[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]











LEGISLATIVE HEARING ON: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329; H.R. 
1390; H.R. 1564; AND A DRAFT BILL ENTITLED ``QUICKER VETERANS BENEFITS 
                        DELIVERY ACT OF 2017.''

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

                                HEARING

                               before the

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        WEDNESDAY, APRIL 5, 2017

                               __________

                           Serial No. 115-11

                               __________

       Printed for the use of the Committee on Veterans' Affairs


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


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                     COMMITTEE ON VETERANS' AFFAIRS

                   DAVID P. ROE, Tennessee, Chairman

GUS M. BILIRAKIS, Florida, Vice-     TIM WALZ, Minnesota, Ranking 
    Chairman                             Member
MIKE COFFMAN, Colorado               MARK TAKANO, California
BRAD R. WENSTRUP, Ohio               JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American    ANN M. KUSTER, New Hampshire
    Samoa                            BETO O'ROURKE, Texas
MIKE BOST, Illinois                  KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine                J. LUIS CORREA, California
NEAL DUNN, Florida                   KILILI SABLAN, Northern Mariana 
JODEY ARRINGTON, Texas                   Islands
JOHN RUTHERFORD, Florida             ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana              SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto 
    Rico
                       Jon Towers, Staff Director
                 Ray Kelley, Democratic Staff Director

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                     MIKE BOST, Illinois, Chairman

MIKE COFFMAN, Colorado               ELIZABETH ESTY, Connecticut, 
AMATA RADEWAGEN, America Samoa           Ranking Member
JACK BERGMAN, Michigan               JULIA BROWNLEY, California
JIM BANKS, Indiana                   KILILI SABLAN, Northern Mariana 
                                         Islands

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.






















                            C O N T E N T S

                              ----------                              

                        Wednesday, April 5, 2017

                                                                   Page

Legislative Hearing On: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329; 
  H.R. 1390; H.R. 1564; And A Draft Bill Entitled ``Quicker 
  Veterans Benefits Delivery Act of 2017.''......................     1

                           OPENING STATEMENTS

Honorable Mike Bost, Chairman....................................     1
Honorable Elizabeth Esty, Ranking Member.........................     2

                               WITNESSES

The Honorable Jim Banks, U.S. House of Representatives...........     3
The Honorable Julia Brownley, U.S. House of Representatives......     4
The Honorable Jack Bergman, U.S. House of Representatives........     5
The Honorable David G. Valadao, U.S. House of Representatives....     5
Ms. Beth Murphy, Director, Compensation Service, Veterans 
  Benefits Administration, U. S. Department of Veterans Affairs..     7
    Prepared Statement...........................................    33

        Accompanied by:

    Dr. Ralph L. Erickson, Chief Consultant for Post Deployment 
        Health Service, Veterans Health Administration, U. S. 
        Department of Veterans Affairs

    Ms. Patricia Watts, Director, Legislative and Regulatory 
        Service, National Cemetery Administration, U. S. 
        Department of Veterans Affairs

Mr. Zachary Hearn, Deputy Director, Veterans Affairs and 
  Rehabilitation Division, The American Legion...................    15
    Prepared Statement...........................................    36

Mr. Rick Weidman, Executive Director of Policy and Government 
  Affairs for the Vietnam Veterans of America....................    17

Mr. Patrick Murray, Associate Director, National Legislative 
  Service, Veterans of Foreign Wars..............................    18
    Prepared Statement...........................................    39

Mr. LeRoy Acosta, Assistant National Legislative Director, 
  Disabled American Veterans.....................................    20
    Prepared Statement...........................................    41

Mr. John B. Wells, Executive Director, Military-Veterans Advocacy 
  Inc............................................................    21

                        STATEMENT FOR THE RECORD

Paralyzed Veterans of America (PVA)..............................    44
Military-Veterans Advocacy.......................................    46 
. 
LEGISLATIVE HEARING ON: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329; H.R. 
1390; H.R. 1564; AND A DRAFT BILL ENTITLED ``QUICKER VETERANS BENEFITS 
                        DELIVERY ACT OF 2017.''

                              ----------                              


                        Wednesday, April 5, 2017

             U.S. House of Representatives,
                    Committee on Veterans' Affairs,
                      Subcommittee on Disability Assistance
                                      and Memorial Affairs,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:30 a.m., in 
Room 334, Cannon House Office Building, Hon. Mike Bost 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Bost, Coffman, Radewagen, Bergman, 
Banks, Esty, Brownley, Takano, and Sablan.

       OPENING STATEMENT OF HONORABLE MIKE BOST, CHAIRMAN

    Mr. Bost. Good morning, everyone.
    The hearing will come to order. Before we begin, I would 
like to ask unanimous consent that Chairman Roe be allowed to 
sit at the dais and make a statement and ask questions. He is 
not here right now, but he will arrive soon.
    Hearing no objections, so ordered.
    Thank you all for joining us today to discuss legislation 
before the Subcommittee. The seven bills we will talk about 
today address issues that are very important to veterans and 
their families. These bills would include and involve issues, 
things that ensure Veterans Benefits keeps pace with inflation; 
require VA to accept private medical evidence; extend benefits 
to the Blue Water Navy veterans; protect vulnerable veterans 
from fraud; give families more choice to decide where to lay 
their loved ones to rest; and clarify that VA may use mandatory 
funds to pay the cost of traveling to contract disability 
examinations.
    We have a full agenda today, so to ensure that we get 
through it all, I am going to ask everyone to keep themselves 
to five minutes. I heard another Chairman say the other day 
that we will refer to that as the bull-riding rule. So, we will 
let you go and the buzzer rings at the five-minute mark, you 
have eight seconds and then we are going to throw you off.
    So, at any rate, I would like to start today with the two 
bills that I am proud to have introduced, H.R. 1328, The 
American Heroes COLA Act of 2017 and H.R. 1329, The Veterans' 
Compensation Cost-of-Living Adjustment Act of 2017.
    I also want to thank Ranking Member Esty for being an 
original co-sponsor on both of these bills.
    H.R. 1329 would give a cost-of-living adjustment to 
veterans. This increase would be the same as Social Security 
recipients get, and would help veterans keep up with inflation; 
of course, H.R. 1329 has my full support, as it should.
    I have also introduced H.R. 1328 to ensure that veterans 
will receive a COLA every time Social Security recipients get 
one. Veterans have earned these benefits and should have the 
peace of mind of knowing that they will receive a COLA every 
year without having to wait for Congress to act.
    I know many of my colleagues here today have worked hard on 
these proposals and I look forward to having a constructive 
conversation.
    I also want to thank our witnesses for testifying on these 
important bills. I am going to turn it over to my colleague, 
Ranking Member Esty, for her opening statements.

 OPENING STATEMENT OF HONORABLE ELIZABETH ESTY, RANKING MEMBER

    Ms. Esty. Thank you very much, Mr. Chairman, for holding 
today's hearing on behalf of our Nation's veterans.
    Today we are examining seven bills that are of vital 
importance to our veterans and their families. I support them 
all and am proud to have worked with the Chairman to introduce, 
as he has just noted, H.R. 1328 and H.R. 1329, The American 
Heroes COLA Act of 2017 and The Veterans' Compensation COLA 
Adjustment Act. These are bills that ensure that we are keeping 
faith with our veterans and keeping economic pace with the 
reality of what things cost in America today, so I urge my 
colleagues to listen attentively to our witnesses and to 
support these important bills, which will make sure that our 
veterans with service-connected disabilities and surviving 
spouses of veterans, receive dependency and indemnity 
compensation that is appropriate. It is simply the right thing 
to do.
    We are also considering H.R. 1725, the Quicker Veterans 
Benefits Delivery Act and it is the important part of today's 
agenda. This bill, which is introduced by Full Committee 
Ranking Member Walz, speeds up the benefits delivery process by 
allowing local physicians to conduct disability medical 
examinations for veterans.
    I am sure everyone on this panel and everyone in this room 
has heard extensively about this issue from the veterans we are 
honored to represent; specifically, the bill provides that when 
a claimant submits private medical evidence that is competent, 
credible, probative, and, otherwise, adequate for rating 
purposes, the secretary will not request a VA medical 
examination.
    Also on today's agenda is H.R. 105, the Protect Veterans 
from Financial Fraud Act introduced by our colleague on the 
Subcommittee, Julia Brownley. It protects veterans from the 
misuse of their money by a fiduciary by expanding the 
secretary's authority to pay recompense to a beneficiary that 
has been a victim of fraud.
    H.R. 299, the Blue Water Veterans--Navy Vietnam Veterans 
Act is brought forward by Representative Valadao, who I see has 
already joined us and is on the first panel. This bill enjoys 
broad bipartisan support from this Congress and I will say I am 
strongly supportive. I have many veterans in my district who 
have spoken to me repeatedly about this issue.
    It expands the compensation and health care benefits to 
veterans who served off the coast of Vietnam during the Vietnam 
War and who have manifested the statutorily defined diseases 
resulted--related to exposure to herbicides used in Vietnam, 
such as Agent Orange.
    As all of us know, currently, only veterans who have served 
on land are eligible for the presumptive connection to 
herbicide exposure.
    As this group avails and moves forward toward the 
Subcommittee markup, I want to thank all the Members for their 
thoughtful legislation and I want to thank all of our witnesses 
for joining us today, as well as for your work with us on these 
bills. I look forward to hearing your testimony. Thank you, and 
I yield back.
    Mr. Bost. I want to thank the Ranking Member. I look 
forward to working with her on these issues as we move forward.
    And I want to let you know that I am honored to be joined 
with--this morning, by several of my colleagues who are going 
to testify about the bills on our agenda that they have 
sponsored. I appreciate all of you taking the time out of your 
morning to be here with us, for sponsoring legislation to help 
the veterans.
    With us this morning, we have Representative Jim Banks from 
Indiana, Representative Jack Bergman from Michigan, and 
Representative David Valadao from Florida. We believe that we 
will have Representative--from California. Sorry. It is all 
right; Bob Dole did that. Representative Julie Brown--Julia 
Brownley will be joining us later, also.
    I also understand that Ranking Member Walz wanted to be 
here today, but had a scheduled conflict. I am asking unanimous 
consent that his written statement on his bill, which was 
noticed for this hearing as a draft bill, H.R. 1725, the 
Quicker Veterans Benefits Delivery Act of 2017, would be 
admitted in the record.
    Hearing no objection, so ordered.
    Mr. Bost. Mr. Banks, first off, you are recognized for five 
minutes to discuss your bill.

            OPENING STATEMENT OF HONORABLE JIM BANKS

    Mr. Banks. Thank you very much, Mr. Chairman.
    In addition to ensuring that our veterans receive the 
benefits that they have earned, this Subcommittee is also 
tasked with ensuring that our Nation's heroes are treated with 
reverence after they pass. Currently, the VA only covers the 
cost of transporting a veteran's remains to a national 
cemetery, but does not pay burial transportation costs to a 
state or tribal veterans cemetery.
    H.R. 1390 would correct this problem and allow the VA to 
pay the transportation costs, regardless of whether the veteran 
is buried in a national, state, or tribal veterans cemetery. By 
doing so, this bill would provide more options for families who 
are deciding where to lay their loved one to rest. A family may 
prefer to bury a veteran in a state or tribal veterans cemetery 
because it is closer to home, which would allow the family and 
friends to visit the grave and pay their respects. The bill 
would remove the financial penalty if a family chooses to inter 
their relative in a state or tribal veterans cemetery, instead 
of a national cemetery.
    It is incumbent that our Nation never forget the sacrifices 
that our veterans and their families make each and every day. 
One way we can honor their service is to ease the burden of a 
grieving family deciding where to lay their loved one to rest, 
by offering them more choices.
    I ask my colleagues to join me in supporting H.R. 1390, and 
I yield back.
    Mr. Bost. Thank you, Mr. Banks.
    I would like to recognize Ms. Brownley for five minutes on 
her bill. Welcome.

         OPENING STATEMENT OF HONORABLE JULIA BROWNLEY

    Ms. Brownley. Thank you for considering my legislation, the 
Protect Veterans from Financial Fraud Act, which will ensure 
that our veterans receive the benefits they have earned and 
deserved.
    As many of you may recall, my bill passed the Subcommittee 
in the 114th Congress, but was not brought to the floor for a 
vote. I am hoping that we can get a home run this year and 
appreciate that the Subcommittee is holding a hearing on the 
bill.
    As you know, the VA's Fiduciary Program was established to 
protect veterans and other beneficiaries who, due to injury, 
disease, or old age, are no longer able to manage their 
financial affairs. Many veterans who participate in the 
Fiduciary Program depend on their VA benefits, truly, to make 
ends meet. In fact, in 2016, the Fiduciary Program served more 
than 230,000 veterans' survivors and dependents.
    My bill would protect veterans and the Fiduciary Program 
from financial fraud by ensuring that every veteran in the 
program can recover their benefits in cases when the appointed 
fiduciary misuses or steals a veteran's benefits.
    Under current law, if a VA-appointed fiduciary misuses or 
steals a veteran's benefits, the VA has the power to remove the 
fiduciary and we know this is a serious concern. In 2016, the 
VA conducted nearly 1,500 misuse investigations, of which 764 
fiduciaries were removed based upon a finding of misuse of 
benefits.
    However, in many cases, VA can't reissue the benefits to 
the veterans, who, through no fault of their own, may have been 
swindled by a VA-appointed fiduciary. This is because the VA 
can only reissue the lost benefits to the veteran if their 
fiduciary manages VA benefits for at least nine other veterans. 
This arbitrary ten-or-more rule means that veterans cannot be 
made whole, even if the veteran has been taken advantage of by 
unscrupulous individuals, often those closest to them, who were 
entrusted with management of a veteran's finances.
    My bill will ensure that all veterans who have VA- 
appointed fiduciaries are treated equally by eliminating the 
ten-or-more rule, and my bill will ensure that all veterans who 
have their benefits stolen, can recoup the lost benefits.
    I am pleased to see from the testimony that the VSOs here 
today are supportive of this change and I am glad to hear that 
the VA also believes that Congress needs to fix the statutory 
problem and allow the agency to make all veterans whole.
    The VA and our VSOs agree that the existing law is 
arbitrary because it forces VA to treat two beneficiaries 
differently and does not provide the same financial protections 
to all veterans. My bill will correct this in justice. Every 
veteran participating in the VA Fiduciary Program should be 
fully protected from fraud and abuse.
    I urge my colleagues to support this simple common sense 
fix and am happy to answer any questions.
    Mr. Bost. Thank you, Ms. Brownley.
    Representative Bergman, you are recognized for five 
minutes.

          OPENING STATEMENT OF HONORABLE JACK BERGMAN

    Mr. Bergman. Thank you, Mr. Chairman.
    My bill is very simple. It will clarify that the VA has the 
authority to use mandatory funds to pay for the cost of 
veterans travel to contract disability examinations.
    As you know, a veteran who files a claim for disability 
benefits may be required to undergo a VA medical examination; 
however, VA does not have enough examiners to schedule these 
evaluations in a timely manner. It can be especially 
challenging for VA to arrange for disability exams if the 
veteran needs to see a specialist, such as a cardiologist. 
Furthermore, veterans who live in rural areas often have to 
travel long distances to get to VA facilities to see an 
examiner.
    To address this issue, Congress gave the Department the 
authority to contract with non-VA physicians to perform 
disability examinations. This policy also allows VA physicians 
to devote more time to care for our wounded heroes, rather than 
spending time conducting disability exams.
    Additionally, using contract examiners has the added 
benefit of helping VA to schedule disability evaluations closer 
to the veteran's home. For more than 20 years, VA has been 
paying for beneficiary travel, regardless of whether veterans 
who needed disability evaluations used VA facilities or 
contractor facilities.
    This bill would simply codify VA's longstanding practice of 
using mandatory funds to pay beneficiary travel for contract 
exams. H.R. 1564 does not add to the deficit, because this 
money is already included in the baseline.
    This legislation will help veterans receive the benefits to 
which they are entitled by allowing VA to pay beneficiary 
travel to contract disability examinations.
    I ask my colleagues to join me in supporting H.R. 1564 and 
I yield back.
    Mr. Bost. Thank you, Mr. Bergman.
    Our colleague, Mr. Valadao, from California is at the 
witness table. First off, thank you for being here and to 
discuss H.R. 299, the Blue Water Navy Vietnam Veterans Act of 
2017.
    Mr. Valadao, you are recognized for five minutes.

        OPENING STATEMENT OF HONORABLE DAVID G. VALADAO

    Mr. Valadao. Thank you, Chairman.
    Chairman Bost, Ranking Member Esty, Members of the 
Subcommittee, thank you for allowing me here today to offer 
testimony on my legislation, H.R. 299, the Blue Water Navy 
Vietnam Veterans Act.
    Since coming to Congress, I have been a proud supporter of 
our Nation's veterans and I am excited to sponsor this critical 
legislation today. The Members of this distinguished 
Subcommittee have a comprehensive understanding of the harmful 
effects of the herbicide Agent Orange and the lasting impact it 
has had on U.S. servicemembers who sacrificed so much for our 
country during the Vietnam War.
    Our government must now ensure that those who were exposed 
to Agent Orange during wartime are provided for when they 
return home. In the aftermath of the Vietnam War, the United 
States Government linked the chemical dioxin in Agent Orange to 
many harmful and serious medical conditions, affecting those 
who served in or around Vietnam.
    While the Federal government has provided for those who 
served on Vietnam's soil during the war, those who served in 
territorial seas of the Republic of Vietnam lack the 
compensation and treatment they deserve.
    In 2002, the Department of Veterans Affairs reinterpreted 
the language of Agent Orange Act of 1991 to apply only to 
veterans who actually set foot in the Republic of Vietnam or 
who served in the inland, round waterways. As a result, the 
veterans who served off the coast in blue water must now 
provide service-connection and exposure to Agent Orange, which 
can often prove a long and burdensome process.
    The VA continues to deny claims for blue water Navy 
veterans, despite studies that show higher rates of cancer and 
non-Hodgkin's lymphoma among shipboard veterans. While it may 
be difficult to definitely prove that blue water Navy veterans 
were exposed to Agent Orange, their higher rates of diseases 
associated with exposure to the herbicide are cause for alarm. 
This, combined with studies to show a plausible pathway for the 
herbicide to have entered the South China Sea are evidence 
enough that these brave servicemembers were exposed to the 
herbicide.
    Even more alarming, studies also show the distillation 
process to convert saltwater to drinking water enriched the 
chemical dioxin in Agent Orange's potency and contaminated the 
shipboard water system.
    My legislation, H.R. 299, the Blue Water Navy Vietnam 
Veterans Act, would restore the presumptive--the presumption of 
service-connection for blue water Navy veterans that existed 
prior to 2002 VA decision. Lifting the burden of proving 
service-connection from the individual veteran is vitally 
important, as it places blue water Navy veterans on the same 
playing field as those who served on land.
    These brave men and women of our Nation's Armed Forces have 
sacrificed their health and often times, their lives, in 
service to our great country. Providing for them when they 
return home is the least we can do to show our unwavering 
commitment to our veterans and appreciation for their service.
    Along with myself and my colleague, Ranking Member Tim 
Walz, this legislation has the support of over 250 Members of 
Congress and counting, including 16 Members of the Veterans' 
Affairs Committee. It is important for Congress to ensure our 
blue water Navy Vietnam veterans receive the support and care 
they need.
    I thank the Subcommittee on Disability Assistance and 
Memorial Affairs, and the Veterans' Affairs Committee as a 
whole, for their consideration of this critical legislation, 
and I hope that we can work together to provide for our 
Nation's heroes. Thank you.
    Mr. Bost. Thank you, Mr. Valadao.
    And we will forego any rounds of questions for Mr. Valadao 
and any questions that anyone may have for our colleague, may 
submit them to the record.
    I now want to invite the second panel to the table. We are 
joined today by Ms. Beth Murphy, the director of compensation 
services at the Veterans Benefits Administration; she's 
accompanied by Ms. Patricia Watts, the director of legislative 
and regulatory services for the National Cemetery 
Administration and Mr. Ralph Erickson, the chief consultant for 
post-deployment health services at VHA.
    Thank you for being here, and Ms. Murphy, you are 
recognized for five minutes.

                    STATEMENT OF BETH MURPHY

    Ms. Murphy. Good morning Chairman Bost, Ranking Member Esty 
and Members of the Committee. We appreciate the opportunity to 
be here this morning to present views on several bills that 
would affect VA programs and services.
    The first bill I will address is H.R. 105, Protect Veterans 
from Financial Fraud Act of 2007. This bill would remove 
restrictions on VA's authority to reissue benefits in cases of 
fiduciary misuse. Also, it would codify current policy that 
mental competence determinations are appealable to a Board of 
Veterans' Appeals and U.S. Court of Appeals for Veterans 
Claims.
    VA supports this bill to ensure equal treatment of all 
fiduciary misuse victims and allow VA to promptly reissue 
benefits, thereby minimizing financial hardship to 
beneficiaries.
    H.R. 299 Blue Water Navy Vietnam Veterans Act of 2017 would 
extend the presumption of Agent Orange exposure to all veterans 
who served on ships in the territorial seas of the Republic of 
Vietnam.
    VA has concerns with H.R. 299 and cannot support the bill 
at this time. The bill does not clearly define the terms 
``territorial seas.'' VA is also concerned with the September 
25th, 1985, effective date of the bill, which would potentially 
result in many cases with retroactive awards of more than 30 
years.
    Re-adjudicating old claims and establishing large 
retroactive awards would be complex and labor-intensive and 
divert resources from other disability claims.
    Lastly, there is continued scientific uncertainty 
surrounding this issue. At VA's request, Institute of Medicine 
reviewed all scientific evidence and could not state with 
certainty that blue water Navy personnel were or were not 
exposed to Agent Orange. VA continues to review and monitor 
available scientific evidence on this issue.
    H.R. 1328, American Heroes COLA Act of 2017 would 
permanently authorize VA to implement cost-of-living increases 
to rates of disability compensation and dependency and 
indemnity compensation or DIC. VA supports this bill and this 
is consistent with the longstanding practice of Congress to 
enact regular cost-of-living increases and would eliminate the 
need for additional legislation to implement such future annual 
increases.
    H.R. 1329, Veterans Compensation Cost-of-Living Adjustment 
Act 2017 would require VA to increase rates of disability 
commencing in DIC by the same percentage as any increase to 
Social Security benefits, effective December 1st, 2017. VA 
strongly supports this bill to ensure the value of benefits 
keeps pace with the increase in consumer prices.
    H.R. 1390, Transportation of Deceased Veterans to Veterans 
Cemeteries, would increase burial location options, for which 
VA may make transportation costs for eligible veterans remains.
    VA supports H.R. 1390, because in addition to national 
cemeteries, VA would also pay transportation to veterans 
cemeteries owned by state or tribal organizations.
    Next, H.R. 1564, VA Beneficiary Travel Act of 2017, would 
direct the use of funding from the mandatory compensation and 
pension appropriations to pay for travel and incidental 
expenses associated with contract disability examinations.
    VA strongly supports the bill that would codify, clearly 
authorizing VA to fund a nationwide contract exam pilot program 
from a single source.
    Finally, H.R. 1725, Quicker Veterans Benefits Delivery Act 
of 2017 would prohibit VA from requesting a C & P examination 
when a claimant submits medical evidence adequate for rating 
purposes and would require VA to report on the progress of VA's 
Acceptable Clinical Evidence or ACE initiative, and submit data 
for each VA Regional Office, unused by claimants of private 
medical evidence in support of C & P claims.
    The VA does not support this bill, but appreciates the 
intent to more expeditiously provide benefits to veterans; 
however, VA currently has a policy of adjudicating claims 
without a C & P exam if a claimant submits evidence adequate 
for rating purposes, even from private providers. This practice 
is grounded in existing statute and VA regulation.
    VA is especially concerned with the reporting requirements 
of the bill. VA tracks the number of ACE exams, but does not 
track when evidence is supplemented with a telephone interview 
or when private medical evidence is or isn't sufficient for 
rating purposes, as this is not a formal determination.
    If a C & P exam is requested after receiving and reviewing 
private medical evidence, VA has determined in its claims 
adjudication process that the evidence is insufficient for 
rating purposes.
    This concludes my remarks. I would be happy to answer any 
questions you may have. Thank you.

