salute all of these organizations and the others
that were mentioned. And I am reminded of my conversation with
Bob Wallace from VFW after the Senate hearing on this topic,
where he was observing to me that we have got to get to a point
here in Washington where ``compromise'' isn't a dirty word. You
know, we all came into this process, all with sort of
preconceived notions about what we wanted, but what we tried to
do was focus on a system that is fair, that is relatively
simple, that is transparent, and delivers a timely result. I
mean, those were sort of the guiding principles that I think we
would all say we tried to manage toward.
And I don't know that--I am certain that what we have isn't
perfect. I am certain that we don't have complete and unanimity
about this, but if we hold this opportunity hostage for
perfection or total unanimity, we are never going to get
anything done. I think the time to act is right now.
And I am grateful to all of our partners for the work that
they did to help us get to where we are. And I would say that
we have committed to this group, and I will do it here again
publicly, to continue to work on the legacy appeals and the
current inventory of appeals; likewise, we are putting
everything on the table there to try to figure out the best way
forward.
Ms. Titus. Well, thank you, and thank all of you for being
such a part of this.
One last quick question. We heard about the due process. We
want to protect the due process. Do you all feel confident that
the due process of the veteran is protected under this new
system?
A nod or--would be fine. I guess they can't get a nod on
the record, but if anybody doesn't to speak up.
Mr. Kelley. If we ensure that the duty to assist is solved
in this, that at some point, the veteran is aware of what to do
with new evidence that is not going to be seen by the Board or
by the Court, that they know what to do with that, so their
effective date is protected and that piece of information does
have that due process of being seen and adjudicated.
Ms. Titus. Thank you.
Mr. Weidman. If this bill moves forward, VVA strenuously
objects to changing new and substantive, to new and relevant.
VA gets to decide what is relevant, as opposed to the veteran
decide what is--what needs to be going on the record. So they
don't even have to put it on the record if they don't want to
consider it.
And as we move towards a veteran-centric system, much of
our problem with this is, it is not a veteran-centric system,
number one, and number two, as I mentioned before, the whole
lack of precedence means you can't automate like you should be
able to, because the rules aren't there. I mean, legally, it is
not going to hold up.
So, the question of due process is some--in some ways it
diminishes, and we have a problem with that.
Ms. Titus. Okay. Thank you, Mr. Chairman.
I yield back.
The Chairman. Dr. Abraham?
Mr. Abraham. A couple quick questions for Mr. Gibson. In
view of what you and Dr. Miller--I mean, Mr. Miller, just
talked about with Dr. Shulkin on the IT system--
Mr. Gibson. Yes, sir?
Mr. Abraham [continued]. --in reference to 5083, what is it
going to take as far as time and cost to spool this up and get
it uploaded to the VA's IT system as it stands today and
looking into the future?
Mr. Gibson. You are talking about the modernized appeals
process?
Mr. Abraham. That is right.
Mr. Gibson. Okay. We estimate that it is about an 18-month
timeline. We would be doing several things in parallel; system
changes to--in VBMS, training for staff, increased hiring of
staff, as well as a rule-making process, because--
Mr. Abraham. And that is with the current software or are
you anticipating new software?
Mr. Gibson. I think there would be some necessary--I am
going to look back here to make sure I am not saying something
stupid; all right, thanks--I am not. Or they say I am--I am not
sure which that was.
I think the changes from a programming standpoint, I don't
believe are that consequential. You know, there are some
changes that go into the system that have to do with
communicating our decision, because a lot of that process has
been automated. And we have committed to a much more fulsome
process in terms of communicating a decision to a veteran on
the front-end in easy-to-understand language, so that they can
actually understand what we are talking about doing.
So, I think all of that taken together is about an 18-month
process, but I don't think the costs associated with that are
nominal costs; these are not significant costs.
Mr. Abraham. And just one final question. Mr. Blake alluded
to it; 5083 really doesn't, I don't think, addresses the
current backlog.
Mr. Gibson. That is correct.
Mr. Abraham. What are you guys going to do about that, or
how are you going to address that?
Mr. Gibson. Well, as several have mentioned here, we are
working together to figure that out. We are looking at some
process changes. We are also looking at different alternatives
about some interim surge, and we intend to ask Congress in 2018
and 2019 for additional resources to be able to accomplish
that.
Mr. Abraham. What--
Mr. Gibson [continued]. Well, what we have modeled
previously was an aggregate over a five-year period of time of
an additional $700 million over a--spread over a five-year
period of time. Now, we are looking at variations on that to
determine the timing and the adequacy of that, and, again, we
are doing it in concert with our partners here.
If we did something like the off-ramp alternative, that
probably would change it, I would like to think in a positive
way, because it basically expedites the work for the veteran.
Mr. Abraham. Thank you, Mr. Chairman.
I yield back.
The Chairman. Thank you very much.
Ms. Radewagen?
Ms. Radewagen. Thank you, Mr. Chairman. I want to thank the
panel for appearing today and thank you for your service to the
Nation. I just have one question.
Mr. Secretary, in your testimony, you refer to an appeal--
the Board is still adjudicating an appeal that originated 25
years ago--
Mr. Gibson. Yes, ma'am.
Ms. Radewagen [continued]. --even though the appeal had
previously been decided by VA more than 27 times, you said.
Mr. Gibson. Yes, ma'am.
Ms. Radewagen. How would enacting H.R. 5083 address the
issue of endless appeals and ensure that all veterans receive
accurate and timely decisions? And how would this proposal
reduce the appeals backlog when veterans are allowed to retain
their effective date by submitting new and relevant evidence
once a year?
Mr. Gibson. Yes, ma'am. First of all, as you can seen here,
part of what the collaborative work has been is to preserve the
rights and opportunities of veterans to pursue their claim in a
fulsome manner, and that has--we have worked collaboratively to
try to get there.
In the course of accomplishing that, what happens is, there
is still the possibility that a veteran, like our veteran of 25
years, who has been--whose claim has been decided 27 times--
incidentally, that veteran is receiving 100 percent
compensation, 100 percent service-disabled--that they would
continue to submit additional evidence to continue to pursue
the claim.
The huge majority of veterans don't want to do that. There
are going to be some relatively small number, that I have no
doubt, will do that. The vast majority of veterans, when they
actually get into an appeal, often times will say, even once
they have gotten their decision, even if it didn't go their
way, they say, well, I just wanted somebody to hear--to be
heard. I wanted to understand or I wanted to see what was in
the claim.
We were talking earlier about the access to the claims
file. Darn it, veterans ought to see what is in their claims
file. I mentioned that in the opening statement and I have been
pushing now, for over a year, to get that done. And as we are
migrating eBenefits over into Vets.gov, the plan is to do that.
We hope by the end of this year to be able to provide a veteran
access to their claim file through eBenefits. We may not be
able to do quite all of it in December--some of that may spill
over into 2017--but that is the objective there. Because they
should see; that is part of creating this kind of transparent
process.
And then when you look at the lanes that we have created,
the ability for a veteran at the point of a decision to say,
first of all, he understands better why all or a portion of his
claim wasn't approved in the first place, because we provide a
more elaborate discussion, then the veteran can make an
informed decision: Oh, I realize now there is a vital piece of
evidence missing in my claim.
So the veteran can supplement--can submit a supplemental
claim--not into the three-year appeal process--but right back
into the 125-day claim process and be able to get a decision
or, alternatively, the veteran wants to pursue the issue to the
Board.
And so it is giving the veteran those kinds of choices,
fair, simple, transparent, and timely. That is what the huge,
huge majority of veterans want. They don't want a process that
turns over and over, but I have no doubt that there will be
some very small number of veterans who choose to do that.
Ms. Radewagen. Thank you.
I yield back, Mr. Chairman.
The Chairman. Thank you very much. Members, thank you. To
the panel, thank you for being with us.
I have a couple of questions that I will send in to you for
the record. One is, you know, can reform, be it appeals reform
or any other type of reform, be achieved without
accountability? So I will give you some time to think about
that for a response.
And number two, for all the VSOs here, if Ms. Titus'
appeals reform bill were to advance as it is in its current
state, would you support or oppose it? So that question will be
coming to you.
And I know there will be a plethora of questions for the
record that Members will have because, obviously, the appeals
reform bill is very complicated, and we need to kind of dig
into the weeds a little bit. But thank you all for being here
today.
I would ask unanimous consent that all Members would have
five legislative days, with which to revise and extend their
remarks or add extraneous material.
Without objection, so ordered. This hearing is now
adjourned.
[Whereupon, at 12:28 p.m., the Committee was adjourned.]
A P P E N D I X
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Prepared Statement of Representative Ted S. Yoho, DVM
H.R. 5166 - WINGMAN
Good Morning Mr. Chairman, Ranking Member, and distinguished
committee members. I want to take a moment to thank you all for
allowing me to testify on behalf of the veterans and their families
nationwide who stand to benefit from the enactment of H.R. 5166,
Working to Integrate Networks Guaranteeing Member Access Now Act - more
commonly referred to as, the WINGMAN Act.
Over the past two years, my office has urged the Department of
Veterans Affairs (VA) to work with Members of Congress to grant
certified constituent advocates' read-only access to the Veterans
Benefits Management System (VBMS). Three letters were sent to Veterans
Affairs Secretary Bob McDonald by a bipartisan group of Members of
Congress asking for the VA to act on its own and provide this access
but to no avail. Over one-hundred and two Members signed one or more of
the letters, including Members of this Committee, and the request was
endorsed by Veterans of Foreign Wars.
During this time, a July 10, 2015 story broke reporting that the
Los Angeles Veterans Affairs Regional Office was shredding documents
needed to process claims, further adding to the necessity of the VA to
grant read-only access to e-Claims. During this time, thousands of
veterans and their families remained in limbo awaiting resolution on
their claim - some who had already been waiting for years. Veterans and
their families should have to wait no longer for the VA and this
institution to act.
It is unconscionable that a single man or woman who has answered
the call to serve our nation, protect our freedoms, and potentially
sacrifice their life should have to wait to receive the care and
benefits they have more than earned. Unfortunately, the reality for
many of our veterans is that the system designed to have their back
leaves them questioning whether or not the country cares at all what
happens after they fulfill their contract. They become statistics,
numbers on a page that can wait until it is convenient for bureaucrats
in Washington to act.
I requested a report regarding wait-times to hear back from the VA
from my constituent advocates who work hundreds of cases for veterans;
the average time it takes to receive a response from the VA is six
months and in one case, it took a year. A year for the VA to respond to
a Congressional office inquiring about a veteran's claim; this is
unacceptable.
With read-only access, certified staff need only make a single
request from the VA, after obtaining the constituent's privacy release
form. The mechanism we would recommend the VA use to permit certified
staffers access would be similar to that currently used by claims
agents - form 21-22A. This process would limit access solely to
veterans who have requested the congressional office act on their
behalf, as well as limit access for cases germane to each
Congressperson's district.
WINGMAN also ensures the integrity of VSOs remains intact through a
nonrecognition clause. This means that congressional advocates will
continue to refer a first-time claimant to service officers and claims
agents and only take on the veterans' case after all other resources
have been exhausted; which is the current process followed.
Additionally, the cost to implement WINGMAN is assumed by whichever
Congressional office is requesting access. I recognize not every office
wants nor needs this access as they may have a significantly smaller
veteran population in their District. However, for offices that do want
this access, they will be required to use their MRA to cover the cost
to train and certify their staff. This is an opportunity for Congress
to literally put their money where their mouth is and alleviate some of
the barriers preventing veterans from receiving the consideration they
deserve in a timely fashion.
I would also like to stress that this bill does not grant access to
files constituent advocates do not already have permission to possess.
It simply removes the VA as middle-man and allows advocates to access
the records more quickly.
My Republican co-lead on this bill, Representative Davis, knows all
too well the pitfalls of maintaining the status quo and not making this
critical change. As a district staffer for sixteen years, he
experienced first-hand the difficulties of navigating the VA in order
to help veterans. Often when veterans would visit him pleading for
help, it was as a last resort and because they had nowhere else to
turn. I agree with him when he emphasizes that, as a Member of
Congress, helping veteran constituents is one of the most important
duties we have the honor of being able to fulfill.
There are over one-hundred and thirty Members cosponsoring the
House bill, four have cosponsored the Senate version sponsored by
Senator Cassidy, and AMVETS has endorsed this reasonable request. I
thank the committee for their consideration of WINGMAN and hope we can
work together to see this initiative through.
Prepared Statement of Congressman Jody Hice
I would like to thank Chairman Miller and Ranking Member Brown for
holding this hearing today and inviting me to testify on behalf of my
bill, H.R. 5047, the ``Protecting Veterans Educational Choice Act of
2016.''
Mr. Chairman, there are nearly one million student veterans using
their Post-9/11 GI Bill benefits to pursue their educations, and that
number is only expected to grow over the next several years. Despite
this benefit - which is the most generous educational benefit our
nation has ever offered - many veterans still end up having to take out
student loans to cover the full cost of their education.
In many cases, this is due to situations where veterans don't
realize - or have been deliberately misled by college recruiters - that
credits earned at one institution will not transfer to another school
until they are already in the process of transferring to a new school
after they have already expended a significant portion of their Post-9/
11 GI Bill benefits.
The ability to transfer credits from one institution to another is
governed by sets of credit transfer agreements between schools known as
articulation agreements. If two institutions do not have an
articulation agreement in place, there is no guarantee that a school
will accept any of the credits earned at the other institution.
To prevent situations where veterans - many of whom are first-
generation college students - are surprised by this aspect of higher
education, I introduced H.R. 5047, the ``Protecting Veterans'
Educational Choice Act of 2016.'' My legislation would require the
Department of Veterans Affairs to include information about
articulation agreements, as well as information about educational
counseling services provided by the VA, to every veteran actively
seeking to use their Post-9/11 GI Bill benefits.
In addition, H.R. 5047 would require VA counselors who provide
educational or vocational counseling to inform veterans about the
various agreements that exist between schools that govern the transfer
of credits. While schools are required by the Higher Education Act to
provide on their websites - in an easily accessible manner - the
policies of the institution related to transfer of credit from other
institutions, these policies are not necessarily well-advertised. I am
happy to work with the Committee to clarify the language so that
providing veterans with this information will not be administratively
burdensome for the VA counselors.
My overall goal with this legislation is to ensure that no veteran
feels as though he or she has misused their benefits because of a lack
of information at the start of the process. Ultimately, decisions
regarding how and where to use these benefits are rightfully left to
those who served our country. However, it is incumbent upon Congress to
ensure that our veterans are as informed as possible about the benefits
and opportunities that they have earned. I strongly believe that this
legislation will go a long ways to help accomplish this.
Mr. Chairman, I look forward to working with you and all of my
colleagues on the Committee on ways to improve this bipartisan bill and
move it towards a mark-up.
I yield back.
Prepared Statement of Representative David Young (IA-03)
Chairman Miller, Ranking Member Brown, and Members of this
distinguished Committee.
Thank you for the invitation to testify on my bill, H.R.5392, the
No Veterans Crisis Line Call Should Go Unanswered Act. I greatly
appreciate this opportunity to appear before you this morning.
In April, an Iowa veteran called the VA Veterans Crisis Line - the
confidential, toll free hotline providing 24 hour support for veterans
seeking crisis assistance. This veteran was having a rough day and he
needed help. As the veteran sought the help he desperately needed, the
phone kept ringing, and ringing, and ringing. He tried again, but the
only answer was ``all circuits are busy - try your call later.'' This
hotline, designed to provide essential support for veterans and their
families and friends, let him down.
This heartbreaking story is tragically true, but it is not unique.
And, thankfully this veteran was able to contact a friend who got him
the help he was seeking.
In 2014, a number of complaints about missed or unanswered calls,
unresponsive staff, as well as inappropriate and delayed responses to
veterans in crisis prompted the VA Office of the Inspector General to
conduct an investigation into the Veterans Crisis Line. The
investigation found `gaps in the quality assurance process,' and
provided a number of recommendations to address the quality,
responsiveness, and performance of the Veterans Crisis Line and the
mental health care provided to our veterans.
Despite promises by the VA to implement changes to address problems
facing veterans who use this Crisis Line these problems are still
happening, Mr. Chairman - they happened to constituents in the District
I'm privileged to represent and they are without a doubt continuing to
happen today.
Veterans deserve more - they deserve quality, effective mental
health care. A veteran in need cannot wait for help and any incident
where a veteran has trouble with the Veterans Crisis Line is simply
unacceptable.
The Iowa veteran's experience that Saturday evening has troubled
me. His experience is why I am here before you today - working to
introduce a bill that ensures we follow through on the promises our
country has made to our veterans.
My bill, the No Veterans Crisis Line Call Should Go Unanswered Act,
H.R. 5392, requires the VA to create and implement documented plans to
improve responsiveness and performance of the crisis line, an important
step to ensure our veterans have unimpeded access to the mental health
resources they need.
The unacceptable fact is - while these quality standards should
already be in place, they are not. My bill does not duplicate existing
standards or slow care for veterans. Instead, it puts in place
requirements aligning with recommendations made by the OIG and other
government accountability organizations to improve the Veterans Crisis
Line.
My bill requires the VA to develop and implement a quality
assurance process to address responsiveness and performance of the
Veterans Crisis Line and backup call centers, and a timeline of when
objectives will be reached. It also directs the VA to create a plan to
ensure any communication to the Veterans Crisis Line or backup call
center is answered in a timely manner, by a live person, and document
the improvements they make, providing those plans to Congress within
180 days of the enactment of this bill.
Mr. Chairman, my bill would help the VA deliver quality mental
health care to veterans in need - Iowa veterans and all veterans have
faced enormous pressures, sacrificed personal and professional gains,
and experienced dangerous conditions in service to our nation. And,
many are returning home with post-traumatic stress disorder and other
unique needs which require counseling and mental health supports. And
we should thank them for their service. This is why I introduced this
bill - to honor and thank our veterans and let them know America
supports them. Our veterans answer our nation's call, and we shouldn't
leave them waiting on the line.
I appreciate and I thank the Committee for working with me on this
bill and for your attention to this important issue - I look forward to
continue working with you to provide our veterans with the best care
possible.
Prepared Statement of Rep. Doug Lamborn
Thank you, Mr. Chairman,
I ask Members to support H.R. 5416, which would help the families
of deceased veterans who received care through the Choice program. .
Currently, the family of a deceased veteran who passed away in a
non-VA hospital that is under contract, is given a burial allowance of
$747. However, if the veteran dies while receiving healthcare at a non-
VA facility under the Choice program, the family is only provided a
$300 burial allowance.
Mr. Chairman, it is not fair that families are penalized if a
veteran uses the Choice program. Veterans should be able to participate
in the Choice program without having to worry about the financial
impact on their loved ones. My bill, H.R. 5416, would correct this
inequity and allow families of veterans in the Choice program to
qualify for a $747 burial allowance.
I urge my colleagues to support this bill and yield back.
Prepared Statement of The Honorable Sloan Gibson
Good morning, Chairman Miller, Ranking Member Brown, and Members of
the Committee. Thank you for inviting us here today to present our
views on several bills that would affect VA programs and services.
Joining me today are Laura Eskenazi, Executive in Charge and Vice
Chairman of the Board of Veterans Appeals (the Board); David
McLenachen, Deputy Under Secretary for Disability Assistance for the
Veterans Benefits Administration, and Dr. Maureen McCarthy, Assistant
Deputy Under Secretary for Health for Patient Care Services, Veterans
Health Administration (VHA).
Thank you for the opportunity to come before you today to discuss a
slate of bills that includes two of the Department's legislative
priorities, along with additional pieces of legislation. Our pressing
needs are items that we have outlined in letters to the committee, in
previous testimony, and in countless meetings with the committee and
members staffs, which support the MyVA Transformation. Some of these
critical needs are addressed in bills you are considering in today's
hearing, but we'd like to work with you on the particular language to
ensure that, as enacted, the language will have the desired effect of
helping the Department best serve Veterans. VA will provide views
shortly on H.R. 5162, the Vet Connect Act of 2016.
I believe it is critical for Veterans that we all work together and
gain consensus on a way forward for these pieces of legislation that
will provide VA with the tools necessary to deliver care and benefits
at the level expected by Congress, the American public, and deserved by
Veterans.
Modernizing the VA Appeals System
Addressing the claims appeals process is a top priority of VA. H.R.
5083, the VA Appeals Modernization Act of 2016 would provide much-
needed comprehensive reform for the VA appeals process. It would
replace the current, lengthy, complex, confusing VA appeals process
with a new appeals framework that makes sense for Veterans, their
advocates, VA, and stakeholders. VA fully supports this bill.
The current VA appeals process, which is set in law, is broken and
is providing Veterans a frustrating experience. Appeals have no defined
endpoint and require continuous evidence gathering and re-adjudication.
The system is complex, inefficient, ineffective, confusing, and splits
jurisdiction of appeals processing between the Board of Veterans'
Appeals (Board) and the Veterans Benefits Administration (VBA).
Veterans wait much too long for final resolution of an appeal. We face
an important decision about the future of appeals for Veterans,
taxpayers, and other stakeholders.
Within the current legal framework, the average processing time for
all appeals resolved in Fiscal Year (FY) 2015 was 3 years. For those
appeals that reach the Board, on average, Veterans are waiting at least
5 years for an appeals decision, with thousands of Veterans waiting
much longer. As Secretary McDonald noted in his February 23, 2016
testimony, in 2015, the Board was still processing an appeal that
originated 25 years ago, even though the appeal had previously been
decided by VA over 27 times. VA continues to face an overwhelming
increase in its appeals workload. Looking back over FY 2010 through FY
2015, VBA completed more than 1 million claims annually, with nearly
1.4 million claims completed in FY 2015 alone. This reflects a record
level of production. As VA has increased claims decision output over
the past 5 years, appeals volume has grown proportionately. Since 1996,
the appeal rate has averaged 11 to 12 percent of all claims decisions.
The dramatic increase in the volume of appeals is directly proportional
to the dramatic increase in claims decisions being produced, as the
rate of appeal has held steady over decades. Between FY 2012 and FY
2015, the number of pending appeals climbed by 35 percent to more than
450,000 today. VA projects that, by the end of 2027, under the current
process, without significant legislative reform, Veterans will be
waiting on average 10 years for a final decision on their appeal.
Comprehensive legislative reform is required to modernize the VA
appeals process and provide Veterans a decision on their appeal that is
timely, transparent, and fair. This bill would provide that necessary
reform. The status quo is not acceptable for Veterans or for taxpayers.
Without legislative change, providing Veterans with timely answers on
their appeals could require billions of dollars in net new funding over
the next decade. By contrast, with legislation and a short-term
increase in funding to address the current pending workload, VA could
resolve the pending inventory, provide most Veterans with an appeals
decision within 1 year of filing, and greatly improve the efficiency of
the Appeals process for years to come. We believe this can be done for
net additional costs over 10 years in the millions of dollars, not the
billions required by the status quo, saving money in the long-term
compared to where we are headed without reform. If we fail to act now,
the magnitude of the problem will continue to compound.
A wide spectrum of stakeholder groups have been meeting with VA to
reconfigure the VA appeals process into something that provides a
timely, transparent, and fair resolution of appeals for Veterans and
makes sense for Veterans, their advocates, stakeholders, VA, and
taxpayers. We believe the engagement of those organizations that
participated ultimately led to a stronger proposal, as we were able to
incorporate their feedback and experience having helped Veterans
through this complex process. The result of these meetings was a new
appeals framework, virtually identical to H.R. 5083, which would
provide Veterans with timely, fair, and quality decisions. VA is
grateful to the stakeholders for their contributions of time, energy,
and expertise in this effort.
The essential feature of this newly shaped design would be to step
away from an appeals process that tries to do many unrelated things
inside a single process and replace that with differentiated lanes,
which give Veterans clear options after receiving an initial decision
on a claim. For a claim decision originating in VBA, for example, one
lane would be for review of the same evidence by a higher-level claims
adjudicator in VBA; one lane would be for submitting new and relevant
evidence with a supplemental claim to VBA; and one lane would be the
appeals lane for seeking review by a Veterans Law Judge at the Board.
In this last lane, intermediate and duplicative steps currently
required by statute to receive Board review, such as the Statement of
the Case and the Substantive Appeal, would be eliminated. Furthermore,
hearing and non-hearing options at the Board would be handled on
separate dockets so these distinctly different types of work can be
better managed. As a result of this new design, the agency of original
jurisdiction (AOJ), such as VBA, would be the claims adjudication
agency within VA, and the Board would be the appeals agency.
This new design would contain a mechanism to correct any duty to
assist errors by the AOJ. If the higher-level claims adjudicator or
Board discovers an error in the duty to assist that occurred before the
AOJ decision being reviewed, the claim would be returned to the AOJ for
correction unless the claim could be granted in full. However, the
Secretary's duty to assist would not apply to the lane in which a
Veteran requests higher-level review by the AOJ or review on appeal to
the Board. The duty to assist would, however, continue to apply
whenever the Veteran initiated a new claim or supplemental claim.
This disentanglement of process would be enabled by one crucial
innovation. In order to make sure that no lane becomes a trap for any
Veteran who misunderstands the process or experiences changed
circumstances, a Veteran who is not fully satisfied with the result of
any lane would have 1 year to seek further review while preserving an
effective date for benefits based upon the original filing date of the
claim. For example, a Veteran could go straight from an initial AOJ
decision on a claim to an appeal to the Board. If the Board decision
was not favorable, but it helped the Veteran understand what evidence
was needed to support the claim, then the Veteran would have 1 year to
submit new and relevant evidence to the AOJ in a supplemental claim
without fearing an effective-date penalty for choosing to go to the
Board first.
To fully enable this process and provide the appeals experience
that Veterans deserve, VBA, which receives the vast majority of
appeals, would modify its claims decisions notices to ensure they are
clearer and more detailed. This information would allow Veterans and
their representatives to make informed choices about whether to file a
supplemental claim with the AOJ, seek a higher-level review of the
initial decision within the AOJ, or appeal to the Board.
H.R. 5083 would not only improve the experience of Veterans and
deliver more timely results, but it would also improve quality. By
having a higher-level review lane within the VBA claims process and a
non-hearing option lane at the Board, both reviewing only the record
considered by the initial claims adjudicator, the output of those
reviews would provide a feedback mechanism for targeted training and
improved quality in VBA.
Though some may view this reform effort as too accelerated, we
would like to reiterate that the topic of ``fixing the appeals
problem'' has been debated and studied by experts in the field for
many, many years. H.R. 5083 would be a solution to the problem. The
time to act is now. The legislation itself is cost neutral. We are
excited to be part of this work and to have the potential to lay down a
path for future Veterans' appeals that is simple, timely, transparent,
and fair. We owe it to our country to put in place a modernized
framework for Veterans' appeals which we believe will serve Veterans,
taxpayers, and the nation well for years to come.
Improving Recruitment and Retention and Improving Health Care
Management
VA has proposed a number of measures to improve its ability to
recruit and retain medical professionals. We appreciate your
consideration today of H.R. 4150, the Department of Veterans Affairs
Emergency Medical Staffing Recruitment and Retention Act, which is
based on one of those proposals. The bill allows VA to arrange flexible
physician and physician assistant work schedules to allow for the
staffing and full implementation of a hospitalist physician system and
to accommodate the unusual work schedule requirements for Emergency
Medicine (EM) Physicians.
VA supports this measure but would like to discuss two technical
aspects of this bill with the Committee. There are differences in
personnel authorities and overtime compensation between physicians and
physicians' assistants which would present complications in
implementation of the bill. We therefore propose the bill be limited to
physicians. We also suggest amending language that limits total hours
of employment for covered employees to 2,080 hours in a calendar year.
We suggest a technical amendment to ensure the bill will cover full-
time employees.
If the bill were revised as recommended above, we believe it would
result in no additional cost to the Department.
Other Veteran Health Care Measures
It is important to ensure that Veterans are given the fullest
possible access to emergency care, and especially that there are not
barriers to ensuring that patients who seek emergency treatment at VA
are stabilized and treated. The Emergency Medical Treatment and Labor
Act (EMTALA) is a federal law that requires anyone coming to an
emergency department to be stabilized and treated, regardless of their
insurance status or ability to pay. H.R. 3216, the Veterans Emergency
Treatment Act would apply provisions similar to what is in (EMTALA) at
42 U.S.C. Sec. 1395dd to enrolled Veterans requesting examination or
treatment at a hospital emergency department of a VA medical facility
(including when a request is made on the Veteran's behalf).
VA generally supports the intent of the legislation, but does not
believe it is necessary. VA currently practices under the spirit of
EMTALA. Additionally, VA Emergency Departments are currently practicing
under EMTALA guidance.
We do note, as a technical matter, that H.R. 3216 would only cover
enrolled Veterans, and not persons who are ineligible for VA health
care but who require emergency treatment (such as humanitarian cases).
There are also technical complications under the bill as currently
written with respect to payment for care by non-VA facilities. We would
be glad to discuss these issues with the Committee.
We do not believe this bill would result in any additional costs to
the Department.
H.R. 4764, the Puppies Assisting Wounded Servicemembers (PAWS) Act
of 2016, would require VA to carry out a 5 year pilot program under
which VA would provide service dogs to eligible Veterans. This would be
done in addition to other types of treatment provided for posttraumatic
stress disorder (PTSD) and would be prohibited from replacing an
established treatment modality.
While VA certainly understands the intent of this legislation, we
do not support the bill. VA's Office of Research and Development (ORD)
is currently conducting a legislatively mandated study ?to learn if
service dogs are an efficacious intervention in the treatment of
Veterans with PTSD. We anticipate that our ongoing legislatively
mandated study ?will be completed before any new legislative authority
could be enacted and implemented. We strongly recommend that Congress
await the results of this study, which will address the overarching
question of whether service dogs are an efficacious intervention for
Veterans with PTSD. ?
There are a number of complications and possible unintended
consequences that could result from enactment of H.R. 4764. This bill
raises questions of equity or even discrimination if one population of
Veterans receives a benefit that others do not. There are distinctions
between emotional support or companion animals and service dogs. This
is an important consideration, as we have been in recent contact with
Assistance Dogs International and learned that they do not certify
programs that provide emotional support animals.
VA has not developed a cost estimate for this bill, but we note
that the $10 million offset from the VA Human Resources and
Administration account would impede significantly our ability to hire
and retain personnel necessary to fulfill VA's mission of service to
Veterans. We would be glad to facilitate meetings with clinical and
research specialists to explain VA's concerns in more detail.
There is no more critical mission for VA than to respond to
Veterans who are in crisis. H.R. 5392 No Veterans Crisis Line Call
Should Go Unanswered Act would direct the Secretary to develop a
quality assurance document to use in carrying out the Veterans Crisis
Line (VCL). VA would also be required to develop a plan to ensure that
each telephone call, text message, or other communication to the VCL is
answered in a timely manner by a person and consistent with guidance
from the American Association of Suicidology. (www.suicidology.org).
VA appreciates the interest of the Congress to ensure our ability
to respond to Veterans most in need is second to none. VA supports the
intent of this bill, but we do not believe it is necessary because our
current efforts fully meet the goals of this bill. The VCL has
developed a formal quality assurance program and implementation plan
that includes call monitoring, complaint and compliment tracking, end-
of-call satisfaction measurement, and a formal coaching plan. The
quality management plan includes a comprehensive database for tracking,
trending, and reporting on quality improvement data from issue
identification to actions and resolution for both VCL's primary call
center and back-up call centers. Data will be used to inform training
initiatives through a continuous quality improvement cycle that
includes data collection, analysis and feedback, standard work review/
updates, training, and implementation. The quality assurance program
will track staff adherence to standard workflow processes and provide
feedback for every monitored call. These data will be trended and
incorporated into both New Employee and Remedial Training for
responders.
VCL has also created a multidisciplinary Clinical Advisory Board
consisting of key stakeholders from the VCL, VHA Member Services, VA's
National Suicide Prevention Program, the Defense Suicide Prevention
Office, the Center of Excellence for Suicide Prevention, the Substance
Abuse and Mental Health Service Administration, VHA's Office of Public
Health, and VA's Mental Illness Research, Education & Clinical Centers
to share best clinical practices.
This bill would not result in any additional costs.
VA Benefits Measures
It is critical that Veterans and Servicemembers considering or
using VA education benefits have reliable information about schools.
H.R. 5047, the Protecting Veterans' Educational Choice Act of 2016,
would require VA counselors who provide educational or vocational
counseling services to also provide information about articulation
agreements of each institution of higher learning (IHL) in which the
Veteran is interested. An articulation agreement is an agreement used
in transfers between schools that specify the acceptability of courses
towards meeting degree, certificate, or program requirements. H.R. 5047
would require VA to provide detailed information on educational
assistance, including information on requesting education counseling
services and articulation agreements to each Veteran who receives a
certification of eligibility.
VA supports the intent of H.R. 5047, as it outlines robust existing
practices and services currently provided by counselors during the
educational and vocational counseling process, as well as important
information provided by VA when a certificate of eligibility is issued.
There are no mandatory costs for this proposed legislation as it
does not change direct benefits to beneficiaries. There are no
discretionary costs as its requirements are already met by existing
practices.
H.R. 5166, the Working to Integrate Networks Guaranteeing Member
Access Now Act (WINGMAN) Act would require VA to provide
``accredited,'' permanent congressional staffers designated by a Member
of Congress with remote, read-only access to VBA's electronic records
of Veterans they represent, regardless of whether the Veteran whose
record is accessed has consented to the disclosure of information. The
bill also clearly states that the provision of access to the
congressional staffer is not for purposes of representing Veterans in
the preparation, presentation, and prosecution of claims for Veterans'
benefits.
VA understands the interest of Members in Congress in having
current casework information for their Veteran constituents. VA,
however, opposes this bill because it raise significant privacy
concerns, and because it creates confusion with the function of VA's
accreditation program in ensuring that Veterans have access to
competent and qualified claims representation.
