    [Senate Hearing 114-702]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-702

                         HEARING ON PENDING LEGISLATION

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

                                    HEARING

                                   BEFORE THE

                         COMMITTEE ON VETERANS' AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 24, 2016

                                   __________

           Printed for the use of the Committee on Veterans' Affairs

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

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                         COMMITTEE ON VETERANS' AFFAIRS

                       Johnny Isakson, Georgia, Chairman
    Jerry Moran, Kansas                  Richard Blumenthal, Connecticut,
    John Boozman, Arkansas                   Ranking Member
    Dean Heller, Nevada                  Patty Murray, Washington
    Bill Cassidy, Louisiana              Bernard Sanders, (I) Vermont
    Mike Rounds, South Dakota            Sherrod Brown, Ohio
    Thom Tillis, North Carolina          Jon Tester, Montana
    Dan Sullivan, Alaska                 Mazie K. Hirono, Hawaii
                                         Joe Manchin III, West Virginia
                           Tom Bowman, Staff Director
                     John Kruse, Democratic Staff Director

                                C O N T E N T S

                                  ----------

                                  May 24, 2016
                                    SENATORS

                                                                       Page
    Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia........     1
    Blumenthal, Hon. Richard, Ranking Member, U.S. Senator from
      Connecticut....................................................     2
    Tester, Hon. Jon, U.S. Senator from Montana......................     2
    Sullivan, Hon. Dan, U.S. Senator from Alaska.....................     3
    Moran, Hon. Jerry, U.S. Senator from Kansas......................    28
    Tillis, Hon. Thom, U.S. Senator from North Carolina..............    32
    Manchin, Hon. Joe, U.S. Senator from West Virginia...............    34
    Heller, Hon. Dean, U.S. Senator from Nevada......................    36

                                   WITNESSES

    Boxer, Hon. Barbara, U.S. Senator from California................     4
    McCain, Hon. John, U.S. Senator from Arizona.....................     5
    Klobuchar, Hon. Amy, U.S. Senator from Minnesota.................     7
    Gibson, Hon. Sloan, Deputy Secretary, U.S. Department of Veterans
      Affairs; accompanied by Laura Eskenazi, Executive in Charge and
      Vice Chairman, Board of Veterans' Appeals; David McLenachen,
      Deputy Under Secretary for Disability Assistance, Veterans
      Benefits Administration; and Baligh Yehia, M.D., Assistant
      Deputy Under Secretary for Health for Community Care, Veterans
      Health Administration..........................................     9
        Prepared statement...........................................    12
        Response to posthearing questions submitted by:
          Hon. Johnny Isakson........................................    39
          Hon. Mazie K. Hirono.......................................    48
    Michaud, Hon. Michael H., Assistant Secretary of Labor for
      Veterans Employment and Training, U.S. Department of Labor;
      accompanied by Patricia Shiu, Director, Office of Federal
      Contract Compliance Program....................................    19
        Prepared statement...........................................    21
    Fuentes, Carlos, Senior Legislative Associate, National
      Legislative Service, Veterans of Foreign Wars of the United
      States.........................................................    51
        Prepared statement...........................................    52
        Response to posthearing questions submitted by Hon. Mazie K.
          Hirono.....................................................   135
    Celli, Louis J., Jr., Director, National Veterans Affairs and
      Rehabilitation Division, The American Legion...................    63
        Prepared statement...........................................    65
    Atizado, Adrian M., Deputy National Legislative Director,
      Disabled American Veterans.....................................    73
        Prepared statement...........................................    75
    Blake, Carl, Associate Executive Director, Government Relations,
      Paralyzed Veterans of America..................................    87
        Prepared statement...........................................    89
    Rauber, Diane Boyd, Executive Director, National Organization of
      Veterans' Advocates, Inc.......................................    97
        Prepared statement...........................................    99
    Ensminger, Jerome M., MSgt (Ret.), U.S. Marine Corps.............   105
        Prepared statement...........................................   108
            Attachments..............................................   113

                                    APPENDIX

    American Federation of Government Employees (AFGE), AFL-CIO;
      prepared statement.............................................   137
    Zumatto, Diane M., National Legislative Director, AMVETS;
      prepared statement.............................................   138
    Harmar, Kempf, Inc., Pride Mobility Products Corp., AMSVans,
      Mobility Plus, Homecare Mobility, Patriot Mobility,
      AmeriglideAccessibility Solutions, American Access, John George
      Welding andRollx Vans; letter..................................   141
    Military Officers Association of America; prepared statement.....   145
    Wells, CDR John B., USN (Retired), Executive Director, Military-
      Veterans Advocacy; prepared statement..........................   148
    Caraway, Martin, Legislative Chairman, National Association of
      County Veterans Service Officers; prepared statement...........   157
    Brasuell, David, President, National Association State Directors
      of Veterans Affairs and Administrator, Idaho Department of
      Veterans Services; prepared statement..........................   158
    National Mobility Equipment Dealers Association; letter..........   163
    Stichman, Barton F., and Ronald B. Abrams, Joint Executive
      Directors, National Veterans Legal Services Program; prepared
      statement......................................................   164
    Texas Veterans Commission; prepared statement....................   169
    Urgent Care Association of America; prepared statement...........   172
    Veterans & Military Law Section, Federal Bar Association; letter.   175
        Addendum.....................................................   181

                         HEARING ON PENDING LEGISLATION

                                  ----------

                             TUESDAY, MAY 24, 2016

                                           U.S. Senate,
                                Committee on Veterans' Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:15 p.m., in
    room 418, Russell Senate Office Building, Hon. Johnny Isakson,
    Chairman of the Committee, presiding.
        Present: Senators Isakson, Moran, Heller, Tillis, Sullivan,
    Blumenthal, Brown, Tester, and Manchin.

          OPENING STATEMENT OF HON. JOHNNY ISAKSON, CHAIRMAN,
                       U.S. SENATOR FROM GEORGIA

        Chairman Isakson. I call to order this hearing of the
    Veterans' Affairs Committee of the U.S. Senate.
        In my opening statement, I want to address a subject which
    became prominent yesterday in remarks made by the Secretary to
    The Christian Science Monitor, which I quote from what I read
    in the media was said at the meeting. ` ``When you go to
    Disney, do you measure the number of hours you wait in line or
    what is important,'' McDonald told reporters at The Christian
    Science Monitor in Washington. ``What is important is your
    satisfaction with the experience.'' '.
        That is a quotation that was, I am sure, not intended to
    send the message that it sent, but at least in part, it sent a
    more trivial message than I think it should have. I think the
    Secretary owes the veterans of the United States of America and
    this Committee an apology for making that reference.
        We all make mistakes. I ran a big company. I have been a
    U.S. Senator. I have been a politician for 38 years. I have
    said things and I have had to say I am sorry before. The
    quicker you say it, the better off you are to put behind you
    something that may not have been intended, but, in fact, once
    it was out, your message became fact.
        So, as Chairman of the Committee, and I have not had a
    chance to talk with the Ranking Member yet, but I think every
    Member of the Committee probably feels the same way I do. We
    are so close to reforms in the VA to further expedite the
    products of the Veterans Administration in terms of taking care
    of our veterans that for us to lose our inertia by quotes that
    send the wrong message would just be terrible. So, it is my
    hope the Secretary will correct what was obviously not the
    intent of the statement, make sure the veterans know that their
    service first is what is most important to us, and that waiting
    in line does mean something. It is one thing to wait for a
    roller coaster. It is another thing to wait for a blood
    transfusion. The two should not be comparable in one way or
    another.
        With that said, I will turn to the Ranking Member.

             OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
             RANKING MEMBER, U.S. SENATOR FROM CONNECTICUT

        Senator Blumenthal. I want to thank the Chairman for his
    remarks, which I think capture the feelings of a lot of our
    reaction to the remarks that we read without knowing in advance
    they were going to be made. They were unfortunate. I certainly
    hope and believe they do not reflect the intentions and
    dedication of Secretary McDonald to continue efforts to improve
    the VA's delivery of services that our veterans need and
    deserve, and part of delivery is doing it without delay. Time
    is a critical factor, as well as the quality of service.
        My hope is that we can work together, as we have done on a
    bipartisan basis for the Veterans First Act, which will bring
    fundamental reform to assure accountability in the VA as well
    as improving the delivery of education and health care,
    Caregivers' and other truly important programs.
        I want to thank the Chairman for having the hearing today
    and for our colleagues who will be testifying before us.
        We must reform the appeals process. We have to improve VA's
    programs for providing care in the community as well as make
    sure that VA's construction program is managed well. We have to
    do more to ensure that women veterans, the fastest growing
    population at the VA, have access to the care they deserve and
    need. Those measures are before us today.
        My hope is we will look forward and seek to improve and
    continue the vital and significant work that we are doing
    together to those ends and to the goals that we share in the
    Veterans First Act. I am very hopeful, in fact, optimistic,
    that we can bring the Veterans First Act to a successful
    conclusion if we continue working together as we have done on a
    very bipartisan basis.
        Thank you, Mr. Chairman.
        Chairman Isakson. Just an editorial comment. Senator
    Blumenthal is exactly correct. We passed the Veterans First
    bill out of this Committee unanimously, and we want to get it
    to the floor and get it passed, because it deals with
    correcting all those things in terms of policies and procedures
    that the VA itself has asked for or that we have seen fit: to
    expedite appointments, to expedite health care, and improve the
    veterans services to our veterans. So, I want to at the
    beginning compliment all our Members of the Committee for the
    work they did on Veterans First. We are going to work hard to
    get it to the floor and make it happen.
        With that said, Senator Tester.

                     STATEMENT OF HON. JON TESTER,
                       U.S. SENATOR FROM MONTANA

        Senator Tester. Well, if I might, since Senator Boxer and
    Senator McCain are not here, I just might say a couple things.
        Chairman Isakson. Absolutely.
        Senator Tester. First of all, thank you for your
    leadership, Senator Isakson and Ranking Member Blumenthal.
        I would just like to say a few comments about Secretary
    McDonald. You pointed it out, Mr. Chairman. People say things
    they regret later, and I think that he is in that boat. If he
    has not apologized already, I am sure he will shortly.
        I have had the opportunity on this Committee to serve under
    some really quality people as head of the VA, Secretary Peake,
    Secretary Shinseki, and now Secretary McDonald. I will tell you
    that each one of those people had strengths and each one of
    them had weaknesses, but they all had one thing in mind, I
    believe, and that is what is best for our veterans.
        This Committee has done such great work in a bipartisan
    manner that I hope we can continue down that line moving
    forward, keeping the Veterans First Act in mind and keeping
    politics out of this Committee, because our veterans deserve a
    hell of a lot more than playing politics.
        Thank you, Mr. Chairman.
        Chairman Isakson. Well, I completely concur with your
    remarks and I thank you for your work in helping bring about
    the cooperation that made Veterans First come to reality.
        Senator Sullivan.

                   STATEMENT OF HON. DAN SULLIVAN ,
                        U.S. SENATOR FROM ALASKA

        Senator Sullivan. Mr. Chairman, I just want to associate
    myself with your remarks. I appreciate your leadership, Senator
    Blumenthal's leadership, on the legislation we have been
    working on.
        I agree with Senator Tester, and as you also mentioned,
    there are times we all make mistakes. I think that is obvious.
    But when you are in a leadership position, particularly in an
    organization where we are trying to change the culture--I think
    everybody here thinks we need to change the culture--those kind
    of comments, they are going to be noticed by tens of thousands,
    if not hundreds of thousands of veterans.
        I think your wise counsel about coming out, apologizing as
    soon as possible, is what needs to happen.I certainly hope the
    Secretary takes you up on that wise advice.
        Chairman Isakson. Thank you, Senator Sullivan. Thank you
    for your leadership on Veterans First. We appreciate it.
        We have two distinguished Members of the Senate here. Our
    Committee procedure is when members who are not Members of the
    Committee testify, we will give them a few minutes at the
    beginning of our hearing to state their case for their
    legislation. Then as is our practice, we do not engage them in
    questions when it is over.
        So, Senator Boxer and Senator Klobuchar, both of you may
    make your statements, then you can remain as long as you want
    to, but we are not going to subject you to any inquisition nor
    questions.
        To begin, I will go with seniority. I will start with
    Senator Boxer from California.

                   STATEMENT OF HON. BARBARA BOXER,
                      U.S. SENATOR FROM CALIFORNIA

        Senator Boxer. Thank you, Mr. Chairman. I would certainly
    love to have your questions, but I know you have a lot to get
    through. I thank you so much, all of you, particularly, Mr.
    Chairman and Ranking Member Blumenthal, plus every member who
    is here.
        I am pleased that the Female Veteran Suicide Prevention
    Act, which I introduced with Senators Blumenthal, Brown, and
    Ernst, is on today's agenda. This bill addresses a very
    important issue that deserves our continued attention, the
    tragic epidemic of suicide among veterans, especially among our
    female veteran population.
        Last year, a VA study found that female veterans commit
    suicide at nearly six times the rate of non-veteran women--six
    times the rate of non-veteran women--and the rates are even
    higher among younger veterans. For women between the ages of 18
    and 29, the rate increases to nearly 12 times the civilian
    rate. Something is horribly wrong here. It is heartbreaking. It
    is unacceptable. We are in a position, I think, to address it
    in this bill.
        There are now more than two million women veterans in the
    United States and that number is growing. As we encourage and
    welcome more brave women into the service, we must remember
    that their health care needs often differ from men's, and that
    includes mental health care. Women veterans have different life
    experiences and gender-specific concerns that may well require
    different treatments. We know that many experience physical or
    mental trauma as a result of their service, and women veterans
    are more likely than their civilian counterparts to have
    experienced harassment or sexual assault, something that I know
    we all care about. When these women leave the service, the
    transition can be difficult.
        That is why we must increase our understanding of the
    unique experiences of female veterans and ensure that they know
    that the mental health care and support they need is waiting
    for them at the VA.
        Our legislation would build on previous efforts to examine
    the services we are providing our veterans. It would take a
    very hard look at which programs are working and which are not
    working for our at-risk female veterans. I think it is
    important to know that we are spending taxpayer dollars. We
    should spend the taxpayer dollars wisely and not waste it on
    programs that may work well for certain other categories, but
    not these particular women. Our legislation requires the VA to
    identify the programs that are the most effective and that have
    the highest satisfaction rates among female veterans in its
    annual evaluation of mental health and suicide prevention
    programs.
        It would also require them to include specific metrics on
    women veterans. Our daughters, our sisters, our wives, and our
    mothers who have served our country courageously deserve the
    best possible care we can provide.
        The VA, I know, is doing everything it can to help prevent
    suicides, but we know we can do better. We can always do
    better. That is why our Founders said ``a more perfect Union,''
    and they did not say that we have a perfect Union. We can do
    better on this. We have to do better. It is wrong that our
    female veterans have a higher rate of suicide than the civilian
    sector, up to 12 times more.
        We owe our veterans, I think, at least this bill, which
    will give us the information we need to prevent this horrible
    crisis.
        Thank you very much.
        Chairman Isakson. Thank you very much, Senator Boxer. We
    appreciate it.
        Senator McCain, you have been deferred to by Senator
    Klobuchar. Amy told us it is always important to remember that
    age comes before beauty. [Laughter.]
        Chairman Isakson. To that end, I----
        Senator McCain. Has she already finished? [Laughter.]
        Senator Klobuchar. No, I want to get to you. [Laughter.]
        Chairman Isakson. I tell you, you can never one-up John
    McCain, I am going to tell you that. [Laughter.]
        But, let me just say this on behalf of myself and, I think,
    Senator Blumenthal, who is a veteran like so many in the U.S.
    Senate, but the veteran's veteran in the U.S. Senate is John
    McCain. We are honored to have him here today.
        Senator McCain, the floor is yours.

                    STATEMENT OF HON. JOHN McCAIN,
                       U.S. SENATOR FROM ARIZONA

        Senator McCain. I thank you, sir, and I thank my friend
    from Minnesota on the great job and effort she is making.
        By the way, on the suicide issue, I agree with the Senator
    from California. But I also would point out we did pass
    unanimously the Clay Hunt Suicide Prevention Act, which I think
    addressed many of the concerns. I will be glad to have
    additional legislation, but I think it is only about a year-
    and-a-half old. We might give that Act a chance to see if it is
    going to work or not. But all of us, including the Senator from
    California, are very concerned about this terrible issue of
    veteran suicides.
        I want to thank all my colleagues regarding the legislation
    called the Care Veterans Deserve Act. The bill would make the
    Veterans Choice Card easier for our veterans. Today, the only
    veterans who are eligible, as the Committee knows, are those
    who are waiting more than 30 days or live more than 40 miles
    from a VA health care facility. The bill would make the Choice
    Card universally available to all disabled or eligible
    veterans, no matter where they live or how long they are
    waiting for care so they can get the flexible quality they want
    and need.
        The legislation provides greater certainty to our veterans
    and doctors currently enrolled in the Veterans Choice Card
    program. Many people are not aware that if Congress does not
    act soon, the Veterans Choice Card program will expire next
    summer. Some doctors are refusing to serve veterans under the
    Choice Card until they are certain it will be extended for the
    long term. The bill provides both veterans and doctors the
    certainty they need by making this vital program permanent.
        Mr. Chairman, we have been working in the Senate on a 3-
    year extension of the card under existing rules for
    eligibility. I will continue to work with you and the Committee
    to pass that extension. I strongly believe the best way to
    improve veterans health care is to enable all eligible veterans
    to access the Choice Card.
        The bill that we have put forward includes a number of
    other provisions, for example, allowing veterans who develop a
    cold or the flu to visit walk-in clinics without
    preauthorization from the VA. Today, veterans with non-urgent
    medical conditions must call the VA for an appointment, which
    could take weeks to schedule, and if veterans complain about
    the wait, the VA tells them to go to an overcrowded emergency
    room. Senator Flake and I heard testimony from a number of
    veterans who have sat in the ER for up to 14 hours without
    being seen. Veterans told us that for minor illnesses, they
    just wanted a way to see a health care provider on the same day
    and this legislation would do that.
        This legislation would require VA clinics and pharmacies to
    extend their operating hours to nights and weekends in order to
    provide comparable pharmacy services offered by retail
    pharmacies. Currently, only a small number of VA facilities
    offer evening or weekend options for veterans, which makes it
    difficult for working veterans who often cannot take the entire
    workday off in order to see a doctor and obtain a prescription.
        We know the VA has a long way to go to eliminate the never-
    ending wait times. The Congress provided the VA an extra $5
    billion in emergency funding to hire doctors, nurses, and
    medical support staff. The VA needs to use this money to hire
    or contract for doctors to eliminate the wait times that are
    still as high, or in some cases higher, than they were during
    the scandal.
        Critically, this legislation would allow the health care
    professionals licensed, registered, or certified in one State
    to use telemedicine to provide treatment to veterans in other
    States.
        We encourage the VA Health Care System to undergo a best
    practices peer review. I want to just emphasize, if I could--
    Mr. Chairman, why do we not get organizations like the
    Cleveland Clinic or Mayo or others to come in and look at these
    VA facilities to see how they are doing business to say, here
    is how you can improve. There are some outstanding examples all
    over the country of health care providers that really know
    their business, so why not have a peer review and send them in?
    It would be very inexpensive. In fact, I know that the Mayo
    Clinicwould do it for free because of their dedication to our
    veterans. Mayo would go see how they are doing business; show
    them how they can improve. I think that is pretty obvious.
        I just want to point out that because of the Choice
    program, so far 1.4 million appointments for veterans who would
    otherwise wait for delayed care, over 2.5 million separate
    payments to doctors and hospitals were made, and over 450,000
    Choice health care providers across the Nation have joined to
    date for veterans to choose from. The Choice Card triples the
    number of health care providers that can care for our Nation's
    veterans. One hundred seventy thousand medical appointments for
    veterans under Choice were made last month alone, more than
    7,500 per work day.
        So, Mr. Chairman, I want to thank the Members of this
    Committee on both sides for their bipartisan effort on behalf
    of our veterans. Senator Blumenthal and you, I think, represent
    the best of us in the U.S. Senate in working together, and I
    think that that--and all members--has led to favorable outcomes
    for our veterans. So, I want to thank you for that and I want
    to thank you for the work you have done so far.
        Chairman Isakson. Senator McCain, I just want to add that
    in August 2014, you led the conference committee that created
    the Veterans Choice program. In the 2 years since it has been
    implemented, it has been a force multiplier for physicians
    being able to be available for our veterans. It has begun to
    deliver on the promise that you led us to, which came out of
    the terrible tragedy that started in your State in terms of
    wait times. So, your leadership is appreciated. What you have
    done is appreciated and we will give it thorough consideration.
        Senator McCain. I want to thank you, and I would like to
    mention the product of that was negotiations with Senator
    Sanders, who was then-Chairman of the Committee. I would also
    allege that I am one of the first to feel the Bern. [Laughter.]
        Senator Blumenthal. Mr. Chairman, I hate to follow that
    remark with anything----
        [Laughter.]
        Senator Blumenthal [continuing]. As you said at the outset,
    there is no one-upping Senator McCain. I just want to
    personally thank Senator McCain for his leadership on the
    amendment that hopefully we will consider to the NDAA. I am
    very proud to be the lead Democrat supporter of that amendment,
    which will extend community choice and care in the community. I
    look forward to working with him on this proposal, as well.
    Thank you for the leadership, Senator.
        Chairman Isakson. Thank you, Senator McCain.
        Senator Klobuchar.

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Thank you very much, and thank you,
    Senator McCain, for your service and your good work.
        I want to also thank the Chairman and Ranking Member
    Blumenthal, to walk in here and hear the rather calm discussion
    about the Secretary's remarks. I share your sentiments about
    the need for an apology, but I appreciated your thoughtfulness
    in how you approached this, Mr. Chairman, as you do so many
    issues. I know from having co-chaired the National Prayer
    Breakfast with you, that you show great leadership, so thank
    you for that.
        I am here on two bills, both of whom I am leading with
    Senator Tillis. The first, actually--Senator McCain's service
    in the Vietnam War reminds us of what happened during the
    Vietnam War when the U.S. sprayed 80 million liters of Agent
    Orange and Vietnam vets came home with nerve, skin, digestive,
    and respiratory disorders. Thousands of veterans asked for
    help, but it took the government years to recognize that link.
        We have something else going on right now and we do not
    really know the scope of it, but we know there is an issue, and
    that is the issue of burn pits. At military sites across Iraq
    and Afghanistan, burn pits were used for waste disposal, old
    batteries, aerosol cans, tires, dead animals, and even human
    waste. Oftentimes, jet fuel was used as an accelerant. The
    volumes and types of minerals varied by site, but the
    Department of Defense has estimated that between 65,000 and
    85,000 pounds of solid waste were burned each day at large
    bases. One joint base burned up to 147 tons of waste per day,
    and these open air pits would frequently burn 24 hours a day,
    exposing thousands of soldiers.
        I have heard personally from hundreds of constituents, as
    has Senator Tillis. One of them, Melissa Gillett from
    Minnesota, was a member of the 148th Fighter Wing based in
    Duluth. She got into the National Guard with a plan to stay in
    the National Guard for 20 years. She was very healthy. Then she
    was exposed to burn pits in Afghanistan. She experienced a host
    of negative health effects, like asthma, sinus issues, and
    because of her breathing issues, she was not able to pass her
    fitness test and could no longer serve in the National Guard.
        There has been a study on this, a 2011 Institute of
    Medicine report that has been inconclusive about the long-term
    effects. As you all know, there is a registry. Sixty-five
    thousand Iraq and Afghanistan veterans have begun the process
    of filing reports with the VA's voluntary registry. Of vets who
    completed the questionnaire, 30 percent stated that they have
    been diagnosed with respiratory diseases.
        What our bill does is to create a Center of Excellence in
    the VA to better understand the health effects. Senator McCain
    is a cosponsor as well as Senator Rounds, Senator Gillibrand,
    and Senator Franken. It has received the support of Iraq and
    Afghanistan Veterans of America and the American Lung
    Association. It really points us in the right direction of
    looking at dedicating staff and resources to exploring,
    diagnosing, treating, and rehabilitating. We are hopeful that
    it will receive the support of this Committee.
        For the second bill, I will be more brief, which is the
    Newborn Care Improvement Act. This is a bill, again with
    Senator Tillis--oh, here he is. This bill actually has already
    passed the House back in February without any controversy. What
    it does is it doubles the number of days from 7 to 14 that a
    veteran's newborn baby can get post-delivery care services.
        Right now, a qualifying veteran must find outside health
    care for her child within 7 days of birth or the baby will not
    be covered for care. Factors like PTSD and combat injuries mean
    many female vets face high-risk pregnancies and this time of 7
    days is simply not enough, even for a birth without
    complications. The standard of care for healthy newborns is 14
    days. Nearly all pediatricians require newborns to return to
    the hospital at 2 weeks for a check-up.
        As I said, the House passed this without controversy, and
    as Senator Boxer was just talking about in a different context,
    women represent the fastest growing group of veterans who are
    enrolled in VA health care.
        I have introduced this legislation as an amendment to NDAA
    and I hope that we can work together, either pass this
    legislation that way, as well as the burn pit bill, or pass it
    some other way.
        I thank you very much, Mr. Chairman, for allowing me to
    speak today and all the good work, bipartisan work, you do on
    this Committee.
        Chairman Isakson. Thank you very much, Senator Klobuchar.
    We appreciate your help and your testimony and we will be with
    you soon.
        It is now time for our first panel to come forward. Sloan
    Gibson, the Deputy Secretary of the Department of Veterans
    Affairs; Laura Eskenazi will accompany him, as will David
    McLenachen and Baligh Yehia.
        Michael Michaud, Assistant Secretary of Labor for Veterans
    Employment and Training, U.S. Department of Labor; accompanied
    by Patricia Shiu, Director, Office of Federal Contract
    Compliance Program, will also be on the first panel.
        Let me acknowledge before I start that Deputy Secretary
    Sloan Gibson has asked to have a few more than the standard 5
    minutes, so we will give him eight, and if he goes too far past
    that, we will go get him. [Laughter.]
        Deputy Secretary Gibson.

        STATEMENT OF HON. SLOAN GIBSON, DEPUTY SECRETARY, U.S.
    DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY LAURA ESKENAZI,
       EXECUTIVE IN CHARGE AND VICE CHAIRMAN, BOARD OF VETERANS
         APPEALS; DAVID McLENACHEN, DEPUTY UNDER SECRETARY FOR
     DISABILITY ASSISTANCE, VETERANS BENEFITS ADMINISTRATION; AND
    BALIGH YEHIA, M.D., ASSISTANT DEPUTY UNDER SECRETARY FOR HEALTH
           FOR COMMUNITY CARE, VETERANS HEALTH ADMINISTRATION

        Mr. Gibson. Thank you, sir.
        Let me briefly address the attention that has been
    generated by Secretary McDonald's comments yesterday. First and
    most importantly, anyone who knows Bob McDonald knows that he
    would never, ever diminish the importance of improving
    veterans' access to care. Bob has made improving access to care
    for veterans the number 1 priority of VA since he arrived
    almost 2 years ago.
        He has worked tirelessly to lead and inspire the Department
    to improve the timeliness of care and the provision of benefits
    to veterans. He has repeatedly indicated to all kinds of
    audiences that our goal is to ensure that VA becomes the number
    1 customer service organization in the Federal Government. He
    is doing everything he can and we are working with him to make
    VA more veteran-centered and increase veteran satisfaction.
        He is leading the Department in following the best
    practices of the private sector health care providers who
    recognize that there is more to patient satisfaction and a
    great health care experience than wait times.
        I was reminded recently, it was almost 2 years ago that an
    acting Secretary, who I know well, said before this particular
    committee, and I quote, ``I think as we move forward, what we
    are going to find is that average wait times are a very poor
    gauge for timeliness of care for a large integrated health
    system. You do not really find that out in the private sector.
    That is one of the reasons we are boosting our patient
    satisfaction measurement activities, because I think patient
    satisfaction is going to become central. Even at a 14-day
    standard, if the veteran needs to be seen today, we have failed
    that veteran.'' That statement was made before this Committee
    on July 16 back in 2014. It was true in 2014. It is true today.
    We know we have work to do to improve access to care.
        Bob and I deeply regret the distraction from the veterans'
    work that has been caused by these remarks and the perception
    that was created that veterans' access to care is anything
    other than our absolute top priority.
        Second, a quick comment. I would be remiss if I did not
    express my appreciation to the Committee and especially to you,
    Mr. Chairman, for your leadership on the Veterans First Act. We
    strongly support that legislation. We are grateful for the
    opportunity we had to work collaboratively with you and the
    Committee, and I have at least some small sense of the effort
    that you personally have put into navigating this legislation
    through the process. Thank you, sir, and thank other Members of
    the Committee.
        With all that said, thank you for presenting our views on
    several bills. I will really focus on just two elements here.
        I am joined today, as you introduced Laura Eskenazi, the
    Vice Chairman of the Board of Veterans Appeals, Dave
    McLenachen, Deputy Under Secretary in VBA in the benefits area,
    and Dr. Baligh Yehia, who has been driving our processes in VHA
    around community care consolidation for the last number of
    months.
        I also would be remiss if I did not acknowledge our
    partners from the various Veterans Service Organizations that
    worked so closely with us on the appeals reform draft
    legislation.
        Appeals reform is a top priority for VA and we fully
    support the bill that is under consideration. It is critical to
    remember that the cost associated with implementing the 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 from the legislation to
    modernize the process.
        The current appeals process leaves veterans frustrated and
    waiting far too long. It was conceived some 80 years ago and
    has become a collection of processes that have accumulated over
    time, unlike any other appeals process in the Federal
    Government. Layers of additions to the process have made it
    more complicated, more opaque, more unpredictable, and less
    veteran-friendly. It makes adversaries of veterans and VA and
    it is slow as molasses, using a good Southern term that we are
    both familiar with, sir.
        The average processing time for all appeals is about 3
    years. For an appeal that goes to the Board for approval, the
    average time to decide is about 5 years. Many appeals are much
    older. Last year, the Board was still adjudicating an appeal
    that originated 25 years ago which had been decided 27 times in
    that 25 years. That is not right for veterans and it is not
    right for taxpayers, and it is only going to get worse unless
    we tackle this and make change.
        We now have over 450,000 appeals pending, and without major
    reforms, average wait times will grow to somewhere in the
    neighborhood of 10 years instead of 3 to 5 years. We are
    working within existing restraints and resources to try to
    respond to the problem. We are upgrading technology, applying
    lessons that we have learned from VBA's automation and
    transformation of the claims process. We have adopted a
    standard notice of disagreement form to initiate an appeal. VBA
    has added 300 additional staff just for appeals work in the
    last year, and they have allocated $10 million for appeals work
    in overtime--just appeals work in overtime during 2016.
        The Board is doing their part. The appeals decision output
    has increased by one-third since 2013. They are now processing
    appeals at the highest rate since 1988.
        Yet, despite these best efforts, veterans keep waiting
    longer for an appeals decision, and without action and reform,
    we will see that wait grow even longer. The problem is rooted
    in the fact that our antiquated, complex, and inefficient
    appeals process has made it impossible for us to keep up with
    the growing workload. As some younger veterans are surviving
    devastating wounds and returning home with higher levels of
    disability, it is no surprise we are seeing record numbers of
    disability claims with more medical issues per claim.
        Looking back from 2010 to 2015, VBA has completed more than
    a million claims, disability claims, each of those years. In
    2015, they completed 1.4 million claims, an all-time record.
    But more claims decided means more appeals, 35 percent more
    appeals in just the last 3 years. This dramatic increase in the
    volume of appeals is directly proportional to the increase in
    claims. We have seen, on average, over a period of time, about
    11 to 12 percent of claims decisions wind up being appealed.
        The appeals process is not working and the status quo is
    not an option. The solution is fundamental reform, and that is
    what we need to tackle now.
        We strongly support this legislation, which has already
    brought VA, Veterans Service Organizations, and other
    stakeholders together in support of the bill. We should not
    burden veterans for a moment longer than necessary. The time to
    act is now.
        The second bill on the agenda, S. 2896, would extend the
    Veterans Choice program and essentially remove all eligibility
    criteria built into the current law. It may make for an
    appealing sound bite to say you are giving every veteran a
    choice, but I would urge the Committee to listen to VSOs, to
    veterans, and to others who are deeply involved in the process
    who have the greatest stake in maintaining and improving the
    health care system that was built for them.
        If this bill is enacted, we believe it would inevitably
    transform VA largely into an insurance provider and greatly
    erode our strengths as a health care provider centered on a
    continuing relationship with veterans and their entire spectrum
    of health care needs.
        We are not against care delivered outside VA. Long before
    Veterans Choice, we were purchasing billions of dollars of care
    in the community because it was the right thing for veterans.
    We would be purchasing care in the community at an even higher
    rate in the future, but we believe that if this bill is
    enacted, the projected increases will drive budget increases
    that will be truly staggering. I would urge the Committee and
    all members to carefully consider the consequences of the
    provision.
        We note that some concerns about other provisions, such as
    requiring VA to enter a nationwide contract with urgent care
    providers and expand the operating hours at VA pharmacies.
    These are appealing notions at first glance, but we believe
    that they have unsustainable expenses as outlined in my written
    testimony.
        Last, on the positive side, the change proposed in Section
    4 would greatly help VA telehealth efforts by eliminating a
    significant legal roadblock. We also agree with requiring best
    practice reviews set out in Section 6 of the bill. The only
    point we would make is that we are already doing that based on
    some practices we put in place recently.
        Mr. Chairman, I appreciate the opportunity to testify. We
    look forward to working with this Committee and our VSO
    partners to fix the broken appeals system, and we look forward
    to your questions.
        [The prepared statement of Mr. Gibson follows:]
          Prepared Statement of Hon. Sloan Gibson, Deputy Secretary,
                      U.S. Department of Veterans Affairs
        Good afternoon, Chairman Isakson, Ranking Member Blumenthal, 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 (VBA), and Baligh Yehia M.D.,
    Assistant Deputy Under Secretary for Health for Community Care.
        Thank you for the opportunity to come before you today to discuss
    the Department's legislative priorities, along with additional pieces
    of introduced legislation. I know the Committee has introduced an
    ``omnibus'' measure which will address many of the immediate needs of
    the Department of Veterans Affairs (VA) in serving Veterans.
        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 Breakthrough
    Priorities. 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. In
    particular, the legislation being considered today to address
    consolidation of community care presents challenges and concerns.
        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.
    s. ____, a bill to reform the rights and processes relating to appeals
    of decisions regarding claims for benefits under the laws administered
                      by the secretary of veterans affairs
        Addressing the appeals claims process is a top priority. The draft
    bill being considered today 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 readjudication.
    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 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 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 2012 and 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 by 2021, 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 recently met 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 that the engagement of those organizations that
    participated ultimately led to a stronger proposal, as we were able to
    incorporate their input and experience having helped Veterans through
    this complex process. The result of that summit was a new appeals
    framework, virtually identical to the draft bill, that would provide
    Veterans with timely, fair, and quality decisions. VA is grateful to
    the Veterans Service Organizations and other 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.
        The result of the draft bill 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. The draft bill would solve the problem. The time to
    act is now. 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.
                        consolidation of community care
        We need your help, as discussed on many occasions, to overhaul our
    Care in the Community programs. Our Plan to Consolidate Programs of
    Department of Veterans Affairs to Improve Access to Care (the Plan) as
    required by Title IV of Public Law 114-41, the VA Budget and Choice
    Improvement Act, was delivered on October 30, 2015.
        Determining the details of a program that could replace the current
    and temporary Veterans Choice program enacted in August 2014 will
    require close study and collaboration with Veterans, Veterans Service
    Organizations (VSO), the Congress and other stakeholders and experts.
        That is why VA staff and subject matter experts have communicated
    regularly with Committee and Member staff to further discuss concepts
    and specific concerns. While we know further discussions are required
    to get us to a fully streamlined program, we have identified components
    of the plan that could be enacted now and would improve Veterans
    experiences' with, and VA's performance under, the existing Veterans
    Choice Program.
        We believe that together we can accomplish the necessary
    legislative changes to streamline the overwhelming number of varying
    Care in the Community programs before the end of this session of
    Congress. Many of the concepts are addressed in some way by the bill
    under consideration today.
        VA's intense focus, and our mission, is to provide high quality
    health care that is tailored to the special needs of Veterans and that
    is accessible to Veterans. Part of that effort is to secure care
    through community providers when VA is not in a position to provide
    that care itself that meets our goals for reasonable access. The
    current Veterans Choice Act represents an effort to set rules to define
    the right balance in legislation.
                       s. 2896--care veterans deserve act
        The Department has serious concerns with the potential consequences
    of section 2 of S. 2896, which eliminates the existing sunset date for
    the Veterans Choice Program and removes the current eligibility
    criteria without providing any additional resources. About 80% of
    Veterans have some other form of health insurance and have a choice
    today about where to seek their health care. If Veterans who currently
    do not use the VA health care system begin to seek community care
    through the Choice Program, VA will have to divert resources away from
    the provision of internal VA care, dramatically undercutting our
    ability to provide care that is tailored to the unique health care
    needs of Veterans. The erosion of funding for internal VA care would in
    turn strike at the foundation of VA's other missions, notably training
    U.S. medical professionals, supporting the Department of Defense in
    readiness, and conducting ground-breaking research.
        While it may be an appealing notion to make Veterans Choice
    universal, we believe such legislation would create a dynamic that
    could lead to serious erosion in VA's ability to address the critical
    special needs of Veterans, in a system that was created to serve their
    needs. Sections of this bill would render VA functionally as a health
    care insurer, rather than a health care provider. As noted, about 80%
    of Veterans have some other form of health insurance. When service-
    connected care is provided under the Choice Program, VA is the only
    payer for the care. For non-service-connected care, VA is secondary to
    other health insurance except for Medicare, Medicaid and TRICARE, from
    which VA cannot seek reimbursement. A Veteran may choose to use the
    Choice Program for care, due to low or no cost-sharing requirements in
    the VA system, even if they otherwise would never come to the VA. This
    essentially utilizes VA resources for a portion of the Veteran
    population that wants to use VA as a health care insurer, rather than
    an integrated health care system. VA may never have a relationship with
    this Veteran other than paying their health care bills. This would
    weaken the VA health care system, which has a unique understanding of
    the consequences of military exposure, posttraumatic stress (PTS),
    polytrauma care, prosthetics, spinal cord injuries, and other types of
    care that are unrivaled by any other health care system in the world.
    Any recommendation for reform must be sure not to impede the contract
    VA has with Veterans to translate that understanding into state-of-the-
    art care that helps Veterans manage illness and achieve their highest
    level of health and well-being. We want to ensure that our services are
    available for those Veterans who need and want that type of care.
        VA believes that there needs to be the right balance of community
    care access especially when VA cannot provide the care or is not
    geographically accessible to Veterans. VA is open to reform and is
    indeed making key advances in access, quality, and patient satisfaction
    as part of the larger transformation called MyVA. VA is also continuing
    to develop a truly integrated community-based network of providers that
    can evolve and improve. By allowing all Veterans to opt to use
    community providers, some areas may be overwhelmed with demand,
    generating delays in care for both Veterans and non-Veterans if there
    are not enough community providers to support all types of patients.
    This could adversely affect continuity of care for Veterans if we no
    longer have insight or relationships with community providers. The
    added value provided to the Veterans through the larger VA community,
    including such unique features as the network of peer specialists and
    other social services, would no longer be available if enough Veterans
    no longer relied on the VA system to support these services. We put
    forward an Administration proposal that better meets our needs and
    continue to believe that is the right approach.
        Specifically concerning section 3, of S. 2896, which requires VA to
    contract with a nationwide chain of walk-in clinics to provide care to
    enrolled Veterans, VA understands and appreciates the value in
    expanding VA's use of urgent care centers for Veterans who need such
    services, but this provision is too broad and does not include any
    feature, such as the inclusion of copayments, to ensure that it is used
    in a measured way that would not overrun the funds appropriated by
    Congress. The use of measured cost-sharing is well-recognized in the
    private sector as a way to help ensure management of costs while
    providing patients the care they need. VA of course uses copayments
    under current law for certain veterans and certain types of care. More
    critically, section 3 would also create an inequity where Veterans
    using these services do not owe a copayment, while comparable Veterans
    who use VA could be subject to a copayment, when both Veterans receive
    essentially the same treatment. Having no cost-share may increase a
    Veteran's utilization of the cost-free services. This may move more
    Veterans to care outside of the VA, disrupting continuity of care if a
    Veteran chose to receive limited care through walk-in clinics instead
    of more comprehensive visits at VA that would address his or her
    conditions systematically.
        VA supports enactment of a Federal law authorizing the provision of
    health care via telehealth or mobile technologies as appropriate
    regardless of where the Veteran or the provider is located. Section 4
    of S. 2896 would eliminate one of the last roadblocks to VA's expansion
    of the provision of telehealth services. This would save Veterans the
    trouble of having to drive to a clinic hours away (even to use
    telehealth services) and instead could allow them to be seen in the
    comfort and security of their own home. Additionally, allowing VA
    providers to be able to deliver care from alternate work sites, even
    outside the State where the Veteran is located, could expand our
    capacity to deliver health care.
        We do not expect enactment of section 4 would result in any costs.
        VA would appreciate the opportunity to have further discussions on
    this legislation especially related to VA's Plan to Consolidate
    Community Care Programs. VA believes sections 2 and 3 would result in
    extremely large costs, and would be glad to discuss that aspect of the
    legislation with the Committee as well.
        VA does not support section 5 to expand the operating hours for VA
    pharmacies. There is no evidence that pharmacies at VA medical
    facilities are not meeting the prescription needs of Veterans within
    the current hours of operation. Pharmacies at VA facilities have
    processes in place to provide urgent and emergent pharmacy services
    during times outside normal hours of operation. These services include
    on-call pharmacy staff, use of contracted pharmacies for urgent and
    emergent prescription needs, and dispensing of urgent and emergent
    medications by a VA provider in the emergency department; many VA
    facilities have inpatient pharmacies that are always open or have
    extended hours of operations compared to the outpatient pharmacy and
    can provide urgent or emergent prescription needs for Veterans.
        Additionally, there is independent evidence that VA's Pharmacy
    Benefits Management program continues to provide industry leading
    customer service year after year for the entire pharmacy industry in
    the United States. The VA Pharmacy Consolidated Mail Outpatient
    Pharmacy (CMOP) provides approximately 80 percent of the total number
    of prescriptions dispensed by VA to our Nation's Veterans. The VA CMOP
    has achieved the J.D. Power highest score for customer satisfaction for
    the mail-order pharmacy market segment in the United States for the
    last 6 consecutive years. This repeated achievement is a direct
    reflection of VA pharmacy staff's commitment and dedication to VA's
    mission to serve our Nation's Veterans.
        The pharmacists at VA facilities provide counseling and education
    to Veterans on their new prescriptions, and then the facility pharmacy
    transmits the prescriptions to the VA CMOP or to the local VA pharmacy
    for dispensing to Veterans. Pharmacy staffs at VA facilities are
    responsible for answering Veterans' questions related to prescription
    refills and other medication related questions. These services provided
    by VA facility pharmacy staffs allow VA CMOP staff to focus on
    prescription fulfillment activities.
        VA does not have a cost estimate for this provision at this time.
        VA strongly agrees that identifying and spreading best practices is
    crucial for continuing VA's transformation to a high performing health
    care organization, but we do not support section 6 which would require
    an additional review of efficacy at each VA Medical Center. We concur
    that it will be important to engage leading private sector hospital and
    health care organizations to share best practices with VA and learn
    about best practices VA has developed. In fact, we are well underway in
    achieving the very goals and objectives of this bill. Last summer, the
    Under Secretary for Health? made best practice consistency one of VHA's
    top priorities for transformation, launching the Diffusion of
    Excellence Initiative to identify and diffuse best practices
    systematically across VHA. The initiative is a systematic way that VHA
    continuously identifies best practices in care delivery from the field
    and diffuses them across the system. The diffusion process helps
    minimize variability and empowers employees to share innovations. We
    would be happy to update the Committee on our progress and
    accomplishments in this area.
        While VA greatly appreciates the goals of the legislation, we
    believe that, as drafted, the bill would both duplicate current efforts
    and prove to be cost-prohibitive. We do not have a specific cost
    estimate at this time, as the actual costs to implement this provision
    could vary greatly depending upon the scope of the reviews and the
    timing of implementation.
                             other healthcare bills
        VA is serving a growing number of women, and ensuring that women
    receive appropriately tailored, safe, and effective mental health and
    substance use disorder services, including the screening for substance
    use disorders, is consistent with VA's core mission and values.
    S. 2487, the Female Veteran Suicide Prevention Act, would require the
    tracking and measuring of specific metrics applicable to women, and
    which are most effective for women Veterans and those having the
    highest satisfaction rates among women Veterans.
        VA supports S. 2487, but would require additional appropriations to
    implement the legislation as written. Women Veterans have been found to
    be at higher risk for suicide than women non-Veterans, which further
    supports the need to ensure that strong and effective mental health and
    substance use disorder services are available in VA for women Veterans.
        VA estimates this bill would cost $2.2 million in fiscal year (FY)
    2017 and $6.6 million over 3 years.

        S. 2520, the Newborn Care Improvement Act, would increase from 7 to
    14 the number of days after the birth of a child for which VA may
    furnish covered health care services to the newborn child of an
    eligible woman Veteran receiving maternity care and delivery services
    through VA.
        Although VA supports this bill, VA would require additional
    appropriations to implement this legislation as written. If a full term
    newborn has fever or respiratory distress after delivery, they may need
    additional inpatient treatment to manage these complications. This
    treatment may extend beyond the current 7 days that are allowed in the
    VA medical benefits package. Additionally it is standard of care for
    further evaluations during the first 2 weeks of life to check infant
    weight, feeding, and newborn screening results. Upon review of these
    results, there may be a need for additional testing and follow-up.
    There are also important psychosocial needs that may apply, including
    monitoring stability of the home environment, or providing clinical and
    other support if the newborn requires monitoring for neonatal
    abstinence syndrome (e.g., withdrawal for maternal drug use during
    pregnancy) and screening and referral for substance use disorder
    services. VA must carefully consider the resources necessary to
    implement this bill, including an analysis of the future resources that
    must be available to fund other core direct-to-Veteran health care
    services.
        On July 14, 2015, before the House Committee on Veterans' Affairs,
    Subcommittee on Health, VA testified that the companion bill, H.R. 423,
    would cost $2.3 million in the first year, $12.7 million over 5 years,
    and $28.2 million over 10 years. VA would be happy to update these cost
    estimates at the Committee's request.