    [The prepared statement of Beth Murphy appears in the 
Appendix]

    Mr. Bost. Thank you, Ms. Murphy, and thank you for 
testifying before us today.
    I am going to go ahead and go to questions and I will have 
the first five minutes. Ms. Murphy, can you elaborate, please, 
on the importance that Congress pass House Resolution 1329; 
that is the Veterans Compensation Cost-of-Living Adjustment, 
and why you think that may be necessary and you are in support 
of it.
    Ms. Murphy. Mr. Chairman, thank you. This--this is--makes 
good business sense. It is great for veterans. It makes sure 
that we keep pace with the economy and make sure that their 
benefits maintain viability with consumer pricing.
    Also, I would tell you behind the scenes, there is some 
work that has to be done to make those adjustments in our 
systems every year and when we're waiting up to the minute 
sometimes for that thumbs-up, it gets a little challenging. So 
this would just make sure that that cost-of-living adjustment 
was in place and ensure veterans with confidence that we want 
to make sure that their benefits remain viable.
    Mr. Bost. Well, the next question is similar, but going to 
the next bill, what do you think of when House Resolution--H.R. 
1328--forgive me for the House Resolution--that is my Illinois 
side that keeps coming back on that, instead H.R. 1328--would 
provide veterans some peace of mind and to having that COLA so 
that they know that it is going to occur. What is your 
reaction, and then the reaction that you think we would get 
from veterans.
    Ms. Murphy. I think it is a win-win. We would certainly 
support it. It is something that we anticipate every year and 
plan for that, but just making--knowing that it will be in 
place and that that it is not something we have to wonder and 
guess about, provides confidence for us, provides confidence 
for veterans and it honors their service, to make sure that 
they understand that their benefits are important to them and 
they are important to us, as well, and we want to make sure 
that they keep pace with economic pricing.
    Mr. Bost. My next question is for Dr. Erickson. Dr. 
Erickson, in the past, VA has stated that one of the reasons it 
has been so hard to determine whether an Agent Orange 
presumption should apply to blue water Navy veterans is lack of 
measures taken at the time of potential exposure.
    What efforts has the Department put in place now, to maybe 
adjust that?
    Mr. Erickson. Thank you, Mr. Chairman.
    Just by way of introduction, I am a veteran as well; I 
served for 32 years of active duty as an Army doctor. My last 
assignment was as the commander of the Walter Reed Army 
Institute of Research. I have been with VA for now, three 
years.
    We recognize that short of inventing a time machine to go 
back and get those measurements that we don't have in this 
case, we are being prospective, and so we are actually 
partnering with the Department of Defense to create something 
called the Individual Longitudinal Exposure Record, the 
Individual Longitudinal Exposure Record, or the ILER, for 
short. This is a fairly large task that we are undertaking that 
will allow the Department of Defense to actually collect 
realtime exposure measurements on servicemembers during their 
time of service.
    And this would be information that would be available, 
then, to health care providers while that servicemember is 
still on duty and afterwards, to providers who are within the 
VA system. We think this will take us a long way forward and 
will correct a major gap right now that we have to deal with. 
Mr. *Bost.* So, what you just said is you do have the research 
available to go back and actually identify those blue water 
Navy veterans and truly see. And the studies have been done?
    Mr. Erickson. No, sir. We do not have the ability--the DoD 
does not have the exposure information. VA does not have the 
exposure information for blue water Navy, but from today into 
the future, for future servicemembers, we are actually trying 
to correct this; realizing that, you know, we didn't do this on 
a corporate level within DoD or VA for past cohorts of 
servicemembers, but from here on out, we are working with the 
Department of Defense to make sure that happens.
    Mr. Bost. Okay. Ms. Murphy, one more question for you. Can 
you please expand on why the VA extended the presumption of 
exposure of the Agent Orange to brown water Navy veterans, but 
not blue water Navy veterans.
    Ms. Murphy. So, I will ask Dr. Erickson to supplement any 
science on this--
    Mr. Bost. Okay.
    Ms. Murphy [continued]. --but, essentially, those that had 
boots on the ground in Vietnam and those in inland waterways 
share commonality in the types of exposure, extent of exposure 
that they would have been experiencing, which is 
differentiation from the amount of types of exposure that they 
would have had out in the blue water.
    Dr. Erickson, can you supplement with the science behind 
that?
    Mr. Erickson. Certainly. I think it was based upon the fact 
that we knew that spraying had occurred along the coasts, in 
fact, included spraying by riveting vessels that would be going 
in and out of the rivers and the openings for those rivers. And 
so there was a fairly strong basis that, in fact, the Agent 
Orange had been sprayed at those locations.
    Mr. Bost. My time has expired. I would like to turn the 
questioning now over to the Ranking Member, Ms. Esty.
    Ms. Esty. Thank you, Mr. Chairman.
    If I could follow up, Dr. Erickson or Ms. Murphy, would it 
be helpful for us to be more specific on territorial seas? 
Certainly, there was some discussion, and I am hearing from 
veterans who I represent, and the mechanisms, maybe, Dr. 
Erickson, for you about the concentration, the desalination, 
and do we really know how much exposure there was? Because that 
is what I am hearing. I have to tell you, frankly, that is what 
I am hearing a lot about and I am not sure that there has been 
sufficient attention paid to what that exposure might have 
been.
    Ms. Murphy. So, Congresswoman, yes, there is some 
uncertainty in what the definition of ``territorial seas'' is; 
it is one of several factors that I mentioned that causes 
concern with the bill.
    Ms. Esty. Would more specificity help? Because we are 
facing situations in which we have veterans now, and as you 
point out, 30 years on, well, it is hard to prove 
retroactively, but let's be very clear; we sent them into 
harm's way and they are now experiencing exactly the same 
symptoms and problems that their colleagues, men and women in 
arms, were facing on land.
    And you can understand our frustration and theirs in 
saying, like, we don't know enough yet; it is 30 years. You can 
understand, there might be a little bit of cynicism about, 
maybe, we will decide at a point when it is no longer possible 
to help anybody.
    Ms. Murphy. I can absolutely understand the frustration. I 
have committed my whole career to serving veterans and finding 
ways to pay benefits and to do that, we have relied on the fact 
that there needs to be a rational basis for additional benefits 
and litigation that we--or regulations that we add in to pay 
benefits. And we have been searching for that and with blue 
water Navy veterans and broader-types of veterans to find 
benefits when there is no rational basis or no science behind 
it that we can put our finger on.
    So, it is something that we continue to look at. We have 
not had full opportunity to discuss this with the secretary. He 
is new and he is a physician and understands these issues and 
has a different perspective possibly, so this will continue--
    Ms. Esty. Okay. Great. I have some other questions.
    Ms. Murphy. Yes.
    Ms. Esty. So, Dr. Erickson, can you speak to a little bit 
to the desalination issue.
    Mr. Erickson. Certainly. Ranking Member Esty, you have 
asked, perhaps, the central question, and we mentioned in our 
written testimony that there is uncertainty and there is 
tremendous uncertainty.
    We very much respect our Australian partners who have gone 
to war with us so many times. We respect the scientist who, in 
fact, did a key study, which a number of us have read and have 
discussed, in which a laboratory setting involved adding 
different amounts of various contaminants to include dioxins to 
a mixture of water. They would then see if, in fact, during the 
distillation process, if, in fact, it was removed or if it 
would be co-distilled; it would stay with the water. Not only 
was it co-distilled, in fact, it was concentrated.
    That in itself, provides the conceptual framework for how, 
in fact, onboard the Australian ships, there could be Agent 
Orange, and the contaminate of dioxin. And was mentioned by the 
authors in the article, they had regularly brought in estuarine 
water, that is water near the shore, so as to have less of a 
salt content to deal with. And for them, it made sense that 
that laboratory simulation would represent what occurred aboard 
the Australian vessels.
    As it would relate to the U.S. Navy, I understand from our 
DoD partners that as a practice, by their standard operating 
procedures, they would have drawn in water for their 
distillation from 12 miles out. And so it makes it a little bit 
harder for this conceptual framework to apply to the U.S. Navy, 
but as I mentioned at the beginning--
    Ms. Esty. The NVA processing, if you knew for a fact that 
there were going to be COLA adjustments every year, would that 
allow us to get more benefits in the hands of--
    Mr. Bost. Thank you. And Mr. Bergman, you are recognized 
for five minutes.
    Mr. Bergman. Thank you, Mr. Chairman.
    Listening to your questions and the responses, we would all 
likely agree that life is complex and as we try to combine 
science with what we know to be historical facts or times and 
place, it is a challenge. And so I thank everyone for their 
engagement in combining all the different factors to come up 
with a different solution.
    Dr. Erickson, is the VA working with DoD to conduct a 
comprehensive review to determine exactly which ships operated 
in inland waterways of Vietnam?
    Mr. Erickson. Congressman, General, I very much appreciate 
this question, and Ms. Murphy could answer this as well. We 
have a ships list which, in fact, has been collected over, I 
believe, several decades now. Now, the ships list has over 300 
ships listed. This has been an ongoing partnership with the 
Department of Defense, with the Department of the Navy to look 
at their records to where their ships transited; when did they 
come into port, when did they anchor, where were they. And the 
goal, there, being to actually lower the threshold for 
veterans.
    If, in fact, Navy veterans would be able to demonstrate 
that they were on a given ship that came into shore, that in 
itself would bolster their claims.
    And please forgive me if I am stepping on your BBA side, 
here.
    Ms. Murphy. Not at all.
    I would say that everybody is passionate about this and 
this is the business that we should be in; is hearing from 
advocates, doing research, talking to the experts, talking to 
our DoD partners, talking to our congressional partners, and 
really getting as much evidence information and evidence on 
this topic and other similar topics that are of interest and 
passionate to veterans, because we want to find ways to pay 
them benefits, but historically, we have to say no to some 
folks when there is not a rational basis or the evidence is not 
there.
    So, we continue to look. We want it to continue to be an 
issue for discussion so that we can get as much information and 
evidence on this as possible.
    Mr. Bergman. Okay. But, in placing ships at a certain place 
at a certain time, is that--you can--is there a chart that 
shows which ships were in those inland waterways--
    Ms. Murphy. Yes, we maintain a ships list--
    Mr. Bergman. So, you have an exact list, so then we know, 
exactly, given our rosters, who was aboard those ships and at 
what time. So, as the veterans come in and have a certain set 
of conditions, you can immediately go out to a list and say you 
were aboard the USS Okinawa LPH3 during the 19--so, therefore, 
if we all of a sudden have a certain number of people at a 
certain point in time who have a certain set of symptoms or 
conditions, it should make--you know, it is not an exhaustive 
list; it is a finite list, right?
    Ms. Murphy. Congressman, yes, we have a ships list. There 
are several hundred ships, different categories of ships. We 
have gathered evidence and research in supporting putting those 
ships on the list.
    And we review it quarterly. We get information from DoD and 
recently I think we added 10 or 15 ships to that list.
    So--and by certain date ranges is applicable and if a 
veteran comes in and we can identify--you know, we can connect 
the dots and say, this ship is on the list, we can place that 
veteran on that ship during that timeframe that is applicable, 
then we extend that presumption to them, yes.
    Mr. Bergman. Okay. And I am glad that you used the term 
``connect the dots'' because that is a lot of what we do in so 
many different ways here is to connect the dots. And if we do 
it with data, which it seems like we have, then we are going to 
get the best results.
    Mr. Chairman, I yield back.
    Ms. Murphy. Thank you.
    Mr. Bost. Thank you, ma'am.
    Let me put on the microphone. Mr. Sablan, you are 
recognized for five minutes.
    Mr. Sablan. Thank you very much, Mr. Chairman, and Ranking 
Member Esty for holding today's hearing and good morning, 
everyone.
    I just have a few questions and maybe this one would go to 
Ms. Watts first, if you don't mind. Ms. Watts, under H.R. 1390, 
regarding the transportation of certain deceased veterans--and 
I really don't know the answer, which is why--would 1390 
include the territories under definition of states, because it 
says states or tribal cemeteries.
    In my jurisdiction, we have one VA cemetery, but it is--it 
belongs to the commonwealth of the territory that I am from.
    Ms. Watts. Thank you, Congressman.
    I believe that there are territories that do have state--
what we consider state veteran cemeteries.
    Mr. Sablan. So, under state, territories are included.
    Ms. Watts. They fall in the definition of the state.
    Mr. Sablan. And Northern Mariana would be included under 
H.R. 1390?
    Ms. Watts. Potentially, yes. And we would--there are 
certain state veterans--state and tribal cemeteries that we 
provide grants--the VA provides grants to allow them to 
maintain those cemeteries.
    Now, that doesn't mean--I'm sorry.
    Mr. Sablan. Not for the Northern Mariana. Yeah, you don't 
even provide--
    Ms. Watts. Not every state or territory has such a granted 
cemetery; that is correct.
    Mr. Sablan [continued]. So, would it be asking too much to 
maybe sit down with us and consider including the territories 
or in particular, if all the territories, except the Northern 
Mariana are included, would it be--
    Ms. Watts. We would be more than happy to have any 
discussion that you would like to have.
    Mr. Sablan. Well, thank you. I appreciate that.
    Ms. Murphy or Dr. Erickson, would you please--would H.R. 
1564, the VA Beneficiary Travel Act, would the transportation 
costs be authorized if the veteran were required to travel by 
sea or by air? I mean you can't drive around in, for example, 
for disability exams.
    You know, if a patient from--I come from a place where 
there are 14 islands; three are inhabited primarily, so there 
is always a requirement for two of those islands, at least, to 
travel either by sea or by air to come and see a doctor.
    Ms. Murphy. So, Congressman, as far as the beneficiary 
travel, we have been working with contract vendors to establish 
locations around the country and around the world for 
examinations. The contract--where the contract vendors are 
located, we are paying for beneficiary travel to go to those 
contract vendors, but if that is not a location that is 
accessible to a veteran or it is not some place that we would 
send them, then we would be relying on VHA to provide that 
examination and then we would have to turn to VHA to look to 
its beneficiary travel rules for that.
    I will say, also, that we do have our disability benefit 
questionnaires that we do accept from private providers. So, if 
someone were to take a DBQ to their private local provider and 
it were to be filled out by a licensed clinician, we would 
certainly accept that, as well.
    Mr. Sablan. All right. I am actually putting together a 
story, sort of--cases, different situations that I would like 
to work with the Veterans Administration to get some answers if 
possible. But thank you for that answer.
    Ms. Murphy. We would be happy to work with you and talk 
with you more about that.
    Mr. Sablan. I appreciate that thank you.
    I have just one more question, again, Ms. Murphy or Dr. 
Erickson. In a jurisdiction--and this is on H.R. 1725--in a 
jurisdiction where there are no VA health centers or VA 
clinics, wouldn't it be reasonable to allow medical or private 
practitioners' opinions to be sufficient for rating purposes 
and not require veteran to travel by sea or by air for an 
examination to see a VA doctor; otherwise, you have to send him 
to Honolulu and, of course, sometimes they have to--there are 
many instances that I am aware of, where they put up their own 
money to go a center, for example, or try and see a doctor in 
Guam, if they can.
    And I don't have the time, but--
    Ms. Murphy. Congressman, that is absolutely an opportunity 
they have. We accept private medical evidence and if it is 
sufficiently comprehensive and answers all the questions that 
we need for rating purposes, we use that.
    Mr. Sablan. I understand. Okay. Thank you.
    Thank you, Mr. Chairman, I yield back.
    Mr. Bost. Thank you.
    There is no one else on the dais seeking to ask questions. 
We want to thank this panel for being here today, Ms. Murphy 
and everybody involved. Thank you so much.
    And we want to invite up the third panel.
    I want to thank you as a panel for being with us. Mr. 
Zachary Hearn is with us, the Department of--I'm sorry--the 
Deputy Director for Claims of Veterans Affairs and 
Rehabilitation Division of The American Legion; Mr. Rick 
Weidman, the Executive Director of Policy and Government 
Affairs for the Vietnam Veterans of America; Mr. Patrick 
Murray, the Associate Director of National Legislative Services 
for Veterans of Foreign Wars; and Mr. Leroy Acosta, the 
Assistant National Legislative Director of the Disabled 
American Veterans; and also, Mr. John B. Wells, the Executive 
Director of Military Veterans Advocacy, Inc.
    First off, I want to thank you all for being here and for 
working--for the work you and your organizations do every day 
to improve the lives of our veterans. We want to thank you for 
that.
    Mr. Hearn, we will begin with you and you are recognized 
for five minutes.

                   STATEMENT OF ZACHARY HEARN

    Mr. Hearn. Good morning. The simple fact is, serving in our 
Nation's Armed Forces is inherently dangerous. Medical 
conditions may manifest due to service and we, as a society, 
have an obligation to compensate for medical conditions related 
to service.
    Many of these veterans depend upon these benefits and for 
this reason, it is imperative that we ensure these deserving 
veterans and their family members receive the highest level of 
consideration.
    Good morning, Chairman Bost, Ranking Member Esty, and 
Members of the Subcommittee. On behalf of National Commander 
Charles E. Schmidt, and the Nation's largest veteran's service 
organization, we welcome the opportunity to testify regarding 
pending legislation.
    The American Legion supports the passage of H.R. 105, 
designed to protect veterans from the unscrupulous acts of 
fiduciaries. Veterans requiring fiduciaries are some of the 
most vulnerable veterans. Half of these veterans are over 80 
years old. All of them are unable to manage their financial 
affairs.
    Veterans who have been impacted by poor-acting fiduciaries 
do not have the ability to recoup their lost funds from VA 
unless the fiduciary represents 10 or greater beneficiaries. 
This bill would now permit VA to provide the lost funds to the 
veteran, regardless of the amount of beneficiaries represent by 
a fiduciary.
    H.R. 299 corrects a wrong that has played the blue water 
Navy veteran community and affords the veterans the benefits--
the benefit of doubt to herbicide exposure.
    Over 800,000 blue water Navy personnel served in Vietnam's 
territorial waters between 1962 and 1975. VA has repeatedly 
stated that there is no conclusive evidence that supports 
presumptive herbicide exposure.
    The Institute of Medicine's Committee on Veterans and Agent 
Orange stated that there were no environmental studies 
conducted during the Vietnam War, and due to that fact, it 
cannot determine the occurrence of herbicide exposure.
    In short, VA cannot prove blue water Navy veterans were 
exposed to Agent Orange and it appears they never will. Blue 
water Navy veterans, for years, have pointed to the 2002 
Australian study that found that distilling of sea water not 
only failed to eliminate the toxic chemicals, but it enhanced 
it is impact. For a blue water Navy veteran to gain service-
connection due to herbicide exposure, proof has to be provided 
that exposure occurred.
    VA is essentially directing veterans to provide proof of 
exposure to a chemical that few knew of its impact half a 
century after the incident. As you can imagine, this is a near-
impossible task. The American Legion has long believed that 
these veterans of the blue water Navy deserve to be treated as 
presumptively exposed and supports this bill.
    H.R. 1328 provides an automatic annual cost-of-living 
adjustment for veteran's disability benefits. While this bill 
would prove efficient in the administration of COLA, it would 
also come as a significant cost to the veteran, as it uses the 
chain CPI as its foundation.
    The current CCPI COLA formula suggests a 30-year-old 
veteran with no children and one hundred percent disabled, 
would likely lose about $100,000 in disability compensation by 
the time that the veteran reaches 75 years of age. This is the 
equivalent of years of benefits lost, due to this bill.
    The American Legion opposes this bill and any legislative 
efforts to automatically index COLA to the COLA-authorized for 
Social Security recipients, nonservice-connected disability 
recipients, and death benefits.
    H.R. 1329 increases the rate of compensation as of December 
1, 2017, for veterans with service-connected disabilities and 
surviving spouse benefits. When inflation impacts the cost-of-
living, it is natural to adjust benefits according to the 
increases. The American Legion supports this bill.
    H.R. 1390 authorizes VA to pay costs associated with 
transporting deceased veterans to state- or tribal-owned 
veterans cemeteries. VA currently pays transportation costs 
only for national cemeteries. This bill will expand options for 
veterans' families and The American Legion supports this bill.
    H.R. 1564 specifies the funding source for travel related 
to examinations by medical professionals, not employed by VA 
for compensation and pension examinations. This bill properly 
designates where VA draws funds for veterans to receive 
payments for travel to C & P exams and does not impose 
additional funding requirements. We support this bill.
    H.R. 1725 improves the treatment of medical evidence 
provided by non-VA medical professionals supporting disability 
compensation claims. It is unfortunate that a bill has to be 
passed to force VA to do what it already has the authority to 
do.
    The American Legion regularly reviews VA adjudications and 
frequently, VA schedules exams, despite having the necessary 
evidence available to decide a claim. This second exam comes at 
a cost to VA and delays an adjudication.
    Additionally, this process is often frustrated by raters' 
near-whole dependence upon its evaluation builder tool, it 
doesn't allow for the weighing of evidence. This bill allows 
for a streamlining of adjudications through rating based upon 
Acceptable Clinical Evidence and The American Legion supports 
the bill.
    Again, on behalf of National Commander Charles E. Schmidt 
and the 2.2 million members of The American Legion, we 
appreciate the opportunity to speak this morning on today's 
bills. I will be happy to respond to any questions provided by 
the Committee. Thank you.