The bill would actually provide congressional staff who assist
constituents of a Member of Congress with greater access to VA records
than is provided to a VA employee. Under the Privacy Act, Federal
employees generally may access private records only when necessary to
perform their duties. This bill would impose no similar restriction on
access by congressional staff. Congressional staff would have
unrestricted access to the medical records of Veterans and other VA
claimants.
Regarding how the bill conflates the concepts of access to claims
records and representation of claimants, accreditation by VA as
attorneys, claims agents, and Veterans Service Organization
representatives is not done for purposes of providing electronic access
to VBA's electronic records system. Rather, the purpose of VA's
accreditation and oversight of representatives, agents, and attorneys,
and other individuals is to ensure that claimants for VA benefits have
responsible, qualified representation in the preparation, presentation,
and prosecution of claims for Veterans' benefits. The laws governing
accreditation do not address the issue of access to claimants' records,
which are governed separately by other laws. Making congressional
employees' access to claimant records a function of VA's accreditation
program would unnecessarily complicate the operation of that program.
Further, referring to congressional staff as ``accredited'' can only
create confusion about whether staffers are accredited by VA for
purposes of claims representation and what their role is in the claims
process.
Additionally, there are serious technological obstacles to
implementing this bill. The bill would impose on VA a substantial
burden to accommodate the contemplated access, necessitating changes to
VA through its current systems. We are unable to provide an accurate
cost-estimate at this time, although costs associated with changes to
VA information systems would be substantial.
VA is always ready to discuss with the Committee other ways VA can
improve a Member of Congress' ability to effectively work with VA to
resolve casework issues on behalf of their constituents.
H.R. 5416, the Expanded Burial Benefits for Veterans Participating
in the Veterans Choice Program would expand VA's monetary burial
benefits to cover Veterans who die while hospitalized by VA or a non-VA
health care provider by expanding the categories of non-VA facilities
in current law. The bill would expand the facilities covered to include
a non-VA facility where the Veteran was receiving care under Veterans
Choice (specifically under Section 101 of the Veterans Access, Choice,
and Accountability Act of 2014 (Public Law 113-146)).
VA already pays the burial allowance for Veterans who die while
receiving care at a non-VA facility when under VA contract. The
Veterans Choice program is a similar program whereby Veterans can
receive care from community providers. VA believes this is a logical
extension of current law to account the supports this proposed
expansion of burial benefits.
VA also recommends changing the bill to simply pay the maximum
benefit instead of the actual cost of the burial and funeral. Under
current practice, VA generally pays the maximum benefit because the
current average cost of a Veteran's burial and funeral exceeds by far
the $700 maximum burial benefit. This change would greatly help VA
automate and speed the payment of the benefit to the Veteran's family.
VA would be glad to work with the Committee to refine the bill's
language.
We must note that VA support for this bill is contingent on
Congress providing the necessary resources for carrying it out. Because
of the relatively short notice for this hearing, VA has not yet
developed an estimate of the benefit costs associated with this bill.
Other bills
H.R. 5407, the Homeless Veterans Reintegration Programs for
Homeless Veterans with Dependent Children would require the Secretary
of Labor to prioritize the provision of services to homeless Veterans
with dependent children, as well as submit reports and evaluations to
the Congress.
Because this bill concerns responsibilities and programs under the
Department of Labor, VA defers to the views of that agency on H.R.
5407.
H.R. 5420 a bill to authorize the American Battle Monuments
Commission to Acquire, Operate, and Maintain the Lafayette Escadrille
Memorial would authorize the American Battle Monuments Commission to
acquire, operate, and maintain the Lafayette Escadrille Memorial in
Marne-la-Coquette, France.
Because this bill concerns responsibilities under the purview of
the American Battle Monuments Commission, VA defers to the views of
that agency on H.R. 5420.
H.R. 5428, the Military Residency Choice Act, would amend the
Servicemembers Civil Relief Act regarding various tax and residency
matters. Because this bill concerns responsibilities under the purview
of the Department of Defense, the Internal Revenue Service, the
Department of Justice, and others, VA defers to the views of those
agencies on H.R. 5428.
Closing
Mr. Chairman, this concludes my statement. Thank you for the
opportunity to appear before you today. We would be pleased to respond
to questions you or other members may have.
Prepared Statement of Raymond C Kelley
WITH RESPECT TO
Pending Legislation
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:
On behalf of the men and women of the Veterans of Foreign Wars of
the United States (VFW) and our Auxiliaries, thank you for the
opportunity to provide our remarks on today's pending legislation.
H.R. 3216, VET Act
The VFW supports this legislation, which would apply the Emergency
Treatment and Labor Act to emergency care furnished by Department of
Veterans Affairs (VA) emergency rooms.
Last year, several instances of wrongdoing came to light where VA
health care professionals refused to go beyond what their position
descriptions require them to do and instead chose to deny veterans
access to the care they needed. This includes a 64-year old veteran
from Kennewick, Washington who drove to the Seattle VA medical center
with a broken foot and needed assistance traveling the remaining 10
feet to the emergency room entrance. Instead of assisting the veteran,
a medical center employee instructed him to call 911.
VA later issued a mea-culpa for the incident and VA Under Secretary
for Health Dr. David Shulkin has instructed all Veterans Health
Administration employees to ensure these instances are not allowed to
occur again. While Dr. Shulkin is working to eliminate these errors,
the VFW believes this legislation would ensure VA has the authority to
do so.
H.R. 4150, Department of Veterans Affairs Emergency Staffing
Recruitment and Retention
The VFW supports this legislation, which would grant VA medical
facility staff the ability to have flexible working hours that best
suit the demand for delivering health care to the veterans they serve.
In response to last year's access crisis, VA has made a full-fledged
effort to increase access for veterans who rely on the VA health care
system for their health care needs. Yet, it continues to face numerous
challenges in meeting the growing demand on its health care system.
One of those challenges is the statutory 80-hour biweekly pay
period limitation for title 38 employees. While most health care
providers work a traditional 40-hour work week, hospitalist and
emergency room physicians often work irregular schedules to accommodate
the need for continuity and efficient hospital care. The VFW supports
efforts to eliminate this access barrier and improve VA's ability to
recruit and retain high-quality hospitalist and emergency room
physicians.
H.R. 4764, Puppies Assisting Wounded Servicemembers Act of 2016
This legislation would establish a pilot program to provide service
dogs to veterans suffering from severe post-traumatic stress disorder
(PTSD). The VFW supports this legislation, but urges the Committee to
allow veterans of all eras to participate in the program, not just
those who served after September 11, 2001. PTSD does not discriminate
by service era, and all veterans deserve parity in the treatment for
this disorder.
With such a high ratio of veterans who have defended our nation
being diagnosed with PTSD, VA must provide veterans mental health care
options that work best for them. Recent studies show service dogs
provide positive health care outcomes in veterans with PTSD. Such
studies illustrate a reduction in symptoms from the PTSD Checklist,
lowered effects of anxiety and depression disorders, as well as a
reduced need for psychopharmaceutical prescriptions. Veterans who have
service dogs also experience an increased participation in social
settings, as well as overall satisfaction with life. The VFW supports
continued efforts to evaluate the efficacy of using service dogs to
treat PTSD and other mental health conditions.
The VFW also strongly supports the continuance of care this
legislation requires to maintain eligibility of canine health
insurance. Continuance of care is crucial to successfully overcoming
any illness, whether it is physical or mental. With VA only maintaining
coverage of the service dogs if the veteran continues to see their
physician or mental health care provider at least once a quarter, this
legislation would ensure more consistent and open communication between
the medical provider and veteran.
H.R. 5047 Protecting Veterans Educational Choice Act of 2016
The VFW supports the intent of this legislation, however, we do not
believe VA can provide articulation agreements based on the fact that
the Department of Education does not track these types of agreements
for individual institutions. Because VA would not have reasonable
access to this information, it would not be able to fulfill this
requirement. The VFW does agree that VA should be required to explain
what an articulation agreement is and how the veteran may obtain
information about such agreements, and that is why we support Section
1, paragraph (b) of this legislation.
There are reports suggesting some veterans are not receiving a
satisfactory education when using their G.I. Bill benefits and other
tuition assistance programs. This is because student veterans are
bombarded with overwhelming amounts of educational information with
little or no training on how to make an informed decision. We believe
this issue stems from veterans being unaware of free pre-enrollment
counseling services offered by VA. Section 1, paragraph (b) of this
legislation would assist in diminishing this problem. By requiring the
Secretary of Veterans Affairs to include information with the
certificate of eligibility for education benefits on how to request
information for counseling services and articulation agreements, we
better equip college-bound veterans to make responsible education
choices.
H.R. 5083, VA Appeals Modernization Act of 2016
The VFW has actively participated in a series of meetings with
other Veterans Service Organization (VSO) representatives and officials
of VA in an attempt to identify opportunities for improvement to the
current appeals process. We have worked in good faith to craft an
alternative process which might provide speedier decisions without
reducing rights and protections currently enjoyed by veterans. While
the VFW is supportive of the direction this legislation is taking the
appeals process, there are several areas that have not been fully
addressed. Solutions to these areas must be found to ensure VA can be
as efficient as possible and that veterans' rights are protected under
the new system.
Duty to Assist
The duty to assist claimants is well established by both regulation
and case law. If a claimant at any point in the process identifies new
evidence which is not of record, VA is obligated to assist the claimant
in obtaining it. While we all want to see all the evidence submitted at
the start of a claim, we understand that is not always possible. Newly
discovered service or medical records may point to other evidence which
must be obtained. New medical evidence may point to the need for an
additional examination.
We have two concerns about limiting the duty to assist at the Board
of Veterans Appeals (BVA). First, it is unclear what, if any, action is
required if a claimant submits new evidence during the appeal process,
either in documentary form or during a hearing. It is likely that
additional development may be required. However, this proposal does not
address how that is to be accomplished. Should the BVA remand the
appeal to the Veterans Benefit Administration (VBA) for development?
Should the appeal be dismissed so the evidence can be developed? Or
will the BVA make a decision based on the evidence in front of it,
assuming that if the appeal is denied the newly submitted evidence will
revert to VBA for additional development and decision? This last
alternative suggests a legal problem: if the BVA receives evidence
which in the center lane would trigger the duty to assist, and if the
BVA makes a decision on that evidence without ordering additional
development, would the veteran be precluded from bringing the claim
back to the center lane for development because the issue was decided
on that evidence?
Second, we are concerned that with a limited duty to assist
requirement at the BVA, appeals may not be remanded because the BVA
decides that the failures are ``harmless error'' and would not affect
the outcome of the appeal. While we agree that there is danger in
overdeveloping a record, there is also truth in the old adage, ``you
don't know what you don't know.''
Docket Flexibility
Currently the BVA is limited to only one docket. Under this
proposal, BVA would have to maintain at least two dockets in order to
have the flexibility to more efficiently work its cases. At the very
least, the BVA would need a separate docket for the fast, no hearing/
evidence lane so that those appeals are decided as rapidly as possible.
In addition, BVA would need at least a second docket for those appeals
requiring hearings. Finally, to achieve the greatest efficiencies, the
BVA should have a separate docket for appeals wherein the claimant
submitted additional evidence but did not request a hearing.
While it may seem a bit extreme, we suggest a total of five dockets
during transition. We believe the BVA needs the flexibility to use two
dockets during the resolution of its current backlog: one docket for
those wherein hearings are requested and a second docket for those
appeals without hearings. It needs three additional dockets under this
proposal: one docket for the fast appeals lane; one docket for the
hearing lane and one docket where evidence is submitted but no hearing
is requested.
New Evidence
Under current law, a claimant must submit new and material evidence
in order to reopen a claim after a final disallowance. We have long
believed that this creates an unnecessary burden on both VA and
veterans. In practical terms, VA is required to make a decision as to
whether evidence is both new and material. A Veterans Law Judge
recently estimated that between 10-20 percent of the appeals he reviews
each year are on the issue of whether evidence is new and material.
It is our belief that eliminating the new and material standard
would reduce non-substantive appeals by allowing regional office staff
to make a merits decision on the evidence of record. With merits
decisions, veterans have a better understanding of why the evidence
they submitted was not adequate, and any appeal is on the substance of
the decision, not on whether the evidence was new or material.
During our discussions with VA on an improved appeals process, we
have argued that while a new and relevant evidence standard is
potentially lower than the current new and material evidence
requirement, it still imposes a bar to merits decisions, creating
unnecessary work for regional office staff and unnecessary appeals to
the BVA.
The VFW proposes that the only requirement to obtain
reconsideration of a claim should be the submission of new evidence.
Higher Level Review
Under 38 CFR 3.2600, claimants may elect a review by a Decision
Review Officer (DRO).
This individual has the authority to conduct a de novo review of
the evidence, order additional development as needed, and make a
decision. No deference is given to the prior decision.
Under this proposal, a difference of opinion review is provided.
The reviewer need not be a DRO but can be anyone of a higher grade
detailed to make the review. It is likely that this reviewer will not
receive separate training and will have this assignment as an adjunct
duty.
The VFW believes that while retention of a difference of opinion
review is potentially beneficial to claimants, this change in authority
will ensure that less well qualified individuals will conduct these
reviews, decreasing quality and increasing the number of claimants
denied, thereby increasing appeals.
Further, VA intends to make these reviews based solely on the
evidence of record and preclude the authority to order additional
development except for duty to assist errors. This presents the same
problems for a claimant at a difference of opinion review as it does
for evidence submitted at a BVA hearing described above. Any evidence
submitted during a difference of opinion hearing would not be subject
to the duty to assist. Once a decision is made, how might a claimant
receive assistance by VA as required by the current duty to assist
provisions of the law? This problem is not resolved by the language of
this proposal. The VFW believes that the difference of opinion
reviewers should be able to remand a claim for additional development
based on evidence received during the difference of opinion review.
Claims in Different Lanes at the Same Time
One of the unresolved issues is whether claimants may have the same
issue in more than one lane simultaneously. Under the proposed appeals
process, it appears that the following scenario is not precluded:
A veteran files an appeal in the BVA fast lane (no evidence, no
hearing). Several months later, and before the BVA issues a decision,
the veteran obtains new evidence which is pertinent to the claim. Since
the veteran is precluded from submitting it to the BVA, he/she must
submit it to the claims lane for consideration and adjudication.
Depending on the nature of the evidence and the relative efficiency of
the regional office staff, it is possible that the veteran could
receive a favorable decision at the regional office prior to the
issuance of the BVA decision.
It is for this reason that we urge Congress to address the
permissibility of submitting evidence during the pendency of an appeal
and to which entity it should be submitted. The VFW suggests that if
the BVA cannot order a remand to properly develop evidence submitted
during an appeal, than claimants should have the right to submit that
evidence to the center lane while an appeal pends at the BVA.
Reports
The only way to know whether a process is working is by collecting
and studying the data generated by it. Noticeably absent from the
proposed legislation is any requirement that VA collect data, analyze
it and report to Congress and the public. At a minimum, Congress and
the veteran community might want to know the following on a regular
recurring basis:
Current backlog
I The total number of appeals pending
I The subtotals of pending appeals at each stage of processing
I The average days pending at each processing stage
I What actions were taken during the reporting period to
process and resolve pending appeals in each processing stage
I The oldest pending appeals at each stage and what action VA
has taken to process them.
Similar questions could be asked of VA concerning the new
claims and appeal process
I How many claims are pending in each lane
I Average timeliness for processing claims and supplemental
claims, by regional office
I Average timeliness for processing claims in the difference of
opinion lane, by regional office
I Average days pending of appeals in the fast lane at the BVA
I Average days pending of appeals in the hearing lane at the
BVA
I Average days pending of appeals in the evidence only lane at
the BVA
I Total number of IMO requests made by the BVA
I Total number of IMO requests approved by the Compensation
Service
And, of course,
I Appeals granted, remanded and denied under the current
appeals process
I Appeals granted, remanded and denied under the proposed
appeals process.
Court of Appeals for Veterans Claims
Veterans could be adversely effected by these changes because they
will be discouraged from seeking review by the Court of Appeals for
Veterans Claims (CAVC). As this proposal is currently written, the only
finality to the process occurs when one of three things happens:
1.The veteran becomes satisfied with a decision and stops seeking
additional benefits;
2. The veteran fails to submit new (or new and relevant) evidence
within the one year period following a VA decision; or
3.The veteran seeks review by the CAVC and is denied.
Under this proposal, the only possible time a veteran might seek
review by the CAVC of a decision is when he/she has completely
exhausted every possible piece of new evidence and has absolutely
nothing left to submit to VA. One could argue that this is good for
veterans and the BVA since it ensures that only those claimants who
have no more evidence to submit go to the CAVC. Fewer appeals mean
fewer remands.
It also means fewer precedent decisions instructing VA that their
practices do not conform to regulations and their regulations do not
conform to the law. The CAVC has provided a significant and useful
function throughout its nearly 30 years of existence--it has told VA
when it was doing things wrong.
This bill is intended to create a new claims and appeals process.
VA must write regulations which fill in the gaps and provide additional
guidance to both VA employees and veterans. Without judicial review,
there exists no entity which can review VA's actions and determine
whether they follow the law.
This proposal is designed to significantly reduce the impact of the
CAVC on claims processing with VA by discouraging veterans from
appealing to the Court. To ensure that veterans are not discouraged
from appealing to the CAVC, we urge Congress to amend this proposal to
allow claimants to submit new evidence within one year of a CAVC
decision.
This legislation, even if approved with VFW's recommendations, is
only one third of the solution. There are two elements missing from
this proposal:
A comprehensive plan by VA to competently and efficiently
address the current backlog of pending appeals; and,
An allocation of sufficient resources by Congress to
allow VA to execute its plan.
Plan to Reduce Current Backlog
VA must have a plan in place to process to completion the 450,000
pending appeals. It must be part of the proposed legislation for two
reasons:
VA will need additional latitude to process its current backlog of
appeals. Changes to claims and appeals processing which VA may wish to
consider include:
a.Allow the BVA greater flexibility in managing its workload.
Specifically, the BVA should be able to maintain a second docket to
allow faster processing of non-hearing appeals.
b.There are many cases pending BVA review which have additional
evidence submitted while the issue was on appeal but not considered by
VBA. In order to facilitate efficiencies, VA should be allowed to
screen and assign those appeals to regional office staff for the
purpose of determining whether the benefit may be granted. We suggest
that with the greater number of Rating Veterans Service Representatives
available to review those appeals, many could be granted without
further appellate review. In the case where a full grant of benefits is
not possible, the case can be returned to the BVA for further
consideration without loss of place in the docket.
c.In the alternative, VA could create a cadre of DRO's who are
tasked with pre-screening and deciding cases on appeal. They would have
the authority to grant any benefit allowed under the law. They could
also identify deficiencies in the record and order a remand. This
alternative would free up VLJ's and their staff attorneys to more
efficiently process other appeals pending before the BVA.
Staffing
The other fundamental fact which must be acknowledged is that
despite substantial increases in VA staffing over the past decade, VA
remains unable to adequately process all its work.
VA has received funding to perform only some of the functions
assigned to it. If Congress expects VA to fulfill all of its tasks in a
timely manner, it must provide the personnel to do so. Without
appropriate levels of staffing, VA will continue to fail and veterans
will continue to wait for decisions on their claims.
Today, VA has sufficient personnel to process claims to completion
in a reasonable time. It has sufficient staff to process appeals
expeditiously. However, it does not have sufficient staff to do both
functions simultaneously.
The resolution of this backlog requires Congress to adequately
staff both VBA and BVA to process the work it has before it.
VA has been working on a plan for maintaining its current claims
workload while attacking legacy appeals. Over the past several weeks,
VA, at the suggesting of the VFW, reviewed and modified its FTE
requirements to attach the legacy workload. While the new projections
are more realistic, it remains to be seen whether VA's estimate is
sufficient to complete this project by 2022. However, we do know this:
allocation of fewer resources by Congress will guarantee that some,
perhaps many appellants will wait until 2025 or longer to receive a
decision by BVA.
Recommendations:
Our recommendations for amending this proposal are summarized
below:
1.Require VA to devise a detailed and comprehensive plan for
processing its current work while also processing its current appeals
workload. This plan should include an estimate of total staffing
required and a projected completion date based on receipt of that
additional staff.
2.Congress should provide the additional staffing as required.
Failure to do so will ensure that appeals will continue to increase.
Congress must properly resource VA to ensure the backlog of appeals is
resolved quickly and efficiently.
3.Congress should provide BVA with the flexibility to establish an
additional docket to process its current workload.
4.Once a new claims and appeal process becomes effective, provide
the BVA with the flexibility to establish up to three additional
dockets to handle appeals.
5.Congress should allow VA eighteen months or longer to publish and
finalize regulations necessary to implement this proposal.
6.BVA should be required to remand to the center lane for
additional development any evidence submitted during the difference of
opinion or appeal process which triggers the duty to assist.
7.If Congress limits the duty to assist as shown in the current
version of this bill, it should allow the submission of new evidence in
the center claims lane while cases are pending in either the difference
of opinion or appeals lane.
8.The DRO position should be retained.
9.Congress should eliminate the new and material evidence
requirement found in 38 USC 5108 and require only new evidence in order
to reopen a claim.
10.Evidence required to file a supplemental claim should be new
evidence and not new and relevant evidence.
11.Congress should require VA to provide the reports outlined
earlier in this testimony and any other reports it deems appropriate.
12.Considering the critical role of the CAVC in the oversight of
VA's rules making and claims processing, we encourage Congress to
provide claimants with the opportunity to submit new evidence within
one year of a CAVC decision.
H.R. 5162, Vet Connect Act of 2016
This legislation would lift the restriction on VA's ability to
share the health care records of certain veterans without written
consent from such veterans.
To protect veterans diagnosed with drug abuse, alcoholism, the
human immunodeficiency virus, and sickle cell anemia from
discrimination based on their health conditions, Congress requires VA
to receive written consent from such veterans before sharing their
health information with non-Department health care professionals.
However, legislation that has been enacted since this restriction was
created now protects veterans from discrimination based on their health
conditions. That is why the VFW supports efforts to streamline VA's
ability to share veterans' health care information with non-Department
health care professionals who provide care to such veterans through
VA's community care programs.
Proper sharing or exchange of veterans' medical records is
imperative if VA is to properly coordinate care for veterans who
receive non-VA care through the Choice Program or other community care
programs. While we understand patient privacy concerns that have been
raised in the past, VA must be authorized to make all health
information available to community providers who deliver care to our
nation's veterans.
H.R. 5166, the Working to Integrate Networks Guaranteeing Members
Access Now Act
The VFW does not support this legislation at this time. While we
agree there should be a more efficient way for congressional
constituent services staff to assist veterans, there are current
controls in place to limit access to veterans' records, and those
controls must be preserved under any expansion of access.
The VFW would insist that a release must still be signed before any
access to records can be granted. There must be a limitation on access
to only veterans who are constituents of the member of Congress. When a
Power of Attorney (POA) is held by an individual or organization, that
POA must be notified of the request. Any ``accredited'' congressional
employee must be viewed as an ``agent'' regardless of that employee's
status with a State Bar Association. This will ensure the employee's
certification includes passing a certification test. Currently, VA
provides background checks at no cost to Veterans Service
Organizations. If this will also be the case with accredited employees,
funding must be provided. If the intent is for congressional offices to
reimburse VA for the cost of such background checks, it must be
explicitly defined in legislation.
Under current law, there are level-sensitive restrictions on most
VA employees, preventing them from viewing certain files without
expressed consent. These restrictions must extend to these accredited
employees as well. Lastly, VA must have a tracking system to ensure
these employees are only assisting their congressional constituents.
Additionally, there must be a consequence for congressional staff found
to have abused any aspect of their authority.
H.R. 5392, No Veterans Crisis Line Call Should Go Unanswered Act
The VFW supports this legislation which would require VA to develop
a quality assurance plan to ensure the Veterans Crisis Line operates
according to industry standards.
The VFW was disturbed to learn that many vulnerable veterans who
took the important first step towards addressing suicidal thoughts by
calling the Veteran Crisis Lines (VCL) were sent to voicemail.
According to VA, these phone lines are expected to be answered 24/7 to
ensure veterans, service members and their families are able to seek
assistance whenever they need it.
In 2015, the VA Office of Inspector General (OIG) reported that the
VCL received nearly 1,600 phone calls per day; however, the daily
average of answered phone calls was only 1,400. The VFW is glad to see
that VA has made a number of improvements to the call center in
Canandaigua, NY to address the issues highlighted in the OIG's report.
VA now provides VCL employees with additional training and employee
wellness programs to ensure they are ready and able to assist veterans
contemplating suicide, significantly reduced reliance on backup call
centers and redesigned call center layout for maximum efficiency. While
VA's progress is commendable, the VFW supports continued efforts to
ensure veterans who turn to VA during their time of need receive the
care and service they need.
H.R. 5407, Amends title 38, United States Code, to direct the Secretary
of Labor to prioritize the provision of services to homeless
veterans with dependent children in carrying out homeless veterans
reintegration programs.
No veteran deserves to live on the streets of the nation they
defended, and their children most certainly should not be forced to
either.
That is why the VFW supports this legislation, which would
prioritize homeless veterans with dependent children for reintegration
programs. This legislation would also require a more thorough analysis
of data collected on those using these programs so gaps in access can
be identified and addressed.
The VFW conducted a survey of women veterans. In this survey of
1,922 female veterans, 78 reported being homeless. Of these women, 70
percent of respondents specified that they have children, and that
having children significantly impacted their ability to receive health
care, due to the lack of access to affordable child care. Only 10
percent of women who are not homeless said their children impact their
ability to utilize VA benefits, yet 32 percent of women who are
homeless said it has an impact. Without child care they struggle to
make their VA appointments.
By requiring more extensive reporting and analysis of data
regarding homeless veterans who use reintegration programs will allow
VA and Congress to more thoroughly understand the obstacles, barriers
and needs these veterans face. This pilot program will make it easier
to properly treat and prevent veteran homelessness in the future.
H.R. 5416, A bill to amend title 38, U.S.C., to expand burial benefits
for veterans who die while receiving hospital care or medical
services under the Veterans Choice Program.
Under current law, VA will assist in paying funeral and burial cost
of certain veterans. One of these provisions requires VA to assist in
paying funeral expenses when a veteran dies in a VA facility. This
includes veterans who are receiving care under section 1703 of title
38, U.S.C. However, current law does not allow for VA to provide this
benefit if a veterans dies while under the care of the Choice Act.
This bill will allow VA to extend this benefit to veterans who
receive care under the Choice Act. The VFW fully supports this bill.
H.R. 5420, A bill to authorize the American Battle Monuments Commission
to acquire, operate and maintain the Lafayette Excadrille Memorial
in Marne-la-Coquette, France.
The Lafayette Excadrille Memorial was built to memorialize U.S.
pilots who flew combat missions with the French military prior to U.S.
entry into WWI. Over the years, the memorial fell into a state of
disrepair. A foundation was formed to restore the memorial. At that
time the American Battle Monuments Commission (ABMC) provided $2.1
million to the project.
To ensure the memorial receives the care and recognition it
deserves, the VFW supports this bill, which calls for the monument to
be put under the care of the AMBC.
Military Residency Choice Act
The VFW supports this legislation that would provide military
spouses the option of choosing the same residency status as their
spouse.
Spouses of our service members are faced with the difficulty of
constantly moving to meet the demands of their spouse's military
service. Protecting spouses of our military from losing residency in
their home-of-record, while also allowing them to elect to have the
same residency as their partner will greatly ease some of the stressors
military families face. It will also make it easier for them to file
taxes and vote.
Draft Legislation to improve the recruitment of physicians in the
Department of Veterans Affairs
The VFW supports this draft legislation, which would authorize VA
to recruit medical professionals before completing their residency
programs.
With more than 120,000 medical trainees receiving their clinical
training in VA medical facilities every year, VA is the largest
provider of education and training for health care professionals in the
country. Unfortunately, VA is currently prohibited from recruiting
medical professionals receiving training in its medical facilities
until they complete their residency. By that time VA is competing with
private sector health care systems that are able to hire new health
care professionals sooner and pay them more.
The VFW strongly believes that VA must have the tools to quickly
recruit a high performing health care workforce. This includes
providing VA the proper authority to recruit health care providers
before they complete their residency programs. This legislation would
rightfully authorize VA to offer health care providers undergoing the
final stages of their training a conditional offer to ensure they can
consider VA as a viable option after completing their training.
Mr. Chairman, this concludes my testimony, and I look forward to
any questions you or the Committee may have.
Information Required by Rule XI2(g)(4) of the House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, the VFW
has not received any federal grants in Fiscal Year 2016, nor has it
received any federal grants in the two previous Fiscal Years.
The VFW has not received payments or contracts from any foreign
governments in the current year or preceding two calendar years.
Prepared Statement of Paul R. Varela
Mr. Chairman and Members of the Committee:
Thank you for inviting the DAV (Disabled American Veterans) to
testify at this legislative hearing of the House Veterans' Affairs
Committee. As you know, DAV is a non-profit veterans service
organization comprised of 1.3 million wartime service-disabled veterans
that is dedicated to a single purpose: empowering veterans to lead
high-quality lives with respect and dignity.
DAV is pleased to be here today to present our views on the bills
under consideration by the Committee.
H.R. 3216, Veterans Emergency Treatment Act
This measure seeks to apply the statutory requirements of the
Emergency Treatment and Labor Act (EMTALA) to emergency care furnished
by the VA to enrolled veterans who arrive at the emergency department
of a VA medical facility and indicate an emergency condition exists.
Specifically, the bill would require a VA health care facility to
conduct a medical examination of an enrolled veteran to determine if an
emergency medical condition exists; if such condition exists, the VA
facility must either stabilize the patient or comply with the statutory
requirements of a proper transfer; and if an emergency medical
condition exists and has not been stabilized, the facility may not
transfer the patient unless the patient, after being made aware of the
risks, makes a transfer request in writing or a physician certifies
that the medical benefits of a transfer outweigh the risks.
DAV previously testified in February 2016 before the Subcommittee
on Health urging consideration be given to use the Emergency Medical
Treatment and Labor Act and we thank the sponsor for its introduction
and the Committee for its consideration.
Because of the high prevalence of mental and behavioral challenges
in the veteran patient population, we ask the Committee consider
strengthening this bill to include behavioral conditions in defining
``emergency medical condition,'' so that the definition of an emergency
condition for VA purposes would be ``a medical or behavioral condition
manifesting itself by acute symptoms of sufficient severity (including
severe pain) such that the absence of immediate medical attention could
reasonably be expected to result in..'' Furthermore, we recommend the
Committee consider conforming title 38, United States Code, section
1725(f)(1) to these new requirements should this bill become law.
With the recommended modifications above, DAV would strongly
support this legislation based on DAV resolutions 103 (enhance VA
mental health programs), 104 (enhance medical services for women
veterans) and 125 (integrate emergency care as part of VA's medical
benefits package).
H.R. 4150, Department of Veterans Affairs Emergency Medical Staffing
Recruitment and Retention Act
This bill would authorize VA to arrange flexible physician and
physician assistant work schedules to be more or less than 80 hours in
a biweekly pay period if the total of such employees' hours of
employment in a calendar year do not exceed 2,080 hours per individual.
The 80-hour work week limit required by federal law is adversely
affecting VA's ability to hire emergency medicine physicians and
hospitalists. There are no private sector health care systems that have
this kind of 80-hour week requirement.
Emergency medicine physicians and hospitalists specialize in the
care of patients in the hospital, often working irregular work
schedules to accommodate the need for continuity of efficient hospital
care. This change would accommodate the unusual work schedule
requirements for emergency medicine physicians and align VA practices
with the private sector, facilitating the recruitment, retention of
emergency physicians and hospitalist physicians at VA medical centers.
DAV has received no resolution on this specific issue but would not
oppose the bill's favorable consideration due to its beneficial nature.
H.R. 4764, Puppies Assisting Wounded Servicemembers (PAWS) Act of 2016
This bill if enacted would create a five-year pilot program to pair
eligible veterans suffering from the most severe levels of post-
traumatic stress with service dogs, including the provision of VA-
funded veterinary insurance. Veterans participating in this program
would need to complete evidence-based treatment but remain
significantly symptomatic as evidenced by their Global Assessment of
Functioning score. Veterans enrolled in the program would be referred
to an accredited dog assistance organization to be paired with a
service dog. Training for the dog would be paid by VA not to exceed
$27,000 per dog. Participating veterans must see a VA primary care or
mental health care provider at least quarterly. At the conclusion of
the five-year program, the Government Accountability Office would be
required to conduct a study to evaluate the effectiveness of the
program and impact on health outcomes.
DAV recognizes that trained service animals can play an important
role in maintaining functionality and promoting veterans' recovery,
maximum independence and improve their quality of life. We also
recognize service dogs can be instrumental in improving symptoms
associated with post-deployment mental health problems, including PTSD.
We recognize this pilot program could be of benefit to veterans
suffering from post-deployment mental health struggles, including PTSD,
and are supportive of non-traditional therapies and expanded treatment
options for veterans.
DAV resolution 221, adopted at our most recent convention, calls
for VA to complete its plan to conduct thorough research and expansion
of ongoing model programs to determine the most efficacious use of
guide and service dogs in defined populations, in particular veterans
with mental health conditions, and to broadly publish the results of
that research. We are pleased to offer our support of the intent his
bill; however, we are concerned with the $10 million offset for fiscal
years 2017-2022 from VA's department of Human Resources.
It is important to be mindful of the difficulties facing VA as it
seeks to fill vacancies throughout the health care system. Human
Resources must have the resources it needs to attract, train, and hire
health care professionals on all levels. We are concerned that funds
from VA Human Resources to support this pilot program could impede
necessary modernization of this department diminish the effectiveness
of these programs.
H.R. 5047, Protecting Veterans' Educational Choice Act of 2016 (Hice)
This bill would direct the Secretary of Veterans Affairs and the
Secretary of Labor to provide information to veterans and members of
the Armed Forces about articulation agreements between institutions of
higher learning.