        S. 2679, the Helping Veterans Exposed to Burn Pits Act, would
    require VA to establish a Center of Excellence in the prevention,
    diagnosis, mitigation, treatment, and rehabilitation of health
    conditions relating to exposure to burn pits and other environmental
    exposures. The requirements in this bill would be met through the
    further expansion of the existing VA Airborne Hazards Center of
    Excellence (AHCE) at the War Related Illness and Injury Study Center
    (WRIISC), East Orange Campus, VA New Jersey Health Care System.
        Although VA supports this bill, VA would require additional
    appropriations to implement the legislation as written. The VA AHCE was
    established in 2013 to provide an objective and comprehensive
    assessment of Veterans' cardiopulmonary function, military and non-
    military exposures, and health-related symptoms for those with airborne
    hazard concerns. In addition, consistent with the mission of the
    WRIISC, the AHCE conducts clinical and translational research and
    actively develops and delivers new educational content for health care
    providers, Veterans, and other stakeholders. As planned, the AHCE has
    expanded in phases to become the Veterans Health Administration's (VHA)
    only comprehensive clinical assessment program for airborne hazards
    concerns of deployed Veterans.
        VA estimates this bill would cost approximately $4 million in FY
    2017, $20.3 million over 5 years, and $40.7 million over 10 years.

        The draft bill on health care for rural veterans would expand the
    Veterans Choice program to include Veterans who have received care
    under the Access Received Closer to Home (ARCH) program. VA supports
    this bill however, we recommend some technical revisions to define the
    scope of this eligibility to ensure that only veterans who received
    care under ARCH and who still reside in an area where they would be
    eligible to participate in ARCH would qualify; essentially, if a
    Veteran received care under ARCH previously and subsequently moved to
    another location that was not participating in Project ARCH, that
    Veteran would not be eligible to participate in the Choice Program on
    this basis.
        VA supports efforts to share continuing medical education (CME)
    programs for non-VA medical providers who treat Veterans and their
    family members under laws administered by VA, and runs several programs
    of the type referenced in S. 2049. VA established VHA TrainingFinder
    Real-time Affiliate Integrated Network (TRAIN), an external learning
    management system to provide valuable, Veteran-focused, accredited, CME
    at no cost to community healthcare providers. Since the launch of VHA
    TRAIN on April 1, 2015, more than 14,000 people have created an account
    or subscribed to VHA content through a previously established account.
    VHA TRAIN reports more than 7600 completions from healthcare and public
    health providers.

        S. 2883, the Appropriate Care for Disabled Veterans Act of 2016
    would make permanent the requirement of the Secretary to submit a
    report on the capacity of VA to provide for the specialized treatment
    and rehabilitative needs of disabled Veterans. VA recommends against
    using ``recidivism'' as a metric. While ``recidivism'' meaning a return
    to substance use services after an intensive treatment episode, could
    be measured, it is conceptually at odds with medical understanding of
    substance use disorders as a chronic disease of the brain requiring on-
    going monitoring and treatment to avoid a return to substance use. VA
    attempts to engage stable, abstinent patients in on-going services to
    prevent return to substance use, and has no way of distinguishing this
    follow-up care for secondary prevention from care for symptom
    recurrence.

        In general, the majority of the new requirements of S. 2888, the
    Janey Ensminger Act of 2016, would fall to the Secretary of Health and
    Human Services, through the Administrator of the Agency for Toxic
    Substances and Disease Registry (ATSDR). VA appreciates the work and
    collaboration with ATSDR, and defers to that agency on views. We note
    that CDC receives funding through a separate appropriation to carry out
    activities under the Comprehensive Environmental Response,
    Compensation, and Liability Act of 1980, and would require funding
    accordingly.
        However, VA does not support the provisions of this bill which
    would effectively defer Veteran eligibility decisions to ATSDR. It
    would also require VA to continue providing hospital care and medical
    services to Veterans who have received such care or services under
    section 1710(e)(1)(F) notwithstanding a determination that the evidence
    of connection of an illness or condition and exposure is not
    categorized as sufficient or modest.
        This legislation would require VA to recognize new conditions that
    are not currently listed in 1710(e)(1)(F) if ATSDR places them in the
    ``sufficient'' or ``modest'' evidence of connection categories. We
    recommend that the ATSDR reports be submitted to VA in an advisory
    capacity only, as has been done with previous reports from the
    Institute of Medicine and National Research Council. If enacted, VA may
    require additional resources to assist the Veterans and family members
    who would become eligible for hospital care and medical services.
        As a technical matter, we note that the time period specified in
    section 1710(e)(1)(F) of title 38, United States Code, ends on
    December 31, 1987, whereas the time period in proposed section 399V-
    6(a)(1)(A) of the Public Health Service Act would end on December 21,
    1987.
        VA cannot provide a cost estimate for the bill because it is
    unknown what illnesses and conditions, if any, for which ASTDR would
    find that there is evidence that exposure to a toxic substance at Camp
    Lejeune during the specified time period may be a cause of such illness
    or condition at the ``sufficient'' or ``modest'' standard. The cost to
    VA of implementing this provision will depend upon which conditions
    ATSDR finds satisfy these requirements, how many Veterans and family
    members will qualify for hospital care and medical services for those
    conditions and illnesses, and the average cost for the necessary
    hospital care and medical services of those conditions or illnesses.
                              benefits legislation
        VA supports the draft bill related to the compensation and pension
    evidentiary threshold. This legislation would promote consistency of
    adjudications and reduce delays in processing claims due to the need to
    obtain an examination or report.
        As a result of current law, medical examiners are required to
    provide an opinion regarding the etiology of a claimed disability or
    symptoms in cases in which there is little or no objective evidence
    concerning in-service incurrence of an injury, symptoms, or event that
    could cause the disability or symptoms. In such cases, an examiner's
    opinion is likely to be based on speculation rather than objective
    findings. Providing an examination in such cases also leads to
    unnecessary delay in finally resolving Veterans' claims for
    compensation.
        The draft bill would amend section 5103A(d)(2) to add a requirement
    that VA would request a medical examination or opinion for purposes of
    a claim for disability compensation only if there is objective evidence
    in the record, except for certain circumstances.
        Mandatory cost savings for the first year are expected to be $93.1
    million. Five-year cost savings are estimated to be $504.3 million and
    10-year cost savings are estimated to be $1.1 billion.

        S. ____, Automobile Adaptive Grants (draft bill). While VA
    appreciates the intent of this bill, which would ensure Veterans are
    able to make personal selections related to automobiles receiving
    modifications, VA does not support this legislation as it is
    unnecessary. VA already has a policy for the Automobile Adaptive
    equipment program which establishes uniform and consistent system-wide
    procedures when furnishing automobile adaptive equipment. In addition,
    VA does not manufacture or install adaptive equipment on a
    beneficiary's vehicle. Rather, VA pays for automobile adaptive
    equipment that accommodates beneficiaries' driving and/or passenger
    needs as identified by a VHA certified Drivers Rehabilitation
    Specialist.
        The draft bill entitled ``SOLVE Act of 2016'' would amend section
    4102A of title 38 to provide greater flexibility to States in carrying
    out the Disabled Veterans' Outreach Program (DVOP) and employing Local
    Veterans' Employment Representatives (LVER), and it would direct the
    Secretary of Labor to encourage Governors to co-locate DVOP specialists
    and LVERs with one or more Department of Labor one-stop centers.
        Respectfully, we defer to DOL's views on the bill.

        The Construction Reform Act of 2016 draft bill would require the
    Secretary to use industry standards, standard designs, and best
    practices to carry out the construction of medical facilities, and then
    to contract to conduct external forensic audits of the expenditures
    relating to any major medical facility or super construction project
    where the total expenditures exceed the amount specified in the law for
    that project by more than 25 percent.
        VA generally supports the intent of the draft bill but offers some
    technical assistance. VA agrees with the use of standard designs and
    best practices in carrying out the construction of medical facilities.
    We would like to clarify, however, that there are no official
    ``industry standards'' for health care facilities. Private facilities
    usually rely on the technical advice of their individual Architects/
    Engineers regarding best practices. VA already uses various specific
    industry recommendations, which we adapt as necessary for our project
    location, climate and site, to accommodate VHA's functional programs
    for each project. We use standard design templates for all outpatient
    clinics. We also use standard Design Guides and Space Planning criteria
    for health care departments and specialty functions. Of course, VA
    follows all Federal regulations regarding construction, including
    physical security, sustainability, energy use, renewable energy,
    accessibility, and environmental/cultural compliance.
        VA notes that in views on a House bill, H.R. 3106, that established
    the ``super construction'' threshold at $100 million, VA suggested
    substituting a threshold of $250 million. VA noted that the majority of
    active major projects are in fact over that threshold, but this allows
    for a better work distribution between VA and outside Federal entities.
    Congress established the threshold at $100 million in Public Law 114-
    58, and VA is of course implementing that law in concert with the
    United States Army Corps of Engineers. VA notes for the record that we
    believe a $250 million threshold would still present those advantages.

        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.

        Chairman Isakson. Thank you very much.
        Michael Michaud. Welcome, by the way.

     STATEMENT OF HON. MICHAEL H. MICHAUD, ASSISTANT SECRETARY OF
    LABOR FOR VETERANS EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF
       LABOR; ACCOMPANIED BY PATRICIA SHIU, DIRECTOR, OFFICE OF
                FEDERAL CONTRACT AND COMPLIANCE PROGRAMS

        Mr. Michaud. Thank you very much, Mr. Chairman, Ranking
    Member Blumenthal, and distinguished Members of the Committee.
    It is a privilege to return back to the Hill. While I was a
    Member of Congress, I fondly remember the great work done by
    both the Senate and House Veterans' Affairs Committees. Now, as
    the Assistant Secretary of VETS at the Department of Labor, I
    appreciate the opportunity to discuss the pending legislation
    that impacts the quality of services delivered to our veterans.
        I will limit my remarks to those bills directly impacting
    the programs administered by DOL: the SOLVE Act and the Care
    Veterans Deserve Act.
        I am joined today by Director Pat Shiu of DOL's Office of
    Federal Contract and Compliance Programs. OFCCP has sole
    enforcement and compliance assistance authority for some of the
    most basic civil rights protection in Federal law.
        The employment situation for veterans continues to improve.
    The unemployment rate for veterans fell from a high of 9.9
    percent in January 2011 to 3.9 percent in April 2016. That is
    lower than the non-veteran unemployment rate of 4.5 percent in
    April 2016. The Gulf War-era II veterans' unemployment rate
    fell from a high of 15.2 percent in January 2011 to 4.1 percent
    in April 2016. While trends are favorable, no one at DOL will
    rest as long as one veteran needs assistance finding meaningful
    civilian employment.
        Before I address the SOLVE Act and DOL's concern with this
    legislation, I want to provide some background on DOL's Jobs
    for Veterans State Grants (JVSG) and how it would ultimately be
    impacted. JVSG provides funding to 54 States and territories
    for Disabled Veterans Outreach Program Specialists, or DVOPS,
    and the Local Veterans Employment Representative staff, or
    LVERS.
        DVOP specialists provide intensive service employment to
    veterans in eligible populations, including homeless veterans
    and formerly incarcerated veterans, through individualized case
    management. LVER staff promote the hiring of veterans by
    building a network with local employers. DVOPS and LVERS work
    in the American Job Centers (AJCS) across the country. The
    network of approximately 2,500 AJCs are operated in partnership
    with the local Workforce Development Boards and State Workforce
    Agency and DOL.
        Consistent with the Vow to Hire Heroes Act of 2011, the
    Department released guidance in April 2014 refining the roles
    of JVSG staff. These changes improved workforce program service
    delivery strategies for veterans and eligible spouses. It
    addressed the anticipated demand for services from an increase
    in transitioning servicemembers and ensured that JVSG-funded
    State staff members perform their Congressionally intended
    functions. This guidance has improved the service for our
    veterans.
        The percentage of participants receiving intensive service
    increased from 22 percent in program year 2009 to 81 percent in
    program year 2015. During that same timeframe, DOL has seen the
    entered employment rate of JVSG's participants improve from 48
    percent in program year 2009 to 59 percent in program year
    2015.
        Veterans not served directly through JVSG receive other
    services from the workforce system. The Workforce Innovation
    and Opportunity Act, or WIOA, programs provided workforce
    service to over one million veterans last year. WIOA
    implementation and JVSG refocusing are two significant reforms
    currently underway in the workforce system, together enhancing
    employment and placement service for our veterans. The
    Department is concerned about the potential negative impact the
    SOLVE Act would have by disrupting these two reforms before
    they are fully implemented and evaluated.
        DOL is also concerned that the bill expressly prohibits new
    funding. If a State were to shift management of the JVSG
    program from a State workforce agency to another agency, there
    undoubtedly will be costs associated with that transition.
    Further, under the proposed language, approval of a State's
    proposal of additional populations to be served by JVSG staff
    would necessitate additional funding for it to meet that
    demand. The JVSG program funding is allocated on a formula
    basis and it is VETS experience that the existing DVOP staffing
    levels is insufficient to fully meet the demand for DVOP
    service already permitted by the law.
        Last, I would like to briefly touch upon the Care Veterans
    Deserve Act, which extends the Veterans Access, Choice, and
    Accountability Act of 2014. The Choice Act contains an
    exemption for entities that contract with the VA to provide
    health care in the community from complying with a certain
    civil rights protection. These civil rights protections, which
    are enforced by DOL, prohibit Federal contractors and
    subcontractors from engaging in employment discrimination, and
    it also requires them to take affirmative action to ensure that
    the job seekers and employees are treated equally without
    regard to: their status as a covered veteran, race, color,
    religion, sex, sexual orientation, gender identity, national
    origin, or disability. We cannot support the legislation that
    rolls back these key civil rights protections and urge the
    Committee to restore these important protections before lifting
    the Choice Act sunset.
        With that, Mr. Chairman and Members of the Committee, this
    concludes my oral statement and I want to thank you for the
    opportunity to testify.
        [The prepared statement of Mr. Michaud follows:]
    Prepared Statement of Michael H. Michaud, Assistant Secretary of Labor
         for Veterans Employment and Training, U.S. Department of Labor
                                  introduction
        Good afternoon, Chairman Isakson, Ranking Member Blumenthal, and
    distinguished Members of the Committee. Thank you for the opportunity
    to participate in today's hearing. It is also my personal privilege to
    return to the Hill as a member of the executive branch. I have proud
    memories of the great work done by both the Senate and House Veterans'
    Affairs Committees while I was a Member of Congress. Now, as Assistant
    Secretary for the Veterans' Employment and Training Service (VETS) at
    the Department of Labor (DOL or Department), I appreciate the
    opportunity to discuss pending legislation that impacts the quality of
    services delivered to our veterans.
        The employment situation for veterans continues to improve. The
    unemployment rate for veterans has fallen from a high of 9.9% in
    January 2011 to 3.9% in April 2016; lower than the nonveteran
    unemployment rate of 4.5% in April 2016. The Gulf War-era II veteran
    unemployment rate has fallen from a high of 15.2% in January 2011 to
    4.1% in April 2016. While these numbers in aggregate continue to trend
    in a desirable downward direction, nobody at DOL will rest as long as
    any veteran needs assistance finding meaningful civilian employment.
        Although this hearing is focused on several bills under
    consideration by the Committee, I will limit my remarks to discussing
    DOL's Jobs for Veterans State Grants (JVSG) program and the legislation
    that has a direct impact on the programs administered by DOL,
    specifically S. 2919, the ``State Outreach for Local Veterans
    Employment Act of 2016'' and S. 2896, the ``Care Veterans Deserve Act
    of 2016.''
                 jobs for veterans state grants (jvsg) program
        The Jobs for Veterans State Grants (JVSG) program, funded in recent
    years at $175 million, is VETS' biggest program. Our staff, led by a
    director in each of the 50 states plus the District of Columbia and
    Puerto Rico, oversees this program in partnership with our state
    grantees. I have made it a point in my first six months in office to
    visit JVSG programs in over a dozen states and in all of DOL's regions
    around the country. Earlier this month I also had the opportunity to
    visit the National Veterans' Training Institute in Denver, CO, to
    observe the training program for JVSG-funded staff (including Disabled
    Veterans' Outreach Program specialists and Local Veterans' Employment
    Representatives).
        JVSG is the natural next step for our transitioning servicemembers
    when they complete the DOL Employment Workshop component of the
    Transition Assistance Program. JVSG also works in tandem with the
    Homeless Veterans Reintegration Program (HVRP) to help homeless
    veterans as well.
         have seen firsthand the real results that JVSG is yielding
    for our veterans with significant barriers to employment. Last Program
    Year, almost 200,000 veteran participants were served by the program,
    with 57% entering employment following intensive services.
     s. 2919--``state outreach for local veterans employment act of 2016''
        The ``State Outreach for Local Veterans Employment Act of 2016''
    (SOLVE Act) would, among other things, authorize states to select the
    implementation agency for the JVSG program. Before I discuss DOL's
    serious concerns with this legislation, I would like to provide some
    background on how JVSG operates within the public workforce system, and
    why the current structure is optimal for the program and veterans
    themselves.
        The public workforce system includes a nationwide network of
    approximately 2,500 American Job Centers (AJCs), a network operated in
    partnership by Local Workforce Development Boards, State Workforce
    Agencies, and DOL, primarily the Department's Employment and Training
    Administration (ETA). As the Chairman knows from his work on the Senate
    Health, Education, Labor, and Pensions Committee, the Workforce
    Innovation and Opportunity Act (WIOA), which became law less than two
    years ago, is driving transformational updates and upgrades to this
    system.
        WIOA established three hallmarks of excellence:

         The needs of businesses and workers should drive workforce
    solutions and local boards are accountable to the communities in which
    they are located;
         American Job Centers should provide excellent customer
    service to jobseekers and employers and focus on continuous
    improvement; and
         The workforce system should support strong regional
    economies and play an active role in community and workforce
    development.

        AJCS staff are funded through a variety of Federal and state
    programs and are tasked with providing free services to American
    workers to assist them in obtaining and retaining meaningful
    employment. The JVSG program, funded and administered by VETS, is a
    required one-stop partner in the public workforce system and is
    enhanced through deeper integration into workforce system planning
    under WIOA.
        JVSG provides funding to 54 states and territories for Disabled
    Veterans' Outreach Program (DVOP) specialists and Local Veterans'
    Employment Representative (LVER) staff, located in AJCs. DVOP
    specialists provide intensive services to veterans and eligible
    populations, including homeless and formerly incarcerated veterans,
    through individualized case management. This includes comprehensive and
    specialized assessments of skill levels and needs, development of
    individual employment plans, group and individual career counseling and
    planning, and short-term skills development (such as interview and
    communication skills). LVER staff promote the hiring of veterans in
    communities through outreach activities that build relationships with
    local employers, and provide training to workforce center staff to
    facilitate the provision of services to veterans.
        In DOL's administration of employment and training functions for
    veterans, Congress has required, among other things, that the Secretary
    of Labor ``ensure that employment, training, and placement activities
    are carried out in coordination and cooperation with appropriate State
    public employment service officials.'' 38 U.S.C. Sec. 4102A(b)(4). In
    addition, Congress has conditioned each State's receipt of JVSG funds
    on a number of requirements, including that states describe ``the
    manner in which [DVOP] specialists and [LVER] representatives are
    integrated in the employment service delivery systems in the State, ''
    38 U.S.C. Sec. 4102A(c)(2)(A)(i)(II), and that each State ``coordinate
    employment, training, and placement services furnished to veterans and
    eligible persons under this chapter with such services furnished with
    respect to such veterans and persons under the Workforce Investment Act
    of l998 and the Wagner-Peyser Act. '' 38 U.S.C. Sec. 4102A(c)(6).
                               a refocused system
        Consistent with the VOW to Hire Heroes Act of 2011, which clarified
    and limited the allowable activities of DVOP and LVER staff, the
    Department released a JVSG refocusing strategy in April 2014 that
    refines the roles of DVOP and LVER staff. Since 2002, DOL has been
    moving in this direction based on Congressional intent, GAO audits, DOL
    Office of Inspector General audits, and internal VETS reviews. These
    changes are intended to improve workforce programs' service delivery
    strategies for veterans and eligible spouses, meet anticipated demand
    for services from an increase in transitioning servicemembers, and
    ensure that JVSG-funded state staff members are performing their
    functions consistent with Congressional intent (38 U.S.C.
    Sec. Sec. 4103A, 4104). As part of the implementation plan for this
    refocusing strategy, VETS and ETA issued joint guidance documents and
    conducted extensive technical assistance for state JVSG and AJC staff
    members.
        The implementation of this guidance has been successful in
    improving the services to veterans and their employment outcomes. The
    percent of participants receiving intensive services increased from 22%
    in Program Year (PY) 2009 to 76% in PY 2015 (as of December 31, 2015).
    During that same time period, the entered employment rate for JVSG
    participants improved from 48% in PY 2009 to 57% in PY 2015. Similarly,
    the employment retention rate of these participants, or those who
    retained employment six months after program exit, increased from 74%
    in PY 2009 to 81% in PY 2015, and the average six-month earnings of
    these participants rose from $14,751 in PY 2009 to $16,903 in PY 2015.
        We are committed to reaching and maintaining a rate of 90% of
    participants who receive intensive services from DVOPs. The rate of
    intensive services delivery is one of the Department's five Agency
    Priority Goals and is reported publicly every quarter. To achieve this
    90% goal, VETS employs these strategies to increase intensive services
    to participants who have significant barriers to employment and who are
    served by DVOP specialists:

         Provide technical assistance and guidance to state
    workforce agencies;
         Conduct Federal oversight and monitoring to identify best
    practices that can be replicated nationwide;
         Conduct additional staff training and development for DVOP
    specialists;
         Analyze the entered employment rates of participants based
    on the types of services they receive (i.e. basic career services\1\
    versus intensive services);
    ---------------------------------------------------------------------------
        \1\ Examples include labor exchange services, career guidance, job
    search assistance, and referrals.
    ---------------------------------------------------------------------------
         Collaborate with Veterans Health Administration's
    Compensated Work Therapy (CWT) staff at Veterans Affairs medical
    centers, to integrate employment services with clinical care; and
         Collaborate with ETA, which oversees other employment and
    training services at American Job Centers, to ensure veterans receive
    priority of service and are properly referred to the appropriate
    service program.

        Additionally, veterans not served directly through JVSG still
    receive services from other facets of the workforce system. DOL's WIOA
    core programs (Adult, Dislocated Workers, Youth, and Wagner-Peyser)
    provided workforce services to over 1 million veterans last year. More
    than 400,000 previously unemployed veterans entered employment after
    receiving services through the American Job Centers.
                    workforce innovation and opportunity act
        In July 2014, after Congress passed the legislation by a wide
    bipartisan majority, President Obama signed into law the WIOA, the
    first legislative reform of the public workforce system in over fifteen
    years. This transformational legislation makes substantial changes in
    numerous DOL programs in order to modernize the workforce system to
    better meet the needs of workers and businesses alike. Specifically,
    WIOA brings together and enhances several key employment, education,
    and training programs and reaffirms the role of the AJC delivery
    system.
        WIOA moves Federal and state governments toward an integrated
    workforce and education system to better serve America's job seekers,
    workers, and employers. WIOA requires the application of primary
    performance indicators to core workforce and education programs; the
    Department will apply those same indicators to other Department-
    administered programs, including JVSG. VETS has been in lockstep with
    our workforce and education partners to ensure that the JVSG program is
    included in all stages of this transformation.
        WIOA implementation and JVSG refocusing are two significant reforms
    currently underway in the workforce system, together enhancing
    employment and placement services for veterans. The Department is
    concerned about the potential negative impact the SOLVE Act would have
    by disrupting these two reforms before we have a chance to fully
    implement and evaluate them.
                        implementation of the solve act
        The JVSG program is already in the midst of significant
    programmatic changes due to WIOA and the JVSG refocusing that will
    require the time and attention of state and local workforce staff for
    their successful implementation. If a state were to transition the
    administration of its JVSG grants from its state workforce agency to
    its state veterans' agency, that transition would have the potential to
    magnify the complexity of the adoption of WIOA and compliance with JVSG
    refocusing, compounding the risks of significant challenges in
    delivering effective employment services to veterans for years to come.
        DOL is also concerned about transition costs, particularly in light
    of the language expressly prohibiting additional funding. If a state
    were to shift management of the JVSG program from the State Workforce
    Agency to another agency, there would likely be costs associated with
    that transition. In reviewing State transition plans, we would need to
    ensure that the State's transition plan addresses such costs without
    sacrificing services to veterans.
        Further, under the proposed language, approval of a state's
    proposal of additional populations to be served under the JVSG program
    would necessitate adding staff to meet this unanticipated workload. The
    JVSG program funding is allocated by formula and it is VETS' experience
    that the existing DVOP staffing levels are insufficient to fully meet
    the demand for DVOP services already permitted by law, as reflected in
    the difficulty some states are having in meeting the target intensive
    services rate of 90%. Allowing additional categories of veterans to
    receive JVSG services will either require additional staff or will
    result in a lower share of participants receiving intensive services.
    In addition, there would be an adjustment period as States may need to
    hire or retrain staff to ensure the specialized needs of these new
    populations are met. I raise these concerns about undertaking the
    changes outlined in the SOLVE Act at the same time as WIOA and JVSG
    refocusing are implemented as they are significant and I urge the
    Committee to take the time to fully consider them.
                 s. 2896--``care veterans deserve act of 2016''
        S. 2896 would, among other things, amend the Veterans Access,
    Choice, and Accountability Act of 2014 (the Choice Act), Pub. L. 113-
    146, to eliminate the sunset date for the Department of Veterans
    Affair's Veterans Choice Program and expand eligibility for the
    program. The Choice Act contains an exemption from the laws enforced by
    the Department's Office of Federal Contract Compliance Programs (OFCCP)
    for certain entities that enter into agreements with VA to provide
    health care through the Choice Program. Sec. 101(d)(3)(A) of Pub. L
    113-146, as amended. The Department of Labor strongly supports
    providing the VA with the authority to purchase care and services in
    the community when such services are not reasonably available from the
    VA or through pre-existing contracting authority or sharing agreements.
    However, because simply extending the Choice Act would also extend the
    current exemption and leave veterans and other employees of Federal
    contractors without certain civil rights protections, we have serious
    concerns with the Care Veterans Deserve Act.
        OFCCP is the only agency with enforcement and compliance assistance
    authority for these protections, which are some of the most basic civil
    rights protections in Federal law. They prohibit Federal contractors
    and subcontractors from engaging in employment discrimination and
    require them to take affirmative action to ensure that job seekers and
    employees are treated without regard to their race, color, religion,
    sex, sexual orientation, gender identity, national origin, disability,
    or status as a covered veteran. These safeguards protect millions of
    workers, including those providing care for veterans. We cannot support
    legislation that rolls back these key civil rights protections, and
    urge the Committee to restore these important protections before
    lifting the Choice Act's sunset. The Administration has put forward a
    legislative proposal that would provide VA the authorities it needs
    going forward when it is working with providers in the community while
    maintaining these important protections. We believe that this balance
    is the right one for veterans seeking care, the workers serving or
    seeking to serve those veterans, our veterans' healthcare system, and
    the health care industry,
                                   conclusion
        In light of our concerns as expressed above, and the Department's
    obligation to ensure effective coordination and integration of the JVSG
    program with the state public workforce system, we oppose the SOLVE
    Act. We believe we have made significant progress improving the
    employment outcomes of veterans, including through the more targeted
    provision of intensive services, and the SOLVE Act could reverse these
    trends. I remain committed to efforts to improve the administration of
    the JVSG program, and look forward to further dialog with the Committee
    in order to meet our shared goal of promoting full employment for the
    extremely deserving veterans and spouses covered by DOL programs.
        In addition, while DOL supports providing the VA with the authority
    to purchase care and services in the community when such services are
    not otherwise reasonably available, the Choice Act contains an
    exemption from the laws enforced by OFCCP that would leave veterans and
    other employees of direct Federal contractors without basic civil
    rights protections. DOL cannot support this statutory roll-back of
    civil rights protections, and urges the Committee to delete the OFCCP
    exemption before lifting the Choice Act's sunset.

        This concludes my written statement. Thank you for the opportunity
    to be a part of this hearing. I welcome your questions.

        Chairman Isakson. Well, thank you for your testimony and
    the job that you are doing and the mention of WIOA. We are
    really proud of what we did when we reformed the Workforce
    Investment and Opportunity Act and it is getting more training
    targeted at our veterans which is what it is all about, so
    thank you for doing that.
        We will start our round of questioning and I will be the
    first one to question.
        Secretary Gibson, correct me if I am wrong. You have
    provided the Committee with draft legislation, or draft
    language regarding changing the appeals process.
        Mr. Gibson. Yes, sir, we have.
        Chairman Isakson. That is prospective in its nature,
    meaning it picks up with the first day it is enacted and it
    goes forward; it does not address the 445,000 waiting, is that
    correct?
        Mr. Gibson. That is correct, Mr. Chairman.
        Chairman Isakson. What you sent us has not yet been scored,
    is that correct?
        Mr. Gibson. We are still waiting for CBO to reach their
    final conclusion. We continue to hear that any day now, we will
    have the scoring results in.
        Chairman Isakson. At the risk of being redundant, but just
    to underscore what I have said from the beginning to Secretary
    McDonald, we need the exact language----
        Mr. Gibson. Yes, sir.
        Chairman Isakson [continuing]. We need a score, and we need
    to know what we do with the 445,000 who are waiting, because if
    we change the appeals process prospectively, which we want to
    do to make it shorter and better and more responsive to our
    veterans----
        Mr. Gibson. Yes.
        Chairman Isakson [continuing]. What happens to those
    445,000, some of whom have been waiting 27 years for a
    determination of disability? So, when you bring us that
    package, it will be a trilogy. It is not just two chapters, it
    is three. What do we say to the veterans who have been waiting,
    445,000 of them? How do we implement it? What is the cost of
    implementing the new program? You said you thought it was zero
    cost, but we have got to see that from CBO. And what is the
    final language? So, we are going to insist on all three of
    those things before this Committee moves forward.
        Mr. Gibson. I understand, Mr. Chairman. I believe we
    furnished cost estimates associated with resolving the 450,000
    existing claims. That would extend over a 4- or 5-year period
    of time. We have also provided the draft language. I think we
    are at least two-thirds of the way there in terms of the
    requirements that you have requested, sir.
        Chairman Isakson. Recognizing that your answer to my next
    question is going to be an estimated guess and not a fact----
        Mr. Gibson. Yes, sir.
        Chairman Isakson [continuing]. Because before I ask the
    question, I am going to give you that much leeway.
        Mr. Gibson. Yes, sir.
        Chairman Isakson. How much time do you think you are going
    to reduce appeals of disability in the future with the new
    language you are talking about?
        Mr. Gibson. The goal----
        Chairman Isakson. Understanding that currently, now, how
    many days is the current one averaging?
        Mr. Gibson. Well, you know, on average, about 3 years. For
    an appeal that goes to the Board, about 5 years. The objective
    that we set out to achieve here is for most appeals to be
    resolved within a year or less. It will take several years to
    work through the existing inventory of appeals that are out
    there under the old law, under the old processes, to work
    through all of those and to get those resolved. So, by 2021,
    2022, somewhere in that timeframe, we have worked through the
    substantial majority of the old appeals. In the meantime, we
    would be processing new appeals under the new legislation
    beginning in 2018.
        Chairman Isakson. The determination you make is the
    determination of disability, is that correct, by percentage?
        Mr. Gibson. That is correct, yes, sir.
        Chairman Isakson. Do we still--and I should know this--do
    we still have the concurrent receipt rule?
        Mr. Gibson. Somebody help me out.
        Mr. McLenachen. Yes, we do, Mr. Chairman. It has been
    amended several times over the past decade or so, but we still
    have that law.
        Chairman Isakson. I am going on my memory, which is shaky
    at best at my age, but thinking back, we moved it to 50 percent
    disability or more, to exempt them from concurrent receipt, is
    that right?
        Mr. McLenachen. That is my recollection also, Mr. Chairman.
        Chairman Isakson. So, if their estimate of disability is
    lower than 50 percent, then they have an offset on their Social
    Security benefit from the disability benefit or the retirement
    benefit from the disability benefit.
        Mr. McLenachen. This is one of the most complex things that
    we do in the compensation world. Since, as I said, the law has
    changed a couple times over the past few years, it continues to
    be a problem for us, yes.
        Chairman Isakson. Well, the reason I brought the subject up
    is I think that is a contributing factor to the number of
    appeals you get. Am I right?
        Mr. McLenachen. I do not think I would go that far, Mr.
    Chairman. I think it is more as Deputy Secretary Gibson said.
    We are deciding more claims now. We know historically every
    year that 11 to 12 percent of veterans file appeals, not
    necessarily related to quality. They have a right to appeal. It
    is not necessarily related to any one particular factor, such
    as concurrent receipt. Veterans exercise that right about 11 or
    12 percent of the time. So, as we decide more claims, we get
    more appeals, and once it gets into the process that we have
    now, it is kind of a never ending churn. That is the problem we
    are trying to deal with here, which we have worked very closely
    with the VSOs to fix.
        Chairman Isakson. Well, I know it is a complicated issue
    and I appreciate the commitment you both have made to it. We
    will look forward to following it closely, as well as the CBO
    score and the final language when we get it.
        Mr. McLenachen. Yes, sir.
        Chairman Isakson. Senator Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Thank you all for being here today on legislation that is
    very important to our veterans. I take it, Mr. Gibson, that you
    have heard the remarks that were made this morning about
    Secretary McDonald's comments yesterday and that you will
    convey that message to him, which I think is felt unanimously
    on this Committee. You heard that we are expecting perhaps more
    from him in the way of an apology. I know from having spoken to
    him that he certainly is regretful about those comments which I
    would think, knowing him, he would be. As you have also heard
    here, there is a strong feeling that we all make mistakes and--
    --
        Mr. Gibson. Yes, sir.
        Senator Blumenthal [continuing]. That often the best way to
    handle them is simply to make an apology and move on. As all of
    us know, actions in the end speak louder than words and his
    actions can speak louder than those words.
        Mr. Gibson. I am very grateful for the even-handed approach
    toward this particular issue. I made some comments where I
    said, ``Bob and I.'' Bob McDonald is like a brother to me; has
    been a friend over 40 years. If he were sitting here, I know he
    would have said the same thing I just said, but that does not
    take the place of him saying it. I understand, sir.
        Senator Blumenthal. Let me talk about the appeals process
    reforms----
        Mr. Gibson. Yes, sir.
        Senator Blumenthal [continuing]. Which are desperately
    needed----
        Mr. Gibson. Yes, sir.
        Senator Blumenthal [continuing]. And I believe will
    actually save tons of dollars in the future. I wonder if you
    could elaborate on the long-term savings of this legislation
    and how reforming the appeals process will reflect timely
    results of appeals, and also dollar amounts that may be saved
    and why that will be so, just so the public understands as well
    as us.
        Mr. Gibson. Yes, sir. I would like to ask Dave to answer
    that question.
        Mr. McLenachen. Senator, I guess the bottom line is it
    would be a tragedy if we do not take this opportunity at this
    time, where we have worked in collaboration with the VSOs and
    other stakeholders, to do exactly what you said, which is solve
    this problem for all veterans in the future.
        Just to talk you through a couple of those points, as the
    Deputy Secretary said, if we look out 10 years, we are looking
    at an average 10-year wait time on an appeal. Currently, VBA is
    deciding initial claims in 125 days. Now, the average is down
    to around 90 or 95 days. It simply is unacceptable to decide a
    claim in that amount of time and then have a veteran wait, on
    average, 10 years for a decision. That will only get worse
    after those 10 years if we just let the current process go.
        We estimate that in about 10 years, we would have 1.2
    million appeals pending as opposed to the 455,000 that we have
    right now. The bigger tragedy would be that veterans would be
    deprived of all the great features of the new design that we
    have come up with. I am sure you will have a lot of
    opportunities today to hear about some of those features, which
    were also listed in the statements that were offered for this
    Committee hearing.
        Let me just hit a couple of them real quickly. Early
    resolution of appeals--Veterans would have an opportunity when
    they get a decision from VBA to have veteran notice about what
    options are available to them, and based on that notice--the
    features of which we have included in the statutory language--
    they would be able to decide which is the best option for them.
    Do they get a second look at it in VBA by a higher level
    authority? Do they select submitting additional evidence in
    VBA? Or do they go to the Board, straight to the Board for a
    Board decision? In all respect, effective dates would be
    protected, something that is not available now; they have to go
    into the appeal process.
        There would also be quality feedback loops for VBA,
    something that we cannot have now because the claim is
    constantly evolving in the appeal process. The new design would
    have two feedback loops for VBA. One would be in the higher
    level review within VBA and the other would be from the Board,
    because the Board and the higher level reviewer would be
    looking at the same evidence that was before the original
    adjudicator--a quality feedback loop that we have never had in
    VBA. That is critical. That was some of the feedback from VSOs
    and other stakeholders, that that was critical.
        Transparency. Today, veterans do not know whether their
    appeal is in VBA or whether it is at the Board or whether it is
    bouncing back and forth between those two agencies. The design
    would answer that question. They would know that their claim
    decision is being reviewed in VBA or it is at the Board and it
    would be done in a timely fashion, within 125 days or within a
    year at the Board.
        Taxpayers--you know, the alternative is, taxpayers for the
    next 10 years and far into the future are pouring money into a
    broken process. I think that is something that we all agree on,
    that this process is broken and it is just simply unjustifiable
    that taxpayers would continue to dump money into a process that
    does not work.
        I think when you look at all those options that are
    available to us that we all agree upon, to include our partners
    at the VSOs and other stakeholders, there is simply no option
    that is available here.
        Senator Blumenthal. My time is expired. I may have some
    additional questions that I want to submit for the record, but
    in deference to my colleagues, I will yield.
        Chairman Isakson. Senator Moran.

                    STATEMENT OF HON. JERRY MORAN,
                        U.S. SENATOR FROM KANSAS

        Senator Moran. Mr. Chairman, thank you and Senator
    Blumenthal.
        Deputy Secretary Gibson, thank you for your presence today.
        Secretary Michaud, nice to see you again. I remember
    positively our work on the House Veterans' Affairs Committee
    and wish you well in the position you now occupy.
        Let me first begin with a compliment to a couple of folks
    at the VA, one of them in the room. Dr. Yehia, thank you very
    much for your help along with one of your Congressional Affairs
    colleagues, Jeremy Dillard. Mr. Secretary, in one of our
    hearings which you were in attendance last December, you
    offered if I would give you some examples of people who were
    struggling with the Choice Act that you would see that those
    issues were addressed. One of them we just resolved last week,
    that was in large part due to those two individuals who took
    this veteran's case and saw the justice, in my view, finding
    the right solution.
        This was an instance in which a veteran had been told by a
    VA physician's assistant that he qualified for the Choice Act,
    sent him to another provider, but there was no paperwork
    completed by the veteran. Then the VA in Kansas determined he
    was not eligible and was responsible for his own bills, despite
    being told by the VA physicians assistant that he needed to do
    what he did. So, thank you for those efforts.
        I know the goal is to get this to the point in which it is
    not one veteran at a time, but for now, we will take them one
    at a time and try to solve them as we get the system to work
    better, so thank you very much.
        Mr. Secretary, I want to talk to you about ARCH, which is a
    conversation that our offices have had over a period of time.
    When I was a House member with Secretary Michaud, I represented
    a Congressional district larger than the State of Illinois that
    has no VA hospital. In fact, at that time it almost had no VA
    facility at all. We pushed for outpatient clinics and were
    successful with the VA in providing those. But, it is still
    long distances to an outpatient clinic and that is in part the
    efforts that we have had for a long time to establish something
    now called the Choice Act that gives veterans more options at
    home.
        Mr. Gibson. Yes, sir.
        Senator Moran. I continue to be supportive of that effort,
    but as a pathway to something like Choice, we created ARCH. I
    introduced the legislation in the House, it became law, and it
    was a pilot program to determine how this might work. I assume
    it is who the providers would be, how we would pay the bills,
    what the computer connections would be, those kind of things.
        One of those pilot programs--I think there were six in the
    country--one of those is in Kansas, so we have cared a lot
    about this. The goal here today is to make certain that those
    veterans who are participating in ARCH as we move to Choice do
    not lose their care with the provider that they currently are
    seeing.
        Mr. Secretary, for the VA, you have made decisions that I
    applaud and appreciate which is the special provider agreements
    where you are going to allow ARCH veterans, those who are
    participating in an ARCH program, to continue their current
    care with their ARCH provider, and you are doing so under a
    proviso that allows you to do that because of excess burden.
        So, Mr. Secretary, I want to thank you for those efforts to
    take care of those who might otherwise qualify for Choice, but
    in the process of qualifying for Choice would lose the provider
    they have today with the VA, and this keeps that patient
    contact in place for the future. So, thank you for that.
        I also have introduced legislation, which is one of the
    items that is for consideration in the Committee hearing today.
    It is my understanding, Mr. Secretary, that you, the VA,
    supports the codification of your decision and that we have
    worked closely with you and your staff. In fact, you have made
    some technical suggestions that would improve the bill which we
    have agreed to. I just want to make certain that my colleagues,
    the Chairman, the Ranking Member, and my colleagues on the
    Committee, understand that this legislation has the Department
    of Veterans Affairs support. It is also my understanding it has
    the support of both the minority and the majority in this
    Committee.
        So, Secretary or Doctor, if you would tell us your thoughts
    about this option for ARCH veterans to continue under the
    program.
        Mr. Gibson. I would be glad to, and I will defer to Baligh
    if I do not get this exactly right. Yes, we are very much in
    favor of the legislation. I appreciate the kind remarks and the
    feedback that you have given. Quite frankly, this is the right
    thing for veterans and the right thing for taxpayers, which
    makes that the high ground and we are proud to stand on that
    high ground with you.
        Dr. Yehia. Yes, we are very supportive of that language. We
    appreciate the comments and also the close collaboration we
    have had with your office and others to achieve that. In all
    honesty, ARCH is what we--a lot of the features of ARCH is what
    we want in our consolidated plan as community care moves
    forward. So, we really think of it as a model of how we
    progress forward.
        You touched on a couple key points that we want to
    maintain, which is that care coordination, that direct
    relationship between a patient and a doctor. Those are
    critically important, some of those that have been missing in
    Choice today, which we hope to fix with partnership with
    Congress. So, thank you for that.
        Senator Moran. Doctor, Mr. Secretary, thank you very much.
        Chairman Isakson. I want to thank Senator Moran for
    bringing that subject up, because your work with the Committee
    on provider agreements and what we are trying to attempt in the
    omnibus is making all this possible. The VA has been very much
    reaching out, and your leadership in passing ARCH to begin with
    and now memorializing that program in provider agreements and
    equalizing reimbursement across programs so everybody is the
    same was a tremendous move forward, which is another reason why
    we have got to get the Veterans First bill out of the Senate
    and over to the House as soon as we can.
        Senator Tester.
        Senator Tester. Thank you, Mr. Chairman, and thank you all
    for being here today. I appreciate your testimony and your
    support.
        Back in the day when Choice was created, I supported it
    because I thought it was going to expedite care in the
    community when the VA could not provide that care. The bill
    also provided critical investments in VA's capacity, both in
    workforce and in infrastructure, to address the long-term needs
    of the VA.
        However, some supported the creation of the Choice program
    as a first step toward privatizing the VA or simply outsourcing
    as much care as we possibly could to the private sector where
    the VA could not financially stay in business or there was not
    a financial justification for it.
        I have read through most of the VSOs' testimonies and I can
    say that almost every VSO, if not every VSO, has said that they
    do not want the VA privatized. They also say the Choice program
    needs adjustment, and I think that is where the Veterans First
    Act comes in; and that, by the way, will not be the last time
    we adjust the Choice program.
        So, Sloan, I just would ask you if from your experience in
    the private sector and the experience that you have had in the
    VA, would it not make more sense to fix the Choice program
    first before we made it permanent?
        Mr. Gibson. I think the challenge that we are wrestling
    with right now is the rationalization of seven different
    programs for care in a community. So, in many respects, we do
    continue to try to fix the airplane while we are flying the
    airplane and that presents some challenges. I would tell you,
    if I had it to do over again, the biggest mistake I made in the
    last 2 years at VA was not asking for more time to implement
    Choice. I should have done that, and that is on me. I own that
    decision.
        I think the work that we are doing around the consolidation
    of care, we are heading clearly and precisely in that
    direction, and whether or not Choice by that name becomes
    permanent or temporary is less relevant to affecting the
    changes to and the consolidation and streamlining of the
    various programs for care in the community.
        Senator Tester. Well, I would just--this is not a question,
    this is a statement. I just think it is incumbent upon this
    Committee, and I think it is one of the reasons I am so proud
    of the Chairman and Ranking Member for getting the Veterans
    First Act up, because I think it is a step in the right
    direction.
        I do think that as we look to try to make Choice all it
    needs to be to meet the needs of the veterans, it may come to a
    point where we just say, hey, there is a better system out
    there, too, and that is the only reason I bring that up.
        Baligh, it is good to see you. Thanks for coming to
    Montana.
        Dr. Yehia. Thank you, Senator.
        Senator Tester. It sounds like you did good work in Kansas.
    You have done good work in Montana. We need to probably keep
    you around.
        Tell me what the major take-aways in the deliverables were
    from your trip to Montana, or your trips around the country,
    quite frankly, to make Choice work better, particularly as it
    applies to rural areas.
        Dr. Yehia. Well, thank you so much for those comments.
    Montana--and I was recently in Maine and Alaska--and what rang
    true was the different experience that rural veterans have
    compared to those that live in urban areas. When we think about
    how we consolidate community care, we need to make sue that no
    one is left behind, that the program is able to take into
    account every single sub-segment of the population, wherever
    they live.
        What does that really mean? That means we need flexibility
    in reimbursement rates, because we know in some areas we might
    have to pay a little bit more to get doctors to see our
    patients. We need to make sure that the 30 days and the 40
    miles are just a floor. If a veteran is seeing a provider and
    that provider decides that seeing someone in the community is
    what is best for them, we need to make sure that we empower
    them to do that.
        So, those trips really kind of solidified for me what those
    unique features are of rural veterans and how we need to make
    sure we do not have a cookie cutter approach to community care,
    but we tailor it to different geographies and populations.
        Senator Tester. Because I have visited with veterans in
    Montana and their experiences with Choice almost every time, if
    not every time, a third-party provider by the name of Health
    Net has come up; I am probably not Health Net's favorite
    Senator at this point in time, but that really does not matter.
    My question is, has Health Net delivered on the promises that
    they have made when they got the contract?
        Dr. Yehia. You know, I have a meeting every week with the
    Health Net executive and the TriWest executive because we need
    to do better for this program. They have been leaning forward
    more in recent months than before. We have set up joint groups
    of VA and our contracting partners. Now, when I go across the
    country to talk to veterans and providers, I make sure they
    come with us, because they need to hear directly from veterans
    and the doctors----
        Senator Tester. Right on.
        Dr. Yehia [continuing]. About how they can improve.
        I will say, things are getting better. We are definitely
    not where we need to be, but on both the VA side of the house
    and the contractor side of the house, there has been
    improvement since the start of the program.
        Senator Tester. In closing, I would just say that veterans
    see Health Net as the VA, and that is not particularly healthy
    for the VA, because you guys are, at least in Montana, held in
    pretty high regard once the folks get through the door. So,
    they really need to start flying right which is why I am such a
    strong supporter of the Veterans First Act.
        Thank you, Mr. Chairman.
        Chairman Isakson. Thank you, Senator.
        Senator Tillis.