    [The prepared statement of Zachary Hearn appears in the 
Appendix]

    Mr. Bost. Thank you, Mr. Hearn.
    Mr. Weidman, you are recognized for five minutes.

                   STATEMENT OF RICK WEIDMAN

    Mr. Weidman. Thank you, Chairman Bost. I look forward to 
getting to know you particularly in this new role.
    And Ranking Member Esty, I hear such great things about you 
from Linda Schwartz and our folks in Connecticut. They think 
you can walk the entire length of the reflecting pool in front 
of the Lincoln Memorial without getting wet, so I look forward 
to getting to know you.
    I will comment just on two bills today. And we favor most 
of, actually, all of the bills that are on the docket for 
various reasons. First, I will touch on the Protect Veterans 
from Financial Fraud Act.
    The fiduciaries at VA have been a scandal for as long as I 
can remember and VA already has the statutory authority to 
investigate and to bring charges against those that are 
stealing from veterans that are not able to defend themselves, 
but they have not done it. And while we favor this particular 
act, what is really necessary is oversight hearings that demand 
that they follow the statute and the regulations pursuant to 
the statute to safeguard those individuals, most vulnerable of 
our veterans.
    So, I just want to say that as a start, and that you are 
going to accomplish, I believe, much more in passing the 
legislation--we have no problem with that--but I encourage you, 
Mr. Chairman and Madam Ranking Member that you pursue some 
oversight hearings on this.
    The Blue Water Navy Vietnam Veterans Act, Institute of 
Medicine, in every review they have done since--without 
evidence, the VA said no more blue water Navy. And to show you 
how absurd their definition is, they draw an imaginary line 
across Denang Harbor and if, in fact, you are here in the 
water, you are not exposed, and if you are here in the water, 
two feet away, you are exposed. It is preposterous; it is not 
scientific evidence. It is simply wanting to say no.
    Vietnam veterans generally believe that the policy of the 
VA, when it comes to any kind of toxic exposure, but 
particularly Agent Orange, is delay, deny, and wait for us to 
die. And, frankly, there is very little to controvert that.
    Almost everything in the environmental hazards and public 
health section of VA, may be really nice people who are good to 
their family, but by God, they are not proper arbiters of 
science and they just simply aren't.
    The Institute of Medicine study that was done, they were--
in the charge, was to find out whether or not it was plausible 
and they did find out that it was plausible. They did replicate 
the experiment of the concentration of the dioxin and found out 
it was correct.
    That is the first time that IOM, as part of one of their 
reviews that I know of, where they have actually gone and done 
original scientific experiment in order to see for, themselves, 
what is the deal. The--when the report came out, they said, 
yes, it is, in fact, plausible and, in fact, we believe it 
happened.
    As you may know, and everybody should understand, Agent 
Orange, Agent Pink, and the other defoliants were mixed with a 
mixture of kerosene and JP4. And what does that do when it hits 
water? It floats near the surface. It floats near the surface 
way the heck out to sea where it would then be picked up.
    Although Agent Orange is not water-soluble, in fact, it is 
water dispensable, and that is what happened, because it was 
wrapped in the envelope of those petroleum products that did, 
in fact, keep it near the surface.
    Coming back to the IOM study, they were charged with 
finding out whether there was a mechanism whereby people could 
be exposed. And they showed that that was the case, under 
pressure from VA. Then turned around and said, well, we can't 
really make any recommendation on this because we have no idea 
how much folks were exposed.
    And we said, so what? You have no idea how much I was 
exposed in Icor, northern part of the Republic of Vietnam, 
otherwise known as South Vietnam versus my colleague, who 
served in For Cor with the Ninth Infantry Division down in the 
southern part of Vietnam. And VA decided with the assistance, 
shall we say, of the Congress in 1991 to say, this is absurd, 
we are never going to figure out who was exposed and not. Let's 
look at the effects of this thing.
    And the VA, since the blue water Navy, they have tens of 
thousands of Navy vets who used VA services; it is very easy to 
find out who has a Southeast--or Vietnam service medal and who 
does not. And if those who do not who served on a similar 
vessel in the Atlantic or the Mediterranean, compare their 
health to those who have a Vietnam service ribbon. This is not 
a hard thing to do. It is not an expensive thing to do, but 
they haven't even requested that it be done.
    And we are with the National Academy of Medicine in 
recommending that they be restored. We know, as valuable and as 
important and as righteous as bill is, because of offsets, it 
probably won't be able to bring it to the floor.
    But all of you on this Committee, on a bipartisan way, 
should pressure the secretary to say, this is absurd; include 
these veterans back in. They--Congress in 1991 intended for 
them to be in.
    So, I am over time. I thank you for your indulgence of the 
extra one minute and four seconds sir.

    [The prepared statement of Rick Weidman appears in the 
Appendix]

    Mr. Bost. Thank you, Mr. Weidman. And with that we will 
recognize Mr. Murray.

                  STATEMENT OF PATRICK MURRAY

    Mr. Murray. Chairman Bost, Ranking Member Esty and the 
Members of the Subcommittee, on behalf of the men and women of 
the Veterans of Foreign Wars of the United States and our 
auxiliary, thank you for the opportunity to provide our remarks 
on legislation pending before the Committee.
    The VFW supports Blue Water Navy Vietnam Veterans Act, 
which would require the Department of Veteran Affairs to 
include territorial seas as part of the Republic of Vietnam, 
extending presumptive service-connection and health care for 
Agent Orange related illness to Blue Water Navy Veterans. 
Currently VA relies on what the Court of Appeals for Veterans 
Claims has called arbitrary and capricious interpretation of 
inland waterways which unjustly denies veterans who served 
aboard ships in the coastal waters of Vietnam the benefits they 
deserve. The VFW believes that Blue Water Navy Veterans were 
potentially exposed to significant level of toxins and should 
be granted the same presumption of service-connection as their 
counterparts who served in the inland waterways of Vietnam.
    The VFW strongly supports the American Heros COLA Act and 
the Veterans Compensation Cost of Living Adjustment Act, which 
will increase VA compensation for veterans and survivors and 
adjust other benefits by providing a cost of living adjustment. 
The VFW is pleased to support any bill increasing COLA for our 
veterans. However, we would prefer to make COLA increases 
permanent and automatic. Disabled veterans, along with their 
surviving spouses and children, depend on their disability 
compensation plus dependency and indemnity compensation to 
bridge the gap of lost earnings caused by the veteran's 
disabilities. Each year veterans wait anxiously to find out if 
they will receive a cost of living adjustment. There is no 
automatic trigger that increases these forms of compensation 
for veterans and their dependents. Annually veterans wait for a 
separate act of Congress to provide the same adjustments that 
is automatically granted to Social Security beneficiaries.
    The VFW supports the Protect Veterans From Financial Fraud 
Act, which provides the ability of veterans assigned 
fiduciaries to be compensated for having their money mishandled 
or misused. We see this bill as a common sense method to 
protect some of our most vulnerable veterans. If a veterans 
assigned a fiduciary for whatever reason, they need help and 
financial protection. And individuals who mistreat or prey upon 
their clients should be held accountable and compensation must 
be made to those affected. To go further, the VFW supports 
adding legislation that installs criminal penalties for those 
found to be intentionally preying upon veterans for any other 
financial gain. We would like to see this expanded to any 
attorneys or claims specialists that charge a fee to process 
initial claims. Abusing the health and financial welfare of 
veterans in need should be punishable by law.
    The VFW strongly supports the Quicker Veterans Benefits 
Delivery Act in order to help diminish the workload within VA. 
The VFW recognizes that the VA should still be the primary 
driver in taking care of patient's examinations. But we also 
realize that using third party medical evidence that the VA--I 
am sorry--to help is necessary to reduce the workload. Until 
the backlogged files begin to diminish within the VA, they 
should continue to utilize private physician's evidence to help 
shrink the number of claims and appeals. Veterans should not 
have to see another VA doctor in order to review and confirm 
private outside doctors' findings. This only adds to more 
confusion and clogs up the system. The VA needs to allow 
acceptable clinical evidence from competent credible physicians 
and not force veterans to seek a second opinion from a VA 
physician.
    While the VFW supports this bill, we do not feel it covers 
one of the most important medical issues facing veterans today, 
which is mental health. If the VA allows third-party physicians 
to examine veterans for almost all physical conditions, they 
should also utilize the appropriate medical professionals to 
examine mental health. Mental health examinations are 
increasing every day. And the VA insisting on patients seeing 
only VA doctors for initial examinations is increasing the 
burden on their own system. Initial mental health examinations 
should be added to the type of evidence accepted by VA 
examiners.
    Mr. Chairman, this concludes my testimony and I'm prepared 
to take any questions you may have.

    [The prepared statement of Patrick Murray appears in the 
Appendix]

    Mr. Bost. Thank you, Mr. Murray. With that, we will go to 
Mr. Acosta.

                   STATEMENT OF LEROY ACOSTA

    Mr. Acosta. Thank you, Chairman Bost, Ranking Member Esty 
and Members of the Subcommittee. Thank you for inviting DAV to 
testify at this legislative hearing of the Subcommittee on 
Disability Assistance and Memorial Affairs. As you know, DAV, a 
non-profit veteran's service organization comprised of 1.3 
million wartime services able veterans is dedicated to a single 
purpose, empowering veterans to lead high quality lives with 
respect and dignity. I am pleased to be here to present DAV's 
views on the bills under consideration by the Subcommittee.
    H.R. 105, Protect Veterans From Financial Fraud Act of 2017 
would require the VA to repay veterans those benefits that were 
misused by fiduciaries and establishes an appeals process for 
determinations of veterans mental capacity. DAV does not have a 
resolution specific to this issue. However, we would not oppose 
passage of this legislation.
    H.R. 299, the Blue Water Navy Vietnam Veterans Act of 2017 
would expand the definition of the Republic of Vietnam to 
include its territorial seas for the purposes of the 
presumption of service-connection for diseases associated with 
herbicide exposure. The benefits under this bill would be 
retroactive to September 25th, 1985. DAV supports H.R. 299 
based on DAV Resolution Number 18, which calls for the addition 
of the territorial waters of Vietnam to be included in the 
presumption of exposure to service-connection for herbicide 
related disabilities.
    Mr. Chairman, DAV Resolution Number 13 calls on Congress to 
support legislation to provide a realistic increase in 
disability compensation. DAV supports the provision in H.R. 
1328 and H.R. 1329, which would increase veterans' disability 
compensation, survivor benefits and clothing allowances by the 
same percentage as Social Security benefit increases. However, 
DAV is concerned about the automatic adjustment provision in 
H.R. 1328. This may adversely affect congressional oversight 
meant to protect against the erosion of these critical 
benefits, particularly in years where there are no COLA 
increases, such as in 2015, or minimal increases, such as in 
2017.
    H.R. 1390 would permit the VA to cover the costs associated 
with the transportation of deceased veterans not only to 
national cemeteries, but also to other recognized veteran 
cemeteries. DAV does not have a resolution specific to H.R. 
1390. However, we would not oppose its passage. This 
legislation would benefit veteran survivors by helping to 
offset the cost of transporting the veteran to their final 
resting place.
    H.R. 1564, VA Beneficiary Travel Act of 2017, would amend 
Section 504 of the Veterans Benefits Improvement Act of 1996 to 
specify the funding source for travel related to examinations 
by physicians not employed by the VA regarding medical 
disabilities of applicants for VA benefits. DAV does not have a 
resolution. However, we would not oppose passage of this 
legislation.
    The Quicker Veterans Benefits Delivery Act of 2017 would 
amend Title 38 U.S.C. to improve the treatment of medical 
evidence provided by non-VA medical professionals in support of 
veterans' claims for disability compensation. Mr. Chairman, DAV 
is pleased to provide our support of this bill, consistent with 
DAV Resolution Number 230, which seeks the enactment of 
legislation that would require VA to consider private medical 
evidence supplied by licensed private health care providers in 
private practices. This bill would give due deference to 
private medical evidence that is competent, credible, probative 
and otherwise adequate for rating purposes.
    Mr. Chairman, this concludes my testimony. And I'd be 
pleased to address any questions related to the bills discussed 
today.

    [The prepared statement of LeRoy Acosta appears in the 
Appendix]

    Mr. Bost. Thank you, Mr. Acosta. Then we want to move on to 
Mr. Wells. You are recognized for five minutes.

                   STATEMENT OF JOHN B. WELLS

    Mr. Wells. Thank you, Mr. Chairman, Ranking Member Esty. My 
name is Commander John Wells, USN retired. And I appreciate the 
opportunity to testify. We are going to talk mostly about Blue 
Water Navy Vietnam Veterans Act. I talk a little fast, 
especially since I'm going to try to go over some of the 
questions and red herrings given by the VA in their testimony 
to provide some real answers.
    First of all, I know that they are interested in the 
definition of territorial seas. That is set by treaty, 1958 
Convention on Territorial Seas in the Contiguous Zone, which 
has been ratified by the United States Senate. And ratified 
treaties become part of domestic law. We also recognized the 
territorial seas and Vietnamese sovereignty over them in the 
1954 Geneva accords and the 1973 Paris peace treaties. And 
court decisions of the Fifth Circuit and the Supreme Court of 
the United States specify that we will follow the definition of 
territorial seas.
    To make it easy, in Attachment One to my testimony we have 
shown you where the territorial seas is. It's the dashed line 
in there. So we would ask that that be made part of the 
legislative history of this so the VA won't define territorial 
seas as some lake in the middle of Hanoi.
    The 1985 date was picked because of the effective namer. 
You won't be adjudicating cases back to 1985. But if there are 
new diseases which come about, we would get the same benefit of 
namer as our army and brown water brothers would. In effect, 
these rights were stripped away from us by the VA in 2002. So 
you won't be looking at anymore claims until--2002 would be the 
earliest date. And many of those claims have expired, and 
unfortunately many of the veterans have expired as well.
    As far as the time to adjudicate these claims and so on a 
so forth, Mr. Chairman, Ranking Member Esty, Members of the 
Subcommittee, we are the backlog. We have kept those going. 
Okay. And if you pass this bill and give the presumption there 
is going to be a whole lot of the cases in the appellate 
backlog and in the individual claims backlog that can be 
immediately adjudicated and corrected. So and that is the truth 
of the matter.
    The VA talked about cost. They threw out a 900 and some 
million dollar figure I think for the first year. No, that is 
not the case. And Attachment Five to our testimony gives the 
CBO estimate of 1.104 billion. And I have seen them give up 
costs of 20 billion. I have seen them given costs of 4.4 
billion is what they told the Senate in the last Congress. 
Let's look at what the CBO says, 1.104 billion. I have met with 
the CBO. If anything, and they will agree with this, it is 
probably a little high at this time because of the ships added 
to the ships' list.
    And by the way, the DoD and the VA are not working together 
on that. That is input coming from organizations such as the 
Blue Water Navy Vietnam Veterans Association and some other 
organizations that do it. There is one guy in Cleveland, Jim 
Sampel, who does it part time. So, General, in answer to your 
question, no, they are not doing what they should, is going out 
and saying, hey, Navy, where were the positions of these ships 
vis-a-vis Vietnam. We did have a bill that passed the House 
twice. It would have done that two congresses ago. We haven't 
brought it back up again. We would sure like to see it brought 
up again because that would help us identify some more ships 
that had gone in the river.
    Ms. Murray talked, I am sorry I am talking fast, Ms. Murray 
talked about, Murphy, excuse me, talked about rationality and 
there has to be a rational basis. We agree with that, we 
certainly do. But what she didn't mention was the Court of 
Appeals of veterans' claims in a case called Gray v. McDonald 
came out and said that the exclusion of the bays and the 
harbors are just simply irrational and, as somebody mentioned, 
arbitrary and capricious.
    Now, they say there is no evidence that the Agent Orange 
got there. Mr. Chairman, I have shown you and probably half the 
people sitting up there Exhibit Two to our testimony, which 
shows where the bottom sediment samples were taken in Naktong 
Harbor, and Exhibit Three, which shows the toxicity levels 20 
years after the war. So they can't say it is not there. They 
don't mention the water barges, which were taking water from Da 
Nong Harbor's Monkey Mountain, this area up here that looks 
like it is low land, it is actually jungle. Was sprayed 
throughout the war. There is a reservoir there. That water was 
taken on and your staff has all this information. And they took 
it around to the ships.
    And by the way, let's talk about another fallacy. They say 
that the Australian study was invalid because U.S. Navy ships 
did not make potable water within 12 miles of shore. That is 
not true. There was a manual in the medicine depart--
publication which suggested it. But I know for a fact, and I 
was a chief engineer on a number of these ships, water was my 
business, that they did make water, even potable water, in some 
of the harbors and certainly close to shore. They had to, to 
keep the water tanks going. More importantly they always made 
feed water for the boilers. And guess what, it is the same 
distillation system down to the final discharge valve. And we 
have told the VA this before, they know it. Okay. So that even 
if they were only making water for the boilers, it would still 
have been contaminated water. Okay.
    And I am sorry, I am starting to pull a Rick Weidman here 
and go over time. But just a couple other quickies. As far as 
studies go, the Australian Cancer Incident Studies shows a much 
higher rate of cancer incidents among those that were in the 
Navy as against those that went to shore. And the CDC's Non-
Hodgkin's Lymphoma Study says the same thing.
    And by the way, the Institute of Medicine, the VA will 
always misquote this. In the sentence that they say is they 
can't say definitely that there was no Agent Orange exposure. 
The very next sentence says ``There is no more or less evidence 
to show exposure of Blue Water Navy than there was the brown 
water or the people ashore.'' This was never about science. It 
was about a bad general counsel's opinion. And when we called 
him on it, they circled the wagons and they still do.
    I do have a meeting coming up with Secretary Shulkin on 
April 21st and we have oral argument on a court suit coming up 
on May 5th. So we are pursuing all matters. I understand I am 
over time. Shows I can talk longer than Rick. But the problem 
is there is so much to cover. But, you know, Mr. Chairman, we 
have plenty of money to send those guys to war. We should be 
able to pay for them when they get back. I put some ideas in my 
written testimony. The Senate has shot us down on a couple. But 
frankly, we don't care how you pay for it, but you need to pay 
for it. These guys are dying and their families are being left 
destitute because of medical bills. We owe them better than 
that. Thank you, Mr. Chairman.

    [The prepared statement of John B. Wells appears in the 
Appendix]