There are currently nearly one million student veterans using their
Post-9/11 GI Bill benefits to pursue their educations, and that number
is only expected to increase over the next several years. Despite this
generous benefit, many veterans still end up having to take out student
loans to cover the full cost of their education. In many cases, this is
due to situations where veterans are unaware that credits earned at one
institution of higher learning will not transfer to another school
until after they are in the transfer process and have already expended
a significant portion of their Post-9/11 GI Bill benefits.
This bill would require the VA to include information about the
educational services available to all veterans seeking to use their
Post-9/11 GI Bill benefits. In addition, H.R. 5047 would also require
VA counselors who provide educational or vocational counseling to
inform the veterans about the various agreements that exist between
schools that govern the transfer of credits.
This information concerning articulation agreements could serve
those seeking higher education by removing unnecessary time spent on
void classes. Knowledge of articulation agreements would alleviate
potential delays pursuing courses that do not transfer.
DAV has received no resolution from our members concerning this
bill, but we would not oppose its passage.
H.R. 5083, VA Appeals Modernization Act of 2016 (Titus)
Mr. Chairman, H.R. 5083, the VA Appeals Modernization Act of 2016
comes as a result of a collaborative effort among VBA, the Board and 11
major stakeholder organizations-including DAV-that assist veterans with
their appeals. For the past three months, this workgroup has been
meeting intensively with the goal of developing a new structure and
system for appealing claims decisions. However, this recent effort
actually builds on that of a very similar workgroup involving VSOs,
VBA, and the Board that began meeting over two years ago. That
workgroup spent over six months examining the cause of and possible
solutions to the rising backlog of appeals. At that time, the claims
backlog was finally beginning to drop after years of transformation
efforts.
The signature achievement of that first VSO-Department of Veterans
Affairs (VA) workgroup was the development of and widespread support
for the ``fully developed appeals'' (FDA) proposal. Under the FDA
proposal, veterans could have their appeals routed directly to the
Board by agreeing to eliminate several processing steps at the regional
office level, forego hearings, and take greater responsibility for
developing evidence necessary to properly consider their appeals. The
FDA was modeled on a similar claims initiative - the ``fully developed
claims'' (FDC) program - which has contributed to dramatic improvement
in claims processing times at VBA.
As a result of that VSO-VA collaboration, legislation was drafted
and introduced by Rep. O'Rourke and Chairman Miller in the House and
approved as part of H.R. 677. Senate legislation was also introduced by
Senators Sullivan, Casey, Heller and Tester (S. 2473) and has been
approved by the Senate Veterans' Affairs Committee as part of the
Veterans First Act omnibus bill. We want to thank everyone involved for
your efforts in advancing FDA legislation.
As you are aware, the FDA's premise of eliminating certain appeals
processing steps at VBA while providing a quicker route for appeals to
the Board has essentially been incorporated into this comprehensive
appeals reform bill. Though not as far-reaching as this proposed
legislation, the FDA pilot program could reduce the time some veterans
wait for their appeals decisions by up to 1,000 days, while lowering
the workload on both VBA and the Board.
Building on the work of the earlier VSO-VA workgroup, and
particularly its FDA proposal, VA convened the latest workgroup in
March of this year to examine whether agreement could be reached on
more comprehensive and systemic change. Over a very compressed but
intensive couple of months, that included a number of closed-door, all-
day sessions, the workgroup was able to reach general consensus on
principles, provisions and ultimately the legislation before us. DAV
and most of the other stakeholders support moving forward with this
appeals reform legislation, notwithstanding some remaining issues yet
to be addressed.
We believe that if all stakeholders continue working together - in
a good faith partnership with full transparency - we have a good chance
of resolving the remaining issues and achieving an historic reform this
year. However, as we have long said, the most important principle for
reforming the claims process was getting the decision right the first
time; we must also ensure that this appeals reform legislation is done
right the first time. Further changes to any part of H.R. 5083 could
affect our ultimate support for the bill; therefore, we urge this
Committee and VA to continue working with DAV and other stakeholders in
a transparent and collaborative manner.
With that in mind, while the latest workgroup was initially focused
on ways to improve the Board's ability and capacity to process appeals,
from the outset we realized that appeal reforms could not be fully
successful unless we simultaneously looked at improving the front end
of the process, beginning with claims' decisions. One of the issues
that development of the FDA proposal exposed was the importance of
strengthening decision notification letters provided by VBA in order to
improve decisions about appeals options. A clear and complete
explanation of why a claim was denied is key to veterans making sound
choices about if and how to appeal an adverse decision. Therefore, a
fundamental feature of the new appeals process must also ensure that
claims' decision notification letters are adequate to properly inform
the veteran.
The workgroup agreed that decision notification letters must be
clear, easy to understand and easy to navigate. The notice letter must
convey not only VA's rationale for reaching its determination, but also
the options available to claimants after receipt of the decision. H.R.
5083 would require that in addition to an explanation for how the
veteran can have the decision reviewed or appealed, all decision
notification letters must contain the following information to help
them in determining whether, when, where and how to appeal an adverse
decision:
(1) A list of the issues adjudicated;
(2) A summary of the evidence considered;
(3) A summary of applicable laws and regulations;
(4) Identification of findings favorable to the claimant;
(5) Identification of elements that were not satisfied leading to
the denial;
(6) An explanation of how to obtain or access evidence used in
making the decision; and
(7) If applicable, identification of the criteria that must be
satisfied to grant service connection or the next higher level of
compensation for the benefit sought.
DAV recommends that in order to better inform veterans about this
new notification provision and the redesigned claims and appeals
process being proposed, the legislation should include a requirement
that VA create an online tutorial and utilize other web or social media
tools to enhance veterans' understanding of how claims decisions are
made and how to choose the best options available in the redesigned
appeals system.
The Current Appeals System
In order to evaluate the new appeals framework proposed in H.R.
5083, it must be compared to the existing system. Currently, if a
veteran is not satisfied with their claims decision, they may appeal
the decision by completing a Notice of Disagreement (NOD) form which
provides them two options: a de novo review or a traditional appeal to
the Board of Veterans Appeals. The de novo option takes place locally
within the VARO, and is performed by a Decision Review Officer. The de
novo process allows the introduction of new evidence and a hearing,
requires VBA to fulfill its ``duty to assist'' throughout the process,
and provides a full de novo review of the claim. If benefits are
granted in the de novo process, the effective date for the award would
be the date of the claim, if the facts found support entitlement from
that effective date.
The second NOD option is to formally appeal to the Board. When a
veteran chooses this option, the VARO must prepare a Statement of Case
(SOC) for the veteran and then the veteran must complete the VA Form 9
specifying the issues they are appealing and the reasons supporting
their appeal. If new evidence is submitted after the NOD requiring
development, a Supplemental Statement of Case (SSOC) may also be
issued. A veteran who elected a de novo review but who was not awarded
the full benefits sought may also continue their appeal to the Board as
described above. As part of the Board process, appellants have the
opportunity to request a hearing and introduce new evidence at any
time. Throughout its consideration of an appeal, the Board is required
to comply with VA's ``duty to assist'' and performs a de novo review of
all the evidence submitted, before and after the date of the NOD
filing.
If the Board does not grant the full benefit sought, the veteran's
primary recourse would then be to appeal to the Court of Appeals for
Veterans Claims (``Court''), which can take many more years before
final disposition. Alternatively, the veteran at any time could file a
new claim with new evidence, which could be processed under the FDC
program in less than 125 days, however the effective date for this
claim would be the new filing date, potentially requiring the veteran
to forfeit months or years of entitlement to earned benefits.
In many cases the Board will remand the claim back to VBA for
either procedural errors (i.e. - ``duty to assist'' errors) or for the
development of new or existing evidence needed to make a final
determination. More than half of all pending appeals will be remanded
at least once under the current system, lengthening the time veterans
wait for final resolution of their appeals and contributing to the
growing backlog of pending appeals.
The current system allows veterans unlimited opportunities to
submit new evidence to support their appeals, requires that VA fulfill
its ``duty to assist'' to veterans by securing and developing all
potential evidence but requires that the formal appeal be maintained in
order to protect the effective date of the original claim. While these
features help ensure that veterans rights are protected, they have
evolved into a system that incentivizes many veterans to file and
maintain formal appeals because there is no other option available to
protect their earliest effective dates, which could affect thousands of
dollars in earned benefits.
A New Framework for Veterans' Claims and Appeals
Understanding the benefits and weaknesses of the current system,
the workgroup developed a new framework that could protect the due
process rights of veterans while creating multiple options to receive
favorable decisions more quickly. A critical factor was developing a
system that would allow veterans to protect their earliest effective
dates while allowing them opportunities to introduce new evidence,
without having to be locked into the long and arduous formal appeals
process at the Board.
In general, the framework embodied in H.R. 5083 would have three
main options for veterans who disagree with their claims decision and
want to challenge VBA's determination. Veterans must elect one of these
three options within one year of the claims decision.
First, there will be an option for readjudication and supplemental
claims when there is new evidence submitted or a hearing requested.
Second, there will be an option for a local, higher-level review of the
original claims decision based on the same evidence at the time of the
decision. Third, there will be an option to pursue a formal appeal to
the Board - with or without new evidence or a hearing.
The central dynamic of this new system is that a veteran who
receives an unfavorable decision from one of these three main options
may then pursue one of the other two appeals options. As long as the
veteran continuously pursues a new appeals option within one year of
the last decision, they would be able to preserve their earliest
effective date, if the facts so warrant. Each of these options, or
``lanes'' as some call them, have different advantages that allow
veterans to elect what they and their representatives believe will
provide the quickest and most accurate decision on their appeal.
For the first option - readjudication and supplemental claims -
veterans would be able to request a hearing and submit new evidence
that would be considered in the first instance at the VARO. VA's full
``duty to assist'' would apply during readjudication, to include
development of both public and private evidence. The readjudication
would be a de novo review of all the evidence submitted both prior to
and subsequent to the claims decisions until the readjudication
decision was issued. If the veteran was not satisfied with the new
decision, they could then elect one of the other two options to
continue pursuing their appeal.
For the second option - the higher-level review - the veteran could
choose to have the review done at the same local VARO that made the
claim decision, or at another VARO, which would be facilitated by VBA's
electronic claims files and the National Work Queue's ability to
instantly distribute work to any VARO. The veteran would not have the
option to introduce any new evidence nor have a hearing with the
higher-level reviewer, although VBA has indicated it will allow
veterans' representatives to have informal conferences with the
reviewer in order for them to point out errors of fact or law. The
review and decision would be de novo and a simple difference of opinion
by the higher-level reviewer would be enough to overturn the original
decision. If the veteran was not satisfied with the new decision, they
could then elect one of the other two options to pursue resolution of
their issue. .
For this higher-level review, the duty to assist would not apply
since it is limited to the evidence of record used to make the original
claims decision. If a duty to assist error is discovered that occurred
prior to the original decision, unless the claim can be granted in
full, the claim would be sent back to the VARO to correct any errors
and readjudicate the claim. If the veteran was not satisfied with that
new decision, they would still have all three options to resolve their
issue.
Mr. Chairman, we are pleased that H.R. 5083 contains one additional
change that we have suggested and VA has agreed to include, but that is
not in the Senate companion draft. H.R. 5083 has language to clarify
that all higher-level reviews would be done as de novo reviews, without
the veteran having to affirmatively elect a de novo review option. We
strongly recommend this provision be maintained in any legislation
moving forward.
These first two options take place inside VAROs and cover much of
the work that is done in the current de novo process, although it would
be separated into two different lanes: one with and one without new
evidence and hearings. VA has also proposed eliminating the position of
Decision Review Officers and reassigning these personnel to functions
that are appropriate to their level of experience and expertise, such
as higher-level reviewers.
For the third option - Board review - there would be two separate
dockets for veterans to choose from: an ``expedited review'' that
allows no hearings and no new evidence to be introduced; and a more
traditional appeal that allows both new evidence and hearings. Both of
these Board lanes would have no duty to assist obligation to develop
any evidence submitted. For both of these dockets, the appeal would be
routed directly to the Board and there would no longer be SOCs, SSOCs
or Form 9s completed by VBA or the veteran.
The workgroup established a goal of having ``expedited review''
appeals resolved within one year, but there was no similar goal for the
more traditional appeals docket. While eliminating introduction of
evidence and hearings would naturally make the Board's review quicker,
it is important that sufficient resources be allocated to the
traditional appeal lane at the Board to ensure a sense of equity
between the two dockets. We would recommend that language be added to
H.R. 5083 to ensure the Board does not inequitably allocate resources
to the ``expedited review'' lane.
For the traditional Board appeal lane, veterans could choose either
a video conference hearing or an in-person hearing at the Board's
Washington, DC offices; there would no longer be travel hearing options
offered to veterans. New evidence would be allowed but limited to
specific timeframes: if a hearing is elected, new evidence could be
submitted at the hearing or for 90 days following the hearing; if no
hearing is elected, new evidence could be submitted with the filing of
the NOD or for 90 days thereafter. If the veteran was not satisfied
with the Board's decision, they could elect one of the other two VBA
lane options, and if filed within one year of the Board's decision,
they would continue to preserve their earliest effective date. The new
framework would impose no limits on the number of times a veteran could
choose one of these three options, and as long as they properly elected
a new one within a year of the prior decision, they would continue to
protect their earliest effective date.
If the Board discovers that a ``duty to assist'' error was made
prior to the original claim decision, unless the claim can be granted
in full, the Board would remand the case back to VBA for them to
correct the errors and readjudicate the claim. Again, if the veteran
was not satisfied with the new VBA claim decision, they could choose
from one of the three options available to them, and as long as they
properly make the election within one year of the decision, they would
continue to preserve their earliest effective date.
One additional option becomes available after a Board decision: the
appellant would also have the opportunity to file a Notice of Appeal to
the Court of Appeals for Veterans Claims (``Court'') within 120 days of
the Board's decision, which is the current practice today. Decisions of
the Court would be final.
H.R. 5083 would also amend existing statute to change the ``new and
material evidence'' standard to a ``new and relevant evidence''
standard, as it relates to readjudication and supplemental claims.
Under current law, a claim can only be reopened if ``new'' and
``material'' evidence is presented, which was designed to prevent
unnecessary work reviewing immaterial evidence that would not affect
the outcome of a claim. However, in practice this standard has often
had the opposite effect, requiring VBA to make a ``new and material''
determination, which can then be appealed to the Board, often requiring
a hearing, and adding years of delay before getting to the core issue
of whether the evidence would actually change the claim decision.
This provision would replace the term ``material'' with the term
``relevant,'' and add a definition of ``relevant evidence'' as
``evidence that tends to prove or disprove a matter in issue.'' While
we understand the intention of VBA in trying to deter submission of
unrelated evidence, we believe that this revised standard would not be
any more effective in preventing submission of truly unrelated and
irrelevant evidence. Instead, creating a new and untested standard
could result in additional appeals on procedure before the substance
was adjudicated, and then it, too, could be appealed.
For this reason, DAV and others involved in the first appeals
workgroup had discussed revising this standard by amending section 5108
of title 38, United States Code, to require VBA to review all evidence
submitted in order to directly address the substance of the issue
rather than be required to first clear a procedural hurdle. The
workgroup considered changing section 5108 to read as follows:
Sec. 5108 Evidence presented for disallowed claims
If evidence is presented with respect to a claim which has been
disallowed that adds to or changes the facts as previously found by the
Secretary, the Secretary shall develop or adjudicate the claim as
appropriate.
For truly unrelated evidence, the determination that such evidence
does not ``add to or change the facts'' underlying the claim decision
should not require any more time than a determination of whether such
evidence is new or material. Thus, we recommend the Committee consider
incorporating this alternative approach as an amendment to the bill.
H.R. 5083 also includes an amendment to section 5104A to require
that any finding made during the claims or appeals process that is
favorable to the claimant would be binding on all subsequent
adjudicators within the Department, unless clear and convincing
evidence is shown to the contrary to rebut such favorable finding. In
the new structure in which appeals can move back and forth from the
Board to VBA, veterans must be reassured that favorable findings cannot
be easily overturned by a different adjudicator or reviewer during this
process. Thus, we strongly support this section.
Overall the new framework embodied in H.R. 5083 could provide
veterans with multiple options and paths to resolve their issues more
quickly, while preserving their earliest effective dates to receive
their full entitlement to benefits. The structure would allow veterans
quicker ``closed record'' reviews at both VBA and the Board, but if
they become aware that additional evidence was needed to satisfy their
claim, they would retain the right to next seek introduction of new
evidence or a hearing at either VBA or the Board. If implemented and
administered as envisioned by the workgroup, this new appeals system
could be more flexible and responsive to the unique circumstances of
each veteran's claim and appeal, leading to better outcomes for many
veterans.
Remaining Issues and Questions Related to Appeals Reform Legislation
Over the past several weeks, DAV and other VSO stakeholders have
continued to work with the Board and VBA to resolve and clarify a
number of issues, further improving the proposed new appeals structure.
While we believe H.R. 5083 should be moved forward in the legislative
process, there are still some critical issues that need to be further
explored to ensure that there are no unintended negative consequences
for veterans.
One of the most critical questions is how the introduction of new
evidence will be treated by VBA and the Board, and how ``duty to
assist'' requirements will apply. For the higher-level review, no new
evidence is allowed; however, there is an informal opportunity for the
veteran's representative to conference with the reviewer to point out
errors. If during this conference, the representative identifies
evidence not yet submitted as part of their discussion, how will the
higher-level reviewer acknowledge or treat this information? Will they
refer the claim back to the readjudication option as a supplemental
claim, indicating there is evidence that needs to be developed? Will
they inform the representative or the veteran directly that if there is
new evidence that may affect the decision, the veteran should file a
supplemental claim for readjudication to present that evidence directly
or through a hearing?
Similarly, there are questions that need to be answered about how
the Board will handle new evidence introduced outside the limited
opportunities allowed at and 90 days after the filing of an NOD or a
Board hearing. What happens if a veteran elects the Board option with a
hearing and submits new evidence to the Board prior to the hearing
date: will the Board hold the evidence until the hearing and then
consider it, or will the Board return or ignore the evidence?
In addition, since there is no ``duty to assist'' requirement after
the NOD filing, what if evidence properly submitted indicates that
additional evidence exists which could affect the decision: will the
Board ignore that evidence or inform the veteran that there was
additional evidence that could have changed the decision but that it
was not sought nor considered? Will or should the Board remand the
appeal back to the VBA for readjudication to allow for full development
of all evidence? In order to protect the veteran's due process rights,
we would recommend that these uncertainties be resolved before final
legislation is enacted into law, preferably through clear and
unambiguous statutory language.
There are also two critical operational concerns that will effect
whether the new appeals structure can be properly implemented as
envisioned. First, the Board and VBA must develop and implement a
realistic plan to address the almost 450,000 appeals currently pending,
most of which are still within VBA's jurisdiction. Until these pending
appeals are properly resolved, no new appeals structure or system can
expect to be successful. While we have been in discussion with VBA and
the Board about how best to address these legacy appeals, we have yet
to agree on formal plans to deal with its current backlog of appeals.
We need Congress to perform aggressive oversight of this process to
ensure a proper outcome.
Furthermore, since appeals that are filed today can take years to
be completed, some will last more than a decade, how will VBA and the
Board operate two different appeals systems simultaneously, each with
separate rules for treating evidence and the ``duty to assist?'' How
will new employees be trained under both the old and new systems so
that there is efficient administration of these two parallel appeals
systems? How will the Court view the existence of two different
standards for critical matters such as the ``duty to assist'' veterans?
We would recommend that these questions be thoroughly considered by the
Committee and discussed with VSOs to avoid future problems.
Finally, as mentioned above, the most critical factor in the rise
of the current backlog of pending appeals was the lack of sufficient
resources to meet the workload. Similarly, unless VBA and the Board
request and are provided adequate resources to meet staffing,
infrastructure and IT requirements, no new appeals reform will be
successful in the long run. As VBA's productivity continues to
increase, the volume of processed claims will also continue to rise,
which has historically been steady at a rate of 10-11 percent of claims
decisions. In addition, the new claims and appeals framework will
likely increase the number of supplemental claims filed significantly.
We are encouraged that VA has indicated a need for greater resources
for both VBA and the Board in order to make this new appeals system
successful; however, too often in the past funding for new initiatives
has waned over time. We would urge the Committee to seriously consider
proper funding levels are appropriated as this legislation moves
forward.
Mr. Chairman, H.R. 5083 represents a true collaboration between VA,
VSOs and other key stakeholders in the appeals process. Building on the
work first begun two years ago, tremendous progress has been made this
year culminating in this appeals reform legislation. There are still a
number of improvements and clarifications that must be made to H.R.
5083 but we remain committed to working with Congress, VA and other
stakeholders to resolve them as soon as feasible. Working together, we
are hopeful that the Senate and House will enact comprehensive appeals
reform legislation before the end of this year to provide veterans with
quicker favorable outcomes, while fully protecting their due process
rights.
H.R. 5162, Vet Connect Act of 2016 (O'Rourke)
Currently, title 38, United States Code, section 7332(b)(2)
prohibits VA from providing or sharing patient information relating to
drug abuse, alcoholism or alcohol abuse, infection with HIV or sickle
cell anemia (7332-protected information) with public or private health
care providers, including with Indian Health Service (IHS) health care
providers, providing care to the shared patient under normal treatment
situations without the prior signed, written consent of the patient.
Clearly current law places the restriction on this protected
information because discussing, diagnosing, and treating drug abuse,
alcoholism or alcohol abuse, infection with HIV or sickle cell anemia
are sensitive, private issues between a patient and his or her
provider. This privacy has been deemed particularly important because
any breach of privacy may result in stigmatization or discrimination
against such patients. Veteran patients who are concerned that their
health information will not be held private or secure may be
discouraged from seeking treatment for these conditions and may be
dissuaded from pursuing or adhering to recommended treatment regimens.
Despite these concerns, this measure would include a provision for
the disclosure of VA records of this protected information to a health
care provider in order to treat or provide care to a shared patient. It
is purported this restriction poses potential barriers to the
coordination and quality of care provided to veterans who are shared
patients with other public or private health care providers. In DAV's
judgement, a potential barrier is not a compelling interest to overcome
a patient's right to privacy.
As this Committee is aware, the protection of information under
section 7332 is not immune to all circumstances. In medical emergencies
VA is allowed to disclose such protected information'' to medical
personnel who have a need for information about a patient for the
purpose of treating a condition which poses an immediate threat to the
health of any individual and who requires immediate medical
supervision. The medical emergencies exception only extends to medical
personnel for the purpose of treating a condition that poses a certain
type of medical threat or emergency; it does not extend to treatment of
a patient in non-emergent situations.
It has been asserted that public and private health care providers
are often unable to obtain a signed, written consent from prior to
patient presenting for a care appointment, resulting in a delay in
treatment to the patient. In some cases the public or private health
care provider is not able to obtain a signed, written consent due to a
patient's lack of competency.
Veteran patients who are legally incompetent have the same right to
privacy enjoyed by veterans who are competent. To this end, the medical
community has been clear in that the patient deemed to lack capacity to
make reasoned medical decisions, a surrogate selected by the patient
would need to be enlisted to make decisions on the patient's behalf.
DAV understands and supports increased use and appropriate sharing
of health data; however veteran patients also want to be assured of the
privacy and security provided for protected information. We urge the
committee and the sponsor of this legislation strike a more balanced
policy between the competing aims of sharing data and protecting
privacy. We recommend such broad language be amended to affect only
shared patients and only for the purpose of completing a treatment plan
to which the veteran patient has agreed.
H.R. 5166, the Working to Integrate Networks Guaranteeing Member Access
Now Act
This bill would provide certain permanent Congressional employees
with read-only remote access to the electronic Veterans Benefits
Administration (VBA) claims records of veterans who are constituents of
Members. These employees would be prohibited from modifying any data,
processing, preparing or prosecuting of claims.
These designated Congressional staff members could utilize this
system to provide their constituents with information relevant to the
processing of their claims or appeals. Designated staff members would
require certification by the VA in order to access this system in the
same manner currently required for agents or attorneys under title 38,
United States Code. Any costs associated with gaining access to these
VA systems would be incurred by the particular Member of Congress whose
staff accessed these records.
DAV has no resolution relative to this issue, but would not oppose
passage of the legislation.
H.R. 5392, No Veterans Crisis Line Call Should Go Unanswered Act
If enacted, this bill would seek to improve the responsiveness and
performance within the Department of Veterans Affairs (VA) Veterans
Crisis Line, and its backup centers, by directing the Secretary to
establish a quality assurance process. Upon enactment of this bill the
Secretary would have 180 days to submit to Congress a quality assurance
process that outlines performance indicators and objectives to improve
the responsiveness in calls, texts, or other communications received by
the Veterans Crisis Line and backup call centers. Under this bill, the
crisis line and backup call centers would periodically be tested and
any noted deficiencies corrected.
DAV acknowledges the importance of ensuring that a call from a
veteran in crisis does not go unanswered, and we acknowledge the crisis
line as a successful component in VA's suicide prevention efforts.
However, only one month ago, DAV testified before this Committee that
despite the measurable success with answered calls, dispatched
emergency services and referrals to care, service problems were
identified earlier this year in a VA Inspector General report.
Specifically, complaints included some calls going unanswered, lack of
immediate assistance, delayed arrival of emergency services, and
difficulty using the call line during a crisis. We understand these
deficiencies have been corrected, but continued evaluation and program
improvement is needed. For these reasons, we are pleased that an
outside evaluation of the VA's mental health system is now underway, as
mandated by the Clay Hunt SAV Act, to be completed by the end of fiscal
year 2017. Going forward, these evaluations will be continued on an
annual basis.
VA has also taken steps to address the increase in demand for the
crisis line by increasing the number of responders to a total of 310
full time employee equivalents. On May 12, 2016, VA provided testimony
stating that, since January 1, 2016, 29 administrative personnel have
been brought on to augment specific areas such as analytics, knowledge
management, quality assurance, and training. While the crisis line is a
very important element to VA's suicide prevention efforts, the area of
crisis management needs more focus. When a veteran is experiencing a
mental health crisis and is asking for help, ready access to a mental
health specialist and/or specialized program is crucial. Other areas of
VA focus should include negative perceptions and concerns veterans may
have about VA care, and continuing challenges in scheduling
appointments. VA should utilize its peer specialists to follow up with
veterans waiting for care. According to VA, peer-to-peer interactions
have been extremely helpful to patients and treating clinicians.
H.R. 5407, to direct the Secretary of Labor to prioritize the provision
of services to homeless veterans with dependent children in carrying
out homeless veterans reintegration programs
If enacted, this bill would modify title 38, United States Code to
prioritize the provision of services to veterans who are homeless with
dependent children in carrying out homeless veterans' reintegration
programs. This bill also includes a Congressional reporting
requirement, not only to identify any gaps in services, safety and
shelter provided to homeless veterans with dependents, but also to
provide recommendations for improvements of discovered deficiencies.
DAV has not received a specific resolution that calls for
prioritization of services to homeless veterans with dependent
children; however, DAV Resolution 118 calls for the improvement of the
coordination of services of federal, state and local agencies, and
improved comprehensive housing and child care services, which allow our
support of the intent of this bill. Also, DAV's report, Women Veterans:
The Long Journey Home, identifies the need for VA to work with
community partners as it seeks to strengthen homeless veterans programs
and in its efforts to prevent veterans homelessness.
H.R. 5416, to expand burial benefits for veterans who die while
receiving hospital care or medical services under the Veterans Choice
Program of the Department of Veterans Affairs
This bill would add new eligibility criteria for VA burial
allowance for veterans who die while receiving hospital or medical care
under section 101 of the Veterans Choice and Accountability Act of 2014
(Choice).
Current law provides that when a veteran's death occurs in a non-VA
facility that has been authorized to provide hospital services, a death
will be treated as if it occurred in a VA facility for the purpose of a
burial or plot allowance. However, veterans receiving care and services
at non-VA facilities, under the Choice program are not currently
authorized this plot allowance.
This bill would bring parity between those veterans already covered
under law for non-VA care and those authorized for hospital and medical
care services under the Choice program.
DAV has not received a resolution regarding this issue, but would
not object to enactment of this legislation.
H.R. 5420, to authorize the American Battle Monuments Commission to
acquire, operate, and maintain the Lafayette Escadrille Memorial in
Marne-la-Coquette, France
This measure would allow the American Battle Monuments Commission
to acquire, operate, and maintain the Lafayette Escadrille Memorial,
located outside Paris, France in Marnes-la-Coquette-a memorial that
pays tribute to and is a final resting place for America's first combat
aviators.
DAV has received no resolution, and takes no position on this bill.
Draft Bill, Military Residency Choice Act
This measure would amend the Servicemembers Civil Relief Act to
authorize spouses of service members to elect to use the same residence
as the service members. This would ease tax preparation for spouses who
would accompany their service members on military duty assignments.
Under the 2003 Servicemembers Civil Relief Act, ``a servicemember
shall neither lose nor acquire a residence or domicile for purposes of
taxation with respect to the person, personal property, or income of
the servicemember by reason of being absent or present in any tax
jurisdiction of the United States solely in compliance with military
orders.'' This allowed the service member to establish a state of
residency during their career. Regardless of duty station, they
maintain the same state for tax and voting purposes as their state of
residency.
Many service members choose a state early in their career and
maintain that same state throughout their career. In 2009, the Military
Spouse Residency Relief Act (MSRRA) was signed into law, The MSRRA
amends the Servicemember Civil Relief Act to include the same
privileges to a military service member's spouse, provided that the
service member and the spouse choose residency in the same state for
tax purposes.
DAV has received no resolution, and takes no position on this bill.
This concludes my testimony, Mr. Chairman. DAV would be pleased to
respond to any questions from you or the Committee Members concerning
our views on these bills.
Prepared Statement of Carl Blake
Chairman Miller, Ranking Member Brown, and members of the
Committee, Paralyzed Veterans of America (PVA) would like to thank you
for the opportunity to present our views on the broad array of pending
legislation impacting the Department of Veterans Affairs (VA) that is
before you today. No group of veterans understand the full scope of
care provided by the VA better than PVA's members-veterans who have
incurred a spinal cord injury or disease. Most PVA members depend on VA
for 100 percent of their care. They are the most vulnerable when access
to health care, and other challenges, impact quality of care. These
important bills will help ensure that veterans receive timely, quality
health care and benefits services.
H.R. 3216, the ``Veterans Emergency Treatment Act''
PVA supports H.R. 3216, the ``Veterans Emergency Treatment Act.''
This legislation would clarify how VA provides care to veterans who
present at the hospital for treatment of a medical emergency. VA must
provide a medical screening examination to determine if an emergency
medical condition exists to any veteran who presents to a VA Emergency
Department seeking care. If an emergency medical condition exists, the
VA must provide appropriate care to treat the veteran, or if the
facility is unable to provide the care, transfer the veteran to a
facility that is able to properly care for the veteran. The bill
clarifies that the stipulations of the Emergency Treatment and Labor
Act (EMTLA) be required of VA as well. While most VA facilities do
unofficially adhere to the EMTLA practices, this bill would ensure it
throughout the Department. Further, it offers veterans an actionable
recourse if denied treatment from a facility.
H.R. 4150, the ``Department of Veterans Affairs Emergency Medical
Staffing Recruitment and Retention Act.''
PVA supports H.R. 4150, the ``Department of Veterans Affairs
Emergency Medical Staffing Recruitment and Retention Act.'' This
legislation would allow for flexibility and irregular shifts among
physicians that is required to meet the needs of patients receiving
emergency care. The Veterans Health Administration requires that full-
time employees work 80 hours per biweekly pay period. Yet the average
emergency physician works 12 hour shifts, making it difficult to have
an equal number of shifts for each week. This legislation would allow
for full-time status to be determined as more or less than 80 hours
biweekly as long as the total hours of employment do not exceed 2,080
hours in a calendar year. At a time when recruitment of providers has
never been more urgent or more difficult, such flexibility can only
serve as an attractive quality to prospective providers.
H.R. 4764, the ``Puppies Assisting Wounded Servicemembers (PAWS) Act of
2016.''
PVA understands the intent of H.R. 4764, the ``Puppies Assisting
Wounded Servicemembers (PAWS) Act of 2016,'' and we support the
provision of service animals to veterans who need them. If enacted,
this legislation would direct the VA to carry out a pilot program to
provide service dogs to certain veterans with severe post-traumatic
stress disorder (PTSD). PVA believes service animals are a successful
form of therapy for veterans battling PTSD and other mental health
conditions. Veterans with service dogs report improved emotional
regulation, sleep patterns, and a sense of personal safety. They also
experience reduced levels of anxiety and social isolation.
However, this bill as written does not appropriately reflect the
fact that the VA currently does not provide service animals to any
veteran directly. Service animals are provided to veterans by
organizations responsible for the training and provision of service
animals, not the VA. The VA currently bares no direct cost when it
comes to providing service animals. As it is, we are not aware of a
demonstrated need for VA to be the procurer of service animals.
Additionally, this bill would have the VA provide service dogs only to
veterans with PTSD, excluding veterans with other mental health
conditions and physical disabilities who would also benefit.
Currently, VA provides veterinary health insurance and other
ancillary benefits to service animals used for veterans with physical
disabilities. While this bill would make PTSD service dogs eligible for
existing benefits, (something VA currently has the authority to do) it
goes a step beyond by charging VA with procuring a trained, capable
dog. We are concerned that creating a new process to place service dogs
with veterans with PTSD confuses the process among veterans with other
needs. Lastly, this bill restricts eligibility for the program to post-
9/11 veterans. While PVA understands the cost concerns involved in such
a program, we do not believe they justify the unequal access to mental
health care.
H.R. 5047, the ``Protecting Veterans' Educational Choice Act of 2016"
The ``Protecting Veterans' Educational Choice Act'' requires
Department of Veterans Affairs counselors who provide educational or
vocational counseling to inform veterans about the articulation
agreements of the schools they are interested in attending. In
addition, the Secretary would be required to provide information about
educational assistance to veterans, including how to request counseling
and articulation agreements, when issuing a veteran's certificate of
eligibility for education assistance. Making veterans aware of
counseling and transfer options is important to helping veterans with
disabilities better understand the opportunities available to them and
will allow them to make informed decisions. PVA supports this
legislation.