                    STATEMENT OF HON. THOM TILLIS,
                    U.S. SENATOR FROM NORTH CAROLINA

        Senator Tillis. Thank you, Mr. Chair.
        Thank you all for being here. It is good to see you and I
    want to thank you again for your continued investment and time
    with my office, and Senator Tester talking about the
    breakthrough priorities and the transformation effort you all
    are under.
        I want to just speak briefly on--I have been here since
    January 2006, about seven dog years, and I have to say, in the
    length of time that I have been here, I really want to dispel
    the notion, at least on the Senate side--I cannot speak for the
    House--I do not know of anyone here who has had a serious
    discussion about privatization of the VA. I have said this
    before in committee. All you have to do is go out to the health
    care centers, you go out to the VA hospitals, and you
    understand the unique environment that they create that is
    uniquely therapeutic to a large base of veterans who need that
    facility.
        So, I do not know--I seriously do not think that there is
    any effort to do that, and the fact of the matter is, a good
    portion of the VA has been privatized for some time through the
    non-VA care and now through Choice. It is a matter of getting
    the right balance.
        It is also a matter of making sure that we do not go
    forward too quickly. I was, or am, a cosponsor of Senator
    McCain's Care Veterans Deserve Act, but within about 24 or 48
    hours of us announcing that bill, I reached out to the VA to
    say, let us discuss the people, process, technology, and time
    implications of the bill. Let us reconcile it against
    transformation authorities, determine to what extent this may
    be a different suggested means to an end that you already have
    in mind. We have to continue to keep that dialog going. When we
    do that, I think that the difference in outcomes are not
    significant and that is a way we can get to a productive place
    to then determine additional authorizations and then
    appropriations that may be necessary if we are going to
    complete the picture.
        I think it is critically important that the Department
    articulate in a very focused way how a well-intentioned idea is
    potentially disruptive to a number of other good ideas that are
    already stacked up that we intend to bring online. So, we have
    to keep that discussion going.
        I do not think anyone at the end of the day has a concern
    with what Senator McCain and the team have crafted. It is more
    a matter of how it could potentially be disruptive and
    problematic to other things that we have to get done.
        Now, moving on to other bills, one, I thank the senior
    Senator, Senator Burr, for his past work on the toxic
    substances exposure challenges that we have down in Camp
    Lejeune. I am glad to see that we generally have good support
    for that, and Mr. Chair, I hope we are able to move through
    with that fairly quickly.
        I also want to thank Senator Klobuchar for the work that we
    are doing on the burn pits legislation. Again, I do not think
    it is controversial. We have an opportunity here to get at the
    head of the curve and not have the burn pit exposures be our
    Middle Eastern war's Agent Orange. I think we need to be
    productive, establish a Center of Excellence, and get that
    going. I do not think that that is necessarily destructive. In
    fact, I think it could be very helpful to future VA claims if
    we utilize science, get the practices right now to make that a
    better practice at the time that the soldiers or the veterans
    may need their help.
        Then, on the Newborn Care Improvement Act, I get that you
    like it as long as we pay for it. What we are here to talk
    about now, and I think that can be said, you all probably have
    a rubber stamp somewhere. I think here, what we are talking
    about is authorizing programs, and we have to have a separate
    discussion about appropriations, how we have to pay for it. So,
    I appreciate the position, I think with the limited or no
    qualifications on those bills.
        So, Mr. Secretary, I think that what we need to continue to
    do, though, is get very quickly to where we can get this
    framework in place. We are working with the VA on it, so that
    we can in a very constructive way communicate back to the
    members how the time and the technology and the people and
    process implications of well-intentioned initiatives affect
    your overall transformation strategy. If we do that, in some
    cases, we may find out that there is a fork in the road that we
    should take because we have discovered something that may be
    more promising or have more value. We need to really have that
    evaluation.
        I know it is sometimes difficult for the Department to
    communicate that back because it becomes adversarial. We need
    to start getting some muscle memory into that just being a
    better way for us to engage so that we keep you all on what I
    think is a fundamentally sound overall transformation strategy.
        Mr. Gibson. I agree. As we discussed, I think there is an
    opportunity for that kind of informal exchange of information
    early in the process, particularly on legislation that we
    believe has the momentum associated with it and would see it
    through to potentially a floor vote or at least a vote out of
    Committee.
        Senator Tillis. Thank you. Also, just a closing comment, I
    know the Chair and the Ranking Member have talked about
    Secretary McDonald's publicized comments. I agree with them,
    that I can understand maybe what he was trying to communicate,
    though probably not the best way to communicate. What he is
    trying to do is provide excellent service as an organization.
    Get that past us fairly quickly so that we can focus on what I
    think is a productive working relationship. You have got a lot
    of work to do. Much of the swamp was there before you all came
    in to start draining it, but we have got to make sure that we
    just keep on working on positive messaging and do the best we
    can for the veterans.
        Mr. Gibson. Thank you for your very even-handed remarks.
        Senator Tillis. Thank you.
        Chairman Isakson. Thank you, Senator Tillis.
        Senator Manchin.

                  STATEMENT OF HON. JOE MANCHIN III,
                    U.S. SENATOR FROM WEST VIRGINIA

        Senator Manchin. Thank you, Mr. Chairman.
        Thank you all for your appearance today and for the hard
    work that is being done. This is one Committee that you are
    going to see is mostly bipartisan because we are here for one
    purpose. We all have VAs and we would not be sitting here
    without them and you would not be sitting there without them.
    So, we are all committed and dedicated. No one is throwing
    stones at all. Secretary McDonald has proven he is as human as
    we are. Welcome to our world. We understand that and we just
    hope that he continues to do the good work that he is doing.
    All of your actions and his actions--picking you all has spoken
    volumes about caring for our veterans and why that comes first.
        You know, and I am just going to call you Dr. Y.
    [Laughter.]
        So, Dr. Y----
        Dr. Yehia. It works for me.
        Senator Manchin. Huh?
        Dr. Yehia. I said, works for me. [Laughter.]
        Senator Manchin. You know, this whole thing about Choice
    and how we could--when it all was unveiled about how long the
    waiting time and the horrible situations that our veterans were
    in for the purpose of some unscrupulous people within the
    system, I think that has been cleared up. I think we are moving
    forward and past that.
        Then it came to light about Nuka, what Alaska was doing,
    and how they were doing it better, cheaper, quicker, and
    faster. So, we are going to say, well, if it works there, why
    does it not work everywhere? When you start talking to the
    veterans--you know, the veterans love their VAs. They love
    their hospitals. They love their CBOCs, because they know that
    people understand them. We are just trying to find that perfect
    blend, you know. I think that is it, the options. I know that
    Senators Tester, Tillis, and others are pushing the envelope
    now. How do we make it better? So, I do not think anyone is
    casting stones at you all but we are saying, can we make it
    better?
        Dr. Yehia. Yeah.
        Senator Manchin. Can we make sure that each veteran knows
    that they come first? We see it has worked in Alaska. We do not
    have a hospital in Alaska, do we?
        Dr. Yehia. We do not have a full-fledged hospital.
        Senator Manchin. No full-blown hospital, OK. And most of
    the--they are going to the Native American clinics, right----
        Dr. Yehia. That is right, and the DOD.
        Senator Manchin. They get priority billing on that. Which
    is, I think, what we tried to do, model that, a little bit
    after that, to get the same flow in some of our rural areas.
        You know, when Choice came out and the 40-mile rule, well--
    40 miles as the crow flies is like 85 miles by the way we drive
    in West Virginia. If you have never been to West Virginia, it
    is so beautiful, and we give you the roads so you can enjoy the
    beauty. [Laughter.]
        With that being said, you all made those adjustments. We
    appreciate that. Tell me how we go to the next step. How can we
    give these options? I know that you are afraid we are going to
    throw the baby out with the bathwater, the cost is going to be
    exorbitant, boom, boom, boom, but we did not see that in
    Alaska. We did not see that in places where it works.
        Dr. Yehia. Yeah. You know, your point about the special
    role that VA plays is true. I was in clinic 2 weeks ago when I
    was seeing patients. I saw one of my patients in the waiting
    room. I thought, I did not see you on my calendar today. I did
    not know we were meeting. Oh, no. He says, I am just here kind
    of catching up with my buddies. You do not do that in other
    hospital systems.
        Senator Manchin. Sure.
        Dr. Yehia. It is a very different place. I think we have to
    recognize that, as you did. At the end of the day, what we are
    looking to do is to get the best of both worlds. How do we play
    off the strengths of the VA and then play off the strength of
    the private sector?
        In some areas, in Alaska, we probably are going to purchase
    more care than make. In other areas, we might be making more
    care than buying. It is really getting us to an integrated
    health care network and that is what we put forward in our plan
    to consolidate community care. We talk about how, by allowing
    flexibility for the doctor, for the patient, and for the
    system, we can achieve the right balance in different markets.
        So, I think we have a good plan going forward. We just need
    the partnership, continued partnership with Congress to move
    some of that stuff past the finish line.
        Senator Manchin. I want to say one thing on the opiates.
    You know, I was at our VA hospital in Clarksburg, WV, which has
    been there for quite some time and it is a beautiful operation
    for our veterans. I spoke to one of your doctors who ran the
    CBOCs, and she is very direct. The reason I am saying this is
    the feedback I received from that gave us the impetus to move
    on legislation that would not keep ratings, because she said if
    these guys cannot call you guys, meaning the legislature, which
    is the Congress, and tell them that we did not do good by them
    because they were not given the pills they wanted, then we
    could do our job a little bit better. Very direct dialog.
        We came back and formed legislation now that, basically,
    any time opiates are dispensed in the hospitals in any type of
    a setting, it cannot be used in a rating system, because an
    addict is not going to give you a good rating if they do not
    get what they want. It made such sense. That came from you all,
    the feedback. So, I want to thank you for that.
        We are trying, we truly are, Mr. Gibson, to find that
    balance, and the biggest thing we have is people that need
    special care. Sometimes, we do not offer that or we do not have
    that expertise. How quickly can we get there, and what is the
    correlation between the private sector doctors responding back
    to you all, you know, and that correlation between someone
    outside the VA and the VA itself.
        Mr. Gibson. Well, that is the integrated network that
    Baligh is referring to----
        Senator Manchin. Right.
        Mr. Gibson [continuing]. That we are working to build and
    create, and----
        Senator Manchin. That is the biggest challenge you have
    right now, getting that----
        Mr. Gibson. I think it really is.
        Senator Manchin. Yeah.
        Mr. Gibson. We want this to be seamless for the veteran. It
    ought to be about what is the right thing for veterans and
    taxpayers. Every time we are looking at this question, it is
    that dynamic. Can we make it with better value than we can buy
    it? Then we ought to be making it in a particular location. If
    we get better value by going--better care quality and better
    value for taxpayers by going in the community, that is where we
    need to go to provide that care for the veteran. And in rural
    communities, which Alaska is a great example, we are probably
    going to buy more care than we make.
        Senator Manchin. We are fine with that, and I think that is
    where Thom, where you are coming from, too, right?
        Senator Tillis. [Nodding in agreement.]
        Thank you. I really do appreciate it, and tell the
    Secretary, do not let the SOBs get him down.
        Mr. Gibson. I will do that, sir. He hears that from me
    regularly, so I will repeat it. Thank you.
        Senator Manchin. He will be fine.
        Chairman Isakson. Thank you, Senator Manchin.
        Senator Heller.

                    STATEMENT OF HON. DEAN HELLER,
                        U.S. SENATOR FROM NEVADA

        Senator Heller. Thank you, Mr. Chairman.
        I think I am one of those SOBs. [Laughter.]
        Mr. Gibson. No way.
        Senator Heller. I am grateful that the panel is here and I
    want to thank you for taking time. As the Chairman knows, I
    wrote a letter to the Secretary yesterday, disappointed in his
    choice of words, and I want you to know that I do not hold
    anybody here on this panel responsible for the poor choice of
    words that were made by the Secretary yesterday.
        In fact, I was going to let it go until I got this note
    here from his office, from the Secretary himself prior to this
    hearing. Without reading all of it, if I may, Mr. Chairman, it
    said, ``I would like, Senator Heller, to focus on substantive
    issues and not on what I said yesterday.'' Frankly, I think
    what he said yesterday and what he said about the VA claims
    backlog is a substantive issue, and I think most on the panel
    today would agree with that.
        I would like to share something of a text that I received
    yesterday from a veteran in response to a letter that I sent.
    He says, ``Give them hell, Dean. For the amount of money they
    are paid, they should get in line like the veterans and see how
    they like it.'' Now, this particular veteran served in the
    Korean War. He was a Marine, one of the chosen few. He also
    happened to be the State Treasurer of Nevada. His name is Mr.
    Ken Santor.
        Secretary Gibson, I did not hear your comments--I apologize
    for being late--when I came in. But, would you tell me how the
    Secretary would respond to Mr. Santor if he were in the room
    today?
        Mr. Gibson. Anyone that knows Bob McDonald knows that he
    would not for an instant entertain any kind of a notion of
    diminished importance for timely access to care for veterans.
    Bob was trying to make a point about service quality. I think
    the analogy was not a good analogy, not a good point of
    comparison.
        As I read to this Committee before you arrived, sir, a
    verbatim quote of mine when I was the Acting Secretary in July
    2014, where I noted the fact that having a single wait time
    standard for care in the largest integrated health care
    organization in America really did not make a whole lot of
    sense and that I fully expected, over time, what we would be
    doing is very much like private sector health care, migrating
    toward much more of a focus on patient satisfaction around
    access, which is precisely what we have been in the process of
    doing. That is not to the--with disregarding wait times. Where
    we are intensely more focused on wait times has to do around
    the urgent care needs of our veterans.
        You know, we could say every single veteran gets an
    appointment within 30 days and still we would fail every single
    veteran that needed to be seen urgently today or tomorrow. That
    is--it is that kind of a single wait time standard, a single
    number of days is not meaningful, and that is why you do not
    see private sector health care organizations managing access to
    care in that way. They look principally at the satisfaction of
    their patients.
        What we are trying to do is to focus very intensively on
    access. Wait times are very important where we are trying to
    ensure that timely access to urgent care services are required.
    You can look at the laundry list. The number 1 priority of the
    entire Department right now is improving access to care. We are
    committed to making primary care services available on a same-
    day basis at every single medical center across the country. We
    are doing that today in 34 different medical centers. We have
    committed to mental health evaluations on a same-day basis. We
    have committed to seamless care for veterans who may be
    traveling or who are seeking care or prescription refill at a
    facility that is not their regularly registered facility. We
    are training 25,000 schedulers across the organization. We are
    rolling out new scheduling software.
        We are completely changing the health care enrollment
    process. By July, a veteran either by telephone or online will
    be able to complete the entire enrollment process and in most
    instances be able to get an answer almost immediately. Since
    the beginning of this fiscal year, every newly enrolled
    veteran--there have been about 200,000 so far this year--
    received a phone call from VA welcoming them to VA, asking if
    they want to get an appointment scheduled, helping them
    identify the nearest medical facility where the care they need
    is offered, and introducing them to their other benefits.
    Veterans are rating that experience almost perfectly, 4.9 out
    of five.
        This is the kind of--this is the way we are approaching
    this, trying to look at everything we do from the perspective
    of the veteran to give the veteran the very best care
    experience we can give.
        The point Bob was trying to make had to do with all of that
    is about a lot more than wait times. Wait times are still
    important and we have still got a lot of work to do about
    improving access to care.
        Senator Heller. Mr. Gibson, I appreciate your comments. You
    have got to understand that I am a little sensitive on this
    particular topic. I come from a State that had the worst wait
    times when it came to benefits. We were at--our regional office
    was one of the worst in the country just a few years ago and
    good improvements have been made. But, we have 300,000 veterans
    in the State of Nevada and you can imagine the sensitivity of
    comments similar to that.
        Mr. Gibson. In the month of April, 3,143 veterans completed
    appointments that were over 30 days. That is too long.
        Senator Heller. Yes.
        Mr. Gibson. Now, there were 68,000 completed appointments
    that were under 30 days. But, again, the 30-day standard, for a
    lot of those veterans that got in quicker than 30 days, we
    still might have let them down because they may have needed to
    be seen sooner, which is the goal that we are after. It has got
    to be from the veteran's perspective. We cannot do this from
    the inside out. We have got to do it from the outside in, and
    that is what we are trying to put in place.
        Senator Heller. Thank you very much.
        And former Congressman Michaud, I welcome you also. I
    remember fondly our time together in the House, so thank you
    for being here today.
        Thank you for the answers to my questions.
        Mr. Gibson. Yes, sir.
        Senator Manchin. Mr. Chairman, I want the record to be very
    clear that I did not refer to my good friend from Nevada as an
    SOB. [Laughter.]
        Or any of my colleagues who I think the world of. I am
    thinking of--the people I am referring to are those who do not
    know the job that has been done. They are quick to criticize
    without knowing the hard work that goes behind it.
        Senator Heller. Thank you, sir.
        Senator Manchin. My good friend from Nevada, thank you.
        Chairman Isakson. Well, thanks to our first panel. We thank
    you all for your attendance and your input. We will welcome our
    second panel to come forward. [Pause.]
     Response to Posthearing Questions Submitted by Hon. Johnny Isakson to
                      U.S. Department of Veterans Affairs
        Question 1.  The agenda for the hearing included a draft bill
    containing the proposal from the Department of Veterans Affairs (VA)
    for reforming the disability claims appeals process. In connection with
    that proposal, VA provided the Committee with data reflecting projected
    total and individual productivity levels under the current appeals
    process compared to what VA expects under the proposed new appeals
    process. That data reflects that currently the Veterans Benefits
    Administration averages 79 case resolutions or transfers per full-time
    equivalent (FTE) and the Board of Veterans' Appeals averages 47
    resolutions or transfers per FTE. Under the new appeals process, VA
    projects productivity levels of 128 decisions per FTE in the
    supplemental claim lane at the Veterans Benefits Administration; 309
    decisions per FTE in the higher-level review lane at the Veterans
    Benefits Administration; 180 decisions per FTE in the no-hearing lane
    at the Board of Veterans' Appeals; and 130 decisions per FTE in the
    hearing lane at the Board of Veterans' Appeals.
        A. Please provide an explanation of what factors are expected to
    allow for each of those increases in individual productivity, including
    any statistics, trends, studies, or other relevant information used in
    generating those projections.
        Response 1A. VA based its productivity estimates on the work rate
    standards (WRS) as published in the Veterans Benefits Administration's
    (VBA) Management Operations Manual M21-4, Appendix B. VA used the
    estimated fully-loaded labor hours required to complete end products
    associated with common disability rating claim work products. Fully-
    loaded labor hours include direct employee time spent adjudicating the
    claim, while indirect time is time spent by supervisory, managerial,
    and administrative staff who support the direct-labor workforce.
    Additionally, VA used a standard annual availability rate of 1,576
    hours per Full Time Employee (FTE). Although the Office of Personnel
    Management uses 2,087 hours when computing basic rates of pay, VA
    depreciates the number of available hours by approximately 25 percent
    to account for leave, training, meetings and other time spent in pay
    status but not directly contributing to the completion of a disability
    rating claim.
        For the supplemental claim lane, VA's estimated level of effort is
    based on approximately 8.45 labor hours to complete a supplemental
    disability rating claim. For these claims, an employee would complete
    approximately 187 claims per year. However, VA considered increased
    claims complexity since 2006 when the WRS were last reviewed and
    determined that the calculation should be adjusted. Over the past 5
    years, VA's data shows that the number of disabilities decided per
    claim has increased by approximately 45 percent; thus, VA increased the
    number of labor hours necessary to complete supplemental claims
    commensurately to account for the additional processing time required
    to decide claims with higher numbers of claimed disabilities. This
    dropped the number of supplemental claims decided yearly per FTE from
    187 to 128.
        For the higher level review lane, VA's estimated level of effort is
    based on approximately 3.42 labor hours to complete a rating review
    action for a service-connected disability rating claim where the
    Veteran's disability requires an additional examination to review the
    current evaluation. However, claims considered in the higher level
    review lane will require employees to review prior actions on the claim
    to ensure compliance with VA's duty to assist, and will often require
    employees to review multiple issues. As such, VA has determined that
    the estimated labor hours for this lane should be adjusted up by
    approximately 49 percent--from 3.42 to 5.09 labor hours per rating
    review--to account for the anticipated complexity of claims considered
    under this higher level review. This dropped the number of reviews
    completed yearly per FTE from 461 to 309.
        Regarding individual productivity at the Board of Veterans' Appeals
    (Board), the question above states that data provided by VA to the
    Committee reflects that, currently, the Board averages 47 resolutions
    or transfers per FTE. VA interprets ``transfers'' as referring to cases
    that are remanded by the Board to the Agency of Original Jurisdiction
    (AOJ). To clarify, this number should be updated to reflect 86
    decisions (resolutions and remands) per Board FTE. In Fiscal Year (FY)
    2015, the Board completed a total of 55,713 decisions, with an average
    of 86.3 decisions/dispositions per FTE. The 86.3 dispositions per FTE
    include both decisions and remands. Of the 55,713 decisions/
    dispositions completed by the Board in FY 2015, 46.4 percent were
    remands to the AOJ. As previously reported, the average 47 resolutions
    per FTE reflected final decisions, not remands, completed by the Board.
        As stated in the FY 2017 budget request, which has received support
    in both the House and Senate, sweeping legislative reform is needed to
    ensure that Veterans receive timely and quality appeals decisions. The
    FY 2017 budget proposed a Simplified Appeals Process--legislation and
    resources (i.e., people, process, and technology) that would provide
    Veterans with a simple, fair, and streamlined appeals process in which
    the vast majority would receive a final decision on their appeals
    within one year from filing the appeal. Specifically, the FY 2017
    budget request included three legislative proposals which outlined
    changes to the VA appeals process to create a Simplified Appeals
    Process: one proposal to close the evidentiary record, with very
    limited exceptions, at the time that a claimant is provided notice of
    the AOJ's decision; a second proposal to transfer jurisdiction over an
    appeal to the Board at the time of receipt of a Notice of Disagreement
    (NOD); and a third proposal to eliminate optional Board hearings. Under
    the Simplified Appeals Process outlined in the FY 2017 budget request,
    VA projected that the Board would complete an average of 180 decisions
    per FTE. The Simplified Appeals Process outlined in the FY 2017 budget
    request started a conversation about appeals reform and led to a wide
    spectrum of stakeholder groups meeting with VA to reconfigure the VA
    appeals process into something that provides a simple, timely,
    transparent, and fair resolution of appeals for Veterans and makes
    sense for Veterans, their advocates, stakeholders, VA, and taxpayers.
    The result of those stakeholder meetings was the new appeals framework,
    as outlined in the draft bill considered during the hearing. While the
    new appeals framework has changed from the Simplified Appeals Process
    outlined in the FY 2017 budget request, we still expect increased
    productivity in the new framework and, because of similarities with the
    Simplified Appeals Process, we expect the same level of Board
    productivity in the non-hearing option lane.
        In the non-hearing option lane, the evidentiary record before the
    Board would be limited to the evidence of record at the time of the AOJ
    decision on appeal, which is very similar to the Simplified Appeals
    Process, in which the evidentiary record closed at the time the
    claimant was provided notice of the AOJ's decision, with an exception
    for additional evidence added as a result of a remand to correct a duty
    to notify or duty to assist error that occurred prior to the initial
    AOJ decision. Also, in the new appeals framework, as in the Simplified
    Appeals Process, jurisdiction over an appeal would be transferred to
    the Board by filing an NOD. The non-hearing option lane in the new
    appeals framework is also similar to the Simplified Appeals Process in
    that there would be no Board hearings. In light of these similarities
    between the Simplified Appeals Process and the new appeals framework,
    the Board would expect the same productivity level as that contemplated
    in the Simplified Appeals Process included in the FY 2017 budget
    request.
        The FY 2017 budget projected 180 Board decisions per FTE based on
    technology, legislative change, the fact that the Board's reasons and
    bases in its decisions would be simplified, and the fact that, with
    very limited exceptions, the Board would review only the evidence
    before the AOJ at the time of the rating decision. We continue to
    believe that the Board would achieve the same level of productivity in
    the non-hearing option lane in the new appeals framework, as the
    evidentiary record before the Board would be limited to the evidence of
    record at the time of the AOJ decision on appeal. Therefore, in FY 2018
    we project 108 resolutions and 72 remands per Board FTE, for a total of
    180 decisions per Board FTE. We note that the projection of 180 Board
    decisions per FTE in the FY 2017 budget was a projection based on a
    legal framework that we do not have experience administering. We will
    continually reevaluate Board productivity.
        Estimated productivity in the Board hearing option lane is
    projected to be less than in the non-hearing option lane because
    Veterans will have the option to submit additional evidence during or
    within 90 days following a Board hearing or, if a hearing is not
    requested, with the notice of disagreement (NOD) or within 90 days
    following receipt of the NOD. Therefore, we expect productivity of 130
    dispositions per FTE in the hearing option lane. We project, in FY
    2018, 78 resolutions per FTE and 52 remands per FTE, for a total of 130
    dispositions per FTE.

        B. Do the projections for individual productivity levels at the
    Veterans Benefits Administration reflect any expected decrease in
    individual productivity as a result of the enhanced notice requirements
    in the draft legislation (revisions to 38 U.S.C. 5104(b))? If so,
    please outline how that was factored into the projections.
        Response 1B. The projections for individual productivity levels at
    VBA do not reflect any expected decrease in individual productivity
    based on the enhanced notice requirements. While the new letters may
    require more effort to generate, VA expects they will contribute to a
    lower appeal rate, which would offset the effort to create the letter.
    VA will perform further analysis on the impact of the letters once
    acceptable letter templates have been prototyped and tested with the
    employees who will be responsible for creating the letters.

        C. Do the projections for individual productivity levels take into
    account any lag time for hiring and training new employees and for
    newly hired employees to become fully productive? If so, please outline
    how that was factored into the projections.
        Response 1C. While authority for new employee hiring would be
    contingent on subsequent budget cycles, VA has taken into account
    hiring and training of employees into its projections. Since the
    proposed legislation would have an 18-month effective date, VA would
    have the time needed to draft training materials and guidance documents
    as well as hire and train any new employees.
        Regarding productivity, as the Board has a six-month period during
    which new attorneys receive training and develop the necessary skills
    to effectively produce quality decisions in a timely manner, we would
    expect any new Board FTE production in the first year to be 74 percent
    of regular production. VA does not expect reduced production from any
    new VBA employees, as new employees would be placed into the disability
    compensation claim processing teams and seasoned claims processors
    would be transitioned into new roles in the new framework's higher-
    level review and supplemental claim lanes. These seasoned claims
    processors may experience a slight learning curve productivity drop;
    however, we would not expect any significant decline in productivity
    and believe any impact would be negligible because of the increased
    efficiency of the new system.

        D. If the projected levels of increased productivity turn out to be
    unreachable, what steps could VA take to avoid a backlog developing
    under the new appeals system?
        Response 1D. VA will continue to develop and implement new systems
    to reduce error, optimize automation, and increase productivity of its
    employees to serve more Veterans and their families. The Board has
    already begun an Appeals Modernization initiative to overhaul its
    legacy IT system and create new tools to support accurate, timely
    decisions. The U.S. Digital Services Team is leading the effort and is
    working to replace the Department's appeals tracking system, the
    Veterans Appeals Control and Locator System (VACOLS), which was created
    decades ago, with a modern tool that seamlessly integrates with and
    leverages data from VBA's Veterans Benefits Management System (VBMS).
    Additionally, VBA has been working to streamline the claims process for
    the past few years, which will continue for original claims and the
    supplemental claim and higher level review lanes under the new
    framework. Finally, as VBA continues to modernize the claims
    distribution process through the National Work Queue, supplemental
    claims and requests for a higher level review at VBA under the new
    framework will be routed to available capacity nationwide to improve
    overall efficiency and timeliness.

        Question 2.  Regarding VA's proposal to reform the appeals process,
    the Committee has received testimony and other communications from
    Disabled American Veterans, Veterans of Foreign Wars, The American
    Legion, AMVETS, Iraq and Afghanistan Veterans of America, Military
    Order of the Purple Heart, the National Organization of Veterans'
    Advocates, and Paralyzed Veterans of America all indicating that a
    critical element of appeals reform is for VA to put forth a
    comprehensive plan to address the large existing inventory of appeals
    (approximately 450,000). Although VA has provided the Committee with
    cost estimates for various staffing models that could be used to
    address the existing inventory of appeals, the information provided
    does not include a detailed plan for how and when the existing appeals
    will be resolved.
        A. Please provide the Committee with a detailed plan for addressing
    the existing appeals (including any appeals that would be received
    before a new appeals process becomes effective), including information
    addressing personnel matters (for example, the extent to which VA would
    use all-hands-on-deck initiatives, overtime, contractors, new temporary
    employees, new permanent employees, etc.), any logistical challenges
    involved in handling a large volume of appeals in the near term, any
    proposed special appeals processing initiatives, any legislative
    changes that would be of assistance in handling legacy appeals in a
    timely manner, and key goals and milestones for processing existing
    appeals and related remands.
        Response 2A. VA's current inventory is approximately 460,000
    appeals, with approximately 78 percent pending with VBA. Legislative
    reform will help VA address appeals filed from decisions issued on or
    after the effective date of the law. Moreover, the legislative reform
    package does not change the mandatory cost requirements and is more
    efficient to administer compared to the current framework. In fact,
    over time, the new framework will result in cost savings over the
    current baseline. However, the sizable inventory of appeals stemming
    from decisions issued prior to the effective date of the new law would
    be completed under legacy procedures. VA would require additional
    resources to meet the timely service expectations of both Veterans and
    Congress in processing these appeals.
        VA is aware that any increase in resources above the FY 2017
    baseline will be contingent on annual budget appropriations and
    resource requirements will be validated on a yearly basis through the
    annual budget process. As such, to demonstrate potential outcomes for
    Veterans awaiting final decisions on their appeals, VA has projected
    five scenarios that highlight possible outcomes depending on the level
    of funding appropriated by Congress. The graphs below visually display
    each scenario.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ----------------------------------------------------------------------------------------------------------------
                                                                           Resources and FTE             Outcome
                                                                  --------------------------------------------------
                                                                                                       FY26 Legacy
                                                                       FY 2017          FY 2018         Inventory
    ----------------------------------------------------------------------------------------------------------------
    FY 2017 Baseline.............................................        $348,083         $358,589          214,837
    -------------------------------------------------------------------------------------------------
    Total FTE....................................................           2,417            2,417
    -------------------------------------------------------------------------------------------------
    Legacy Inventory.............................................         535,726          529,706
    ----------------------------------------------------------------------------------------------------------------
    * The FY 2018 funding level in this model includes a 3 percent inflationary increase

        The first scenario above, titled ``FY 2017 Baseline,'' assumes only
    legislative change without any new funding beyond FY 2017. Baseline
    funding is at the same level as FY 2016, with the exception of the
    addition of 242 FTE for the Board in the FY 2017 President's Budget.
    Under this model at least 214,837 appeals will take longer than 9 years
    to be resolved. Moreover, under this level of funding, some of these
    legacy appeals will take 28 years to be resolved.
        In the rest of the scenarios presented below, VA has assumed
    funding above the FY 2017 baseline to accelerate resolution of the
    legacy appeals workload.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ----------------------------------------------------------------------------------------------------------------
                                                          Resources and FTE               Costs             Outcome
                                                     ---------------------------------------------------------------
                                                                                 FY17-FY21    FY17-FY26
                                                                                Costs Above  Costs Above     FY26
                                                          FY17         FY18         FY17         FY17       Legacy
                                                                                  Baseline     Baseline    Inventory
                                                                                  (5 year)    (10 year)
    ----------------------------------------------------------------------------------------------------------------
    Add 50M in FY18.................................   $348,083     $397,895     $164,917     $392,382     127,505
    ----------------------------------------------------------------------------
      Total FTE.....................................      2,417        2,661
    ----------------------------------------------------------------------------
    Legacy Inventory................................    535,726      515,717
    ----------------------------------------------------------------------------------------------------------------

        The second scenario, titled ``Add $50M in FY 2018,'' reflects the
    projected outcome if Congress funded VA appeals by an additional $50M
    above the FY 2017 baseline. Under this model, VA projects 127,505
    appeals will take longer than 9 years to be resolved.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ----------------------------------------------------------------------------------------------------------------
                                         Resources and FTE             Costs             Savings         Outcome
                                      ------------------------------------------------------------------------------
                                                              FY17-FY21    FY17-FY26
                                                             Costs Above  Costs Above   FY17-FY26
                                          FY17       FY18        FY17         FY17       Savings       FY26 Legacy
                                                             Baseline (5    Baseline     Over 10        Inventory
                                                                year)      (10 year)      Years
    ----------------------------------------------------------------------------------------------------------------
    Add 100M in FY18.................   $348,083   $448,005   $374,371     $731,203     $(62,123)                  Complete by end
                                                                                                          of FY2026
    ---------------------------------------------------------
      Total FTE......................      2,417      3,001
    ---------------------------------------------------------
    Legacy Inventory.................    535,726    492,749
    ----------------------------------------------------------------------------------------------------------------

        The third scenario, titled ``Add $100M in FY 2018,'' reflects the
    projected outcome if Congress funded VA appeals by an additional $100M
    above the FY 2017 baseline. VA projects that under this model, it would
    be able to eliminate most of the legacy inventory by the end of FY
    2026. Due to the open record and duty to assist in the current appeal
    process, VA will likely have a small, declining inventory of legacy
    appeals for several years after FY 2026.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ----------------------------------------------------------------------------------------------------------------
                                         Resources and FTE             Costs             Savings         Outcome
                                      ------------------------------------------------------------------------------
                                                              FY17-FY21    FY17-FY26
                                                             Costs Above  Costs Above   FY17-FY26
                                          FY17       FY18        FY17         FY17       Savings       FY26 Legacy
                                                             Baseline (5    Baseline     Over 10        Inventory
                                                                year)      (10 year)      Years
    ----------------------------------------------------------------------------------------------------------------
    Add 150M in FY18.................   $348,083   $497,890   $572,735     $482,879    $(288,811)                  Complete by end
                                                                                                          of FY2024
    ---------------------------------------------------------
      Total FTE......................      2,417      3,360
    ---------------------------------------------------------
    Legacy Inventory.................    535,726    466,245
    ----------------------------------------------------------------------------------------------------------------

        The fourth scenario, titled ``Add $150M in FY 2018,'' reflects the
    projected outcome if Congress funded VA appeals by an additional $150M
    above the FY 2017 baseline. Under this model, VA projects it would be
    able to eliminate most of the legacy appeals inventory by the end of FY
    2024. Due to the open record and duty to assist in the current appeal
    process, VA will likely have a small, declining inventory of legacy
    appeals for several years after FY 2024.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    ----------------------------------------------------------------------------------------------------------------
                                          Resources and FTE                 Costs           Savings       Outcome
                                  ----------------------------------------------------------------------------------
                                                                    FY17-FY21  FY17-FY26
                                                                      Costs      Costs     FY17-FY26
                                                                      Above      Above      Savings    FY26  Legacy
                                    FY 2017    FY 2018    FY 2019      FY17       FY17      Over 10      Inventory
                                                                     Baseline   Baseline     Years
                                                                     (5 year)  (10 year)
    ----------------------------------------------------------------------------------------------------------------
    Add in FY 2018 & FY2019......   $348,083   $478,824   $590,330   $725,715   $323,307  $(518,938)               Complete by
                                                                                                        end of FY22
    ----------------------------------------------------------------
      Total FTE..................      2,417      3,234      3,875
    ----------------------------------------------------------------
    Legacy Inventory.............    535,726    474,387    296,676
    ----------------------------------------------------------------------------------------------------------------

        In the last scenario, titled ``Add $242M over FY 2018-FY2019,'' VA
    assumed a budget and hiring authority sufficient to functionally
    eliminate the legacy appeals inventory by FY 2022. VA projects that
    under this aggressive model, it would be able to reduce the inventory
    of legacy appeals from a high in FY 2018 of almost 536,000 appeals to
    approximately 80,000 appeals by the start of FY 2022--an 85-percent
    reduction in 4 years; with legacy inventory essentially eliminated by
    the end of FY 2022. Due to the open record and duty to assist in the
    current appeal process, VA will likely have a small, declining
    inventory of legacy appeals for several years after FY 2022. Under this
    model VA would need budget authorization for 242 million, receiving 130
    million in FY 2018, and 112 million in FY 2019.
        VA is grateful to Congress for the additional FTE in recent years,
    including an additional 107 for the Board in FY 2014 and an additional
    300 for VBA, who were hired in 2015 to assist with the disability
    compensation claims rating backlog and shifted to work appeals in 2016.
    The 2017 President's Budget currently under consideration by Congress
    includes a request for an additional 242 FTE for the Board.
        VA is also reviewing existing processes to improve the efficiency
    of the FTE working appeals in the legacy system. VBA's centralized mail
    and scanning is now handling documentation from the Board in order to
    accelerate the transition of appeals to the digital environment.
    Currently, approximately 90 percent of all appeals are paperless. VBA
    and the Board are also working to resolve pending requests for Board
    hearings. The Board has made more hearing slots available through Video
    Teleconferencing, and VBA is working with VSOs and Veterans to ensure
    utilization of the hearing slots.
        Another element of the plan to improve efficiency of the appeals
    process and resolve the legacy inventory is to improve the technology
    supporting appeals processing. VBA has outlined enhancements for VBMS
    to improve appeals processing. As stated above, the U.S. Digital
    Services Team is leading the effort to replace the outdated legacy
    appeals tracking system (VACOLS) and to further improve the processing
    of appeals at the Board with additional capabilities such as work
    queues, tools to optimize efficiency in eFolder review and decision
    writing and automation, among others.

        B. To the extent the plan for addressing the existing inventory of
    appeals includes a near-term surge of employees (the New Framework +
    FTE Surge model submitted by VA), please include an explanation of how
    long it would take for VA to fully prepare for and implement the surge
    of employees, how long the surge would be expected to last, what level
    of productivity VA would expect to achieve as a result of the surge,
    and how VA would downsize its labor force once the need for the surge
    of employees has ended. For example, please include information about
    how long it would take to hire the additional employees at the Veterans
    Benefits Administration and the Board of Veterans' Appeals; how long it
    would take to train those employees; what additional capacity, if any,
    the Veterans Benefits Administration and Board of Veterans' Appeals
    would need in order to train the new employees; how much additional
    office space, if any, VA would require to accommodate the new employees
    and how long it would take to acquire that space; how long it would
    take to acquire any necessary computers, office supplies, or other
    necessary equipment for the surge of employees; what other logistical
    challenges VA would face with a large influx of employees; and what
    legal authorities would be used both to hire new employees and to
    downsize the labor force once the need for a surge has ended.
        Response 2B. The question references the New Framework + FTE Surge
    model submitted by VA. As reflected above, there are various modeling
    outcomes regarding addressing the existing inventory of appeals
    depending on funding levels. The answers below would be generally
    applicable to any new budgetary appropriations that would involve
    additional FTE.
        VA believes that the proposed 18-month lag between the passage of
    the appeals reform bill and the effective date for implementation is
    sufficient to execute the surge hiring strategy to address the legacy
    appeals inventory. VBA believes it can meet the FTE hiring surge within
    6 months of the authority to hire. Training will follow VBA's normal
    protocol, which includes 3 weeks of centralized training followed by 6
    months in trainee status at each Regional Office. VBA will deploy newly
    hired employees to work simpler, rating-related claims. This will allow
    more experienced employees to work on more complex claims under the new
    framework. In this model VBA has also accounted for resource
    requirements for training, space, and computer workstations.
        The Board believes it can also hire and train additional FTE during
    the 18-month period between enactment of the legislation and its
    effective date. The Board is in the process of refreshing its attorney
    training curriculum to refocus on preparing decisions in a virtual
    environment and to shift from live training to more recorded modules
    that can be used on demand as needed both for initial training and
    refreshers. The new framework for appeals processing would be
    incorporated into this training. New judges will also undergo rigorous
    initial training, which will include training addressing the new
    framework, with follow-up mentoring and continuing education. Board
    administrative staff will also undergo new employee training specific
    to their business line.
        The challenges faced by the Board would include human resources
    support, information technology (IT) support, training support, and
    office space. These challenges would be handled by having a strong
    recruitment plan in place, with a tiger team of dedicated personnel to
    handle the recruitment and on-boarding. The IT needs would also be
    identified in advance with a streamlined plan to have the necessary
    equipment in place in a timely fashion as new hires were on-boarded.
    The Board is already putting plans in place and is working with the
    Office of Human Resources & Administration and the Office of
    Information & Technology to ensure that it is ready for a surge of
    employees. The training needs would be handled by having a strong
    training plan in place, using lessons learned from the large training
    in 2013, when the Board successfully hired and on-boarded 125 new FTE
    (including 114 new attorneys) during two quarters of FY 2013, and
    subsequent trainings. Finally, the office space requirements would be
    handled by a combination of repurposing existing space for storing
    paper claims files, and increasing telework for eligible employees.
        VBA's historical attrition rate is approximately 7 percent; the
    Board's historical attrition rate is approximately 8.7 percent. As the
    legacy appeals inventory is resolved, VBA can divert its legacy appeals
    workforce to rating-related disability compensation work and/or
    conducting higher level reviews under the new framework. The Board
    expects that it will be able to primarily rely on attrition alone to
    meet the decrease in staffing requirements following the hiring surge
    in FY 2018 and 19.

        Question 3.  If the proposed legislation on appeals reform is
    passed, please outline the steps VA would need to take in order to
    fully prepare for and implement the new process, including any actions
    needed regarding logistics, training, information technology, and
    outreach.
        Response. VA has proposed an 18-month delayed effective date for
    the legislation. This delay would provide VA with the time needed to
    prepare for implementation, including the drafting of regulations,
    updating forms and notice letters, developing guidance documents,
    updating information technology (IT) systems, implementing an outreach
    and communications plan, and hiring/training staff.
        To implement the appeals reform legislation, VA must amend its
    existing regulations, to include its adjudication and appeal
    regulations in parts 3, 19, and 20 of title 38, Code of Federal
    Regulations. Due to the sweeping nature of these reforms, any
    regulatory changes will require public notice and comment. Such
    rulemakings can take up to eighteen months to finalize, so drafting
    will begin immediately upon enactment of the legislation. Concurrent
    with preparing these regulatory changes, VA will update its procedural
    guidance documents, to include VBA's M21-1 Adjudication Procedures
    Manual, as well as any letters and forms impacted by the legislation.
    As implementation draws nearer, VA will develop and implement
    appropriate training for all employees. VA does not anticipate any
    difficulty training employees, nor do we foresee a significant impact
    on current levels of productivity because the new framework would be
    more efficient to administer.
        Regarding necessary IT upgrades, VA will continue its multi-phase
    process of enhancing appeals functionality in the paperless environment
    while simultaneously initiating any new development and/or upgrades
    necessary to implement the new framework.
        VA will also use the 18-month period to develop and deploy a robust
    outreach plan to ensure that Veterans and their families, as well as
    other stakeholders fully comprehend the new framework. VA will leverage
    its existing tools, partnerships, social media platforms, and forums,
    to include MyVA Communities and Town Halls, to disseminate information
    about the upcoming changes and the impact on current and future
    appeals. Engaging with Veterans and stakeholders early and often will
    ensure that any issues may be addressed prior to final implementation.
    Furthermore, VA will apply best practices and lessons learned from its
    claims process transformation.
        As discussed in response 2(B), VBA is prepared for budgetary
    approval for new resources, and VBA believes it will be able to hire
    FTE within 6 months of any authority to hire. Training would follow
    normal protocol, which includes 3 weeks of centralized training
    followed by 6 months in trainee status at each Regional Office. VBA
    would deploy newly hired employees to work simpler, rating-related
    claims, allowing for existing, experienced employees to work on more
    complex work under the new framework. In order to hire/train Board
    staff, the Board will have a strong recruitment plan in place, with a
    tiger team of dedicated personnel to handle the recruitment and on-
    boarding. The IT needs for these new employees would also be identified
    in advance with a streamlined plan to have the necessary equipment in
    place in a timely fashion as new hires are on-boarded. The training
    needs would be handled by having a strong training plan in place, using
    lessons learned from the large training in 2013, when the Board
    successfully hired and on-boarded 125 new FTE (including 114 new
    attorneys) during two quarters of FY 2013, and subsequent trainings.
    Finally, the office space requirements would be handled by a
    combination of repurposing existing space for storing paper claims
    files, and increasing telework for eligible employees.

        Question 4.  The agenda for the hearing included a legislative
    proposal that was in the fiscal year 2017 budget request for VA, which
    would modify the evidentiary threshold needed to trigger VA's
    obligation to provide a compensation and pension examination for a
    veteran seeking disability compensation. Generally, it would require
    objective evidence that the veteran experienced an event, injury, or
    disease during military service, in addition to existing evidentiary
    requirements.
        A. Please provide any relevant data on how many compensation and
    pension examinations VA provides each year; how many veterans receiving
    those examinations have their disability claims granted; and how many
    veterans receiving those examinations have their claims denied.
        Response 4A. In fiscal year (FY) 2015, VA conducted compensation
    and pension examinations for 284,207 original compensation claims
    containing 1,706,550 separate issues. VA is providing this information
    at the issue level rather than the claim level because a claim may
    contain multiple issues, each with their own reason for denial. Based
    on the results of these examinations, VA granted service-connection for
    877,906 (51.4 percent) issues and denied service-connection for 828,644
    (48.6 percent) issues.

        B. Please provide any relevant data on how many examinations per
    year would not be conducted if this change were enacted.
        Response 4B. For FY 2015, VA estimated that 113,080 original claims
    received a VA examination for an issue that was subsequently denied
    because the claimed condition was not incurred in nor caused by
    military service. Approximately 84,812 exams (75 percent) were
    considered unnecessary as they do not result in a grant of service-
    connection and may be avoided each year if this legislation was
    enacted.

        C. Please provide any relevant data on how frequently disability
    claims are denied for lack of in-service incurrence after VA has
    provided an examination.
        Response 4C. The chart below shows the number of claimed issues
    where examinations were conducted but the issue was denied during FY
    2015. As shown below, the rate at which VA denies service-connection
    because the condition was not incurred in nor caused by service (NINC)
    increases significantly for claims filed a number of years after
    separation from service.