    Mr. Bost. Thank you, Mr. Wells.
    I'm going to go to questioning now and I will yield myself 
five minutes.
    First question is for the panel as a whole. Okay. And 
before we get to a lot bigger subject, but this is just real 
quick. This question is for all witnesses, as I said. How would 
veterans and their families benefit assuming they received a 
COLA next year? Mr. Hearn, we will start with you.
    Mr. Hearn. They would certainly benefit by adjusting for 
the cost of inflation. I guess I am kind of confused as to 
where you are going with the question. I mean if the cost of 
living goes up, it is only natural that Congress responds 
accordingly and provides that compensation increase.
    Mr. Bost. Okay. Maybe I should expand on--I think in your 
testimony, the concern you had was that you feel that Congress 
needs to make an every year?
    Mr. Hearn. Correct. As far as the--the concern that we have 
is dealing with the chain CPI. And if you project that going 
out over decades, the amount of money that is lost, and the one 
sample that we used was it would be roughly about $100,000 over 
a 30 or 40 year span. I pulled up the average income for one of 
your residents in your district. Okay. That's roughly $30,000 I 
think, somewhere in that area. That would be three years' worth 
of salary for your average constituent. So that is a sizeable 
amount of income. I mean obviously it would vary between the 
Ranking Member and yours, but--
    Mr. Bost. Of course.
    Mr. Hearn [continued]. But nonetheless it would still be a 
costly endeavor over decades.
    Mr. Bost. Let me ask this. And you know that I am going to 
do everything I can for the veterans. It is just--
    Mr. Hearn. Yes. Oh, I know.
    Mr. Bost [continued]. --trying to do the thing that is 
right. My concern that I have when you say, okay, don't do 
this, is then you are just depending on Congress to make a 
decision, rather than setting something in place that actually 
guarantees and gives some sense of that there is going to be 
that COLA. And it is the same thing with Social Security. I was 
a little concerned in your testimony when you said that you--
    Mr. Hearn. Well, I mean, and the American Legion's position 
is pretty simple. It is that the veterans didn't provide a 
diluted service to their country. And that this would provide a 
diluted benefit if you are talking about that over decades. And 
I understand what you are--where you are going with this. But I 
also know that $100,000 is a sizable amount of income. And I 
agree, we are relying upon Congress and sometimes Congress 
doesn't get along very well. But over time that we also don't 
want our veterans to be harmed just in the need of efficiency. 
If 30 or 40 years we look back at this testimony today and said 
we harmed our veterans, I don't think any of us in this room 
would feel good.
    Mr. Bost. And then I want to go down the panel with the 
same question. But the only thing I would say is, is one thing 
that we are known for, and that is the big fear, is that if we 
do nothing, nothing will be done.
    Mr. Hearn. Right.
    Mr. Weidman. VVA favors the automatic. We do, however, 
think that really should take a hard look at the basic level, 
particularly at the 80--70, 80, 90 percent level and as well as 
100 percent. It is--if in fact somebody is 100 percent in a 
metropolitan area like Washington, what you are doing is 
guaranteeing people will be below the poverty line for the rest 
of their life. And that is just not right.
    Mr. Bost. Right.
    Mr. Murray. The VFW simply supports the automatic increase 
in COLA. We think it is easier on the recipients, it is easier 
on Congress, so we don't need to be sitting here every year 
doing this.
    Mr. Acosta. Many service-connected disabled veterans rely 
on their disability compensation for their livelihood and to 
take care of bills, apart from their civilian counterparts. It 
is important that we get a realistic increase in those benefits 
so they can realize life in the country that they served.
    Mr. Bost. Mr. Wells?
    Mr. Wells. Automatic is good. That way we don't have to 
fool with it. You don't have to fool with it. And it gives you 
all more time to kind of concentrate on some other things. So 
we support it.
    Mr. Bost. Yeah. Okay. I'm running short on time. I know now 
it is going to run over. And then I don't want to be thrown off 
like the Chairman said. But let me tell you that this is an 
important question to ask. And all of us I think are fighting 
for the same goal, but we have got to ask it. Last Congress CBO 
estimated that the legislation for the Blue Water Navy would be 
a $1.1 billion offset in mandatory funds. To avoid adding to 
the deficit and then we fall under the existing rules that we 
have here. Though many of us, probably all of us on this panel 
would want to make sure that would happen. The question that I 
have is, and I know that, Mr. Wells, you said you didn't care 
where it come from. We have to care where it comes from. And 
even though I love my veterans more than anybody else I fight 
for and will continue to do that, we have to have that answer. 
So, what, any, suggestions do you any Member of the panel have? 
Mr. Weidman?
    Mr. Weidman. We went to war on a credit card. The war in 
Iraq and Afghanistan is the first time in American history 
where we have had a tax cut, in fact two, during wartime. So we 
didn't make the commitment to pay for the darn wars. Instead we 
took it out of OCO, which is nothing but an unsecured credit 
account. If you can go to war without having to find an offset, 
then, by God, you ought to be able to pay for those torn up in 
that war without an offset.
    Mr. Bost. Okay. Maybe the follow up question to the rest of 
you as well, and I know I am out of time, but I am going to be 
like the two on the panel. The question is, is there something 
we can work on in the bill that would actually be something 
that we could argue that would bring the cost in paperwork 
down? You understand what I am saying? So that the estimated 
cost, if we don't agree with the estimated cost, maybe we think 
that, okay, well, the assumptions are a little bit high or 
something like that, so that we can come back and deal with the 
argument on what the costs are. And like I said, I want to, if 
they do it, I want to be paying for them.
    Mr. Wells. Mr. Chairman, there are several things. First 
off, you know, I do have the meeting with Secretary Shulkin. It 
is possible that he would just restore the benefits, in which 
case it become under appropriations and the cost of the bill 
would go to zero. Secondly, we do have our pending oral 
argument in the Court of Appeals for the Federal Circuit. If we 
win that case, then the bays and the harbors would be covered. 
We would estimate that about 90 percent of the ships would be 
covered. And our estimate of the ten-year cost would then fall 
down to about between 100 and 150 million over ten years, but 
assuming we cover everybody that went in the harbors.
    But here is the kicker. And, yes, you have to understand it 
is hard for me to go back and talk to my veterans and say, you 
know, and explain the Paygo Act to them.
    Mr. Bost. I understand that.
    Mr. Wells. Because they're the ones that are dying. I 
understand Paygo. Okay. I think it's done a great job in a lot 
of ways. But now this is something that we really have to look 
at because there is not a lot of mandatory spending left in the 
VA budget. There was some in the home loan. We suggested that 
and it got sucked up into the Choice Act. There are going to be 
some automatic offsets, which I'm not sure CBO has applied.
    First of all, people that are now eligible for non--for a 
veterans pension, okay, if they served in time of war and make 
I think it's less than about $14,000 a year, they get a 
veterans pension. That would be offset by the benefits. And so 
there would be a dollar for dollar recovery there. Secondly, 
anybody who has retired and is getting a retirement pension if 
their disability is 40 percent or less, there would be the VA 
waiver, which would be a dollar for dollar offset. We don't 
know what those numbers are because VA won't give us the 
figures. But there's other things that we need to look at.
    A number of people went ashore. Now, they have problems 
proving that, and VA will want, you know, 20,000 affidavits and 
a video to show they were ashore. But probably about any one 
time, about ten percent of the fleet went ashore. They had to 
go see the doctor, the dentist, the lawyer, the chaplain, call 
home. They got transferred on and off. They made a mail run 
into the harbor. You got boat crews. You got helicopter crews, 
you know, go pick up some supplies, whatever. There's a number 
of those people. And there's no way to determine those numbers.
    Mr. Bost. Right.
    Mr. Wells. But, you know, our estimate is about, based on 
facts, is about ten percent, okay, that those are going to be 
offset.
    Now, the other thing is if some of these folks are picked 
up under the VA system there was a CBO report that came out in 
December of 2015. I realize this is--I may have the year wrong, 
it may have been 2014, but I realize this is discretionary 
spending, not mandatory, but says it is about 21 percent 
cheaper to send somebody through the VA system than it is to do 
Medicare reimbursement, which makes some sense. I mean if 
you've got Tricare for life as your secondary, it is probably 
even more than 21 percent. Those are old numbers, it was before 
Choice. But, you know, it is still a factor. Okay. All that 
being said--
    Mr. Bost. Mr. Wells--
    Mr. Wells [continued]. Right. Can I make the bill self-pay 
for itself? No.
    Mr. Bost. Let me go ahead and use--switch over to Ms. Esty 
because I almost went five minutes over on my time; I said I 
wouldn't do that. But just I think it is vitally important. So, 
Ms. Esty, it is your turn.
    Ms. Esty. Thank you, Mr. Chairman. We will pick up with 
this. And Mr. Weidman, I definitely cannot walk on water, 
guaranteed. But Linda Schwartz is awesome and we are happy to 
have her back in Connecticut and are going to be using her as a 
resource for this Committee. And her passion and commitment 
around Agent Orange is in part what inspires me and helps me 
work every day on this.
    So we are going to pick back up, Mr. Wells, with figuring 
out how we are going to pay for this because one of the things 
I think is important to note, and all of you have referenced 
this, is this cost of the system of trying to determine who is 
in and who is out. And that is part of the reason for 
presumptive. And I am not sure that the CBO scoring is really 
looking at that. And again, you are all right, everyone is 
happy to be there when we send our troops to war. And we need a 
solemn commitment to take care of them when they come home. 
That is part of the reason we need to be all over them right 
now I think on burn pits to not repeat with the current 
veterans what has happened with this delay, delay, deny for 
Vietnam vets. So if you pick back up--
    Mr. Wells. Yeah, thank you, Ranking Member Esty. You know, 
one of the things is the Blue Water Navy is the tip of the 
spear. There is plenty of other Agent Orange exposures which we 
can go through at length. There is burn pits, there is Fort 
McClellan, there is all kinds of toxic exposures. In our 
written testimony we present--we recommended a brand new 
funding source we think to cover all toxic exposure research, 
kind of a follow on to what was passed last year, and toxic 
exposure benefits for burn pits, Fort McClellan and so on so 
forth. It is probably going to be north of $20 billion a year.
    We recommended a $10 fee for everybody that turned--puts in 
a tax return. Okay. And you could make it voluntary and you are 
probably not going to get that much, but it would still be 
some. If you make it mandatory, we are talking about everybody 
who files a tax return, and there is 250 million filed every 
year, okay, in this country, to pay what we called a freedom 
fee. Okay. And that will generate not only money to pay for the 
Blue Water Navy, but the other Agent Orange exposures, Guam, 
Panama, wherever, Fort McClellan, burn pits and so on and so 
forth. The fact is there is just not enough mandatory spending 
left around to--left there to go around. I think we need a new 
funding source. That seemed to be a fair way to do it.
    Ms. Esty. Thank you. Anyone else who didn't get a chance to 
do that? All right. Mr. Weidman, you do not speak as quickly as 
Commander Wells. Anything else you would like to add to your 
testimony?
    Mr. Weidman. The VA never should have taken the Blue Water 
Navy's sailors out of the group that was eligible for 
presumption in the first place. All of the evidence since is 
that they belong and it should be restored and that poor 
decision should be reversed. What wasn't said by our friends 
from VA was that the first thing they said was our 
desalinization units didn't work the same way. We used a 
different theory. And then it was pointed out that not only did 
we do it the same way, but the desalinization units on the 
Australian ships and the American ships were both came from WD 
Burrows and Sons and were installed by the American company on 
the Australian and the American ships. So now they have moved 
to you can't tell how much anybody got.
    Well, you know, we finally in that--when I mentioned the 
IOM report and the Chair trying to convince association of the 
United States Navy and the Fleet Reserve and the Legion 
representative and me that somehow this meant that nobody 
should be granted presumption. So we said, so, why, because you 
can't measure how much dioxin? She said yes. And so we asked 
the question what dose of dioxin is safe? And she, with all due 
respect to the lady and who is no doubt a good scientist, her 
eyes got as big as not saucers, big as great big dinner plates. 
And she said well, there is no safe does of dioxin. Admitting 
that once you have got biological plausibility and you could 
replicate this experiment about how far out at sea, it then 
reveals that the whole process inside VA veterans' benefits and 
inside the environmental hazards and public health section 
frankly is not science, it is sophistry. We should have public 
servants there who we can rely on to be neutral arbiters of 
science. And we would suggest that they are not.
    Ms. Esty. Thank you very much. And you are correct, it is 
zero level of safe exposure to dioxin. We all know that. That 
is the basis of EPA regulations all across America on this 
issue. And it is doubly true for those that were sent in harm's 
way to defend freedom. And if you would, please make sure that 
we get entered into the record the full relevant reports which 
you have referenced from the National Academy of Sciences and 
Institute of Medicine, which I'd like to make sure that those 
full records are included with the relevant discussions about 
the comparative difference between the certainty that there 
exists and the certainty that there exists for blue water 
versus brown water and territorial. Thank you very much.
    Mr. Bost. Thank you.
    And Mr. Bergman?
    Mr. Bergman. Thanks, Mr. Chairman. Thank all of you for 
your testimony this morning. It makes a difference. Mr. Hearn, 
please explain why you believe it is important to codify a 
veteran's right to appeal VA's decision to appoint a fiduciary?
    Mr. Hearn. The American--I mean if VA assigns a fiduciary, 
there have been times where the physician will ask the veteran 
do you manage your financial affairs at home or does your wife 
pay the bills? In my own house, my wife pays a good portion of 
the bills. And using their logic, I suppose I should have a 
fiduciary. Please don't. But that is the reason. I mean, people 
make mistakes, that is human. So I think that some of the 
reason why, that is one of the bigger reasons why we should be 
appealing, why those issues should be appealed.
    Mr. Bergman. Okay. So you are trying to provide a little 
extra assistance for that veteran?
    Mr. Hearn. Well, I mean if the veteran does not deserve--if 
the veteran feels that he or she does not deserve a fiduciary 
and has been misunderstood during an examination, I don't think 
you would want to have those rights taken away from you. Other 
times there are issues dealing with Second Amendment issues 
that pop up because if you have been assigned a fiduciary 
sometimes they say we need to pull your weapons from you. And 
that is certainly something that the American Legion is 
against, just because it is the two don't necessarily 
correlate.
    Mr. Bergman. Okay. Thank you. Mr. Hearn, based on your 
experience working with veterans' claims, does the VA routinely 
accept competent medical evidence from qualified private 
physicians when evaluating claims?
    Mr. Hearn. I wouldn't say routinely. The biggest problem 
that we have noticed has dealt with this evaluation tool 
builder. Imagine being a GS-11 or 12 out of some regional 
office making adjudications and the evaluation builder says 
this. But it does not have any measure or any way to weigh 
evidence. It doesn't allow for lay testimony to be included. It 
doesn't include continuity of symptoms. This is a failure. This 
is a big failure on VA's part. And it is a failure that even 
the regional offices are noticing while we are doing these 
regional office reviews. And it really raises questions about 
the quality of adjudications when you have got a tool that the 
employees are feeling compelled to use, even though they 
recognize at times that it doesn't consider all of the evidence 
that is of record.
    Mr. Bergman. Okay. Any other Members of the panel care to 
comment on that question?
    Mr. Weidman. The reason why they, even if there is adequate 
clinical evidence in the file, that they request an exam is 
CYA, sir. Simple as that.
    Mr. Bergman. Okay. Anybody else? No. Thank you. Mr. 
Chairman, I yield back.
    Mr. Bost. Thank you.
    Mr. Sablan
    Mr. Sablan. Yeah. Thank you very much, Mr. Chairman. And 
thank you gentlemen for joining us today. When I--in the 
beginning of this term in Congress I asked if I could receive a 
waiver to be in this Committee because I noticed an increasing 
number of casework from the northern--from my district for our 
veterans. And I will be very--truth be told I didn't know there 
were so many veteran service organizations.
    I am aware of the presence of Veterans of Foreign Wars out 
there because there are times when we have a burial for veteran 
and it is a member of the VFW who plays the Taps. Sometimes the 
Army Reserves are given orders to perform--to give the gun 
salute. But nowadays I think they need an order to it. Even if 
they voluntarily want to do it they can't without orders.
    And, but I am just getting such an education. I didn't know 
about this dioxins. You know, I know about Agent Orange, but I 
didn't know about this color of rainbow basically, a lot of 
just different things. The Vietnam War I was a young pers--
young. But I don't know if you guys were--you guys went to war. 
I don't know why we went to war. I became an American in 1986. 
We became a part of the United States in 1978. And so last 
November, Veterans Day I took the liberty of presenting a 
tribute to Vietnam veterans. And I didn't know it meant so 
much. So many of them came up to me and said thank you. This 
gentleman who I know came up to me in tears and said thank you 
because all I did was say welcome home from a very I think 
unpopular war was what it was called.
    But thank you for what you do. I don't know if we have DAVs 
or, you know, but I will continue to work with this Committee. 
This Committee have been very helpful to me. And with, of 
course, the Veterans Administration. And in Northern Mariana we 
have a doctor that when I got in there was no medical services. 
So I think that the contract was negotiated, but it was 
somebody filed it somewhere. And I think the file got lost 
somewhere. So they found it and we got a physician on contract. 
And she can only take so many, so I think they got another one. 
But we are so far removed that we were forgotten. So we do have 
a VHA staff now.
    The individual suffering from PTSD see a--get a counseling 
through a television screen. It is just incredibly unfair to 
someone who has put on a uniform and gone to Afghanistan and 
come back and can't see a doctor because they won't give him a 
counselor, psychologist or psychiatrist. They instead tell them 
that you have to come and sit down in front this table and 
there is a TV screen there and someone at the other end will 
talk to you.
    We did a test of the resource provided to our--the mili--or 
the VA's major contractors. We found out that some people on 
the list didn't know they were contractors. Some of the people 
on the list no longer--they moved away. But we got a new list 
and we checked and some of them are now okay. The emergency 
crisis line works, but it gets referred to Hawaii, and the time 
zone is, you know, different.
    But I am here because I do want to try as much as I can to 
help those veterans who have served our country. They put on a 
uniform. These people were whole when they left home. When they 
came back many of them were broken. Some of their wounds we 
can't see. But thank you everyone. I am truly getting an 
education from all of you. And Mr. Chairman and the Ranking, 
thank you for holding today's hearing. I appreciate it. I yield 
back.
    Mr. Bost. Thank you. And I do want to go ahead and go 
around one more time if anybody that might want to. But I want 
to limit it to three minutes because I think we are into this 
enough. I know there is other hearings going on, but this is 
vitally important. And for those that didn't answer, I want to 
have the chance to respond. I understand neither one of us were 
around when the rule for the offset was written. Okay. But it 
is something that we have to do when we move forward with our 
colleagues. So anyone that didn't have the opportunity to have 
an input for possible offsets, if you have suggestions right 
now, if you come up with them later. But I would open it to 
anyone that would want to respond for possible offsets. That is 
kind of the response I have been getting too.
    So let me say this and that was the main question. One 
thing I do want to ask, Mr. Wells, you talked about the $10 
fee. Okay.
    Mr. Wells. Yes, sir.
    Mr. Bost. The $10 fee is basically a tax increase because 
basically it is everybody who fills out a form will then pay a 
$10 fee. So it is a tax increase. But I am not--
    Mr. Wells. Certainly.
    Mr. Bost [continued]. --arguing against it. I am just 
wanting input. Have you raised any of these ideas with other 
Committees that are present here in Congress, Ways and Means 
staff or any other congressional staff? Because as they move 
forward with the different ideas for--we are talking about tax 
reform.
    Mr. Wells. I was--
    Mr. Bost. That would mean--
    Mr. Wells [continued]. I did raise the issue with Ways and 
Means and we tried to get an appointment with the staff down 
there. I finally got a call from somebody there, it was a 
gentleman. And, I'm sorry, I don't remember his name off the 
top of my head. Who basically said, eh, mark it up, we will 
look at it. So that was the response.
    Mr. Bost. All right. Well, any response you do get back I 
would like to know about.
    Mr. Wells. I am going to, when I am coming back here in 
May, I am going to try to get back to Ways and Means and to 
Appropriations and see, you know, and try to run all the traps 
on that.
    Mr. Bost. Okay.
    Mr. Wells. And Mr. Chairman, you know, it may not be the 
best idea in the world. Maybe something that is--
    Mr. Bost. It is an idea.
    Mr. Wells [continued]. But it is a place to start. And one 
of the things that we proposed in our written testimony is it 
be dedicated. We will take a presidential finding of necessity 
and two-thirds concurrence of both House and Congress to use it 
for anything else. Unless we have an alien invasion I don't 
think we will get two-thirds of the Congress to agree on too 
much.
    Mr. Bost. That is true.
    Mr. Wells. So, but I do appreciate it. If I can just beg 
your indulgence for ten more seconds. Congresswoman Stefanik 
did introduce a bill or a resolution rather to show the sense 
at Congress that the original Agent Orange Act would have 
encompassed the bays, harbors, and territorial seas. Senator 
Grassley who was on that bill originally when he was in the 
House put out a press release saying basically that is what we 
thought it was. So when the VA says they are confused, they 
shouldn't be. Thank you.
    Mr. Bost. All right. Thank you. Did you--
    Mr. Weidman. The tax cut that--and several after that first 
tax cut in the early aughts, if you will, upset many of us 
because it had never happened before in wartime. And to send 
the American people to the mall while our military went to war 
was setting up almost what happened to us as Vietnam vets, is 
it wasn't the whole Nation pulling together to go to the war. 
In fact, the seeds of all of our fiscal problems of our Federal 
government were laid in 1966 with the Federal Unified 
Consolidated Budget Act where they took the trust out of the 
trust, Highway Trust, FUTA, et cetera, and then started 
appropriating it out in order to paper balance the budget. So 
the guns and budget decision was that particular piece of 
legislation which has affected everything since because of the 
deficit and because of the scrambling. That is why people call 
it smoke and mirrors.
    What--and I couldn't get anybody to introduce it, that you 
could keep the tax cut if you had a veteran who served on 
active duty in your immediate family. Otherwise you couldn't 
have the tax cut. And that would distribute at least somewhat 
the pain because it is the same, I am convinced, the same 
thousand, two thousand families that have fought every doggone 
war we have ever had. And that is certainly those in the combat 
MOSs.
    Mr. Bost. Yeah. I would like to turn it over to Ms. Esty.
    Ms. Esty. Thank you very much. And I just want to say thank 
you to all of you for your service. Urge you to continue to 
work with us. I think we all have good intent here, but to 
figure out how to do this and the challenge meaning time, we 
really are going to need to work together. So finding where we 
can get those offsets, finding where we can get savings, 
finding where we can more rapid in determination. And I want to 
thank the VA for staying. I know in our last hearing folks were 
not able to stay. It is really important that we all be at the 
table together, that everyone listen to what everyone else is 
saying. And I want to thank you for staying because we really 
do need all of us to be partners in this endeavor to do right 
by those who have served this country. So again, I want to 
thank you all very much. I have kept mine under three minutes. 
The only--
    Mr. Bost. That is great. Mr. Sablan?
    Mr. Sablan. I am done.
    Mr. Bost. Okay. That being said, we want to go ahead and 
release the third and final panel. And I want to thank everyone 
for joining us here today and sharing your views with the 
Subcommittee. Your testimony provides us with important insight 
into the possibilities as we move forward through this 
legislation process.
    I ask unanimous consent that written statements provided by 
the Paralyzed Veterans of America and the Fleet Reserve 
Association be placed into the hearing record. Without 
objection, so ordered. Finally, I ask unanimous consent for all 
Members have five legislative days to revise and extend their 
remarks and include extraneous material on any or all of the 
bills under consideration this afternoon. And without 
objection, so ordered. This hearing is now adjourned.

    [Whereupon, at 12:16 p.m., the Subcommittee was adjourned.]



 
                            A P P E N D I X

                              ----------                              

                   Prepared Statement of Beth Murphy
    Good morning, Chairman Bost, Ranking Member Etsy, 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 Dr. Ralph L. Erickson, Chief Consultant for Post 
Deployment Health Services and Ms. Patricia Watts, Director, 
Legislative and Regulatory Service, National Cemetery Administration.

H.R. 105 - ``Protect Veterans from Financial Fraud Act of 2017"

    Section 2 of H.R. 105 would amend 38 U.S.C. Sec.  6107(b) by 
removing restrictions on VA's authority to reissue benefits in cases of 
fiduciary misuse. Currently, VA is authorized to reissue benefits under 
this subsection only in cases of negligent supervision by VA, or where 
the fiduciary is not an individual, or the fiduciary is an individual 
who serves 10 or more beneficiaries for any month during a period when 
misuse occurs.
    Section 3 of H.R. 105 would amend 38 U.S.C. Sec.  5501A to add a 
new subsection stating that mental competence determinations may be 
appealed to the Board of Veterans' Appeals (BVA) and the U.S. Court of 
Appeals for Veterans Claims (CAVC).
    VA supports this bill. Section 2 of the bill would ensure the equal 
treatment of all fiduciary misuse victims. VA would no longer be 
required to make distinctions in these cases based on the nature and 
scope of the fiduciary's business, or on the fiduciary's status. This 
bill would allow VA to promptly reissue benefits that have been 
misused, thereby minimizing financial hardship to beneficiaries caused 
by the misuse, delays in obtaining restitution, or VA determinations 
regarding negligence.
    We note that by broadening the cases in which the Secretary shall 
pay an amount equal to misused benefits to ``any case not covered by 
subsection (a)'' and eliminating the requirements currently found in 
section 6107(b)(2) that currently attach to non-negligence cases, this 
bill effectively allows the Secretary to reissue benefits in all cases 
of misuse. While VA supports the bill as written, it is questionable 
whether there is any utility in maintaining the distinction between 
negligence cases covered by subsection (a) and all other cases if this 
bill were to become law. Further, current subsection (b)(3), which this 
bill would move to subsection (b)(2), directs VA to pay to a 
beneficiary or a successor fiduciary any recouped benefits ``[i]n any 
other case in which the Secretary obtains recoupment from a fiduciary 
who has misused benefits.'' Insofar as subsections (a) and (b)(1) of 
section 6107 would apply to all cases in which a fiduciary misused 
benefits, there would not appear to be any ``other'' instances of 
misuse to which renumbered subsection (b)(2) would apply.
    The cost of this bill is associated with section 2. VA estimates 
these costs would be $2 million in FY 2018, $10 million over 5 years, 
and $20 million over 10 years. There would be no costs associated with 
section 3 of the bill because determinations of mental competence are 
already appealable to BVA and the CAVC under existing law.