H.R. 5083, the ``VA Appeals Modernization Act of 2016"
PVA has a highly trained force of over 70 service officers who
spend two years in specialized training under supervision to develop
veterans' claims for both our member and non-member clients. We
maintain a national Appeals Office staffed by attorneys and legal
interns who represent clients at the Board of Veterans' Appeals
(Board). We also have attorneys who practice before the Board and
before the Court of Appeals for Veterans Claims which enables
continuity of representation throughout subsequent appellate court
review.
In March 2016, VBA, the Board and major veterans service
organizations (VSO's) partnered to form a working group with the goal
of reforming the appeals process. The number of pending appeals has
surpassed 440,000. If the process goes unaddressed, VA projects that
the appeals inventory will climb to over two million over the course of
the next decade. Experienced Veteran Law Judges (VLJ) who adjudicate
appeals are a commodity and form a critical component of the system.
This attribute limits VA's ability to scale its resources to the extent
necessary to deal with such an inventory. Ten years from now, if the
system remains unchanged, veterans will expect to wait six years for a
decision. We believe reform is necessary, and we support this
legislation moving forward.
PVA is encouraged by VA's ambitious efforts to achieve reform. The
haste with which it desires to move, though, invites caution from those
who recognize that overhauling such a complex process will produce
unintended consequences. While we have a responsibility to serve the
veteran community and tackle problems, we also have the responsibility
to ensure that in doing so we do not leave veterans worse off. VA has
recognized that VSO's have specific concerns and has worked with us to
find solutions that move us forward without diluting veterans' rights
in the process.
As we promote and seek public support for change, it is easy to use
statements such as, ``there are veterans who are currently rated at 100
percent who are still pursuing appeals,'' to illustrate the problems
that pervade the system. PVA will be the first to point out, though,
that a veteran rated at 100 percent under 38 U.S.C. Sec. 1114(j) might
also be incapacitated to the point that he or she requires 24 hour
caregiver assistance. A 100 percent service-connected disability rating
does not contemplate the cost of this care, and veterans may seek
special monthly compensation (SMC) to the tune of thousands of dollars
needed to address their individual needs. Few people would disagree
that pursuing these added disability benefits are vital to a veteran's
ability to survive and maintain some level of quality of life. Without
clarification, such statements lead people to believe that veterans are
the problem.
This is why PVA believes it is so important to ensure that VSO's
remain as involved in the follow-on development process and
implementation as they are now if this plan is to succeed. This is a
procedural overhaul, and VSO's are the bulwark that prevents procedural
change from diluting the substantive rights of veterans.
Notwithstanding the strong collaboration between VA and the various
stakeholders over the last few months, many important questions remain
unanswered at this stage in the development process.
The Framework
There is no shortage of news articles and academic pieces that
attempt to illustrate for readers the level of complexity and
redundancy in the current appeals process. It is a unique system that
has added layer after layer of substantive and procedural rights for
veterans over the years. The most notable aspect differentiating it
from other U.S. court systems is the ability for a claimant to inject
new evidence at almost any phase. While this non-adversarial process
offers veterans the unique ability to continuously supplement their
claim with new evidence and seek a new decision, it prevents VA from
accurately identifying faulty links in the process, whether it be
individual raters or certain aspects of the process itself.
As the working group came together and began considering ways to
address the appeals inventory, it became clear that a long-term fix
would require looking beyond appeals and taking a holistic view of the
entire claims process. The work product in front of us today proposes a
system with three distinct lanes that a claimant may enter following an
initial claims decision-the local higher-level review lane, the new
evidence lane, and the Board review lane. The work horse in this system
is the new evidence lane. The other two serve distinct purposes focused
on correcting errors.
When a claimant receives a decision and determines that an obvious
error or oversight has occurred, the local higher-level review lane,
also known as the difference of opinion lane, offers a fast-track
ability to have a more experienced rater review the alleged mistake.
Review within this lane is limited to the evidence in the record at the
time of the original decision. It is designed for speed and to allow
veterans with simple resolutions to avoid languishing on appeal.
If a claimant learns that a specific piece of evidence is
obtainable and would help him or her succeed on their claim, the new
evidence lane offers the option to resubmit the claim with new evidence
for consideration. VA indicates that its goal is a 125-day turn around
on decisions within this lane. Another important aspect is that the
statutory duty to assist applies only to activity within this lane.
The third lane offers an appeal to the Board. Within this lane
there are two tracks with separate dockets. One track permits the
addition of new evidence and option for a Board hearing. The other
track permits a faster resolution by the Board for those not seeking to
supplement the record. A claimant within this track will not be
permitted to submit new evidence, but they will have an opportunity to
provide a written argument to accompany the appeal.
If the claimant receives an unfavorable opinion at the Board, he or
she may either revert to the new evidence lane within one year or file
a notice of appeal with the Court of Appeals for Veterans Claims (CAVC)
within 120 days. Unfavorable decisions at the Court would be final, and
the claimant would no longer have the benefit of the original effective
date associated with that claim.
One of the most beneficial aspects of this new plan is the
protection of the effective date. Choosing one lane over the other does
not limit the ability to later choose a different lane. The decision to
enter any of the lanes must be made within one year of receiving the
previous decision. Doing so preserves the effective date relating back
to the date of the original claim. Another major issue with the claims
process that is addressed in this plan is improved decision notices. A
thorough understanding of why a claimant received an adverse decision
leads to educated decisions with regard to subsequent lane choices or
discontinuing the claim altogether.
PVA's Concerns
PVA is concerned with the dissolution of the Board's authority to
procure an independent medical examination or opinion (IME) under 38
U.S.C. Sec. 7109. VA originally proposed to dissolve this authority in
order to maintain consistent application of the concept of having all
development of evidence take place at the Agency of Original
Jurisdiction (AOJ) level in the New or Supplemental Evidence Lane.
Throughout extended discussions and negotiations on this topic, PVA has
worked with the Board to find an alternative authority supported by
certain administrative processes which would collectively preserve the
function of Sec. 7109. While we believe the outright removal of Sec.
7109 is a choice of form over substance which disproportionately
affects our members, we think certain provisions in this bill might
preserve the core attributes of Sec. 7109 to an acceptable level.
An IME is a tool used by the Board on a case-by-case basis when it
``is warranted by the medical complexity or controversy involved in an
appeal case.'' Sec. 7109(a). The veteran may petition the Board to
request an IME, but the decision to do so remains in the discretion of
the Board. The Board sua sponte may also request an IME. VA's standard
for granting such a request is quite stringent. 38 C.F.R. 3.328(c)
states, ``approval shall be granted only upon a determination . . .
that the issue under consideration poses a medical problem of such
obscurity or complexity, or has generated such controversy in the
medical community at large, as to justify solicitation of an
independent medical opinion.'' The number granted each year usually
amounts to no more than 100 with approximately 50% being requested by
the Board itself. Experienced Board personnel thoroughly consider the
issues which provoke the need for an outside opinion. Complicating the
process further, the CAVC has carefully attempted to set parameters for
the proposed questions to be answered by experts. A question presented
to a medical expert may neither be too vague, nor too specific and
leading. A question too vague renders the opinion faulty for failing to
address the specific issue, while a question too specific tends to lead
the fact finder to a predisposed result.
By simply striking Sec. 7109 in its entirety, the current bill
proposes to delegate the procurement of an IME to the AOJ under
preexisting authority found in 38 U.S.C. Sec. 5109. This is
problematic because, by its nature, an IME tends to address the most
complex medical scenarios. Removing this tool from the purview of the
Board would undermine the reality that properly presenting questions to
the participating expert is best left to the judge seeking to resolve
the medical controversy or question. VA's recommendation implicitly
suggests that AOJ staff members are equipped with the requisite level
of experience to carry out this delicate exercise. Even more worrisome
is that in the current claims processing system, IME's are almost
exclusively requested at the Board level, despite the AOJ's existing
authority to procure one. This begs the question of how many rating
officers have the experience and expertise to even identify the need
for an IME, let alone to draft a nuanced question that would comport
with veterans' law jurisprudence.
Dissolving Sec. 7109 would have the additional effect of
abolishing the centralized office of outside medical opinions. This
small staff has played a vital role in facilitating IME's and
maintaining their effectiveness by developing relationships with
doctors who are experts on particular subjects and willing to do this
tedious task for almost no money. This office not only expedites the
receipt of opinions, but it also ensures a high level of quality. Now
this concentrated effort conducted by a group of people thoroughly
versed in the IME process will simply disintegrate in favor of IME's
being requested, maybe, by a savvy rating officer who has the
wherewithal to recognize the need. Even in such a fortuitous
circumstance, the rating officer will be left to fend for itself in
finding a qualified and willing expert to conduct the task-something
this office would have done for them.
We recognize that the bill attempts to mitigate against the damage
of losing Sec. 7109 by supplementing Sec. 5109(d) and Sec.
5103B(c)(2), but this proposal still discards a properly functioning
organ of the Board in favor of more Bureaucracy. IME's generally have a
fast turn-around at the Board, and the weight of the opinion is often
significant enough to bring finality to a claim. It is possible that VA
could preserve the function of the office of outside medical opinions
in some fashion, perhaps consolidating it under VBA's authority. The
Board has considered our suggestions and alternative proposals in this
regard. VA's senior leadership has committed to us that it will take
the necessary steps to preserve the best practices and resources of
this office. PVA highly recommends that if this Committee is
entertaining striking Sec. 7109, it should obligate VA to explain how
it plans to mitigate against the loss of this office and the Committee
should conduct oversight during implementation. Similarly, the
decreased efficiency with having the process conducted at the AOJ level
is also concerning. Instead of the VLJ requesting an IME and receiving
the opinion, now a second person must review the claim - the rating
officer who received the file on remand. If a veteran wishes to appeal
this re-adjudication, we have asked for and received VA's commitment to
reroute the appeal by default, with exceptions, back to the same VLJ
who remanded the case to avoid yet another person from having to review
a claim with enough medical complexity to warrant the IME.
Under the proposed plan the Board would limit remands to errors
related to VBA's duty to assist under 38 U.S.C. Sec. 5103A. There are,
however, circumstances where the AOJ received two separate examinations
and honored the duty to assist, but an IME is needed to resolve
conflicting opinions. The current language in the bill does not provide
the Board the ability to remand a case with an order to procure an IME
to resolve the conflict in evidence. Of course, we would also note that
such a situation could easily be resolved if VA would better adhere to
its own reasonable doubt provision when adjudicating claims. We still
see too many VA decisions where this veteran-friendly rule is not
properly applied. More often it appears VA raters exercise arbitrary
prerogative to avoid ruling in favor of the claimant, adding obstacles
to a claimant's path without adequate justification. While due
diligence in gathering evidence is absolutely necessary, too often it
seems that VA is working to avoid a fair and legally acceptable ruling
favorable for the veteran. Both the failure to accept and tendency to
devalue non-VA medical evidence are symptoms of this attitude.
We also recommend an additional jurisdictional safeguard for the
Board. In 38 U.S.C. Sec. 7104, it would be helpful to include language
that addresses situations where the Board finds that an appeal presents
extraordinary circumstances. The Board, in its sole discretion, should
be able to retain jurisdiction over a remand of that appeal.
A second concern that must be noted is the fact that the problem
that brought us to the table in the first place is not addressed in
this plan-the current bloated appeals inventory. We are only now in the
beginning phases of working with VA to address this part of the
equation. It is extremely difficult to place an effective date on this
legislation in the absence of a plan to address the inventory. This
legislation is a way to prevent the inventory from growing, it is not
the answer to reducing the current inventory. Blurring this distinction
should be avoided. The question of how this plan should be implemented
in light of the current situation deserves serious scrutiny that can
only be applied by further collaboration between VA and the
stakeholders involved in this process thus far.
The plan presented here today is predicated on an expectation that
decisions in the middle lane will be adjudicated within an average time
of one hundred and twenty-five days. As a result of the Fully Developed
Claims process and other efforts that included a surge in resources and
mandatory overtime, VBA is currently doing well in achieving this
average wait time for initial claims. And while that is encouraging for
the plan we are contemplating here, the present state of affairs could
be misleading, and we have not had the opportunity to consider the
impact on that wait time if the new system were implemented and
suddenly altered the current workflow. Also left unaddressed is the
resource requirement that might balloon if the plan runs parallel to
the current system until all pending claims are phased out and
resolved. Adequate resources will be essential to weather the growing
pains as this new system is laid in. Leaving these kinds of questions
unanswered and moving forward invites the possibility of trading one
mangled system for another.
Some stakeholders have expressed concern over the replacement of
the ``new and material'' evidence standard with ``new and relevant.''
PVA believes this is an acceptable standard for veterans to meet. It is
true that the number of appeals in the system currently disputing a
decision that evidence submitted was not deemed ``material'' may be as
high as 20 percent. The concern is that changing ``material'' to
``relevant'' will simply exchange one appealable issue for another. A
clever idea was put forward to have VA simply deny the claim if it
found that the new evidence submitted was not relevant. This would
prevent a veteran from appealing the relevance determination, and
thereby significantly reduce the number of forthcoming appeals.
However, this discounts two things. The first is that ``relevant'' is a
significantly lower legal threshold than ``material.'' Most
determinations will actually lead to the admission of the evidence,
and, therefore, fewer appeals. The second is that it might have the
counter-intuitive effect of creating a bigger slow-down as raters are
forced to issue full decision notices when they deny a claim instead of
simply finding that the evidence was not relevant.
PVA was a supporter early on of judicial review, and we believe the
availability of that review has improved the appeals process for
veterans. We are concerned that this proposal could limit a veteran's
access to court review, and would be happy to work with the committee
on creating assurances that this path remains an open and effective
means to correct error in individual cases as well as to correct agency
misinterpretations of the law.
We also have concerns about whether some language as drafted will
reflect the promises made in those long meetings. For example, it is
our understanding that reform will not impact the availability of the
duty to assist but it will only be enforced on remand to the AOJ, yet
as proposed, the language on this issue is confusing. We suggest a
clearer approach, so that veterans have the assurance they are not
losing any existing protections in this reform.
Finally, this is not simply a VA problem. As stated earlier, PVA
has many service representatives and spends a great deal of time,
funds, and effort on ensuring they accomplish their duties at a high
level of effectiveness. However, it is important that veterans and
their representatives also share responsibility when appeals arrive at
the Board without merit. A disability claim that is denied by VBA
should not automatically become an appeal simply based on the
claimant's disagreement with the decision. When a claimant either files
an appeal on his own behalf, or compels an accredited representative to
do so with no legal basis for appealing, that appeal clogs the system
and draws resources away from legitimate appeals. Since 2012, PVA has
taken steps to reduce frivolous appeals by having claimants sign a
``Notice Concerning Limits on PVA Representation Before the Board of
Veterans' Appeals'' at the time they execute the Form 21-22 Power of
Attorney (POA) form. PVA clients are notified at the time we accept POA
that we do not guarantee we will appeal every adverse decision and
reserve the right to refuse to advance any frivolous appeal, in keeping
with VA regulations.
H.R. 5162, the ``Vet Connect Act of 2016"
PVA understands the intent of H.R. 5162, the ``Vet Connect Act of
2016;'' to authorize the Secretary to disclose to non-department health
care providers certain medical records of the veterans who are in their
care. However, we question whether there exists a demonstrated need
that this legislation seeks to address. VA currently has the means to
share patient records with the consent of the patient or in the case of
a medical emergency. To relax the protections to share records with any
non-Department entity exposes veterans' personal information when it is
not medically necessary.
H.R. 5392, the ``No Veterans Crisis Line Should Go Unanswered Act''
PVA generally supports H.R. 5392, the ``No Veterans Crisis Line
Should Go Unanswered Act.'' The legislation requires the VA to develop
and implement a quality assurance process to address responsiveness and
performance of the Veterans Crisis Line and backup call centers, that
they be answered by a live person and improvements documented
throughout. It requires there be quantifiable timeframes for objectives
and that they be consistent with guidance issued by the Office of
Management and Budget. We find it hard to believe that the VA does not
currently have in place a quality assurance process, particularly for
such a critical access tool.
H.R. 5407
H.R. 5407 requires the Department of Labor to prioritize the
provision of services to homeless veterans with dependent children
through the Homeless Veterans' Reintegration Program (HVRP). The
legislation also sets out a new reporting requirement for the Secretary
to submit an analysis of any gaps homeless veterans with dependent
children have in accessing shelter, safety, or services. Although the
provision of these types of services does not impact many of PVA's
members, PVA generally supports this legislation.
H.R. 5416
PVA supports H.R. 5416, to amend title 38, United States Code, to
expand burial benefits for veterans who die while receiving hospital
care or medical services under the Veterans Choice Program. Veterans
who pass away while in receipt of care from VA through a contracted
hospital, nursing home, adult day health care, are entitled to burial
benefits. This bill would make eligible those receiving care under the
Choice Program. This is clearly a matter of equity. If a veteran has to
rely upon the Choice Program rather than other similar contracted
facilities they should be entitled to equal benefits.
H.R. 5420
PVA has no official position on this proposed bill.
Draft Bill, ``Military Residency Choice Act''
PVA supports the draft bill, the ``Military Residency Choice Act.''
In 2009, Congress passed the Military Spouse Residency Relief Act
(MSRRA) to alleviate some of the numerous inconveniences that military
spouses endure each time their service member is uprooted due to
military orders. Service members have long been able to maintain their
home state of residency, regardless of where military orders take them.
The MSRRA extended this benefit to military spouses by allowing them to
also maintain one state of domicile for purposes of residency, voting
and taxation. However, the benefit only applies if he or she shares the
same residency as the service member. If the service member wishes to
retain his or her original domicile and not the domicile in which he or
she met and married their spouse, then the spouse cannot use the MSRRA.
The spouse must change residency each time the service member receives
orders for a permanent change of station. The Military Residency Choice
Act remedies this limitation by allowing the spouse to elect the
service member's state of residency.
Changing residency every time the Department of Defense moves a
family is a significant inconvenience to the men and women that stand
by our service members. There are times when a family may have to move
twice, and sometimes three times in a year. If the spouse has a
business, even one operated out of the home, the complicated tax
preparations during such a year can be daunting. These kinds of
obstacles discourage spouses from working and voting. Our military
families sacrifice a life of stability, and they deserve any
convenience we can offer them.
H.R. 5166, the ``WINGMAN Act''
PVA supports the goal of ensuring veterans receive timely
information regarding the status of their claims. We appreciate that
this bill ensures that Congressional employees granted access to such a
program undergo the same training and certification program that VA
currently uses to certify VSO representatives and attorneys
representing claimants. This legislation, however, allows access to a
claimant's information regardless of whether the covered employees are
acting under a power of attorney. Claims files contain the most private
information about that particular veteran and, often times, information
of other individuals consulted during the claim's development. PVA
believes that in the interest of maintaining strict protection of such
private information, this legislation should be limited to those who
hold a power of attorney. Other logistical issues may also arise in the
form of the added administrative burden on VA of managing the
certification process and tracking users. Certainly we do not want to
see resources that should be applied to adjudicating claims shifted to
facilitating Congressional involvement unless it produces a significant
increase in productivity.
Mr. Chairman, we would like to thank you again for the opportunity
to testify on these important measures. It is imperative that we remain
focused on providing the necessary benefits and health care services
that veterans and their families rely upon. We would be happy to answer
any questions that you may have.
Information Required by Rule XI 2(g)(4) of the House of Representatives
Pursuant to Rule XI 2(g)(4) of the House of Representatives, the
following information is provided regarding federal grants and
contracts.
Fiscal Year 2016
Department of Veterans Affairs, Office of National Veterans Sports
Programs & Special Events - Grant to support rehabilitation sports
activities - $200,000.
Fiscal Year 2015
Department of Veterans Affairs, Office of National Veterans Sports
Programs & Special Events - Grant to support rehabilitation sports
activities - $425,000.
Fiscal Year 2014
No federal grants or contracts received.
Disclosure of Foreign Payments
Paralyzed Veterans of America is largely supported by donations
from the general public. However, in some very rare cases we receive
direct donations from foreign nationals. In addition, we receive
funding from corporations and foundations which in some cases are U.S.
subsidiaries of non-U.S. companies.
Prepared Statement ofLouis J. Celli, Jr.
Chairman Miller, Ranking Member Brown, and distinguished members of
the committee, on behalf of National Commander Dale Barnett and The
American Legion; the country's largest patriotic wartime service
organization for veterans, comprising over 2 million members and
serving every man and woman who has worn the uniform for this country;
we thank you for the opportunity to testify regarding The American
Legion's position on the pending and draft legislation.
H. R. 3216: Veterans Emergency Treatment Act or the VET Act
To amend title 38, United States Code, to clarify the emergency
hospital care furnished by the Secretary of Veterans Affairs to certain
veterans.
The VET Act would require that every enrolled veteran is afforded
the highest level of emergency care at every health care facility that
is capable of providing emergency care services under VA jurisdiction.
In 1986, Congress enacted the Emergency Medical Treatment & Labor
Act (EMTALA) to ensure public access to emergency services regardless
of ability to pay. Section 1867 of the Social Security Act imposes
specific obligations on Medicare-participating hospitals that offer
emergency services to provide a medical screening examination (MSE)
when a request is made for examination or treatment for an emergency
medical condition (EMC), including active labor, regardless of an
individual's ability to pay. Hospitals are then required to provide
stabilizing treatment for patients with EMCs. If a hospital is unable
to stabilize a patient within its capability, or if the patient
requests, an appropriate transfer should be implemented.
H.R. 3216 would apply the statutory requirements of the EMTALA to
emergency care furnished by the VA to enrolled veterans who arrive at
the emergency department of a VA medical facility by indicating an
emergency condition exists. This bill would also enhance VA's existing
legislative authorities to allow VA to ensure veterans are provided
with appropriate medical screening examinations.
The American Legion believes anytime a veteran reports to an
emergency department at a VA or non-VA medical facility, the veteran
should receive a thorough examination to include all appropriate
ancillary tests to assist the treating clinician to properly diagnose
the problem.
The American Legion supports any legislation and programs within
the VA that will enhance, promote, restore or preserve benefits for
veterans and their dependents, including timely access to quality VA
health care. \1\
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\1\ American Legion Resolution No. 23 (May 2016): Support for
Veteran Quality of Life
The American Legion supports H.R. 3216.
H. R. 4150: Department of Veterans Affairs Emergency Medical Staffing
Recruitment and Retention Act
To amend title 38, United States Code, to allow the Secretary of
Veterans Affairs to modify the hours of employment of physicians and
physician assistants employed on a full-time basis by the Department of
Veterans Affairs.
The Veterans Affairs Medical Staffing Recruitment and Retention Act
would give the Veterans Health Administration (VHA) the ability to
address the unbalanced work schedules that are often associated with
providing emergency room health care. Since 2003, The American Legion
through the ``System Worth Saving Program'' has been actively tracking
staffing shortages at VA medical centers across the country. The
American Legion's 2014 System Worth Saving report entitled ``Past,
Present, and Future of VA Health Care'' found that several VA medical
centers continue to struggle to fill critical positions across many
disciplines within the healthcare system.
The American Legion believes the Veterans Health Administration
must continue to develop and implement staffing models for critically
needed occupations. \2\
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\2\ American Legion Resolution No. 101 (Sept. 2015): Department of
Veterans Affairs Recruitment and Retention
The American Legion supports H.R. 4150.
H. R. 4764: Puppies Assisting Wounded Servicemembers (PAWS) Act of 2016
To direct the Secretary of Veterans Affairs to carry out a pilot
program to provide service dogs to certain veterans with severe post-
traumatic stress disorder.
Since 1991, the United States has been at war and as a result
thousands of men and women have returned home with mental and physical
injuries. The PAWS Act of 2016 would expand access to service dogs for
veterans suffering from Post-Traumatic Stress Disorder (PTSD) which is
one of the ``signature wounds'' of the wars in Iraq and Afghanistan.
H.R. 4764 would create a five-year pilot $10 million program that
pairs veterans who served on active duty in the Armed Forces on or
after September 11, 2001 and for veterans who have been diagnosed with
PTSD rated at a severity level of three or four on the Clinician-
Administered PTSD Scale (CAPS-5) for Diagnostic and Statistical Manual
of Mental Disorders (DSM-5) with a service dog. Eligible veterans must
have also completed an evidence-based treatment program and remain
significantly symptomatic by clinical standards.
This legislation is important to veterans because it allows the use
of service dogs to assist in the therapy plan for injured veterans
returning home from war with traumatic brain injury (TBI) and
posttraumatic stress disorder (PTSD). Service dogs can act as an
effective complementary therapy treatment component, especially for
those veterans who suffer on a daily basis from the physical and
psychological wounds of war.
The American Legion urges Congress to provide oversight and funding
to the VA for innovative, evidence-based complementary and alternative
medicine (CAM) in treating various illnesses and disabilities. \3\
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\3\ American Legion Resolution No. 99 (Sept. 2015): Complementary
and Alternative Medicine
The American Legion supports H.R. 4764.
H. R. 5047: Protecting Veterans' Educational Choice Act of 2016
To direct the Secretary of Veterans Affairs and the Secretary of
Labor to provide information to veterans and members of the Armed
Forces about articulation agreements between institutions of higher
learning, and for other purposes.
H.R. 5047 would provide student-veterans with information on which
institutions of higher learning could potentially give them credit for
completed courses if they choose to transfer from their college/
university. This legislation adds to the necessary information that
empowers student-veterans in making the best decisions in what college/
university they choose to attend for the ultimate goal of obtaining
their college degree and finding gainful employment.
The American Legion seeks and supports any legislative or
administrative proposal that improves, but not limited to, the GI Bill,
Department of Defense Tuition Assistance (TA), Higher Education Title
IV funding (i.e. Pell Grants, Student Loans, etc.) and education
benefits so servicemembers, veterans, and their families can maximize
its usage. \4\
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\4\ American Legion Resolution No. 312 (August 2014): Ensuring the
Quality of Servicemember and Veteran Student's Education at
Institutions of Higher Learning
The American Legion supports H.R. 5047.
H.R. 5083: VA Appeals Modernization Act of 2016
To amend title 38, United States Code, to improve the appeals
process of the Department of Veterans Affairs.
More than 1.4 million claims for veterans' disability were
processed last year, and the Veterans Benefits Administration (VBA) is
on track to surpass even that number this year. At a ten to twelve
percentage rate of appeal, the workload at the Board of Veterans
Appeals (BVA) will likely never disappear.
With an appeals inventory at roughly half a million pending claims,
the Department of Veterans Affairs (VA) asked stakeholders to gather in
several high intensity day-long working meetings to help come up with a
system that would recommend solutions to help VBA and the Court of
Appeals for Veterans Claims (CAVC) better process and manage this
existing workload.
The American Legion currently holds power of attorney on more than
three quarters of a million veteran claimants. We spend more than two
million dollars a year on veteran claims and appeals processing and
assistance. Our success rate at the BVA hovers at around 80 percent,
either outright grants of benefits or remands to properly process a
claim that VA had failed to properly process at the lower level of the
Regional Office.
When VA invited stakeholders to the table to discuss appeals
modernization, The American Legion knew that appeals modernization was
not about appeals alone, that the recommendations required to
streamline appeals needed to take place much earlier in the process, at
the point of the initial adjudication. With that, one of the first
things the group looked at was the VBA decision notice. Refining the
initial decision notice is not as easy as it sounds and several of the
Veterans Service Organizations (VSOs) worked with VA for months in 2014
to try and improve these letters, with frustrations over lack of
clarity still remaining. Getting VBA to agree to improve the quality of
the letter was a landmark accomplishment that got the process off to a
good start.
After the initial VA commitment to improve the decision letter, the
stakeholders listened to what they perceived as barriers to improved
appeals processing, which supported another of the primary American
Legion concerns, the lack of a centralized training process. The BVA
has complained that the appeal case file that is finally presented to a
veterans law judge looks nothing like the claim that was adjudicated at
the Regional Office (RO) level in almost all cases, due to the
allowance of additional evidence during the appeals process. Therefore
VBA claims they have no way to determine how, or if ROs are
misinterpreting the law or making mistakes.
BVA further argued that if there were a process within the appeals
system that allowed law judges to review disputed decisions that were
adjudicated at the regional offices, based only on the same information
that the regional office had at the time the claim was originally
decided, then BVA would be able to provide a ``feedback loop'' they
could use to help train and educate ROs, and additionally help identify
regional offices where the decisions uniformly fail to address specific
legal issues.
It was with these two foundational underpinnings that the big six
VSOs, in addition to state and county service officers, veteran
advocate attorneys, and other interested groups worked with senior VA
officials from VBA and BVA to design the framework of the legislation
being discussed here today.
The guiding principle leading all of our discussion was ensuring
that we preserved all of the veteran's due process rights while
ensuring that they did not lose any of the claim's effective date,
which we were able to do successfully.
When we started the design process, we had to suspend dealing with
the current caseload of appeals while we designed the new model and
treated the two sets of cases as independent of each other. Now that we
have designed a more streamlined and effective model for future claims,
all stakeholders will still need to determine how to deal with the
existing inventory of appealed claims.
The design of the proposed appeals process allows for multiple
options for claimants, as well as options for additional claim
development, the option to have the decision reviewed by another
adjudicator (difference of opinion) and the chance to take your case
straight to the board to have a law judge review the decision and make
a ruling on your claim.
The proposed bill provides veterans additional options while
maintaining the effective dates of original claims. Veterans can elect
to have an original decision reviewed at the ROs through a Difference
of Opinion Review (DOOR) which is similar to the function of what the
Decision Review Officers (DROs) do now. A DOOR provides an opportunity
for a claimant to discuss concerns regarding the original adjudication
of a particular issue, or the entire claim, prior to appealing to BVA.
Additionally, the administrative actions remove the need for a Notice
of Disagreement (NOD), a process that currently takes 403.6 days,
according to the April 25, 2016, Monday Morning Workload Report.
Beyond improvements in administrative functions, the proposed bill
will enable claimants to select a process other than the standard
multi-year backlog if they want to have an appeal addressed more
expediently, and if they believe they have already provided all
relevant and supporting evidence. Similar to the Fully Developed Claims
(FDC) program, veterans will be able to elect to have their appeals
reviewed more expeditiously by attesting that all information is
included within the claim, VA records, or submitted with VA Form 9
indicating the intent to have their claims immediately forwarded to BVA
for review.
Veterans indicating that they may need additional evidence or time,
could elect to have their claim reviewed in the current BVA format
allowing additional evidence to be entered into the record. For
veterans requiring additional evidence, such as lay statements from
friends and families or a private medical examination rebutting VA
medical examinations, this is a viable alternative to allow the time
and opportunity to provide further development necessary to
substantiate the claim for benefits.
Throughout this entire process, veterans will be able to maintain
their effective date of the original claim. Recognizing that an
increased burden is being placed upon veterans, VA will permit veterans
to maintain their effective dates, even if BVA denies the claim. If an
appeal is denied by BVA, the veteran can submit new and minimally
relevant evidence to reopen the claim at the RO while holding that
effective date that may have been established long before the second
filing for benefit.
Just as we did when we worked in partnership with VA to roll out
the Fully Developed Claims process, The American Legion is willing to
put in the necessary work to ensure this program is successful. We
recognize the increased burden it can place on veterans; we also
recognize that our approximately 3,000 accredited representatives have
the tools to ensure success for the veterans and claimants we
represent. Throughout the year, we will continue to work with our
representatives, our members, and most importantly, our veterans to
understand the changes in law, and how they will be able to succeed
with these changes.
Reforming a process as complex as the disability claims system is
not simple, and not every aspect of appeals reform is able to be
legislated, some parts are more nuanced and require the attention of
all stakeholders. The American Legion is committed to providing
constant feedback as we move forward with appeals modernization. We
believe that the architects of this proposal have acted in good faith,
and we support their efforts to modernize the appeals process for the
good of veterans.
The American Legion supports H.R. 5083.
H. R. 5162: Vet Connect Act of 2016
To amend title 38, United States Code, to authorize the Secretary
of Veterans Affairs to disclose to non-Department of Veterans Affairs
health care providers certain medical records of veterans who receive
health care from such providers.
With over 43,000 unfilled positions within VA, the Veterans
Healthcare Administration (VHA) is relying on an increase of community
healthcare providers to supplement care for veterans. By VHA referring
care to health care providers out in the community, sharing of a
veteran medical record continues to be a barrier which creates delays
in care. By not having access to a veterans' medical records,
physicians will not be able to get the full medical history of the
veteran they are treating.
H.R. 5162 would decrease the bureaucratic red tape at VA by
allowing non-VA doctors who are involved in the veterans' care easier
access to their medical records so doctors and veterans can make better
health care decisions.
The American Legion requires that VA provide non-VA to VA providers
with full access to VA's Computer Patient Record System (CPRS) to
ensure the contracted community provider can review the patient's full
history; allow the community provider to meet all of the quality of
care screening and measures tracked in CPRS; and speed up receipt and
documentation from the non-VA provider encounter to ensure it is added
to the veterans' medical record. \5\
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\5\ Resolution No. 46: (Oct 2012): Department of Veterans Affairs
(VA) Non-VA Care Programs
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The American Legion supports H.R. 5162.
H. R. 5166: Working to Integrate Networks Guaranteeing Member Access
Now Act or the ``WINGMAN Act''
To amend title 38, United States Code, to provide certain employees
of Members of Congress and certain employees of State or local
governmental agencies with access to case-tracking information of the
Department of Veterans Affairs.
H.R. 5166 would grant access to the Department of Veterans Affairs
(VA) Veterans Benefits Management System (VBMS) for the purpose of
assisting constituents. According to the bill, Members could select an
employee, and at a cost to the employee or member, would receive the
necessary training to gain accreditation to legally review veterans'
records within VBMS. The American Legion has over 3,000 accredited
representatives located throughout the nation. These professionals
receive regular professional training to ensure they have the most
current understanding of the impact of changes in statutes,
regulations, and case law. It is simply not a matter of receiving
initial training and meeting the requirement of being accredited; like
many professions, it requires on-going, thorough training.
