[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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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.
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\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/
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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/
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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
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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.
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\2\ VA Women's Health Care FAQ
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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.
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\3\ The American Legion System Worth Saving Report: Women Veterans
Health Care-2013
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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\
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\4\ American Legion Resolution No. 45: (Oct 2012): Women Veterans
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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.
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\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
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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.
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\6\ American Legion Resolution No. 196: (Aug 2014): Suicide
Prevention for American Veterans
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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
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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\
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\8\ American Legion Resolution No. 23: (May 2016): Support for
Veteran Quality of Life
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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\
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\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\
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\10\ NPR--May 17, 2016
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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\
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\11\ American Legion Resolution No. 336: (Aug 2014): Support the
Restoration of the Duties and Responsibilities of the DVOP and LVER
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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\
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\12\ American Legion Resolution No. 24: (May 2015): Department of
Veterans Affairs Construction Programs
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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\
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\13\ American Legion Resolution No. 18: (Aug 2014): Department of
Veterans Affairs Disability Compensation
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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\
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\14\ American Legion Resolution No. 23: (May 2016): Support for
Veteran Quality of Life
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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.
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\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
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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.
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\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
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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
Addendum:
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