H.R. 299 - ``Blue Water Navy Vietnam Veterans Act of 2017"

    H.R. 299 would extend the presumption of Agent Orange exposure to 
all Veterans who served on ships in the ``territorial seas'' of the 
Republic of Vietnam. It would do so by amending subsections (a)(1) and 
(f) of 38 U.S.C. Sec.  1116, and subsection (e)(4) of 38 U.S.C. Sec.  
1710, by inserting the phrase ``including the territorial seas of such 
Republic'' after ``served in the Republic of Vietnam'' each place it 
appears.
    VA has a number of concerns with H.R. 299 and cannot support the 
bill at this time. The bill does not clearly define what constitutes 
``the territorial seas'' of the Republic of Vietnam. While 
international treaties prescribe general standards governing nations' 
territorial seas, it is unclear whether this bill is intended to follow 
those treaty definitions and, if so, whether it is intended to follow 
the treaty definitions extant during the Vietnam War or those extant 
today. Without a clear definition, VA could not determine which 
Veterans are eligible to receive benefits under the expanded 
presumption based on their military service. VA is also concerned with 
the September 25, 1985, effective date of the bill, which would 
potentially result in retroactive awards of more than 30 years in many 
cases. In enacting provisions extending benefits to other groups of 
Veterans, Congress generally has not extended those benefits 
retroactively, much less for such a significant time period. VA is 
concerned about the apparent inequity of this disparate treatment of 
different groups of Veterans. Further, re-adjudicating old claims and 
establishing awards covering large retroactive periods would be complex 
and labor-intensive tasks that would divert resources from other claim 
adjudications. As will be discussed in greater detail, VA estimates 
that the retroactive benefits payments in FY 2018, alone, would total 
no less than $967 million.
    Additionally, there is continued scientific uncertainty surrounding 
the issue of Blue Water Navy Veterans' exposure to Agent Orange. At 
VA's request, the Institute of Medicine (now National Academy of 
Medicine) reviewed all available scientific evidence concluding that 
they were ``unable to state with certainty that Blue Water Navy 
personnel were or were not exposed to Agent Orange and its associated 
TCDD'' (ref: Blue Water Navy Vietnam Veterans and Agent Orange 
Exposure, 2011). For this reason VA continues to review and monitor the 
peer-reviewed scientific / medical literature and is collaborating with 
Veterans Service Organizations (including VFW and the Blue Water Navy 
Vietnam Veterans Association) to gather more information. A new study 
of Vietnam Veterans which includes the collection of data on Blue Water 
Navy Veterans is currently ongoing with early results expected to be 
available by December 2017. Secretary Shulkin is committed to examining 
all available evidence on this issue and gathering input from 
stakeholders in order to make well-informed, scientific evidence-based 
decisions for our Nation's Veterans.
    VA's cost estimate for the bill is broken down into four 
categories: benefits, general operating expenses, information 
technology (IT), and health care expenditures. VA estimates the total 
benefits cost of this bill would be $1.4 billion during FY 2018, $3.0 
billion over 5 years, and $5.5 billion over 10 years.
    In addition to benefits costs, VA estimates the General Operating 
Expenses (GOE) costs for the first year would be $90.7 million and 
include salary, benefits, rent, training, supplies, other service, and 
equipment. Five-year costs are estimated to be $213.5 million and 10-
year costs are estimated to be $339.0 million. VA further estimates 
that the IT cost for the first year would be $2.9 million, $4.5 million 
over 5 years, and $5.9 million over 10 years. This cost would include 
the IT equipment for full-time equivalent employees, installation, 
maintenance, and IT support.
    Regarding health care expenditures, VA estimates the costs of the 
bill would be $36.5 million in FY 2018, $268.0 million over 5 years, 
and $618.2 million over 10 years.

H.R. 1328 - American Heroes COLA Act of 2017

    H.R. 1328 would permanently authorize the Secretary to implement 
cost-of-living increases to the rates of disability compensation for 
service-disabled Veterans and the rates of Dependency and Indemnity 
Compensation (DIC) for Survivors of Veterans. This bill would direct 
the Secretary to increase the rates of those benefits whenever a cost-
of-living increase is made to benefits administered under title II of 
the Social Security Act. These rates would be increased by a percentage 
identical to increases to Social Security benefits.
    The Department of Veterans Affairs (VA) supports this bill because 
it would be consistent with Congress' long-standing practice of 
enacting regular cost-of-living increases for compensation and DIC 
benefits in order to maintain the value of these important benefits. 
Additionally, the bill would eliminate the need for additional 
legislation to implement such increases in the future. It would also be 
consistent with current law that requires any cost-of-living increases 
to disability compensation and DIC to be made at a uniform percentage 
that does not exceed the percentage increase to Social Security 
benefits.
    VA estimates the cost of this bill would be $1.3 billion in fiscal 
year (FY) 2018, $24.8 billion over 5 years, and $103.6 billion over 10 
years. However, the cost of these increases is included in VA's 
baseline budget because VA assumes that Congress will enact a cost-of-
living adjustment each year. Therefore, enactment of H.R. 1329 would 
not result in additional costs, beyond what is included in VA's 
baseline budget.

H.R. 1329 - Veterans' Compensation Cost-of-Living Adjustment Act of 
    2017

    H.R. 1329 would require the Secretary to increase the rates of 
disability compensation and DIC by the same percentage as any increase 
to Social Security benefits effective on December 1, 2017. The bill 
would also require VA to publish these increased rates in the Federal 
Register.
    VA strongly supports this bill because it would express, in a 
tangible way, this Nation's gratitude for the sacrifices made by our 
service-disabled Veterans and their surviving spouses and children. The 
bill would also ensure that the value of these benefits keeps pace with 
increases in consumer prices.
    VA estimates the cost of this bill to be $1.3 billion in FY 2018, 
$8.1 billion over 5 years, and $17.5 billion over 10 years. However, 
the cost of these increases is included in VA's baseline budget because 
VA assumes that Congress will enact a cost-of-living adjustment each 
year. Therefore, enactment of H.R. 1329 would not result in additional 
costs, beyond what is included in VA's baseline budget.

H.R. 1390 - Transportation of Deceased Veterans to Veterans' Cemeteries

    H.R. 1390 would amend 38 U.S.C. Sec.  2308 to allow payment of the 
monetary allowance currently payable for transportation of eligible 
Veterans' remains for burial in a national cemetery to be paid for 
transportation to a ``covered veterans' cemetery.'' The bill would 
define a ``covered veterans' cemetery'' as a Veterans' cemetery owned 
by a State or Tribal organization in which a deceased Veteran is 
eligible to be buried. The bill would increase the options of burial 
locations for eligible Veterans.
    VA supports the intent of H.R. 1390; however, VA is concerned with 
the administrative burden associated with this bill. VA currently 
reimburses actual transportation costs based on receipts submitted by 
claimants. This bill would require VA to pay no more than the cost of 
transportation to the national cemetery nearest the Veteran's last 
place of residence in which burial space is available. Calculating 
these payments would require VA to check availability at national 
cemeteries, determine the equivalent transportation cost to a national 
cemetery, and then compare that cost to the claimant's receipts for 
transportation to the State or Tribal cemetery. VA would welcome the 
opportunity to work with the Subcommittee to address this issue.
    VA estimates the benefits cost of the bill would be $1.2 million in 
the first year, $6.7 million over 5 years, and $15.2 million over 10 
years. Discretionary costs for this bill would be insignificant.

H.R. 1564 ``VA Beneficiary Travel Act of 2017"

    H.R. 1564 would amend subsection (d) of section 504 of the 
Veterans' Benefits Improvement Act of 1996 (Public Law 104-275, as 
amended by Public Law 114-315; 38 United States Code (U.S.C.) Sec.  
5101 note), to direct the use of funding from the mandatory 
compensation and pension (C&P) appropriation to pay for travel and 
incidental expenses associated with contract disability examinations 
already funded by the same appropriation in FY 2017 and subsequent 
years. The bill would codify subsection (d) as 38 U.S.C. Sec.  5109C 
(``Pilot program for use of contract physicians for disability 
examinations'').
    The Veterans Benefits Administration (VBA) pays for certain 
contract C&P examinations with funding from the mandatory C&P 
appropriation. Congress granted VBA this authority under section 504, 
which enabled VBA to conduct a ``pilot program'' to have contractors 
complete C&P examinations for Veterans applying for benefits 
administered by VBA. The pilot was initially limited to no more than 10 
VA regional offices, and the source of funding for such contracts was 
the C&P appropriation. In FY 2017, VBA's authority for the pilot was 
expanded to all 56 regional offices.
    VA strongly supports legislation to codify VA's current practice 
and clearly authorize VA to fund Veteran participation in the pilot 
program from a single source, rather than in part from the C&P 
appropriation and in part from funds available for the pre-existing 
beneficiary travel program under 38 U.S.C. Sec.  111.
    This proposal would not require any additional funding or 
administrative changes within VA. VBA planned to use the C&P account to 
fund beneficiary travel to and from pilot program examinations, as well 
as other incidental expenses of the pilot program, in FY 2017 and 
subsequent years. In addition, this proposal would not change the 
funding source for any other VA beneficiary travel.

H.R. 1725 - ``Quicker Veterans Benefits Delivery Act of 2017"

    This bill would revise statutes pertaining to adjudication of 
disability benefit claims.
    Section 2 of this bill would prohibit VA from requesting a medical 
examination when the claimant submits medical evidence or an opinion 
from a non-VA provider that is competent, credible, probative, and 
adequate for rating purposes. Sections 3 and 4 would require VA to 
report to Congress on the progress of VA's Acceptable Clinical Evidence 
(ACE) initiative and, for each VA regional office, data on the use by 
claimants of private medical evidence in support of compensation and 
pension claims.
    VA does not support this bill. VA appreciates the intent of the 
bill, which seeks to provide benefits to Veterans more expeditiously. 
However, as written, the bill is, in some respects, unnecessary and 
unclear and would be problematic to implement.
    Section 2 of the bill is unnecessary given current legal standards. 
This section would prohibit VA from requesting a medical examination 
when evidence that is submitted is adequate for rating purposes. 
Section 5103A(d)(2) of title 38, U.S.C., notes that an examination or 
opinion is only required when the record does not contain sufficient 
medical evidence to make a decision. Furthermore, section 5125 of title 
38, U.S.C., explicitly notes that private medical examinations may be 
sufficient, without conducting additional VA examinations, for 
adjudicating claims. VA regulations are consistent with these statutory 
requirements. Therefore, this section is unnecessary and duplicative. 
At present, VA may adjudicate a claim without an examination if the 
claimant provides evidence that is adequate for rating purposes. There 
would be no costs associated with section 2.
    VA does not support section 3 or 4. VA maintains data concerning 
the number of examinations in which ACE is used, but VA does not track 
when the evidence is supplemented with a telephone interview, data that 
VA would be required to report under the bill. In addition, VA does not 
track when private medical evidence is sufficient or insufficient for 
rating purposes, as this is not a formal determination. This 
determination depends on the receipt and evaluation of each piece of 
evidence and may change at any time in the process. When a VA 
examination is requested after the submission and review of private 
medical evidence, VA has made a determination that the evidence is 
insufficient for rating purposes, as it is VA policy to evaluate a 
condition without an examination when the evidence of record is 
adequate to decide the claim. GOE costs associated with sections 3 and 
4 would be insignificant.
    This concludes my remarks. I would be happy to answer any questions 
that you may have. Thank you.

                                 
                  Prepared Statement of Zachary Hearn
    Chairman Bost, Ranking Member Esty and distinguished members of the 
Subcommittee on Disability Assistance and Memorial Affairs, on behalf 
of National Commander Charles E. Schmidt and The American Legion, the 
country's largest patriotic wartime service organization for veterans, 
comprising over 2.2 million members and serving every man and woman who 
has worn the uniform for this country, we thank you for the opportunity 
to testify on behalf of The American Legion's positions on the 
following pending legislation.

H.R. 105: Protect Veterans from Financial Fraud Act of 2017

    To amend title 38, United States Code, to ensure that the Secretary 
of Veterans Affairs repays the misused benefits of veterans with 
fiduciaries, to establish an appeals process for determinations by the 
Secretary of Veterans Affairs of veterans' mental capacity, and for 
other purposes.
    VA's Fiduciary Program is designed to protect the most vulnerable 
beneficiaries determined to be unable to manage their financial 
affairs. A fiduciary is authorized to directly receive a beneficiary's 
benefits and act in the best interest of the beneficiary by making 
payments to creditors and providing assurances for the financial well-
being of the beneficiary. VA's 2017 Congressional Submission VBA-219 
states, ``Fiduciary Program beneficiaries are represented in all VA 
benefit categories with the majority of its beneficiaries in receipt of 
benefits.'' Additionally, over 50 percent of beneficiaries in the 
Fiduciary Program are 80 years old or older. \1\
---------------------------------------------------------------------------
    \1\ 2017 Congressional Submission VBA-219
---------------------------------------------------------------------------
    Sadly, not all fiduciaries act in the best interest of 
beneficiaries (by stealing, wasting money, or otherwise acting 
inappropriately) and in many instances beneficiaries are unable to 
recover their lost benefits. The VA is already authorized to reissue 
benefits to a beneficiary if an individual fiduciary manages 10 or more 
beneficiaries; however, if the fiduciaries represents less than 10 
beneficiaries, the veteran is unable to recoup the lost benefits.
    Fortunately, H.R. 105 addresses this disparity. All veterans 
injured by VA fiduciaries should be able to collect on lost funds due 
to a betrayal of trust. \2\
---------------------------------------------------------------------------
    \2\ American Legion Resolution No. 13 (September 2016): Fiduciary 
Responsibility

---------------------------------------------------------------------------
    The American Legion supports H.R. 105.

H.R. 299: Blue Water Navy Vietnam Veterans Act of 2017

    To amend title 38, United States Code, to clarify presumptions 
relating to the exposure of certain veterans who served in the vicinity 
of the Republic of Vietnam, and for other purposes.
    Veterans who served on open sea ships off the shore of Vietnam 
during the Vietnam War are called ``Blue Water Veterans.'' Currently, 
Blue Water Veterans must have actually stepped foot on the land of 
Vietnam or served on its inland waterways anytime between January 9, 
1962 and May 7, 1975 to be presumed to have been exposed to herbicides 
when claiming service-connection for diseases related to Agent Orange 
exposure.
    Blue Water Veterans who did not set foot in Vietnam or serve aboard 
ships that operated on the inland waterways of Vietnam must show on a 
factual basis that they were exposed to herbicides during military 
service in order to receive disability compensation for diseases 
related to Agent Orange exposure. These claims are decided on a case-
by-case basis.
    We are aware that VA previously asked the National Academy of 
Sciences' Institute of Medicine (IOM) to review the medical and 
scientific evidence regarding Blue Water Veterans' possible exposure to 
Agent Orange and other herbicides. IOM's report ``Blue Water Navy 
Vietnam Veterans and Agent Orange Exposure'' was released in May 2011. 
The report concluded that ``there was not enough information for the 
IOM to determine whether Blue Water Navy personnel were or were not 
exposed to Agent Orange.''
    However, Vietnam veterans who served on land and sea now have 
health problems commonly associated with herbicide exposure. Just as 
those who served on land were afforded the presumption because it would 
have placed an impossible burden on them to prove exposure, Congress 
should understand the injustice of placing the same burden on those who 
served offshore. Clearly, all the toxic wind-blown, waterborne, and 
contamination transfer stemming from aircraft, vehicle, and troop 
transfer makes it impossible to conclude that Agent Orange-dioxin 
somehow stopped at the coast line.
    The American Legion strongly supports legislation to expand the 
presumption of Agent Orange exposure to any military personnel who 
served on any vessel during the Vietnam War that came within 12 
nautical miles of the coastlines of Vietnam. \3\
---------------------------------------------------------------------------
    \3\ American Legion Resolution No. 246 (Sept. 2016): Blue Water 
Navy Vietnam Veterans

---------------------------------------------------------------------------
    The American Legion supports H.R. 299.

H.R. 1328: American Heroes COLA Act of 2017

    To amend title 38, United States Code, to provide for annual cost-
of-living adjustments to be made automatically by law each year in the 
rates of disability compensation for veterans with service-connected 
disabilities and the rates of dependency and indemnity compensation for 
survivors of certain service-connected disabled veterans, and for other 
purposes.
    In recent years, Congress has been attempting to establish an 
automatic mechanism to provide an annual increase in veterans' 
disability benefits. The American Legion understands and appreciates 
the efforts to remove the veteran community from the political debate 
in determining appropriate annual adjustments to Cost-Of-Living 
Adjustment (COLA) amounts for disability benefits. Unfortunately, while 
this bill would likely promote efficiency, it could also come with a 
significant cost to our nation's veterans.
    The current COLA formula already understates the true cost-of-
living increases faced by seniors and people with disabilities. 
According to one calculations ``a 30-year-old veteran of the Iraq or 
Afghanistan war who has no children and is 100 percent disabled would 
likely lose about $100,000 in disability compensation by age 75 
(calculated in today's dollars), compared with benefits under the 
current cost-of-living formula. Over a 10-year period, 23 million 
veterans would lose $17 billion in compensation and pension benefits.'' 
\4\
---------------------------------------------------------------------------
    \4\ AARP Bulletin (March 2013): Chained CPI Change Could Hit 
Veterans' Benefits
---------------------------------------------------------------------------
    The American Legion opposes ``any legislative efforts to 
automatically index such cost-of-living adjustments to the cost-of-
living adjustment authorized for Social Security recipients, non-
service-connected disability recipients and death pension 
beneficiaries.'' \5\ The reasoning behind this objection is that 
veterans sometimes have needs and expenses which should be considered 
on their own merits, rather than being simply lumped in with Social 
Security for simple expediency.
---------------------------------------------------------------------------
    \5\ American Legion Resolution No. 187 (Sept. 2016): Department of 
Veterans Affairs Disability Compensation
---------------------------------------------------------------------------
    Additionally, The American Legion ``expresses strong opposition to 
using any Consumer Price Index that would reduce the annual cost-of-
living adjustment for military retirees, veterans receiving Social 
Security benefits or Department of Veterans Affairs beneficiaries.'' 
\6\
---------------------------------------------------------------------------
    \6\ American Legion Resolution No. 164 (Sept. 2016): Oppose 
Lowering of Cost-of-Living Adjustments

---------------------------------------------------------------------------
    The American Legion OPPOSES H.R 1328.

H.R. 1329: Veterans Compensation Cost-of-Living Adjustment Act of 2017

    To increase, effective as of December 1, 2017, the rates of 
compensation for veterans with service-connected disabilities and the 
rates of dependency and indemnity compensation for the survivors of 
certain disabled veterans, to amend title 38, United States Code, to 
improve the United States Court of Appeals for Veterans Claims, to 
improve the processing of claims by the Secretary of Veterans Affairs, 
and for other purposes.
    H.R.1329 would provide a Cost-of-Living Allowance (COLA) effective 
December 1, 2017. Disability compensation and pension benefits awarded 
by the Department of Veterans Affairs (VA) are designed to compensate 
veterans for medical conditions incurred through service, or who earn 
below an income threshold. When the cost of living increases due to 
inflation, it is only appropriate that veterans' benefits increase 
commensurate with those increases.
    For nearly 100 years, The American Legion has advocated on behalf 
of our nation's veterans, to include the awarding of disability 
benefits associated with chronic medical conditions that manifest 
related to selfless service to this nation. Annually, veterans and 
their family members are subjects in the debate regarding the annual 
COLA for these disability benefits. For these veterans and their family 
members, COLA is not simply an acronym or a minor adjustment in 
benefits; instead, it is a tangible benefit that meets the needs of the 
increasing costs of living in a nation that they bravely defended.
    H.R. 1329 is designed to allow for a COLA for VA disability and 
other monetary benefits. The American Legion supports legislation ``to 
provide a periodic cost-of-living adjustment increase and to increase 
the monthly rates of disability compensation.'' \7\
---------------------------------------------------------------------------
    \7\ American Legion Resolution No. 164 (Sept. 2016): Oppose 
Lowering of Cost-of-Living Adjustments

---------------------------------------------------------------------------
    The American Legion supports H.R. 1329.

H.R. 1390

    To amend title 38, United States Code, to authorize the Secretary 
of Veterans Affairs to pay costs relating to the transportation of 
certain deceased veterans to veterans' cemeteries owned by a State or 
tribal organization.
    The VA will pay transportation costs for an eligible deceased 
veteran for burial in a national cemetery. This legislation would 
expand this benefit to include state or tribal cemeteries. The American 
Legion supports the transporting of remains to the place of burial 
determined by the family. \8\ Because this legislation expands options 
for the family, we support this bill.
---------------------------------------------------------------------------
    \8\ American Legion Resolution No. 181 (Sept. 2016): National 
Cemetery Administration

---------------------------------------------------------------------------
    The American Legion supports H.R. 1390.

H.R. 1564: VA Beneficiary Travel Act of 2017

    To amend section 504 of the Veterans' Benefits Improvements Act of 
1996 to specify the funding source for travel related to examinations 
by physicians not employed by the Department of Veterans Affairs 
regarding medical disabilities of applicants for benefits under title 
38, United States Code, to codify section 504 of the Veterans' Benefits 
Improvements Act of 1996, and for other purposes.
    On October 9, 1996, Congress passed and the President signed into 
law, Public Law 104-275, the Veterans' Benefits Improvements Act of 
1996. This bill would amend section 504 of the law to specify the 
funding source for veterans travel related to examinations by 
physicians not employed by the Department of Veterans Affairs regarding 
medical disabilities of applicants for benefits under title 38, United 
States Code.
    Since the authority is already law, and the bill aims to clean up 
and properly designate where the VA would draw these resources and 
would not impose any additional funding requirements, The American 
Legion has no objections to H.R. 1564.

    The American Legion supports H.R. 1564.