Additionally, veterans are repeatedly advised of their opportunity to
elect to have a Veterans Service Organization (VSO) represent them in
their quest to receive VA disability benefits without a cost to the
veteran. The American Legion does not have a resolution to support the
enactment of this bill; however, we urge Congress to consider the long-
term ramifications of supporting legislation that only requires their
own employees to have the minimal level of understanding in veterans'
law assisting their constituents. To ensure their constituents receive
the assistance they deserve, we highly recommend that a VSO advocate on
their veterans' behalf.
The American Legion opposes H.R. 5166.
H. R. 5392: No Veterans Crisis Line Call Should Go Unanswered Act
To direct the Secretary of Veterans Affairs to improve the Veterans
Crisis Line.
The Veterans Crisis Line (VCL) through a confidential toll-free
hotline, online chat, or text connects veterans, families and friends
who are in crisis with qualified, compassionate Department of Veterans
Affairs responders.
H.R. 5392 would take measures to ensure that when a veteran calls
the VCL or backup call center that their call gets answered in a timely
fashion and is in accordance with the guidelines established by the
American Association of Suicidology. This bill would also improve the
responsiveness and performance within the VA by ensuring that suicide
prevention and crisis resources are available to all veterans.
The American Legion calls upon the VA to directly connect the call
of a distraught veteran to the Veterans Crisis Line. \6\
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\6\ American Legion Resolution No. 27 (May 2015): Veterans Crisis
Line
The American Legion supports H.R. 5392.
H. R. 5407
To amend title 38, United States Code, to direct the Secretary of
Labor to prioritize the provision of services to homeless veterans with
dependent children in carrying out homeless veterans reintegration
programs, and for other purposes.
H.R. 5407 would rightly prioritize homeless veterans with
dependents within the Department of Labor. Please note - the Homeless
Veterans Reintegration Program (HVRP) within the Department of Labor's
Veterans Employment and Training Service (DOL-VETS) is the only
nationwide program focused on assisting homeless veterans to
reintegrate into the workforce. Women veterans are far more likely to
be single parents than men; consequently, this legislation would
provide vital resources for the fastest growing cohort within the
homeless veteran population.
In addition, this bill would provide gap analysis regarding access
to shelter, safety and other relevant services for homeless veterans
with dependent children. This kind of information gives federal/state
agencies, community service providers and other stakeholders an idea of
the immense problem and the ability to figure out `best practices' in
the fight to combat veteran homelessness, particularly those homeless
individuals with children.
Furthermore, The American Legion continues to place special
priority on the issue of veteran homelessness. With veterans making up
approximately 11 percent of our nation's total adult homeless
population, there is plenty of reason to give the cause special
attention. Along with various community partners, The American Legion
remains committed to seeing VA's goal of ending veteran homelessness
come to fruition. Our goal is to ensure that every community across
America has programs and services in place to get homeless veterans in
housing (along with necessary healthcare/treatment), while connecting
those at-risk veterans with the local services and resources they need.
Lastly, HVRP is a highly successful grant program that needs to be
fully funded at $50 million. Currently, HVRP is funded at $38 million.
The American Legion continues to support the efforts of public and
private sector agencies and organizations with resources necessary to
aid homeless veterans and their families. \7\
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\7\ American Legion Resolution No. 306 (August 2014): Support
Funding for Homeless Veterans
The American Legion supports H.R. 5407.
H.R. 5416
To amend title 38, United States Code, to expand burial benefits
for veterans who die while receiving hospital care or medical services
under the Veterans Choice Program of the Department of Veterans
Affairs, and for other purposes
VA burial allowances are partial reimbursements of an eligible
veteran's burial and funeral expenses. When the cause of death is not
service related, the reimbursements are generally described as two
payments: a burial and funeral allowance, and a plot or interment
allowance.
Currently, under existing law, the family of a veteran in the
Choice Program who passes away in a non-VA hospital receives a $300
burial allowance. The family of a veteran who passes away in a non-VA
under a VA contract receives a $747 burial allowance. H.R. 5416 would
set the burial allowance for veterans who die in a non-VA Health Care
facility under the Choice program as the same as if the veteran dies in
a VA or contracted medical facility.
The American Legion urges Congress and the VA to enact legislation
and programs within the VA that will enhance, promote, restore, or
preserve benefits for veterans and their dependents. \8\
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\8\ American Legion Resolution No. 23: (May 2016): Support for
Veteran Quality of Life
The American Legion supports H.R. 5416.
H.R. 5420
To authorize the American Battle Monuments Commission to acquire,
operate, and maintain the Lafayette Escadrille Memorial in Marne-la-
Coquette, France.
The Lafayette Escadrille Memorial is dedicated to the memory of the
American pilots who volunteered to assist the Allied Army in 1914. The
central platform is crowned with a triumphal arch and flanked with
porticos leading to the underground crypt. The ``art deco'' style
highlights the pilots' sacrifice and the Franco-American friendship.
There are statues of La Fayette and Washington facing one another
and, on the ground, a mosaic of the famous Sioux warrior's head, the
squadron's ensign. The crypt holds the ashes of 66 American pilots. It
is decorated with 13 stained glass windows depicting the great aerial
combats of the war. The monument was inaugurated on American
Independence Day, July 4, 1928.
H.R. 5420 would authorize the American Battle Monuments Commission
(ABMC), which was established by the Congress in 1923, as the guardian
of America's overseas commemorative cemeteries and memorials and honors
the service, achievements and sacrifices of the United States Armed
Forces by overseeing the operations of the memorial which has been
erected to honor those who gave the ultimate sacrifice for their
country.
The American Legion urges Congress to appropriate adequate funding
and human resources to the American Battle Monuments Commission in
order to properly maintain and preserve the final resting place of
America's war dead located on foreign soil. \9\
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\9\ American Legion Resolution No. 50 (August 2014): Support for
the American Battle Monuments Commission
The American Legion supports H.R. 5420.
Draft Bill: Military Residency Choice Act
To amend the Servicemembers Civil Relief Act to authorize spouses
of servicemembers to elect to use the same residences as the
servicemembers.
The American Legion does not have a position on the Military Residency
Choice Act.
Conclusion
As always, The American Legion thanks this committee for the
opportunity to explain the position of the over 2 million veteran
members of this organization. For additional information regarding this
testimony, please contact Mr. Warren J. Goldstein at The American
Legion's Legislative Division at (202) 861-2700 or
[email protected].
Prepared Statement of Rick Weidman
Good morning, Chairman Miller, Ranking Member Brown, and other
distinguished members of this very vital committee. Vietnam Veterans of
America (VVA) is pleased to have the opportunity to present our views
today regarding pending legislation before you.
Draft - The Military Residency Choice Act, introduced by
Congressman Randy Forbes (VA-4), amends the Servicemembers Civil Relief
Act to authorize the spouse of a servicemember to elect to use the same
residence as the servicemember for purposes of taxation ``regardless of
the date on which the marriage of the spouse and the servicemember
occurred.''
The rationale behind this amendment to this act is logical and
eminently fair, and VVA endorses the introduction, and enactment, of
this bill.
H.R. 3216 - The Veterans Emergency Treatment Act, or VET Act,
introduced by Congressman Dan Newhouse (WA-4), attempts to ``clarify
hospital care furnished by the VA to certain veterans'' in emergency
settings.
It strikes us that although this act attempts to spell out basic
procedures that are already practiced in any ER by trained clinicians,
and although it may be considered by some to be prescriptive to the
point of micromanaging medical practice, its provisions are sound.
Hence, VVA supports enactment of the VET Act.
H.R.4150 - The Department of Veterans Affairs Emergency Medical
Staffing Recruitment and Retention Act, introduced by Congressman Raul
Ruiz (CA-36). This bill will allow the Secretary of Veterans Affairs to
modify the hours of employment for physicians and physician assistants
``to be more than or less than 80 hours in a biweekly pay period if the
total hours of employment for such employee in a calendar year does not
exceed 2,080 hours.''
Because of the nature of the work that they do, clinicians need
flexibility in their daily and weekly work schedules, and ought not be
restricted to any set number of hours they may work in a given time
period. Of course, no clinician should work to the point of exhaustion
on a regular basis, to the detriment of the patients they treat.
VVA supports enactment of this common-sense legislation.
H.R.4764 - Puppies Assisting Wounded Servicemembers (PAWS) Act of
2016, introduced by Congressman Ron DeSantis (FL-6), directs the VA,
through the Office of Patient Centered Care and Cultural
Transformation, to carry out a five-year pilot program to provide
service dogs, and veterinary health insurance, to eligible veterans
suffering from severe Post-traumatic Stress Disorder. Importantly, the
provision of a service dog ``shall not replace established treatment
modalities.''
The PAWS Act requires that, to be eligible, a veteran shall ``have
been treated and have completed an established evidence-based treatment
and remain significantly symptomatic,'' and ``have not experienced
satisfactory improvement'' after having been treated with these
evidence-based therapies. Not only does this bill place a limitation on
the expenditure of funds ``for the procurement and training'' of a
canine in this pilot program, the Comptroller General of the United
States is required to submit to Congress a report evaluating the
effectiveness of the program.
VVA supports, with certain reservations, enactment of the PAWS Act.
While it is well past time to hold clinical trials to validate the
results of canine therapies, if relevant metrics can show that veterans
suffering from PTSD can be helped by having a canine companion, such a
pilot project will be well worth whatever costs the VA will incur in
funding it. Nevertheless, Congress should see proof of the efficacy and
effectiveness of these therapies.
H.R.5047 - Protecting Veterans' Educational Choice Act of 2016,
introduced by Congressman Jody Hice (GA-10), would direct the
Secretaries of Veterans Affairs and Labor ``to provide information to
veterans and members of the Armed Forces about articulation agreements
between institutions of higher learning.''
As we have been both dismayed and angered by the fabrications made
to veterans and active duty troops by too many alleged institutions of
higher learning in a greedy grab for federal education dollars, any
attempt by agencies of government to inform and counsel students about
the articulation agreements of any institution of higher learning in
which they may be interested is most welcome.
As such, VVA endorses enactment of H.R. 5047.
H.R.5083 - VA Appeals Modernization Act of 2016, introduced by
Congresswoman Dina Titus (NV-1), is an attempt to improve the appeals
process of the Department of Veterans Affairs. We are opposed to
enactment of this legislation; and let us explain, in detail, why.
OUR POSITION
VVA has been an active participant in the workgroup convened by the
VA Deputy Secretary to find common ground on solutions to the VA
appeals process. While the appeals process is in need of reform, VVA's
position is that veterans ought not to be required to forgo their due
process rights in order for VA to process their claims and appeals more
quickly. VVA's greatest concerns are that this bill does not address
the issue of a virtually total lack of precedent that has long plagued
the claims and appeals process. Precedent is the crux of the issue.
Ultimately, this is a system of laws, and without precedent, the
American system of jurisprudence could not operate. With precedent,
most of the claims can be automated, freeing staff for other work. In
addition, we believe if this legislation becomes black- letter law, the
role of the Court of Appeals for Veterans Claims (CAVC) will be
significantly diminished to the detriment of veterans.
STATEMENT
I.H.R. 5083, VA APPEALS MODERNIZATION ACT OF 2016, IN ITS CURRENT FORM,
DOES NOT ADDRESS THE LACK OF PRECEDENCE THAT HAS LONG PLAGUED THE
VA CLAIMS AND APPEALS PROCESS
From its inception, the veterans claims and appeal process has
lacked precedence, the legal principle by which judges are obligated to
respect the precedent established by prior decisions. The never-ending
churning of cases between the RO, BVA, and the CAVC, nicknamed, ``The
Hamster Wheel'' by veterans and their advocates, has led to excessive
wait times for too many veterans seeking final resolution of their
appeals. The lack precedence at the BVA is the fundamental design flaw
to the adjudication of veterans' claims, as prescribed under Title 38.
Regrettably, the legislation proposed by VA today does not address the
precedence issue.
VVA offers three solutions to addressing the precedence issue:
a) Increase the Number of VA OGC Precedent Opinions
In the early 1990s, after the CAVC's inception, the VA OGC issued
approximately 80-100 precedent opinions per year. Today, VA OGC issues
less than three opinions per year. Clearly, precedent opinions are no
longer a priority at VA OGC, and this needs to change. Veterans Service
Organizations ought to be allowed to petition VA OGC to issue precedent
opinions. If VA OGC declines to do so, then VA OGC need be required to
issue a written denial that can be appealed to the CAVC.
b) Possibly Allow the BVA to Issue 3-Judge Panel Precedent Opinions
Currently, the BVA is authorized 78 Veteran Law Judges (VLJs), but
it lacks an effective precedence mechanism. BVA decisions are non-
precedential and are not binding on future RO or BVA decisions.
Consequently, the BVA is plagued by inconsistent decision-making by
these VLJs. In order to improve the consistency of RO and BVA
decisions, VVA recommends that VA and this committee look into the
feasibility of BVA selectively issuing three-judge panel decisions to
bind all future BVA decisions with the same legal issues and fact
patterns, so that other veterans with these same legal issues do not
have to fight the same battle repeatedly. If effectively implemented,
this solution should reduce the number of appeals over time to the BVA.
c) Some believe that any precedential should only result from 3-
judge panel of the CAVC.
The reasoning here is that the CAVC judges are both more qualified,
and would therefore be the proper venue for such arguments. The CAVC
can meet in panels now, but they do not have to do so. That should
change, because the VA cannot follow the lead of the Social Security
Administration to automate most of their processes if there are not
clear precedents and settled law.
If one were a cynic, one could reasonably conclude that the VA is
doing handstands and circus tricks to avoid having precedent set that
then, of course, would be subject to judicial review.
VA Must Adopt a Social Security Administration-type of rules- based
system
During the recent appeals summit, it was mentioned that the Social
Security Administration (SSA) uses a rules-based system to improve the
consistency of SSA decisions. This is clearly the direction that the VA
must move, and move quickly.
Until the precedence issue is adequately resolved, the churning of
cases will not end, continuing to waste scarce agency resources and
harming veterans. VVA strongly recommends the proposed legislation be
amended to mandate an effective precedence-setting mechanism in the
veteran claims and appeals process. Otherwise, under the proposed
framework as it is currently written, the ``Hamster Wheel'' remains,
albeit with fewer cases at the CAVC.
II. H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM, HARMS
VETERANS BY DISINCENTIVIZING THEM FROM APPEALING TO THE CAVC,
THEREBY MAKING THE CAVC IRRELEVANT
VVA has been a long-standing and staunch advocate for judicial
review of veterans' appeals, having championed the passage of the
Veterans' Judicial Review Act (Pub. L. No. 100-687), which established
the United States Court of Veterans Appeals (now the Court of Appeals
for Veterans Claims). VVA strongly believes that veterans have the
right to judicial review of their claims for benefits under Title 38,
and we have significant concerns that the legislative framework
proposed by the VA will undermine the CAVC by disincentivizing veterans
from appealing to the CAVC. Although, technically, the current
framework does allow veterans to appeal to the CAVC, in practice, it
will make the CAVC irrelevant.
Today, the CAVC receives approximately 4,000 appeals per year,
about 50 percent of which are remanded back to BVA via a Joint Motion
for Remand (JMR). The rest of the appeals go to briefing and are
decided by the court. Currently, the VA loses 70-75 percent of its
cases at the CAVC. Under the proposed legislation, very few veterans
will elect to appeal to the CAVC after a Board of Veterans Appeals
decision, because they would risk losing the effective date of their
claim if they lose at the CAVC. Instead, it is much safer for them to
keep the protections provided by this proposed legislation by filing a
``supplemental'' claim at the Regional Office (known as the ROJ in the
legislation) and skip the appeal at the CAVC. VVA believes this will
drastically reduce the number of cases appealed to the CAVC, with the
consequence of reducing the pool of cases for the CAVC to choose from
in order to render a three-judge panel merit decision. This drastic
reduction of cases going to the CAVC will harm veterans by reducing the
number of binding cases on the VA.
VVA suggests that the proposed legislation be amended by giving
post-CAVC cases the same effective-date protection as post-ROJ and
post-BVA decisions, thereby removing the disincentive to pursue
judicial review.
In addition, veterans must be given adequate notice about all their
options for appeal under this new framework, including their ability to
continue to appeal to the CAVC. This notice should be explained not
just when a final BVA decision is issued, but also earlier in the
process, when a rating decision is issued by the RO. VVA is concerned
that the VA may not provide adequate notice to veterans regarding their
appeals option to the CAVC.
III H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM, HARMS
VETERANS BY ELIMINATING DECISION REVIEW OFFICERS (DROs) AND
REPLACING THEM WITH ``DIFFERENCE OF OPINION REVIEWS'' (DOORS) WITH
NO QUALIFICATION STANDARDS
It is in everyone's best interest to have appeals decided at the
lowest level possible in the appeals process, which is at the RO. The
Decision Review Officer (DRO) is the backbone of the VA appeals process
at the lowest level. DROs are GS-13s and come from the ranks of the
most senior raters at VBA. The effectiveness of DRO reviews can vary
from RO to RO, but generally, veterans represented by VVA have enjoyed
successful outcomes by using the DRO process. Veterans benefit from
this partnership. Unfortunately, this proposed legislation threatens
this successful relationship.
This is classic ``old VA'' of taking something that is working and
is good for veterans and proceeds to try to break it. VVA had hoped
that we were moving beyond that old destructive mindset toward real
problem solving, in a way that puts the ``veteran experience'' at the
center of all that is done.
Under the proposed legislation, the VA will eliminate the DRO
position altogether and replace the DRO function with the Difference of
Opinion Reviews (DOORs). Although senior VBA officials have stated VA
will retain all existing DRO staff as senior raters, they have also
indicated, in order to have a larger pool of staff to conduct DOORs,
they will have to use less experienced raters from lower pay scales to
perform this function.
VVA has concerns that the only requirement identified by the VA is
that the rater conducting the DOOR must be one GS pay grade higher than
the rater who issues the ROJ decision. The Duty to Assist (DTA) under
current statute is no longer required once the rating decision is
issued by the RO. VVA is concerned this will lead to less qualified
decision-makers (GS-9s to GS-12s) making DRO-type decisions. DROs,
especially experienced ones, have standing and political power at ROs
to overturn decisions. Reassigning this work to lower grade and less
experienced raters, especially without the DTA mandated under current
law, may lead to the rubber- stamping of rating decisions. These may
occur more frequently if the DOOR rater and the rater who issued the
rating decision being reviewed are at the same RO.
The VA has not explained how much work credit will be assigned for
DOORs by VBA's Work Credit System. Will DOORs be a primary or adjunct
duty for raters? Will raters be given sufficient work credit for DOORs?
If not, then DOORs will be undermined by the Work Credit System as
raters will likely avoid them - or at
least minimize the time spent on conducting a DOOR - as their
primary job depends on making their rating production quota. What good
is a DOOR if the rater is not provided sufficient work credit to
properly review the entire record to ensure all evidence was properly
weighed, and considered? VBA needs to ensure DOOR function is not
undermined by the Work Credit System.
VVA is also concerned about VA's lack of detail regarding training
of staff who will conduct DOORs. Will raters be given sufficient
training to confidently review and overturn another rater's decision?
VVA strongly believes raters, as well as all VA staff involved in the
process of adjudicating veterans claims and appeals - from clerks all
the way up to RO Directors and VLJs - ought to undergo recurring
proficiency training.
Without adequate work credit and training provided to raters
performing the DOOR function, this feature of the legislation will not
achieve the desired goal of an effective, second-level review at the
RO.
III. H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM,
HARMS VETERANS IF THE BVA IS ALLOWED TO UNDER-RESOURCE THE HEARING
LANE DOCKET UNDER THIS NEW FRAMEWORK
Under the current legislation proposed by VA, there will be two
dockets created at the BVA, one for expedited appeals (no new evidence
added, and no hearings) and the other, in which the claimant can add
evidence and request a hearing. Depending on how BVA is allowed to
allocate resources, VVA has concerns the ``hearing lane'' will be
under-resourced, thereby punishing those veterans who choose a hearing.
Any final framework must ensure the hearing lane has adequate
resources.
IV H.R. 5083, VA APPEALS MODERNIZATION ACT OF 2016, IN ITS CURRENT
FORM, HARMS VETERANS BY CLOSING OF THE RECORD BEFORE A BVA DECISION
IS ISSUED
For claims being appealed to the Board of Veterans' Appeals, VA's
new plan allows new evidence to be submitted for only 90 days following
the submission of the Notice of Disagreement and 90 days after the BVA
hearing. There is no reason for the VA to restrict the submission of
evidence in appealed cases, however, especially when the plan states
that evidence submitted after the issuance of a Rating Decision cannot
trigger VA's Duty to Assist.
This is especially important given VA's history of backlogs.
Although VA hopes BVA decisions will be issued less than a year after
the filing of a Notice of Disagreement, under the proposed legislation,
it is not outside the realm of possibility that BVA decisions end up
being decided two to three years after the Notice of Disagreement is
filed. If that is the case, not allowing a veteran to submit evidence
during that entire period completely defeats the idea that this system
should revolve around what is best for veterans, as opposed to what
makes life easier for VA administrators.
It is certainly worth noting that the overwhelming majority of
evidence that comes in after the original claim is evidence that has
been withheld or lost or just not provided in a timely manner by one
entity or another of government. Had the VA and the federal government
performed proper Duty to Assist in the first place, then the evidence
would have been available at the start of the process.
Therefore, in our opinion, the record should be open until BVA
issues a decision.
IV.H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM, HARMS
VETERANS BY CREATING A NEW ``RELEVANT'' EVIDENCE STANDARD
VA proposes to throw out entire area of case law on ``new and
material'' evidence by implanting a ``new and relevant'' evidence
standard. In order to prevent the need for additional litigation to
define what ``relevant'' evidence is, the words ``and relevant'' should
be removed from the 38 U.S.C.A Sec. 5108, and a supplemental claim
should be deemed sufficient when any ``new'' evidence is submitted.
The VA has argued that VA resources would be wasted by allowing
veterans to reopen a denied claim with nothing more than a ``picture of
a horse.'' This argument is without merit, however, as such, a
submission requires adjudication by the VA either way, and it is hard
to imagine that it would take VA too long to deny a claim on the merits
when the only evidence added since the last denial is a picture of one
or another end of a horse.
If the VA adjudicated the merits of every supplemental claim for
which ``new'' evidence was submitted, it would make the system vastly
more efficient, as it would get rid of the entire class of appeals
resulting from preliminary determinations finding new evidence not
sufficiently ``relevant'' to reopen a claim, much as ``new and material
evidence'' appeals clog the system now.
Under the proposed legislation, VA's ``relevant evidence''
definition is evidence ``that tends to prove or disprove a matter in
issue.'' This language is so general as to be meaningless, and will
certainly lead to the need for litigation to further define it. Why did
VA make this definition so vague? VVA has significant concern that the
VA is intending to make this definition more restrictive than what was
promised to stakeholders during negotiations.
V. H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM, HARMS
VETERANS BY RASING THE STANDARD FOR WHAT IS ALLEGED ON THE NOTICE
OF DISAGREEMENT
Under 7105(b) (4), BVA can ``dismiss'' an appeal if the Notice of
Disagreement does not allege specific errors of law or fact. This is
yet another preliminary determination by VA that takes just as much
time as a decision on the merits, and therefore serves only to
complicate the appeals system. It is also unclear what a veteran's
rights are after a claim is ``dismissed'' by BVA.
More importantly, the requirement that a veteran would be forced to
provide ``specific allegations of error of fact or law'' when
submitting a Notice of Disagreement is a much higher standard than
veterans currently face. There is no good reason for the VA to require
sophisticated legal reasoning for a veteran to be able to express
disagreement with the denial of his/her claim. Most veterans are not
lawyers or medical experts. The fact that veterans would also be forced
to make irrevocable decisions about issues like hearings and the
submission of evidence to BVA at the time they file a Notice of
Disagreement is far too much to put on them. This change appears to be
yet another scheme to allow VA to easily dismiss appeals.
VI H.R. 5083, VA APPEALS MODERNIZATION ACT, IN ITS CURRENT FORM, HARMS
VETERANS BY BEING DEPENDENT ON INCREASED FUNDING FOR VBA THAT WAS
EITHER NOT ASKED FOR BY VA, OR ASKED FOR AND DENIED BY OMB
Senior VA leadership proposed this legislation, but under the
assumption, VBA will receive adequate funding from the Congress to
adequately staff up the ROs to meet the added demands that will be
created by these legislative changes. The same VA senior leadership has
the responsibility to request adequate funding from Congress to ensure
they have the adequate resources to carry out VA's mission. It is
unclear if VA senior leadership, knowing they were going to initiate
the biggest and most radical change to the veterans' appeals process
since the creation of the Veterans Court nearly 30 years ago, requested
sufficient resources for VBA to carry out these additional
responsibilities. If not, why? On the other hand, if they did, but
their request was denied by OMB, then why is the administration at OMB
setting the VA up for failure?
The success of this new appeals framework is dependent on VBA
receiving adequate funding. Without adequate resources allocated to
VBA, this proposed appeals framework is doomed for failure from the
start. Is VA leadership planning to make Congress the scapegoat if
these needed appropriations are denied?
CONCLUSION
VVA supports modernizing the VA appeals process, so long as
veterans' due process rights are not abridged, and the root causes are
adequately addressed. This proposed legislation is inadequate for the
reasons stated above. As VVA has stated before, veterans' rights in the
VA claims and appeals processes should not be abridged, curtailed, or
eliminated under the guise of ``administrative efficiency.''
Most importantly, this whole effort begs the crucial question of
how best to establish precedent. Without precedent, the chaos and
``churn'' will continue. Ninety percent of claims break out in 15 to 20
basically the same claim that VA is adjudicating by hand without
precedent ten thousand to fifty thousand times each. Moreover, of
course, many of them will be wrong. The VA would have you believe that
veterans will appeal, appeal, appeal for no reason. The truth is that
the majority of those who are denied justice just go away, and suffer
in silence. That makes the life at the RO easier, but the point here is
justice for each veteran - no more, no less.
General Omar Bradley had it right when he was head of the VA and
said, ``We are here to solve the veterans' problems, not our own.''
Now if we had precedent on those above 15 to 20 basically the same
claims, then it can be automated, and we stop wasting resources on that
which can be best done by machine, and concentrate that staff power on
the 9 or 10 percent which do not fall into the above- referenced
categories, and on really doing ``duty to assist'' so that veterans
might secure the information they need to advance their claim.
H.R. 5162 - The Vet Connect Act of 2016, introduced by Congressman
Beto O'Rourke (TX-16), would authorize the Secretary of Veterans
Affairs to disclose to non-VA health care providers certain medical
records of veterans who receive health care from such providers.
This is a no-brainer: obviously, what Rep. O'Rourke's bill calls
for should be the case, as long as it conforms to HIPAA regulations. In
addition, VVA supports swift enactment of H.R. 5162.
H.R. 5392 - No Veterans Crisis Line Call Should Go Unanswered Act,
introduced by Congressman David Young (IA-3), would direct the
Secretary of Veterans Affairs to improve the Veterans Crisis Line.
Inasmuch as the provisions of this bill are straightforward and
entirely logical, it has the support of VVA.
H.R. 5407 - Introduced by Congresswoman Corrine Brown (FL-5), this
bill would direct the Secretary of Labor to prioritize the provision of
services to homeless veterans with dependent children in carrying out
homeless veterans reintegration programs.
By now, it should come as no surprise to anyone that women veterans
have become the fastest-growing segment of the homeless population.
According to the Department of Defense, in 2010 more than 30,000 single
mothers have deployed to Iraq and Afghanistan; and as of 2006, more
than 40 percent of active duty women are in fact mothers. For any
veteran, male or female, with dependent children, being identified as
homeless creates a threat and fear that local youth protective services
might assess their situation as dangerous and remove their children.
Homeless women veterans also face substantial barriers to
employment. In FY 2010, according to the VA, 77 percent of homeless
female veterans were unemployed. One of the key factors for this larger
percentage is likely the lack of accessible and affordable childcare.
In fact, according to the recent FY 2010 CHALENG report, the VA and
community providers ranked childcare as the highest unmet need of
homeless veterans from FY'2008- 2010. Additionally, many of the skills
that women veterans learn during their military service may not
translate back to the civilian workforce or may be skills for a
predominately-male field.
VVA strongly supports enactment of H.R. 5407. We also request that
funding for the program be continued through FY'2018.
H.R. 5416 - Introduced by Congressman Doug Lamborn (CO-5), this
bill would expand burial benefits for veterans who die while receiving
hospital care or medical services under the Veterans Access, Choice,
and Accountability Act of 2014.
VVA endorses this legislation inasmuch as its purpose is both
logical and obvious.
H.R. 5420 - Introduced by Chairman Jeff Miller (FL-1), this bill
would authorize the American Battle Monuments Commission to acquire,
operate, and maintain the Lafayette Escadrille Memorial in Marne-la-
Coquette, France.
Monuments and memorials to our men and women in uniform speak to
their service and their sacrifices and, in many cases, to their last
true measure of devotion. If the commission sees a need to take
responsibility for this memorial, subject ``to the consent of the
Government of France,'' VVA stands with the commission, and with the
enactment of this bill.
On behalf of VVA's members and our families, we thank you for the
opportunity to speak to these issues to you today. In addition, we
thank you as well for all that you do for our nation's veterans. I will
be glad to answer any questions that you might care to pose to me.
VIETNAM VETERANS OF AMERICA
Funding Statement
June 23, 2016
The national organization Vietnam Veterans of America (VVA) is a
non-profit veterans' membership organization registered as a 501(c)
(19) with the Internal Revenue Service. VVA is also appropriately
registered with the Secretary of the Senate and the Clerk of the House
of Representatives in compliance with the Lobbying Disclosure Act of
1995.
VVA is not currently in receipt of any federal grant or contract,
other than the routine allocation of office space and associated
resources in VA Regional Offices for outreach and direct services
through its Veterans Benefits Program (Service Representatives). This
is also true of the previous two fiscal years.
For further information, contact:
Executive Director for Policy and Government Affairs
Vietnam Veterans of America
(301) 585-4000, extension 127
Statements For The Record
AMERICAN BATTLE MONUMENTS COMMISSION
WRITTEN STATEMENT OF MAX CLELAND, SECRETARY
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to offer written testimony on behalf
of H.R. 5420, which authorizes the American Battle Monuments Commission
to acquire, operate and maintain the Lafayette Escadrille Memorial in
Marne-la-Coquette, France, a suburb of Paris. We submitted this
legislative proposal with the concurrence of the Administration,
following review by the Department of Defense, the Department of
Veterans Affairs, and other interested agencies.
The Lafayette Squadron was created on 16 April 1916, one year prior
to U.S. entry into World War I. Forty-two fliers composed the original
Escadrille (thirty-eight Americans and four French officers in
command). As the number of American volunteers grew, Americans flew for
several French units known collectively as the Lafayette Flying Corps,
in which 269 fliers served in total. Out of the 269 total American
volunteers, 68 died in the air war over France. Some of the best known
fliers were Kiffin Rockwell, Norman Prince, Raoul Lufbery and Eugene
Jacques Bullard, the only African-American fighter pilot in World War
I. When the United States entered the war in 1917, most of the
Escadrille pilots joined the U.S. Air Service, teaching air combat
tactics to those who followed them to France. The Lafayette Escadrille
ceased to exist on February 18, 1918 and the U.S. 103rd Pursuit
Squadron took on its symbols and traditions.
The memorial to these air combat pioneers was constructed in the
1926-28 period and inaugurated on July 4, 1928. The Lafayette
Escadrille Memorial is a private memorial about five miles west of
Paris. It honors these 269 American volunteers who flew for French and
United States units during the Great War. But it is more than a
memorial; it is a burial ground. A crypt beneath the memorial contains
68 sarcophagi, one for each of the 68 Americans of the Lafayette
Escadrille who died in the skies over France; 49 Americans and two
French officers rest there in honor today. Seventeen sarcophagi have
remained empty because either the remains could not be found or were
transferred.
ABMC has a history of involvement with the Lafayette Escadrille
Memorial, approving the Foundation's construction plans in 1924, a
predicate for any administrative agency of the U.S. Government, such as
the State Department, to assist the founders. ABMC also managed the
maintenance of the memorial for the Foundation from 1971 to 1983, using
Foundation funds under the authority of our Monument Maintenance
Program. The Foundation ended this arrangement in 1983 and over the
years the original trust fund established to maintain the memorial
dwindled and the memorial fell into a state of disrepair. As a World
War I Centennial initiative, ABMC and the French Ministry of Defense
partnered with the Foundation to complete a $1.7M restoration project,
using funds provided by the Foundation, by private donors in the United
States, and by the French government. The memorial was rededicated on a
beautiful spring day in Paris, on the occasion of the Centennial
Anniversary of the Escadrille's establishment on April 20, 1916. It
again stands as a beautiful tribute to service and sacrifice, but the
Foundation is no longer able to maintain the memorial to a standard
commensurate to the American sacrifice it honors.
It is time to bring the memorial and the pioneering airmen buried
beneath it under the perpetual care of the U.S. Government. There are
several compelling reasons to do so.
1.The vision for the Lafayette Escadrille Memorial was to have the
American pilots resting together in a memorial that allowed the spirit
of their enlistment to live on. This spirit reflects the historical
cooperation between the United States and France. Just as France came
to the aid of the United States during our revolution, the United
States came to France's aid in two world wars. The memorial has become
an important part of the U.S. Ambassador's Memorial Day commemorations
and in other ceremonies within the American community, such as the high
school graduation of the American School of Paris.
2.Since American participation in World War I began unofficially
with volunteers in units such as the Lafayette Escadrille, the memorial
could serve as a point-of-entry for ABMC's World War I interpretation
efforts. Its location near Paris facilitates that purpose.
3.The U.S. Air Force considers the Lafayette Escadrille to be an
important part of its tactical origins. The Air Force ties it history
to the American men who flew with that unit and later joined the U.S.