    ----------------------------------------------------------------------------------------------------------------
                                                                                                            % of
                                                                     Number of   Number of     % of        Denials
       Proximity of Claim to Veteran's Separation from Military       Denied      Denied      Denials     Based on
                                Service                               Issues       NINC      that are       ``No
                                                                                  Issues       NINC      Diagnosis''
    ----------------------------------------------------------------------------------------------------------------
    <1 Year.......................................................   322,257     127,995          40%           48%
    1-10 Years....................................................   152,328      87,809          58%           28%
    10-20 Years...................................................    60,801      37,905          62%           22%
    20-50 Years...................................................   248,252     156,305          63%           17%
    Over 50 Years.................................................    29,571      20,398          69%           17%
    ----------------------------------------------------------------------------------------------------------------

        D. Please provide any relevant information regarding the nature of
    the claims that are being denied for lack of in-service incurrence
    after an examination has been provided, including the types of injuries
    or diseases most frequently involved and the length of time that has
    elapsed since leaving the military.
        Response 4D. The chart below shows the top five disabilities for FY
    2015 that were denied service-connection, after a VA examination was
    conducted, because the claimed condition was NINC. The disabilities are
    categorized by the number of years after discharge from military
    service and reflect conditions that were claimed as part of original
    claims for service connection.

    ----------------------------------------------------------------------------------------------------------------
                                                        Number of   % of Denials
    Proximity of Claim to Veteran's Separation  from   Denied NINC    that are    Top 5 Disabilities Denied based on
                    Military Service                     Issues         NINC                     NINC
    ----------------------------------------------------------------------------------------------------------------
    <1 Year.........................................    127,995             40%   1. Low Back
                                                                                  2. Knee, Loss of Motion (LOM)
                                                                                  3. Ankle, LOM
                                                                                  4. Shoulder, LOM
                                                                                  5. Tinnitus
    ----------------------------------------------------------------------------------------------------------------
    1-10 Years......................................     87,809             58%   1. Low Back
                                                                                  2. Knee, LOM
                                                                                  3. Tinnitus
                                                                                  4. Shoulder, LOM
                                                                                  5. Knee, Instability
    ----------------------------------------------------------------------------------------------------------------
    10-20 Years.....................................     37,905             62%   1. Low Back
                                                                                  2. Knee, LOM
                                                                                  3. Tinnitus
                                                                                  4. Knee, Instability
                                                                                  5. Shoulder, LOM
    ----------------------------------------------------------------------------------------------------------------
    20-50 Years.....................................    156,305             63%   1. Hearing Loss
                                                                                  2. Tinnitus
                                                                                  3. Low Back
                                                                                  4. Knee, LOM
                                                                                  5. Hypertension
    ----------------------------------------------------------------------------------------------------------------
    Over 50 Years...................................     20,398             69%   1. Hearing Loss
                                                                                  2. Tinnitus
                                                                                  3. Low Back
                                                                                  4. Knee, LOM
                                                                                  5. Heart
    ----------------------------------------------------------------------------------------------------------------

        E. Please explain what impact this change would have on veterans
    seeking disability compensation based on toxic exposures during
    service.
        Response 4E. This legislative proposal would have little to no
    impact on Veterans seeking disability compensation based on toxic
    exposures during service. The purpose of this proposal is to reduce the
    number of examinations VA must provide when there is no objective
    evidence of an in-service injury, event, or disease. For Veterans
    seeking disability compensation based on toxic exposure during service,
    generally, VA does not order a disability compensation examination
    without evidence of in-service toxic exposure. In other words, when an
    examination is ordered for such claimants, the only remaining issue for
    consideration is typically whether there is a medical nexus between a
    current disease and the in-service exposure.
        Furthermore, in cases where VA has established a presumption based
    on exposure to certain toxins (i.e., herbicide agents, ionizing
    radiation, mustard gas), a disability compensation examination is often
    not necessary to establish service-connection because VA has already
    determined there is sufficient scientific evidence to establish a
    medical nexus between a particular disease and toxic exposure during
    service.
                                     ______

    Response to Posthearing Questions Submitted by Hon. Mazie K. Hirono to
       Hon. Sloan Gibson, Deputy Secretary, U.S. Department of Veterans
                                    Affairs
                            female veterans suicide
        Question 5. A. Deputy Secretary Gibson, I know that the VA, and all
    Members of the Committee, are extremely concerned with the rates that
    our veterans, particularly female veterans, are committing suicide
    which is why I support Sen. Boxer's bill S. 2487 the Female Veteran
    Suicide Prevention Act. VA figures note for women ages 18 to 29,
    veterans kill themselves at nearly 12 times the rate of nonveterans. To
    what extent has the VA taken the actions as directed in S. 2487 to
    identify: (1) VA mental health care and suicide prevention programs
    that are most effective for women veterans, and (2) such programs with
    the highest satisfaction rates among women veterans?
        Response 5A. VA shares your concern for women Veterans and is
    leading national efforts to understand suicide risk factors, develop
    evidence-based intervention strategies, and proactively identify and
    care for Veterans--men and women--who are in crisis or at risk for
    suicide. We note that S. 2487 was enacted as Public Law 114-188 in
    June 2016. Accordingly, VA will include in its annual evaluation of VA
    mental health care and suicide prevention programs under 38 U.S.C.
    Sec. 1709B, metrics applicable to specifically to women, and identify
    the programs that are most effective for women Veterans and such
    programs with the highest satisfaction rates among women Veterans.
        va mental health care and suicide prevention programs for women
                                    veterans
        More than 430,000 women Veterans are currently utilizing the VA
    health care system. Of these, over 42% use VHA mental health services.
    For women Veterans in need of mental health care, VA provides a full
    continuum of mental health services to women Veterans, including
    general outpatient, specialty, inpatient and residential rehabilitation
    treatment options. Some specialty care programs that target problems
    such as PTSD, substance use, depression, and homelessness include
    women-only services (e.g., women-only groups). Many facilities provide
    this care through specialized women-only outpatient treatment teams.
    With regard to specialty outpatient treatment options for Post
    Traumatic Stress Disorder (PTSD), evidence-based therapies for PTSD,
    including prolonged exposure and cognitive processing therapy, have
    been shown to decrease suicidal ideation. These treatments are
    available nationally at every VA medical center.
        For women Veterans in need of more intense treatment, VA has
    residential rehabilitation and inpatient programs that provide
    treatment to women only, or have separate tracks for men and women.
    These residential rehabilitation and inpatient programs are considered
    regional and/or national resources, not just a resource for the local
    VA facility. Mixed-gender options are also available.
        VA has enacted universal screening programs for some of the most
    common mental health conditions and related experiences, including
    those faced by women and associated with increased risk for suicide,
    such as depression, PTSD, alcohol use, and military sexual trauma
    (MST). These screening programs provide an opportunity to identify
    those individuals in need of mental health care and refer them to
    appropriate mental health services. Screening rates for depression,
    PTSD, and alcohol use are very high (96%-99%), exceed private sector
    rates, and do not significantly differ by gender.
        VA has numerous suicide prevention resources available, including a
    24-hour per day crisis hotline (1-800-273-8255) and Veterans Crisis
    Online Chat (http://www.veteranscrisisline.net/
    ChatTermsOfService.aspx). Veterans and their loved ones also may access
    resources through VA's comprehensive suicide prevention website (http:/
    /www.mentalhealth.va.gov/suicide--prevention/). At least one full-time
    Suicide Prevention Coordinator (typically a nurse or social worker) is
    assigned to each VA medical center and large community-based outpatient
    clinic. This individual is responsible for tracking high-risk Veterans
    (all attempters, and patients with serious ideation or others
    clinically determined to be at high risk for suicide) and tracking
    appointments and coordinating enhanced care between Veterans and
    providers, among other duties.
        Finally, VHA has strong clinical training initiatives in place to
    ensure that mental health providers have the knowledge and skills to
    meet the unique treatment needs of the growing population of women
    Veterans accessing VA mental health services. These include didactic
    teleconferences, expert case consultation and a web-based training
    curriculum on women's mental health needs across the reproductive
    lifespan (e.g., psychiatric disorders during and after pregnancy). In
    addition, the Women's Mental Health Section of VA Mental Health
    Services recently held a national Women's Mental Health Mini-Residency.
    This 3-day intensive training event was designed to provide VA mental
    health providers with the clinical knowledge and skills to provide
    gender-sensitive care to women Veterans. The 171 participants
    represented nearly every VA medical center nationally. These women's
    mental health providers will serve as local women's mental health
    champions. Each has developed an Action Plan to improve women's mental
    health delivery at their local facility.
      women veterans' satisfaction with va mental health care and suicide
                              prevention programs
        Research findings indicate that women Veterans with mental health
    problems are very satisfied with VA health care. For example, one
    recent survey study of over 55,000 male and female Veterans diagnosed
    with a mental health condition showed that nearly all (91%) rated their
    health care provider positively (Burnett-Zeigler et al., 2011). There
    were no between-gender differences in ratings. Nearly all Veterans
    surveyed indicated their health care provider listened to them (96%),
    inspired confidence and trust (95.4%), and that they participated in
    their own healthcare decisions (91.9%).
        Data from a national sample of 10,000 Veterans who received VA
    mental health services in fiscal year 2015 indicated that both male and
    female Veterans are very satisfied with their VA mental health care,
    and there were generally few differences between men and women on
    individual satisfaction questions. Areas of particularly high
    satisfaction, where national averages were at least 4 on a scale of 1
    to 5, were Veterans reporting that their mental health care was
    helpful; that their clinicians were accessible, engaged and responsive
    to their needs; that they had access to treatment when and how much
    they needed and wanted treatment; and that they were treated with
    respect and kindness. Composite measures reflecting access to care and
    patient-centered care also indicated high satisfaction, with women
    Veterans reporting slightly higher satisfaction with the patient
    centeredness of mental health care compared to male Veterans.
        Finally, although women Veterans satisfaction with suicide
    prevention programs has not yet been directly assessed, available
    research suggests that these programs are making an important
    difference. For instance, by partnering with U.S. states to gather
    information about Veteran suicides from death certificates, VA
    researchers recently calculated, for the first time, preliminary
    estimates of suicide rates in the overall U.S. Veteran population,
    including those who do and do not use VA health services. Results
    showed significantly lower rates of suicide among women Veterans who
    use VA health services as compared to those who do not use VA health
    care. This finding suggests that VA's suicide prevention efforts are
    having a positive impact. In summer 2016, VA will release a Suicide
    Data Report that provides comprehensive information regarding suicide
    mortality among all Veterans, including women Veterans, for the years
    2001-2014. This report will provide a deeper understanding of the
    problem of suicide among women Veterans and inform initiatives for
    preventing it.
    References
    Hoffmire, C.A., Kemp, J.E., Bossarte, R.M. (2015). Changes in suicide
                mortality for veterans and nonveterans by gender and
                history of VHA service use, 2000-2010. Psychiatric Services
                66(9), 959-965.

        B. VA estimates S. 2487 would cost $2.2 million in fiscal year (FY)
    2017 and $6.6 million over 3 years. Could you break down that cost
    estimate? Are additional staff necessary?
        Response 5B. In order to ensure that the amount of data on women
    Veterans utilizing mental health services is sufficient for a robust
    analysis that would support the requirements of S. 2487 (enacted as
    Public Law 114-188), a significant over sampling of women Veterans is
    required. The costs required to accomplish this over-sample include:
    the costs within VA for managing a contract and collaborating with the
    outside independent evaluator on the provision and interpretation of
    women-specific data; incremental costs in order to increase the sample
    size; and the incremental costs for conducting the additional analyses
    required.
        Specifically, acquiring data for a subsample of women Veterans that
    would be sufficient to allow parallel analyses and comparisons with the
    data on male Veterans will require doubling the overall sample size for
    the Veterans Outcomes Assessment (VOA), at a cost of $1.8 million per
    year. The VOA data will be the primary source of outcomes data that the
    external contractor will utilize to evaluate VA mental health services.
    Additionally, internal costs to VA include 1.0 FTE Program Analyst and
    a 0.25 FTE Program Manager to manage the larger contract, oversee and
    conduct extra data pulls and analyses for the external independent
    evaluator, and serve as a liaison to the external evaluator on women-
    specific data issues. Finally, VA's estimate includes the marginal
    costs for the additional analyses and reporting required of the
    external evaluator.

                                    ------

        Chairman Isakson. Let me welcome our second panel. We
    appreciate your patience in waiting through the first panel,
    and we will move straight to your testimony and then questions.
    We are grateful you came to comment on the legislation before
    us.
        We have Mr. Carlos Fuentes, Senior Legislative Advisor,
    Veterans of Foreign Wars; Lou Celli--welcome back, Lou--the
    National Director of Veterans Affairs and Rehabilitation, The
    American Legion; Adrian Atizado, Deputy National Legislative
    Director of Disabled American Veterans; Carl Blake, Associate
    Executive Director of Government Relations, Paralyzed Veterans
    of America; Diane Boyd Rauber, National Organization of
    Veterans' Advocates; and Jerome Ensminger, U.S. Marine Corps,
    Retired, Master Sergeant.
        We welcome all of you. We will begin with Mr. Fuentes.

       STATEMENT OF CARLOS FUENTES, SENIOR LEGISLATIVE ADVISOR,
     NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE
                             UNITED STATES

        Mr. Fuentes. Chairman Isakson and Members of the Committee,
    on behalf of the men and women of the VFW and our Auxiliaries,
    I would like to thank you for the opportunity to present our
    views on legislation pending before the Committee. I would
    limit my remarks to bills for which we have concerns we urge
    the Committee to address.
        The VFW supports most aspects of the Care Veterans Deserve
    Act of 2016, but we have serious concerns with the bill's
    significant expansion of the Choice program. The VFW agrees
    that the VA health care system must leverage its community care
    partners in order to fulfill its obligation to our Nation's
    veterans. However, we firmly believe that community care must
    complement, not compete, with the high-quality veteran-centric
    and comprehensive care veterans receive from their VA health
    care system.
        For that and other reasons, the VFW believes Choice program
    eligibility must be based on a veteran's inability to receive a
    VA appointment within a clinically indicated date or within the
    distance a veteran and his or her doctor agree is clinically
    necessary and reasonable.
        The VFW strongly supports Section 4, which would authorize
    certain doctors to practice telemedicine across State lines.
    This provision would considerably expand access to care for
    veterans who do not live in the same State as their VA health
    care facility and veterans who require home-based health care
    services.
        The VFW supports the intent of the Janey Ensminger Act of
    2016, which would require periodic literature reviews to
    determine whether health care conditions prevalent among
    veterans and family members exposed to contaminated water at
    Camp Lejeune are associated with such toxic exposures. To
    ensure literature reviews are aligned with the realities of
    medical research, we urge the Committee to require that the
    Agency of Toxic Substances and Disease Registry use the
    Institute of Medicine's categories of association instead of
    attempting to meet the unattainable threshold of causation.
        The VFW also supports the intent of the Helping Veterans
    Exposed to Burn Pits Act. However, the VFW recommends Congress
    expand VA's risk centers rather than establish a new Center of
    Excellence. I am glad to see that the VA in its written
    testimony indicated that it would expand its risk centers
    rather than establish a new center.
        With regards to appeals reform, the VFW agrees VA's current
    appeals process takes too long. However, to say that the
    appeals process is broken is an overstatement. While the
    process takes too long, nearly one-third of all appellants are
    granted something they did not receive from a VA regional
    office. The process clearly works for them.
        At the request of Secretary McDonald, the VFW has actively
    participated in a series of meetings in an attempt to identify
    opportunities to improve the current appeals process, but
    participation does not imply consent or approval of any
    process.
        The proposed outline in the legislation under consideration
    today, even if approved with the recommendations detailed in my
    written testimony, is only one-third of the solution. There are
    two elements missing in this proposal: a comprehensive plan by
    VA to effectively address the current backlog of more than
    450,000 pending appeals, and properly staff the new process;
    and an allocation of sufficient resources by Congress to allow
    VA to execute this plan effectively. The VFW will not endorse
    any changes to the current appeals process until all three
    elements are in place.
        The VFW opposes the discussion draft to modify requirements
    under which VA is required to provide compensation and pension
    examinations to veterans seeking disability benefits which
    would relieve VA of its obligation to order medical exams for
    certain veterans. The VFW firmly believes that raising the
    standard for VA's duty to assist would have a negative impact
    on veterans. Under this proposal, veterans who are unable to
    locate their service records or have a disability that cannot
    be observed by others, such as fatigue, pain, or tinnitus, may
    be denied the compensation and pension examinations needed to
    prove their injuries are a result of their military service.

        Mr. Chairman, this concludes my testimony. I am happy to
    answer any questions you or the Members of this Committee may
    have.
        [The prepared statement of Mr. Fuentes follows:]
      Prepared Statement of Carlos Fuentes, Senior Legislative Associate,
     National Legislative Service, Veterans of Foreign Wars of the United
                                     States
        Chairman Isakson, Ranking Member Blumenthal 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, I would like to
    thank you for the opportunity to testify on today's pending
    legislation.
                   s. 2896, care veterans deserve act of 2016
        This legislation would expand the Veterans Choice Program,
    authorize independent reviews of Department of Veterans Affairs (VA)
    medical facilities and expand access to VA health care. The VFW
    supports sections 3, 4, 5 and 6. The VFW has concerns with section 2.
        While the Veterans Choice Program has made significant progress
    since it was implemented in November 2014, it has yet to achieve what
    Congress envisioned when it passed the Veterans Access, Choice, and
    Accountability Act of 2014. The purpose for this landmark program was
    to address the national access crisis that has plagued the VA health
    care system, where veterans wait too long or travel too far for the
    care they need. The VFW has made a concerted effort to ensure the
    program works as intended by evaluating what aspects of the program are
    working and identifying common sense solutions to aspects that are not
    working as intended. We have done this because we agree that VA must
    leverage its community care partners in order to fulfil its obligation
    to our Nation's veterans. However, we firmly believe that community
    care must complement, not supplant or compete with the high quality,
    comprehensive and veteran-centric care veterans receive from their
    health care system.
        Section 1 would make any veteran enrolled in VA health care
    eligible for the Veterans Choice Program. The VFW is seriously
    concerned that such a significant expansion of eligibility would result
    in veterans receiving disparate and uncoordinated care. Medical
    research has determined that integrated and managed health care systems
    provide better health care outcomes than fee for service systems. That
    is why the majority of high performing health care systems, including
    VA, have implemented the patient-centered medical home model of
    delivering health care, which ensures patients receive the care they
    need when they need it.
        Additionally, the VFW has continued to receive complaints from
    veterans who face delays receiving care through the Veterans Choice
    Program and continue to receive erroneous bills for care that VA is
    required to provide. The VFW believes the current program must be fixed
    before considering whether to dramatically expand eligibility. The VFW
    urges the Committee to amend this legislation by ensuring veterans who
    are unable to receive a VA appointment by a clinically indicated date,
    or within a distance an enrolled veteran and such veteran's health care
    provider agree is reasonable, are offered community care options.
        The VFW supports Section 3, which would require VA to provide
    veterans access to private sector urgent care clinics across the
    country. Urgent care is designed to meet the gap between emergency room
    care and ambulatory care. Urgent care has also been proven to reduce
    reliance on more costly emergency room care for non-life threatening
    care and alleviate demand on primary care providers. The VFW is also
    glad to see this section would waive copayment requirements for
    veterans who seek care through community urgent care clinics. This
    would ensure veterans are not financially impacted for receiving the
    urgent care they need. However, the VFW urges the Committee to ensure
    VA has the resources and authority it needs to expand urgent care
    capacity at VA medical facilities.
        The VFW strongly supports section 4, which would authorize certain
    providers to practice telemedicine across state lines. This provision
    would go a long way toward helping veterans who do not live in the same
    state as the facility in which they are enrolled and for veterans who
    require home-based health care services.
        With geographic distance remaining a significant barrier to care
    for veterans, the use of telemedicine technology has emerged as a
    highly effective method of providing veterans timely and convenient
    care. Current law, however, restricts VA health professionals from
    practicing telemedicine across state lines unless both the provider and
    the veteran are located in federally owned facilities. Consequently,
    veterans are required to travel significant distances to Federal
    facilities just to access telehealth services. By allowing VA health
    care professionals to practice telemedicine across state borders, a
    veteran's physical location would no longer be a limiting factor in his
    or her ability to receive telehealth services.
        Section 5 would extend operating hours for VA pharmacies and
    authorize VA to contract health care providers, including locum tenens
    to operate clinics on nights and weekends. The VFW fully supports
    extending operating hours for VA medical facilities. Veterans have
    continuously asked for VA medical facilities to increase operating
    hours. Doing so would ensure veterans who work during the day are not
    required to forgo wages to receive the health care they need. However,
    the VFW urges the Committee to amend this legislation to enable VA to
    use its health care providers during extended hours as well by removing
    the 80-hour biweekly restriction on VA employees. This would ensure
    veterans who receive care during extended hours can continue to receive
    their care from the VA medical professionals they know and trust.
                      s. 2888, janey ensminger act of 2016
        This legislation would require the Agency for Toxic Substances and
    Disease Registry (ATSDR) to conduct periodic literature reviews of the
    existing research regarding the relationship between exposure to toxic
    water at Camp Lejeune and adverse health conditions. The VFW supports
    the intent of this legislation, but has a serious concern with the
    threshold it sets for medical research, which we hope the Committee
    will address before advancing this legislation.
        The approximately 650,000 veterans and family members who served on
    Camp Lejeune between 1953 and 1987 deserve to know if their health care
    conditions are related to water they drank that was contaminated with
    trichloroethylene, tetrachloroethylene, vinyl chloride, and other
    toxins. That is why the VFW fully supports periodic literature reviews
    of the existing body of research on the relationship between
    contaminated water at Camp Lejeune and the health conditions prevalent
    among veterans and family members exposed to such toxic substances.
        However, this legislation would require the ATSDR to evaluate
    whether a health condition is caused by exposure to contaminated Camp
    Lejeune water, which is an unreasonably high bar for determining a
    relationship between adverse health conditions and toxic exposure. This
    legislation would require the ATSDR to categorize related health care
    conditions into three categories: sufficient with reasonable confidence
    that the exposure is a cause of the illness or condition; modest
    supporting causation; or no more than limited supporting causation.
    This would mean that the majority of the health conditions the ATSDR
    considers to be associated with exposure to trichloroethylene,
    tetrachloroethylene, vinyl chloride in drinking water would fail to
    meet this threshold.
        Research regarding toxic exposures has traditionally used the
    Institute of Medicine's (IOM) six categories of associations:
    sufficient evidence of a causal relationship; sufficient evidence of an
    association; limited/suggestive evidence of an association;
    insufficient evidence to determine whether an association exists;
    inadequate/insufficient evidence; and limited/suggestive evidence of no
    association. These six categories are aligned with the nature of
    epidemiological research and can be used to guide future research. The
    VFW strongly urges the Committee to reduce the threshold from causation
    to IOM's six categories of association.
          s. 2883, appropriate care for disabled veterans act of 2016
        The VFW supports this legislation, which would reinstate the
    requirement for VA to provide an annual report to Congress that details
    its capacity in selected specialized health care services.
        This capacity report would provide information on utilization
    rates, staffing, and facility bed censuses needed to ensure more
    accountability within VA and would help ensure VA is a good steward to
    finite taxpayer resources. The VFW believes this report would improve
    staffing levels at local VA medical facilities and overall access to
    VA's specialized systems of care.
               s. 2679, helping veterans exposed to burn pits act
        This legislation would create a center of excellence for veterans
    exposed to burn pits and other toxic substances. The VFW supports the
    intent of this legislation and has recommendations to improve it.
        The use of open air burn pits in combat zones has caused invisible,
    but grave health complications for many servicemembers, past and
    present. Particulate matter, polycyclic aromatic hydrocarbons, volatile
    organic compounds and dioxins--the destructive compound found in Agent
    Orange--and other harmful materials are all present in burn pits,
    creating clouds of hazardous chemical compounds that are unavoidable to
    those in close proximity.
        Unfortunately, the impact of exposure to such toxic substances on
    our Iraq and Afghanistan veterans is still not widely known or
    understood. What is clear, however, is that veterans exposed to burn
    pits continue to report debilitating pulmonary conditions which
    significantly affect their quality of life. That is why the VFW
    supports continued research on the impact of exposure to such burn pits
    on the health of Iraq and Afghanistan veterans. Furthermore, VA must
    ensure all its health care providers are aware of the symptoms
    experienced by exposed veterans and ensure these veterans receive
    appropriate medical treatments.
        However, the VFW believes it would be more beneficial for veterans
    if the Committee were to expand VA's War Related Illness and Injury
    Study Centers (WRIISC) rather than establish a new center of
    excellence. The WRIISCs have been instrumental in conducting research
    on the health effects associated with exposure to burn pits, developing
    educational material for VA and community care providers, providing
    comprehensive exams for exposed veterans and providing high quality
    treatment specifically tailored to their needs. The VFW urges the
    Committee to increase funding for the WRIISCs and require VA to
    establish more centers throughout the country.
                     s. 2520, newborn care improvement act
        The VFW supports this legislation, which would expand VA's
    authority to provide health care to a newborn child, whose delivery is
    furnished by VA, from seven to 14 days post-birth.
        According to the Centers for Disease Control and Prevention,
    newborn screenings are vital to diagnosing and preventing certain
    health conditions that can affect a child's livelihood and long-term
    health. The VFW understands the importance of high quality newborn
    health care and its long term impact on the lives of veterans and their
    families. VA must ensure newborn children receive the proper post-natal
    health care they need.
                 s. 2487, female veteran suicide prevention act
        The VFW supports this legislation to improve VA mental health care
    and suicide prevention programs offered to women veterans.
        As the population of female veterans continues to increase, it is
    important for VA and Congress to expand the availability of women-
    specific care at VA medical facilities. In a survey of 1,922 women
    veterans conducted by the VFW, 40 percent of respondents said they are
    either currently using mental health care services or they have in the
    past. This indicates that female veterans are high users of VA mental
    health care services.
        With medical research consistently pointing to gender differences
    in effective treatment of mental health and prevention of suicide, it
    is vital for VA to ensure it provides the high quality and gender-
    specific care our female veterans deserve. Given the increase in the
    number of suicides across the country, the VFW strongly believes this
    legislation would help prevent female veteran suicide.
     s. 2049, a bill to establish in the department of veterans affairs a
        continuing medical education program for non-department medical
      professionals who treat veterans and family members of veterans to
      increase knowledge and recognition of medical conditions common to
                    veterans and family members of veterans.
        The VFW supports this legislation, which would ensure community
    care providers who care for veterans and their families understand how
    to provide veteran-centric care. As the largest integrated health care
    system in the country and a worldwide leader in medical research, VA
    plays a significant role in training health care professionals. In
    fact, more than two thirds of all doctors in the country have received
    training in the VA health care system. This bill would rightfully
    ensure VA is able to train our current and future health care
    workforce.
        Discussion draft to reform the rights and processes relating to
    appeals of decisions regarding claims for benefits under the laws
    administered by the Secretary of Veterans Affairs.
        On January 22, 2015, the VFW testified before the Subcommittee on
    Disability Assistance and Memorial Affairs on the subject of the ever-
    growing appeals backlog \1\. We explored at length and in detail the
    reasons why the appeals backlog is the size it is today. We discussed
    the decades-long failure to request and receive appropriate levels of
    full time equivalent to deal with appeals. We pointed to deliberate
    choices made to ignore the growing problem by the Veterans Benefit
    Administration (VBA) managers at the local level as well as leaders in
    the Department of Veterans Affairs (VA) Central Office. Finally, we
    highlighted the fact that VBA leaders, with full knowledge of the
    consequences of their choices, decided to process disability claims,
    not for days, weeks or months, but for years, allowing appeals to wait.
    ---------------------------------------------------------------------------
        \1\ VFW testimony before the Veterans Affairs Subcommittee on
    Disability Assistance and Memorial Affairs, January 22, 2015, http://
    www.vfw.org/VFW-in-DC/Congressional-Testimony/ Veterans%E2%80%99-
    Dilemma---Navigating-the-Appeals-System-for-Veterans-Claims/
    ---------------------------------------------------------------------------
        Today, there are more than 450,000 appeals awaiting the years-long
    process to a final decision by the Board of Veterans' Appeals (BVA).
    Much of this backlog is due to the fact that eliminating the disability
    claims backlog was the focus of both VA and Congress. By focusing on
    disability claims, VA stopped relatively simple appeals tasks. If VBA
    directed some resources to the Notice of Disagreement (NOD)
    certification process, nearly half of all appeals would be removed.
    How? History shows that once an NOD is filed, only half of all veterans
    continue their appeals after they receive their Statement of the Case
    (SOC).
        Now VA, feeling the pressure of another growing backlog, has begun
    describing the current appeals process as too complicated and confusing
    to veterans in a bid to get Congress to create a new process it
    describes with the adjectives ``simple'' and ``fast.'' What is being
    overlooked is that, despite the fact that the current appeals process
    is long, it works in providing veterans relief. Under the current
    system, BVA granted benefits to veterans in 29.2 percent of the cases
    it finally decided. With such a high appeals grant rate, the VFW
    insists any reforms to the process must protect the rights veterans
    enjoy in the current appeals process. Simple and fast is not better for
    veterans if it means veterans lose rights and VA rushes to deny
    appeals.
        Let us be clear, we are not advocates of the status quo. We are not
    the old guard standing in the way of improvements to a process that
    does not serve veterans in a timely manner. However, we are advocates
    for veterans, and we will not support any change simply for the sake of
    change, nor changes that make the process easier for VA at the expense
    of veterans.
        In short, we will not support a new appeals process which reduces
    the rights and protections found in existing law and regulations.
        At the request of Secretary McDonald, the VFW has actively
    participated in a series of meetings with other Veteran Service
    Organization (VSO) representatives and officials of VA in an attempt to
    identify opportunities for improvement to the current appeals process.
    However, participation does not imply consent or approval of the any
    new process. We have worked with others to craft an alternative process
    which might provide speedier decisions without reducing rights and
    protections currently enjoyed by veterans.
        The proposal outlined in the legislation under consideration today
    is, even if approved with the amendments we suggest, 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.

        The VFW will not endorse any change in the current appeals process
    until all three elements are in place.
                           concern with the proposal
        While the VA's proposal is the combined work of a dozen VSO's and
    VA spanning hundreds of man hours of labor, much of it simply shifts
    work from an appeals lane, leaving it in a new center lane, labeling it
    a claim and not an appeal.
        The proposal envisions several changes to current claims and
    appeals processing. Under the current claims process, a veteran submits
    a claim to a VA regional office. The claim goes through a stage of
    development and preparation for a decision. VA eventually decides the
    claim and notifies the claimant.
        Under the current process, the claimant has the following options:

         Do nothing
         Submit new evidence within a year of the decision and ask
    for reconsideration
         Appeal

        Under this proposal, the claimant has the following choices:

         Do nothing
         Submit new evidence (or new and relevant evidence) and
    receive a new decision
         Ask for a Difference of Opinion review and receive a new
    decision
         Appeal

        As you can see, the proposed change to the appeals process shifts
    all of the regional office appeals processing, including the Decision
    Review Office (DRO) review, out of the current appeals lane and simply
    leaves it as another option available at the regional office,\2\ never
    calling it an appeal.
    ---------------------------------------------------------------------------
        \2\ Under VA's proposal, the Decision Review Officer (DRO) position
    is eliminated. In its place, VA proposes to designate VBA employees to
    conduct Difference of Opinion reviews as an adjunct duty. The VFW
    opposes eliminating the highly skilled and experienced cadre of DRO's.
    It is our belief that the elimination of DRO's will result in a
    diminution of grants using the Difference of Opinion review authority.
    ---------------------------------------------------------------------------
        All appeals functions currently within the purview of the regional
    office are taken out of the appeals process and are renamed. With only
    a few exceptions, this process is not fundamentally different from the
    current process. The only possible advantage to the claimant is that
    these issues no longer linger in the shadows of the appeals process and
    must be worked as a claim by VBA.
        Once this fundamental fact is recognized, it is easier to see what
    the new process is and what it might do for claims and appeals
    processing.
                                    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.
        Allow us to explain by way of an illustration:

        We are all familiar with the state of the Armed Forces. During the
    Cold War, it was a basic tenant of force structure that our military
    was large enough to deal with two major enemies at the same time. After
    the Cold War ended, Congress began reducing the size of the Armed
    Forces. In 2012, then Defense Secretary Leon Panetta acknowledged that
    the United States could no longer fight two sustained ground wars
    simultaneously.\3\ If Congress wanted the Armed Forces to have the
    ability to fight two ground wars at the same time it would have to
    approve additional personnel and equipment to do so.
    ---------------------------------------------------------------------------
        \3\ http://www.thewire.com/global/2012/01/us-cant-fight-two-wars-
    same-time-anymore/46892/
    ---------------------------------------------------------------------------
        So too it is with VA. 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.
    Unfortunately, without a comprehensive plan from VA, Congress can only
    guess at the number of personnel required to maintain disability claims
    processing at current levels while processing and resolving the current
    appeals backlog.
        VA must develop a comprehensive plan for maintaining its current
    claims workload while attacking the appeals backlog. This plan must
    include recommendations to Congress on what legislative changes are
    required and how many additional personnel are needed to eliminate the
    current appeals backlog in a reasonable period of time.
                            examining va's proposal
    Different lanes
        The proposed change to the claims and appeals process creates what
    VA refers to as three lanes:

        1. Center (claims) lane (The starting point for all claims)
              Under this lane all claims are processed much as they are
            today. A claimant submits a claim. VA develops the claim to
            completion and refers it for decision. VBA makes a decision and
            notifies the claimant.

        2. Difference of Opinion review lane
              Once a decision is made, a claimant may elect to receive a
            higher level review from VBA. Under VA's proposal, this is not
            done by a Decision Review Officer but by someone who is at
            least one grade higher than the previous decisionmaker. VA
            apparently envisions this assignment as an adjunct duty and not
            a primary responsibility.

        3. Appeals lane
              A claimant may elect to appeal once they receive a decision
            by VBA (either a center lane decision or a difference of
            opinion decision). Under this proposal, a claimant must then
            make a choice: submit no new evidence and receive an expedited
            decision (promised within 1 year of the appeal), or choose to
            submit new evidence and/or request a hearing. Under this
            scenario, a Veteran Law Judge will conduct a hearing at some
            undefined point in time and make a decision.
              If the veteran elects the expedited lane, the BVA would
            conduct a de novo review of the evidence in the record at the
            time VBA made its original decision. If a hearing is held or
            new evidence is submitted, the BVA will make a decision based
            on the evidence in the record at the time the VBA decision was
            made and whatever new evidence is submitted during the appeal.
              However, under this proposal remands are severely limited and
            are only allowed if it is determined that VBA did not fulfill
            its duty to assist a claimant as required by law prior to the
            VBA decision under appeal. What is not addressed is what action
            is required if evidence submitted during the appeal, either
            prior to the hearing or at a hearing, would trigger VA's duty
            to assist if it were submitted as a center lane claim. It
            appears that VA will not require the remand of the appeal for
            duty to assist development. This penalizes veterans who seek
            appellate review but later discover evidence. The only way they
            can obtain the assistance of VA is by withdrawing their appeal
            and submitting a supplemental claim in the center lane. This
            causes them to lose their place in the appeal process. Further,
            it may not even be a viable alternative since the one year
            period for submitting a supplemental claim may have lapsed
            while awaiting a hearing at the BVA.
              Once the BVA makes a decision, the claimant may appeal to the
            Court of Appeals for Veterans Claims (CAVC) or may submit
            additional evidence within 1 year to have the issue
            reconsidered by VBA.

        The premise of these changes is to provide virtually unlimited
    opportunity for the claimant to prove his/her claim by going through
    the center or claims lane. The other premise is that VBA will be able
    to adjudicate, or readjudicate, these claims in an expeditious manner
    (there is vague talk of the 125 day standard).
        The BVA becomes the winner in this process. With remands limited to
    duty to assist errors, remands should be significantly reduced. While
    this is helpful to the BVA and appeals processing, it becomes
    problematic for veterans who have their appeals remanded for other
    reasons today.
        This proposal is designed to address the frustration of claimants
    by reducing the length of time it takes them to obtain a decision from
    VA. However, what they lose is the ability to submit evidence critical
    to the favorable resolution of their claims. Further, we are certain
    that the percent of claims granted by the BVA will fall because of
    these changes.
    Concerns
        A number of areas of concern are not adequately addressed in this
    proposal. Leaving many of these issues to VA to refine by regulation
    creates an opportunity to do mischief.
    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 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 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.
        Therefore, 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.
    Independent Medical Opinion/Independent Medical Expert
        Under this proposal, VA would eliminate the ability of the BVA to
    ask for an Independent Medical Opinion (IMO). It argues that IMOs are
    available through the claims lane, so this authority is not necessary.
        There are several reasons why the Independent Medical Opinion (IMO)
    authority should remain with the BVA. Under the current claims process,
    requesting and obtaining an IMO is difficult. While VA policy allows a
    veteran's representative to ask for an IMO, it must be approved by the
    regional office Veteran Service Center Manager (VSCM) before submission
    to the VA Compensation Service. Then it must be approved by the
    Compensation Service before the opinion is requested. This cumbersome
    procedure requires the approval of two individuals who may, or may not,
    have sufficient training and experience to understand the need for the
    IMO.
        The BVA currently orders about 100 IMO's per year. A veteran's
    representative need only convince a Veterans Law Judge (VLJ) that an
    opinion is necessary. VLJ's have the training and experience necessary
    to make these decisions----training and experience which may be lacking
    in VSCM's and Compensation Service personnel.
    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 VLJ 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. 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.
        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 possible:

        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
              - The total number of appeals pending
              - The subtotals of pending appeals at each stage of
            processing
              - The average days pending at each processing stage
              - What actions were taken during the reporting period to
            process and resolve pending appeals in each processing stage
              - 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
              - How many claims are pending in each lane
              - Average timeliness for processing claims and supplemental
            claims, by regional office
              - Average timeliness for processing claims in the difference
            of opinion lane, by regional office
              - Average days pending of appeals in the fast lane at the BVA
              - Average days pending of appeals in the hearing lane at the
            BVA
              - Average days pending of appeals in the evidence only lane
            at the BVA
              - Total number of IMO requests made by the BVA
              - Total number of IMO requests approved by the Compensation
            Service

         And, of course,
              - Appeals granted, remanded and denied under the current
            appeals process
              - Appeals granted, remanded and denied under the proposed
            appeals process.
                         plan to reduce current backlog
        VA must have a plan in place to process to completion the 440,000
    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.
                      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.
                                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.
         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 twelve months or longer to publish
    and finalize regulations necessary to implement this proposal. If this
    proposal is passed in 2016, we suggest that the effective date of the
    changes be January 1, 2018.
         6.  Congress must resolve the issues surrounding the duty to
    assist. We believe that those conducting the difference of opinion
    review and the 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.  Congress should retain the BVA's current authority to request
    Independent Medical Expert Opinions under 38 U.S.C. 7109.
         9.  The DRO position should be retained.
        10.  Congress should eliminate the new and material evidence
    requirement found in 38 U.S.C. 5108 and require only new evidence in
    order to reopen a claim.
        11.  Evidence required to file a supplemental claim should be new
    evidence and not new and relevant evidence.
        12.  Congress should require VA to provide the reports outlined
    earlier in this testimony and any other reports it deems appropriate.
        13.  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.
        discussion draft regarding veterans affairs construction reform
        This draft legislation provides four provisions to improve the
    construction process and provide greater transparency related to costs
    and funding. While the VFW continues to call on Congress to provide VA
    greater authority to enter into public-private partnerships, sharing
    agreements and leases, VA will continue to need to build medical
    facilities.
        The VFW fully supports the provision that mandates a forensic audit
    on any medical facility project that is projected to cost more than 25
    percent of the appropriated amount. These audits will shine a light on
    what causes cost overruns, and provide both VA and Congress the
    information they need to correct inefficient construction practices.
        Currently, the Secretary must report to Congress where bid savings
    come from and where they are going to be used. However, the Secretary
    is not compelled to report in detail the amounts that have already been
    obligated, how much of the project has already been completed and how
    bid savings has already been provided to that project. This provision
    will provide Congress with a clearer picture of construction projects
    that are susceptible to cost overruns. The VFW fully supports this
    provision.
        The legislation also calls for quarterly reports on the budgetary
    and scheduling status of each project, as well as a comparison between
    the planned and actual costs and scheduling status. This provision will
    provide Congress updates throughout the project life cycle, allowing it
    to detect cost overruns and construction delays early so corrective
    actions can be taken. The VFW fully supports this provision.
        Last, this legislation calls on VA to use industry standards when
    constructing medical facilities. While the VFW agrees that VA should
    adopt private sector best practices, there are no clear industry
    standards to follow. That is why the VFW suggests codifying and putting
    in regulation many of the best practices, some of which VA has recently
    adopted, that will build in efficiencies and reduce cost overruns and
    building scheduling delays. The VFW believes that VA must always
    include a medical equipment planner as part of the architectural and
    engineering team; improve communications through a project management
    plan; subject all projects plans to peer review; develop change-order
    processes that increase the timeliness of the changes; and when
    practical, use a design-build process to reduce the number of change
    orders.
    draft bill to expand eligibility and medical services under section 101
        of the veterans access, choice, and accountability act of 2014.
        This legislation would expand eligibility for the Veterans Choice
    Program to include veterans who have received care through the Project
    Access Receive Closer to Home (ARCH). The VFW supports this legislation
    and has a recommendation to improve it.
        Project ARCH has been a very successful community care program that
    ensures veterans are not required to travel too far for the care they
    need. Veterans who receive care through Project ARCH inform the VFW
    that they want to continue to see their doctors. Given that Project
    ARCH is set to expire soon, the VFW has urged VA to ensure Project ARCH
    veterans are able to continue to receive the care they need without
    having to transfer to new providers or have their process for receiving
    such care changed. This legislation would rightfully expand community
    care eligibly to these veterans to ensure that occurs.
        However, this legislation would make any veteran who has used
    Project ARCH eligible for the Veterans Choice Program, even if such
    veteran is no longer eligible for Project ARCH. That is why the VFW
    urges the Committee to amend this legislation to expand eligibility
    only to veterans who would otherwise continue to be eligible for
    Project ARCH.
        state outreach for local veterans employment (solve) act of 2016
        The VFW supports this legislation, which would provide states with
    greater flexibility in how they use funds provided under the Jobs for
    Veterans State Grants (JVSG) provided by the Department of Labor's
    Veterans Employment and Training Services (DOL-VETS).
        This bill would prohibit DOL-VETS from rejecting a state's JVSG
    proposal based solely on which state agency would execute the plan. It
    would further prohibit DOL-VETS from rejecting a state's plan in its
    entirety because a portion of the plan is unacceptable, without
    providing an explanation of why that portion was not approved. The VFW
    does not believe that DOL-VETS does either of these things now, so
    these provisions would simply codify current practice. We note that
    DOL-VETS would maintain full authority to reject all or part of a
    state's plan based upon its merits, and believe states should continue
    to be held to a high standard to ensure JVSG funds are being
    administered in a way that maximizes employment outcomes for veterans.
        This bill would also allow states to identify additional
    significant barriers to employment (SBE) that would make veterans
    eligible for intensive services from Disabled Veterans Outreach Program
    (DVOP) specialists. Currently, only veterans with compensable
    disabilities are defined as having SBE. Under this legislation, states
    may include other veterans as SBE, such as homeless veterans, or those
    experiencing long term unemployment. While the VFW believes that DVOPs
    should provide services to disabled veterans first, they may have the
    ability to assist others as well. We believe states should be
    encouraged to develop innovative solutions to meet the unique needs of
    their unemployed and underemployed veterans.
     discussion draft of va's proposal to modify requirements under which
        the department is required to provide compensation and pension
             examinations to veterans seeking disability benefits.
        The VFW opposes this legislation, which would relieve VA of its
    obligation to order medical exams for certain veterans who file claims
    for disability compensation by requiring ``objective evidence'' that
    the disability was incurred or aggravated in service; became manifest
    during a presumptive period; or the event in service was capable of
    causing the injury. The language of the bill leaves it up to VA to
    define ``objective evidence'' by regulation. This would raise the
    standard for duty to assist, which currently states that VA ``will
    provide'' an examination or opinion if necessary to decide the claim.
        If this bill were to become law, it would have an indisputably
    negative impact on certain veterans. One category would be veterans who
    have disabilities that cannot be observed by others, such as fatigue,
    pain, or tinnitus. Another would be those whose service records may
    have been destroyed, damaged, or missing, including in the 1973 fire at
    the National Personnel Records Center.
        To take one example, if a veteran's service records were not
    available, and attempts to locate them were unsuccessful, VA could just
    deny the claim. In certain circumstances, just receiving an exam will
    enable the veteran to show that the type of injury claimed would have
    onset during military service, given the severity and length of time
    between the injury and the exam.
        Additionally, the word ``objective'' is not defined. It is unclear
    whether certified buddy statements, affidavits, and credible lay
    testimony would be considered ``objective evidence'' if the veteran did
    not fall into one of the ``presumptions'' where VA allows this evidence
    to be considered. VA currently accepts credible lay testimony from
    veterans in certain cases to prove an in-service event, even if it is a
    circumstance not controlled by 38 U.S.C. 501(a). Given these concerns,
    the VFW must oppose this bill.
             discussion draft, veterans mobility safety act of 2016
        The VFW supports this legislation, which would establish minimum
    safety standards for the Automobile Adaptive Equipment Program.
        The Automobile Adaptive Equipment Program was established to enable
    severely disabled veterans to drive without the assistance of others by
    making modifications to their exiting vehicles or purchasing a new
    vehicle with the specific accommodations they need. Because the VA
    automobile grant is a one-time benefit, it is important that
    modifications made to vehicles are safe and function properly the first
    time.
        Currently, VA prosthetic representatives are required to assist
    veterans in locating an approved vendor and inspecting the workmanship
    of vehicle modification. VA encourages veterans to verify that a vendor
    is registered with the National Highway Traffic Safety Administration
    (NHTSA), who is responsible for developing motor vehicle safety
    standards. However, NHTSA does not conduct thorough compliance
    evaluations to ensure registered adaptive equipment installers comply
    with the established standards. The VFW supports establishing a
    comprehensive policy regarding quality standards for providers.
    However, VA must also ensure that requiring certification of providers
    does not delay a veteran's ability to have his or her vehicle modified.

        Mr. Chairman, this concludes my testimony. I will be happy to
    answer any questions you or the Committee Members may have.

        Chairman Isakson. Thank you very much.
        Lou Celli of The American Legion. Welcome back, Lou.

     STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR, NATIONAL VETERANS
        AFFAIRS AND REHABILITATION DIVISION, THE AMERICAN LEGION

        Mr. Celli. Thank you very much.
        Additional medical training for non-VA providers, VA
    coverage for newborns and their mothers, suicide prevention
    measures for our women veterans, ensuring veterans are properly
    treated and compensated for adverse exposure to burn pits,
    ensuring we understand VA's capacity to treat our severely
    injured veterans, construction management assistance,
    addressing the poisoning of our Camp Lejeune military
    community, and while we are at it, we should probably address
    Fort McClellan, too, ensuring States are able to make the best
    possible use of the Federal funding they receive to help
    veterans reintegrate and find gainful employment, and finally,
    appeals modernization. All great legislative initiatives.
        Chairman Isakson, Ranking Member Blumenthal, and Members of
    this Committee, on behalf of National Commander Dale Barnett
    and the over two million members that make up The American
    Legion, we welcome this opportunity to comment on bills that
    discuss these important issues as well as the future of VA
    health care.
        The American Legion is proud to have worked on a number of
    these important issues with this Committee and would like to
    thank the Committee and your dedicated professional staff for
    all the work they did on the SOLVE Act. And while our position
    on all of these bills can be found in our submitted written
    testimony, I would like to spend the balance of my time today
    to talk about two measures before this Committee, appeals
    modernization and access to non-VA health care.
        Dollar for dollar, VA provides the most access and best
    health care in the United States when care is provided onsite
    at a VA campus. They consistently score several points above
    their civilian counterparts in satisfaction surveys and have
    won awards from J.D. Power and Associates year after year.
        When The American Legion worked with this Committee several
    years back to draft the legislation that would ultimately
    become the Choice Act, we did so as an emergency measure to
    ensure that veterans hidden away on secret wait lists were
    immediately provided the care that they had earned. We stated
    at the time and state here again today that we never supported
    Choice becoming a permanent program. The reason is because we
    know that VA already has every authority granted to it without
    Choice when it comes to providing contracted care to our
    Nation's veterans.
        Current community contract authority, Project ARCH, and
    other contracting vehicles already in statute allow VA to send
    a veteran into the local community whether the veteran lives
    across the street from the nearest VA facility or is 20, 40, or
    even a hundred miles away. Further, once VA has established a
    provider relationship with area offices, agreements are put in
    place to ensure that VA gets the medical records back from
    these doctors and clinics so that they can incorporate them
    into the veteran's history.
        This is an issue that The American Legion was very
    concerned about and the reason that the provision was in the
    original Act to require Choice contracted doctors to turn over
    the medical records before getting paid. But we all know how
    that worked out and we were back here a couple of months ago to
    repeal that provision because doctors simply refused to send
    the medical records to VA, resulting in VA being accused of
    slow paying and causing doctors to wrongly bill veterans and
    ultimately refusing to see any more VA patients until they got
    paid. Since it was more important to ensure veterans had the
    access to health care that they needed, and in an attempt to
    protect their credit, we all acquiesced and agreed to let the
    doctors get paid whether they have turned the records over or
    not.
        This is not the system we support. Best as we can tell, the
    only positive thing to come out of Choice was the emergency
    funding that came with it.
        The other major reform bills we are here to talk about
    today is the Appeals Modernization Act. VA came to Congress and
    said, we have a problem. The appeals process needs to be
    updated so that veterans will be served better. Congress said
    to VA, go make it so. VA gathered all of the stakeholders who
    work with veterans and do this work every day and said, how do
    we redesign the mouse trap?
        So, for the past several months, VA, The American Legion,
    my colleagues here at this witness table today, and several of
    our partner stakeholders worked together to produce a process
    that preserves the rights of veterans, gives claimants more
    options, helps VA organize and track appeals more effectively,
    and improves the quality of the decisions and notifications
    that claimants receive. This new proposed process requires
    Congressional approval and will ultimately save money. We have
    done our part and now it is your turn.
        I thank you and I look forward to any questions that this
    Committee may have.
        [The prepared statement of Mr. Celli follows:]
    Prepared Statement of Louis J. Celli, Jr., Director, National Veterans
            Affairs and Rehabilitation Division, The American Legion
        Chairman Isakson, Ranking Member Blumenthal, 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.
                                    s. 2049:
    To establish in the Department of Veterans Affairs a continuing medical
            education program for non-Department medical professionals who
            treat veterans and family members of veterans to increase
            knowledge and recognition of medical conditions common to
            veterans and family members of veterans, and for other
            purposes.
        S. 2049, would require the Secretary to establish in the Department
    of Veterans Affairs (VA) a Continuing Medical Education (CME) program
    for non-Department medical professionals who treat veterans and family
    members of veterans to increase knowledge and recognition of medical
    conditions common to veterans and family members of veterans, and for
    other purposes. This bill also will ensure effective treatment for
    veterans who seek their health care outside the VA health care system.
        This bill defines the term ``non-Department medical professional''
    to mean any of the following individuals, a doctor; a nurse; a
    physician assistant; a psychologist; a psychiatrist; or such other
    individuals as the Secretary considers appropriate. They must be
    licensed by an appropriate medical authority in the United States and
    in good standing and is not an employee of the Department of Veterans
    Affairs that provides care to veterans or family members of veterans
    under the laws administered by the Secretary of Veterans Affairs.
        This bill would provide education training for Non-VA medical
    professionals by giving them specialized training and resources to
    better serve veterans and their families. The program would also
    enhance Non-VA medical professional's knowledge of the medical, mental
    and physical conditions veterans experience based on their military
    service, which can represent a unique spectrum when compared to non-
    veterans.
        The American Legion urges Congress and VA to enact legislation and
    programs within the VA that will enhance, promote, restore or preserve
    benefits for veterans and their dependents, including, but not limited
    to, the following: timely access to quality VA health care; timely
    decisions on claims and receipt of earned benefits; and final resting
    places in national shrines and with lasting tributes that commemorates
    their service.\1\
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        \1\ American Legion resolution No. 23 (May 2016): Support for
    Veterans Quality of Life
    ---------------------------------------------------------------------------
        The American Legion supports S. 2049.
                     s. 2520: newborn care improvement act
    To improve the care provided by the Secretary of Veterans Affairs to
            newborn children
        Currently, VA covers newborn care for the first seven days after
    birth in a non-department facility for eligible women veterans who are
    receiving VA maternity care. Newborn care includes routine post-
    delivery care and all other medically necessary services according to
    generally accepted standards of medical practice. VA does not provide
    child delivery care in VA health care facilities, but rather refers
    women veterans outside the VA through contracted care. Under current
    law, VA only provides care for the first 7 days after birth, even if
    birth complications require continued care beyond that period.\2\
    Beyond 7 days, the cost of care is the responsibility of the veteran
    and not VA. If this bill is enacted into law, it would extend the
    timeframe VA would be responsible to 14 days.
    ---------------------------------------------------------------------------
        \2\ VA Women's Health Care FAQ
    ---------------------------------------------------------------------------
        In 2011, The American Legion conducted a Women Veterans Survey with
    3,012 women veterans in order to better understand their healthcare
    needs through VA. The survey found while there were improvements in the
    delivery of VA healthcare to women veterans, challenges still existed,
    including access to appropriate care at VA facilities.
        In 2012-2013, The American Legion's System Worth Saving Task Force
    report focused on women veterans' health care. The objectives of the
    report were to:

         Understand what perceptions and barriers prevent women
    veterans from enrolling in VA,
         Determine what quality-of-care challenges women veterans
    face with their VA health care, and to
         Provide recommendations and steps VA can take to improve
    these access barriers and quality-of-care challenges.

        While maternity and newborn care is primarily purchased outside VA,
    the Task Force found several medical centers had challenges finding
    hospitals in the area that would accept fee-basis for maternity care
    services due to VA's required use of the Medicare reimbursement rate.
    At other medical centers, fee-basis expenditures on women veterans'
    gender-specific services were not even available. There must be better
    information on what is needed if VA is to improve services.
        The American Legion recommends that the Business Office managers be
    required to track women veterans' gender-specific fee-basis
    expenditures.\3\ Furthermore, these expenditures should be rolled up by
    VA Central Office (VACO) and disseminated to stakeholders and for
    future needs within VA. All stakeholders must be able to assess weak
    spots in order to improve services.
    ---------------------------------------------------------------------------
        \3\ The American Legion System Worth Saving Report: Women Veterans
    Health Care-2013
    ---------------------------------------------------------------------------
        Currently, there is at least anecdotal evidence of problems meeting
    the full spectrum of neonatal care. If women veterans are to receive
    care during and following their pregnancies, it needs to be a full
    spectrum of care, and they should not be short changed in terms of
    necessary services.
        With this legislation, the amount of care female veterans can
    receive post-pregnancy would be improved and this is a needed fix.
        The American Legion is committed to working with VA in order to
    ensure that the needs of the current and future women veterans'
    population are met and the VA should provide full comprehensive health
    services for women veterans department wide.\4\
    ---------------------------------------------------------------------------
        \4\ American Legion Resolution No. 45: (Oct 2012): Women Veterans
    ---------------------------------------------------------------------------
        The American Legion supports S. 2520.
                 s. 2487: female veteran suicide prevention act
    To direct the Secretary of Veterans Affairs to identify mental health
            care and suicide prevention programs and metrics that are
            effective in treating women veterans as part of the evaluation
            of such programs by the Secretary
        This bill would improve female veteran suicide prevention programs
    within VA by amending Title 38 of the United States Code to direct the
    Secretary of Veterans Affairs to identify mental health care and
    suicide prevention programs and metrics that are effective in treating
    women veterans.
        This bill also strives to improve suicide prevention programs for
    female veterans enrolled in the VA healthcare system. According to
    figures in a 2015 study, suicide rates among women veterans rose 40
    percent during the decade from 2000-2010, compared to a more modest
    increase of 13 percent among the equivalent civilian cohort of women.
    \5\ Women veterans are nearly 6 times more likely than civilian women
    to commit suicide. This legislation seeks to address this imbalance.
    ---------------------------------------------------------------------------
        \5\ Changes in Suicide Mortality for Veterans and Non-Veterans by
    Gender and History of VHA Service Use, 2000-2010, Psychiatric Services
    May 1, 2015
    ---------------------------------------------------------------------------
        The American Legion continues to urge the President and Congress to
    expand and improve the care provided to veterans and servicemembers who
    have mental health issues or are at risk of suicide.\6\ This
    legislation to help women veterans who struggle with suicide is
    critical, as is in all legislation designed to help veterans struggling
    with mental health issues and suicide, be they male or female.
    ---------------------------------------------------------------------------
        \6\ American Legion Resolution No. 196: (Aug 2014): Suicide
    Prevention for American Veterans
    ---------------------------------------------------------------------------
        The American Legion supports S. 2487.
               s. 2679: helping veterans exposed to burn pits act
    To amend title 38, United States Code, to direct the Secretary of
            Veterans Affairs to establish within the Department of Veterans
            Affairs a center of excellence in the prevention, diagnosis,
            mitigation, treatment, and rehabilitation of health conditions
            relating to exposure to burn pits.
        Military personnel currently serving and those who have served in
    Iraq and Afghanistan have been exposed to a variety of potentially
    harmful and hazardous substances to include smoke from the burning
    waste on military installations. Items such as plastics, aerosols,
    electronic equipment, human waste, metal containers, tires, batteries
    are thrown into open pits doused with jet fuel and set ablaze resulting
    in hazardous smoke drifting into bases and living quarters. As a
    result, The American Legion has long been at the forefront of advocacy
    for veterans who have been exposed to environmental hazards as a result
    of their service to their country.
        The Helping Veterans Exposed to Burn Pits Act would create a
    Department of Veterans Affairs (VA) center for excellence for the
    prevention, diagnosis, mitigation, treatment, and rehabilitation of
    veteran's health-related conditions that have been associated with burn
    pits and environmental exposures.
        The American Legion supports legislation requiring VA to establish
    a national center for the research on the diagnosis and treatment of
    health conditions of the descendants of individuals exposed to toxic
    substances during service in the Armed Forces and establish an advisory
    board, responsible for advising the national center, determining health
    conditions that result from toxic exposure and to study and evaluate
    cases of exposure.\7\
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        \7\ American Legion Resolution No. 125: (Aug 2014): Environmental
    Exposures
    ---------------------------------------------------------------------------
        The American Legion supports S. 2679.
          s. 2883: appropriate care for disabled veterans act of 2016
    To amend title 38, United States Code, to extend the requirement of the
            Secretary of Veterans Affairs to submit a report on the
            capacity of the Department of Veterans Affairs to provide for
            the specialized treatment and rehabilitative needs of disabled
            veterans.
        This bill would ensure that severely disabled veterans receive
    quality health care from the VA. From 1996 through 2008, VA was
    required to report on the number of beds and employees who were
    treating severely injured veterans at VA healthcare facilities
    nationwide. The Appropriate Care for Disabled Veterans Act of 2016,
    would amend Title 38, United States Code (U.S.C.) 38 Sec. 1706--
    Management of health care: other requirements by reinstating the
    reporting requirement. This would provide Congressional oversight that
    is needed to ensure VA has the resources needed to meet the demand.
    S. 2883 would preserve benefits and ensure veterans with specialized
    needs to include spinal cord injuries or disorders, blindness,
    amputations, and mental disorders receive inpatient care at a
    Department of Veterans Affairs Health Care facility.
        The American Legion urges Congress and the Department of Veterans
    Affairs (VA) to enact legislation and programs within the VA that will
    enhance, promote, restore or preserve benefits for veterans and their
    dependents, including, but not limited to, the following: timely access
    to quality VA health care, timely decisions on claims and receipt of
    earned benefits, and final resting places in national shrines and with
    lasting tributes that commemorates their service.\8\
    ---------------------------------------------------------------------------
        \8\ American Legion Resolution No. 23: (May 2016): Support for
    Veteran Quality of Life
    ---------------------------------------------------------------------------
        The American Legion supports S. 2883.
                      s. 2888: janey ensminger act of 2016
    To amend the Public Health Service Act with respect to the Agency for
            Toxic Substances and Disease Registry's review and publication
            of illness and conditions relating to veterans stationed at
            Camp Lejeune, North Carolina, and their families.
        The American Legion has long been at the forefront of advocacy for
    veterans exposed to environmental hazards. In the last several years
    new concerns have been raised regarding contamination of stateside and
    international military installations such as groundwater contamination
    at Camp Lejeune, North Carolina. Toxic Groundwater at Camp Lejeune
    existed for decades, and veterans who served at that site from 1953
    through 1987 were found to be a higher risk for 15 medical conditions.
        In 2012, President Obama signed into the law The Honoring America's
    Veterans and Caring for Camp Lejeune Families Act of 2012, which
    requires VA to provide health care to veterans and families who have
    certain illnesses as a result of exposure to well water contaminated by
    human carcinogens. The Janey Ensminger Act of 2016, requires the VA to
    provide medical care for all diseases that can be scientifically
    associated to exposure to toxic chemicals found at Camp Lejeune. The
    bill also requires that the Agency for Toxic Substances and Disease
    Registry (ATSDR), an agency within the Centers for Disease Control and
    Prevention, review all significant scientific literature every three
    years to determine if links have been found between toxic exposures
    found at Camp Lejeune and added diseases and conditions.
        The American Legion supports legislation requiring VA to establish
    a national center for the research on the diagnosis and treatment of
    health conditions of the descendants of individuals exposed to toxic
    substances during service in the Armed Forces and establish an advisory
    board, responsible for advising the national center, determining health
    conditions that result from toxic exposure and to study and evaluate
    cases of exposure.\9\
    ---------------------------------------------------------------------------
        \9\ American Legion Resolution No. 125: (Aug 2014): Environmental
    Exposures
    ---------------------------------------------------------------------------
        The American Legion supports S. 2888.
                   s. 2896: care veterans deserve act of 2016
    To eliminate the sunset date for the Veterans Choice Program of the
            Department of Veterans Affairs, to expand eligibility for such
            program, and to extend certain operating hours for pharmacies
            and medical facilities of the Department.
        The American Legion appreciates Senator McCain's efforts to improve
    the provision of health care for America's veterans. However, one of
    the central, core elements of the bill expands care in the community in
    a way that is concerning. While The American Legion appreciates certain
    provisions of the bill such as:

         Providing enrolled veterans in the VA healthcare system
    access to walk-in-clinics either inside the VA or outside the VA
    through contracted health care clinics;
         Expanding VA operating hours to nights, weekends, and
    holidays to accommodate veterans schedules;
         Opening VA hospitals to community providers who volunteer
    their time for the purpose of treating veterans;
         Implementing best-practice peer-reviews by encouraging VA
    to partner with some of the best hospital networks in the Nation such
    as the Cleveland Clinic and the Mayo Clinic by having VA prioritize a
    review of VA hospitals with the worst wait-times or health outcomes
    and;
         Expand telemedicine services at the VA by allowing VA
    health care professionals that are licensed, registered or certified in
    a state to use telemedicine to provide health care treatments and
    therapies to veterans residing in other states.

        The concerns with the unrestricted expansion of the Choice program
    remains a critical concern.
        While many veterans initially clamored for ``more Choice'' as a
    solution to scheduling problems within the VA healthcare system, once
    this program was implemented, most have not found it to be a solution,
    indeed, they have found it to create as many problems as it solves. The
    American Legion operates the System Worth Saving Task Force, which has
    annually traveled the country examining up close the delivery of
    healthcare to veterans for over a decade. What we have found,
    interacting with veterans, is that many of the problems veterans
    encountered with scheduling appointments in VA are mirrored in the
    civilian community outside VA. The solutions in many areas may not be
    out in the private sector, and opening unfettered access to that
    civilian healthcare system may create more problems than it solves.
    Recent reporting, such as the National Public Radio story last week
    noted ``thousands of veterans referred to the Choice program are
    returning to VA for care--sometimes because the program couldn't find a
    doctor for them'' or ``because the private doctor they were told to see
    was too far away.'' \10\
    ---------------------------------------------------------------------------
        \10\ NPR--May 17, 2016
    ---------------------------------------------------------------------------
        The American Legion strongly believes in a robust VA healthcare
    system that treats the unique needs of veterans who have served their
    country. Veterans should be provided with the option of receiving care
    in the community as a supplement to VA health care and not to supplant
    VA care. The American Legion supported the Choice program, and
    continues to support the ability to supplement VA care with care in the
    community where necessary as a means to augment the VA care, but
    wholesale opening of the program to include use of Choice without
    restriction means pursuing a ``solution'' we have already seen is not
    addressing the problems accessing care.
        As predicted by The American Legion, sending patients off VA
    campuses to community providers absent well-crafted contracts such as
    those used for Project ARCH and PC3 has led to inadequate compliance by
    local physicians to return treatment records to VA following care
    provided by Choice.
        When the Choice legislation was being developed, The American
    Legion insisted that any doctor treating a referred veteran have access
    to the veterans medical records so that doctors would have a complete
    history of the veteran's medical history and be able to provide a
    diagnosis based on a holistic understanding of the patients medical
    profile. This is important for a litany of reasons, not the least of
    which includes the risk of harmful drug interaction, possible
    overmedication, and a better understanding of the patients previous
    military history--all important factors in wellness.
        Also, The American Legion was adamant that any treating physician
    contracted through Choice had a responsibility to return treatment
    records to be included in the patients VA medical file so that VA could
    maintain a complete and up-to-date medical record on their patients. We
    believed that safeguarding of the veterans medical records was so
    important, that we helped craft a provision be included in the language
    that prevented VA from paying physicians until they turned over the
    treatment records to VA. Sadly, a few months back, The American Legion
    was forced to acquiesce our position in favor of paying doctors whether
    they turned over the medical records or not, because doctors just
    weren't sending the records--it just wasn't that important to them, and
    when VA refused to pay, they pointed the finger at VA and blamed VA for
    not paying them, ultimately billing the veterans and refusing to see
    any more VA-referred patients until they got paid. Since it was more
    important that veterans had access to sufficient medical care and not
    have their credit damaged, The American Legion supported repealing the
    current provision.
        This, among other reasons including unsustainable cost, is why
    Choice is not the answer. The equation is simple; a dramatic increase
    in cost is guaranteed to result in an increased financial burden to
    veterans using VA care which will include higher co-pays, premiums,
    deductions, and other out-of-pocket expenses currently suffered by non-
    VA healthcare programs.
        The American Legion opposes S. 2896.
     s. 2919: state outreach for local veterans employment (solve) act of
                                      2016
    To provide greater deference to States in carrying out the Disabled
            Veterans' Outreach Program and employing local veterans'
            employment representatives.
        This legislation would empower states with additional flexibility
    and autonomy to better utilize existing Federal Department of Labor
    (DOL) veteran's employment grants. While every state will have to
    continue to submit their Jobs for Veterans State Grants (JVSG) plans to
    DOL for review and approval, this legislation would ease the plan
    approval process for states while allowing each respective Governor to
    decide which state agency or department should administer the grants.
    The idea is to allow the Governors to place the JVSG funds in their
    state veteran's commission, which is typically led by veterans who are
    more likely to care about veterans and certainly understand the
    struggles and issues facing our Nation's heroes and their families.
        Further, it allows Governors to tailor and individualize what
    constitutes a ``significant barrier to employment'' (SBE) within their
    state. Understanding that SBE's are sometimes geographic, allowing or
    affording each Governor the ability to recognize and authorize an SBE
    for their respective state goes a long way to assist veterans seeking
    employment in a unique job market. Knowing how to effectively work in
    the fishing industry may be a very important skill set to possess in
    Alaska, Hawaii or Louisiana but not necessarily important to the job
    market in Montana, Ohio or Nevada; making sense to give states the
    ability and authority to create or add an additional SBE solely for
    their unique and specific job market.
        This legislation is encouraging states to coordinate and co-locate
    with other state programs to efficiently use Federal and state
    veteran's resources together to benefit our servicemen and women. The
    SOLVE Act is a no-cost, common sense bill which encourages efficiency
    and good governance in the pursuit of increased employment for our
    Nation's veterans.
        The American Legion supports the Department of Labor's Assistant
    Secretary for Veterans' Employment and Training Service being required
    to review all Department of Labor employment and training programs in
    order to ensure that all programs provide priority services to
    veterans.\11\
    ---------------------------------------------------------------------------
        \11\ American Legion Resolution No. 336: (Aug 2014): Support the
    Restoration of the Duties and Responsibilities of the DVOP and LVER
    ---------------------------------------------------------------------------
        The American Legion supports S. 2919.
                               discussion draft:
    To reform the rights and processes relating to appeals of decisions
            regarding claims for benefits under the laws administered by
            the Secretary 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 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 about
    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 the discussion draft.
               discussion draft: construction reform act of 2016
    To make certain improvements in the administration of Department
            medical facility construction projects.
        The Construction Reform Act of 2016 proposes a new subsection to 38
    U.S.C. Sec. 8103 by requiring the Secretary to enter into an agreement
    with an appropriate non-Department entity for the purpose of providing
    full project management services for any super construction project.
    Super construction projects are defined as ``a project for the
    construction, alteration, or acquisition of a medical facility
    involving a total expenditure of more than $100 million.'' Under the
    provisions of this section, the Secretary may not obligate or expend
    funds for advance planning or design for any super construction
    project, until the date that is 60 days after the date on which the
    Secretary submits to the Committees on Veterans' Affairs and the
    Committees on Appropriations of the Senate and House of Representatives
    notice of such obligation or expenditure.
        The American Legion is a strong supporter of legislation and
    oversight to improve future VA construction programs. The American
    Legion also urges VA to consider all available options, both within the
    agency and externally, including options such as the Army Corps of
    Engineers, to ensure major construction programs are completed on time
    and within budget.\12\
    ---------------------------------------------------------------------------
        \12\ American Legion Resolution No. 24: (May 2015): Department of
    Veterans Affairs Construction Programs
    ---------------------------------------------------------------------------
        The American Legion supports the discussion draft.
                               discussion draft:
    To modify requirements under which the Department is required to
            provide compensation and pension examinations to veterans
            seeking disability benefits.
        The current disability compensation program has proven to be a fair
    and equitable manner in which to indemnify veterans suffering
    disabilities that have been incurred or aggravated from their military
    service. The American Legion is totally supportive of every benefit
    that is currently provided to veterans for their contributions to their
    country.
        This proposal seeks to amend 38 U.S.C. Sec. 5103A(d) to clarify the
    evidentiary threshold for which VA, under its duty to assist
    obligation, is required to request a medical examination for
    compensation claims. This amendment would clarify section 5103A(d)(2)
    to require, prior to providing a medical examination, the existence of
    objective evidence establishing that the veteran experienced an event,
    injury, or disease during military service. VA would still consider lay
    evidence as sufficient to show a current disability or persistent
    symptoms of a disability. However, except in special circumstances,
    objective evidence such as medical records, service records, accident
    reports, could also be of record to trigger a medical examination. The
    American Legion believes a veteran should be afforded a compensation
    and pension (C&P) examination whenever new evidence is submitted.
        This discussion draft will result in making it more difficult for a
    claimant to receive a VA examination. The American Legion opposes any
    administrative or legislative proposal to dilute or eliminate any
    provision of the disability compensation program.\13\
    ---------------------------------------------------------------------------
        \13\ American Legion Resolution No. 18: (Aug 2014): Department of
    Veterans Affairs Disability Compensation
    ---------------------------------------------------------------------------
        The American Legion opposes the discussion draft.
            discussion draft: veterans mobility safety act of 2016:
    A bill to amend title 38, United States Code, to make certain
            improvements in the provision of automobiles and adaptive
            equipment by the Department of Veterans Affairs.
        This discussion draft requires a vendor of automotive adaptive
    equipment to be certified by a qualified organization or the
    manufacturer of the adaptive equipment. Through the VA Automotive
    Adaptive Equipment (AAE) program, VA provides physically challenged
    persons the necessary equipment to safely operate their vehicle on the
    country's roadways. Through the Department of Rehabilitation and
    Prosthetic Services VA provides the necessary equipment such as:
    platform wheelchair lifts, under vehicle lifts; power door openers;
    lowered floors/raised roofs; raised doors; hand controls; left foot gas
    pedals; reduced effort and zero effort steering and braking; and
    digital driving systems.
        Based on our research, The American Legion has not found any issues
    with veterans obtaining automobile adaptive equipment or automobile
    grants and does not feel that there is a need at this time for
    additional policy. The American Legion is continuing to research this
    issue and should information change would consider working to develop a
    resolution with our membership to provide specific policy guidance if
    there was need for improvement.
        The American Legion does not have a position on the discussion
    draft at this time.
                                discussion draft
    To expand eligibility for hospital care and medical services under
            section 101 of the Veterans Access, Choice, and Accountability
            Act of 2014 to include veterans in receipt of health services
            under the pilot program of the Department of Veterans Affairs
            for rural veterans.
        One in every three veterans treated by the VA lives in rural
    communities. Rural and highly rural veterans have been underserved due
    to a lack of access to health care which can be attributed to several
    factors to include lack of health care insurance, little awareness of
    VA benefits and services, greater travel distances, and an inadequate
    number of primary and specialty health care providers that work in
    rural communities.
        This discussion draft would grandfather eligible veterans into the
    Project Access Received Closer to Home (Project ARCH) program by
    setting up special provider agreements with current Project ARCH
    providers to guarantee continuity of care for veterans who live in
    rural communities.
        The American Legion agrees that veterans should be grandfathered
    into the Project ARCH Program however, the bill as written, would not
    only grandfather current and past users of Project ARCH, but also
    includes veterans who have relocated out of the Project ARCH pilot
    program catchment area and into regions of the country that are not
    rural or highly rural. In order to cure the unintended consequences of
    the bill as written. The American Legion asks that the language of
    Section 1(a)(3)(E) be amended to read ``has received health services
    under the pilot program under section 403 of the Veterans' Mental
    Health and Other Care Improvements Act of 2008 (Public Law 110-387; 38
    U.S.C. 1703 note) and resides in a location described in section (b)(2)
    of such section.
        The American Legion urges Congress and the VA to enact legislation
    and programs within VA that will enhance, promote, restore, or preserve
    benefits for veterans and their dependents, to include timely access to
    quality VA health care.\14\
    ---------------------------------------------------------------------------
        \14\ American Legion Resolution No. 23: (May 2016): Support for
    Veteran Quality of Life
    ---------------------------------------------------------------------------
        The American Legion would support this discussion draft if amended
    according to our remarks above.
                                   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.

        Chairman Isakson. Thank you, Mr. Celli.
        Mr. Atizado.

      STATEMENT OF ADRIAN M. ATIZADO, DEPUTY NATIONAL LEGISLATIVE
                  DIRECTOR, DISABLED AMERICAN VETERANS

        Mr. Atizado. Chairman Isakson, Ranking Member Blumenthal,
    Members of the Committee, I want to thank you for inviting DAV
    to testify at this hearing to present our views on behalf of
    our 1.3 million wartime service-disabled veterans.
        You know, DAV supports many of the bills on today's agenda,
    which follow our organization's single purpose, which is to
    empower veterans to lead high-quality lives with respect and
    dignity. So, for example, DAV supports S. 2520, the Newborn
    Care Improvement Act, and S. 2487, the Female Veteran Suicide
    Prevention Act. Both these bills address key recommendations in
    DAV's 2014 report on women veterans called ``The Long Journey
    Home.''
        Gender-specific care is an issue that will remain at the
    forefront of DAV in our advocacy work, and we applaud Senators
    Klobuchar, Tillis, Boxer, Blumenthal, as well as this Committee
    and other supporters of these bills for their strong commitment
    to hard work to meet the needs of women veterans.
        DAV also supports S. 2888, a bill that would expand the
    list of conditions for which veterans may be suffering from due
    to their exposure to contaminated waters at Camp Lejeune. We do
    issue a concern on this bill, Mr. Chairman. Our concern is that
    the burden of care for affected non-veterans rests with VA, the
    family members. The costs of care in other cases of significant
    environmental exposures are the assigned responsibility of the
    Administrator of the Agency of Toxic Substances and Disease
    Registry under the Comprehensive Environment Response and
    Compensation Liability Act of 1980, also known as the Superfund
    Act. We do ask this Committee consider supplementing VA's
    appropriations and funding for this program by requiring the
    Administrator and possibly the Navy or the Marine Corps to
    reimburse VA for medical services funds expended for this
    program.
        DAV also supports Sections 4, 5, and 6 of S. 2896, the Care
    Veterans Deserve Act of 2016. Section 4 would expand veterans'
    access to care while preserving the quality of such care
    through telemedicine, which we believe is currently and
    unnecessarily constrained for VA.
        Section 5 would expand the operating hours of VA
    pharmacies. We believe it should be commensurate with extended
    operating hours of outpatient clinics.
        Section 6 would reduce the variability of the available
    best practices across the VA health care system. I know this is
    near and dear to Deputy Gibson's heart as well as Secretary
    McDonald and Under Secretary Shulkin.
        DAV is, however, unable to support Section 2, which would
    make permanent the authority underlying the Choice program. As
    this Committee is aware and as my colleagues have spoken about,
    there are numerous issues regarding the Choice program that is
    inextricably intertwined with existing policy that this measure
    would not address.
        Regarding Section 3, we urge the Committee to clarify the
    term ``walk-in clinics,'' as there are considerable cost and
    quality of care implications at play.
        I would like to now turn to the VA Appeals Modernization
    Act of 2016. Mr. Chairman, the draft appeals modernization
    legislation before the Committee is the result of a truly
    collaborative relationship among the Veterans Benefits
    Administration, or VBA, the Board of Veterans Appeals, and 11
    major stakeholder organizations, including DAV. Under the
    proposed new appeals framework, veterans who disagree with
    their claims decision would have a new set of options at VBA
    and the Board to seek more favorable outcomes. If they remain
    unsatisfied with the outcomes from one option, they could
    continue to pursue one of the other options while still
    preserving their earliest effective date for benefits.
        Overall, we support the draft bill, which could improve the
    appeals process while protecting due process rights of
    veterans, although there are still some important issues to be
    addressed. For example, clarity is needed on how the Board will
    handle new evidence introduced outside the limited
    opportunities under this bill. Will the Board consider such
    evidence? Will they ignore it? Or will they remand it back to
    VBA for readjudication?
        We are also concerned about how the Board and VBA will
    address the current appeals backlog and whether adequate
    resources will be requested and provided to meet new staffing,
    infrastructure, and IT requirements to make the new system
    effective.
        Finally, Mr. Chairman, on the topic of claims process, DAV
    strongly opposes the draft bill that would raise the
    evidentiary threshold for VA to provide compensation and
    pension examinations. The policy espoused in this draft runs
    counter to the uniquely pro-claimant nature of VA's
    adjudicatory system exemplified by VA's statutory duty to
    assist.
        This concludes my statement, Mr. Chairman. I would be happy
    to work with you, with this Committee, on those legislation
    that we support and to resolve any issues that we have raised
    in our testimony. Thank you.
        [The prepared statement of Mr. Atizado follows:]
           Prepared Statement of Adrian M. Atizado, Deputy National
                           Legislative Director, DAV
        Chairman Isakson, Ranking Member Blumenthal, and Members of the
    Committee: Thank you for inviting DAV (Disabled American Veterans) to
    testify at this legislative hearing, and to present our views on the
    bills under consideration. 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.
         s. 2049--to establish in the department of veterans affairs a
        continuing medical education program for non-department medical
      professionals who treat veterans and family members of veterans to
      increase knowledge and recognition of medical conditions common to
                    veterans and family members of veterans
        This bill if enacted would establish a web-based Department of
    Veterans Affairs (VA) Continuing Medical Education Program for non-VA
    medical professionals. This program would be intended to provide
    certain private sector medical professionals who treat veterans
    continuing education credits to learn about and recognize conditions
    common in veterans and their family members, and would improve outreach
    to veterans and families.
        Under the bill, training would consist of identifying and treating
    common mental and physical conditions of veterans and their family
    members. As determined by the VA Secretary, it would also convey
    educational information about programs and benefits and other matters
    considered appropriate, available to veterans through VA, the
    Department of Labor, and other Federal and non-Federal agencies. If
    enacted, the program would be authorized for five years, and would be
    effective on enactment.
        The bill would require the Secretary to accredit the program in as
    many state licensing authorities as possible, and from such medical
    credentialing organizations as the Secretary considered appropriate.
    The curriculum and number of hours of credit would be determined by the
    Secretary. The program would be made available at no cost for those
    participating.
        Under current law, the Committee should be aware that VA does not
    provide continuing education credits for its own professional
    workforce, but places the burden on the individuals involved to
    maintain their qualifications and licensure to practice in VA by
    obtaining their own continuing education requirements. Current law
    provides a discretionary authority for VA to reimburse VA physicians
    not more than $1,000 per year for obtaining continuing education
    credits, but does not do so for other professional disciplines,
    including those listed in this bill. VA professionals would be barred
    from participating in this program, which raises an equity and fairness
    question in policy. Also, if thousands or even tens of thousands of
    private practitioners decided to use the program proposed by this act,
    it could become the source of a significant shift in funding from the
    direct care provided to veterans within the VA, while placing
    substantial new pressure on VA's already overburdened information
    technology system. Finally, setting up this national program could be
    administratively burdensome and costly for VA, diverting human
    resources and academic activities away from where they are needed now.
    We ask the Committee to address these issues with respect to this bill.
              s. 2487, the female veterans suicide prevention act
        If enacted, this measure would amend currently required VA
    evaluations of its mental health and suicide prevention programs by
    adding a specific focus to include the needs of women veterans. Also,
    the bill would require an independent contractor to VA to include in
    its annual reports to VA the mental health and suicide prevention
    programs that are most effective and have the highest satisfaction
    rates among women veterans. This bill is in agreement with DAV
    Resolutions 039 and 040, which support program improvements and
    enhanced resources for VA mental health programs, and improvements in
    medical services for women veterans. The bill is also consistent with
    recommendations from DAV's 2014 Report, Women Veterans: The Long
    Journey Home. For these reasons DAV is pleased to support enactment of
    this bill.
                   s. 2520, the newborn care improvement act
        This measure would authorize the Secretary to extend from 7 to 14
    days of post-delivery care services, covering all care and services
    that a newborn child of an enrolled veteran would require. The bill
    also would require a report on the health services provided to newborns
    during the preceding fiscal year, including the number of newborns
    cared for during the period. DAV has received Resolution No. 104 from
    our membership, which calls for support of enhanced medical services
    and benefits for women veterans. Consequently DAV supports enactment of
    this measure.
        As a technical matter, the bill's requirement of VA's submission to
    Congress of a new annual report about the care of newborns not later
    than 31 days after the end of each fiscal year would likely be
    administratively daunting; therefore, DAV recommends the Committee
    consider an amendment to the bill allowing for a more reasonable period
    to permit orderly data collection and internal review by VA.
             s. 2679, the helping veterans exposed to burn pits act
        This bill would mandate VA to establish a center of excellence
    focused on diagnosis, prevention, treatment, rehabilitation, and
    research of health conditions related to veterans' prior exposures to
    burn pits and other environmental exposures while they served in Iraq
    and Afghanistan. The bill would provide criteria and standards for
    selection of this new center, and would specify a number of required
    qualifications, abilities, accomplishments and relationships of the VA
    facility selected to be so designated. The bill would authorize an
    appropriation of $30 million annually for the initial five years of
    operation of this center.
        DAV members have approved Resolution No. 112, calling for
    improvements in care and benefits for veterans exposed to environmental
    hazards in deployment, and DAV Resolution 222, calling for
    Congressional support of a robust VA Medical and Prosthetic Research
    Program. Therefore, DAV supports the intent of this bill. Nevertheless,
    we recommend the Committee carefully consider the funding level
    proposed in light of the statutory limitations applied to startup
    funding of other Congressionally mandated VA specialized centers of
    excellence, such as its Geriatric Research, Education and Clinical
    Centers, and Mental Illness Research, Education and Clinical Centers.
    DAV would be deeply troubled should funds for this new center be taken
    from the Medical and Prosthetic Research appropriation. Finally, DAV
    recommends the Committee consider an amendment to the bill to provide a
    Congressional reporting requirement to evaluate the center's operations
    and effectiveness, given the level of funding this bill would make
    available to the center, and considering the importance of its mission
    to veterans who have experienced health consequences from exposure to
    environmental hazards while serving.
        s. 2883, the appropriate care for disabled veterans act of 2016
        This bipartisan measure would be intended to ensure VA maintains
    adequate capacity to deliver the best, comprehensive specialty care
    services to the most vulnerable veteran populations served by VA. It
    would reinstate a reporting requirement that expired in 2008 for the VA
    to report on its capacity to provide specialized services in areas such
    as blindness, burns, amputation, Traumatic Brain Injury, spinal cord
    injury and dysfunction, mental illness, and long-term services and
    supports.
        Since 2008, there have been continuous reports of bed closures,
    staffing shortages, and delayed and denied access to these specialized
    care units. This bill would ensure that VA is held accountable for its
    mandated responsibility to care for veterans with the most severe
    disabilities, including catastrophic injuries and diseases.
        DAV supports this legislation based on Resolution No. 126, which
    calls for the preservation of VA's mission and role as a provider of
    specialized services to veterans ill and injured due to military
    service.
                    s. 2888, the janey ensminger act of 2016
        This bill if enacted would require the Secretary, acting through
    the Administrator of the Agency for Toxic Substances and Disease
    Registry, under the Public Health Service, to periodically review the
    scientific literature relevant to the relationship between employment
    or residence of individuals at Camp Lejeune, North Carolina, for no
    fewer than 30 days during the period beginning on August 1, 1953 and
    ending on December 21, 1987, and to list the specific illnesses or
    conditions incurred by these individuals.
        The bill would require the Administrator to determine each illness
    or condition for which evidence exists that exposure could be the cause
    of that illness or condition. If found, the Administrator would be
    required to categorize the connection of exposure to specific illness
    or condition as ``sufficient,'' ``modest,'' ``limited,'' or ``no more
    than limited.'' When completed, a listing of all such illnesses and
    conditions would be published in the Federal Register, accompanied by
    bibliographic citations, and posted on the Department of Health and
    Human Services' website. The bill would require the listing to be
    periodically updated as new conditions or illnesses were shown to be
    connected to exposure.
        For individuals whose illness or condition was determined to be
    ``sufficient or modest'' in its connection to prior exposure to a toxic
    substance as documented by the listing mandated by this bill, VA would
    be required to provide the individual hospital care and medical
    services to treat the illness or condition.
        The bill would also authorize continuation of care by VA to any
    veteran or other person under VA care at the time of enactment who
    lived, worked, or served at Camp Lejeune during the prescribed period,
    notwithstanding the absence of evidence the illness or condition being
    treated was connected to exposure under criteria otherwise required by
    this bill.
        The bill would require a transfer of $4 million over a period of
    two fiscal years from VA's Medical Support and Compliance appropriation
    to the VA's Chief Business Office and Financial Services Center for the
    purpose of continuing their information technology work associated with
    the Camp Lejeune Family Member Program.
        The delegates to our most recent National Convention adopted two
    resolutions related to this bill. Resolution No. 112 urges
    congressional oversight and Federal vigilance to provide for research,
    health care and improved surveillance of disabling conditions in
    veterans resulting from military toxic and environmental hazards
    exposure. Also, Resolution No. 114 calls for eliminating VA health care
    out-of-pocket costs for service-connected disabled veterans.
    Accordingly, we support the provision in this measure that expands the
    list of conditions for which veterans may be suffering from due to
    their exposure to contaminated waters at Camp Lejeune and that these
    veterans will not be charged a copayment for treatment associated.
        However, we remain concerned that the burden of care for affected
    non-veterans rests with VA through its Chief Business Office Purchased
    Care as an expanded responsibility in contravention of the requirement
    that in other cases of significant environmental toxic exposures, the
    costs of care are the assigned responsibility of the Administrator of
    the Agency for Toxic Substances and Disease Registry, under the
    Comprehensive Environment Response, Compensation, and Liability Act of
    1980, also known as the ``Superfund Act.'' As the Committee considers
    this bill, we ask that it also consider requiring the Administrator,
    the Navy or the Marine Corps to reimburse VA's Medical Services
    appropriation the cost to carry out the bill's purposes in treating
    those who were harmed by this environmental exposure at Camp Lejeune.
                 s. 2896, the care veterans deserve act of 2016
        Section 2 of this measure would make permanent the Veterans Choice
    Program, established by Section 101 of the Veterans Access, Choice, and
    Accountability Act of 2014 (VACAA), Public Law 113-146, and would make
    all veterans enrolled for VA health care eligible for the Veterans
    Choice Program.
        When the Senate passed VACAA, DAV commended this Committee for
    quickly passing bipartisan legislation in response to the crisis in
    accessing VA health care. DAV committed itself to continue working with
    the Senate, House and VA to help fine tune, strengthen and coalesce
    around effective administrative, regulatory and legislative changes
    needed to address VA's capacity and access problems.
        We believed then as we do now in strong care coordination
    provisions to ensure the best health outcomes for all veterans
    receiving care paid for by VA, regardless of the provider of that care.
    Equally important then as now, when expanding VA's mandate to provide
    care through non-VA providers, Congress must ensure that it
    appropriates all the additional funding needed without taking away
    funding from VA's medical centers and clinics that are already at or
    over capacity.
        Our shared goal must be to ensure that VA programs that purchase
    care in the community function as seamlessly and efficiently together
    with a robust, safe, efficient, high-quality VA health system that
    provides the best health outcomes. To accomplish this goal, Congress
    must address the misalignment among resources, demand and authorities
    that allow VA to provide hospital care and medical services. Because
    Section 2 only addresses demand by expanding it into the private
    sector, we are unable to offer our support.
        DAV Resolution No. 105 opposes any legislative proposal that would
    have the effect of privatizing VA health care and diminishing the VA
    health care system. In addition, DAV Resolution No. 107 calls on
    Congress to provide necessary authorities, sufficient resources and
    staff to reduce waiting times so ill and injured veterans can realize
    timely access to all medically necessary services from the VA health
    care system.
        Section 3 would require VA to contract with a national chain of
    walk-in clinics to provide hospital care and medical services to
    veterans enrolled in VA health care. Information on the care and
    services provided would be automatically transmitted to VA by such
    clinics, and no copayment or prior authorization would be required for
    care veterans would receive.
        Notably, the measure does not define a walk-in clinic. If a walk-in
    clinic were simply a health care provider that allows a patient without
    an appointment to be seen by a provider, this could be further defined
    as a retail clinic (such as MinuteClinics), an urgent care clinic, or
    even a freestanding or hospital emergency department (ED). When
    considering this measure, we recommend the Committee clarify the term
    due to considerable cost implications to taxpayers and quality of care
    implications for veterans who would seek these services.
        A March 2016 study published in Health Affairs examined insurance
    claims data for three million patients from 2010 to 2012 who were
    treated for certain simple, acute medical problems. Despite the lower
    per-visit cost of a retail clinic instead of an ED or physician's
    office, the researchers found that overall spending for the retail
    clinic cohort increased.\1\ The increased spending from higher use of
    services outweighed the savings that resulted when patients went to
    less expensive retail clinics instead of a physician's office or an ED.
    ---------------------------------------------------------------------------
        \1\ ``Retail Clinic Visits For Low-Acuity Conditions Increase
    Utilization And Spending,'' Ashwood, Gaynor, et al. March 24, 2016,
    Accessible at: http://content.healthaffairs.org/content/35/3/449
    ---------------------------------------------------------------------------
        Moreover, the RAND Corporation found in 2010 that retail clinics
    were less likely to be located in medically underserved areas, but were
    mostly quite urban. We recommend the Committee consider the
    appropriateness of the provision prohibiting VA from requiring the
    expansion of walk-in clinic locations, which would limit veterans'
    access to care.
        In reviewing the merits of this bill, in addition to its cost, we
    urge the Committee consider the formal positions taken on retail
    clinics of the American Academy of Family Physicians,\2\ American
    Academy of Pediatrics,\3\ American College of Physicians, American
    Academy of Family Practitioners,\4\ and the American Medical
    Association. \5\ Three general concerns emerge: (1) quality and safety
    of care, (2) impact on coordination and continuity of care; and (3)
    scope, oversight, and interaction with traditional primary care
    providers.
    ---------------------------------------------------------------------------
        \2\ http://www.aafp.org/about/policies/all/retail-clinics.html
        \3\ http://pediatrics.aappublications.org/content/133/3/e794
        \4\ https://www.acponline.org/acp-newsroom/retail-clinics-best-
    used-as-backup-to-a-patients-primary-care-physician
        \5\ https://www.ama-assn.org/ssl3/ecomm/
    PolicyFinderForm.pl?site=www.ama-assn.org&uri=/resources/html/
    PolicyFinder/policyfiles/DIR/D-160.986.HTM
    ---------------------------------------------------------------------------
        However, if the walk-in clinics referred to by this measure are
    urgent care clinics, DAV supports the intent of the provision and urges
    the Committee make urgent care part of VA's medical benefits package.
    Urgent care fills the gap between emergency care and regular
    appointment-based outpatient care, by enabling immediate access.
    Developing a nationwide system of urgent care at existing VA clinics
    and affording veterans the opportunity to receive urgent care from
    smaller urgent care clinics around the country would alleviate much of
    the pressure on outpatient clinics.
        As mentioned above, we recommend the Committee consider the
    appropriateness of the provision explicitly prohibiting VA from
    requiring the expansion of urgent clinic locations, which would limit
    veterans' access to care. VA should be afforded the opportunity to
    tailor access to this type of care that best meets veterans' needs and
    enhancing the VA health care system.
        DAV Resolution No. 114 calls for legislation to eliminate or reduce
    VA health care out-of-pocket costs for service-connected disabled
    veterans; thus we support the provision that would not require veterans
    to pay a copayment for services received under Section 3. However,
    DAV's primary concern with Section 3 is the proposed policy itself,
    which could ultimately lead to fragmentation of veterans' health care
    unless it is coordinated with VA primary care providers. Similar to our
    position on section 2 above, DAV cannot support this proposal.
        Section 4 would enable a health care professional of the VA,
    including a contract provider, who is authorized to provide health care
    by or through VA, and who is licensed, registered, or certified in a
    state to practice his or her profession at any location in any state,
    regardless of where the professional or veteran is located, to treat a
    veteran through telemedicine. If enacted the bill would permit
    telemedicine treatment regardless of whether the professional or the
    patient were physically located in a federally owned facility.
        This section would also require VA to report to Congress one year
    following its implementation on a variety of aspects of VA's
    telemedicine program, including patient and provider satisfaction,
    access, productivity, waiting times and other information related to
    appointments made and completed through telemedicine.
        Delegates to our most recent DAV National Convention approved
    Resolution No. 126. Among other priorities, this resolution calls on VA
    and Congress to establish and sustain effective telemedicine programs
    as an aid to veterans' access to VA health care, particularly in the
    case of rural and remote populations. Our delegates also approved
    Resolution No. 226, fully supporting the right of rural veterans to be
    served by VA. Section 4 of this measure is consistent with these
    resolutions and DAV policy; therefore, DAV strongly supports this
    section and appreciates the sponsor's intention to promote the use of
    telemedicine in the care and treatment of veterans.
     s. 2919, the state outreach for local veterans employment (solve) act
                                    of 2016
        This measure seeks to boost proficiency and controls in the pursuit
    of increasing appropriate and sustainable employment opportunities for
    our Nation's veterans. The bill would increase individual states'
    influence and flexibility to maximize existing Federal Department of
    Labor (DOL) veterans' employment grants to support the work of Disabled
    Veterans' Outreach Program Specialists (DVOPS) and Local Veterans'
    Employment Representatives (LVERS) to provide greater assistance to
    veterans seeking employment services.
        Specifically, section 3 of the bill would allow state Governors to
    select the particular state agency, such as a state veterans' affairs
    agency, rather than a state's department of labor exclusively, to
    administer these programs. It encourages states to co-locate DVOPS and
    LVERS at one or more of the existing American Job Centers for efficient
    synchronization.
        The bill encourages each state to tailor their annual plan to meet
    the employment and training needs of veterans in their state. As part
    of a State Governors annual plan, they would submit proposals for
    additional individual barriers to employment they view as significant
    enough for DVOP and LVER access. This would allow additional categories
    of veterans to receive services. For example, an individual barrier
    could be proposed in the case of veterans suffering from PTSD who have
    difficulty negotiating numerous bridges around their locality to obtain
    employment services, VA health care and job interviews. Administering
    employment and VA health care services to the increased number of
    geriatric veterans in Connecticut is a challenge.
        The measure also directs DOL to only disapprove certain parts of
    state plans, rather than rejecting plans in their entirety. In the case
    where certain sections of a plan receive DOL approval, it directs DOL
    to submit an explanation to the state for the rejected section.
        DAV has no resolution and no position on the specific issue this
    measure seeks to address. However, DAV Resolution No. 134 expresses a
    continuing concern our organization has regarding the diversion of
    DVOPS/LVERs from their prime mission to assist veterans with their
    employment and training needs. We are pleased the sponsor is working
    with us to ensure this measure would avoid or otherwise protect against
    such occurrences.
        Moreover, we are aware DOL is executing a number of initiatives
    that may be adversely impacted by enactment of the bill as currently
    written. We urge the sponsor, this Committee and DOL to work together
    to ensure the final outcome will enhance state programs to better
    assist veterans with their employment and training needs.
        Ensuring that our Nation's ill and injured wartime veterans receive
    proficient opportunities for substantial gainful employment is DAV's
    concern. Wartime veterans who have sacrificed as a result of their
    military service need competent guidance and services at all levels to
    achieve maximum employability
     draft bill, to reform the rights and processes relating to appeals of
    decisions regarding claims for benefits under the laws administered by
                       the secretary of veterans affairs
        Mr. Chairman, this draft bill 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-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 in both the House and Senate. Earlier this year, the
    House approved a broad benefits bill (H.R. 677) which included the FDA
    program. The Senate legislation introduced by Senators Sullivan, Casey,
    Heller and Tester (S. 2473) was approved by this Committee earlier this
    month 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 draft legislation before us.
    DAV and most of the other stakeholders support moving forward with this
    draft 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 this draft
    legislation 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. The
    draft legislation 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 in the draft
    legislation, 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 the draft legislation 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, one additional change that we have suggested and VA
    has agreed to include, but that is not in this Senate discussion draft,
    would be to add a new section to section 5104B, title 38, United States
    Code, 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 would like to highlight for the Committee the
    companion bill introduced in the House, H.R. 5083, contains this
    revision and 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
    this bill 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.
        The draft legislation 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.
        The draft bill 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 this bill.
        The draft bill 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 the draft legislation 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 the draft 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 the current draft bill 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, the draft legislation being considered today
    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 draft appeals legislation. There are still a number of
    improvements and clarifications that must be made to the draft
    legislation 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.
              draft bill, the veterans mobility safety act of 2016
        The Veterans Mobility Safety Act of 2016 would enhance the VA
    program providing automobiles and adaptive equipment assistance for
    service-disabled veterans.
        Under current law, Congress authorizes financial grants for certain
    ill and injured veterans and active duty servicemembers to purchase a
    new or used automobile or other conveyances. This grant may also be
    paid if disabilities are a result of medical treatment, examination,
    vocational rehabilitation or compensated work therapy provided by VA.
    In addition to financial assistance toward the purchase of an
    automobile or other conveyance, financial assistance is provided for
    modifications that may be necessary to accommodate these covered
    service-connected disabilities resulting from an injury or disease
    incurred or aggravated during active military service.
        Currently, grants are paid directly to the seller of the automobile
    for the total price up to $20,114.34. A veteran or servicemember may
    only receive the automobile grant once in his or her lifetime. Repairs
    and modifications to a vehicle may also be authorized throughout the
    veteran's lifetime, subject to predetermined limits.
        This legislation would require the Secretary of VA to develop
    comprehensive quality standards for providers of vehicle modification
    services under the automobile adaptive equipment program. This new
    policy would be developed and overseen in consultation with veterans
    service organizations, the National Highway Transportation
    Administration, industry representatives, manufacturers of automobile
    adaptive equipment and other entities with expertise in installing,
    repairing, replacing, or manufacturing mobility equipment or developing
    mobility accreditation standards for automobile adaptive equipment.
        Although DAV has no resolution from our members concerning this
    issue, we support the intent of this legislation to help injured and
    ill veterans lead high quality lives. The legislation would provide an
    added measure of quality assurance to protect these seriously ill and
    injured veterans from substandard craftsmanship that could potentially
    jeopardize their safety, the safety of their families and the general
    public.
        We recommend the stakeholders identified within this proposal be
    involved throughout this entire process, to include rule and policy
    development and implementation. Furthermore, we recommend that all
    efforts be made to ensure that any policy that is created does not
    adversely impact a veteran's ability to receive vehicle modifications.
    If standards are not implemented carefully, some manufactures or
    installers may be unable, or unwilling, to comply with the new
    requirements. In this scenario, a veteran's options could become
    increasingly limited when they seek out installation and repairs of
    their automobile adaptive equipment.
        draft bill, to expand eligibility for hospital care and medical
        services under section 101 of the veterans access, choice, and
      accountability act of 2014 to include veterans in receipt of health
    services under the pilot program of the department of veterans affairs
                               for rural veterans
        Section 1 of this bill would make veterans who have received care
    under the Access Received Closer to Home (Project ARCH) pilot program
    eligible to participate in the Veterans Choice Program. Section 403 of
    the Veterans' Mental Health and Other Care Improvements Act of 2008
    (Public Law 110-387; 38 U.S.C. 1703 note), provided VA with authority
    to conduct this pilot in five sites in Kansas, Montana, Virginia,
    Arizona and Maine.
        Project ARCH sites became operational on August 29, 2011, and the
    three-year pilot program, which was set to expire on August 29, 2014,
    was extended to August 7, 2016 by section 104 of the Veterans Access,
    Choice, and Accountability Act of 2014 (VACAA), Public Law 113-146.
    Moreover, the VA is required to ensure that medical appointments for
    those veterans eligible to participate in Project ARCH be scheduled not
    later than five days after the date on which the appointment is
    requested and occur no later than 30 days after such date.
        DAV has supported the extension of Project ARCH beyond its initial
    authorization. This pilot project has shown promising results in
    achieving a more patient-centered, coordinated, cost-effective delivery
    model for fee-basis care. We believe this is primarily due to the
    dedicated VA Care Coordinator at each participating site who works
    closely with veterans and community providers to ensure continuity of
    care and that veterans no longer need to travel hundreds of miles to
    receive acute or tertiary care.
        DAV has previously testified in support of provisions making
    veterans enrolled in Project ARCH eligible to receive care in the
    community as part of the overall effort to fix the misalignment of
    resources, demand and, in particular, existing authorities that hamper
    VA's ability to purchase or directly provide health care to ill and
    injured veterans.
        While we welcome the intent of the bill to extend eligibility to
    participate in the Veterans Choice Program to veterans who have
    received care under Project ARCH, we are concerned veterans who are
    current participants in Project ARCH will experience disruptions in
    care as this transition occurs. We have already heard from VA Care
    Coordinators who have expressed concern for the veterans they care for
    under Project ARCH who experienced unwarranted disruptions in their
    care due to parallel VA programs that purchase care in local
    communities.
    discussion draft, including provisions from the construction reform act
     of 2016, a bill to make certain improvements in the administration of
               department medical facility construction projects
        This bill would build on a prior statutory reform of the management
    of VA major medical facility construction projects (including ``super
    construction projects'') by establishing a new, mandatory requirement
    that VA follow industry standards, standard designs, and best practices
    in constructing VA facilities. The bill also would require forensic
    audits by a qualified outside Federal auditor in cases in which the
    final cost of a major medical facility construction project exceeded
    its statutory appropriation by more than 25 percent.
        This bill would amend VA's notice requirements to Congress with
    regard to accounting for bid savings on major projects, with
    specifications.
        Finally, this bill would require a quarterly report to Congress on
    super construction projects, including progress being made, planning
    variances and budgetary matters.
        Delegates to our most recent National Convention approved
    Resolution No. 100, urging the Administration and Congress to properly
    support VA's construction and infrastructure needs. This bill is
    consistent with the intent of our resolution; therefore, DAV supports
    this bill and urges its enactment.
     discussion draft, including va proposal to modify requirements under
     which the department is required to provide compensation and pension
              examinations to veterans seeking disability benefits
        The proposed discussion draft bill would change the standards for
    determining when VA is required to provide a disability compensation
    examination or obtain medical opinions.
        Currently, VA's ``duty to assist'' veterans with disability
    compensation claims includes requirements for providing disability
    compensation examinations or medical opinions in order for VA to reach
    a fully informed and proper entitlement determination. VA is required
    to provide these examinations or medical opinions when a veteran's
    record does not contain sufficient medical evidence for VA to make a
    decision and there is competent evidence of a current disability, or
    persistent or recurrent symptoms of a disability; or when the record
    suggests that a disability, or symptoms, may be associated with active
    military service.
        The discussion draft bill adds a new requirement that the veteran's
    claim record contain ``objective evidence'' that an injury or disease
    was incurred, or aggravated while performing active military service;
    or that the injury, or disease became manifest during the applicable
    presumptive periods; or that the veteran experienced an event in
    service, capable of causing a particular injury or disease. The effect
    of this draft proposal would raise the evidentiary threshold for when
    VA would be required to provide a VA examination or medical opinion.
        Enactment of such legislation would make it more difficult for
    veterans seeking to establish entitlement to benefits derived from
    injuries or illnesses acquired as a result of their active military
    service. Disability compensation examinations play a vital role in
    helping to develop the evidence necessary to support a veteran's claim.
    Creating more stringent requirements before VA has an obligation to
    order an examination or opinion would impose a significant new barrier
    for many veterans to overcome as they attempt to prove the validity of
    their claims.
        Further, as VA denies more veterans the ability to have an
    examination or receive a medical opinion, there would likely be an
    increase in the number of appeals, forcing many veterans to endure a
    lengthy appeals process in order to have their claims properly
    developed.
        DAV strongly opposes this draft legislation consistent with DAV
    Resolution No. 008, which opposes any proposals that would reduce, add
    limitations on, or eliminate benefits for service-connected disabled
    veterans or their families. Because the changes contemplated within
    this draft bill would make it more difficult for veterans to prove
    meritorious claims, we oppose the legislation.