H.R. 1725: Quicker Benefits Delivery Act of 2017

    To amend title 38, United States Code, to improve the treatment of 
medical evidence provided by non-Department of Veterans Affairs medical 
professionals in support of claims for disability compensation under 
the laws administered by the Secretary of Veterans Affairs, and for 
other purposes.
    Many veterans submit private medical evidence to support their 
claims for disability benefits. For veterans that require additional 
medical review or do not provide a statement from a medical 
professional linking the medical condition to military service, VA 
provides compensation and pension (C&P) examinations to determine the 
link or severity of medical conditions.
    Over the past 20 years The American Legion has reviewed tens of 
thousands of claims in regional offices around the country through our 
Regional Office Action Review (ROAR) program. The American Legion has 
testified to Congress that VA schedules unnecessary and duplicative 
examinations despite already having the evidence necessary to grant the 
claim. This adds further complication to an already complicated 
process.
    The American Legion understands that there are occasions where a 
veteran would need a second examination after submitting a medical 
nexus statement. If a private medical provider did not use a VA 
disability medical questionnaire, then it stands to reason that the 
provider may not have conducted the necessary tests to accurately rate 
the veteran.
    Unfortunately, these instances did not get noticed solely during 
ROAR visits. They are noticed far too frequently by American Legion 
representatives at the Board of Veterans' Appeals. There have been 
occasions where veterans have been seeking total disability based on 
individual unemployability (TDIU) benefits. Meanwhile, the veteran had 
previously been granted Social Security disability benefits for a 
condition incurred in service and service-connected by VA. Despite 
enduring medical examinations for Social Security purposes and having 
the benefit granted by the agency, VA would conduct their own 
examinations to determine the veteran's employability. Some in the 
veteran community refer to this needless development of disability 
claims as ``developing to deny''.
    This bill will compel VA to release data that establishes 
acceptable clinical evidence and increase transparency for claims 
development and adjudication. With congressional and VA focus on how 
private medical evidence is treated, The American Legion believes that 
the treatment of the evidence received from private medical providers 
will receive higher consideration. This will expedite adjudications and 
increase claims processing transparency. \9\
---------------------------------------------------------------------------
    \9\ American Legion Resolution No. 123 (Sept. 2016): Increase the 
Transparency of the Veterans Benefits Administration's Claim Processing

---------------------------------------------------------------------------
    The American Legion supports H.R. 1725.

Conclusion
    As always, The American Legion thanks this subcommittee for the 
opportunity to explain the position of the over 2.2 million veteran 
members of this organization. For additional information regarding this 
testimony, please contact Mr. Warren J. Goldstein at The American 
Legion's Legislative Division at (202) 861-2700 or 
[email protected]

                                 
                  Prepared Statement of Patrick Murray
                            WITH RESPECT TO
  H.R. 105, H.R. 299, H.R. 1328, H.R. 1329, H.R. 1390, H.R. 1564, and 
                               H.R. 1725
    Chairman Bost, Ranking Member Esty and members of the Subcommittee, 
on behalf of the men and women of the Veterans of Foreign Wars of the 
United States (VFW) and its Auxiliary, thank you for the opportunity to 
provide our remarks on legislation pending before the subcommittee.

H.R. 105, Protect Veterans from Financial Fraud Act of 2017

    The VFW supports this legislation, which would authorize veterans 
assigned fiduciaries to be compensated when fiduciaries mishandle or 
misuse their money. This is a common sense bill to protect some of our 
most vulnerable veterans. Veterans assigned a fiduciary need help and 
financial protection, and any individual who mistreats or preys upon 
them must be held accountable, and restitution must be made to those 
affected.
    To further protect vulnerable veterans, the VFW supports expanding 
this legislation to install criminal and financial penalties for those 
found to maliciously prey on veterans for any financial gain, not just 
fiduciary fraud. Abusing the health and financial welfare of veterans 
in need must be punishable by law.
    There have been numerous attempts to draft legislation instituting 
criminal penalties for those who illegally charge veterans for services 
like assistance in filing an initial claim for VA benefits, but those 
attempts to pass legislation have fallen flat. The VFW supports 
legislation that protects all veterans from any individual who commits 
financial malfeasance, sets substantial penalties for doing so, and 
ensures veterans receive any owed compensation as a result of the 
crime.

H.R. 299, Blue Water Navy Vietnam Veterans Act of 2017

    The VFW strongly supports this legislation, which would require the 
Department of Veterans Affairs (VA) to include territorial seas as part 
of the Republic of Vietnam, extending presumptive service connection 
and health care for Agent Orange-related illnesses to Blue Water Navy 
veterans.
    Currently, VA relies on what the Court of Appeals for Veterans 
Claims has called an ``arbitrary and capricious'' interpretation of 
inland waterways, which unjustly denies veterans who served aboard 
ships in the coastal waters of Vietnam the benefits they deserve. The 
VFW believes that Blue Water Navy veterans were potentially exposed to 
significant levels of toxins, and should be granted the same 
presumption of service connection as their counterparts who served in 
the inland waterways of Vietnam.

H.R. 1390, to authorize the Secretary of Veterans Affairs to pay costs 
    relating to the transportation of certain deceased veterans to 
    veterans' cemeteries owned by a State or tribal organization

    The VFW supports this legislation, which expands burial benefits to 
veterans interred in a State or tribal cemetery.
    For more than 150 years, our nation has purchased and maintained 
cemeteries to offer our veterans a final resting place that honors 
their brave military service. Currently, VA maintains 133 national 
cemeteries; only 75 of them, however, are able to accept new 
interments. To ensure veterans have burial options within 75 miles to 
their home, VA uses agreements and grants with states, United States 
territories, and federally recognized tribal organizations to 
establish, expand, or improve veterans' cemeteries in areas where the 
National Cemetery Administration has no plans to build or maintain a 
national cemetery.
    While VA covers all the transportation expenses for veterans who 
are interred in the nearest national cemetery, VA is not authorized to 
reimburse the next of kin of a veteran who is interred in a State or 
tribal cemetery because the nearest VA national cemetery is not 
accepting new interments or the veteran does not have a national 
cemetery near their home. This bill rightfully expands VA's authority 
to cover the cost of transporting a veteran's remains to their final 
resting place in a State or tribal cemetery.

H.R 1328, American Heroes COLA Act of 2017 & H.R. 1329, Veterans' 
    Compensation Cost-of-Living Adjustment Act of 2017

    The VFW supports this legislation which would increase VA 
compensation for veterans and survivors, and adjust other benefits by 
providing a cost-of-living adjustment (COLA). The VFW is pleased to 
support any bill increasing COLA for our veterans, however, we would 
prefer to make COLA increases permanent and automatic.
    Disabled veterans, along with their surviving spouses and children, 
depend on their disability compensation, plus dependency and indemnity 
compensation to bridge the gap of lost earnings caused by the veteran's 
disability. Each year veterans wait anxiously to find out if they will 
receive a COLA. There is no automatic trigger that increases these 
forms of compensation for veterans and their dependents. Annually, 
veterans wait for a separate act of Congress to provide the same 
adjustment that is automatically granted to Social Security 
beneficiaries.

H.R. 1564, VA Beneficiary Travel Act of 2017

    The VFW supports this legislation, which would clarify and codify 
VA's authority to carry out contracted compensation and pension exams 
and reimburse veterans for travel to such exams.
    The VA uses third party examinations in order to speed up the 
process of either an initial claim or an appeal to ensure veterans 
receive timely decisions on their claims. Travel is a significant 
barrier to access for low income veterans. Clarifying that veterans may 
receive beneficiary travel when attending a contracted compensation and 
pension exam would ensure veterans are able to complete this important 
step in the claims process.
    While the VFW supports this bill, we are concerned that it does not 
apply to initial mental health claims. If VA sees the need to contract 
third party physicians to examine veterans for any and all physical 
conditions, then it should also utilize appropriate medical 
professionals to examine mental health conditions. Mental health 
examinations are increasing every day, and VA insisting on patients 
seeing only VA doctors for these examinations is increasing the burden 
on their own system. Mental health examinations for initial claims 
should be added to the type of services offered in VA's contracting 
physicians' portfolio.

H.R. 1725, Quicker Veterans Benefits Delivery Act of 2017

    The VFW strongly supports this legislation which would require VA 
to accept competent, creditable, probative, and relevant private 
medical evidence in support of a disability compensation claim.
    The VFW supports using outside physicians' findings in order to 
speed up the review and judgement of claims. Veterans should not have 
to see another VA doctor in order to validate their private sector 
doctors' findings. Requiring redundant examinations only adds to more 
confusion and clogs up the system. VA must accept evidence from 
competent, credible physicians and not force veterans to seek a second 
opinion from a VA physician.
    Veterans submitting initial claims have likely been receiving care 
from non-VA doctors for their claimed conditions, meaning there is 
likely already a sufficient evidentiary record of the disability. 
Eliminating redundant exams would speed up the claims process.
    While the VFW vehemently supports this bill, we must once again 
reiterate our concerns related to mental health. Currently, all 
veterans who claim mental health conditions are sent for a VA exam 
regardless of the evidence of record. This is onerous and bad medical 
practice for patients who suffer from mental health conditions. VA 
should begin accepting private medical evidence for mental health 
conditions from third party mental health professionals to avoid 
redundant exams and overburdening veterans.
    Mr. Chairman, this concludes my testimony. I am prepared to take 
any questions you or the subcommittee members may have.

                                 
                   Prepared Statement of Leroy Acosta
    Mr. Chairman and Members of the Subcommittee:
    Thank you for inviting DAV (Disabled American Veterans) to testify 
at this legislative hearing of the Subcommittee on Disability 
Assistance and Memorial Affairs. As you know, DAV is a non-profit 
veterans' service organization comprised of 1.3 million wartime 
service-disabled veterans that is dedicated to a single purpose: 
empowering veterans to lead high-quality lives with respect and 
dignity. DAV is pleased to present our views on the bills under 
consideration by the Subcommittee, and we appreciate your invitation.

      H.R. 105, Protect Veterans from Financial Fraud Act of 2017

    H.R. 105 would require the Secretary of Veterans Affairs to repay 
the misused benefits of veterans by fiduciaries and establish an 
appeals process for determinations made by the Secretary of a veteran's 
mental capacity.
    While DAV does not have a resolution specific to this issue, we 
would not oppose passage of this legislation.

         H.R. 299, Blue Water Navy Vietnam Veterans Act of 2017

    H.R. 299 would amend title 38, United States Code, to expand the 
definition of the Republic of Vietnam to include its territorial seas 
for the purposes of the presumption of service connection for diseases 
associated with exposure by veterans to certain herbicide agents while 
in Vietnam such as herbicides containing dioxin, including Agent 
Orange, during the Vietnam War.
    This legislation would provide Blue Water Navy Vietnam veterans the 
disability and health care benefits they earned as a result of exposure 
to Agent Orange. Eligibility for VA benefits under this legislation 
would be retroactive to September 25, 1985, the date VA began providing 
disability compensation to veterans with medical disorders related to 
Agent Orange.
    During the Vietnam War, the U.S. military sprayed Agent Orange in 
Vietnam to eradicate jungle vegetation. This toxic chemical had chronic 
and debilitating health effects on millions of veterans who served in 
Vietnam and aboard ships operating in the territorial waters of 
Vietnam.
    The Agent Orange Act of 1991 required the Department of Veterans 
Affairs (VA) to provide presumptive service connection to Vietnam 
veterans with illnesses that the National Academy of Sciences directly 
linked to Agent Orange exposure. Yet, in 2002, the VA decided to only 
cover veterans who could prove that they had ``boots on the ground'' 
during the Vietnam War. Because of this decision, thousands of Vietnam 
veterans were excluded from receiving benefits although these Blue 
Water Navy veterans had significant Agent Orange exposure from drinking 
and bathing in contaminated water just offshore.
    Veterans who served on ships no more distant from the spraying of 
herbicides than many who served on land are arbitrarily and unjustly 
denied benefits of the presumption of exposure, and thereby are 
ineligible for presumption of service connection for herbicide-related 
disabilities.
    DAV supports H.R. 299 based on DAV Resolution No. 018, supporting 
legislation to expressly provide that the phrase ``served in the 
Republic of Vietnam'' includes service in the territorial waters 
offshore.

              H.R. 1328, American Heroes COLA Act of 2017

    H.R. 1328 would provide automatic annual cost-of-living adjustments 
(COLA) in the rates of disability compensation for veterans with 
service-connected disabilities and in the rates of additional 
compensation for dependents, clothing allowance, and in dependency and 
indemnity compensation for survivors of certain service-connected 
disabled veterans.
    H.R. 1328 also proposes to permanently index future COLA rate 
adjustments to Social Security rate adjustments. The method used to 
determine the level of the COLA is tied to the United States economy on 
a very broad basis. The formula to calculate COLAs is prescribed by law 
and determined by the Social Security Administration, utilizing 
Department of Labor statistical information. The calculation of COLAs 
has been linked directly to the Consumer Price Index since 1975.
    In general, a COLA is equal to the percentage increase in the 
Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-
W), from the third quarter of one year to the third quarter of the 
next. If there is no increase in the index, there is no COLA. In these 
cases, ill and injured veterans are denied necessary increases in 
disability compensation due to a formula that has little to do with the 
real costs they bear.
    It has become customary for Congress to determine COLAs in parity 
with Social Security recipients, but it is important to note there have 
been years in which there were no COLA increases, or such as in 2017, 
the COLA increase was quite small, only 0.3 percent. While we do not 
oppose the automatic adjustment, this permanent coupling does subject 
VA beneficiaries to the same rate adjustments of Social Security 
beneficiaries, which can adversely impact veterans and their families 
as in the case when there is no increase, or when the increase is 
minuscule, especially for those veterans and their dependents who 
heavily rely on disability compensation as their sole source of income.
    DAV supports legislation that provides veterans with a COLA 
increase in accordance with DAV Resolution No. 013, and recommends the 
COLA calculation to provide a realistic cost-of-living allowance for 
our nation's disabled veterans, their dependents and survivors.
    We do not oppose the automatic adjustment; however, DAV has 
concerns with permanently indexing COLA increases to the Social 
Security Administration. Further, annual consideration by Congress of a 
COLA bill provides the oversight needed to ensure compensation rates 
continue to bring the standard of living in line with that which ill 
and injured veterans would have enjoyed had they not suffered their 
service-connected disabilities. In the event of a zero percent COLA, 
the automatic index would not provide these veterans, their dependents 
and survivors the benefits to maintain their standard of living.

H.R. 1329, Veterans' Compensation Cost-of-Living Adjustment Act of 2017

    H.R. 1329 would also provide for increased compensation rates for 
wounded, injured and ill veterans, their dependents and survivors 
commensurate to that provided to Social Security recipients effective 
December 1, 2017. Unlike H.R. 1328, mentioned above, H.R. 1329 does not 
propose automatic adjustments to COLAs.
    As discussed above, DAV calls on Congress to support legislation to 
provide a realistic increase in disability compensation. Injured and 
ill veterans, their dependents and survivors rely on their compensation 
benefits to maintain their standard of living. Compensation rates must 
bring the standard of living in line with that which they would have 
enjoyed had they not suffered their service-connected disabilities.
    DAV supports H.R. 1329 in accordance with DAV Resolution No. 013 
and recommends the COLA calculation provide a realistic cost-of-living 
allowance for our nation's disabled veterans, their dependents and 
survivors.

                               H.R. 1390

    This bill would permit the Secretary to cover the costs associated 
with the transportation of deceased veterans, not only to national 
cemeteries, but also to other recognized veterans' cemeteries. H.R. 
1390 defines ``covered veterans cemeteries'' as a veterans' cemetery 
owned by a state or tribal organization in which the deceased veteran 
is eligible to be buried, consistent with the definition currently 
codified in section 3765 (4), of title 38, United States Code. The 
payment for transportation may not exceed the cost of transportation to 
the nearest national cemetery from the deceased veteran's last place of 
residence in which burial space is available.
    H.R. 1390 would benefit veterans' survivors by helping to offset 
the cost transporting the veteran to their final resting place. DAV 
does not have a resolution specific to this bill; however, we would not 
oppose passage of this legislation.

              H.R. 1564, VA Beneficiary Travel Act of 2017

    H.R. 1564 would amend section 504 of the Veterans' Benefits 
Improvements Act of 1996 to specify the funding source for travel 
related to examinations by physicians not employed by the Department of 
Veterans Affairs regarding medical disabilities of applicants for 
benefits under title 38, United States Code. This legislation codifies 
section 504 of the Veterans' Benefits Improvements Act of 1996 by 
transferring Section 504 to title 38, United States Code, subsection 
5109C, and provides clerical amendments.
    DAV does not have a resolution specific to this bill; however, we 
would not oppose passage of this legislation.

       Draft Bill, Quicker Veterans Benefits Delivery Act of 2017

    This draft bill would amend title 38, United States Code, section 
5125, to improve the treatment of medical evidence provided by non-
Department of Veterans Affairs (VA) medical professionals in support of 
veterans' claims for disability compensation.
    The bill would eliminate the VA practice of ordering unnecessary 
compensation and pension examinations. Unnecessary examinations lead to 
delays in delivery of benefits, tie up VA resources and add to the 
frustration of veterans who in many cases have provided sufficient 
medical evidence to support their claim. Requesting a VA examination 
when acceptable private medical evidence has already been provided, 
indicates that the private medical evidence is of less weight than 
evidence provided by a VA clinician.
    DAV continues to press for changes to improve and streamline the 
veterans' benefits claims processing system. This legislation would 
give due deference to private medical evidence that is competent, 
credible, probative, and otherwise adequate for rating purposes. 
Currently acceptance of private medical examinations is not 
standardized across the VA. This draft legislation moves toward a more 
efficient, less redundant disability claims process.
    For these reasons, DAV is pleased to support this bill, consistent 
with DAV Resolution No. 230, which seeks the enactment of legislation 
that would require VA to consider private medical evidence supplied by 
licensed private health care providers to include, but not be limited 
to, reports from nurse practitioners and physician assistants in 
private practices.
    Mr. Chairman, this concludes DAV's testimony. Thank you for 
inviting DAV to testify at today's hearing. I would be pleased to 
address any questions related to the bills being discussed in my 
testimony.

                                 
                       Statements For The Record

                  PARALYZED VETERANS OF AMERICA (PVA)
    Chairman Bost, Ranking Member Esty, and members of the 
Subcommittee, Paralyzed Veterans of America (PVA) would like to thank 
you for the opportunity to provide our views on pending legislation 
before the Subcommittee.

   H.R. 105, the ``Protect Veterans from Financial Fraud Act of 2017"

    PVA supports this legislation. Under current law, the Department of 
Veterans Affairs (VA) is limited in its authority to reissue benefits. 
If the fiduciary that misused benefits is an institution or an 
individual serving ten (10) or more individuals who are beneficiaries 
under title 38, VA is permitted to reissue benefits and make the 
veteran whole again. If the fiduciary does not meet those criteria, VA 
may only reissue benefits to the extent that it recoups the misused 
funds from the fiduciary. The basis of the current rule is that it is 
more likely that VA will recoup the funds from an institution or an 
individual serving in a sophisticated or professional capacity on 
behalf of numerous veterans. This is an unjust result for veterans who 
choose not to engage the services of a professional fiduciary. H.R. 105 
would remedy this unfortunate circumstance and place all veterans on 
equal footing after malicious or incompetent fiduciaries misuse their 
benefits.

     H.R. 299, the ``Blue Water Navy Vietnam Veterans Act of 2017"

    PVA supports H.R. 299, the ``Blue Water Navy Vietnam Veterans Act 
of 2017,'' which would amend title 38 and expand the presumption for 
service connection related to the exposure of herbicides containing 
dioxin, including Agent Orange. As more information becomes available 
about these types of exposures, it will be imperative for Congress to 
take appropriate steps to ensure that these veterans receive just 
consideration for health care and benefits eligibility.

           H.R. 1328, the ``American Heroes COLA Act of 2017"

    PVA supports H.R. 1328, the ``American Heroes COLA Act of 2017,'' 
which would increase, effective as of December 1, 2017, the rates of 
compensation for veterans with service-connected disabilities and the 
rates of dependency and indemnity compensation (DIC) for the survivors 
of certain disabled veterans. This would include increases in wartime 
disability compensation, additional compensation for dependents, 
clothing allowance, and dependency and indemnity compensation for 
children.

                               H.R. 1329

    Historically, the annual COLA bill has been important legislation 
that must pass each year. During times of particularly contentious 
relations in Congress, this critical legislation has been used as a 
vehicle to pass other important veterans legislation. PVA does not 
object, however, to making the COLA adjustment automatic going forward, 
as it would add a level of certainty for veterans expecting annual 
increases equal to those provided under title II of the Social Security 
Act.

                               H.R. 1390

    PVA continues to support legislation expanding VA's authority to 
pay for transportation of a deceased veteran's remains to not only 
national cemeteries, but also cemeteries owned by States or tribal 
organizations. While this bill expands options for veterans wishing to 
be buried in a state or tribal cemetery instead of a national cemetery, 
it avoids any additional costs to the current program by capping the 
reimbursement at the amount needed to transport the veteran's remains 
to the nearest national cemetery. This bill, however, does not extend 
the same option for veterans without next of kin or sufficient 
resources to cover their burial. We think it would be appropriate to 
build in an exception allowing VA to transport the remains of such a 
veteran to a state or tribal cemetery if VA has information suggesting 
that this was the veteran's desire, and if it can be accomplished at or 
below the cost of transporting the veteran to a national cemetery. 
Doing so under these conditions would impose no additional costs.

                               H.R. 1564

    PVA has no position on this legislation.

    H.R. 1725, the ``Quicker Veterans Benefits Delivery Act of 2017"

    We strongly support H.R. 1725, the ``Quicker Veterans Benefits 
Delivery Act of 2017.'' Those veterans with catastrophic disabilities 
have the greatest need for health care services and this legislation 
will ensure that they are not forced into delays because the VA will 
not accept medical evidence from non-VA medical professionals. This 
bill is a high priority for our members.
    PVA has consistently recommended that VA accept valid medical 
evidence from non-Department medical professionals. The continuing 
actions of VA to require medical examinations by its own physicians 
does nothing to further efforts to reduce the claims backlog and may 
actually cause the backlog to increase in addition to delaying vital 
benefits for disabled veterans. We applaud Mr. Walz's efforts to both 
define what constitutes ``sufficiently complete'' as well as institute 
reporting requirements to ensure VA is avoiding unacceptable delays due 
to duplicative medical exams.
    VA has suggested in the past on similar legislation that the 
Department already has the necessary legal authority to address this 
concern. Furthermore, VA believes this change would inadvertently 
restrict the Department's ability to help the veteran get a proper exam 
if needed. First, we agree the VA has the legal authority. The point of 
this legislation, though, is to address the fact that VA does not use 
it properly. In fact, VA uses it to the detriment of veterans in some 
cases, either by unnecessarily delaying claims or ``developing to 
deny'' claims. If, as VA claims, the Department is already making 
determinations based on whether the report contains competent, 
credible, probative or such information as may be required to make a 
decision, then this law adds no new burden on the administrative 
process. Second, there is nothing in the language here that restricts 
VA's ability to procure an additional exam when needed. If the claim is 
not sufficiently complete, then a follow-on exam is warranted. If the 
claim is sufficiently complete, then VA should be prohibited from 
requiring further scrutiny.
    PVA would also like to see VA better adhere to its own ``reasonable 
doubt'' provision when adjudicating claims that involve non-VA medical 
evidence. We still see too many VA decisions where this veteran-
friendly rule was not properly applied. 38 CFR Sec. 3.102 states that 
``[w]hen, after careful consideration of all procurable and assembled 
data, a reasonable doubt arises regarding service origin, the degree of 
disability, or any other point, such doubt will be resolved in favor of 
the claimant.'' Too often it appears VA raters exercise arbitrary 
prerogative to avoid ruling in favor of the claimant, continually 
adding obstacles to a claimant's path without adequate justification 
for doing so. While due diligence in gathering evidence is absolutely 
necessary, it often seems that VA is working to avoid a fair and 
legally acceptable ruling for the veteran that happens to be favorable. 
Both the failure to accept, and tendency to devalue, non-VA medical 
evidence are symptoms of this attitude.
    Mr. Chairman and members of the Subcommittee, we appreciate your 
commitment to ensuring that veterans receive the best benefits and care 
available. We also appreciate the fact that this Subcommittee has 
functioned in a generally bipartisan manner over the last few years. We 
look forward to working with the Subcommittee as we continue to provide 
the best care for our veterans.