Air Service. The American pilots of the Lafayette Escadrille were
combat veterans, whose wartime experiences were extremely valuable to
the newly-arrived American units and the development of combat tactics
within the Air Service. The Marine Corps considers Belleau Wood, which
is part of the Aisne-Marne American Cemetery, to be an important part
of its heritage. The continued support of the Marine Corps and its
active participation at Memorial Day ceremonies is a highlight for
Aisne-Marne and ABMC. The Lafayette Escadrille Memorial will serve a
similar purpose for the Air Force.
4.Most importantly it's the right thing to do. The Foundation
passed a resolution approving transfer to ABMC of full legal title to
the memorial site, including the land, memorial, crypt and caretaker's
cottage, by gift or in exchange for symbolic consideration. We have
assurances that the French government is prepared to incorporate the
Memorial into the bilateral treaty granting the U.S. perpetual use of
French lands, at no cost or taxation, for the commemorative cemeteries
and memorials that ABMC maintains in France. Representatives of the
French Ministries of Defense and Interior sit on the LEM Foundation
Board and voted to approve the Foundation resolution.
With the concurrence of the Foundation and the Government of
France, it is appropriate that ABMC, on behalf of the American people,
assume responsibility for preserving and protecting in perpetuity this
memorial tribute and final resting place for pioneering combat Airmen
who gave their lives in one of the most pivotal wars of the twentieth
century. ABMC will incur no costs to acquire or transfer the memorial.
The Commission will operate and maintain the memorial within existing
appropriations.
Mr. Chairman, the American Battle Monuments Commission appreciates
very much the Committee's support of our sacred mission. We believe it
is time for the Lafayette Escadrille Memorial to become an important
and significant addition to that mission, so that, in the words of
General John J. Pershing, Commander of the World War I American
Expeditionary Forces and our first Chairman, ``Time Will Not Dim the
Glory of Their Deeds.''
AMVETS
AMY WEBB, AMVETS LEGISLATIVE POLICY ADVISOR
Chairman Miller, Ranking Member Brown, and distinguished Members of
the Committee,
Since 1944, AMVETS (American Veterans) has been one of the largest
congressionally-chartered veterans' service organizations in the United
States and includes members from each branch of the military, including
the National Guard, Reserves, and Merchant Marine. We provide support
for the active military and all veterans in procuring their earned
entitlements, and appreciate the opportunity to present our views on
the twelve bills being considered today.
H.R. 3216 - Veterans Emergency Treatment (VET) Act
If enacted, the VET Act would ensure that, regardless of their
service connection, veterans enrolled in the Department of Veterans
Affairs (VA) health care system could request a medical examination or
treatment at VA emergency departments to determine if a medical
emergency existed. In the case of a medical emergency their condition
would be stabilized and they would have the option to be transferred to
another VA or non-VA medical facility.
Veterans with a medical emergency could only be transferred to
another facility if they were medically stabilized, unless the veteran
makes a written transfer request after being made aware of the risks;
or if a physician, or qualified medical professional if a physician is
not present, certifies that the medical benefits of a transfer outweigh
the risks to the veteran and, in the case of labor, to the unborn
child.
The receiving facility must have available space and qualified
personnel to provide appropriate medical treatment to the veteran or
unborn child, and agree to accept the veteran as a patient. The
transferring facility would be required to send the receiving facility
all medical records available related to the veteran's medical
condition, and the transfer must be handled by qualified personnel and
transportation equipment, including the use of life support if
appropriate.
If a VA employee refuses to authorize the transfer of an enrolled
veteran with a non-stabilized emergency medical condition, or reports a
violation this Act, the VA may not take adverse action against them.
Additionally, no medical facility may delay medical care or treatment
of an enrolled veteran in order to inquire about their insurance status
or payment method.
AMVETS supports this bill, which is in line with our founding
principles of expediting and assisting the rehabilitation and care of
veterans, including access to care. The VET Act would ensure that any
enrolled veteran, including women veterans who may be in labor, receive
the emergency medical treatment that they and their unborn child need.
This is also in line with our National Resolution on women veterans'
health care, which states in part that VA should continue to work to
implement an equitable health care delivery model for women and ensure
they have access to timely and appropriate health care.
H.R. 4150 - Department of Veterans Affairs Emergency Medical Staffing
Recruitment and Retention Act
This measure would allow Department of Veterans Affairs (VA)
physicians and physician assistants to modify their hours of full-time
employment to be more or less than 80 hours in a biweekly pay period,
as long as the employee works no more than 2,080 hours per calendar
year.
AMVETS supports this measure in the effort to assist VA in its
improvement of recruitment, hiring, and retention policies to help
ensure the timely delivery of high quality health care to all enrolled
veterans.
H.R. 4764 - Puppies Assisting Wounded Servicemembers (PAWS) Act of 2016
This bill directs the Department of Veterans Affairs (VA), through
the Office of Patient Centered Care and Cultural Transformation, to
carry out a five-year pilot program providing service dogs and
veterinary health insurance to selected post-9/11 veterans who have
been diagnosed with, and continue to suffer from, severe post-traumatic
stress disorder (PTSD).
The provision of a service dog would not replace established
treatment modalities for PTSD, and veterans considered for selection
would rank at levels three and four on the Clinician-Administered PTSD
Scale for DSM-5 (CAPS-5). According to the scale, level three indicates
a severe or markedly elevated problem 50 to 60 percent of the time,
where it is difficult and at times overwhelming to manage symptoms.
Level four indicates extreme or incapacitating symptoms, where PTSD is
pervasive, unmanageable, and overwhelming.
Eligible veterans must have completed an established evidence-based
treatment for PTSD without suitable improvement and remain
significantly symptomatic. Once selected for participation in the
pilot, veterans must see a VA primary care physician or mental health
care provider at least quarterly in order to continue receiving VA
provided veterinary health insurance.
VA would enter into contracts for obtaining and training service
dogs with providers that are Assistance Dogs International (ADI) or
comparably certified, that on average provide one-on-one training with
each service dog for a minimum of 30 hours over at least 90 days. The
organization would also provide an in-house residential facility where
the veteran and service dog would stay for at least ten days in order
to receive a minimum of 30 hours of training as a team. All service
animals would be required to receive a wellness verification from a
licensed veterinarian and pass the American Kennel Club Canine Good
Citizen test prior to permanent placement with a veteran. The training
organization would provide follow-up support services for the life of
the service dog.
The cost for the procurement and training of any canine would not
exceed $27,000, which is within the industry standard for a well-
trained service dog.
Within six months of the pilot program's completion, the United
States Comptroller General would submit a report to Congress evaluating
the effectiveness of the program in helping veterans with severe PTSD
live more normally. Relevant metrics would include reduction in scores
under the PTSD checklist (PCL); improvement in psychosocial function;
therapeutic compliance; and reducing dependence on prescription
narcotics and psychotropic medication. Recommendations with respect to
the continuation or expansion of the program would also be included.
While the VA does not compensate veterans for the care of service
dogs that assist veterans with PTSD as they do for some physical
conditions, they remain in the midst of a $12-million-dollar study to
measure the cost and mental health benefits of pairing well-trained
service dogs with veterans diagnosed with PTSD. The study also aims to
compare service dogs and emotional support dogs in how they assist
veterans with PTSD. Unfortunately, the study has been beset by many
setbacks, including improper pairing of poorly trained dogs with
veterans, and for being slow in acquiring and pairing dogs with
veterans. After undergoing a pause and reorganization, the VA study
picked back up in 2015 and is set to be complete in 2018.
AMVETS sees the importance of well-trained and well-paired service
dogs, and the impact this relationship has on individuals and veterans
with physical and emotional illnesses or wounds. Service dogs are able
to perform specific tasks to assist with the symptoms of PTSD such as
learning commands to help secure space, turn on lights, sweep a room
prior to a veteran entering and bark if anyone is present, to wake them
up during a nightmare, remind them to take medication, and pick up on
stress cues and offer calming support.
The AMVETS Ladies Auxiliary has worked with ADI accredited ``Paws
with a Cause'' as its National Community Service program for nearly
thirty years in a consistent effort to help veterans with visible and
invisible wounds obtain a service dog to enhance their daily
functioning. Through this partnership, AMVETS has seen firsthand the
marked benefits to a veteran's quality of life when paired with a well-
trained service dog.
The intent of this bill is in line with our National Resolution on
VA mental health care that strongly recommends Congress appropriate
more dedicated funding for mental health care and related programs and
services. While AMVETS supports passage of the PAWS Act, it is with the
stipulation that great care, consult, and oversight occur when awarding
a contract to an organization that trains the service dogs; in choosing
veterans who are able to manage the continued care and training the dog
will require; in closely following those who are part of the pilot
program; and in setting expectations for how quickly the veteran can
obtain a dog. Fully trained service dogs are quite rarely immediately
available, but once paired with a receptive and willing owner, the
benefits can be extraordinarily rewarding. AMVETS looks forward to
providing any assistance needed to properly choose organizations that
provide trained animals that can effectively support veterans with
PTSD.
H.R. 5047 - Protecting Veterans' Educational Choice Act of 2016
This act instructs Department of Veterans Affairs (VA) educational
and vocational counselors who provide services to eligible veterans to
share information about the formal agreements or partnerships between
two or more Colleges and Universities in which the veteran is
interested, and the transfer policies for a specific academic program
or degree.
When the VA Secretary provides veterans a certification of
eligibility for VA educational assistance, this bill would ensure that
detailed information on such educational assistance, requesting
education counseling services, and on articulation agreements is made
available.
In the interest of ensuring that all benefits available to veterans
are fully explained, AMVETS supports passage of this legislation.
H.R. 5083 - VA Appeals Modernization Act of 2016
This Act seeks to, among other things:
modernize and remedy a number of issues within the
current Department of Veterans Affairs (VA) appeals processing system
by creating three distinct `lanes' to address specific needs of
veterans;
improve Veterans Benefits Administration (VBA) decision
notices; and
provide effective date protection.
Large numbers of VA disability appeal cases are sent back for
review - sometimes multiple times - and these cases must be addressed
before any new cases can be opened. This cumbersome process often leads
to veterans waiting years for a final decision on their case.
AMVETS supports this Act, which is in line with our National
Resolution addressing the claims and appeals backlog which calls for
improving the timeliness of all disability claims and appeals, and
believes that remedies need to be put in place so the more than 440,000
veterans currently in the appeals process are granted a swift solution.
We look forward to assisting in its passage.
H.R. 5162 - Vet Connect Act of 2016
This measure would allow the Department of Veterans Affairs (VA) to
disclose certain medical records of veterans to non-VA entities which
provide hospital care or medical treatment to veterans.
In light of VA's consolidated community care plan that was devised
to address VA's sharp increase in demand for care, AMVETS believes it
is vital that non-VA providers treating veterans for a myriad of
conditions have access to medical records in order to properly advise
on treatment and provide suitable medical care. AMVETS supports passage
of this bill.
H.R. 5166 - Working to Integrate Networks Guaranteeing Member Access
Now (WINGMAN) Act
WINGMAN seeks to streamline the benefit claims procedure between
the Department of Veterans Affairs (VA) and Congressional constituent
advocates who process claims on behalf of veterans and their families.
Under WINGMAN, an accredited, permanent Congressional employee
would have access to electronic Veterans Benefits Administration (VBA)
records in a read-only fashion in order to review the status of a
pending claim, medical records, compensation and pension records,
rating decisions, statement of the case, supplementary statement of the
case, notice of disagreement, and Form-9 files. This eliminates the
time-consuming step of using the VA as a middle-man to receive files
the Congressional employee already has permission to possess.
AMVETS supports this bill, which is in line with our National
Resolution addressing the claims and appeals backlog which calls for
improving the timeliness of all disability claims and appeals, and
agrees that it is unacceptable for weeks or months pass before
advocates are able to receive files they requested to help veterans.
H.R. 5392 - No Veterans Crisis Line Call Should Go Unanswered Act
This measure would direct the Secretary of Veterans Affairs to
develop a Veterans Crisis Line (VCL) quality assurance document which
would outline measurable performance indicators and objectives to
improve its responsiveness and care of veterans in crisis, including
all backup call centers. This Act would also outline quantifiable
timeframes to meet objectives in tracking the progress of the quality
assurance document, and be consistent with guidance issued by the
Office of Management and Budget.
The Secretary would be instructed to create a plan to ensure that
every telephone call, text message, or other form of communication
received by the VCL and its backup call centers is answered by a person
in a timely manner consistent with the guidance established by the
American Association of Suicidology. Periodic testing of the VCL and
its backup centers would be conducted during each fiscal year to
identify and quickly correct any issues or gaps in care.
Within 180 days of enactment, the Secretary would submit a report
to the House and Senate Committees on Veterans' Affairs containing the
developed quality assurance document and plan.
AMVETS supports this bill, and notes that the February 11, 2016
Department of Veterans Affairs Office of Inspector General (OIG)
healthcare inspection report 14-03540-123 which investigated the caller
response of the Veterans Crisis Line made seven recommendations to the
VHA Office of Mental Health Operations Executive Director. Among those
recommendations were to ensure that issues regarding response hold
times are addressed, that a formal quality assurance process be
established, and to collect, analyze, track and trend data on an
ongoing basis in order to address gaps or call issues in a timely
manner.
Once a veteran, or their loved one, reaches the point of asking for
help, the system designed to assist them during a life threatening
crisis must fully function and stand ready at all times to intervene.
Not one call or text should be missed. AMVETS look forward to swift
passage of this important legislation.
H.R. 5407 - To amend title 38, United States Code, to direct the
Secretary of Labor to prioritize the provision of services to homeless
veterans with dependent children in carrying out homeless veterans
reintegration programs, and for other purposes.
This bill would direct the Secretary of Labor to prioritize the
provision of services to homeless veterans with dependent children in
carrying out homeless veterans' reintegration programs. The bill would
also require additional reporting to include an evaluation of services,
inclusion of an analysis of any gaps in access to shelter, safety, and
services for homeless veterans with dependent children, and
recommendations for improving any gaps.
The Homeless Veterans' Reintegration Program (HVRP) provides
services to assist reintegrating homeless veterans into meaningful
employment. Services include job placement, training, career
counseling, and resume preparation. Supportive services such as
clothing, provision of or referral to temporary, transitional, and
permanent housing, referral to medical and substance abuse treatment,
and transportation assistance are also provided to meet the needs of
these veterans.
AMVETS supports this measure based on our National Resolution
addressing ending veteran homelessness. We remain a strong partner in
this goal and recognize that homeless veterans, or veterans at-risk of
becoming homeless, many times present with dependent children as they
seek assistance. Current provisions often do not meet their needs and
we support remedies to address this deficiency.
H.R. 5416 - To amend title 38, United States Code, to expand burial
benefits for veterans who die while receiving hospital care or medical
services under the Veterans Choice Program of the Department of
Veterans Affairs, and for other purposes.
This measure would expand Department of Veterans Affairs (VA)
burial benefits for veterans who die while receiving hospital care or
medical services to include those receiving care under VA's Veterans
Choice Program.
As the Department of Veterans Affairs (VA) moves forward with its
plan to consolidate community care, VA continues to examine how the
Veterans Choice Program interacts with other VA health programs,
including the delivery of direct care. Based on our National Resolution
addressing burial benefits, AMVETS support passage of this bill and the
intent to update title 38 to reflect that veterans may be receiving VA
health care in a non-VA facility at the time of their passing and
should receive a burial benefit.
H.R. 5420 - To authorize the American Battle Monuments Commission to
acquire, operate, and maintain the Lafayette Escadrille Memorial in
Marne-la-Coquette, France.
This bill would authorize the American Battle Monuments Commission
to acquire, operate, and maintain the Lafayette Escadrille Memorial in
Marne-la-Coquette, France.
The Commission would carry out its duties pursuant to an agreement
with the Lafayette Escadrille Memorial Foundation and would be subject
to the consent of the Government of France. Additionally, the
Commission could only employ the personnel needed to carry out this
Act.
AMVETS has no position on this bill.
H.R. 5428 - Military Residency Choice Act
This Act would amend the Servicemembers Civil Relief Act by adding
that the spouse of a servicemember may elect to use the same residence
as the servicemember for purposes of taxation regardless of the date of
the date of their marriage. This would apply to any state or local
income tax filed for the taxable year beginning with the year that
includes the date of enactment.
The Servicemembers Civil Relief Act would be further amended by
adding that a person who is absent from a state because they are
accompanying their spouse in compliance with military or naval orders
shall not, solely by reason of that absence, lose residence in that
state without regard to whether or not they intend to return; or have
it assumed that they have acquired residence in another state. The
spouse of a servicemember may elect to use the same residence as the
servicemember regardless of the date of their marriage for purposes of
voting.
AMVETS is not opposed to the passage of this Act and supports the
intention of lessening confusion regarding residency relevant to state
and local taxation and voting issues for the spouses of servicemembers.
Mr. Chairman and members of the Committee, this concludes my
testimony and would be happy to answer any questions the Committee may
have.
COURT OF APPEALS FOR VETERANS CLAIMS
THE HONORABLE LAWRENCE B. HAGEL, CHIEF JUDGE
MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE COMMITTEE:
Thank you for the invitation to submit a statement of the Court's
views on legislation pending before the Committee, in particular H.R.
5083 (the VA Appeals Modernization Act). The Court's comments will be
brief.
Although changes to VA's appeals processing will eventually impact
the Court, the pending legislation does not amend the statutory
provisions governing the Court's function. For this reason, the Court
will not speculate as to consequences of changes that pertain only to
the agency or comment on provisions that may ultimately come before the
Court in a case. We do, however, offer the following thoughts on the
implementation plans for broad changes to the VA claims processing
system, and on the need to ensure that claimants are aware of their
right to appeal to a court of law and that the exercise of that right
is not disincentivized.
Implementation: H.R. 5083 does not address how the proposed
legislative changes would be implemented. It is, however, the manner in
which the pending legislation is implemented that will have the most
profound immediate effect on the Court because appeals to the Court
generally stem from those claims that have already received agency
appellate review. In testimony last month to the Senate Committee on
Veterans' Affairs, VA Deputy Secretary Gibson said that VA anticipated
prospective application, meaning that any statutory changes would apply
only to new claims filed with VA after the date of enactment. In recent
testimony before this Committee, Secretary Gibson said that VA is
working with various stakeholders and discussing different
implementation ideas that may envelop pending appeals into the proposed
system. Any implementation plan for sweeping legislative change to the
VA claims processing system will certainly have its challenges, and we
offer no comment on what those may be. We are, however, attempting to
anticipate the impact on the Court and best estimate and prepare for
the workload that may result from these changes should they become law.
Generally speaking, appeals filed at the Court come from veterans
who are dissatisfied with a decision of the Board of Veterans' Appeals
(Board). VA Deputy Secretary Gibson recently testified that more than
450,000 appeals are pending before VA. The Board decided more than
55,000 decisions in fiscal year 2015, and has pledged to further
increase its number of annual decisions. For fiscal year 2017 VA
requested additional funding to increase staffing to further grow the
number of decisions the Board renders annually. Faced with this data,
the Court projects a steadyBif not increasedBnumber of appeals over the
next several years resulting in the continued need for nine judges.
The Court has a permanent authorization for seven judges, but
effective in 2009, received temporary authorization to expand to nine
judges. We reached that full complement in December 2012 and were
fortunate to operate with nine judges for almost three years until the
retirement of one of our colleagues ten months ago, reducing the
active-judge count to eight. With nine-judge staffing the Court was
able to conduct effective, efficient, and expeditious judicial review,
and your support in providing the resources to handle our heavy
caseload is very much appreciated. Under current law, the Court will be
authorized to continue to operate with eight judges until the next
retirement. At that time, the authorized number of active judges
reverts to seven. The reality, however, is that two judges' terms
expire within days of each other in December 2016. At that time, the
Court will be reduced to six active judges. Faced with the strong
likelihood that VA will maintain, if not increase, the number of
decisions the Board renders this coming year and for the next several
years, the Court maintains that the need for nine full-time judges
continues to exist. Thus, we ask for the Committee's support in
renewing the authorization of nine judges on the Court.
Advisement and Exercise of Appellate Rights: In reviewing H.R. 5083
the Court is also mindful of ensuring that veterans and their families
remain aware of their right to judicial review and have a fair
opportunity to exercise that right. Under current law, the system for
filing and pursuing a claim for VA benefits is somewhat linear, in the
sense that there is basically one path for pursuing a claim from a VA
regional office, to the Board of Veterans' Appeals, to the Court. At
the current time, accompanying each Board decision is a standard notice
of appellate rights, informing claimants of their options, to include
the right to appeal to the Court should they not be satisfied with the
benefits accorded to them by VA. Under the proposed legislation,
following an agency denial a veteran would have the opportunity to
repeatedly pursue a claim within the first-level agency review, and
indeed there may be incentive for veterans to do so because that path
would preserve the earliest effective date possible for any grant of
benefits. That structure could potentially result in a veteran never
securing a Board decision that could be appealed to the Court, never
being informed of the Court's existence, and never receiving appellate
rights and the opportunity to exercise such rights. The Court states no
opinion on whether or not the proposed changes are ``good for''
individual veterans or the overall system. We do, however, want to
ensure that veterans remain aware of the full array of options
available to them in pursuing a claim and that no option be
disincentivized. Thus, we believe that it is critical that any changes
to the process not unintentionally obfuscate veterans' understanding of
their right to judicial review. Many people fought long and hard to
secure impartial review of adverse VA decisions by a federal court that
by definition is independent of VA. It is our firm belief that veterans
and their survivors must continue to know about and understand that
right, and they must have fair access to the Court, as well as the
ability and means by which to pursue that judicial review.
In closing, on behalf of the Court, I express my appreciation for
your past and continued support and for the opportunity to provide this
statement. Thank you.
IAVA
Summary of IAVA Testimony
IAVA is optimistic that the VA Appeals Modernization Act (H.R.
5083) could greatly improve the appeals process and provide veterans
with options at both VBA and BVA. It would enable veterans to choose
the most appropriate venue based on their individual circumstances.
However, VBA and BVA must first address the 440,000 appeals now pending
for any new appeals system to be successful. Oversight by Congress will
be necessary to ensure these legacy appeals are properly resolved. To
reach comprehensive appeals reform H.R. 5083 is the perfect place to
start.
IAVA supports the goals of the Puppies Assisting Wounded
Servicemembers (PAWS) Act (H.R. 4764) and sees it as a good first step.
We encourage VA and HVAC to work toward establishing a pilot program
that will lead to a lasting VA effort to accommodate and expand the
treatment options involving service dogs. To improve the bill, IAVA
recommends allowing veterans to receive the service dog as
complementary therapy rather than requiring them to go through therapy
first, and requiring veterans to go through a more rigorous mental
health treatment plan. The standard in the bill for organizations
providing the service dogs is too broad and we recommend defining a
gold standard that these dogs must meet. Also, IAVA would like to know
how funding H.R. 4764 with $10 million from the VA's Office of Human
Resources would impact agency personnel operations. Due to widespread
appeal and benefit to veterans, the VA should invest in further
research and outreach to clarify and expand the use of service dogs.
IAVA supports the Protecting Veterans' Educational Choice Act (H.R.
5047). There has been concern that some schools are misrepresenting
articulation agreements and leaving veterans with unusable credits and
wasted GI Bill benefits and it is important that the VA educational
counseling services provide information that can best inform veterans
of the long term implications and credit transferability of certain
programs. Ensuring bad actors are identified and veterans are informed
about the school will strengthen the GI Bill's ability to invest in the
success of veterans.
IAVA supports the Lafayette Escadrille Memorial in Marne-la-
Coquette, France (H.R. 5420). The memorial comes after the passing of
all American veterans of WWI, and this should also be a lesson in not
waiting too long to provide a place for veterans and their families to
honor and reflect on their service. An overwhelming 82 percent of IAVA
members support the creation of a memorial to the service and
sacrifices of post-9/11 veterans on the National Mall and are ready to
galvanize all Americans in support.
While IAVA applauds the intent of the No Veterans Crisis Line
Should Go Unanswered Act (H.R. 5392), we need to better understand
existing quality control standards at the VA's crisis call centers and
how such standards are enforced and monitored before requiring
potentially conflicting or duplicative quality control standards. More
concerning is the decision to move the Veterans Crisis Line from under
the directorship of the VA Suicide Prevention Office to VA Member
Services. This move was made at the start of the year and since then,
we have had no indication as to the impact of this reorganization.
While Member Services overseas all of the call centers at VA, the VCL
is the only call center with a clinical component and removing clinical
oversight may have dire consequences. While there is no question that
the operational component of the VCL needs improvement, IAVA is
concerned that the VA has overcorrected in this management shift. We
ask Congress to query this matter further and urge the VA to consider
shifting management back to the Suicide Prevention Office with
consultation on operations from Member Services or some other
appropriate entity.
IAVA
by Elizabeth Welke, J.D, Director (acting), Political and
Intergovernmental Affairs
Chairman Miller, Ranking Member Brown and Members of the Committee,
on behalf of Iraq and Afghanistan Veterans of America (IAVA) and our
more than 425,000 members, thank you for the opportunity to share our
views on pending legislation, including the ``VA Appeals Modernization
Act'' (H.R. 5083), the Puppies Assisting Wounded Servicemembers (PAWS)
Act'' (H.R. 4764), and the Protecting Veterans' Educational Choice Act
(H.R. 5047), Authorizing the Lafayette Escadrille Memorial in Marne-la-
Coquette, France (H.R. 5420), and the No Veterans Crisis Line Call
Should Go Unanswered Act (H.R. 5392)
VA Appeals Modernization Act of 2016 (H.R. 5083)
Over the past few months, IAVA has worked collaboratively and
intensely with the Board of Veterans Appeals (BVA), the Veterans
Benefit Administration (VBA) and other key stakeholders in order to
develop a new appeals process framework. The ideal process would
provide quicker, more accurate decisions for veterans and family
members seeking benefits based on their military service, and provide
more options to resolve appeals quickly, while fully protecting
veterans' rights in the claims and appeals process.
IAVA is optimistic that the VA Appeals Modernization Act of 2016
(H.R. 5083) could greatly improve the appeals process and provide
veterans with a number of options at both VBA and BVA. It would enable
veterans to choose the most appropriate venue based on their individual
circumstances. However, one critical issue must be fully addressed to
make this new system successful is that the VBA and BVA must address
the 440,000 current appeals that are pending. Pending appeals must be
resolved for any new appeals system to be successful.
Oversight by Congress will be necessary to ensure these legacy
appeals are properly handled and resolved. IAVA applauds theVA, partner
VSOs and this Committee for pushing forward an attempt to modernize an
appeals system that has become laden by bureaucracy and is not at all
beneficial to veterans. By continuing to collaborate, it is possible to
reach comprehensive appeals reform this year, and H.R. 5083 is the
perfect place to start.
Puppies Assisting Wounded Servicemembers (PAWS) Act of 2016 (H.R. 4764)
The demand for service dogs, trained to assist disabled veterans
with daily tasks, is on the rise as veterans are seeking a more
comprehensive approach to care. In IAVA's Member Survey, nearly 20
percent of respondents indicated they are using animal-assisted
therapies, which includes, but is not limited to, service dogs as part
of their care regimen. IAVA members continue to rely on service dogs
and find them to be an essential part of their recovery. The VA
currently has a research program underway to further examine the
potential benefits of psychological service dogs for veterans which was
mandated by Congress in 2010. However, the research has been plagued by
delays, and the new estimated completion date is some time in 2018.
While IAVA is a huge proponent of research, we also recognize the need
for more immediate action.
IAVA applauds former U.S. Marine Corps Corporal and Afghanistan
veteran Cole Lyle, a major proponent of the PAWS Act, for his efforts
to underscore this problem and the importance of finding a solution.
With his service dog Kaya, who helps him overcome the struggles of
PTSD, Lyle has been tirelessly walking the halls of Congress to make
the case for expanding the available treatment options for post-9/11
veterans carrying the invisible burden of post-traumatic stress.
We would like to also thank Congressman DeSantis and his staff for
their energy and dedication to improving the lives of veterans like
Cole Lyle through legislation proposing a five-year pilot program under
which the VA shall provide service dogs and veterinary health insurance
to post-9/11 veterans with PTSD.
IAVA strongly supports the goals of this legislation and see it as
a good first step. We encourage the VA and this Committee to work with
Mr. Lyle and Congressman DeSantis toward establishing a workable pilot
program that will lead to a lasting VA effort to accommodate and expand
the treatment options involving service dogs.
However, IAVA is concerned by the provision included in this
legislation that limits providing service dogs only to veterans who
have gone through therapy and with no improvement. If the funding is
available, IAVA would prefer that qualified veterans receive the
service dog as complementary therapy. We also feel the program would be
more beneficial if the participating veterans were required to go
through a more rigorous mental health treatment plan that would
incorporate evidence-based treatments with a qualified provider. This
would allow the pilot to better determine the role of the service dog
in assisting recovery, a question yet unanswered by research and that
is extremely important to understanding the contribution of service
dogs in the context of a larger treatment program.
We commend this legislation for setting a standard for
organizations providing service dogs, despite our concerns the
standards have been set too broad. IAVA recognizes a need for a
rigorous standard for service dogs as there are a number of service dog
organizations advertising their services to the military and veteran
communities. Some of these organizations do a fantastic job of training
high quality assistance animals, but others do not. Anecdotally, we
have heard from veterans their experiences receiving less than
qualified dogs and the negative impact it had on their family and their
health. We encourage Congress and the Obama Administration, working
with experts in the mental health and service dog communities, to
better define a gold standard these dogs must meet and consider a
certification process that can remove some of the uncertainty.
IAVA is also concerned about the impacts of funding the measure
with $10 million from the VA's Office of Human Resources and
Administration. With the enormous personnel challenges the VA currently
faces, we would like to know from the VA exactly how personnel
operations would be impacted with this proposed readjustment. As this
is the second iteration of a funding source for the bill, any final
provision must not subtract funds from existing earned critical
veterans services or benefits, like the Post-9/11 GI Bill.
As this bill to improve service dog legislation moves forward IAVA
would like to know from the VA how many veterans under agency care with
PTSD rated at a severity level of three or four would be eligible to
benefit under this bill, and how the agency is evaluating the
difference between service and emotional support dogs.
Due to their widespread appeal and apparent benefit to veterans,
the VA should invest in further research and outreach to clarify and
expand the use of service dogs.
Protecting Veterans' Educational Choice Act (H.R. 5047)
Over one million veterans have gone to school under the Post-9/11
GI Bill. As a critical readjustment benefit, the Post-9/11 GI Bill not
only helps veterans transition back home, but invests in veterans who
go on to build and strengthen the US economy. Though a widely
successful benefit, the Post-9/11 GI Bill has been exploited by some
schools to prey on veterans while providing a subpar education with
credits that cannot be transferred to other schools.
This proposed legislation would require education counseling to
include information about articulation agreements, which would aim to
help better educate veterans about the realities of transferring
credits from one program to another. Articulation agreements are
agreements between institutions that identify which credits from one
specific program can be transferred to another institution.
We have heard that some schools are misrepresenting articulation
agreements and leaving veterans with unusable credits and wasted GI
Bill benefits. With the wealth of advertising directed towards veterans
and school options available to student veterans, it is important that
the VA educational counseling services provide information that will
best inform veterans of the long term implications and credit
transferability of certain programs. Requiring educational counseling
to include articulation agreement information for schools being
considered by a student veteran will aid in informed decision making by
veterans looking to use their GI Bill benefits.
Defending the Post-9/11 GI Bill is a top priority for IAVA and its
members, and because of this, IAVA supports the Protecting Veterans'
Educational Choice Act. In addition to defending the GI Bill from cuts
to this earned benefit, it is also important to defend it from fraud
and abuse. Ensuring bad actors are identified and veterans are informed
about the realities of the school will only strengthen the GI Bill's
ability to advance the success of veterans.
Authorizing the Lafayette Escadrille Memorial in Marne-la-Coquette,
France (H.R. 5420)
As we approach the centennial of America's involvement in World War
I (WWI), it is important for us as a nation to honor the sacrifices of
the men and women sent to Europe for the ``Great War''. With over
100,000 Americans killed and over 200,000 wounded, the impact of WWI
should be honored and memorialized. This memorial in particular will
honor a truly courageous group of Americans who were willing to support
the French effort in WWI as pilots prior to the U.S. entering the war.
IAVA honors the service and sacrifice of the veterans who came
before us, and therefore supports H.R. 5420. The formal recognition of
this memorial comes after the passing of all American veterans of WWI,
but with this memorial, we can continue to honor their memory.
This should also be a lesson in not waiting too long to provide a
place for veterans and their families to honor and reflect on the
service of our nation's veterans.
Only 22 percent of IAVA members who responded to our Member Survey
felt that the American public understands the sacrifice of Iraq and
Afghanistan veterans and their families. This number is far too low,
and this perception must change. Service members and veterans need to
feel supported by the American public, and it's up to the American
public to deliver on this.
More than 6,000 service members have given their lives for this
country in Iraq and Afghanistan. The nation must first honor these men
and women by supporting their families who are left behind.
Furthermore, the time has come for our nation to honor the sacrifice of
our fallen post-9/11 troops with a memorial on the National Mall. A
monument will give families and veterans a place to gather and mourn,
giving the nation an enduring reminder of the heroism of our military
and the sacrifices made.
The new generation of veterans shouldn't wait years to see a
memorial in their honor, as those who served in Vietnam and World War
II were forced to do. An overwhelming 82 percent of IAVA members
support the creation of a memorial and are ready to galvanize all
Americans in support.
No Veterans Crisis Line Call Should Go Unanswered Act (H.R. 5392)
While IAVA applauds the intent of the No Veterans Crisis Line
Should Go Unanswered Act, and strongly agrees no crisis call should go
unanswered, we would like suggest the need to better understand
existing quality control standards at the VA's crisis call centers as
they currently stand. We would also like to understand how such
standards are enforced and monitored before introducing potentially
conflicting or duplicative quality control standards.