        Mr. Chairman, DAV appreciates the opportunity to provide testimony.
    I would be pleased to address any questions you, or Members of the
    Committee may have on the topics covered in this statement.

        Chairman Isakson. Thank you very much for your testimony.
        Mr. Blake.

       STATEMENT OF CARL BLAKE, ASSOCIATE EXECUTIVE DIRECTOR OF
          GOVERNMENT RELATIONS, PARALYZED VETERANS OF AMERICA

        Mr. Blake. Chairman Isakson, Members of the Committee, on
    behalf of Paralyzed Veterans of America, I would like to thank
    you for the opportunity to testify today.
        It has been our historical experience and that of our
    members who have extensive interaction with the VA health care
    system that veterans around the country prefer to receive their
    care from the VA health care system. This point as affirmed
    from a recent survey of our members gauging their experiences
    with VA health care.
        As we consider legislation designed to reform the VA health
    care system, it is important to recognize that the VA's
    specialized services, particularly spinal cord injury and
    disease care, cannot be adequately duplicated in the private
    sector. Many advocates for greater access to care in the
    community often minimize or even ignore altogether this point
    without recognizing the potentially devastating impact that
    pushing more veterans into the community might actually have on
    the larger VA health care system and particularly specialized
    health services that rest on the bedrock of that system.
        While we appreciate the intent of S. 2896, we believe it is
    based on the flawed assumption that the Choice program as
    currently implemented is the best way forward for VA health
    care. I would point out that the VA just last fall released its
    community care consolidation plan and we believe that sets a
    better benchmark for the path forward.
        During the House Committee on Veterans' Affairs where this
    plan was first considered just last fall, that plan was roundly
    lauded by members on both sides of that committee, including
    all of the doctors in both parties. Yet, selective amnesia
    seems to have caused us to forget that that was actually
    praised by both parties on that committee when it was unveiled.
        Additionally, PVA, along with our partners in the
    Independent Budget, the VFW and the DAV, presented to this
    Committee a framework for VA health care reform that builds on
    the VA's own plan. It includes a comprehensive set of policy
    ideas that will make an immediate impact on the delivery of
    health care while laying out a long-term vision for sustainable
    high-quality and veteran-centric care.
        Mr. Chairman, as the Committee considers moving forward
    with VA health care reform, I think we have to change our focus
    simply from Choice, Choice, Choice, to what is the right
    program to benefit veterans in the right way. I think Dr. Yehia
    has done an outstanding job trying to shepherd this process
    through. Sometimes I wonder if we are paying enough attention
    to what he is really doing, other than individual instances
    where he has made an impact on individual Senators' and Members
    of Congress' district.
        PVA strongly supports the draft bill, the Veterans Mobility
    Safety Act of 2016. Adaptive automobile equipment is one of the
    most important issues for PVA members. We support the effort to
    ensure veterans with mobility impairment receive adaptive
    equipment and adaptations that meet industry standards and
    specifications and that are properly installed for use.
    Strangely, current law does not require VA to actually certify
    that those businesses installing adaptive equipment on vehicles
    for disabled veterans are qualified to do so.
        We appreciate Senator Moran introducing this bill. It is a
    companion to H.R. 3471. We particularly appreciate the fact
    that before the Committee, they were willing to entertain the
    language changes that had been worked out as the House
    Committee on Veterans' Affairs moved that bill, and we look
    forward to seeing that bill pushed through until final passage.
        Last, Mr. Chairman, I think there has been a lot of
    discussion about the appeals reform process. PVA was pleased to
    work with our colleagues here on this panel, with VBA, and with
    the representatives of the Board of Veterans Appeals to come up
    with a real solution to the appeals process. I think the
    numbers have been mentioned a number of times already here.
    More than 450,000 in the appeals backlog, potentially two
    million in the backlog if changes are not made within the next
    decade, claims or appeals that may end up dragging out for 6 to
    10 years if those same reforms are not made. Those are clearly
    all unacceptable statistics.
        We are encouraged by VA's ambitious efforts to achieve
    reform. VA has recognized that VSOs have specific concerns and
    they have worked with us to find solutions to move us forward
    without diluting veterans' rights in the process. We appreciate
    the fact that they continue to work with us even today as this
    bill is being considered.
        We support the general framework of the legislation as it
    has been proposed, but at a minimum, we would point you to our
    written statement for some additional considerations as the
    bill is moved forward for final passage.
        I would also have to just--I would be remiss if I did not
    mention that as we move forward with appeals reform, we cannot
    forget, I think Mr. Chairman or one of the Senators mentioned
    about the existing backlog and how that gets addressed in the
    context of this appeals process, because it will do no good to
    stand up a new process with the weight of that still pressing
    down on the VA appeals system.
        With that, Mr. Chairman, I would like to thank you for the
    opportunity to testify. I would be happy to answer any
    questions you or the members may have.
        [The prepared statement of Mr. Blake follows:]
        Prepared Statement of Carl Blake, Associate Executive Director,
              Government Relations, Paralyzed Veterans of America
        Chairman Isakson, Ranking Member Blumenthal, and Members of the
    Committee: Paralyzed Veterans of America (PVA) would like to thank you
    for the opportunity to submit our views on legislation pending before
    the Committee. The magnitude of the impact that veterans' health care
    reform will have on present and future generations of veterans cannot
    be overstated, and we are proud to be part of this important
    discussion.
                               the ``solve act''
        The Department of Labor (DOL) administers the Veterans Employment
    and Training Services Program which is responsible for distributing
    Jobs for Veterans State Grants (JVSG). Through these grants, states
    fund two types of positions that can be found in most American Job
    Centers. Disabled Veterans' Outreach Program (DVOP) specialists provide
    intensive services to veterans and eligible spouses, designed to
    facilitate participants' transition into meaningful civilian
    employment. Local Veterans' Employment Representatives (LVER) perform
    outreach to local businesses and employers to advocate for the hiring
    of veterans.
        Currently, DOL reviews state applications for JVSG's, but when a
    provision within the state's proposal is rejected, the entire plan is
    rejected without explanation. This bill would allow DOL to approve or
    disapprove certain aspects of a state plan rather than a blanket
    rejection. It would also ensure that States receive a full explanation
    as to why the proposal was rejected. This legislation would also
    provide Governors more flexibility in deciding how best to utilize the
    grants. It recognizes that states are in a better position to determine
    what circumstances constitute significant barriers to employment for
    their local veterans instead of having DOL establish a few criteria
    meant to capture all barriers throughout the entire U.S. The bill also
    encourages states to better coordinate and co-locate with job centers
    ensuring that DVOPs and LVERs continue to focus on their core mission.
               s. 2896, the ``care veterans deserve act of 2016''
        PVA's historical experience and extensive interaction with veterans
    around the country leads us to confidently conclude that veterans
    prefer to receive their care from the Department of Veterans Affairs
    (VA). We recognize, however, that while for most enrolled veterans VA
    remains the best and preferred option, VA cannot provide all services
    in all locations at all times. Care in the community must remain a
    viable option.
        As we consider legislation designed to reform VA health care, it is
    important to recognize that VA's specialized services, particularly
    spinal cord injury care, cannot be adequately duplicated in the private
    sector. Many advocates for greater access to care in the community also
    minimize, or ignore altogether, the devastating impact that pushing
    more veterans into the community would have on the larger VA health
    care system, and by extension the specialized health services that rely
    upon the larger system. Broad expansion of community care could lead to
    a significant decline in the critical mass of patients needed to keep
    all services viable. We cannot emphasize enough that all tertiary care
    services are critical to the broader specialized care programs provided
    to veterans. If these services decline, then specialized care is also
    diminished. The bottom line is that the SCI system of care, and the
    other specialized services in VA, do not operate in a vacuum. Veterans
    with catastrophic disabilities rely almost exclusively upon the VA's
    specialized services, as well as the wide array of tertiary care
    services provided at VA medical centers. Specialized services, such as
    spinal cord injury care, are part of the core mission and
    responsibility of the VA. As the VA continues the trend toward greater
    utilization of community care, Congress and the Administration must be
    cognizant of the impact those decisions will have on veterans who need
    the VA the most.
        PVA, along with our Independent Budget (IB) partners, Disabled
    American Veterans (DAV) and Veterans of Foreign Wars (VFW), developed
    and previously presented to this Committee a framework for VA health
    care reform. It includes a comprehensive set of policy ideas that will
    make an immediate impact on the delivery of care, while laying out a
    long-term vision for a sustainable, high-quality, veteran-centered
    health care system. Our framework stands on four pillars: 1)
    restructuring the veterans health care system; 2) redesigning the
    systems and procedures that facilitate access to health care; 3)
    realigning the provision and allocation of VA's resources to reflect
    the mission; and 4) reforming VA's culture with workforce innovations
    and real accountability. We believe the proposal included in this
    legislation to make all veterans eligible for the Choice program is not
    the best avenue to accomplish the goals and principles laid out above,
    and we cannot offer our support.
        While PVA cannot support the proposal to expand and make permanent
    the current Choice program, there are productive aspects of this
    legislation. As technology advances and opens access to health care for
    veterans using telemedicine, the legal parameters of that care need to
    expand alongside the technology. Permitting a licensed health care
    professional to treat veterans on behalf of the U.S. Government in any
    location benefits veterans in the form of greater access and the VA by
    increasing its pool of employees. This is already in practice with
    attorneys working for or on behalf of the U.S. Government.
        PVA also supports the expansion of operating hours for pharmacies
    and VA medical facilities to hours comparable to those in the retail
    industry, and we are glad to see that in this legislation. In a recent
    survey of PVA members about their experiences with VA health care, one
    of the most common themes was the lack of access to pharmacy services,
    particularly beyond normally expected business hours. This provision
    would alleviate some of those concerns.
                  s. 2888, the ``janey ensminger act of 2016''
        PVA understands and supports the intent of S. 2888, the ``Janey
    Ensminger Act of 2016.'' This legislation would amend the Public Health
    Service Act with respect to the Agency for Toxic Substances and Disease
    Registry's (ATSDR) review and publication of illness and conditions
    relating to veterans stationed at Camp Lejeune, North Carolina, and
    their families. The bill would require the ATSDR Administrator to
    review the scientific data pertaining to the relationship between
    individuals at Camp Lejeune and the suspected resulting illness or
    condition. The ATSDR Administrator would be required to determine each
    condition that may be caused by toxic exposure, categorize the level of
    evidence for these conditions into three categories; sufficient with
    reasonable confidence that the exposure is a cause of the illness or
    condition, modest supporting causation, or no more than limited
    supporting causation. This information would then be published and
    continually updated on HHS' website. If these evidentiary
    categorizations are different from previous categorizations those
    veterans and their families currently receiving care under them would
    continue to receive that care. Newly registered veterans and family
    members would receive care based on the list provided by the ATSDR
    Administrator. Research regarding toxic exposures and the subsequent
    credibility of presumptive conditions has traditionally been the charge
    of the Institute of Medicine (IOM). The bill does not discuss the
    processes should the ATSDR conflict with the findings of the IOM.
                  s. 2883, the ``disabled veterans care act''
        PVA strongly supports S. 2883, the ``Disabled Veterans Care Act.''
    This legislation would reinstate the requirement for the Department of
    Veterans Affairs (VA) to provide an annual report to Congress that
    details its capacity in selected specialized health care services,
    particularly spinal cord injury and disease (SCI/D). The report
    includes information such as utilization rates, staffing, and facility
    bed censuses. Requiring VA to compile such data into the form of a
    report to share with Congress annually will lead to more accountability
    within VA, help ensure more efficient allocation of VA resources,
    particularly in the area of staffing, and improve veterans' access in
    VA's specialized systems of care.
        Within VA's Spinal Cord Injury and Disease system of care, access
    to timely care is critical to the health and well-being of this
    population of veterans. Many of the VA's specialized services and
    rehabilitative programs have established policies on the staffing
    requirements and number of beds that must be available to maintain
    capacity and provide high quality care. The fact is VA has not
    maintained its capacity to provide for the unique health care needs of
    severely disabled veterans. Reductions in both inpatient beds and staff
    in VA's acute and extended care settings have been continuously
    reported throughout the system of care, particularly since the capacity
    reporting requirement expired in 2008.
        When VA facilities do not adhere to these staffing policies and
    requirements, veterans suffer with prolonged wait times for medical
    appointments, or in the case of PVA members, have to limit their care
    to an SCI/D clinic, despite the need for more comprehensive care. There
    have been instances within VA's SCI/D system of care when staffing
    positions have gone vacant for long periods of time, and as a result,
    the facility's bed capacity is diminished, thus decreasing access. An
    annual capacity report, to be audited by the VA Office of Inspector
    General, will allow VA leadership and Congress to have an accurate
    depiction of VA's ability to provide quality care in its specialized
    systems of care.
        This critically important legislation has been a top priority for
    PVA for years. We applaud Senators Brown, Toomey, Murray, Sanders,
    Casey and Coons for working to ensure VA is able to provide for the
    unique health care needs of catastrophically disabled veterans. While
    we certainly appreciate the fact that this issue is included in the
    recently passed ``Military Construction and Veterans Affairs
    Appropriations Act for FY 2017,'' we believe this bill must be pursued
    until this issue is pushed through to final passage.
           s. 2679, the ``helping veterans exposed to burn pits act''
        PVA supports S. 2679, the ``Helping Veterans Exposed to Burn Pits
    Act.'' This proposed legislation would establish within the Department
    of Veterans Affairs (VA) a center of excellence in the prevention,
    diagnosis, mitigation, treatment, and rehabilitation of health
    conditions relating to exposure to burn pits. The site selected would
    be equipped to study, diagnose, and treat the health conditions related
    to burn pits. Additional responsibilities would task VA to determine
    the best practices for treatment, and to provide guidance for the
    health systems of VA and DOD in determining the personnel required to
    enact those best practices. This bill would allow the center to access
    and use the data accumulated in the burn pit registry.
        Across Iraq and Afghanistan, military sites commonly used burn pits
    for waste disposal. The materials burned were varied but can range from
    batteries to human waste. With limited means for disposing of trash,
    the burning of waste and the subsequent inhalation of those fumes are
    an unavoidable certainty. Not unlike the experience of veterans exposed
    to Agent Orange following the Vietnam War, veterans with conditions
    likely attributable to burn pits face difficulties proving exposure as
    well. The scientific linkages have yet to be made conclusive enough. As
    a result, veterans' access to health care and benefits is compromised.
    VA maintains that research thus far has failed to provide the link
    between exposure and long-term disease. Until such research is
    conducted, affected veterans continue to wait for answers, validation,
    and treatment. For veterans exposed to Agent Orange this wait lasted
    decades. This country has a responsibility to determine the cause of
    and treat the conditions that result from one's service.
                 s. 2520, the ``newborn care improvement act''
        PVA supports S. 2520, the ``Newborn Care Improvement Act,'' a bill
    to amend Section 1786 of title 38, United States Code, to authorize
    hospital stays of up to 14 days for newborns under VA care. The current
    provision allows for a maximum stay of seven days. As the average
    hospital stay for a healthy newborn is two days, S. 2520 would provide
    enormous relief for families facing complications immediately after
    birth or severe infant illness.
             s. 2487, the ``female veteran suicide prevention act''
        PVA strongly supports S. 2487, the ``Female Veteran Suicide
    Prevention Act.'' This bill would direct the Secretary of Veterans
    Affairs to identify mental health care and suicide prevention programs
    and metrics that are effective in treating women veterans. Newly
    published data by VA determined that female military veterans commit
    suicide at nearly six times the rate of other women. For young women,
    ages 18-29, the suicides are twelve times as high. The rate among women
    veterans nearly reaches the rate of male veterans. Of the annual
    suicide deaths per 100,000 people, male veterans comprised 32.1, and
    non-veteran men 20.9. Among women veterans they comprised 28.7 compared
    to just 5.2 among non-veteran women. This is a particularly concerning
    statistic since men, on average, are far more likely than women to
    commit suicide. VA is woefully ill-equipped to address women veterans'
    mental health needs, particularly as relates to risk for suicide.
    S. 2487 would make a first and giant step in addressing these
    inadequacies.
        S. 2049, to establish in the Department of Veterans Affairs a
    continuing medical education program for non-Department medical
    professionals who treat veterans and family members of veterans
        PVA supports S. 2049, to establish in the Department of Veterans
    Affairs a continuing medical education program for non-Department
    medical professionals who treat veterans and family members of
    veterans. Veterans suffer from a wide range of medical issues that are
    not experienced by the majority of the American population. Continuing
    medical education that focuses on veterans' issues will better prepare
    these medical professionals to provide care for veterans.
        discussion draft--revision of evidentiary threshold for medical
                           examinations and opinions
        PVA is opposed to the draft bill ``Revision of Evidentiary
    Threshold for Medical Examinations and Opinions.'' This bill attempts
    to increase the burden on the claimant, specifically those who have not
    deployed in combat, to demonstrate evidence of service connection.
    ``Objective'' evidence is a high standard, and requiring a veteran to
    meet it undermines the very purpose of VA's statutory duty to assist.
    In fact, 38 U.S.C. 5103(a)(2) makes clear that the Secretary's duty to
    assist is not required only in circumstances where there is no
    ``reasonable possibility'' that such assistance would aid in
    substantiating the claim. If there is a reasonable possibility that an
    exam would aid a veteran in adequately presenting his or her claim,
    this provision would block that assistance unless the veteran first
    clears this new substantial hurdle of showing objectively that service-
    connection exists.
        It is exceedingly rare for a claimant to have to argue the need for
    an exam under the current provisions in Sec. 5103(d). This will
    certainly provoke numerous appeals, right at a time when the VA and VSO
    community are trying to tackle the appeals backlog. This provision is
    also somewhat redundant, if not confusing, if one attempts to reconcile
    it with subsection (2)(c). Veterans should have access to the tools
    necessary to adequately present their claims. This bill instead appears
    to be reminiscent of a time when veterans were required to submit
    ``well-grounded'' claims.
             discussion draft--veterans mobility safety act of 2016
        PVA strongly supports the draft bill ``Veterans Mobility Safety Act
    of 2016'' submitted for discussion by Senator Moran. The adaptive
    automobile equipment grant is an important issue for PVA members, as
    they are the highest users of this particular benefit. Those veterans
    with catastrophic disabilities have a critical need for mobility to
    help maintain a high quality of life and allow them to continue to be
    active members of their community despite their disability. PVA
    supports the effort to ensure veterans with mobility impairment receive
    adaptive equipment and adaptations that meet industry standards and
    specifications. As technology advances, new automotive adaptive devices
    continue to open the door to more drivers with disabilities. Each
    person with a mobility issue is unique and has individual requirements
    and specific features that will allow them to feel confident and
    comfortable while they drive.
        The law as it is currently written requires that before providing
    an automobile under this section, the Secretary determine that the
    eligible person is able to operate the vehicle safely. In response to
    this provision, Veterans currently receive training from the VA
    Driver's Rehabilitation Program on how to safely operate their new
    vehicle or equipment before embarking out onto public roadways. VA also
    has a requirement to monitor the quality of the equipment being
    installed. But VA is not required to ensure that those installing
    adaptive equipment on vehicles for disabled veterans are qualified to
    do so. The bulk of the training and monitoring the quality of equipment
    being issued is rendered meaningless if the adaptive equipment itself
    fails. Requiring that vendors offering such services be certified is
    simply a matter of due diligence in line with the previously mentioned
    requirements. One can easily recognize the gravity of harm that can
    ensue upon not only the veteran, but other motorists, passengers and
    pedestrians when this type of equipment fails due to faulty
    installation or repairs.
        It is also important that VA remain good stewards of tax payer
    dollars. When a veteran hires an unqualified installer, and the vehicle
    fails, either the veteran is stuck trying to mend the situation or the
    VA is stuck with an avoidable secondary bill.
        The companion bill currently being considered by the House
    Committee on Veterans Affairs, H.R. 3471, originally produced
    inadvertent consequences, particularly with regard to promoting or
    creating certain conflicts of interest. The text in front of us today
    mirrors the substantial improvements reflected in the recently amended
    version of H.R. 3471 that PVA pushed for in the House to ensure that
    veterans remain the focus of this legislation, not private industry. It
    brings together industry stakeholders and the veteran community that
    stands to be directly impacted to construct a policy which establishes
    standards without inhibiting industry growth and technological
    advancement. It also ensures that choice/access remain viable for rural
    veterans without compromising safety.
        Section (3)(e) is unnecessary and, at worst, might contradict the
    provision in Section (3)(b)(4), which permits the Secretary to
    designate organizations who meet or exceed the standards developed
    under this Section to certify providers. The importance of (3)(b)(4) is
    paramount, as it ensures that providers who already adhere to high
    quality standards are not penalized by this bill and forced to undergo
    another round of certification unnecessarily. It also facilitates the
    implementation of this legislation by having providers available and
    not awaiting certification. Ultimately the conflicts that arose in the
    original text in H.R. 3471 were addressed by changing the structure of
    the bill and removing the construction of standards from the grasp of
    private industry.
           discussion draft--to expand eligibility for rural veterans
        With the imminent sunset of Project ARCH in August 2016, this bill
    would expand eligibility under the current Choice program to any
    veteran who has at one time or another received health services under
    Project ARCH. There should be a caveat to this provision which
    contemplates the possibility of a veteran having moved or will move his
    or her residence in the future to a location where access to care in
    the community is unnecessary. As authorities are shifted in statute,
    the bill should also ensure the resources and ability to preserve
    existing contracts with the providers who currently serve veterans
    enrolled in ARCH are also addressed so that services are not disrupted.
     discussion draft--provisions from the construction reform act of 2016
        PVA supports the discussion draft including provisions from the
    Construction Reform Act of 2016, a bill to make certain improvements in
    the administration of Department medical facility construction
    projects. In light of the egregious construction management failures in
    places like Denver, Colorado, Orlando, Florida, and New Orleans,
    Louisiana, a serious discussion about VA's responsibility in the
    construction business has taken place. This bill serves to support
    steps that have already been taken to improve construction management
    at VA. We appreciate the Committee focusing on this important issue.
                                 appeals reform
        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. PVA
    maintains a national Appeals Office staffed by attorneys and legal
    interns who represent clients at the Board of Veterans' Appeals. 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, the Veterans Benefits Administration (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.
        It is important that as we approach this major issue that we do not
    lose sight of the fact that veterans have earned these benefits through
    the highest service to their country and have every right to pursue
    these earned benefits to the fullest. 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% 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% 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% 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 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 commitments 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 if certain provisions are added to this
    bill they 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 CFR 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 Court of Appeals for Veterans Claims (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. PVA recommends
    retaining the authority found in Sec. 7109. 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.
        If the Committee intends to strike Sec. 7109, we would ask to have
    included the mitigating language reflected in the House companion bill,
    H.R. 5083. PVA worked with VA to reduce the impact by supplementing
    Sec. 5109 with a new subsection (d) and Sec. 5103B(c)(2). This
    approach, however, 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 PVA 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
    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, PVA has 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 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 draft 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. 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. We have not considered the question of whether this system
    could be integrated immediately (taking into account the time needed to
    promulgate the necessary rules and regulations) or if steps to reduce
    the backlog are needed first.
        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.'' Therefore, 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.
        PVA believes that substantial reform can be achieved, and the time
    is ripe to accomplish this task. Our organization represents clients
    with some of the most complex issues, and we cannot stress enough that
    moving forward should not be done at the expense of the most vulnerable
    veterans. We must remain vigilant and appreciate the benefits of
    bringing together the variety of stakeholders who are participating and
    bringing different perspectives and viewpoints--it is a healthy
    development process that ensures veterans remain the focus.

        Thank you for this opportunity to present PVA's views on the
    pending legislation before the Committee and I would be happy to answer
    any questions you may have.

        Chairman Isakson. Thank you, Mr. Blake.
        Ms. Rauber.

     STATEMENT OF DIANE BOYD RAUBER, EXECUTIVE DIRECTOR, NATIONAL
               ORGANIZATION OF VETERANS' ADVOCATES, INC.

        Ms. Rauber. Chairman Isakson, Ranking Member Blumenthal,
    and Members of the Committee, the National Organization of
    Veterans' Advocates thanks you for the opportunity to offer
    testimony on pending legislation. We limit our testimony today
    to the draft appeals reform bill and the discussion draft on
    the evidentiary threshold for medical examinations and
    opinions.
        NOVA supports improving the appeals process for veterans
    and endorses several features of the appeals reform bill as
    detailed in our written statement. Briefly, these provisions
    include the requirement that VA provide detailed notice of a
    decision, effective date relief after a BVA decision, the
    elimination of redundant procedural steps, a mandate requiring
    VA to be bound by favorable findings, and the veteran's
    continued right to engage an attorney.
        While these provisions represent a step in the right
    direction, there remains areas of concern that require
    additional Congressional scrutiny. We have expanded on those in
    our written statement, so I will only highlight a few here
    today.
        First, it is unfair to limit effective date relief solely
    to VA and BVA decisions without allowing for the same relief
    after a final CAVC decision. This limitation will discourage
    veterans from exercising their hard fought right of judicial
    review, because a conscientious advocate is unlikely to advise
    a veteran to appeal to court and risk losing the earlier
    effective date if there is any chance it could be preserved by
    submitting new and relevant evidence after the BVA decision. To
    prevent a chilling effect on judicial review, effective date
    protection should be extended to a year after a court decision.
    Extension of this protection would, in fact, affect a
    relatively small number of cases, because veterans lost less
    than half of the roughly 4,000 court appeals decided in 2015.
        VA has also taken the position that a veteran could not
    simultaneously seek judicial review of a BVA denial and file a
    supplemental claim before VA to preserve the original effective
    date. Foreclosing the opportunity to pursue both avenues of
    relief is not only contrary to the veterans'-friendly scheme
    designed by Congress, it potentially prevents the court from
    correcting prejudicial legal errors. Congress should clarify
    that a veteran may pursue both avenues of relief
    simultaneously.
        In addition, the framework does not clearly address how the
    existing 445,000 appeals will be resolved. There is a huge
    difference between the veteran who files her NOD today and the
    veteran whose 5-year-old appeal is now waiting at BVA for a
    decision. Based on recent discussions, VA appears reluctant to
    allow for any voluntary opt-in or to provide specifics about
    docket management. We cannot endorse any proposal that does not
    resolve these issues.
        NOVA has several concerns regarding docket management.
    Multiple dockets could result in unjust treatment for separate
    classes of veterans. If multiple dockets are created, a formula
    needs to be developed for docket management.
        Furthermore, VA should allow a veteran who chooses to
    submit evidence only to join the non-hearing docket. Because
    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.
        In addition, VA should only require new evidence for
    supplemental claims. VA has replaced the material standard with
    relevant. Merely trading relevant for material will not
    significantly reduce the adjudication burden for VA. Removing
    relevant eliminates the need for a threshold determination and
    allows VA to adjudicate the merits.
        The success of this reform hinges on VA's ability to
    consistently issue rating decisions in a 125-day window and
    decide appeals in a year. As demonstrated with the claims
    backlog and scheduling of medical appointments, VA often
    struggles to meet its own internal goals, to the detriment of
    veterans.
        Furthermore, VA has demonstrated significant difficulty
    obtaining adequate medical examinations and opinions, which
    result in frequent remands. Without substantive reform to this
    process, to include consideration of a greater role for private
    and treating physician evidence, it is unlikely procedural
    reform can alone solve systemic problems.
        This brings me to VA's proposal to require a veteran to
    provide objective evidence, such as medical records, service
    records, or accident reports, before requiring VA to provide an
    examination. NOVA opposes this provision. Such a heightened
    standard would effectively shut out many veterans who are not
    entitled to the relaxed standards of 38 U.S.C. Section 1154(b)
    as combat veterans. Many in-service symptoms or incidents may
    not be documented because a veteran does not consider them
    serious enough to require treatment, or in some instances, such
    as psychological symptoms, may choose not to report them for
    fear of demotion or separation.
        Mr. Chairman, NOVA shares the concern that veterans wait
    too long for a decision on appeal. We welcome the opportunity
    to continue to work with this Committee and VA to achieve fair
    appeals reform.
        We thank you again for allowing us to address these
    proposed bills and I would be pleased to take any questions.
        [The prepared statement of Ms. Rauber follows:]
      Prepared Statement of Diane Boyd Rauber, Esq., Executive Director,
               National Organization of Veterans' Advocates, Inc.
        On behalf of the National Organization of Veterans' Advocates
    (NOVA), I would like to thank Chairman Isakson, Ranking Member
    Blumenthal, and Members of the Committee for the opportunity to offer
    our views on pending legislation. NOVA will limit its testimony to the
    draft bill addressing appeals reform and the discussion draft on the
    evidentiary threshold for medical examinations and opinions.
        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.
     draft bill to reform the rights and processes relating to appeals of
    decisions regarding claims for benefits under the laws administered by
                       the secretary of veterans affairs
    Background
        VA currently reports that 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 dialog. 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 the proposed reform, 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.
        The draft proposal 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 CFR Sec. 3.156(b). NOVA supports
    this regulatory provision being included in the statute. Furthermore,
    NOVA recommends the provisions of 38 CFR Sec. 3.156(c) also be codified
    in the statute as an important protection for the effective date of
    claims for veterans who find additional service records after the
    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.
    The proposed bill 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 the 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. The
    proposed bill changes 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
    The draft bill 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 the draft bill, 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 existing 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.
        This proposal 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.

    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 CFR Sec. 20.201.
    Veterans Justice Group, LLC, et al. v. Secretary of Veterans Affairs,
    No. 2015-7021 (April 7, 2016). Under 38 CFR 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.
        Section 7105(b)(3) also puts a burden on veterans at the time an
    NOD is filed by requiring the veteran to make a decision at that moment
    about whether a BVA hearing is warranted and whether any evidence will
    ever be submitted. Given that veterans often are unrepresented until
    after the filing of an NOD, there is no reason to require that
    irreversible legal decisions be made at that exact moment. NOVA
    therefore recommends that the proposed language be changed 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.
        Related to this concept is the question of ``lane-changing,'' both
    in the ``middle lane'' and at BVA. During the appeals summit meeting,
    VA stated that a veteran would be able to switch lanes. More clarity is
    needed on the scope of this concept.
        Finally, the provision allowing BVA to ``dismiss'' an appeal
    because the NOD is deemed insufficient is a troublesome one, as it is
    unclear what protections a veteran whose appeal is dismissed would
    receive. NOVA therefore recommends 38 U.S.C. Sec. 7105(d) 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. There was significant discussion on this topic, with the
    stakeholders generally agreeing the standard should be ``new'' only. 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 as follows:

              38 U.S.C. Sec. 5103B(c)(2)--If the Board, during a de novo
            review on appeal of an agency of original jurisdiction to
            satisfy its duties under section 5103A of this title, and that
            error occurred prior to notice in accordance with section 5104
            of the agency of original jurisdiction decision on appeal,
            unless the claim can be granted in full, the Board shall remand
            the claim to the agency of original jurisdiction for correction
            of such error and readjudication.
              38 U.S.C. Sec. 7105(a)--Appellate de novo review will be
            initiated by the filing of a notice of disagreement in the form
            prescribed by the Secretary.
              38 U.S.C. Sec. 7105(b)(2)--Notices of disagreement for de
            novo review must be in writing . . .
    VA should clarify the veteran's right to be heard and to submit
            evidence.
        The stakeholders participating in the appeals summit meetings
    insisted VA not eradicate the veteran's right to be heard and submit
    evidence before BVA. The language needs to be stronger to indicate the
    right to a hearing and to submit evidence is mandatory, not
    discretionary. Therefore, NOVA recommends the following sentence be
    added at the beginning of section 7105(b)(3): ``The claimant shall have
    the right to a hearing before BVA and the right to submit evidence.''
                              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.
    The proposal fails to address how the pending inventory will be
            resolved.
        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, there was not time to fully
    consider this issue in the first round of meetings. Although one
    subsequent shorter meeting was convened for consideration of this
    issue, no significant agreement was reached. 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.
     discussion draft of va proposal to modify requirements under which va
        is required to provide compensation and pension examinations to
                      veterans seeking disabilty benefits
        NOVA opposes VA's draft proposal to heighten the evidentiary
    threshold for medical examinations and opinions under 38 U.S.C.
    Sec. 5103A(d)(2), which was originally added as part of the Veterans
    Claims Assistance Act of 2000 and clarified VA's duty to assist the
    veteran in obtaining the evidence necessary to substantiate the claim.
    VA's proposed changes would require a veteran to provide ``objective
    evidence'' of in-service incurrence. VA explained its intent, as well
    as what constitutes ``objective evidence,'' in its 2017 budget
    proposal:

              Clarify Evidentiary Threshold at Which VA is Required to
            Provide a Medical Examination. This proposal seeks to amend 38
            U.S.C. Sec. 5103A(d) to clarify the evidentiary threshold for
            which VA, under its duty to assist obligation, is required to
            request a medical examination for compensation claims. This
            amendment would clarify section 5103A(d)(2) to require, prior
            to providing a medical exam, the existence of objective
            evidence establishing that the Veteran experienced an event,
            injury, or disease during military service. VA would still
            consider lay evidence as sufficient to show a current
            disability or persistent symptoms of a disability. However,
            except in special circumstances, objective evidence such as
            medical records, service records, accident reports, etc., must
            also be of record to trigger an exam. Benefit savings to the
            Compensation and Pensions account are estimated to be $120.1
            million in 2017, $124.9 million in 2018, $650.3 million over 5
            years and $1.4 billion over 10 years.

        Department of Veterans Affairs, Congressional Submission, FY 2017,
    Vol. III at VBA-78 (February 9, 2017). Not only is this provision in
    complete opposition to the veterans-friendly benefits scheme designed
    by Congress, such a heightened standard would effectively shut out many
    veterans who are not entitled to the relaxed standards of 38 U.S.C.
    Sec. 1154(b) as combat veterans. Many in-service symptoms or incidents
    may not be documented because a veteran does not consider them serious
    enough to require treatment or in some instances, e.g., psychological
    symptoms, may choose not to report them for fear of demotion or
    separation.
        While VA seeks this change to effectuate cost savings, as noted
    above, other measures should be considered to improve the system, to
    ensure veterans obtain adequate medical examinations and opinions, and
    to ultimately provide cost savings.
                                   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.
        In addition, NOVA opposes VA's draft proposal that revises the
    evidentiary threshold for medical examinations and opinions.

        Mr. Chairman, we would like to thank you again for allowing us to
    address these proposed bills. I would be pleased to take any questions.