                                 
                       MILITARY-VETERANS ADVOCACY
 Written Testimony for the Record in Support of: H.R. 299; H.R. 1328; 
 H.R. 1329; H.R. 1390; H.R. 1564 and, a draft bill entitled ``Quicker 
                Veterans Benefits Delivery Act of 2017"
                    And in Opposition to: H.R. 105,
       Commander John B. Wells, USN (Retired), Executive Director
                              Introduction
    Distinguished Sub-Committee Chairman Mike Bost, Ranking Member 
Elizabeth Esty and other members of the Sub-Committee; thank you for 
the opportunity to present the Association's views on H.R. 105; H.R. 
299; H.R. 1328; H.R. 1329; H.R. 1390; H.R. 1564; and, a draft bill 
entitled ``Quicker Veterans Benefits Delivery Act of 2017.'' This 
testimony will provide commentary on all of the proposed legislation, 
but will concentrate on HR 299.

                    About Military-Veterans Advocacy

    Military-Veterans Advocacy Inc. (MVA) is a tax exempt IRC 501[c][3] 
organization based in Slidell Louisiana that works for the benefit of 
the armed forces and military veterans. Through litigation, legislation 
and education, MVA works to advance benefits for those who are serving 
or have served in the military. In support of this, MVA provides 
support for various legislation on the State and Federal levels as well 
as engaging in targeted litigation to assist those who have served.
    Along with the Blue Water Navy Vietnam Veterans Association, Inc. 
(BWNVVA) MVA has been the driving force behind the Blue Water Navy 
Vietnam Veterans Act (HR 299).
    Working with Members of Congress and United States Senators from 
across the political spectrum, MVA and BWNVVA provided technical 
information and support to sponsors who have worked tirelessly to 
partially restore the benefits stripped from the Blue Water Navy 
veterans fifteen years ago. Currently HR 299 has 238 co-sponsors. \1\ A 
previous version, with identical language, in the 114th Congress had 
335 co-sponsors.
---------------------------------------------------------------------------
    \1\ The 238 co-sponsors is as of March I 9, 2017. An updated number 
will be provided during oral testimony.

Military-Veterans Advocacy's Executive Director Commander John B. Wells 
---------------------------------------------------------------------------
                               USN (Ret.)

    MVA's Executive Director, Commander John B. Wells, USN (Retired) 
has long been viewed as the technical expert on HR 299. A 22-year 
veteran of the Navy, Commander Wells served as a Surface Warfare 
Officer on six different ships, with over ten years at sea. He 
possessed a mechanical engineering subspecialty, was qualified as a 
Navigator and for command at sea, and served as the Chief Engineer on 
several Navy ships. As Chief Engineer, he was directly responsible for 
the water distillation and distribution system. He is well versed in 
the science surrounding this bill and is familiar with all aspects of 
surface ship operations. This includes the hydrological effect of wind, 
tides and currents.
    Since retirement, Commander Wells has become a practicing attorney 
with an emphasis on military and veterans law. He is counsel on several 
pending cases concerning the Blue Water Navy and has filed amicus 
curiae briefs in other cases. He has tried cases in state, federal, 
military and veterans courts as well as other federal administrative 
tribunals. Since 2010 he has visited virtually every Congressional and 
Senatorial office to discuss the importance of enacting a bill to 
partially restore benefits to those veterans who served in the bays, 
harbors and territorial seas of the Republic of Vietnam. He is also 
recognized in the veterans community as the subject matter expert on 
this matter.

               Historical Background Surrounding H.R. 299

    In the 1960's and the first part of the 1970's the United States 
sprayed over 12,000,000 gallons of a chemical laced with 2,3,7,8-
Tetrachlorodibenzodioxin (TCDD) and nicknamed Agent Orange over 
southern Vietnam. This program, code named Operation Ranch Hand, was 
designed to defoliate areas providing cover to enemy forces. Spraying 
included coastal areas and the areas around rivers and streams that 
emptied into the South China Sea. By 1967, studies initiated by the 
United States government proved that Agent Orange caused cancer and 
birth defects. Similar incidence of cancer development and birth 
defects have been documented in members of the United States and Allied 
armed forces who served in and near Vietnam.
    Throughout the war, the United States Navy provided support for 
combat operations ashore. This included air strikes and close air 
support, naval gunfire support, electronic intelligence, interdiction 
of enemy vessels and the insertion of supplies and troops ashore. 
Almost every such operation was conducted within the territorial seas.
    The South China Sea is a shallow body of water and the thirty-
fathom curve (a fathom is six feet) extends through much of the 
territorial seas. The gun ships would operate as close to shore as 
possible. The maximum effective range of the guns required most 
operations to occur within the territorial seas as documented in the 
attachment. \2\ Often ships would operate in harbors or within the ten-
fathom curve to maximize their field of fire. The maximum range on 
shipboard guns (except the Battleship 16 inch turrets) required the 
ship to operate within the territorial seas in order to support forces 
ashore.
---------------------------------------------------------------------------
    \2\ The red line on the attached chart, Exhibit 1, is known as the 
base line. Vietnam uses the straight baseline method which intersects 
the outermost coastal islands. The dashed line is twelve nautical miles 
from the baseline and represents the territorial seas. The bold line 
marks the demarcation line for eligibility for the Vietnam Service 
Medal. Prior to 2002, the VA granted the presumption of exposure to any 
ship that crossed the bold line. H.R. 299 will restore the presumption 
only to a ship that crosses the dashed line.
---------------------------------------------------------------------------
    It was common practice for the ships to anchor while providing 
gunfire support. Digital computers were not yet in use and the fire 
control systems used analog computers. By anchoring, the ship's crew 
was able to achieve a more stable fire control solution, since there 
was no need to factor in their own ship's course and speed. It was also 
common for ships to steam up and down the coast at high speeds to 
respond to call for fire missions, interdict enemy sampans and other 
operational requirements.
    Small boat transfers were conducted quite close to land. Many 
replenishments via helicopter took place within the territorial seas. 
Often these helicopters landed in country for refueling, to disembark 
passengers or to pick up mail. Small boat or assault craft landings of 
Marine forces always took place within the territorial seas. Many of 
these Marines re-embarked, bringing Agent Orange back aboard on 
themselves and their equipment. Additionally mail, equipment and 
supplies staged in harbor areas were often sprayed before being 
transferred to the outlying ships. Embarking personnel would take boats 
or helicopters to ships operating in the territorial seas. The Agent 
Orange would adhere to their shoes and clothing as well as to mail bags 
and other containers. It would then be tracked throughout the ship on 
the shoes of embarking personnel and the clothing of those handling 
mail and other supplies brought aboard. Their clothing was washed in a 
common laundry, contaminating the laundry equipment and the clothing of 
other sailors.
    Flight operations from aircraft carriers often occurred outside of 
the territorial seas. As an example, Yankee station was outside of the 
territorial seas of the Republic of Vietnam. Dixie Station, however, 
was on the border of the territorial seas. Some carriers, especially in 
the South, entered the territorial seas while launching or recovering 
aircraft, conducting search and rescue operations and racing to meet 
disabled planes returning from combat. Aircraft carriers also entered 
the territorial seas for other operational reasons. Many times these 
planes flew through clouds of Agent Orange while conducting close air 
support missions. These planes were then washed down on the flight 
deck, exposing the flight deck crew to Agent Orange.

                       Agent Orange Act of 1991.

    In 1991, the Congress passed and President George H. W. Bush 
signed, the Agent Orange Act of 1991, Pub.L. 102-4, Feb. 6, 1991, 105 
Stat. 11. This federal law required VA to award benefits to a veteran 
who manifests a specified disease and who ``during active military, 
naval, or air service, served in the Republic of Vietnam during the 
period beginning on January 9, 1962, and ending on May 7, 1975.''
    The Agent Orange Act of 1991 further required the Secretary to 
``take into account reports received by the Secretary from the National 
Academy of Sciences and all other sound medical and scientific 
information and analyses available to the Secretary.'' The Secretary is 
further required to consider whether the results are statistically 
significant, are capable of replication, and withstand peer review. The 
responsibility to prepare a biennial report concerning the health 
effects of herbicide exposure in Vietnam veterans was delegated to the 
Institute of Medicine (IOM), a non-profit organization which is 
chartered by the National Academy of Sciences.
    The Agent Orange Act required the Secretary to conduct blood tests 
on those veterans exposed to Agent Orange. The VA generally ignored 
this requirement and few blood tests were taken. Unfortunately, the 
half-life deterioration of the dioxin is now below the detection 
threshold and cannot be identified. While the dioxin has deteriorated, 
its effects have not. Many of these effects manifested themselves 20-30 
years after exposure.
    The Department of Veterans Affairs (hereinafter VA) drafted 
regulations to implement the Agent Orange Act of 1991 and defined 
``service in the Republic of Vietnam'' as ``service in the waters 
offshore and service in other locations if the conditions of service 
involved duty or visitation in the Republic of Vietnam.'' 38 C.F.R. 
Sec.  3.307(a)(6)(iii) (1994). This was in contrast to a previous 
definition which defined ``service in Vietnam'' as ``service in the 
waters offshore, or service in other locations if the conditions of 
service involved duty or visitation in Vietnam.'' 38 C.F.R. Sec.  3.313 
(1991). These regulations allowed the presumption of exposure 
throughout the Vietnam Service Medal area, the dark solid line marked 
on Exhibit 1. Under this definition, a ballistic missile submarine was 
covered as were the aircraft carriers on Yankee Station and submarines 
conducting operations in the Gulf of Tonkin in an area off the coast 
where no Agent Orange was sprayed. These ships would not be covered 
under H.R. 299.
    In 1997 the VA General Counsel issued a precedential opinion 
excluding service members who served offshore but not within the land 
borders of Vietnam. The opinion construed the phrase ``served in the 
Republic of Vietnam'' as defined in 38 U.S.C. Sec.  101(29)(A) not to 
apply to service members whose service was on ships and who did not 
serve within the borders of the Republic of Vietnam during a portion of 
the ``Vietnam era.'' The opinion stated that the definition of the 
phrase ``service in the Republic of Vietnam'' in the Agent Orange 
regulation, 38 C.F.R. Sec.  3.307(a)(6)(iii), ``requires that an 
individual actually have been present within the boundaries of the 
Republic to be considered to have served there,'' and that for purposes 
of both the Agent Orange regulation and section I01(29)(A), service 
``in the Republic of Vietnam'' does not include service on ships that 
traversed the waters offshore of Vietnam absent the service member's 
presence at some point on the landmass of Vietnam.'' \3\
---------------------------------------------------------------------------
    \3\ VA Op. Gen. Counsel Pree. 27-97 (1997).
---------------------------------------------------------------------------
    After lying dormant for a few years, this General Counsel's opinion 
was incorporated into a policy change that was published in the Federal 
Register during the last days of the Clinton Administration. \4\ The 
final rule was adopted in Federal Register in May of that year. \5\ The 
VA recognized the exposure presumption for the ``inland'' waterways but 
not for offshore waters or other locations.
---------------------------------------------------------------------------
    \4\ 66 Fed.Reg. 2376 (January 11, 2001).
    \5\ 66 Fed. Reg. 23166.
---------------------------------------------------------------------------
    Historically the VA's Adjudication guidance, the M21-l Manual, 
allowed the exposure presumption to be extended to all veterans who had 
received the Vietnam service medal, in the absence of ``contradictory 
evidence.'' In a February 2002 revision to the M21- l Manual, the VA 
incorporated the VA General Counsel Opinion and the May 2001 final rule 
and required a showing that the veteran has set foot on the land or 
entered an internal river or stream. This ``boots on the ground'' 
requirement is in effect today.
    One exception to this rule deals with Non-Hodgkin's Lymphoma (NHL). 
A punctuation difference in the regulation requires the inclusion of 
Blue Water Navy veterans. The VA General Counsel has ruled that all 
persons in the Center for Disease Control's (CDC) Selected Cancers 
Study, including Blue Water Navy (BWN) veterans, were presumed to be 
included in the definition of ``duty or visitation in Vietnam.'' \6\ 
The Secretary has never explained why Agent Orange exposure caused NHL 
in BWN veterans but that it did not cause the other diseases associated 
with the dioxin. This selective application is inexplicable.
---------------------------------------------------------------------------
    \6\ VAOPGCPREC 7-93, 1993.

---------------------------------------------------------------------------
                          Hydrological Effect

    The Agent Orange spray was mixed with petroleum. The mixture washed 
into the rivers and streams and discharged into the South China Sea. 
The riverbanks were sprayed continuously resulting in direct 
contamination of the rivers. The dirt and silt that washed into the 
river was clearly seen exiting the rivers and entering the sea. This is 
called a discharge ``plume'' and in the Mekong River it is 
considerable. Although the Mekong has a smaller drainage area than 
other large rivers, it has approximately 85% of the sediment load of 
the Mississippi. In two weeks, the fresh water of the Mekong will 
travel several hundred kilometers. \7\ Notably, Agent Orange dioxin 
dumped in the Passaic River in New Jersey made its way off the east 
coast of the United States and was found in fish over one hundred 
nautical miles from shore. \8\
---------------------------------------------------------------------------
    \7\ Chen, Liu et. al, Signature of the Mekong River plume in the 
western South China, Sea revealed by radium isotopes, JOURNAL OF 
GEOPHYSICAL RESEARCH, Vol. 115, (Dec. 2010).
    \8\ Belton, et. al, 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and 
2,3,7,8- Tetrachlorodibenzo-p-Furan (TCDF), In Blue Crabs and American 
Lobsters from the New York Bight, New Jersey Department of 
Environmental Protection (November 12, 1988).
---------------------------------------------------------------------------
    By coincidence, the baseline and territorial seas extend further 
from the mainland off the Mekong River. At its widest point off the 
Mekong, the territorial seas extend to 90 nautical miles from the 
mainland. This was due to the location of the barrier islands owned by 
Vietnam. Given the more pronounced effect of the Mekong plume, however, 
the broader area off the Mekong Delta is appropriate. The force of the 
water in this area is greater than the river discharge in other parts 
of the country.
    Eventually, the Agent Orange/petroleum mixture would emulsify and 
fall to the seabed. Evidence of Agent Orange impingement was found in 
the sea bed and coral of Nha Trang Harbor. This was determined by a 
study of coral deterioration in the harbor. \9\ Here the Vietnamese 
government contracted with Dr. Pavlov \10\ and his team to ascertain 
why the coral in the Nha Trang area was dying. Their conclusion was 
that the coral was dying from the effect of Agent Orange. The presence 
of the dioxin was confirmed
---------------------------------------------------------------------------
    \9\ Pavlov, et, al, Present-Day State of Coral Reefs of Nha Trang 
Bay (Southern Vietnam) and Possible Reasons for the Disturbance of 
Habitats of Scleractinian Corals, RUSSIAN JOURNAL OF MARINE BIOLOGY, 
Vol. 30, No. 1 (2004).
    \10\ Dr. Pavlov was affiliated with the Institute of Ecology and 
Problems of Evolution, Russian Academy of Sciences, Biological 
Department, Moscow State University and Russian-Vietnamese Tropical 
Center, Hanoi, Vietnam.
---------------------------------------------------------------------------
    Table 1 from this report (reproduced herein as Exhibit 2) shows the 
stations where the damage was verified in the coral as well as the 
stations where bottom sediment samples revealed the presence of the 
dioxin. The cross hatched section in the upper left hand quadrant shows 
the limit of Agent Orange spraying, encompassing part of the Kay River. 
The first station, station 50, is located in the Kay River seaward of 
the sprayed area. Bottom sediment samples, as reflected in Table 2 
(reproduced as Exhibit 3) show a significant toxic effect in the column 
entitled 1-TEQ, ng/kg. The stations in a direct path from Transects 
Band C, as shown in Table 1, have more significant toxic effect than 
other areas. Transects A and D are in the discharge paths of rivers 
that did not receive direct spraying. While the stations along these 
Transects do show lower levels of toxic exposure. This is more 
appropriate for rainwater runoff from sprayed areas rather than 
discharge from the Kay River which received direct spraying. While all 
four Transects showed definite Agent Orange infiltration, the exposure 
was greater along the discharge plume of the Kay River.
    The Pavlov study confirms the premise advanced by Military-Veterans 
Advocacy and hydrologists familiar with the Vietnamese River systems 
that the Agent Orange, which was mixed with petroleum, floated out to 
the harbors and the South China Sea from areas that were directly 
sprayed as well as rain water runoff into the inland waterways.
    Notably, the harbors and bays of Vietnam were not ``deep water'' 
ports, as depicted by the VA, but shallow water areas. Da Nang Harbor 
currently has a depth at the anchorage of 31-35 feet (http://
www.worldportsource.com/ports/portCall/VNM--Da--Nang--Port--1457.php 
(last visited August 16, 2015), although anecdotal information 
indicates it was dredged to 42 feet during the Vietnam War. The deepest 
point of Nha Trang Harbor is 32.7 meters or 107 feet. Most of the area 
is shallower. Destroyer sized ships normally drew 15-18 feet (depending 
on loadout) and could safely anchor up to a depth of 180-200 feet. 
These ships would churn up the seabed when entering and leaving the 
harbor and again when anchoring or weighing anchor. The emulsified 
Agent Orange would continue to be stirred up and would rise to the 
surface.
    During the Vietnam War, the coastline, especially in the harbors 
and within the thirty-fathom curve, was a busy place with military and 
civilian shipping constantly entering and leaving the area in support 
of the war effort. Whenever ships anchored, the anchoring evolution 
would disturb the shallow seabed and churn up the bottom. Weighing 
anchor actually pulled up a small portion of the bottom. The propeller 
cavitation from ships traveling at high speeds, especially within the 
ten-fathom curve, impinged on the sea bottom. The wakes left by small 
boats traveling from ships to the shore would also churn up the sea 
bottom. This caused the Agent Orange to constantly rise to the surface. 
The contaminated water was ingested into the ship's evaporation 
distillation system which was used to produce water for the boilers and 
potable drinking water. Navy ships within the South China Sea were 
constantly steaming through a sea of Agent Orange molecules.

           The Australian Factor and the Distillation Process

    In August of 1998 Dr. Keith Horsley of the Australian Department of 
Veterans Affairs met Dr. Jochen Mueller of the University of 
Queensland's National Research Centre for Environmental Toxicology 
(hereinafter NRCET) in Stockholm at the ``Dioxin 1998'' conference. 
Horsley shared a disturbing trend with Mueller. Australian VA studies 
showed a significant increase in Agent Orange related cancer incidence 
for sailors serving offshore over those who fought ashore. Based on 
that meeting, the Australian Department of Veterans Affairs 
commissioned NRCET to determine the cause of the elevated cancer 
incidence in Navy veterans.
    In 2002, as the American Department of Veterans Affairs (VA) was 
beginning to deny the presumption of exposure to the United States Navy 
veterans, NRCET published the result of their study. \11\ Their report 
noted that ships in the near shore marine waters collected water that 
was contaminated with the runoff from areas sprayed with Agent Orange. 
The evaporation distillation plants aboard the ships co-distilled the 
dioxin and actually enriched its effects. As a result of this study, 
the Australian government began granting benefits to those who had 
served in an area within 185.2 kilometers (roughly 100 nautical miles) 
from the mainland of Vietnam.
---------------------------------------------------------------------------
    \11\ Mueller, J; Gaus, C, et. al. Examination of The Potential 
Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated 
Dibenzodioxins And Polychlorinated Dibenzofurans Via Drinking Water 
(2002).

---------------------------------------------------------------------------
                  Institute of Medicine (IOM) Reports

    In June of 2008, Blue Water Navy representatives presented to the 
IOM's Committee to Review the Health Effects in Vietnam Veterans of 
Exposure to Herbicides (Seventh Biennial Update) in San Antonio, Texas. 
That Committee report \12\ accepted the proposition that veterans who 
served on ships off the coast of the Republic of Vietnam were exposed 
to Agent Orange and recommended that they not be excluded from the 
presumption of exposure. The Committee reviewed the Australian 
distillation report and confirmed its findings based on Henry's Law. 
The VA did not accept these recommendations. Instead then Secretary 
Shinseki ordered another IOM study. On May 3, 2010, Blue Water Navy 
representatives testified before the Institute of Medicine's Board on 
the Health of Special Populations in relation to the project ``Blue 
Water Navy Vietnam Veterans and Agent Orange Exposure.'' \13\ They 
concluded: (1) There was a plausible pathway for some amount of Agent 
Orange to have reached the South China Sea through drainage from the 
rivers and streams of South Vietnam as well as wind drift, (2) The 
distillation plants aboard ships at the time which converted salt water 
to potable water did not remove the Agent Orange dioxin in the 
distillation process and enriched it by a factor of ten, (3) Based on 
the lack of firm scientific data and the four decade passage of time, 
they could not specifically state that Agent Orange was present in the 
South China sea in the l 960's and 1970's, (4) There was no more or 
less evidence to support its presence off the coast than there was to 
support its presence on land or in the internal waterways and (5) 
Regarding the decision to extend the presumption of exposure ``given 
the lack of measurements taken during the war and the almost 40 years 
since the war, this will never be a matter of science but instead a 
matter of policy.'' Notably this report did not contradict the findings 
of the Seventh Biennial report that the Blue Water Navy personnel 
should not be excluded from the presumption of exposure.
---------------------------------------------------------------------------
    \12\ IOM (Institute of Medicine). 2009. Veterans and Agent Orange: 
Update 2008. Washington, DC: The National Academies Press.
    \13\ IOM (Institute of Medicine). 2011. Blue Water Navy Vietnam 
Veterans and Agent Orange Exposure. Washington, DC: The National 
Academies Press.
---------------------------------------------------------------------------
    The IOM's Eighth Biennial Update recognized that ``it is generally 
acknowledged that estuarine waters became contaminated with herbicides 
and dioxin as a result of shoreline spraying and runoff from spraying 
on land.'' \14\ The Ninth Biennial Update stated that'' it is generally 
acknowledged that estuarine waters became contaminated with herbicides 
and dioxin as a result of shoreline spraying and runoff from spraying 
on land, particularly in heavily sprayed areas that experienced 
frequent flooding.'' \15\
---------------------------------------------------------------------------
    \14\ IOM (Institute of Medicine). 2012. Veterans and Agent Orange: 
Update 2010. Washington, DC: The National Academies Press.
    \15\ IOM (Institute of Medicine). 2014. Veterans and Agent Orange: 
Update 2012. Washington, DC: The National Academies Press.