Since there are existing quality standards already in place for VA
crisis line call centers, we believe there should be questions answered
before layering additional requirements on the VA. Are these standards
being enforced? Are they being met? Do these standards apply to
contracted call centers, as well? Are the existing standards strict
enough to ensure no veteran's call goes unanswered?
There is no question that more work is needed to ensure access to
quality mental health care and suicide prevention measures at the VA
and within local communities, but we must try to prevent conflicting
and duplicative requirements, when possible, to prevent further
confusion and bureaucratic red tape slowing down access to care.
More concerning is the decision to move the Veterans Crisis Line
from under the directorship of the VA Suicide Prevention Office to VA
Member Services. Since this change was made at the start of 2016, we
have seen no indication of the impact of this reorganization. Our
concern is that, while Member Services oversees all of the call centers
at VA, the VCL is the only call center with a clinical component and we
worry that removing clinical oversight will have dire consequences.
While there is no question that the operational component of the VCL
needs improvement, IAVA is concerned that the VA has overcorrected in
this management shift. We ask Congress to investigate this matter
further, and urge the VA to consider shifting management back to the
Suicide Prevention Office with consultation on operations from Member
Services or another appropriate entity.
In closing, IAVA would again like to thank this Committee for its
leadership and continued commitment to our veterans. We reaffirm our
commitment to working with Congress, VA and our VSO partners to ensure
veterans have access to the highest quality care available and that our
country fulfills its sacred obligation to care for those who have borne
the battle.
Statement on Receipt of Grants or Contract Funds
Neither Ms. Welke, nor the organization she represents, Iraq and
Afghanistan Veterans of America, have received federal grant or
contract funds relevant to the subject matter of this testimony during
the current or past two fiscal years.
MOAA
CHAIRMAN MILLER, RANKING MEMBER BROWN, and Members of the
Committee, the Military Officers Association of America (MOAA) is
pleased to present its views on veterans' health care and benefits
legislation under consideration by the Committee today, June 23, 2016.
MOAA does not receive any grants or contracts from the federal
government.
EXECUTIVE SUMMARY
On behalf of our 390,000 members, MOAA thanks the Committee for its
steadfast commitment to the health and well-being of our
servicemembers, veterans and their families, and for considering the
very important provisions in this legislation related to the Department
of Veterans Affairs (VA) health care and benefits programs.
MOAA is grateful for the broad range of legislation offered today
and greatly appreciate the hard work and efforts of this Committee to
reform and modernize VA systems to meet essential needs.
The following provides MOAA's position and recommendations on the
following bills:
H.R. 3216, Veterans Emergency Treatment Act
H.R. 4150, VA Emergency Medical Staffing Recruitment and
Retention Act
H.R. 4764, Puppies Assisting Wounded Servicemembers
(PAWS) Act of 2016
H.R. 5162, Vet Connect Act of 2016
H.R. 5392, No Veterans Crisis Line Call Should Go
Unanswered Act
H.R. 5083, VA Appeals Modernization Act of 2016
H.R. 5047, Protecting Veterans' Educational Choice Act of
2016
PENDING LEGISLATION
H.R. 3216, Veterans Emergency Treatment Act. The bill would clarify
emergency care services furnished by the VA Health Administration (VHA)
to include examination and treatment for emergency medical conditions,
including female veterans in labor.
MOAA supports the intent of the measure to improve emergency care
and services so veterans can more readily access this essential care
when and where needed, whether in a VA or non-VA medical facility.
Emergency care policies and processes continue to be a great source
of frustration to not only VA employees administering the program, but
also to veterans who, more often than not, get stuck with medical bills
because of policy ambiguity or because they do not meet eligibility
requirements. MOAA is pleased to see clarifying language in the bill
further defining the term `emergency medical condition,' as well as
additional safeguards to ensure immediate care and priority is given
when the health of the veteran or unborn child is in serious jeopardy.
While such clarifying language is helpful and will improve
veterans' access to emergency care services on the front end, the bill
does not address the necessary back end or administrative barriers
currently plaguing the system. MOAA also urges the Committee to require
VA to establish uniform policies and procedures for simplifying and
determining access, eligibility, and payment for emergency medical care
and services which are transparent and simple for VA employees,
veterans and their families, and non-VA providers to understand.
H.R. 4150, Department of Veterans Affairs Emergency Medical
Staffing Recruitment and Retention Act. This measure seeks to allow the
Secretary to modify the hours of employment of physicians and physician
assistants employed on a full-time basis in VHA. As such, the Secretary
of VA may require a physician or physician assistant to work more than
or less than 80 hours in a biweekly pay period as long as the total
hours of employment do not exceed 2,080 in a calendar year.
MOAA is pleased to support H.R. 4150 and thanks Representative Raul
Ruiz (D-CA) for sponsoring the bill. Flexibility in managing this
segment of the medical workforce has been a top priority for the
Secretary and a central element of his MyVA plan to improve access to
health care. We urge immediate passage of this critical piece of
legislation.
H.R. 4764, Puppies Assisting Wounded Servicemembers (PAWS) Act of
2016. VA research on Iraq and Afghanistan veterans indicates somewhere
between 10% and 18% of deployed troops are likely to have PTSD once
they return home. These veterans are also at risk for developing other
mental health problems.
The PAWS Act would direct the VA to carry out a pilot program to
provide service dogs to veterans diagnosed with severe post-traumatic
stress disorder (PTSD).
Clinically there is not sufficient research to determine if dogs
help in treating veterans with PTSD, though VA uses guide and service
dogs through their rehabilitation and prosthetic services program.
MOAA supports the intent of the bill but recommends funding for the
pilot not be offset with appropriated funds from the VA's Office of
Human Resources and Administration, as currently specified in the bill.
Rather, we would recommend the pilot be incorporated within existing
medical programs using dogs to establish evidence-based therapies which
are supported by research, and adequately funded and resourced to
support such medical studies.
H.R. 5162, Vet Connect Act of 2016. This bill would give VA the
authority to provide medical record information of veterans to non-VA
providers in certain instances.
MOAA recommends passage of the bill. Such authority is an important
step in further integrating VA and non-VA health systems to achieve
better patient health outcomes. VA requires non-VA providers to submit
medical information on care provided to veterans through VHA's Care in
the Community Programs. The same requirement should apply to VA so
community providers have the necessary information to effectively and
safely treat the veterans they serve.
H.R. 5392, No Veterans Crisis Line Call Should Go Unanswered Act.
MOAA strongly supports this legislation which would improve the
Veterans Crisis Line by establishing quality assurance requirements to
measure system performance.
The VA Office of the Inspector General (IG) initiated an
investigation into the Veterans Crisis Line in 2015 after receiving
complaints from callers that they were placed on hold, didn't receive
immediate help, or their calls went to voicemail. The investigation
revealed a significant number of staffing, telephone and technology
system problems. VA has indicated all IG recommendations to fix
existing problems will be implemented by September 30, 2016.
This legislation codifies many of the IG recommendations, such as:
establishing a quality assurance process and back up call centers;
delineating clearly defined measurable performance indicators and
objectives; and establishing quantifiable timelines for meeting
designated objectives.
H.R. 5083, VA Appeals Modernization Act of 2016. MOAA's position on
this bill remains the same as noted in our Statement for the Record for
a House Committee on Veterans' Affairs Hearing on May 24, 2016.
In summary:
``MOAA agrees the current number of appeals pending a decision by
VA is wholly unacceptable for veterans and thanks Representative Dina
Titus (D-NV) for her leadership in this area.
``MOAA does not support the changes to 38 USC 5103A(d) that would
severely limit VA's duty to assist, but recommends approval of the
changes that would still improve the veteran experience and reduce the
number of appeals - namely, the changes to 38 USC 5103A(e) regarding
notices of decisions and the addition of 38 USC 5104A to make favorable
factual findings binding upon VA. Additionally, MOAA encourages
Congress to add a provision to allow veterans with existing appeals to
opt into the new claims system.''
H.R. 5047, Protecting Veterans' Educational Choice Act of 2016.
MOAA supports this legislation. This bill is a sensible measure
ensuring veterans are fully informed prior to making educational
choices. Articulation agreements contain important information about
which institutions students will be able to transfer educational
credits to.
A recent review of settlements reached between educational
institutions and state atttorneys general revealed that almost 25% of
them included false or misleading statements about credit transfers.
MOAA notes that educational institutions participating in military
Tuition Assistance Programs are already required to provide this
information to potential students. This information should also be
provided to veterans, which this bill accomplishes. It is a low-cost
(and potentially no-cost) method of assisting veterans in making the
best possible decisions for their futures.
MOAA thanks the Committee for considering this important
legislation on behalf of our veterans and their families.
Military-Veterans Advocacy, Inc.
June 28,2016
Honorable Jeff Miller, Chairman
House Committee on Veterans' Affairs
336 Cannon House Office Building
1Washington, D.C. 20515
Re:Hearing on VA Appellate ``reform'' proposals
Dear Mr. Chairman:
Thank you for your inquiry of June 23, 2016. We appreciate the
opportunity to provide this response.
Question 1: Can reform - be it appeals reform or any reform - be
successful without accountability?
Response: Accountability is the key to any reform. For this reason,
Military-Veterans Advocacy (MVA) proposed that the Committee adopt
concrete provisions to ensure that the Board members at the Board of
Veterans Appeals be reviewed for possible disciplinary action in the
event that their controllable remand rate is excessive. To ensure
quality, MVA further strongly recommends that the Board members be
qualified as Administrative Law Judges. The discovery provisions
recommended by MVA will also ensure accountability by providing the
veteran's advocate essential information to formulate a coherent record
which can be used on appeal. MVA contends that the proposed HR 5083
will actually reduce accountability.
Limitations to the duty to assist and the premature requirement
that the veteran include a request for hearing at the notice of
disagreement stage will provide the VA an opportunity to ``steam roll''
the veteran with little opportunity for redress.
Question 2: If H.R. 5083 advances as drafted, would your
organization support or oppose
Response: MVA would use our significant social networking
apparatus, e-mail and telephone networks, press releases and media
appearances to vigorously oppose HR 5083 as written. This opposition
would become one of our organization's highest priorities and MVA would
also conduct office visits with Members of Congress or their staffs to
share our position.
Thank you again for the opportunity to respond.
Sincerely,
John B. Wells
Commander USN (Retired)
NOVA
Executive Summary
In response to VA's 2017 budget proposal, the National Organization
of Veterans' Advocates, Inc. (NOVA) has participated in ongoing
discussions with VA officials and stakeholders to consider ways to
reform the appeals process. VA has put forth a legislative proposal
intended to improve a process that currently has over 455,000 pending
appeals and thousands of claimants waiting for a hearing. While NOVA
supports certain features of the proposal, there are features that need
additional scrutiny and revision.
Specifically, NOVA endorses statutorily-mandated notice provisions,
extension of effective date relief after a final Board of Veterans'
Appeals (BVA) decision, elimination of redundant procedural steps, use
of binding favorable findings, and allowing veterans the choice to
retain an attorney after an adverse rating decision.
To maintain the veteran-friendly system contemplated by Congress,
however, additional revisions are needed. NOVA proposes specific ideas
and language within to address the following concerns:
(1)VA's proposal unfairly limits effective date relief after
judicial review as well as the veteran's ability to submit a
supplemental claim while a case is pending before the United States
Court of Appeals for Veterans Claims.
(2)Proper docket management is essential to ensure veterans receive
equal treatment.
(3)Veterans with pending appeals must not be denied a fair
resolution.
(4)Section 7105 unnecessarily burdens veterans with restrictive
language.
(5)The veteran should have the ability to submit evidence until BVA
issues a decision.
(6)The ``new and relevant'' standard merely replaces ``relevant''
for ``material'' and does not reduce the adjudication burden on VA.
(7)The de novo standard for BVA review should be clarified.
In addition to these concerns, NOVA notes the proposal fails to
consider reform to the critical process of obtaining an adequate
examination and opinion, which is a major cause of remands and
readjudications. Without substantive reform to this process, it is
unlikely procedural reform alone can solve systemic problems.
Chairman Miller, Ranking Member Brown, and members of the
Committee, the National Organization of Veterans' Advocates (NOVA)
would like to thank you for the opportunity to offer our views on
current legislation pending before the committee at today's hearing.
Our statement will focus on H.R. 5083, the VA Appeals Modernization Act
of 2016.
NOVA is a not-for-profit 501(c)(6) educational membership
organization incorporated in the District of Columbia in 1993. NOVA
represents more than 500 attorneys and agents assisting tens of
thousands of our nation's military veterans, their widows, and their
families seeking to obtain their earned benefits from VA, and works to
develop and encourage high standards of service and representation for
all persons seeking VA benefits. NOVA members represent veterans before
all levels of the VA's disability claims process. In 2000, the United
States Court of Appeals for Veterans Claims recognized NOVA's work on
behalf of veterans with the Hart T. Mankin Distinguished Service Award.
NOVA operates a full-time office in Washington, DC.
Background
VA currently reports there are over 455,000 appeals in the entire
system, and estimates the number of appeals will rise to two million
over the next decade without reform. In addition, there are more than
60,000 pending hearing requests. Since BVA currently only has the
capacity to hold approximately 11,000 hearings per year, a veteran can
wait several years to have a hearing.
To address this problem, VA proposed a ``simplified appeals
process'' in its 2017 budget for BVA. The process proposed by VA
included several concepts contrary to the veteran-friendly system
created by Congress, such as closing the record and denying veterans
the due process right to be heard before BVA. Department of Veterans
Affairs, Congressional Submission, FY 2017, Vol. III at BVA 280-83
(February 9, 2017). VA presented this proposal as a ``straw man''
designed to draw stakeholders into discussions on reforming the appeals
process.
As a result, numerous organizations, including NOVA, participated
in a three-day summit with VA officials and continue to participate in
ongoing meetings to discuss appeals reform. Deputy Secretary Sloan
Gibson charged the group with developing an appeals process that is
timely, fair, easy to understand, transparent, and preserves veterans'
rights.
One issue raised by NOVA and other stakeholders is the need for all
accredited representatives to have complete access to clients'
electronic files. This issue has been a NOVA priority since the advent
of the Veterans Benefits Management System (VBMS). On April 13, 2016,
VA issued a memorandum instructing regional office personnel to process
attorneys and agents for the background checks required for access.
While we appreciate VA's response and look forward to implementation,
NOVA maintains full access must be achieved for any reform to be
successful and VA must commit to ongoing improvements to existing
electronic systems that are critical to meaningful representation.
NOVA appreciates the opportunity to have a seat at this table and
participate in the dialogue. However, as set forth in more detail
below, while NOVA supports the concept of improving the appeals process
for veterans and endorses several features of H.R. 5083, there remains
areas of serious concern that require additional congressional
scrutiny.
Legislative Provisions NOVA Supports
Requirements for detailed notice of the decision are included in the
statute.
The declining quality of VA rating decisions and notice has been
cited by stakeholders numerous times over the years as the primary
problem in the claims process. Efforts by VA to improve notice have
been unsuccessful. The participants in VA's appeals summit agreed that
detailed notice of the rating decision is critical to making an
informed decision regarding further review. Proper notice allows a
veteran to understand the reasons for the underlying rating decision
and enables an advocate to provide a veteran with the best possible
advice on the evidence needed to prove a claim.
The proposed language to amend 38 U.S.C. Sec. 5104 is an important
first step in reform, but only if properly implemented by VA. VA's
proposed process hinges heavily on a change VA has always had the
authority to make, but has been unsuccessful to date in doing so. VA
will need to commit to extensive training of its regional office
employees to provide adequate notice and well-written decisions.
Without it, the new process could result in another backlog at the
local level.
Effective date protection is extended to BVA decisions.
H.R. 5083 removes many procedural and due process protections for
veterans. To a degree, the removal of these protections is offset by
the primary benefit conferred to veterans: the ability to preserve the
effective date of a claim denied in a BVA decision by filing a
``supplemental claim'' within a year of that denial (with no limit to
the number of times the veteran can avail himself of this option).
The legislation calls for the same process following a rating
decision, but it does not meaningfully expand a veteran's rights beyond
what is already permitted under 38 C.F.R. Sec. 3.156(b). NOVA supports
this regulatory provision being included in the statute. Furthermore,
NOVA recommends the provisions of 38 C.F.R. Sec. 3.156(c) also be
codified in the statute as an important protection for the effective
dates of claims for veterans who find additional service records after
an original claim.
Allowing a veteran to file a supplemental claim following a BVA
denial is a positive development, and we believe it must remain part of
any reform package considered. It is not without a downside however. As
mentioned below, without expansion to denials by the United States
Court of Appeals for Veterans Claims, this proposal as written would
likely dilute the court's oversight function.
H.R. 5083 eliminates redundant procedural steps.
NOVA has historically supported the amendment of 38 U.S.C. Sec.
7105 to eliminate the redundant requirements of a statement of the case
(SOC) and substantive appeal. See, e.g., Veterans' Dilemma: Navigating
the Appeals System for Veterans Claims: Hearing Before the Subcommittee
on Disability Assistance and Memorial Affairs of the House Committee on
Veterans' Affairs, 114th Cong., 1st Sess. 37, 112 (2015)(statement of
Kenneth M. Carpenter, Esq., Founding Member, National Organization of
Veterans' Advocates). NOVA maintains that, as a result of judicial
review, the need for an SOC and affirming substantive appeal no longer
exists.
As the number of claims has risen, in turn resulting in more
appeals, these procedures have become the source of growing delays. For
example, VA reported in 2015 an average of 405 days passed between
filing of the notice of disagreement (NOD) and VA's issuance of the
SOC. Furthermore, the average days from the time of the substantive
appeal to BVA certification was 630 days. Department of Veterans
Affairs (VA) Appeals Data Requested by House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
(January 2015). NOVA maintains that any minimal value in these
procedural steps is far outweighed by the delays, which serve to age
the evidence in the veteran's file and drive the need for additional
development through remand.
Under VA's proposal, once the veteran determines he or she wishes
to appeal to BVA, the NOD will serve as the only requirement to
initiate an appeal. Furthermore, the notice elements statutorily
required in this provision, if executed properly, improve upon the
current notice and SOC. Elimination of post-NOD procedure will not only
allow the veteran to get an appeal to BVA faster, it should free up VA
personnel to decide and rate claims faster at the agency of original
jurisdiction.
A veteran is assured favorable findings made by VA will continue
throughout the life of a claim/appeal.
Newly created section 5104A mandates that any favorable findings
made on behalf of a veteran are binding on all subsequent adjudicators
within VA, absent clear and convincing evidence to the contrary. This
provision not only protects a veteran during the adjudication process,
it saves VA time because there will be no need to reconsider resolved
elements of a claim in subsequent decisions.
A veteran retains the right to engage an attorney.
Under existing 38 U.S.C. Sec. 5904, a veteran may enter into a fee
agreement with an attorney or agent at the time the NOD is filed. H.R.
5083 proposes to change that language to allow a veteran to exercise
this right at the time the initial rating decision is issued. Since VA
is now providing more than one adjudicatory choice to a veteran after
the initial decision, it makes sense that a veteran should have the
freedom and personal choice to engage an attorney at that time to
obtain counsel on the best option to choose.
Legislative Provisions of Concern to NOVA
H.R. 5083 limits effective date relief after judicial review.
It is inconsistent to limit effective date relief solely to
decisions of the agency of original jurisdiction and BVA. Specifically,
under H.R. 5083, a veteran who is dissatisfied with any rating decision
has one year to seek higher level review, submit new evidence in the
form of a supplemental claim, or file an appeal to BVA, while
preserving the effective date of the first claim. The proposal also
allows for the same one-year period after a BVA decision to submit new
evidence in the form of a supplemental claim. However, there is no such
allowance for the same one-year period after a final decision of the
United States Court of Appeals for Veterans Claims.
NOVA believes this limitation will result in far fewer veterans
exercising their hard-fought right of judicial review, because it is
rare that a conscientious advocate would risk the loss of an effective
date by appealing to the court when the effective date could be
preserved with the submission of ``new and relevant'' evidence.
NOVA therefore recommends section (a)(2)(E) be added to 38 U.S.C.
Sec. 5110: ``(E) a supplemental claim under section 5108 of this title
within one year of any final decision issued by the United States Court
of Appeals for Veterans Claims.''
Furthermore, VA has taken the position during its appeals summit
meetings that a veteran could not simultaneously seek review of a BVA
denial before the United States Court of Appeals for Veterans Claims
and exercise his or her right to submit new evidence before VA within a
year of that decision to preserve the original effective date. Under
the current appeals structure, a veteran may seek judicial review and
file a reopened claim as contemplated under the current version of
section 5108.
By foreclosing the opportunity to pursue both avenues of relief, VA
is forcing a veteran to choose between seeking review of legal error in
BVA's decision or filing a supplemental claim in the hope of preserving
the original effective date. Such a result is not only contrary to the
veteran-friendly scheme designed by Congress, it potentially prevents
the court from correcting prejudicial legal errors, e.g., statutory
violations or misinterpretations of law.
To remedy this situation, Congress should add the following
language to 38 U.S.C. Sec. 5108:
After a decision of the Board of Veterans' Appeals that disallows a
claim, nothing in this title shall be construed to limit the right to
pursue at the same time both (i) an appeal of such Board decision to
the United States Court of Appeals for Veterans Claims under chapter 72
of this title and (ii) a supplemental claim under this section seeking
readjudication of the claim disallowed by such Board decision.
Furthermore, under 38 U.S.C. Sec. 5110, subsection (a)(3) should
be redesignated as subsection (a)(4) and the following subsection
(a)(3) be added:
(3) For purposes of subsection (a)(2), a claim is continuously
pursued by filing a supplemental claim under section 5108 of this title
within one year of a decision of the Board of Veterans' Appeals without
regard to either (i) the filing under chapter 72 of this title of a
notice of appeal of such Board decision or (ii) the final decision of
the Court of Appeals for Veterans Claims under chapter 72 of this
title.
Proper docket management is essential to ensure veterans receive equal
treatment.
H.R. 5083 creates one docket at BVA for cases in which a veteran
requests a hearing or submits evidence following an NOD and another
docket for cases in which nothing is added to the record after the NOD.
We disagree with the creation of two dockets, as there is simply no
good reason to treat these cases differently. We have seen from VA's
past treatment of claims not defined as part of ``the backlog'' that,
whatever VA's current intent may be, if a law creates an incentive for
one kind of case to be adjudicated over another type of case, that is
what will occur. Veterans who request a hearing or submit evidence
should not be punished with a longer wait. We therefore recommend that
there be only one docket at BVA, and that all cases before BVA be
worked in docket order.
At the very least, if two dockets are created, a formula needs to
be developed for docket management and included in section 7107. A
formula is necessary to ensure every case is in a measurable ``lane,''
so data can be collected and accountability achieved. VA should be
required to provide stated goals for timely adjudication of both
dockets as well as a formula. In the alternative, there should be
language to require VA to create such a formula within a reasonable
period after enactment to ensure dockets are maintained fairly.
Furthermore, if two dockets are created, VA should allow a veteran
who chooses to submit ``evidence only'' to join the ``non-hearing''
docket. Given that this evidence will not trigger any duty to assist
obligation for BVA, there is no reason BVA cannot consider these
appeals in the ``non-hearing'' lane. Under this scenario, NOVA
recommends 38 U.S.C. Sec. 7107(a) be amended to read as follows:
(a) DOCKETS - IN GENERAL. - The Board shall maintain two separate
dockets. A non-hearing docket shall be maintained for cases in which
(1) no Board hearing is requested and no evidence is submitted or (2)
no Board hearing is requested and evidence is submitted. A separate and
distinct hearing option docket shall be maintained for cases in which a
Board hearing is requested. Except as provided in subsection (b), each
case before the Board will be decided in regular order according to its
respective place on the Board's non-hearing docket or hearing docket.
H.R. 5083 does not contain a plan for how ``legacy appeals'' will be
fairly handled.
Although stakeholders and VA flagged the issue of how the pending
inventory will be addressed if extensive appeals reform is passed as an
area of concern needing resolution, this issue has not been adequately
considered to date. Given that the 455,000 pending appeals are in
various stages of the appeals process and greatly affect the resources
required by VA, this issue must be resolved. Veterans who have already
been waiting for many years must not be denied a fair resolution to
their pending appeals while newer appeals are being handled faster in a
simplified system. Docket management will be critical to resolution of
legacy appeals.
There may be logical points where a veteran with a legacy appeal
may wish to choose to enter the new system. For example, veterans who
have recently filed an NOD and receive an SOC (which is essentially a
new decision) may conclude it makes more sense to voluntarily shift to
the new system by submitting a supplemental claim in the ``middle
lane'' at the regional office. However, it is critical that any
decisions regarding a shift from the old system to a new system be by
choice, and veterans not be forced into the new system for VA's
convenience.
In addition, it is critical VA receive the appropriate level of
resources, both at VBA and BVA, to simultaneously resolve legacy
appeals and implement a new system.
Section 7105 as rewritten unnecessarily burdens veterans.
NOVA maintains section 7105 as rewritten is too restrictive. The
United States Court of Appeals for the Federal Circuit recently upheld
VA's standard forms regulations, to include 38 C.F.R. Sec. 20.201.
Veterans Justice Group, LLC, et al. v. Secretary of Veterans Affairs,
No. 2015-7021 (April 7, 2016). Under 38 C.F.R. Sec. 20.201(a)(4), a
veteran is required to specify those determinations with which he
disagrees or ``clearly indicate'' his intent to appeal all issues.
By contrast, newly drafted section 7105(b)(2) requires the claimant
to set forth ``specific allegations of error of fact or law.'' This
standard places a higher burden on the claimant as a predicate for a
valid NOD. While NOVA understands VA intends for the NOD to be the sole
vehicle to initiate an appeal, requiring veterans to provide ``specific
allegations of error of fact or law'' is not veteran-friendly and is
particularly detrimental to pro se veterans. Because the current
standard NOD form does not require the level of specificity contained
in this provision, NOVA recommends the veteran only be required to
specify the determinations with which he disagrees in the NOD.
NOVA also recommends that section 7105(b)(3) be amended to allow a
veteran to decide to submit evidence or request a BVA hearing up until
the date a decision is actually issued by BVA. Section 7105(d) should
either be stricken in its entirety or revised to read as follows: ``The
Board of Veterans' Appeals will not deny any appeal which fails to
allege error of fact or law in the decision being appealed without
providing the claimant with notice and an opportunity to cure the
defect.''
The veteran should have the ability to submit evidence until BVA issues
a decision.
Section 7113(b)(2)(A)(ii) as written provides for evidence to be
submitted at BVA ``within 90 days following receipt of the notice of
disagreement.'' This provision is too restrictive; if the case is
waiting to be reviewed by BVA, it is more veteran-friendly (and does
not unduly burden BVA) for that period to be open until the decision is
made. Therefore, NOVA recommends 38 U.S.C. Sec. 7113(b)(2)(A)(ii) be
amended to read as follows: ``Evidence submitted by the appellant and
his or her representative, if any, within 90 days following receipt of
the notice of disagreement or until the Board issues a decision.''
VA should only require ``new'' evidence for supplemental claims.
During the course of the appeals summit meetings, there was general
agreement that the standard of ``new and material'' should be
eliminated. VA has inserted the term ``relevant'' to replace
``material.''
Although VA officials have repeatedly stated that the ``relevant''
evidence standard would be much easier to meet than the ``material''
standard, NOVA maintains merely trading ``relevant'' for ``material''
will not significantly reduce the adjudication burden on VA. Removing
``relevant'' allows VA to adjudicate the merits every time and
eliminates the need to make a threshold determination. Therefore, NOVA
recommends the words ``and relevant'' be deleted from 38 U.S.C. Sec.
5108 and the definition of ``relevant'' found at 38 U.S.C. Sec.
101(35) be stricken.
It needs to be clear BVA's review is de novo.
While BVA views itself as an appellate body, its function has
always been to provide de novo review of the agency of original
jurisdiction's decisions. It must continue to conduct de novo review,
find facts, apply relevant law, and issue new decisions. Therefore,
NOVA recommends the term ``de novo'' be added to sections 5103B(c)(2),
7105(a), and 7105(b)(2) of title 38 to clarify this point.
Additional Concerns
The current proposal ignores fundamental flaws in the system.
The proposed framework deals largely with the process of filing
claims and appealing adverse decisions. Successful execution of VA's
proposed process hinges on its ability to consistently meet its goals
of adjudicating and issuing decisions in the 125-day window identified
in its ``middle lane'' and deciding appeals within the one-year period
before BVA. As demonstrated with the prior backlog of original claims
and scheduling of medical appointments, VA often struggles to meet its
own internal goals to the detriment of veterans.
Furthermore, while focusing solely on process, the proposal is
devoid of reform to the foundational underpinning of the claims
adjudication and appeals process, i.e., the need for an adequate
medical examination and opinion. At the January 2013 hearing addressing
the appeals process, BVA acknowledged the problem: ``The adequacy of
medical examinations and opinions, such as those with incomplete
findings or supporting rationale for an opinion, has remained one of
the most frequent reasons for remand.'' Why Are Veterans Waiting Years
on Appeal?: A Review of the Post-Decision Process for Appealed
Veterans' Disability Benefits Claims: Hearing Before the Subcommittee
on Disability Assistance and Memorial Affairs of the House Committee on
Veterans' Affairs, 113th Congress, 1st Sess. 23 (2013)(prepared
statement of Laura H. Eskenaki, Executive in Charge, Board of Veterans'
Appeals). Two years later, the Subcommittee on Disability Assistance
and Memorial Affairs requested appeals data from VA, to include the top
five remand reasons for the six fiscal years between 2009-2014. While
not particularly detailed, in five of the six years, ``nexus opinion''
was listed as a top five reason. Department of Veterans Affairs (VA)
Appeals Data Requested by House Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs (January
2015). Other consistently reported reasons included ``incomplete/
inadequate findings,'' ``current findings (medical examination/
opinion),'' and ``no VA examination conducted.'' Id.
While VA often cites the veteran's submission of evidence as
triggering the need for additional development, the reality is VA has
consistently demonstrated difficulty fulfilling its fundamental
obligation to provide veterans with adequate medical examinations and
opinions in the first instance. Without substantive reform to this
process, to include consideration of a greater role for private and
treating physician evidence, it is unlikely procedural reform alone can
solve systemic problems.
Conclusion
NOVA shares VA's concern that veterans wait too long for a final
and fair decision on appeal. NOVA welcomes the opportunity to work with
VA and this Committee to ensure a fair and comprehensive reform of the
system. NOVA further recommends adoption of the revisions outlined in
our testimony. Thank you for allowing us to present our views on this
legislation.
For more information:
NOVA staff would be happy to assist you with any further inquiries
you may have regarding our views on this important legislation. For
questions regarding this testimony or if you would like to request
additional information, please feel free to contact Diane Boyd Rauber
by calling NOVA's office at (202) 587-5708 or by emailing Diane
directly at [email protected].
NATIONAL VETERANS LEGAL SERVICES PROGRAM
EXECUTIVE SUMMARY
The VA Appeals Modernization Act of 2016, H.R. 5083, provides a
far-reaching restructuring of the VA administrative appeals process. It
contains many positive features that are likely to decrease appeal
times while providing claimants with various options for pursing their
appeals. As with any substantial change to a complex system, there will
clearly be effects that we cannot now predict. But given that the
current appeals process is not functioning well, we have ultimately
concluded that the proposed legislation - even without being able to
predict all of its effects - is a necessary step, with two important
caveats.
First, an amendment to the proposed legislation is needed to avoid
the litigation and disruption of the appeals process that will be
generated by the way VA officials are interpreting the proposed
legislation. According to VA officials, including Secretary McDonald,
after a Board of Veterans' Appeals decision disallowing a claim, the
veteran would be required under the proposed legislation to make a
choice between (i) appealing to the Court of Appeals for Veterans
Claims and (ii) filing a supplemental claim with the regional office,
in order to preserve the date of filing the initial claim as the
potential effective date. Before this legislation is passed, Congress
should amend the proposal to prevent VA's interpretation, since the
choice VA wishes to impose on veterans is contrary to the interests of
justice and the pro-claimant process that Congress long ago created.
Second, amendments are necessary to provide (a) an effective date
for the streamlined appeals process set forth in H.R. 5083 and (b)
guidelines for how VA will integrate the new appeals process contained
in the bill with the inventory of more than 450,000 currently pending
VA appeals. We urge Congress to appropriate a significant amount of
additional money on a temporary basis for VA to use exclusively to
tackle the backlog of currently pending appeals. We also recommend that
before further action is taken on this bill, the VA should propose--and
veterans organizations and other stakeholders be given an opportunity
to comment on--both VA's proposed effective date for H.R. 5083 and
provisions containing the formula VA will use to allocate its
adjudication resources (i) between appeals on the hearing docket and
appeals on the non-hearing docket created by H.R. 5083 and (ii) between
appeals that are pending on the proposed effective date and appeals
docketed after that effective date.
Mr. Chairman and Members of the Committee:
Thank you for inviting both of our organizations to submit written
testimony concerning H.R. 5083, the VA Appeals Modernization Act of
2016, an important legislative effort to reform the veterans claims and
appeals process in the United States Department of Veterans Affairs
(VA).
The National Veterans Legal Services Program (NVLSP) is a nonprofit
veterans service organization founded in 1980 that has been providing
free legal representation to veterans and assisting advocates for
veterans for the last 36 years. NVLSP has represented veterans and
their survivors at no cost on claims for veterans benefits before the
VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other
federal courts. As a result of NVLSP's representation, the VA has paid
more than $4.6 billion in retroactive disability compensation to
hundreds of thousands of veterans and their survivors.
NVLSP publishes numerous advocacy materials, recruits and trains
volunteer attorneys, trains service officers from such veterans service
organizations as The American Legion, the Military Order of the Purple
Heart and the Military Officers Association of America in veterans
benefits law, and conducts local outreach and quality reviews of the VA
regional offices on behalf of The American Legion. NVLSP is one of the
four veterans service organizations that comprise the Veterans
Consortium Pro Bono Program, which has, since 1992, recruited and
trained volunteer lawyers to represent veterans who have appealed a
Board of Veterans' Appeals decision to the CAVC without a
representative. In addition to its activities with the Pro Bono
Program, NVLSP has trained thousands of veterans service officers and
lawyers in veterans benefits law, and has written educational
publications that thousands of veterans advocates regularly use as
practice tools to assist them in their representation of VA claimants.