        Chairman Isakson. Thank you very much for your testimony.
        Master Sergeant Ensminger.

            STATEMENT OF JEROME M. ENSMINGER, MSGT (RET.),
                           U.S. MARINE CORPS

        Mr. Ensminger. Good afternoon, Mr. Chairman, Ranking Member
    Blumenthal, and to all the esteemed Members of this Committee.
    I want to expressly thank Chairman Isakson for including
    S. 2888 in this legislative hearing.
        My name is Jerry Ensminger. I am a retired U.S. Marine who
    spent more than 11 of my 24\1/2\ years of service at Camp
    Lejeune, NC.
        I would like to commend both Senators Burr and Tillis for
    writing and introducing this bill. This bill confirms to the
    hundreds of thousands of Marines, sailors, their families, and
    the thousands of civilian employees who were negligently
    exposed to the highest levels of harmful contaminants ever
    recorded in a major drinking water system, that the U.S. Senate
    delegation of North Carolina has our backs.
        Not only is this legislation another step in rectifying the
    gross injustice committed against the Camp Lejeune victims, it
    also has the potential of saving the American taxpayers
    hundreds of thousands, if not millions of dollars in the
    future. This bill, when passed, will require the Veterans
    Administration, or the VA, to utilize the Agency for Toxic
    Substances and Disease Registry, or ATSDR, rather than
    exclusively contracting external government entities to perform
    evaluations or opinions on health effects related to the Camp
    Lejeune drinking water issue.
        ATSDR was created and mandated by Congress in 1980 to
    investigate, evaluate, and remediate human exposures to
    potentially harmful contaminants found at National Priority
    listed sites, such as Camp Lejeune. We all need to take a step
    back and ask ourselves why the VA refuses to utilize these
    preeminent governmental institutions, such as ATSDR, or the
    National Centers for Environmental Health, or the National
    Institute for Environmental Health Sciences, or NIEHS, for
    those evaluations and/or opinions relating to issues where
    veterans have been exposed to hazardous substances. Why does
    the VA automatically and exclusively resort to contracting
    external governmental entities for these evaluations?
        Here are some findings we have made concerning those
    questions. You can draw your own conclusions. One, when the VA
    contracts an external entity to provide them with an evaluation
    or an opinion, the VA writes a charge to the contractor. This
    is where the legitimacy of this practice comes into serious
    question. Every Member of this Committee is a politician, and
    the best analogy that I can use to describe the flaws in this
    process is political poll questions. A pollster with an agenda
    can write poll questions in a fashion which would provide them
    the response or responses they desire. There is no difference
    when writing a charge to a contractor. The person or persons
    writing the charge can fashion it in such a way or manner as to
    narrow the final evaluation or opinion.
        Number 2, none of the work performed by these external
    governmental entities falls under the Freedom of Information
    Act. We have no access to the procedures or what scientific
    materials the contractor used in creating their evaluations.
    Where is the transparency in this process? There is none.
        Every time the VA contracts an external government entity
    for an evaluation or opinion, the American taxpayer is paying
    double. We are paying to maintain, equip, and staff our
    governmental agencies who are fully capable of performing these
    tasks. We are also paying the VA's contracted price for these
    external government entities to execute this work.
        Several years ago, I asked VA's Dr. Teri Walters why the VA
    constantly insists on using external government entities when
    seeking evaluations or opinions regarding potentially harmful
    exposures. She claimed that the VA uses those external
    contractors for such work because the veterans would not trust
    the work product of a governmental agency. Her response almost
    made me choke.
        Of course, most veterans do not know that the VA, an
    interested party, writes a charge to an external governmental
    entity, another interested party, to provide them with an
    evaluation. On the other hand, governmental agencies, such as
    ATSDR, NCEH, and the NIEHS, are uninterested parties who would
    give an evaluation based on available scientific evidence
    instead of a charge which could restrict the evaluation to the
    desires of the contractee. Furthermore, all of the procedures
    and scientific materials utilized by the aforementioned
    governmental agencies would be accessible under the Freedom of
    Information Act.
        Mr. Chairman, if the VA truly had the best interest of Camp
    Lejeune veterans and their families at heart, they would never
    have created and utilized the training PowerPoint that I have
    attached to my written testimony as Attachment A. This
    PowerPoint presentation was utilized to train the VA clinicians
    who would be screening Camp Lejeune veterans and their family
    members pursuant to the passage and the President signing the
    Honoring America's Veterans and Caring for Camp Lejeune
    Families Act of 2012. This PowerPoint not only regurgitated
    outdated and disputed science, it reads like a road map for how
    to deny veterans and their families the care outlined in the
    law.
        Finally, the description of Dr. Walters' vision of a Camp
    Lejeune veteran's wife, which shows on Slides 10 and 12 of
    Attachment A, went beyond the pale. It was demeaning and
    outright despicable. What makes this even worse is the fact
    that when Dr. Walters was asked if this depiction was a real
    individual, she replied, ``No. I took several actual individual
    cases and lumped them together to create that one example.''
    Does anyone need to wonder why we do not trust the VA?
        I challenge every Member of this Committee to research how
    much money the VA has expended since fiscal year 2012 on
    external governmental contracts for evaluations or opinions. I
    would venture a guess that between Camp Lejeune and the C-123
    aircraft Agent Orange issues alone, hundreds of thousands of
    taxpayers' dollars were spent, a lot of money that could have
    been spent caring for our veterans rather than devising methods
    and attempts to cheat them out of the benefits they deserve.
        Thank you, and I look forward to answering any questions
    that you may have.
        [The prepared statement of Mr. Ensminger follows:]
           Prepared Statement of Jerome Ensminger, U.S. Marine (Ret.)

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Attachments:

    Attachment A--VA Training Power Point dated August 2013
    Attachment B--Director ATSDR letter dated October 22, 2010
    Attachment C--VA Camp Lejeune Task Force Roster (1)
    Attachment D--VA Camp Lejeune Task Force Roster (2)
            Attachment A--VA Training Power Point dated August 2013

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

           Attachment B--Director ATSDR letter dated October 22, 2010

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Attachment C--VA Camp Lejeune Task Force Roster (1)

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Attachment D--VA Camp Lejeune Task Force Roster (2)

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Isakson. Thank you very much for your compelling
    testimony, Mr. Ensminger. Thank you.
        I will acknowledge at the outset the kind words you said
    about Senator Tillis. He was not in the room when you said
    them, so I want him to be sure to know you bragged about him.
        Senator Tillis. Would you mind repeating those comments?
    [Laughter.]
        Chairman Isakson. Let me make sure I have got this. With
    the exception of Sergeant Ensminger, every one of you testified
    in support of the veterans' appeal process, the new one, is
    that right?
        Mr. Fuentes. That is right.
        Ms. Rauber. Not completely.
        Chairman Isakson. But partially.
        Ms. Rauber. Partially.
        Mr. Fuentes. Mr. Chairman, if I may, we do not support and
    that is because we feel that there are certain aspects of it
    that need to first be addressed, most importantly, like you
    explained in the beginning, the 450,000 pending.
        Chairman Isakson. Let me finish. I think you will see where
    I am going with this. I appreciate you acknowledging that.
        We all want the appeals process to be improved, and I know
    you all have had input and collaborated with the VA, trying to
    make a new policy work. Is that right? In your testimony, Mr.
    Fuentes--and I want to make sure I have got this right--you
    said you applaud what is being done on the appeals, but you
    want to make sure, first of all, it is paid for; second of all,
    that the personnel are there to take care of the old claims and
    the old claims are resolved as a part of reforming the appeals
    process. Is that correct?
        Mr. Fuentes. That is correct, Mr. Chairman.
        Chairman Isakson. I think each and every one of you made an
    oblique reference to the same type thing, that although
    reforming the process prospectively is something we all want to
    do, we have 445,000, or 450,000 veterans still waiting for a
    final appeal disposition. We need to make sure whatever we do
    does not leave them out, but includes a way for us to get them
    taken care of. So, I want you to take that back to the
    Secretary and be sure to let them know about that.
        Mr. Fuentes. Yes, sir.
        Chairman Isakson. Second, and I think the VFW said it, if I
    have got it right, is the concern about Choice being a move
    away from VA health care to the extent that it is privatization
    of the Veterans Administration health services. There is no
    Member of our Committee that I know of who has made a statement
    one way or another that it is in any way possible for anybody
    to believe that we are for privatizing the VA, first and
    foremost.
        I want to say that, at the risk of bragging about the
    Ranking Member, myself, and the other Members at the dais, if
    you read the Veterans First bill, it enhances Choice access for
    veterans to get provider agreements and things like that for
    care in the community, but it in no way moves toward the VA
    going out of business and privatizing the VA. Instead, it
    improves the Choice aspect and choices for you. Do you all
    understand that?
        [Witnesses nodding heads.]
        Chairman Isakson. Then please help us get the remaining few
    holds we have got on that bill in the Senate off our bill so we
    can get it to the floor and pass it, because it is a major
    reform of the VA that is going to make a significant effect and
    significant difference.
        Mr. Blake, you talked about the certification of adaptive
    mobility equipment, is that correct?
        Mr. Blake. Yes, sir.
        Chairman Isakson. I am always--I am an honest broker. I
    never leave things off the table. I have been approached by
    people who are concerned that to have a certification process
    might be a conflict of interest if a provider was certifying in
    competition with others who provide the same thing. Is there a
    protection to see that does not happen in the bill Mr. Moran
    has introduced?
        Mr. Blake. I think that there is a little bit of language
    that could still be refined in the bill to address that
    concern. I think it was inadvertently left in to potentially
    create a problem with conflict of interest.
        Mr. Chairman, I will just offer this. The amusing thing
    about the debate over this bill is we found that when you bring
    the business entities together and debate it, they hate each
    other and want to push each other out; that is what we have
    seen with this bill. We are trying to mitigate all of the
    conflict of interest problems to ensure that everybody is an
    honest broker and fair player in this, which is why we had
    argued for the changes we did in the House side bill.
        Chairman Isakson. Well, I know what you have been dealing
    with, because those issues rose to my level yesterday when I
    was made aware of them, so I thought I would bring them up in
    open hearing so everybody could deal with it forthrightly.
        Let me thank all of you for the tremendous work that you do
    for us and the Committee. The VSOs do a great job of keeping us
    on track and on task. We all have the same goals, which are to
    make veterans health care more accessible and best for our
    veterans and see to it we do it in the best way for the
    taxpayers, as well. I thank each and every one of you for doing
    that.
        Mr. Ensminger, I appreciate what you said about Camp
    Lejeune and about Senator Tillis and Senator Burr, who have
    been outspoken critics to make sure we finally deal with those
    issues which long since should have been dealt with. I
    appreciate it very much.
        Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman. I want to
    reaffirm my own feeling that the VSOs have been really
    instrumental in the past year's efforts by the Congress and by
    the VA to improve performance, which includes eliminating
    delays as well as improving the quality of care. It also
    includes more community care, enabling veterans who have to
    wait too long or live too far from VA hospitals or other
    facilities to have access to the care that they need without
    having to wait. When it comes to medical care, time is not on
    our side. Time is never a good thing when the wait is only
    going to aggravate the medical condition. So, you have really
    been steadfast advocates and extraordinarily important in
    advising us, every one of your organizations, on how best to
    address improving the health care system, educational benefits,
    accountability within the VA, the home caregiver program, all
    of the reforms that are included in the Veterans First bill.
        One of the lessons learned is about VA construction,
    talking about taxpayer dollars. As you well know, every one of
    the major construction projects undertaken by the VA in the
    past several years has been way over budget and way behind
    schedule, the most egregious example being in Denver, where the
    cost overruns have totaled about $1 billion. That is money that
    could have been spent on veterans.
        In your testimony, Mr. Fuentes, you express support for the
    construction reform provisions in the discussion draft. I have
    told Secretary McDonald that I expect the Department to be much
    more transparent, as well as effective, with Congress and
    taxpayers who are footing the bill for this gross mismanagement
    that led to the delays and cost overruns at the Denver facility
    and at other facilities around the country. Denver is only the
    poster child. Tell me and your fellow veterans how these
    provisions will help to reform the process and eliminate those
    cost overruns.
        Mr. Fuentes. Thank you for the question, Senator. I think
    what this bill does is takes some lessons learned from Denver
    and from other facilities that had huge cost overruns and
    essentially ensures that the process is transparent, but also
    that it builds on those lessons learned, like improving the
    communication through the project management plan. So, it does
    not take a lot of lessons learned and we fully support it.
        Mr. Celli. If I may add to that, one of the reasons The
    American Legion supports it is because it integrates a third-
    party oversight in a way that brings that focus in at the
    beginning of the process.
        When you create a design-build process, the design has to
    match the dollars that you say that you can build it for, and
    if that is askew at the very beginning and then there is no
    oversight throughout the process where you have got a client
    who wants different things than what was in the original
    design-build, before you know it, you have got an unmanageable
    project. So, that is why we appreciate this bill which will
    bring additional oversight into that process.
        Senator Blumenthal. Thank you both.
        Mr. Atizado, I want to second what has been said about the
    importance of reforming the appeals process. If you have a
    result in a trial court and it is done quickly but then you
    have to wait years, perhaps decades, for justice on an appeal,
    the speed of the result in the trial court is irrelevant, and
    the same principle applies to the VA adjudicatory process. You
    have made that point, I think, not necessarily in those words,
    but about the importance of reforming the appeals process. In
    fact, you said in your testimony before us today that to
    achieve reform in this appeals process is to achieve historic
    reform this year, and it should be this year.
        I understand there are some reservations. I hope you agree
    with me, and I hope members of the panel agree, that we can
    overcome those criticisms on the issue of cost, for example, so
    that we are not taking away from other VA programs, other
    reservations that have been mentioned. As usual, we, I think,
    will produce a better bill if we take account of those kinds of
    reservations.
        So, let me ask you, do you think it will be historic and
    important that we do this bill?
        Mr. Atizado. Thank you for that question, Ranking Member
    Blumenthal. I do agree it would be historic if we can enact a
    bill that every stakeholder who has been engaged gets their
    issues addressed in a satisfactory manner.
        I must say, though, I want to reiterate what was said, and
    I want to make sure it is highlighted. The manner in which the
    current bill was created, I think, is also quite extraordinary.
    Everybody came to the table with a clean slate, fully committed
    and fully leaning forward to try to address this problem. This
    is one of the reasons why we support the bill as it is
    currently drafted, notwithstanding the issues that are
    outstanding, but the fact that the people involved, the
    organizations involved, VA, their commitment, we believe we
    can--we have a real possibility to get this down the finish
    line.
        Senator Blumenthal. Thank you very much.
        I might say, Mr. Chairman, just by way of a footnote to
    this conversation, that I understand that Secretary McDonald
    has issued a statement. Not my place to talk about it, but I
    think it has been made public and perhaps Deputy Gibson might
    be willing to share it with us. But I think it expresses regret
    for the remarks that were made.
        Chairman Isakson. You are recognized, Sloan.
        Mr. Gibson. If I could just--do you want me up here?
        Chairman Isakson. Turn the microphone on.
        Senator Tillis. Welcome to the team. [Laughter.]
        Mr. Gibson. It does feel a whole lot different over here.
    [Laughter.]
        A statement from the Secretary dated today. ``On Monday, I
    made some remarks on how we are working to improve veterans'
    satisfaction with the care they receive from VA. It was never
    my intention to suggest that I do not take our mission of
    serving veterans very seriously. In fact, improving access to
    care is my number 1 priority and the priority I have set for
    the entire Department.
        ``For the last 2 years, the huge majority of VA employees
    have worked tirelessly to improve the timeliness of the care
    and benefits we provide to veterans. As I have told Veterans
    Service Organizations, Members of Congress, and myriad other
    groups of veteran stakeholders, our goal is to ensure VA
    becomes the number 1 customer service organization in
    government. To do that, we are following many of the best
    practices of private sector health care providers and
    exceptional customer service organizations. At VA, we take our
    mission of caring for those who shall have borne the battle
    very seriously. We have the best and most noble mission in
    government.
        ``If my comments Monday led any veteran to believe that I
    or the dedicated workforce I am privileged to lead do not take
    that noble mission seriously, I deeply regret that. Nothing
    could be further from the truth. As we approach the Memorial
    Day holiday and pay tribute to the sacrifices of courageous men
    and women who placed the interests of others above their own,
    we at the VA remain focused on our mission to care for those
    who bravely served our Nation.''
        Thank you for the opportunity, Mr. Chairman.
        Chairman Isakson. Thank you, Sloan, and thank Secretary
    McDonald for that statement, which I think is most appropriate.
        Senator Blumenthal. I second that sentiment.
        Chairman Isakson. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chair and Ranking Member,
    and really all the Members of this Committee to put forth
    legislation. We hope you all can help us work out a few of the
    kinks and get it passed into law.
        I also want to thank the Committee staff and the staff of
    all of our offices who we all know do a lot of the work to get
    these bills moving.
        I will be fairly brief. I think all of you all were present
    during my earlier comments. One thing I am really counting on
    you all to help us with is identify good ideas, it is a matter
    of timing; not so good ideas, it is a matter of evolving maybe
    the original aims of the bill, but I really, speaking for my
    office, want to make sure that you all know my door is wide
    open. We want to make sure that we deal with all the competing
    priorities, funding and otherwise, so that we can get this
    right, mainly for the sake of the veterans.
        On that note, just very quickly, for the bills that I have
    had any sponsorship in--I think that you have already heard me
    talk about the Care Veterans Deserve Act and how I think there
    are a lot of aims in there that we can reconcile with the
    current transformation program or figure out when and if they
    make sense.
        But more than anything else--I am not going to speak for
    Senator McCain, but speaking as a Member of this Committee and
    among members that I have spoken with, there has never been an
    attempt to privatize the VA for the reasons that I have said
    before. It does not make sense. There is a great setting. If
    you have done as I have, gone to all your VA hospitals, all
    your health care centers, all the places where care is provided
    to veterans, when veterans come together in a group, there is a
    value to that that even goes beyond the medical treatment that
    they receive in this facility, oftentimes from a person who is
    a veteran themselves.
        So, if you have any other, outside of what you have
    documented in your written testimony, I would be happy to hear
    it. I do appreciate the fact that I believe most of the bills
    that we are working on, you all generally support. We need to
    work on appropriations and those sorts of things.
        Mr. Ensminger, I thank you for being here. I was a minute
    late into your testimony. Apparently, I missed the best part,
    but----
        [Laughter.]
        Senator Tillis. No, in all seriousness, I know this is
    deeply personal to you. This is something that Senator Burr has
    been working on for quite some time. My predecessor worked on
    it. I actually think this is an instance where the ATSDR, it
    makes sense to really put the onus back on the VA. If they want
    to provide science or evidence-based counters to the ATSDR's
    decisions, that is OK, but I really think in this case that we
    should bias our decisions to go along with their
    recommendations, and if on an exception basis the Department
    wants to come back, I would be open to that, where the science
    would lead us there. But, I think the benefit of the doubt
    always has to go to the veterans, particularly with the
    situation that happened down at Camp Lejeune. I thank you for
    your continued work. We are going to continue to work on this
    and I am optimistic that we will produce a good outcome.
        Mr. Ensminger. Thank you, Senator.
        Senator Tillis. The last thing I will say relates to
    Senator Blumenthal's questions about capital projects and
    construction. There are a lot of things that are working well
    now when we use contemporary models for building facilities.
    Since I have been Senator--these were decisions made before I
    was elected, but the outcome has been three new health care
    centers in North Carolina, increasing capacity that came online
    over the last 15 or 16 months by a million square feet in three
    different facilities in Fayetteville, Kernersville, and
    Charlotte. I am very proud of that. These are projects that are
    coming in on time. They are coming in on budget.
        We have got to make sure that we fund the operational till
    that is going to be necessary for them to fully build out their
    capabilities. There is some good work being done there and now
    they are having to correct some of the mistakes that were made
    in Denver and other places. But, I think, on the whole, if we
    follow those models, we are going to be in a lot better place.
    Now what we have to do is figure out how to modernize in some
    cases 70-year-old facilities like down in Fayetteville to get
    them up to modern standards, the standards that our veterans
    deserve.
        But, the last thing I want to leave you with is a
    commercial. This is not a political commercial, Mr. Chair. Our
    caseload down in North Carolina--we have a couple of dozen
    people that work on cases. We have opened and closed literally
    thousands of veterans' cases in the 15 months that I have been
    in the Senate. I need your help in making sure--we have gotten
    to a point now where we are trying to reach out and find people
    who may not know that they can get help from their
    Congressional member or their Senator and we need to make sure
    that we get the word out that you contact the VA, you contact
    any area of government and hope that you are on a good path to
    getting your needs fulfilled. But, if the first call or two
    does not look like it is going in the right direction, the next
    call should be to your Congressional member's office.
        For the Senate, I know that is as easy as going to the
    Internet and looking up Tillis.senate.gov. You can open a case
    there. We need to get the VSOs to communicate that to veterans
    and use us as a facilitator for helping you navigate these
    challenges until we get to a point to where, hopefully, that
    will be a rare circumstance. Right now, we are dealing with
    thousands of those a year and that is something that I want the
    veterans of North Carolina, and I speak, I believe, for all
    Congressional members, it is a service that they should take
    advantage of, so I would appreciate your help getting the word
    out.
        Thank you, Mr. Chair.
        Chairman Isakson. Thank you, Senator Tillis.
        I want to thank everyone from the VSOs for their testimony
    and the members of the Veterans Administration for their
    testimony in the previous panel. We will continue to work on
    this legislation. You were very helpful to us and very
    effective in your testimony. We appreciate your being here
    today.
        The Senate Veterans' Affairs Committee stands adjourned.
        [Whereupon, at 4:32 p.m., the Committee was adjourned.]
                                    ------

    Response to Posthearing Questions Submitted by Hon. Mazie K. Hirono to
     Carlos Fuentes, Senior Legislative Associate, Veterans of Foreign Wars
               mental health services provided to female veterans
        Question 1.  Mr Fuentes, in your testimony you reference a survey
    of women veterans by the VFW. 40% of respondents indicated that they
    are currently using mental health care services, or have in the past.
    Have you received any input from your members about their satisfaction
    with mental health services that they have accessed? Have your members
    responded with any recommendations on improving mental health care for
    women veterans offered by the VA?
        Response. Overall, 64 percent of the women veterans who responded
    to the VFW's survey indicated they were at least ``somewhat'' satisfied
    with their VA health care experience. Women veterans who reported they
    used VA mental health were slightly less likely to be satisfied with
    their overall health care experience--60 percent. However, women
    veterans who used VA mental health care were more likely than the the
    overall average to prefer to receive their care at VA instead of
    private sector doctors (57 percent vs. 53 percent). This indicates that
    women veterans who use VA mental health may see needs for improvement,
    but prefer to receive their mental health at VA rather than outside
    doctors.
        The VFW did not ask for specific recommendation on how women
    veterans would improve VA mental health, but noticed a general trend in
    comments that women veteran would like more gender specific care. A
    particular example was a veteran who recommended that VA hold group
    therapy for sexual assault victims who suffer from mental health
    conditions instead of requiring sexual assault victims to share their
    stories in groups with veterans with combat related mental health
    conditions.
                   permanent expansion of the choice program
        Question 2.  Your testimony states that VFW has serious concerns
    with permanently expanding the Choice program, and have stated in your
    testimony that Choice has yet to achieve what Congress envisioned when
    legislation was passed in 2014. VFW has also received a number of
    complaints from Veterans who either face delays in receiving care
    through the Choice Program, or experience billing problems. Have your
    members indicated to you that they prefer care from the VA, or through
    the Choice Program? What if any recommendations do you have to address
    the disparate and uncoordinated nature of care that your members have
    reported?
        Response. VFW members believe VA must leverage the capacity of
    community doctors to meet the growing demand on its health care system.
    With nearly 80 percent of VFW members reporting they use VA health care
    and the majority of them reporting that they prefer to get their care
    at VA health care instead of private sector doctors, VFW members
    believe that VA must serve at the primary provider and coordinator of
    care for veterans. As the coordinator of care for veterans, VA would be
    charged with ensuring veterans receive timely, high-quality,
    comprehensive and veterans centric care.
                      resources to address claims backlog
        Question 3.  You have indicated that VFW would not endorse any
    changes to the benefits appeals process until Congress allocates
    sufficient resources for VA to implement a comprehensive plan to
    address the current backlog of pending appeals. How would you, in this
    instance, define ``sufficient resources'' that must be provided to
    reduce the appeals backlog?
        Response. The VFW believes that VA must make a concerted effort to
    hire more staff and improve current systems and processes to ensure
    veterans in the current appeals backlog do not have to wait 5 years for
    a decision on their appeals. In order to implement new IT systems and
    hire more staff, the Independent Budget recommends Congress provide
    $23.1 million in fiscal year 2017 for the Board of Veterans Appeals.
    The Independent Budget has also recommended that Congress provide VA's
    compensation service $171 million in fiscal year 2017 to hire 1,700 new
    full time equivalent employees so VA can make progress in its workload
    of initial appeals.

                                A P P E N D I X

                                  ----------

    Prepared Statement of American Federation of Government Employees, AFL-
                                      CIO
        Chairman Isakson, Ranking Member Blumenthal, Members of the
    Committee, thank you for the opportunity to present the views of the
    American Federation of Government Employees, AFL-CIO and its National
    Veterans Affairs Council (AFGE). AFGE represents nearly 700,000 non-
    management Federal employees. Over forty percent of AFGE members are
    veterans working in the VA, Department of Defense, Department of
    Homeland Security and many other agencies. AFGE represents nearly
    230,000 VA employees working in the Veterans Health Administration
    (VHA), Veterans Benefits Administration (VBA), and National Cemetery
    Administration (NCA).
                                    s. 2049
        AFGE supports efforts to provide non-Departmental providers with
    information that enable them to provide quality, appropriate care to
    veterans when non-VA care is needed. However, AFGE is very concerned
    about the cost of setting up such a massive non-VA continuing medical
    education (CME) program and its impact on VA's information technology
    system and the availability of funds for CME for VA's own providers.
    Therefore, AFGE urges the Committee to address the more urgent and
    longstanding problem of lack of adequate support for the CME needs of
    VA providers. VA physicians and dentists are entitled to a woefully
    inadequate amount of CME reimbursement under 38 U.S.C. 7411. The $1000
    maximum reimbursement level has not been updated since 1991. Many other
    health care employers provide 3-4 times as much reimbursement. Other VA
    medical professionals who also need CME to maintain their licenses and
    credentials often get no reimbursement because managers have complete
    discretion over this matter and frequently assert a lack of funds for
    CME.
    Alternative recommendations:
         Amend 38 U.S.C. 7422 to provide VA physicians and dentists
    with a competitive amount of CME reimbursement.
         Conduct oversight of the CME needs of other VA medical
    professionals.
                                    s. 2896
        AFGE strongly opposes this bill to make the Choice Program
    permanent. AFGE believes that it is premature to establish a permanent
    Choice program at this time. AFGE urges the Committee to defer any
    action that would make what reports suggest is a flawed temporary
    program permanent halfway through its authorization period. Instead,
    Congress should conduct immediate oversight of the many serious
    problems that veterans are experiencing in trying to access non-VA care
    under the current pilot program.
        Congress established the current Choice program as a temporary fix
    to severe access problems. The current Choice program does not expire
    until the end of FY 2017. It is too early to determine whether the
    current pilot program has been a success or failure, and whether its
    high price tag and adverse impact on VA's own capacity justifies its
    continuation.
        Since enactment of the Choice Act, the Department has made
    significant progress toward its goal of hiring more front-line
    clinicians and support personnel who provide veterans with the
    exemplary health care services that they rate highly and strongly
    prefer. We also note that there is bipartisan support in the Committee
    to implement VA's Congressionally-mandated plan to consolidate non-VA
    care programs.
        Veterans deserve great care and strong accountability from VA and
    non-VA providers alike. Therefore, we strongly recommend that the
    Committee take adequate time to address the many troubling reports
    regarding the Choice Act that have been made by veterans and the VA
    health care personnel trying to assist them. These include the Choice
    Program's alleged failure to provide community clinics with consults
    containing diagnoses and physician instructions, or alert veterans that
    their evaluations have been scheduled, or notify the VA that a non-VA
    appointment has been made. This last item has resulted in many wasted
    in-house appointment slots.
        In addition, many veterans are being harassed by bill collectors in
    connection with Choice Act care. Veterans face longer wait times for
    in-house VA care because the VA employees assisting them often have to
    spend hours on the phone trying to deal with HealthNet and TriWest.
    Similarly, short staffing at VA's own primary clinics has worsened
    because staff have to be diverted to the time-consuming Choice referral
    process. AFGE has also received reports of providers under pressure to
    act outside the scope of their licenses to justify referrals to non-VA
    providers.
    Alternative recommendations:
         Conduct additional oversight of impact of Choice on
    quality and access of non-VA care and on VA's in-house capacity to
    provide timely care during the remainder of the pilot program period.
         Expedite implementation of VA's plan to consolidate non-VA
    care programs.
            discussion draft on va proposal to modify requirements
                         related to comp and pen exams
        AFGE strongly opposes this discussion draft bill. This bill would
    greatly increase the burden that veterans must meet to prove their
    claims. The proposed requirement for ``objective evidence'' would
    arbitrarily and significantly raise the evidentiary threshold for
    triggering a VA comp and pen exam. Without VA exams, many veterans will
    not be able to provide sufficient evidence of their meritorious claims.
        This draft bill is likely to result in additional appeals,
    impacting both the veteran waiting even longer to receive an accurate
    decision on his or her claim, and worsening the appeals backlog for
    other veterans with pending appeals.

        Thank you for considering the views of AFGE.
                                     ______

                    Prepared Statement of Diane M. Zumatto,
                     National Legislative Director, AMVETS
                                  introduction
        Distinguished members of the Senate Veteran Affairs Committee, It
    is my pleasure, on behalf of AMVETS, to offer this statement on the
    following pending pieces of legislation: S 2919; S 2896; S 2888; S
    2883; S 2679; S 2520; S 2487; S 2049 & various draft legislation.
        It is encouraging to acknowledge at this time that, despite the
    extraordinary sacrifices being asked of our men and women in uniform,
    the best and the brightest continue to step forward to answer the call
    of our Nation in its time of need. I know that each of you is aware of
    and appreciates the numerous issues of importance facing our military
    members, veterans, retirees, families, and survivors and for that
    AMVETS is extremely grateful.
                              pending legislation
        S. 2896, the Care Veterans Deserve Act of 2016--AMVETS strongly
    supports this legislation which seeks to:

         eliminate the sunset date of the Veterans Choice Program;
         expand eligibility for the program; and
         to extend the operating hours for pharmacies & medical
    facilities

        The current program limitations severely impact the value of the
    program to veterans. This is especially true for those working veterans
    who are essentially forced to take time off from work in order to see a
    VA doctor and/or pick up a prescription from a VA pharmacy.
        Furthermore, AMVETS sees the Veterans Choice Program as a nearly
    perfect solution to the ongoing VA healthcare access problem.

        S. 2888, the Janey Ensminger Act of 2016--AMVETS supports this
    legislation because the issue of Toxic Wounds is a critically important
    to us, however, we are disappointed that Ft. McCleallan, as well as
    others, and its veterans have once again been ignored. (It is my
    understanding that there are approximately 140 military bases in CONUS
    that are on the EPA's Superfund list.) This legislation seeks to, among
    other things:

         require the Secretary, through the Agency for Toxic
    Substances & Disease Registry, to reveiew the relevant scientific
    literature related to exposure to toxins at Camp Lejeuen to specific
    illnesses or conditions incurred by those individuals;
         determine each illness or condition for which there is
    evidence that exposure to toxins at Camp Lejeune may be a cause of;
         categorize the evidence of the connection or the illness
    or condition to such exposure;
         require the publication, in the Federal Register and on
    the DHSS website, a list of each illness or condition for which a
    determination is made;
         require the Secretary to transfer $2,000,000 in 2017 &
    2017 to be used to continue building and enhancing the claims
    processing system, eligibility system and web portal for the Camp
    Lejeune Family Member Program.

        S. 2883, Appropriate Care for Disabled Veterans Act of 2016--AMVETS
    supports this legislation which would extend the requirement of the VA
    Secretary to submit a report on the capacity of the VA to provide for
    the specialized treatment and rehabilitative needs of disabled
    veterans.

        S. 2679, Helping Veterans Exposed to Burn Pits Act--AMVETS fully
    supports this legislation which seeks to: establish a Center of
    Excellence in the prevention, diagnosis, mitigation, treatment and
    rehabilitation of health conditions relating to exposure to burn pits.
        AMVETS has consistently been a staunch supporter of burn pit
    legislation and we are very encouraged by the depth of this
    legislation, which would finally bring the appropriate recognition and
    treatment to veterans suffering the ill effects of burn pit exposure.
        Furthermore, AMVETS believes that it is absolutely critical that
    DOD and VA be required to work collaboratively on this important issue
    and that additional environmental hazards, such as: dust, sand and
    smoke will be included in the activities of the Center.

        S. 2520, Newborn Care Improvement Act--AMVETS does not have a
    position on this legislation.

        S. 2487, Female Veteran Suicide Prevention Act--Preventing veteran
    suicide has been, and continues to be, a top priority for AMVETS. It is
    for this reason that we fully support this important legislation which
    seeks to specifically identify mental health care and suicide
    prevention programs and metrics that better meet the needs of our
    female veterans.

        S. 2049, a bill to establish within the VA a continuing medical
    education program for non-department medical professionals who treat
    veterans and their family members to increase knowledge and recognition
    of medical conditions common to this population. AMVETS supports this
    bill because the ever growing expansion of veteran community care
    essentially necessitates a program of this kind to ensure that veterans
    receiving care in the community get the best and most informed care
    possible.

        S. 2919, the State Outreach for Local Veterans Employment Act of
    2016--AMVETS fully supports this legislation which recognizes the
    unacceptably high unemployment rate among veterans and seeks to provide
    greater flexibility to individual States in their efforts to provide
    the services of DVOPs & LVERs to veterans within their state.

        Draft Legislation to reform the rights and processes relating to
    appeals of decisions regarding claims for benefits under the laws
    administered by the Secretary of VA--As everyone on this Committee is
    aware, 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 slow and cumbersome process
    leads to many veterans having to wait years for a final decision on
    their case.
        AMVETS believes that the status quo is simply unacceptable! There
    is absolutely no justifiable excuse for 440,000 veterans being forced
    to wait extended periods for their earned benefits due to bureaucratic
    and administrative inefficiencies. No doubt the VA's tendency to shift
    their focus back and forth from one crisis area to the next greatly
    exacerbates the backlog problems.
        What is truly needed, and is certainly a reasonable expectation, is
    for the VA to make the right decision, in a timely manner, the first
    time, so that veterans, and American taxpayers, are not repeatedly
    punished by the seemingly endless cycle of wrong decisions.
        It is also undeniably critical that VA develop a system/process
    that, among other things:

         allows for quick, yet consistent decisions on all claims
    and appeals at both the RO and BVA;
         provides effective date protection; . allows for the
    establishment of clear, legal precedents;
         provides veterans with multiple processing options
    throughout the life of their claim or appeal based on their personal
    circumstances;
         provides VBA and the Board with all the necessary
    resources (human, financial, IT, etc.) to efficiently accomplish its
    mission;
         addresses the current appeals backlog;
         evaluates and addresses the shortcomings in the VBMS;
         accepts competent and credible private medical evidence as
    part of an eligible veteran's claim and/or appeal; and
         establishes realistic goals for dealing with both legacy
    and new appeals

        As you know, AMVETS has always worked to enhance and defend the
    earned benefits of all Americans who are serving or have served
    honorably and selflessly in the Armed Forces. AMVETS has also
    simultaneously worked closely with both Congress and the VA to help
    develop and improve both the claims and appeals processes.
        AMVETS fully supports this critically important legislation which
    seeks, among other things, to:

         modernize and remedy a number of problems within the
    current VA appeals processing system by creating three distinct `lanes'
    which will address specific veteran needs;
         improve VBA decision notices; and
         provide effective date protection

        Draft Legislation to make certain improvements in the provision of
    automobiles and adaptive equipment by the VA--this seems like a pretty
    straight forward and common sense bill which seeks to ensure that
    eligible veterans have some personal choice in the vehicle or other
    conveyance they receive from the VA. It also requires the Secretary to
    develop a comprehensive policy regarding quality standards for
    providers who modify vehicles for veterans, including in part:
    standards of safety and quality of equipment, as well as the
    installation of such equipment. AMVETS believes that this type of
    legislation is long overdue and we support its intent of better meeting
    the needs of our disabled veterans.

        Draft Legislation to expand eligibility to hospital care and
    medical services under section 101 of the Veterans Access, Choice and
    Accountability Act of 2014 to include veterans in receipt of health
    services under the pilot program of the VA for rural veterans--AMVETS
    has always advocated for the special needs of our rural veterans and
    this appears to be a simple and economical solution to help our
    veterans who face the greatest roadblocks to healthcare access;
    therefore, AMVETS supports this legislation.

        Draft Legislation to require the VA Secretary to use industry
    standards, standard designs, and best practices in carrying out the
    construction of medical facilities--It seems clear that if we had had
    this legislation previously, we wouldn't be in the current situation
    with the Aurora, Colorado VA medical center. If this legislation
    prevents a similar situation from occurring, then our support will be
    justified.
        The bill requires the Secretary to contract for forensic audits
    when expenditures exceed projected costs by 25% or more and to provide
    quarterly reports indicating progress, adherence to the budget and any
    cost or schedule variances of the project. What's not to like?

        Draft Legislation to revise the evidentiary threshold for medical
    exams and opinions--AMVETS supports this legislation which seeks to
    expand the medical evidence which can be taken into consideration by
    the VA when evaluating a veteran's claim for benefits.

        This completes my statement and I would be happy to provide written
    responses to any questions the Committee may have.
                                     ______

          [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

         Prepared Statement of Military Officers Association of America
        Chairman Isakson, Ranking Member Blumenthal, and Members of the
    Committee, 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, May 24, 2016.
        MOAA does not receive any grants or contracts from the Federal
    Government.
        On behalf of our more than 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's position and recommendations are provided on the following
    bills:

         S. 2896, Care Veterans Deserve Act of 2016
         S. 2883, Appropriate Care for Disabled Veterans Act of
    2016
         S. 2679, Helping Veterans Exposed to Burn Pits Act
         S. 2520, Newborn Care Improvement Act
         S. 2487, Female Veteran Suicide Prevention Act
         Draft Legislation, Reform the Rights and Processes
    Relating to the Appeals of Decisions
         Draft Legislation, Modify Requirements for VA Compensation
    and Pension Examinations
    Health Care:
                   s. 2896, care veterans deserve act of 2016
        This bill would eliminate the sunset date of the current Veterans
    Choice Program, expand eligibility for the program, and extend
    operating hours for VA Health Administration (VHA) pharmacies and
    medical facilities.
        MOAA thanks Senators John McCain (R-AZ) and Thom Tillis (R-NC) for
    their effort to improve the Choice Program so more veterans will have
    access to VA and community health care programs.
        The bill is a good start in addressing some of the underlying
    problems in the Choice Program, but doesn't address the other six
    disparate Care in the Community Programs which are not integrated with
    the Choice Program, thus continuing to add more complexity and
    confusion to the program, further limiting veterans access to health
    care.
        MOAA supports the following provisions in the legislation:

         Requires VA to provide information about the availability
    of care and services for veterans enrolled in the health system.
         Allows VA to contract with a national chain of walk-in
    clinics to provide hospital care and medical services to enrolled
    veterans. While MOAA is supportive of this section of the bill, we are
    concerned about the additional costs on VHA by allowing all veterans,
    including those with non-service-connected conditions, to access this
    care at no cost. Such a change deviates from VHA's current payment
    practices where veterans with non-service-connected conditions are
    typically required to pay a copayment for their care.
         Grants VA the authority to allow licensed health care
    professionals at any location in any State, regardless of where the
    health professional or patient is located, to provide treatment through
    the use of telemedicine.
         Requires VA to conduct best-practices peer review of each
    medical center to evaluate the efficacy of health care delivered in the
    facility. MOAA recommends adding a provision in this section to require
    VA to also conduct an assessment of capacity to determine existing gaps
    in furnishing care and services, including forecasting the short- and
    long-term demand and its impact on the system.

        While the bill provides a number of positive improvements to the
    current health system, the bill lacks the necessary funding and
    resources needed to support the requirements of the legislation. Given
    the current rates of usage of all Care in the Community Programs,
    including Choice, VA expects demand to continue for the foreseeable
    future.
        In fact, the months of March and April 2016 were the highest
    performing months for VA community care authorizations, including
    Choice--approximately 374,000 in March and 319,000 authorizations were
    created in April. And for Choice, VA projects the funding for the
    program will run out sometime in May 2017, well before the end of the
    fiscal year when the program is scheduled to sunset.
        Implementing the requirements outlined in S. 2896 without the
    associated funding would place additional budget pressures on an
    already fiscally constrained system, and, would likely result in
    further fragmentation of the system, ultimately limiting veterans'
    access to care--outcomes opposite of what the bill intends to achieve.
        Instead, MOAA believes VA's Plan to Consolidate Care in the
    Community provides the best strategy forward. We urge Congress to fully
    fund and to consolidate all VA Care in the Community Programs,
    including the Veterans Choice Program as requested by the Department,
    in legislation to give the Secretary greater flexibility in managing
    community care dollars.
          s. 2883, appropriate care for disabled veterans act of 2016
        MOAA supports this bill, which would require a report to Congress
    on VA's capacity to provide specialized treatment and rehabilitative
    needs of disabled veterans.
        The bill reestablishes the requirement in law indefinitely,
    eliminating the original expiration date of 2008.
        The need for specialized treatment and rehabilitative care and
    services has never been greater.
        We thank Senators Sherrod Brown (D-OH), Patty Murray (D-WA), and
    Bernard Sanders, (I-VT) for introducing the bill so our most vulnerable
    veterans get the care they need for a better quality of life.
               s. 2679, helping veterans exposed to burn pits act
        MOAA supports the intent of S. 2679, which would establish a VA
    center of excellence for preventing, diagnosing, mitigating, treating,
    and rehabilitating veterans with health conditions relating to exposure
    to burn pits.
        While the bill attempts to address illnesses and other health
    conditions found in veterans exposed to toxins from burn pits in Iraq
    and Afghanistan, MOAA believes a center of excellence for all toxic
    wounds and illness, integrating the collective research, prevention,
    and treatment efforts, would be a better option for leveraging limited
    resources and funding to address not only burn pit exposures, but also
    other conditions such as Agent Orange and Gulf War Syndrome.
                     s. 2520, newborn care improvement act
        MOAA fully supports this bill. The Newborn Care Improvement Act
    would extend the period of health care and services VA provides to
    newborns from seven to 14 days.
        MOAA has long supported extending the period of newborn care as it
    provides for the best health outcomes for both the child and the
    veteran. We recommend Congress provide VA with the additional funds to
    support the requirement.
                 s. 2487, female veteran suicide prevention act
        This bill would direct the VA to identify the most effective mental
    health care and suicide prevention programs and metrics in treating
    female veterans.
        MOAA strongly supports this bill as well as its companion in the
    House, H.R. 2915.
        The rising rate of suicides among female veterans is staggering.
    The VA reports, for female veterans ages 18-29, the risk of suicide is
    12 times the rate of civilian women; for the period 2000-2010, suicides
    among female veterans rose by 40 percent.
        Yet little research has been done to address these alarming rates
    and the underlying physical and mental conditions. This legislation
    will go a long way in addressing suicide rates and improving the
    medical care and services necessary to promote physical and
    psychological health and well-being of all veterans and servicemembers.
    Benefits:
        draft legislation, reform the rights and processes relating to
                            the appeals of decisions
        MOAA agrees the current number of appeals pending a decision by VA
    is wholly unacceptable for veterans and thanks Senator Richard
    Blumenthal for his leadership in this area. MOAA is very sympathetic to
    VA's assertions that it is unable to provide veterans with timely
    appeals decisions given the current claims process. The solution
    proposed by VA; however, contains no reliable indication that it will
    solve the backlog and also removes important procedural protections
    from veterans.
        VA has been unable to provide any statistics or estimates of how
    this new system will reduce their workload or how VA will be able to
    provide decisions within the 125-day target goal. In the meantime, the
    new claims process takes away the veteran's right to have VA assist him
    or her in their claim development after VA renders its first decision
    in a claim. This is a dramatic change from the current procedure where
    VA is required to assist in claim development through the final agency
    decision. This change renders the entire VA claims system, following
    the initial ratings decision, an adversarial process where previously
    it was a paternalistic, non-adversarial process.
        For that reason, MOAA believes the duty to assist a veteran should
    continue following the initial rating decision and end only when a
    claim reaches the Board of Veterans' Appeals. This will satisfy VA's
    goal of avoiding additional claims development at the Board, but ensure
    a veteran obtains needed assistance without having to pay for
    assistance in an adversarial system.
        Elements of the proposed changes could reduce the number of appeals
    filed by veterans, and thus the backlog, without prematurely ending
    VA's duty to assist. During meetings between VA and VSOs earlier this
    year, the general consensus reached by both sides was that many
    veterans file appeals because they simply do not understand why VA did
    not grant their claim. Improving the notice provided to veterans so it
    is thorough and understandable would reduce the number of appeals by
    itself. The proposed changes to Notices of Decisions would accomplish
    this.
        Another provision in the proposed legislation that would reduce the
    number and duration of appeals would make favorable factual findings
    binding upon VA. This is another way to reduce the appeals backlog
    while not making the entire post-decision process adversarial by ending
    VA's duty to assist a veteran.
        MOAA also believes if this change in the claims proceedings is
    enacted, veterans who have filed a Notice of Disagreement prior to the
    passage of the legislation should be allowed to opt into the new claims
    processing system to allow them to take advantage of the faster
    processing times. This will allow those veterans to receive quicker
    decisions, presuming VA is able to meet its 125-day target goal of
    issuing them. There is no apparent reason to prevent veterans with
    existing appeals from opting into this new system.
                 draft legislation, modify requirements for va
                     compensation and pension examinations
        MOAA does not agree with the proposed modifications to 38 U.S.C.
    5103A (d) (2), to modify the requirements under which VA is required to
    provide compensation and pension examinations to veterans seeking
    disability benefits. These proposed changes would require all veterans
    to objectively corroborate in-service incidents, which they may not
    possibly be able to obtain evidence for, before VA would allow the
    medical examination to take place.
        This scenario would further deteriorate VA's duty to assist a
    veteran--in this case, before an initial ratings decision is even made.
    MOAA does not support such a modification.

        MOAA thanks the Committee for considering this important
    legislation and for your continued support of our veterans and their
    families.
                                     ______

        Prepared Statement of CDR John B. Wells, USN (Ret.), Executive
                      Director, Military-Veterans Advocacy

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                                     ______

     Prepared Statement of Martin Caraway, Legislative Chairman, National
                Association of County Veterans Service Officers
        Good afternoon Chairman Isakson, Ranking Member Blumenthal, and
    Members of the Committee, the National Association of County Veterans
    Service Officers (NACVSO), is honored to present to you the views we
    have concerning the pending legislation before you today.
        The National Association of County Veterans Service Officers is an
    organization made up of 1,600 local government employees, who work with
    veterans every day to aid in the delivery of veterans' benefits,
    advocacy, health care enrollment amongst others. We would like to thank
    you for your commitment in remedying some of the largest struggles we
    as advocates' face and more importantly that veterans face.
        The following provides NACVSO's position and recommendations on the
    following bills:

         S. 2896 Care Veterans Deserve Act of 2016
         S. __ (Blumenthal), Appeals Reform

        S. 2896, Care Veteran Deserve Act of 2016: Generally, NACVSO
    supports this bill with exceptions. This legislation does not provide
    additional financial resources necessary for permanently running a
    program as robust as Choice. Second it does not remedy the payment
    mechanism to community providers. The third party administrators have
    failed to pay claims promptly and thus have had negative credit
    implications on the veterans utilizing the service. While the VA is
    working to resolve these credit disputes, it is alarming that we would
    continue to utilize these contractors to implement this long term.
        The expansion to pharmaceutical services is most certainly a step
    in the right direction. NACVSO encourages VA with the support of
    Congress to fund guaranteed 72-hour delivery of medications ordered on
    ``my healthevet.'' We believe that this mechanism would greatly enhance
    users ability to order medications when they realize the medication
    needs to be refilled without having to expend addition VA resources by
    calling and requesting urgent shipping.
        Last, contracting with national chains of of walk-in clinics along
    with the elimination of pre authorization and co-pays would go a long
    way in improving the Veterans Choice Bill in practical application.
    Veterans frustrations are born of communicating with multiple parties
    to utilize services for medical services that urgent or semi-urgent in
    nature.
        S. __(Blumenthal), a bill to reform the rights and processes
    relating to appeals of decisions regarding claims for benefits under
    the laws administered by the Secretary of Veterans Affairs: NACVSO
    strongly supports appeals/claims reform. It does not need to be
    reiterated at how the current appeals process is a disservice to
    claimants, with a current inventory of 445,000 appeals and with no
    action the appeals inventory will surpass two million cases in the next
    decade. NACVSO is committed to continuing to work with the VA and
    service organization partners to aid in the expeditious treatment of
    veterans claims but not at the sacrifice of quality. We feel that this
    proposed language is the change we as local advocates need to ensure
    that their cases are heard and appropriately adjudicated in a timely
    fashion, while maintaining claimant rights under the current
    regulation.
        This legislation does not propose a mechanism in which the Board of
    Veterans Appeals (BVA) can significantly reduce/eliminate their current
    inventory. NACVSO is in support of short term increased funding
    allocated to the BVA designated for this purpose. NACVSO also strongly
    recommends, if this is enacted that current claimants in the BVA claims
    inventory be given the option to opt into this new process. By doing
    so, the appeals inventory will be reduced while the veteran claimants
    are given the option of having their newly submitted evidence heard at
    the Agency of Original Jurisdiction (AOJ).
                                     ______

     Prepared Statement of David Brasuell, President, National Association
    State Directors of Veterans Affairs and Administrator, Idaho Department
                              of Veterans Services

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                                     ______

        letter from the national mobility equipment dealers association
        Chairman Isakson, Ranking Member Blumenthal, and esteemed Senators
    of the Veterans' Affairs Committee: The National Mobility Equipment
    Dealers Association (NMEDA) thanks you for this opportunity to comment
    on Senator Moran's Discussion Draft, entitled the Veterans Mobility
    Safety Act of 2016. Last week, identical legislation, H.R. 3471, was
    marked up and unanimously passed by the House of Representatives
    Committee on Veterans' Affairs. We are hopeful that the full House of
    Representatives will soon have an opportunity to vote on this common
    sense, bipartisan legislation.
        This is an exciting time for our organization that stands in full
    support of Senator Moran's draft legislation, which would establish
    enforceable, minimum standards for providers participating in the
    Automobile Adaptive Equipment (AAE) program, administered by the U.S.
    Department of Veterans Affairs (VA). As you are aware, there are
    numerous problems with how the VA currently administers the AAE
    program.
        For far too long, the VA has allowed unqualified providers
    performing unsafe and unreliable vehicle modifications and equipment
    installations to participate in the AAE program. If the provider fails
    to properly install, or modify, the equipment, this scenario quickly
    becomes a safety hazard for the veteran and the driving public.
    Unfortunately, this is an all too common occurrence. Further, because
    the AAE program provides reimbursement (either to the provider or to
    the qualifying veteran), the taxpayer ends up paying for the inadequate
    modification services to be corrected. Simply put, Senator Moran's
    draft legislation would put an end to this dangerous and costly
    practice.
        The VA's AAE program assists disabled veterans by providing
    reimbursement for the sale, installation, maintenance, and repair of
    automobile adaptive equipment. Automobile adaptive equipment, including
    unoccupied wheelchair and scooter lifts, driving controls, and vehicle
    access modifications enable veterans with disabilities to accomplish
    daily tasks and participate in work, education, and recreational
    activities. The AAE program has wonderful potential, but unfortunately,
    the current administration of the program is alarming, due to the
    absence of enforceable standards for participating providers.
        Inferior providers are also paid by the VA for their work. NMEDA
    has seen inferior modifications done by: Providers operating out of
    home garages/parking lots/mobile trucks, vendors lacking insurance
    coverage, vendors employing uncertified welders and technicians,
    vendors lacking the specialized tools and equipment necessary to
    perform AAE vehicle modifications, and vendors unwilling to provide
    emergency services. Quality concerns range from installing faulty
    wiring to completing the modifications with chronically unreliable
    power, steering, and braking systems. Such poor quality installations
    have very real safety implications and can result in automobile
    accidents, vehicle fires, injuries, or worse. All modifications to a
    vehicle involve a degree of complexity. Tinkering with the drivability
    of a vehicle, particularly a disabled veterans' vehicle, requires skill
    and workmanship. As such, NMEDA believes that anyone that modifies an
    automobile in the AAE program should be certified to work on all
    modifications and installations for our veterans.
        Contrast this scenario, where the VA requires an individual to be
    certified in order to sell a bottle of oxygen to a veteran, yet someone
    who is not certified can install a $30,000, high-tech electronic
    driving control system on a disabled veterans' vehicle. In practical
    terms, this means that anyone can provide this service to veterans, and
    receive taxpayer dollars for doing so.
        The problems do not stop with the first installation. When a
    veteran complains to the VA about an unsafe installation, the VA has a
    history of referring the repair work to a vendor certain to complete
    the job properly. It often costs the VA more money to fix the inferior
    installation than it would cost to have the installation performed
    properly to begin with. Senator Moran's draft legislation would get
    ahead of this problem, and require standards to be set so that veterans
    know that they are getting work done by a quality, certified provider.
        Some have raised unwarranted concerns about the ``conflict of
    interest'' section of this draft legislation, particularly the
    certification of providers by a third party organization or
    manufacturer. The draft legislation correctly protects against those
    entities that may stand to unreasonably gain from a certification
    program, and steps are taken in the bill to minimize the possibility of
    that happening. NMEDA agrees and supports this language.
        However, NMEDA believes that the certification of providers by any
    one third party organization does not mean that the organization itself
    has a conflict of interest that is financial, or otherwise. In order to
    have such a conflict, the VA should analyze whether the third party
    organization stands to unreasonably gain from the VA designating the
    organization's quality standards high enough so that it can certify
    providers of modification equipment.
        NMEDA is dedicated to ensuring that people with disabilities are
    provided with safe and reliable automotive transportation through the
    establishment of industry guidelines and quality procedures for the
    proper and safe installation of automobile adaptive equipment. As such,
    NMEDA fully supports the Veterans Mobility Safety Act of 2016, as it
    would require the VA to address disabled veterans' unique mobility
    needs responsibly and with long-overdue concern for quality,
    performance, and safety.
                Respectfully Submitted,
                                                          NMEDA
                                     ______

     Prepared Statement of Barton F. Stichman and Ronald B. Abrams, Joint
         Executive Directors, National Veterans Legal Services Program
        Mr. Chairman and Members of the Subcommittee: Thank you for
    inviting us to submit written testimony concerning legislative efforts
    to reform the veterans claims and appeals process in the United States
    Department of Veterans Affairs (VA). Our testimony addresses two
    discussion drafts: (1) the draft bill ``to reform the rights and
    processes relating to appeals of decisions regarding claims for
    benefits under laws administered by the Secretary of Veterans Affairs,
    and for other purposes'' sent to the Committee for discussion by
    Senator Blumenthal (hereinafter ``VA appeals reform draft'') and (2)
    the discussion draft to amend 38 U.S.C. Sec. 5103A(d)(2) to change the
    evidentiary threshold for VA medical examinations and opinions.
        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.
                          va appeals reform draft bill
        This part of our testimony focuses on the VA appeals reform draft
    bill sent to the Committee for discussion by Senator Blumenthal. We
    very much appreciate the opportunity to share our views on this
    important piece of potential legislation. 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.
        We believe the VA appeals reform draft bill 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 proposed legislation 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 the proposed legislation. Taken together, we
    believe these features of the draft bill will decrease appeal times
    while providing claimants with various options for pursing their
    appeals. The most significant positive features in the proposed
    legislation are:

         The draft bill 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.
         The draft bill 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.
         The draft bill 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.
         The draft bill 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.
         The draft bill 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 the draft bill 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 the bill 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.
        The draft bill 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 the draft bill 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 the draft bill 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 the draft bill. Nonetheless, VA
    officials have repeatedly represented that under the draft bill, 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 the draft bill 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 the draft bill. 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 this draft bill
    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 16 on page 8 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 10 of page 10, 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 the draft bill, 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 the proposed bill 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: The Draft Bill Needs to be Amended to Provide An
    Effective Date and for Handling the Inventory of Pending Appeals
        The draft bill 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 400,000
    currently pending VA appeals. The draft bill 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 the draft bill, 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 400,000 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 objects to such an unfair system.
        NVLSP has three suggestions regarding the effective date and the
    need to address the existing inventory of pending appeals. First, NVLSP
    urges 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
    the draft bill and provisions that address the following two issues
    regarding VA allocation of its resources under the draft bill:

        (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 the draft
    bill'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 the bill 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.
           discussion draft on revision to evidentiary thresholdfor
                      va medical examinations and opinions
        NVLSP strongly opposes enactment of the changes to 38 U.S.C.
    Sec. 5103A(d)(2) contained in this discussion draft. At the outset, it
    is important to understand the legislative process that led to
    enactment of current 38 U.S.C. Sec. 5103A(d)(2). That provision was
    adopted by Congress as part of the VA Claims Assistance Act of 2000
    (VCAA) after a long legislative debate in which all stakeholders
    participated, including the VA and the major veterans service
    organizations. It contains a carefully crafted compromise. As discussed
    below, the case law developed over the last 16 years provides clear
    guidance to both veterans and the VA on their respective obligations
    with regard to VA assistance. The only significant problems that
    currently exist involve individual cases in which the VA regional
    offices or the Board of Veterans' Appeals fails to comply with VA's
    clear legal obligations.
        Under the current statute, VA is required to assist a veteran in
    substantiating the claim for benefits by affording him/her a VA medical
    examination or opinion unless there is no reasonable possibility that a
    VA medical examination or opinion would help the veteran substantiate
    the claim for VA benefits. Providing a medical examination or opinion
    is possibly the most important feature of VA's duty to assist, and in
    many cases, a VA medical examination or opinion will provide the
    claimant with the evidence needed to substantiate his or her claim. The
    U.S. Court of Appeals for Veterans Claims correctly determined a decade
    ago that under the current statute, a claimant has a ``low threshold''
    to satisfy the threshold requirement to obtain a VA medical examination
    or opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
        NVLSP agrees that VA has a legitimate interest in not providing
    examinations in every single disability claim, including those claims
    that are frivolous. However, the current statute already has
    protections in place that adequately serve that interest. Under the
    current statute, if there is no indication that a veteran's current
    disability or symptoms may be related to an event or injury in service,
    then the VA does not have to provide the claimant with an examination
    or opinion. See McLendon, 20 Vet. App. at 81; see also 38 U.S.C.
    Sec. 5103A(a)(2) (``The Secretary is not required to provide assistance
    to a claimant under this section if no reasonable possibility exists
    that such assistance would aid in substantiating the claim.'').
    Therefore, the VA already has flexibility under the current version of
    the statute in determining who should be afforded a VA examination.
    There is simply no need for a revision.
        This discussion draft would make it much easier for the VA to deny
    a veteran's disability claim without the need to provide the veteran
    with a VA medical examination or opinion. It does so by adding a fourth
    threshold requirement to the three threshold requirements that already
    exist in 38 U.S.C. Sec. 5103(d)(2) before the VA is required to provide
    a VA medical examination or opinion. Under this new fourth threshold
    requirement, the record must contain ``objective evidence'' of an in-
    service injury, disease, or event capable of causing an injury or
    disease. The discussion draft contains two exceptions to this fourth
    threshold requirement: cases covered by 38 U.S.C. Sec. 1154(b)
    involving events that occur during combat and cases involving a disease
    that became manifest during an applicable presumptive period.
        We strongly object to the addition of ``objective evidence'' to the
    duty to assist statute because the currently worded statute is working
    well and the discussion draft suffers from the flaw that it contains no
    definition of the phrase ``objective evidence.'' The discussion draft
    inappropriately leaves the task of defining the broad phrase
    ``objective evidence'' to the VA in regulations promulgated by the
    Secretary. That phrase is susceptible to many different
    interpretations. Thus, nothing would prevent the VA from promulgating
    regulations that define ``objective evidence'' of an in-service injury,
    disease, or event as contemporaneous military department evidence that
    corroborates the fact that an in-service injury, disease or event
    occurred--thereby overturning the 2006 Federal Circuit decision in
    Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
        Thus, the ``objective evidence'' requirement could lead to
    situations where veterans who provide lay statements about in-service
    events or their symptoms are not provided with VA medical examinations.
    For example, if a veteran states that he or she was in an in-service
    jeep accident that resulted in post-service symptoms or disability and
    provides multiple buddy statements from witnesses to the in-service
    event, the VA could discredit these lay statements on the ground that
    the accident is not corroborated by any contemporaneous military
    medical or other evidence. Military records do not capture every single
    injury, disease, or event that takes place in the active duty service
    of military personnel. And even when military records are created that
    corroborate these matters, these records are often lost or destroyed.
    This proposed amendment will likely lead to unfair denials placing an
    insurmountable burden on the veteran. This would, in our view, be
    unacceptable.
        The fact that veterans currently only have to meet a low threshold
    in order to be provided with an examination is a positive feature of
    the system. After all, most disability benefits claims need a medical
    opinion to substantiate the claim, and many claimants lack the
    financial resources to obtain a medical opinion from a private
    physician. Therefore, VA examinations are crucial in helping veterans
    receive the benefits to which they are entitled. The low threshold
    established by Congress 16 years ago for what a veteran must meet to
    require the VA to provide him or her with an examination should be
    celebrated by Congress, not amended. The only logical rationale for
    this discussion draft is to reduce the number of examinations that VA
    must provide. Congress should not make things harder for veterans for
    the bureaucratic convenience of the VA.
                                   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.
                                     ______

              Prepared Statement of the Texas Veterans Commission
    State Outreach for Local Veterans Employment (SOLVE) Act 2016
                              veterans employment
        The Texas Veterans Commission (TVC) greatly appreciates the
    opportunity to submit the following testimony in support of S. 2919,
    The State Outreach for Local Veterans Employment (SOLVE) Act. TVC would
    like to express our deepest appreciation to Senator Pat Toomey (R-PA),
    and Senator John Cornyn (R-TX), Majority Whip, for introducing this
    timely and important legislation. In addition, we would like to thank
    every member and staff of the Senate Committee on Veterans' Affairs for
    their dedicated commitment to providing veterans the support they
    deserve.
        Currently, the Department of Labor's Veterans Employment and
    Training Services (DOL-VETS) administers the Jobs for Veterans State
    Grants (JVSG) program. The Federal Government, through JVSG, provides
    states approximately $173 million to support services to assist
    veterans find lasting and meaningful employment.
        Specifically, under Title 38, the JVSG program provides funding for
    states to hire Disabled Veterans' Outreach Program Specialists (DVOPS)
    and Local Veterans' Employment Representatives (LVERs). DVOPS provide
    intensive services to eligible veterans with significant barriers to
    employment and LVERs conduct outreach to employers and facilitate
    employment and training services.
        Funding under the current statute is contingent upon the submission
    of an annual plan by Governors identifying the following:

         the number and types of DVOPS or LVERs;
         their specific roles and responsibilities;
         their geographic location; and
         how the above criteria matches the unique needs of the
    state's Veteran population.

        DOL-VETS is required to accept or reject a Governor's plan in
    writing before funds are released to a state. If approved, the common
    model is for the state's workforce agency to administer the JVSG
    program by passing Federal funds to local workforce boards who provide
    the approved services to veterans.
        Texas adhered to this model prior to 2006. However, out of concern
    for the under achieving performance of the program in its then current
    form, Governor Perry and the Texas Legislature took initiative to move
    the administration of the JVSG program from the workforce agency to the
    TVC. This move further consolidated critical veteran services and
    programs under one agency with the sole focus of supporting the over
    1.7 million veterans in Texas.
        Under the Texas Model, the JVSG program constitutes the Veteran's
    Employment Services department which is part of the umbrella of
    services the TVC provides to Texas veterans and their families. These
    services includes claims and benefits assistance, veteran education
    programs, a peer-to-peer networking and counseling program, women
    veterans outreach, State Strike Force Teams, and a grants program
    entitled the Fund for Veterans Assistance.
        No other state has a full complement of veteran services
    centralized within the state's veteran affairs agency. This
    consolidation is key to the success of the Texas Veterans Commission,
    allowing the agency to concentrate efforts and resources on veterans
    with a focus not possible when these programs exist as separate
    components in larger agencies. Since 2008, TVC's JSVG program has been
    recognized as one of the best in the Nation and received the following
    awards from Veteran Service Organizations:

         Mark Sanders Award for Exception Service to Disabled
    Veterans from the National Association of State Workforce Agencies,
    2008.
         National Employment Services Office of the Year from the
    Veterans of Foreign Wars (VFW), 2008.
         National Employment Office of the Year from the American
    Legion, 2008.
         National DVOP of the Year from the American Legion, and
    DVOP of the Year from the Disabled American Veterans (DAV), 2008.
         National DVOP of the Year from the DAV, 2009.
         National LVER of the Year, from the DAV, 2009.
         National LVER of the Year, from the DAV, 2013.
         National Employment Office of the Year from the American
    Legion, 2013.
         National American Legion of the Year from the DAV, 2014.

        In the most recent reporting period, Texas' performance led the
    Nation. The Veterans Employment program assisted 55,864 Texas veterans,
    with 26,283 of those veterans obtaining employment. As a result of
    these efforts, 171 veterans obtained employment for every one Veteran
    Employment Representative. While Texas receives 7% of JVSG total
    funding nationwide, the state accounts for 18% of the Nation's veterans
    receiving services and entering into employment.\1\
    ---------------------------------------------------------------------------
        \1\ Source DOL NATIONAL Veterans Report-2013 data.
    ---------------------------------------------------------------------------
        Despite the success of the Texas Model, DOL-VETS routinely denies
    other Governors the flexibility to move JVSG funding from state
    workforce agencies to state departments of veterans affairs (SDVA). For
    example, Wisconsin's most recent state budget included a provision to
    move JVSG-funded programs to the SDVA. However, that request was denied
    by DOL-VETS without providing clear reasoning for its objection to the
    Wisconsin plan. Instead, DOL-VETS leadership justified their denial by
    attempting to discredit the Texas program. Other states have expressed
    interest in a consolidation of veteran services, but express hesitancy
    to do so in light of DOL-VETS's arbitrary response to the Wisconsin
    proposal.
        We believe that the JVSG program in its current state is unduly
    inflexible; a one size fits all approach that limits a state's ability
    to incorporate best practices into their employment program. A state
    should be able to tailor the intensive services they provide to meet
    the unique needs of the veterans they serve. An inability to do so can
    ultimately prevent a veteran from overcoming the unique barriers to
    sustained employment they face.
        The SOLVE Act provides Governors the opportunity to recommend
    additional Significant Barrier to Employment (SBEs) that hinder a
    Veteran's ability to find gainful employment in their state. By
    analyzing local and regional data, states are able to recognize
    problematic barriers that may not meet the stringent 10 categories
    currently recognized by DOL-VETS. Allowing a Governor to identify a
    unique barrier to veteran employment may facilitate valuable
    communication between states and DOL-VETS and help solve the problem of
    veteran's unemployment at the macro level.
        As part of a state's JVSG Plan, any SBEs recommended by a Governor
    would still require DOL-VETS approval. If approved, the SBE could be in
    addition to or in place of those currently used as part of the national
    standard. Allowing this flexibility would enable the DVOPs to provide
    one-on-one job coaching and help the specific population overcome the
    identified barriers through development of employment plans and
    providing intensive services. This approach is a better alternative
    over submitting an additional Special Initiative Modification request,
    which may require DOL to provide additional funding if approved.
        The SOLVE Act also provides DOL the ability to approve and
    disapprove sections of a state's plan rather than rejecting the entire
    plan outright. Currently, DOL is required to provide in writing their
    decision to accept or reject a JVSG plan in full. This legislation
    provides additional common sense flexibility to ensure accountability
    and responsiveness.
        Our veterans are unique. Our states are unique. The method in which
    we support these deserving heroes should be reflective of their
    individual situation. TVC understands and supports the need for
    national standards and program oversight to be centralized within DOL-
    VETS. They are our partners and we welcome their support and expertise.
    However, the SOLVE Act provides the necessary level of flexibility to
    tailor a national program to meet the veteran's needs at the local
    level.
        The Texas Veterans Commission fully supports S. 2919 as does The
    American Legion, Paralyzed Veterans of America, and the National Guard
    Association of the United States. We remain committed in our efforts to
    serve those who have sacrificed so much, encourage swift passage of the
    bills and stand by to address any concerns or questions the Committee
    may have.
                                     ______

            Prepared Statement of Urgent Care Association of America

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     ______

        letter from the veterans and military law section, federal bar
                                  association
        Dear Senators Isakson and Blumenthal: The Veterans and Military Law
    Section (V&MLS) of the Federal Bar Association is pleased to submit
    comments on the proposed legislation regarding amendment of the claims
    appeals process within the Veterans Benefit Administration. The
    opinions herein asserted are those of the Veterans and Military Law
    Section and not necessarily those of the entire Federal Bar
    Association.
        As a general matter, review of this proposed legislation clearly
    demonstrates that the Secretary desires a more traditional adjudicatory
    process. However, if that is the legislative intent, then there must be
    a concomitant acceptance of the traditional role of paid counsel within
    that system. The claims system within the Department of Veterans
    Affairs is the only system within the Executive branch of government in
    which the right to paid representation is precluded until the initial
    record is complete. This legislation is indicative of an increasingly
    adversarial process in which it is critical that there should accrue to
    the veteran/claimant a corresponding increased right to representation
    qualified to litigate in the adversarial environment created by this
    legislation.
        There are general issues which significantly affect the process as
    well, all of which may not be subject to address in this legislation,
    but of which the Committee should, in the opinion of V&MLS be aware, as
    they significantly affect the quality and the efficiency of the claim
    and appeal process, i.e. the environment within which this legislation
    will operate.
        1. Jurisdiction of the CAVC and the Federal Circuit: The CAVC is
    the only Article I court without the judicial authority to provide the
    litigants before it with a final resolution in any case that comes
    before it. The only relief it may grant an appellant is to either
    reverse/remand or affirm, and even with grounds in the record for
    reversal, remand is the only possible ultimate resolution at the Court.
    While historically this may have been politically justifiable at the
    inception of the Court, that justification no longer exists. Granting
    the CAVC the judicial authority to issue dispositive rulings that
    terminate the potential for repeated remands of appeals on the same
    issues would have an ameliorative effect on backlogs. Similarly the
    restriction of the Federal Circuit's jurisdiction to regulatory and
    legislative interpretation is an artificial limitation on the
    traditional jurisdiction of a U.S. Circuit Court of Appeal and in a
    sense limits the recourse of the veteran population to a full and fair
    hearing of the issues raised.
        2. Qualifications of Board hearing examiners: The abysmal
    performance of the ``Veterans Law Judges'' as reflected in the 2015
    Annual Report from the CAVC demands at a minimum the identification and
    decertification of those whose decisions are consistently overturned by
    the Court. The more prudent approach, in order to deconstruct the
    existing culture at the Board is to require that all hearing examiners
    at the Board meet Title V Administrative Law Judge standards of
    qualification. The statistics cited below for the reversal/remand rate
    for those Board decisions that are appealed to the Court are not unique
    at all to 2015. They have been in those ranges since at least 2002.
    While transition to Title V ALJs may require considerable initial
    expense, the reduction in necessary remands and improvement in quality
    and consistency of decisions will reduce the number of remands and the
    number of trips around the ``hamster wheel'' by the individual veteran,
    his/her survivor or dependent. This will ultimately more than pay for
    the transition.
        3. Training Issues: There is no transparency regarding the sources
    or resources utilized by the Agency to train its rating personnel. Nor
    is there any discussion of the minimal qualifications for employment as
    a rater or as a trainee. It is the position of V&MLS that at a minimum
    applicants for these positions should be required to have an Associate
    Arts degree from a community college with required courses in biology,
    physiology and preferred health care related subjects. Most preferred
    would be a 4 year college degree with courses similarly relevant to the
    nature of subject matter of claims and health care within the VA
    environment.
        The most egregious deficiencies are in the training of Board
    personnel. The 2015 Annual Report issued by the CAVC shows that of the
    4,030 dispositions of appeals made by the CAVC in 2015, only 445 (11%)
    were affirmances of Board decisions. 77% (rounded from 76.6%) of the
    dispositions of appeals were reversed or remanded on at least one
    ground. There is no excuse for this level of performance on the part of
    any government entity supported by the American taxpayer. There were
    2873 EAJA petitions granted by the Court during this time; a rate of
    50% of the remands & reversals, indicating that the Agency was
    substantially in error at least 50% of the time. This is indicative of
    substantial deficiencies in the education of Board personnel. Congress
    has never addressed this issue. It is time to do so.
        4. Leadership Issues: Disposition statistics of this nature are
    indicative of first, an insular culture with a mindset resistant to the
    developing CAVC case law by which its decisionmaking processes by law
    are to be governed. Who or what is providing the instructional
    leadership and how is the curriculum developed? Second it is clear that
    the administrative leadership is non-existent. There has been an
    ``acting'' Board chairperson for far too long. It is time to insist
    that a qualified Board Chairman be appointed and confirmed and given
    the authority to decline to recertify those hearing examiners
    (euphemistically characterized as ``Veterans Law Judges'') whose
    decisions result in excessive remands and reversals at the CAVC. Too
    many appeals are at the Court for the second, third and fourth time as
    a result of the failure of the hearing examiners to follow clear
    instructions given by the Court.
                       discussion of proposed legislation
        Definitions: The initial proposals to redefine the process by
    modernizing the definitions under Sect. 101 of Title 38 seeks to remove
    any barriers perceived to exist to the adjudication of claims through
    reassignment from the Regional Office with geographical jurisdiction
    over the veteran's claim to ``specialty offices'' often far removed
    from the veteran. While there may be some value in doing that in the
    instances regarding subject matter, codification provides too much
    incentive to remove the matter from any reach by a veteran requesting a
    review within the Agency of Original Jurisdiction (AOJ).
        Similarly , removing the word ``material'' in lieu of ``relevant''
    in the consideration of a readjudicated or ``supplemental'' claim
    requires the claimant to ``prove'' the claim through the evidence
    submitted, a legal standard to which the veteran may not be held.
    Similarly, replacing the terms ``re-opened claim'' and ``increase in
    benefits'' with ``supplemental claim'' alters the landscape by
    cluttering the process with collateral litigation. The definition
    proposed does not discriminate the objection to the initial rating
    benefit granted from a later claim for increase in benefits. What is
    clear is that the bar for re-opening a previously denied or
    insufficiently adjudicated claim would be much higher, and if filed
    within a year of the original decision, no notification would be
    required. These provisions contribute to the Agency's increasing view
    of the claims system as an adversarial environment.
        As matters stand, the claimant veteran, widow or dependent may only
    retain counsel prior to the promulgation of a rating decision on a pro
    bono basis. The basis for this limitation was the premise that the
    benefits claims system is non-adversarial. The national VSOs were
    deemed more than capable of assisting the veteran in pursuit of
    compensation. Since the passage of the VJRA there has been a gradual
    shift in the nature of the claims system from non-adversarial to a
    system increasingly governed by an escalating body of decisional law
    which is entirely inconsistent with the concept of non-adversarial. The
    proposals in this Bill advance the adversarial elements further than
    ever before. It is, in the opinion of the V&MLS time to revisit the
    denial of paid representation at the initiation of the claim.
        Duty to Assist: ``(c) Section 5103A(f)'' underscores the raising of
    the evidentiary bar to re-adjudication of disallowed claims to a
    standard that requires that new evidence ``prove'' the claim rather
    than be simply ``material.''
        Any doubt as to the shift to an adversarial environment is removed
    with the proposed addition of Sect. 5103B removing the obligation of
    the duty to assist from any stage above the initial rating decision. It
    would, under the provisions of (a), (b) and (c) of this amendment exist
    only within the original rating process and after the issuance of a
    ``notice'' of the rating decision apply neither to any ``higher review
    within the AOJ'' nor to any obligation on the part of the Board.
    Further, the correction of a duty to assist error during a ``higher
    level review'' within the AOJ [(1)] is dependent upon the
    ``identification'' of said error by the reviewer. There is no duty
    imposed upon the reviewer to search for or identify a violation of the
    duty to assist. Remand for correction is required if the claim cannot
    be granted in full.
        Identification of a duty to assist error at the Board [(2)], if the
    failure occurred prior to the ``notice'' of the original rating
    decision, triggers remand for correction if the claim cannot be granted
    in full. This provision also includes a provision that allows the Board
    to order an advisory medical opinion as part of the correction. Flaws
    in the original rating decision are in most instances the result of
    reliance on an inadequate medical exam, followed by failure to obtain
    critical records and failure to appropriately consider lay evidence.
    Current litigation and Agency investigations indicate that this aspect
    of the claims system is far more troubled than was previously
    considered with the revelation that an estimated 25,000 veterans may
    have had improperly conducted exams for TBIs by unqualified examiners.
    V&MLS is concerned that it is essential that opportunity for paid
    representation and the opportunity to present additional evidence with
    or subsequent to the NOD is essential to improving the cost
    effectiveness of the system, enhancing the perception of fairness.
        Ancillary to this concern is that of the lack of any discovery in
    either the initial AOJ rating process or in the review process.
    Credentials of examining personnel and often the identities of
    examiners and rating personnel are barred from discovery procedures
    available in similar proceedings in other agencies that are in those
    jurisdictions considered elementary administrative due process.
    Transparency in this aspect of the system would conserve agency
    resources In the long run and diminish the lengthy appeals and
    litigation surrounding the issue of adequacy of examinations.
        The Duty to Assist is a cornerstone concept of Veterans Law. It is
    the creature of a paternalistic, veterans-first adjudicatory philosophy
    inherent in the claims system. It is the concept upon which the entire
    structure of that system rests. It is also the rationale by which paid
    representation has been limited to the appellate stages of the claims
    process. The imposition of the Duty to Assist at every stage of the
    claims process from the initial processing of the claim through the
    hearing and the consideration before the Board is also the cornerstone
    of nearly every decision by the CAVC. The limitation of the duty to
    assist as proposed by this legislation poses a significant impediment
    to administrative due process on the part of the impaired or pro se
    veteran before the Agency at any stage of the proceedings. V&MLS
    strongly opposes any limitation of the duty to assist requirement
    anywhere in either initial claim or the review of denial of the claim.
        Sect. 5104A: V&MLS has no issue with this provision. Any favorable
    finding should be, as a matter of the law of the case binding on
    further adjudicatory action.
        Sect. 5104B: The provision, under (b) of this Section requires that
    a request for review by the AOJ be specific as to which office of the
    AOJ is requested. This requires more precise language. It appears to
    allow for review by a different set of eyes in another office, i.e.
    more independent review. If this is the case, V&MLS is not opposed, and
    continues to urge that the duty to assist be continued, especially for
    the impaired or pro se claimant.

        (a) V&MLS does not disagree with the concept of permitting a
    request for higher level review within the AOJ. This appears to retain
    the process of the Decision Review Officer. When this process was
    allowed to function as it was designed to function it was/is beneficial
    to efficiency of time and resources and eliminated the need for appeals
    to the Board by resolving the issues at the AOJ. V&MLS approves of this
    provision.
        (b) V&MLS approves of retaining the one year time allocation for
    filing a Notice of Disagreement (NOD). However, V&MLS has significant
    reservations about prescribing overly restrictive provisions governing
    the form such disagreement must take. The forms ``prescribed by the
    Secretary'' are, in their current versions, very narrowly worded and
    spaced. They are clearly designed to limit the scope of the
    disagreement and are antithetical to allowing the veteran/claimant any
    freedom of expression. They are also contrary to existing case law
    regarding the definition of a NOD. V&MLS urges the Committee to provide
    guidelines for content of the NOD but to phrase it in the permissive
    ``should'' rather than exclusionary mandatory language and to require
    that the ``form prescribed by the Secretary'' include sufficient space
    for addressing the claimant's concerns.
        (c) V&MLS urges language added to this provision that requires that
    copies of Notices under this provision be supplied to both the claimant
    and any representative, either VSO or counsel. V&MLS recommends that
    all communication relating notices of decisions or decisions be sent by
    certified mail. V&MLS further urges the Committee to provide for pre-
    decisional consultation with any representative of record for the
    purpose of resolving evidentiary and legal issues that may have arisen
    in the course of investigating and developing the claim. The purpose
    for this is to avoid unnecessary higher level review and permitting
    early resolution of issues presented. V&MLS notes that ``previewing''
    decisional action is common procedure between rating personnel and VSOs
    who are often co-located in ROs. This should be standard procedure for
    all representatives, as it is conducive to filling in evidentiary gaps,
    clarification and administrative best practices.
        (d) Evidentiary Record: The added Section 5104B also seeks to close
    the evidentiary record at the issuance of the initial rating decision.
    While there are provisions in later elements of this Bill for the
    submission of further evidence at the Board level, to the average pro
    se veteran, this shuts the door to submission of further evidence.
    Under this modification of existing law, either a VSO or an attorney
    retained subsequent to the Notice of Disagreement would be ethically
    bound to seek by motion to modify the notice of disagreement to provide
    for utilizing the ``hearing option'' track at the Board in order to
    fill in the evidentiary gaps left by either inadequate representation
    or by the omissions of the pro se veteran.
        The unrepresented veteran who fails to ask for the ``hearing option
    `` docket in the notice of disagreement and fails to comprehend the
    consequences of failing to do so loses any opportunity to submit
    additional evidence in this forum short of filing a supplemental claim,
    in which the evidentiary bar is much higher. Entry into the appellate
    stage by either paid or lay representation, under this provision, would
    require a motion to amend the notice of disagreement to request a
    ``hearing option'' docket or higher AOJ review in order to fill in the
    evidentiary gaps or argue evidence that is relevant but otherwise not
    of record.
        V&MLS categorically disagrees with this provision as it constitutes
    as a denial of procedural due process and is utterly contrary to the
    concept of a ``veteran-centric VA,'' unless provision is made for
    notice of this limitation prominently articulated within the body of
    the rating decision. Such notice should also advise the claimant that
    selection of the ``hearing option'' docket in an appeal to the Board
    will permit the submission of further evidence.
        The fact remains that the combined effect of limitation of
    submission of further evidence, limitation of the duty to assist and
    raising the evidentiary bar for supplemental claims/readjudication
    leaves very little that is non-adversarial within the system. While
    amending Sect. 5904 to allow the veteran paid representation subsequent
    to the notice of decision by the AOJ is somewhat ameliorative it fails
    to permit the veteran access to paid representation in order to better
    ensure that the AOJ adequately develops the record from the beginning.
    It should be noted that doing so accords the veteran the Sixth
    Amendment right to representation by counsel enjoyed by every claimant
    before every other Administrative agency.
        (e) V&MLS agrees that any review by any entity within the Agency at
    any level should be DE NOVO

        Sect. 5104(b): The enumeration of required contents of any notice
    of denial of benefits is certainly useful, but the language of this
    amendment appears to codify that which has previously appeared as
    ``Statement of the Case.'' Limitations should be included which
    preclude the utilization of endless ``explanations'' which yield no
    aids to comprehension and serve only to obfuscate the obvious. The
    inclusion of the requirement that the content state simply and
    precisely the basis for the decision in terms readily understood by an
    unrepresented claimant. V&MLS would then be supportive of this
    provision.
        Proposed Sect. 5104(b) requires, within the enumeration of elements
    of a denial, (if applicable), identification of criteria that must be
    satisfied in order to grant (the benefit sought). Yet, any higher
    review must be done on the basis of evidence considered in the initial
    development. This is utterly inconsistent and will engender substantial
    numbers of ``supplemental'' claims. It makes no sense to require the
    Agency to advise the claimant of what evidence is missing and at the
    same time preclude the introduction during the Higher Review of
    evidence that will satisfy the missing elements. This is not an issue
    of legal sufficiency or insufficiency; it is a matter of common sense.
        Sect. 5108, Supplemental Claims: This amendment of Sect. 5108
    replaces ``reopened claims'' with ``supplemental claims:'' Under this
    provision ``new and relevant'' evidence is required for the
    adjudication of a supplemental claim. This once again raises the
    adjudicatory bar much further than does the language of the existing
    provision. Whereas ``material'' requires only that the evidence tend to
    influence the trier of fact because of its logical connection to the
    issue, ``relevant'' would raise the bar to evidence that relates to or
    bears directly on point or fact in issue; proves or has tendency to
    prove a pertinent theory in the case. This is a technical, legal
    requirement imposed on a process that is required to be veteran-
    centric. This language is a trap for the pro se claimant, inviting a
    quick denial. V&MLS urges the Committee to recognize that this is once
    again a further shift to an adversarial process in which paid
    representation should be a recognized right accruing to the claimant.
        Sect. 5109 is given a new subsection under which the Board may
    remand a claim to the AOJ for procurement of an advisory medical
    opinion to correct an error by the AOJ to satisfy its duties under
    5103A when the error occurred prior the AOJ decision on appeal. This
    adds an unnecessary step to the review process--requiring the matter to
    be remanded yet again. Nor does it specify whether this applies to
    errors on the part of a ``higher-level reviewing authority'' within the
    AOJ. As a significant number of duty to assist errors are incident to
    inadequacies of medical exams, this should be clarified.
        Sect. 5904, Amendment: The proposed amendment of (c)1 and (c)2
    appears to move the point at which paid representation becomes
    available to the veteran to the point of the issuance of the decision
    on the initial claim by the AOJ; ``notice of the Agency of Original
    Jurisdiction's initial decision under Section 5104 of this Title.''
    Under the existing statutory provisions paid representation is not
    available to a veteran/claimant until the point at which the Notice of
    Disagreement is filed.
        Given the existing political climate, the ban on the availability
    to the veteran of paid representation at the initial submission of a
    claim may be unlikely to be lifted. However, it should be noted that
    Congress has, within the last decade, recognized the advisability of
    allowing paid representation before the Agency. Merely providing an
    opportunity for paid representation prior to submission of the notice
    of disagreement is a benefit without practical application; there is no
    mechanism for repairing a deficient record prior to filing the Notice
    of Disagreement before the door to submission of additional evidence is
    closed. The pro se veteran, especially an impaired pro se veteran is
    out in the cold. In view of the proposed significant restriction of the
    opportunities for introduction of additional evidence, it is critical
    that these provisions be as broad as possible. V&MLS supports this
    provision with significant reservations as stated above.
        Sect. 7105, Amendments: V&MLS is supportive of the proposed
    amendment (b)(1), establishing the time for the filing of the notice of
    disagreement within one year of the mailing of the notice of the Agency
    of Original Jurisdiction's decision.
        The proposed amendment of (b)(2) establishes legal, technical
    requirements of allegation of specific errors of law or fact to be
    inscribed on the Secretary's specific form. Once again, the process
    shifts further toward an adversarial process in which the unrepresented
    claimant is presumed to have an unrealistic level of knowledge or
    expertise. While the opportunities for representation are broadened,
    the fact is that significant numbers of claimants/appellants before the
    Board and the Court are unrepresented (27% of appellants at the Court
    were pro se at filing the NOA in 2015). It is critical to the veteran-
    centric intent of the claims process that there are provisions for
    liberal interpretation of what constitutes conformity with the
    requirement of this provision as proposed. V&MLS urges careful
    attention to language in this provision as proposed and implementing
    regulations to avoid adverse impact on the pro se claimant.
        V&MLS is supportive of the proposed amendment (b)(3) in that it
    establishes a three track option for appealing the decisions of the
    Agency of Original Jurisdiction to the Board. We do, however, suggest
    that the language more clearly identify the tracks by enumeration.
        V&MLS is similarly supportive of the proposed language of Sect.
    7105(c), maintaining the jurisdictional finality of Agency of Original
    Jurisdiction decisions that remain unappealed after one year.
        The provisions of 7105(d) as amended eliminate the Statement of the
    Case and the laborious process it entailed. V&MLS agrees with this
    provision with the proviso that in order to maintain the veteran-
    centric character of the claims process that the language also provide
    that submissions by pro se claimants be read liberally for allegations
    of error of law and fact. The unschooled or impaired pro se claimant
    must not be penalized by technical legalistic requirements he/she is
    incapable of meeting.
        Sect. 7106: V&MLS supports the deletion of Sect. 7106.
        Sect. 7107: V&MLS supports the amendment of Sect. 7107(a), (b) and
    (c) as proposed. V&MLS does, however, urge that sub-section (f) be
    amended to require that the Board screen those cases in which the
    claimant is pro se for adequacy of the record and undertake such
    further development as may be necessary to satisfy the duty to assist.
    In this regard V&MLS re-iterates our strong disagreement with the
    elimination of the duty to assist after the initial rating decision.
        Sect. 7113: V&MLS supports the provisions of this Section with the
    caveat that the due process requirements of the duty to assist be
    afforded the pro se appellant, particularly if review of the record
    demonstrates that the appellant is impaired. This additional provision
    is consistent with V&MLS position regarding the proposed restrictions
    on duty to assist, submission of evidence and the impact of these
    measures on the pro se and impaired claimant.
              * * * * * * *
        revision of evidentiary threshold for medical examinations and
                                   opinions.
        V&MLS strongly opposes this proposal. It constitutes an effort to
    overturn the longstanding precedential decision of the Court of Appeals
    for Veterans Claims in McLendon v. Nicholson, 22 Vet. App 79 (2004).
    This decision rested on the determination by CAVC that VA's failure to
    order a C&P exam was arbitrary and capricious and a violation of the
    Duty to Assist. It was determined by the Court that the provisions of
    Sect. 5103(d) established a very low threshold for the requirement for
    medical examinations. In writing this decision, Judge Kasold iterated
    several examples of the linkage that this provision is designed to
    establish information, (inter alia--exposure to artillery fire
    indicative later development of hearing loss) that assists in informing
    the rater of another piece of the nexus picture to ensure that the
    rater has all of the information necessary to reach an informed and
    fair decision.
        The language of the proposed revision imposes on the claimant the
    requirement of ``objective evidence.'' This raises the evidentiary bar
    to the level of proof, rather than ``indication.'' It appears that the
    proponent of this provision would require that the three elements
    articulated in (A) be met in order to reach the point that a C&P exam
    is required. Judge Kasold emphasized in the opinion that ``Although the
    claimant may and should assist in processing a claim, it is the
    Secretary who has the affirmative, statutory duty to assist the veteran
    in making his case (Cit. omitted). It is the Secretary who is required
    to provide the medical examination when the first three elements of
    section 5103(d)(2) are satisfied, and the evidence of record otherwise
    lacks a competent medical opinion regarding the likelihood of medical
    nexus between the in-service event and a current disability. The Board
    is not competent to provide that opinion.'' McLendon, supra, at 86
    V&MLS cannot support this provision. Given the pending legislation
    before this Committee which proposes elimination of the duty to assist
    beyond the original decision by the AOJ, this is an unacceptable
    attempt to shift the burden entirely onto the claimant.
        It should also be noted that implementation of a treating physician
    rule, wherein the VA treating physician (as well as the private
    physician when appropriate) are consulted on issues of nexus would
    improve the quality of medical evaluations and go a long way in
    relieving the stress of physician availability in VHA. The rationale
    that treating physicians will have too much sympathy for the patient to
    provide an unbiased opinion is specious at best as well as demeaning to
    the professional integrity of the treating physician. At a time when
    VHA is suffering from an acute shortage of medical personnel the
    continued duplication of effort in this regard is a waste of taxpayer
    dollars.
              * * * * * * *
        S. 2487: V&MLS supports this Bill with one qualification. We
    respectfully request that a provision be added in which VA is required
    to coordinate with Indian Health Service (IHS) to develop culturally
    competent suicide prevention programs for Indian women veterans. There
    are at this time no culturally competent mental health programs for
    Indian veterans at all. Indian women veterans, particularly those with
    MST/PTSD are at a very high risk because of the cultural consequences
    of their experiences. This bill needs to address that issue.
        S. 2679: V&MLS supports this Bill without reservation. The results
    of toxic exposure in Vietnam have yet to be fully counted. The
    generational effects have been largely ignored or swept under the rug
    of bureaucratic accountability. The children of the Vietnam veterans
    are now those in SW Asia; exposed to the toxins of the burn pits,
    burning oil fields, unidentified ordinance; we cannot afford to repeat
    the errors of yesterwar. This legislation is badly needed. We urge
    Congress to establish this Center for Excellence and monitor its
    progress annually.
        S. 2888: V&MLS supports this Bill without reservation. The
    residuals of long-term exposure to contaminated water at Camp LeJeune
    are, again, not fully measured. Of particular concern are the families
    who lived on-post and raised children there. We urge that this
    legislation include substantial outreach to those veterans and families
    in order to study and address the down-range effects of this extensive
    contamination. It should be considered as well that many military
    families from outside Camp LeJeune accessed base medical, commissary
    and exchange facilities. This is commendable legislation that is needed
    to provide oversight and guidance to ensure VA's address of these
    issues within VBA.
        S. 2919; S. 2896; S. 2883; S. 2520; S. 2049: V&MLS is supportive of
    all of these measures as each provides for an area in which either VA
    has demonstrated a need for guidance or the circumstances of service
    have resulted in a separate need, as is demonstrated with the
    introduction of S. 2919.
                Respectfully submitted,
                           The Veterans & Military Law Section,
                                        Federal Bar Association

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