Stetson University is a private liberal arts education located in
Florida. As part of its College of Law, Stetson University established
the Veterans Law Institute (VLI) in 2012. The VLI is committed to
serving the needs of veterans in Florida and across the nation. It does
so through various means including engaging in public policy debates,
arranging for pro bono legal services for veterans, and operating a
clinic in which Stetson Law students represent veterans concerning
claims for benefits before the Department of Veterans Affairs and the
federal courts. Professor Allen is a member of the faculty at the
College of Law and also serves as the College of Law's Associate Dean
for Academic Affairs. He is the Director of the VLI and speaks and
writes frequently about veterans' benefits matters.
H.R. 5083
Over the last several months, NVLSP has participated with a
workgroup of veterans service organizations convened by the VA to find
common ground on a set of reforms to address the serious dysfunctions
that exist in the current VA appeals process. The text of H.R. 5083 is
the same as the text of the draft bill that VA has developed during
this discussion.
We believe H.R. 5083 is a welcome attempt to address the serious
problems veterans and their dependents face in processing appeals in
the VA. We are generally favorable to the bill, with several important
caveats discussed below. To be clear, we believe the problems we have
identified below can be addressed now. If they are, we support this
bill as an innovative means of addressing the systemic delays claimants
face in the dealing with their VA appeals.
Before we address the merits of the H.R. 5083 in more detail, we
begin with a general point that is important to remember. The proposed
structuring of the administrative appeals process envisioned under the
bill is far-reaching. As with any change to a complex system, there
will clearly be effects that we cannot now predict. We have considered
this reality quite seriously. If the system were functioning generally
well, a concern with unintended consequences might be sufficient to
oppose such a comprehensive change in the system. But we are not
dealing with a well-functioning system. Given that state of affairs, we
have ultimately concluded that the proposed legislation - even without
being able to predict all of its effects - is a necessary step. We
support it with the changes we discuss below.
I. POSITIVE FEATURES OF THE PROPOSED LEGISLATION
We briefly highlight the significant positive features of the
changes envisioned under H.R. 5083. Taken together, we believe these
features of H.R. 5083 will decrease appeal times while providing
claimants with various options for pursing their appeals. The most
significant positive features in the proposed legislation are:
H.R. 5083 provides for enhanced ``notice letters'' to
veterans and other claimants concerning the denial of their claims.
Enhanced notice is critically important to veterans as they make
determinations about how to proceed when they are dissatisfied with a
VA decision.
H.R. 5083 also eliminates the requirements under current
law concerning the preparation of a Statement of the Case (SOC), the
veteran's corresponding need to complete an additional step to perfect
an appeal to the Board (i.e., VA Form 9) and VA's subsequent need to
certify the appeal by completing VA Form 8. While there may have been a
time at which the SOC served a useful function in this system, the
enhanced ``notice letters'' required by the proposal eliminate the need
for an SOC. Thus, the SOC process serves only to delay the processing
of claims.
H.R. 5083 lowers the standard necessary for re-opening a
claim under Section 5108. The current standard of ``new and material
evidence'' is replaced with ``new and relevant evidence.'' While we
address below two concerns - one involving supplemental claims and one
involving the wording of the new lower standard--the lowering of the
standard is critically important. In addition, and as we discuss in
more detail below, the revised Section 5108 will allow veterans to
obtain earlier effective dates in many circumstances than they would be
able to do under the current version of this provision.
H.R. 5083 allows veterans a meaningful choice when they
appeal to the Board of Veterans' Appeals (Board). A veteran may elect
to forgo the submission of new evidence and a hearing in cases in which
he or she determines such an approach is best. This would provide for
more expeditious treatment of such appeals. On the other hand, a
veteran can elect to proceed on a track in which the submission of new
evidence and a hearing is allowed. This dual-track approach recognizes
the reality that not all appeals are alike.
H.R. 5083 allows a claimant to seek the assistance of a
lawyer for pay after an initial denial but before the filing of a
Notice of Disagreement (NOD). This is a change from current law in
which a lawyer may not charge a fee before the filing of an NOD. While
seemingly a small change, we believe this is significant because the
structure of the proposed new system provides claimants with myriad
ways in which to proceed. Advice to such claimants will be critical and
the proposed change allows more options for that advice.
We believe H.R. 5083 also reduces the means by which the
VA can ``develop to deny.'' NVLSP has reviewed many regional office and
BVA cases in which the existing record before the VA supports the award
of benefits, but instead of deciding the claim based on the existing
record, VA has delayed making a decision on the claim by taking steps
to develop additional evidence for the apparent purpose of denying the
claim. Certain aspects of the current proposal - for example, the
restriction on the application of the duty to assist at the Board -
will likely reduce such actions.
II.PROBLEM ONE: The Need to Clarify the Right to Both Appeal to the
CAVC and File a Supplemental Claim Simultaneously to Protect the
Claimant's Effective Date
NVLSP's support of the critically important positive changes to the
administrative appeals process contained in H.R. 5083 comes with
several critical caveats. The first caveat is contained in this part of
our testimony.
Currently, after a Board decision that disallows a claim, the
claimant may file both (i) an appeal with the Court of Appeals for
Veterans Claims (CAVC) under Chapter 72 and (ii) a claim with the
Agency of Original Jurisdiction (AOJ) under Section 5108 to ``reopen
the claim'' disallowed by the Board ``and review the former disposition
of the claim,'' when the claimant submits ``new and material
evidence.'' In other words, the claimant does not have to choose
between appealing to the CAVC and filing a claim with the AOJ to reopen
under Section 5108. The claimant may freely take both actions.
H.R. 5083 renames a Section 5108 claim as a ``supplemental claim''
and lowers the threshold requirement to obtain readjudication of the
previously disallowed claim by substituting the language ``new and
relevant evidence'' for ``new and material evidence.'' In addition, no
language in H.R. 5083 indicates an intent to change existing law
allowing a claimant, after a Board decision that disallows the claim,
to file simultaneously both a timely appeal with the CAVC and a Section
5108 claim with the AOJ.
Nonetheless, VA officials have repeatedly represented to the
veterans service organizations that if H.R. 5083 is enacted as
currently worded, the options available to a claimant will change.
According to these VA officials, including Secretary McDonald, after a
Board decision disallowing a claim, the claimant would now be required
by law to make a choice between appealing to the CAVC and filing a
supplemental claim with the RO in order to preserve the date of filing
the initial claim as the potential effective date if the claim
disallowed by the Board is ultimately granted. As background, after a
Board decision disallowing a claim, the claimant may file under the
proposed bill a Section 5108 supplemental claim within one year of the
Board decision disallowing the claim. If that supplemental claim were
ultimately granted, the proposed bill's amendment to Section 5110 would
enable the claimant to be assigned the date of filing the initial
claim, rather than the date of filing the supplemental claim, as the
effective date of the award, as long as the other Section 5110
criterion for assignment of that early effective date is satisfied.
We strongly support this part of H.R. 5083. Nonetheless, VA
officials have repeatedly represented that under H.R. 5083, if a
claimant, after a Board decision disallowing a claim, were to file a
timely appeal of the Board decision with the CAVC and lose on appeal,
the claimant would incur the following penalty: the claimant could not
lawfully be assigned the date of filing the initial claim as the
effective date even if the claimant filed a Section 5108 supplemental
claim within one year of the Board decision and the VA granted the
supplemental claim.
If H.R. 5083 is enacted without a change in language to clarify
this matter, and VA continues to insist that a claimant must choose
between an appeal to the CAVC and a supplement claim under Section 5108
in order to preserve the date of filing the initial claim as the
potential effective date, this matter will inevitably have to be
resolved by the federal courts. Final judicial resolution would likely
take years. To be clear, we believe the VA's currently articulated
approach is not consistent with H.R. 5083. But we also realize that it
is difficult to predict how courts will resolve legal disputes. No
matter how this legal dispute is ultimately resolved, during the years
this litigation is pending in court, there would likely be a
significant disruption to the VA claims adjudication process and
further delays experienced by VA claimants.
Congress should clarify this matter before passing H.R. 5083 to
avoid litigation and a disruption to the claims adjudication process.
We suggest adding the following clarifying language. First, add the
following to the end of line 25 on page 6 of amended Section 5108:
After a decision of the Board of Veterans' Appeals that disallows a
claim, nothing in this title shall be construed to limit the right to
pursue at the same time both (i) an appeal of such Board decision to
the United States Court of Appeals for Veterans Claims under chapter 72
of this title, and (ii) a supplemental claim under this section seeking
readjudication of the claim disallowed by such Board decision.
Second, on line 19 of page 8, redesignate subsection (a)(3) as
subsection (a)(4) and add a new subsection (a)(3) containing the
following language:
(3) For purposes of subsection (a)(2), a claim is continuously
pursued by filing a supplemental claim under section 5108 of this title
within one year of a decision of the Board of Veterans' Appeals without
regard to either (i) the filing under chapter 72 of this title of a
notice of appeal of such Board decision or (ii) the final decision of
the Court of Appeals for Veterans Claims under chapter 72 of this
title.
It is contrary to the interests of justice and the pro-claimant
process that Congress has created to require claimants to make a choice
between filing an appeal with the CAVC and filing a supplemental claim
with the RO within one year of the Board decision in order to preserve
the date of filing the initial claim as the potential effective date.
Each of these two options serves an entirely different purpose.
Claimants appeal to the CAVC to correct a prejudicial legal error that
they believe the Board made in disallowing the claim, such as a
misinterpretation of the law or a violation of the statutory duty to
assist by failing to provide the claimant with an adequate medical
examination or medical opinion. Claimants file a Section 5108 claim for
an entirely different reason. They file a Section 5108 claim in an
effort to add positive evidence to the record so that the weight of the
positive evidence is equal to or greater than the weight of the
negative evidence of record, in an attempt to convince VA that the
claim should be granted even under VA's existing view of its legal
requirements.
What VA seeks is to force veterans whose claims are disallowed by
the Board to make an unfair choice between two options. According to
VA's interpretation of H.R. 5083, each choice alone has a potentially
fatal consequence. If the veteran chooses the option of appealing to
the CAVC, the veteran cannot add evidence to the record and is
essentially limited to arguing that the Court should vacate and remand
the Board's decision due to legal error. A fatal consequence occurs if
the Court upholds the Board's interpretation of law (as it does in
approximately 30% of all appeals). The veteran's right to the date of
filing of the initial claim as the potential effective date is lost
forever. While the veteran may be able to file a Section 5108
supplemental claim with new and relevant evidence despite the Court
defeat, VA's position is that success on that supplemental claim cannot
validly lead to an award of benefits retroactive to the date of filing
the initial claim that was disallowed by the Board.
On the other hand, if the veteran gives up the right to appeal to
the CAVC to challenge the Board's interpretation of the law by choosing
the other option--filing a Section 5108 supplemental claim within a
year of the Board decision--the veteran enjoys the benefit of being
able to add new positive evidence to the record. But the VA's view of
what the law requires will most likely be the same as the Board's view
of the law when it disallowed the initial claim. Thus, the veteran must
shoulder the burden of attempting to convince VA that it should award
benefits under an unfavorable view of the law with which the veteran
disagrees. Thus, the chance of success is obviously lower than it would
be if VA was required to adjudicate the supplemental claim under the
veteran's more favorable view of what the law requires.
To be clear then, under the VA's proposed approach, a veteran would
need to decide between preserving his or her effective date by filing a
supplemental claim or potentially correcting a legal error in the
Board's decision through the judicial process. A veteran should not be
put in such a position. The interests of justice and maintenance of the
pro-veteran claims process that Congress has nurtured for decades
should lead Congress to clarify H.R. 5083 by adding language that makes
it plain that after a Board decision disallowing a claim, the veteran
has the right to protect the date of filing the initial claim as the
effective date by both filing an appeal with the CAVC to correct a
prejudicial legal error made by the Board and filing a Section 5108
supplemental claim in an effort to convince VA that the newly added
evidence shifts the weight of the evidence so that VA awards benefits
even under its unfavorable view of its legal requirements.
III. PROBLEM TWO: H.R. 5083 Needs to be Amended to Provide An Effective
Date and for Handling the Inventory of Pending Appeals
H.R. 5083 lacks an effective date. In addition, it does not address
how VA should integrate the streamlined appeals process contained in
the draft bill with the inventory of more than 450,000 currently
pending VA appeals. H.R. 5083 needs to be amended to address both of
these issues.
During the ongoing discussions between the VA and the veterans
service organizations and other stakeholders regarding the reforms
contained in H.R. 5083, the VA recently staked out a position on both
of these two important issues. Under the VA's proposal, it appears that
the VA would ultimately issue decisions on many new appeals filed after
the effective date of the draft bill before it issues decisions on many
of the 450,000 currently pending appeals. Indeed, it appears to us that
under VA's recent proposal, many of the currently pending appeals would
be decided by VA years after many new appeals are decided by the VA.
NVLSP and the VLI object to such an unfair system.
We have three suggestions regarding the effective date and the need
to address the existing inventory of pending appeals. First, we urge
Congress to appropriate a significant amount of additional money on a
temporary basis for VA to use exclusively to tackle the backlog of
currently pending appeals.
Second, the VA should propose in advance both an effective date for
H.R. 5083 and provisions that address the following two issues
regarding VA allocation of its resources under H.R. 5083:
(1)The formula that VA will use to allocate its resources between
adjudicating appeals on the non-hearing option Board docket versus
adjudicating appeals on the hearing option Board docket under H.R.
5083's amendment to Section 7107 of Title 38. It is important to
address this issue to ensure that BVA decisions on hearing docket cases
are not unduly delayed in comparison to cases on the non-hearing option
docket due to over allocation of BVA resources to deciding appeals on
the non-hearing docket. Transparency in this matter is very important.
(2)Before H.R. 5083 is passed, it should be amended to provide the
formula VA will use to allocate its resources between adjudicating
appeals pending at the VA prior to the proposed effective date of the
draft bill and appeals docketed after that effective date. It is
important to address this issue to prevent the unfairness to veterans
with appeals already pending when the bill goes into effect. It would
be fundamentally unfair if these appellants have to wait many years
longer to receive a BVA decision than do veterans who file appeals
after the draft bill goes into effect because the VA assigned most of
its resources to deciding appeals filed after the draft bill goes into
effect.
Third, after VA submits its proposal on these matters, veterans
service organizations and other stakeholders should be given an
opportunity to provide Congress with their views on the VA proposal.
Conclusion
Thank you for this opportunity to present our views, and we would
be pleased to respond to any questions that Members of the Committee
may have.
Contact Information:
National Veterans Legal Services Program
1600 K Street, N.W.
Suite 500
Washington, DC 20016
(202) 265-8305
[email protected]
[email protected]
Veterans Law Institute
Stetson University College of Law
1401 61st Street South
Gulfport, FL 337037
(727) 562-7360
[email protected]
PAWS
Statement of Cole T. Lyle before the House Committee on Veterans
Affairs
Chairman Miller, Ranking Member Brown, distinguished
Representatives of the committee, thank you all for the opportunity to
submit testimony. I request that my statement be accepted for the
record.
``To care for him who shall have borne the battle and for his
widow, and his orphan''. One-hundred forty-one years ago during his 2nd
inaugural address, President Lincoln gave us a profound and concise
statement which would later become the Veterans Affairs' motto. The
spirit which drove Lincoln then is the same spirit that drove us to
this chamber, pursuing discourse on how best to care for him who shall
have borne the battle.
The Veterans Affairs Committee and its members meet among the
spirits of those who have sacrificed for their nation. The altar of
liberty, upon which these spirits lie, is being overshadowed by the
dark cloud of suicides, which grows larger every day we as a nation and
congress are not proactive. On this day, the committee meets not to
live in past associations or treatments. Here and now we must admit,
should we be worthy of those spirits which have borne the battle, we
must find new fields for action. The P.A.W.S. Act, HR 4764, is that
field.
I spent six years in the Marine Corps, deploying to Helmand
Province, Afghanistan for most of 2011. Upon return to the states I
took the post-deployment health assessment, which indicated a need to
seek assistance for post-traumatic stress. I was prescribed medication
and directed to use a local Veteran's Center for appropriate
counseling. After roughly two years pursuing those avenues of
treatment, the symptoms were not subsiding, and were in fact
exacerbated. Nightmares were more frequent; anxiety attacks and mood
swings were more frequent. I wanted to stop, but I did not find that
inspiration until a few friends I served with committed suicide as a
result of the same cycle of prescribed drug usage. A friend and former
Marine who was utilizing a service dog told me how well it was working
for him. The only problem? The VA didn't, and still does not, provide
service dogs specifically trained to combat symptoms of PTS. Upon
further research, I found most of the non-profit community providing
free service dogs to veterans and filling the void left by the VA, had
wait times over a year and oftentimes more. Not feeling comfortable
waiting that amount of time, I obtained my service dog Kaya and had her
subsequently trained through an Assistance Dogs International-
accredited trainer. All told: roughly $10,000, some of which I had to
borrow. Many veterans do not have those financial resources, and thus
the status quo of treatment for PTS has given us twenty-two veterans a
day committing suicide. That statistic was procured from a study by the
VA itself which only used 21 states to ascertain that number. Because
of the limitations in the study, the number, tragically, is likely much
higher.
Kaya worked wonders for me within weeks. She was specifically
trained to recognize when I have a nightmare and jumps into bed, waking
me up. Kaya recognizes anxiety attacks at the outset and intervenes at
the attack's early stages, preventing the anger or depression from
snowballing. I've remarked many times, that Kaya has also provided a
sense of purpose that pills or therapy will never do. Many days I would
lie in bed, in a fog of depression with no reason to get up or be
productive. Kaya forced me to take her outside; to exercise her. This
small amount of responsibility and purpose was something that gave me
the confidence in which to expand my personal goals, bit by bit, until
I got to where I am today. Such was the effectiveness of this
treatment, I wondered why this option was not provided by the VA.
Answers to my inquiries were less than satisfactory, to put it mildly.
``There is no better way to overcome a trickle of doubt than with a
flood of naked truth''. The excuses we are given by the VA as to why we
have not pursued this option have centered around the lack of empirical
data about its efficacy. One doesn't have to read an academic study to
understand the therapeutic and healing effects untrained dogs can have,
but a trained service dog that combats specific symptoms are
exponentially more capable to be so. Moreover, we do actually have
studies. These studies have been conducted by our friends at K9's for
Warriors, and by the Human Animal Bond Research Institute in
conjunction with the MAYO Clinic and Purdue University. We have the
overwhelming amount of anecdotal evidence by veterans themselves. Even
so, if we use a hypothetical with service dogs adding little or no
benefits to countering PTS, there is absolutely no negative associated
with them, and certainly not to the extent which we have seen with
opioids.
George Washington once stated that, ``When we assumed the Soldier,
we did not lay aside the Citizen.''. Having already obtained Kaya and
being on a solid path to complete recovery, it would have been easy to
continue life without giving this issue a second thought. But in youth,
my heart was touched with the fire of service, and the Marine Corps
taught me to scorn few things outside of indifference. I could not, in
good conscience, leave this issue alone if I had the power to act.
Since May of 2015 I've devoted copious amounts of time and $10,000 of
my own money advocating for the P.A.W.S. Act.
I've learned that my story is not an uncommon one. The war against
PTS has been a long war; it's been a tough war. Heavily involving
myself with many veteran-transition organizations like 1st CivDiv
Warriors Foundation in Houston, TX, or GoRuck that operates nationwide,
and subsequently setting up my own Puppies Assisting Wounded
Servicemembers Foundation, I've been exposed regularly to the both the
personal and aggregate concerns voiced within the community. Our
nations veterans have found in one another a bond, that exists only
among brothers who have seen death and suffering together. This bond
has proved to be the impetus for the stories I hear, and the messages I
receive via social media from veterans and their families whom I've
never met. They encourage me to continue my efforts. More sobering, I
receive calls and emails from the family members of veterans I knew
personally that lost their personal battles to PTS pleading, in fact
begging me, to use what voice I have in Congress to relay this message:
service dogs will save lives.
I'm not here for myself. I have only tried to be the voice in which
my brothers and sisters can channel their desire for change, and the
one and only success which is mine to command is to bring a mighty
heart in this advocacy. With the current epidemic of veteran suicides,
it's unconscionable to keep the status quo and wait any longer to
institute this change the entire veteran community knows is a viable
solution to reduce the epidemic of veteran suicides.
Thank you again for the opportunity to submit testimony.
U.S. DEPARTMENT OF LABOR
Chairman Miller, Ranking Member Brown, and other Members of the
Committee, thank you for the opportunity to provide the views of the
Department of Labor (DOL) on pending legislation aimed at helping
veterans succeed in the civilian workforce.
DOL looks forward to working with the Committee to ensure that the
men and women who serve this country have the employment support,
assistance and opportunities they deserve to succeed in the civilian
workforce.
While this hearing is focused on numerous bills pending before the
Committee, I will limit my statement to H.R. 5407, legislation that has
a direct impact on the programs administered by DOL, and H.R. 5047, the
``Protecting Veterans' Educational Choice Act of 2016,'' which includes
an implementation responsibility for the Secretary of Labor. DOL
respectfully defers to the Department of Veterans' Affairs (VA),
Department of Education, Department of Defense, Department of Justice,
Department of Homeland Security and Department of Interior on the other
bills to be considered by the Committee today.
H.R. 5407 - A bill to amend title 38, United States Code, to direct the
Secretary of Labor to prioritize the provision of services to homeless
veterans with dependent children in carrying out homeless veterans
reintegration programs, and for other purposes.
DOL is committed to the Administration's goal of ending
homelessness among veterans. Our Homeless Veterans' Reintegration
Program (HVRP) addresses unemployment among one of the most vulnerable
veteran populations, those who are homeless. The Veterans' Employment
and Training Service (VETS) administers the HVRP to provide job
training, counseling, and placement services to homeless veterans so
that they can be reintegrated into the labor force. The HVRP is the
only nationwide federal program focusing exclusively on helping
homeless veterans to reintegrate into the workforce.
In the last full program year, VETS' HVRP grantees placed 69% of
the veterans they served into employment. The President's Fiscal Year
(FY) 2017 Budget includes a nearly $12 million increase for HVRP and
related programs, from $38.1M to $50M. If Congress increases the HVRP
appropriation to $50 million, VETS estimates the number of homeless
veterans served could increase from about 17,000 to approximately
22,000.
Beginning in Program Year 2016 (July 1, 2016), VETS is requiring
all grantees serving homeless veterans to enroll participants in the
public workforce system through the local American Job Center (AJC)
while they are receiving services through VETS' homeless veterans'
program grantees. The expectation is to create a sustainable
partnership in which participants' full range of employment needs are
met. The heart of the public workforce system is the AJC, the access
point for employers to find qualified workers and the access point for
veterans to acquire the employment and related services they need to
find meaningful employment.
H.R. 5407 would require DOL to prioritize homeless veterans with
dependent children for HVRP services. The bill also would impose new
biennial reporting requirements on DOL. Specifically, in addition to
the HVRP information currently required to be provided to the Congress,
H.R. 5407 would require DOL to analyze and report on ``any gaps in
access to shelter, safety, and services for homeless veterans with
dependent children,'' as well as recommendations for improving any such
gaps.
We absolutely agree that we must be doing everything we can to
support homeless veterans with dependent children, and we take very
seriously any concerns that homeless veterans with dependent children
may not be receiving the services they deserve. DOL would welcome the
opportunity to discuss H.R. 5407 further with the Committee and work
together to jointly identify any gaps in service that this legislation
is meant to address. Of importance, an Impact Evaluation of the HVRP is
scheduled to begin in 2016 that will further help inform our efforts.
The purpose of the evaluation is three-fold: To document the types of
services and support offered by the grantees; to identify potentially
promising practices or models; and to conduct a statistical analysis of
administrative data collected by the grantees and other data on job
placement and other outcomes of interest.
Regarding the additional reporting requirements established under
section 1(b) of the bill, VETS' mission is to prepare America's
veterans, Service members and their spouses for meaningful careers,
provide them with employment resources and expertise, protect their
employment rights and promote their employment opportunities. As this
Committee is aware, VETS administers the HVRP to provide employment and
training services to homeless veterans. We would welcome the
opportunity to discuss further with the Committee along with our VA and
Department of Housing and Urban Development colleagues how best to
appropriately measure gaps in shelter access for homeless veterans with
dependent children, or their safety, or to make recommendations on how
best to address such gaps. There are a number of Federal, state and
local entities that provide services in this area and the Department
may not solely be the best entity to do this reporting. Additionally,
any new reporting requirements will mean increased costs for the
Department and the bill does not authorize any additional funding for
the collection and evaluation of this additional data.
H.R. 5047, the ``Protecting Veterans' Educational Choice Act of 2016"
H.R. 5047 would ``direct the Secretary of Veterans Affairs and the
Secretary of Labor to provide information to veterans and members of
the Armed Forces about articulation agreements between institutions of
higher learning.'' The bill is intended to assist veterans in making
informed decisions regarding the use of their Post-9/11 GI Bill
benefits. To that end, the bill would require VA counselors who provide
educational or vocational counseling services to give eligible veterans
who seek such counseling information about articulation agreements,
governing the transfer of credits, which are in place between schools
in which the veteran is interested.
DOL is proud to have a record of closely coordinating with our
interagency partners, most notably on the Transition Assistance
Program. DOL also works closely with VA on vocational rehabilitation
programs through a Memorandum of Understanding.
Like VA, DOL supports the intent of this bill. However, we are
concerned that DOL's responsibilities under H.R. 5047 are unclear.
Although the Secretary of Labor is mentioned in the bill titles, the
substantive provisions only address VA's responsibilities.
Consequently, it is difficult for DOL to analyze what implementation
issues, if any, may exist. If the intent of the bill is to require DOL
to assist VA in establishing a comprehensive database of articulation
agreements, we have concerns about the cost of this endeavor.
Nonetheless, should H.R. 5047 become law, we will work with VA, as
directed, to help ensure that veterans have the information they need
to make educational decisions that will put them on a path toward
meaningful civilian employment.
I thank the Committee for your commitment to our nation's veterans
and for the opportunity to submit this statement for the record.
Questions And Answers For The Record
FROM NOVA
The Honorable Jeff Miller
Chairman
U.S. House of Representatives
Committee on Veterans' Affairs
335 Cannon House Office Building
Washington, DC 20515
July 1, 2016
RE: Response to Hearing Questions dated June 23, 2016
Dear Chairman Miller:
The National Organization of Veterans' Advocates, Inc. (NOVA)
thanks you for the opportunity to answer the questions posed in your
June 23, 2016 letter following the legislative hearing that included
consideration of H.R. 5083.
1. Can reform -be it appeals reform or any reform -be successful
without
The appeals reform being proposed in H.R. 5083 cannot be successful
without VA being held accountable. Neither the current appeals system
nor the currently- proposed system contains provisions to address
accountability on the part of VA. While a veteran has set deadlines
within which to complete each step of an appeal, VA has no such
comparable deadlines, much less consequences or sanctions for
unreasonable delays.
As demonstrated with the prior backlog of original claims and
scheduling of medical appointments, VA often struggles to meet its own
internal goals to the detriment of veterans. By setting expectations
and failing to meet them, VA causes unnecessary distress and anxiety in
the veterans it is committed to serve. The success of the proposed
reform hinges on the ability of VA to process claims accurately within
the stated goal of 125 days and the ability of the Board of Veterans'
Appeals (BVA) to process non-hearing appeals within one year.
Congress should require case processing timeline goals for those
who chose to submit evidence or request a hearing. Furthermore, there
needs to be accurate and transparent data gathered to measure whether
VA delivers on its promises, with meaningful consequences when it fails
to meet the accuracy and timeline standards.
Similarly, to ensure all veterans are treated fairly, there must be
transparency in how any case docket is being managed and how legacy
appeals are resolved. Without such measures, the process cannot be
timely, fair, easy to understand, transparent, and preserve veterans'
rights - VA's stated goals in addressing reform. For example, without
clear docket standards, VA could work cases in its preferred lanes
while other veterans wait, and subsequently produce data to support a
predetermined outcome.
2. If H.R. 5083 advances as drafted, would your organization
support or oppose it as is?
NOVA would oppose H.R. 5083 as written. NOVA detailed its concerns
with the bill in its June 23, 2016 statement. We maintain changes are
necessary to ensure adequate preservation of veterans' legal rights. As
noted, among other things, the bill could adversely affect the
veteran's right of appeal to the United States Court of Appeals for
Veterans Claims (CAVC), does not provide sufficient detail regarding
docket management, and does not address the resolution of pending
appeals. Recognizing the legislative process does not guarantee
favorable resolution of all stakeholders' concerns, NOVA maintains
there are still too many unresolved issues that prevent our
organization from unequivocally supporting the bill as currently
written.
Furthermore, VA overstates the level of stakeholder consensus. This
overstatement was apparent in the oral and written testimony presented
to this Committee at the June 23, 2016 hearing.
Numerous stakeholders noted multiple areas of concern, clearly
indicating less than full consensus with VA' s plan. In addition, while
VA included a wider range of stakeholders in the ``appeals summit''
meetings, to include NOVA, it limited participation to the ``Big 6''
group of VSOs in at least three follow-up meetings as it considered the
critical issues of staffing and fair resolution of existing appeals.
Given that attorneys and agents now represent nearly 15 percent of
appeals before BVA (according to BVA's 2015 Annual Report) and provide
the majority of representation before the CAVC, exclusion of the legal
organization stakeholders is short sighted and ultimately mutes the
voice of veterans who choose this form of representation.
Thank you for your consideration of our responses. Should you
require additional information, please do not hesitate to contact me at
202.587.5708 or [email protected].
Sincerely,
Diane Boyd Rauber
Executive Director
FROM MOAA
1. Can reform - be it appeals reform or any reform - be successful
without accountability?
No, MOAA does not believe reform can be successful without at least
some type of accountability.
Absent some manner of demonstrating acceptable outcomes have been
achieved by a government agency, reform bills offer little chance of
success. Absence of accountability undermines the confidence of the
American public in the ability of elected officials to govern
effectively.
Accountability should be outcome-determinative. That is,
accountability mechanisms should be based on achieving the desired
outcome rather than on the steps taken to reach that outcome.
2. If H.R. 5083 advances as drafted, would your organization
support or oppose it as is?
If no other reform option is to be considered, MOAA would support
H.R. 5083, albeit with reservation. There are other reform options that
would improve the VA disability claims process, and MOAA urges Congress
not to limit the scope to merely this one option presented by the
Department of Veterans Affairs.
As drafted, the legislation fundamentally alters the veteran-
friendly nature of the VA claims system, makes a vast majority of the
process adversarial (requiring veterans to seek legal representation),
and significantly burdens veterans. MOAA does not believe shifting
responsibility to veterans and away from the government is a move in
the right direction. Veterans have already fulfilled their end of the
bargain to the government, and this is the time for the government to
fulfill its reciprocal commitment to the veteran.
H.R. 5083 seriously abridges the rights of veterans in favor of
greater administrative efficiencies at the Department of Veterans
Affairs. MOAA supports elimination of useless procedural steps in the
VA claims process, which this legislation accomplishes. However, we do
not believe it is right to force the veteran to litigate against the
Department of Veterans Affairs as a matter of course.
Eliminating the redundancy of requiring a veteran to file both a
Notice of Disagreement and Appeal to the Board of Veterans' Appeals
makes sense. Eliminating the Statement of the Case in favor of a
subsequent rating decision makes sense. Eliminating the government's
duty to assist a veteran beyond the initial ratings decision does not
make sense, because veterans are almost always unable to identify and
articulate all evidence and sources of information in an initial
disability claim.
FROM THE AMERICAN LEGION
Responses from The American Legion to Questions For the Record
based on the testimony for the June 23rd 2016 Committee on Veterans'
Affairs Legislative Hearing: Dated 6/23/2016
1.Can reform - be it appeals reform or any reform - be successful
without accountability?
The American Legion thanks the Committee for this question, and the
answer goes much deeper than reform. The essence of the word reform is
new, and the accountability enforcement needed by VA is anything but
new.
The American Legion stands firm by our position that VA has a
responsibility to veterans, to taxpayers, and the employees of the
Department of Veterans Affairs to maintain strong accountability for
employee actions and constant oversight of work ethic, all while being
an expert steward of the taxpayer's money.
Every employee deserves to be treated impartially and fair, they
also deserve to be rewarded and recognized when performing above
standard. On the other hand, substandard performance, poor judgment,
toxic attitudes, and bad behavior require swift action and appropriate
consequences. Criminal behavior should always be reported to the legal
authorities, and any criminal activity participated in, or conducted by
an active employee of VA while being paid to care for or serve
veterans, should be met with immediate dismissal.
The American Legion believes that the Secretary, and his or her
authorized representative should have the authority to make those
decisions, as needed, with the Secretary being the ultimate arbitrator
of any disagreement of opinion or appeal.
Neither reform, nor successful daily operations of a well-
functioning Department of Veterans Affairs can be absent sufficient
accountability and the authority to carry it out.
The American Legion supports any reform measure that will give the
Secretary the authority to hire or remove any employee they see fit,
without having to have his or her decision questioned by any third
party arbitrator. VA employees should have access and are welcomed to
all of the remedies available to any other employee for situations
where they have been genuinely wronged. Those options include, but are
not limited to The Department of Labor, and the civil court systems.
An argument we commonly hear involves political retribution
firings. The likelihood of a political firing is so remote, that it is
not worth upending the entire system to protect against. Also, if an
employee is a political hire, they exist in an environment where they
can be terminated for the same political reasons. If not a political
hire, then they would enjoy the same protections every other American
worker enjoys, as stated above.
2.If H.R. 5083 advances as drafted, would your organization support
or oppose it as is?
The American Legion would SUPPORT H.R. 5083 as-is.
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