---------------------------------------------------------------------------
                          Harbor Water Barges

    In April of 2016, Military-Veteran Advocacy bought to the attention 
of former Chairman Jeff Miller the use of water barges in Vietnamese 
harbors, specifically Da Nang. These water barges furnished potable 
water, contaminated with the Agent Orange dioxin, to ships at anchor.
    Most Navy ships had limited potable water reserves. The potable 
water was used for drinking, laundry, cooking, cleaning and hygiene for 
the crew and other embarked personnel. When anchored in the harbors, 
ships tended to distill mainly to reserve feed water, used for the 
boilers, \16\ because of sanitation issues. Solid waste permeated the 
harbor both from the ships themselves, the shore establishment and 
indigenous residents of the area. Accordingly, distillation to potable 
water was discouraged. As a result, reserve potable water levels often 
fell below acceptable limits. This required periodic replenishment from 
military and commercial potable water barges.
---------------------------------------------------------------------------
    \16\ Since the same intake distillation and discharge system was 
used for reserve feed and potable water distillation, the entire system 
was contaminated by Agent Orange dioxin discharged into the harbors via 
the rivers. Emulsified Agent Orange that sank to the seabed was 
disturbed and rose to the surface by the cavitation effects of ships 
entering and leaving the harbor and by the anchoring evolutions.
---------------------------------------------------------------------------
    At least three self-propelled water barges YW 101, 126 and 128 were 
deployed to Vietnam. \17\ These barges were used frequently in Qui Nhon 
and Da Nang harbors. Their efforts were supplemented by commercial 
water barges.
---------------------------------------------------------------------------
    \17\ See: http://www.navsource.org/archives/14/17idx.htm
---------------------------------------------------------------------------
    In their monthly report, Commander Naval Forces Vietnam noted 
millions of gallons of potable water being delivered to anchored ships 
in any given month. These reports are available from the Naval 
Historical command. \18\ This water was obtained from an open-air 
reservoir on ``Monkey Mountain'' which overlooked Da Nang Harbor. The 
use of water from Monkey Mountain has been verified by Mary Ellen 
McCarthy, the former staff director of the Senate Veterans Committee. 
Notably this water was not only provided to anchored ships, but to 
ships moored to the piers.
---------------------------------------------------------------------------
    \18\ See: http://oai.dtic.mil/oai/
oai?verb=getRecord&metadataPrefix=html&identifier=ADA953613 and http://
www.history.navy.mil/content/dam/nhhc/research/archives/commander-
naval-forces- Vietnam/monthly-summaries-1967/July l967.pdf
---------------------------------------------------------------------------
    The entire area was frequently sprayed with Agent Orange because 
there was a communications facility and artillery spotters located on 
the mountain. The intent was to deny cover to enemy forces who might 
attack those facilities or use the mountain as a mortar location.

                             Law of the Sea

    Despite VA protestations to the contrary, the exclusion of the Blue 
Water Navy veterans from the presumption of exposure was never about 
science. The decision stems from an irrational, arbitrary and 
capricious finding of an incompetent General Counsel's office. The 
basis behind this deadly determination was an improper statutory 
interpretation, made in defiance of accepted principles concerning the 
law of the sea as well as international treaties signed and ratified by 
the United States. In defense of the General Counsel's office, 
Military-Veterans Advocacy believes the initial action was taken 
because of ignorance rather than maliciousness. Their unconscionable 
defense of a bad decision, however, has been nothing sort of abhorrent. 
The fact that an agency of the United States government would condemn 
tens of thousands of veterans to an early death to cover-up their error 
is despicable.

    The Agent Orange Act of 1991 provides that:

    ... [A] veteran who, during active military, naval, or air service 
in the Republic of Vietnam during the period beginning on January 9, 
1962, and ending on May 7,1975, and has ...[an enumerated disease] 
shall be presumed to have been exposed during such service to an 
herbicide agent containing dioxin ... unless there is affirmative 
evidence to establish that the veteran was not exposed to any such 
agent during service.

    38 U.S.C. Sec.  1116(a)(3). (Emphasis added).

    Vietnam claims a 12-mile territorial sea. The United States has 
consistently recognized Vietnamese sovereignty over the territorial 
seas of Vietnam. This recognition was expressly incorporated into the 
1954 Geneva Accords Art. 4 which established the Republic of Vietnam. 
\19\ It was confirmed again in Art. 1 of the 1973 Paris Peace Treaty 
which ended the Vietnam War. \20\ During the war, the United States 
recognized the Vietnamese 12 limit. \21\
---------------------------------------------------------------------------
    \19\ https://www.mtholyoke.edu/acad/intrel/genevacc.htm (last 
visited June 6, 2014).
    \20\ http://www.upa.pdx.edu/IMS/currentprojects/TAHv3/Content/PDFs/
Paris--Peace-- Accord--1973.pdf (last visited June 6, 2014).
    \21\ The Joint Chiefs of Staff and the War in Vietnam 1960-1968, 
Part II which can be found at dtic.mil/doctrine/.../jcsvietnam--pt2.pdf 
at 358.
---------------------------------------------------------------------------
    Vietnam claims as internal or inland waters the seas landward side 
of the baseline. \22\ Additionally, bays such as Da Nang Harbor are 
considered part of inland waters and under international law are the 
sovereign territory of the nation. \23\
---------------------------------------------------------------------------
    \22\ United States Department of State Bureau of Intelligence and 
Research, Limits in the Seas No. 99 Straight Baselines: Vietnam, 
(1983).
    \23\ Convention on the Territorial Sea and Contiguous Zone, [1958] 
15 U.S.T. 1607, T.I.A.S. No. 5639.
---------------------------------------------------------------------------
    The Secretary has recognized the presumption of exposure for those 
who served onboard ships who were in ``inland'' waters. The VA 
definition only includes inland rivers and does not cover the bays and 
harbors. Recently the Court of Appeals for Veterans Claims has rejected 
the VA's exclusion of Da Nang Harbor from the definition of inland 
waters as irrational and not entitled to deference \24\ in this case, 
the Court reviewed the case of a veteran whose ship was anchored in Da 
Nang Harbor but who did not set foot on land. As shown in Exhibit 4, Da 
Nang Harbor is surrounded on three sides by land and is considered 
inland waters under international law. The court required the VA to 
rationally specify what they consider to be inland waters. Instead in 
February of 2016 they doubled down on the exclusion without 
explanation. Military- Veterans Advocacy filed suit under the 
Administrative Procedures Act and 38 U.S.C. Sec.  502 to invalidate 
that regulation. Briefing is complete and the parties are scheduled for 
oral argument on May 5, 2017.
---------------------------------------------------------------------------
    \24\ Gray v. McDonald, No. 13 3339, 2015 WL 1843053, (Vet. App. 
Apr. 23, 2015).

---------------------------------------------------------------------------
         Attempt to Search for Dioxin Residue on Inactive Ships

    The staff of this sub-committee has sought to have the Navy 
investigate and test for the dioxin on ships that formerly served in 
Vietnamese waters. In May of 2016, Military-Veterans Advocacy contacted 
former Chairman Miller to discuss this matter. A follow up meeting in 
September of 2016 discussed the futility of this attempt.
    There is very little likelihood that any residue is present aboard 
any inactive ship. This is very different from the C-123 aircraft that 
were stored in the dry heat environment of the Arizona desert. Ships 
remain in the water which is very susceptible to temperature changes. 
These temperature changes cause condensation inside of the hull, 
especially in the engineering spaces which are located below the 
waterline. The humidity caused by this environment will have a 
completely different effect than the dry arid environment had on the 
tanks in the C-123.
    More importantly, the water distribution system, steam system and 
auxiliaries would have been continuously flushed after leaving 
Vietnamese waters. Ships continued to distill water for months, years 
and sometimes decades before they were decommissioned. The constant 
flow of water would have eventually removed the dioxin. Additionally, 
the internals of the distillation plant were removed on an annual basis 
for descaling and in later years sand blasting. The internal shell of 
the evaporator distillation equipment would be hand scraped to remove 
the scale that accumulated during operations. Boiler tubes were 
mechanically cleaned every 1800 hours of operation and in later years 
were water jetted with several thousand pounds of pressure. This was 
critical to maintaining purity and efficiency as the scale affected 
heat transfer. In boilers, the scale buildup could lead to catastrophe 
boiler tube failure.
    These ships were on a five-year overhaul cycle. The water 
distribution piping was located in the bilges and often suffered 
corrosion damage due to immersion in water, including salt water. It 
was normally inspected and if necessary replaced during the overhaul 
cycle. Distillation pumps were inspected quarterly and often 
refurbished on an annual basis. The water tanks were drained and 
cleaned to remove moisture. The tanks were inspected and if necessary 
the interiors were repainted. Most major equipment would be refurbished 
during that overhaul.
    Even more important, the Committee staff has not been able to 
assure Military-Veterans Advocacy that the ships under consideration, 
three aircraft carriers, even served in the territorial seas. If they 
did not, the relevance of this test is below any threshold of reason. 
Nor were these ships inactivated immediately after return. They appear 
to have had subsequent operations and deployments prior to 
decommissioning.
    A better study would be to take bottom sediment samples in the 
various Vietnamese harbors and in the territorial seas out to the 30-
fathom curve. That would of course require diplomatic clearances and it 
might spur a request for significant reparations from the Vietnamese 
government. It would also call into question the safety of Vietnamese 
seafood imported into the United States. Unlike the ship test, the 
bottom sediment examination would reveal tangible proof of the presence 
of dioxin.
    The ship test is an attempt to prove a negative. As a naval 
engineer with a mechanical engineering subspecialty, I can confirm that 
under these circumstances no residue will be found. This is an exercise 
in futility and a waste of governmental resources. It will have a 
predictable negative result which could be used by the VA or other 
opponents of this bill as a basis to question the proven science.

                             Cost of HR 299

    In October of 2012, the Congressional Budget Office provided a 
preliminary estimate that the Blue Water Navy Vietnam Veterans Act 
would cost $2.74 billion over ten years. After meeting with Military-
Veterans Advocacy, CBO re-scored the bill at $1.104 billion over ten 
years. (See preliminary score attached as Exhibit 5). Military-Veterans 
Advocacy estimates that approximately 90,000 veterans would be affected 
by this bill.
    Due to several unknowns, the CBO really cannot accurately score 
this bill and their estimate appears to be significantly higher than 
the actual cost. As a threshold matter, additional ships have been 
confirmed to have entered the Vietnamese river system. Once a ship's 
position in a river has been substantiated, everyone onboard on that 
date is covered by the presumption of exposure. MVA estimates another 
10% of the crews actually set foot in Vietnam. This includes crew 
members who went ashore for conferences, to pick up supplies, equipment 
or mail and those who piloted and crewed the boats and/or the 
helicopters that operated between the ships and shore. Additionally, 
some personnel went ashore to see the doctor, the dentist, the chaplain 
or the lawyer. They called home. They shopped at the PX and departed on 
emergency leave or permanent change of station orders. Additionally, 
men reporting to the ship would often transit though Vietnam. Finally, 
a number of ships that were at anchorage would send a portion of the 
crew ashore for beach parties or liberty. All of those veterans are 
covered under existing law if they can prove that they actually set 
foot in Vietnam.
    Some Blue Water Navy veterans, especially those who served for 20-
30 years, manifested symptoms while on active duty. They are 
automatically service-connected for those diseases and should not be 
considered in computing the cost of the bill.
    There will be a dollar for dollar offset for Navy veterans 
currently receiving a non-service connected pension. Additionally, 
under concurrent receipt laws, some veterans who are also military 
retirees will have a dollar for dollar offset due to waiver of their 
Title 10 pension (less federal tax liability).
    Additionally, the CBO preliminary estimate shows a slow up-ramp in 
dollars after the third year. Due to the accelerated death rate among 
Agent Orange victims, the number of veterans covered will be decreasing 
at a rate that outstrips inflation. While some money will have to be 
paid to survivors under the Dependent's Indemnity Compensation program, 
that is a mere 40% of the veteran's benefit.
    Additionally, as most Blue Water Navy veterans are in their 60's 
they are Medicare eligible or will become Medicare eligible during the 
ten-year cost cycle. In a previous report, the CBO has compared the 
cost of Medicare treatment with treatment at a VA facility. \25\ One of 
the key findings of this report was that private sector Medicare 
services would have cost about 21 percent more than services at a VA 
facility. When dealing with retirees, the cost would be greater since 
Medicare only provides coverage for 80% of the cost. Tricare for Life 
provides an additional 20% coverage for military retirees. Notably this 
estimate was issued prior to the Choice program so the savings may be 
less dramatic. Additionally, CBO admits that they made their decision 
based on old data because the VA failed to provide updated information. 
Still some savings in discretionary spending should be realized if HR 
299 is adopted.
---------------------------------------------------------------------------
    \25\ Congressional Budget Office, Comparing the Costs of the 
Veterans' Health Care System With Private-Sector Costs (December 2014)
---------------------------------------------------------------------------
    While HR 299 will require an expenditure of funds, many of the 
costs will be recoverable. The Blue Water Navy Vietnam Veteran 
Association analysis indicates a probable ten-year cost of $800 
million. MVA concurs with that estimate.
    It is possible that the cost picture will change dramatically. I 
have a meeting with Secretary Shulkin on April 21 concerning a 
rulemaking request to include both Da Nang and Nha Trang harbors. We 
also have our pending court case concerning the exclusion of all bays 
and harbors. If Secretary Shulkin grants our request or the court finds 
in our favor, tens of thousands of additional veterans would be covered 
under existing law. That will require the score to be revised downward. 
MVA estimates a ten-year cost of between $100 and $150 million if all 
of the bays and harbors are covered.
    MVA has proposed offsets in the past. We identified excessive 
mandatory spending in the VA Home loan program during the 113ttth 
Congress. Unfortunately, that money was used to partially fund the 
Veterans Access, Choice and Accountability Act. In the 114th Congress, 
MVA proposed the use of ``round downs'' to fund the bill. Our 
information was that ``round downs'' would generate $1.8 billion over 
ten years. Senator Sanders refused to go along with the ``round 
downs.'' Then we worked with the sponsors and the Senate Judiciary 
Committee to propose an increase in student visa fees. Senator Leahy 
chose to put the interests of foreign students ahead of veterans and 
withheld his consent.
    We believe offsets are a Congressional responsibility rather than a 
proponent's responsibility, but we have tried to do our part to work 
within the rules. We are at a loss to find an offset acceptable to all 
100 Senators. While a favorable decision from Secretary Shulkin or the 
federal court will reduce the problem, the requirement to produce an 
offset for mandatory benefits, earned as a result of wartime service, 
should be exempt from the offset requirements of the Pay As You Go Act 
of 2010 (PAYGO).
    The Blue Water Navy is not alone in being sacrificed on the altar 
of PAYGO. Other Agent Orange exposures have taken place in Guam, 
Thailand, Laos, Cambodia, Korea, Panama, Okinawa and other areas. 
Additionally, other toxic exposures have been identified including 
PCBs, mustard gas, asbestos, radiation, burn pits, Fort McClellan, 
depleted uranium and others have been negatively affected the health of 
veterans who were exposed while on active duty. Military-Veterans 
Advocacy estimates that the cost of benefits for all toxic exposures 
would be $20-25 billion over ten years. On May 20, 2017, victims of 
toxic exposure will gather on the National Mall to call attention to 
their plight in ``Operation Stand Together.'' We hope that the Sub-
Committee will send a representative.
    In today's budgetary world, Congress must decide whether they are 
willing to pay for service connected toxic exposure. One of the reasons 
why service connected benefits are necessary is that military personnel 
are not allowed to sue the government or its contractors for injuries 
caused by negligence that are incident to service. \26\ One of the 
basis for the adoption of this policy, known as the Feres doctrine, was 
the promise of generous disability benefits available to veterans for 
their service connected illnesses and disability. A failure to address 
these toxic exposures may result in a request for a judicial 
reconsideration of the Feres doctrine.
---------------------------------------------------------------------------
    \26\ Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 
(1950).
---------------------------------------------------------------------------
    President Trump has stated repeatedly that he wants to address the 
needs of the veterans community. In order to achieve this praiseworthy 
goal, a funding source must be identified. Congress has been stymied in 
adopting piecemeal approaches to offsets. In the case of the VA, there 
are no significant mandatory spending funds available without cutting 
benefits. Military- Veterans Advocacy proposes the establishment of a 
$10.00 annual ``Freedom Fee'' for all personal and cooperate tax 
returns except for those tax exempt entities organized under Sec.  501 
(c)(3) of the Internal Revenue Code. This should generate $2.5 billion 
per year for ten years. The fund must be dedicated to fund benefits for 
veterans exposed to toxic substances and to conduct research into the 
effect of those exposures. We recommend that the diversion of any funds 
raised by the ``Freedom Fee'' be prohibited absent a Presidential 
finding of necessity and the 2/3 vote of both Houses of Congress.

                            Partial Coverage

    Military-Veterans Advocacy is aware of some movement to provide 
partial relief. The suggestion often heard is to provide medical care 
but not compensation. While we understand that there may be a need for 
segmented coverage we recommend a different approach. Providing medical 
coverage only would cost $217 million of discretionary spending. It 
will not address the mandatory spending. While this would certainly 
provide some minor relief, it would be somewhat illusionary. Most of 
our Blue Water Navy veterans are Medicare eligible. While it is true 
Medicare only covers 80% of the costs, many veterans have supplemental 
plans.
    Additionally, as stated earlier, CBO has also estimated a higher 
cost for Medicare reimbursement than treatment at the VA hospitals. 
Perhaps more important, many of our veterans are below the income 
threshold for nonservice connected treatment. They are receiving the 
treatment already, albeit at a lower priority.
    More importantly, the Blue Water Navy veterans have been treated as 
second class veterans for the past fifteen years. While any assistance 
is appreciated, Military-Veterans Advocacy urges the Congress to 
recognize these veterans as deserving the same level of respect as 
their ground force and brown water brothers and sisters.
    Although Military-Veterans Advocacy does not support the concept of 
partial coverage, if financial constraints require such a segmented 
approach, we recommend it be done on a geographical basis. Nha Trang 
Harbor should be the first area covered since we know that toxic levels 
of Agent Orange were present there 20 years after the war ended. The 
next priority would be ships anchored in harbors when a water barge 
using contaminated water can be confirmed to have come alongside. The 
third priority should be the remainder of ships anchored in Da Nang 
Harbor because of the dumping by the C-123s as they approached the 
airfield and the numerous canals and ditches that ran from the airport 
into the harbor. The fourth priority should be the remaining bays and 
harbors. The next priority should be the remainder of the territorial 
seas.
    Any decision on partial coverage should be held in abeyance until 
such time as Secretary Shulkin acts on our rulemaking request and the 
court has ruled on our pending court action. Either or both of these 
activities could significantly affect the scope of the coverage and its 
associated cost.

                      Common VA Misrepresentations

    The VA has consistently opposed the expansion of the presumption of 
exposure. Whether it is a reluctance to admit an error or other 
bureaucratic arrogance is unknown, but they have invariably 
misrepresented the facts surrounding this issue. They have even come 
before Congress and fabricated their testimony. As a result, tens of 
thousands of veterans have died without the compensation and care that 
they have earned. Additionally, the spouses of veterans were forced to 
leave the work force early to nurse sick husbands suffering from the 
ravages of Agent Orange. Many of these survivors have been left 
destitute. Since it may not be possible to address all of the VA 
disingenuous confabulations, I have repeated some of their most common 
fallacies.

    Some common misrepresentations are as follows:

    Misrepresentation: The Australian distillation study was never peer 
reviewed.
    MVA Comment: The report was presented for review at the 21st 
International Symposium on Halogenated Environmental Organic Pollutants 
and POPs and is published in the associated peer reviewed conference 
proceedings: Muller, J.F., Gaus, C., Bundred, K., Alberts, V., Moore, 
M.R., Horsley, K., 2001. It was also reviewed and confirmed by two 
separate committees of the IOM. Its findings were accepted by the 
Australian government.

    Misrepresentation: There is no evidence that the evaporation 
distillation process used by the Australians was the same as used on 
United States ships.
    MVA Comment: All steam ships used a similar system which remained 
in place until the 1990's. In addition, many of the Australian gun 
ships were the United States Charles F. Adams class and were built in 
the United States. Both the MVA Executive Director and another 
experienced Navy Chief Engineer have reviewed the Australian report. 
They concluded the distillation systems therein were the same as used 
by U.S. ships.

    Misrepresentation: There is no evidence that Navy ships distilled 
potable water.
    MVA Comment: Ships carried a reserve of potable water but it was 
normally replenished by distillation daily or every other day. A 
Destroyer sized ship carried less than 20,000 gallons for a crew size 
between 275 and 300 men. The water was used for cooking, cleaning, 
laundry, showering and drinking. As Vietnam is in the tropics, 
significant hydration was necessary. In addition, the warmer sea 
injection temperature below the 17th parallel resulted in less 
efficient water production. Water hours, where showers were limited or 
banned, was common during tropical deployments. Water was constantly 
being distilled to meet the requirements for boiler feed water and 
potable water.

    Misrepresentation: The Australian study monitored the reverse 
osmosis system rather than the evaporation distillation system used on 
U. S. ships.
    MVA Comment: The only time that the reverse osmosis system was used 
in the Australian study was to purify the baseline sample prior to 
adding the solids and sediments consistent with the estuarine waters of 
Vietnam. The actual distillation process, as confirmed above, was the 
same distillation system used by U. S. Ships.

    Misrepresentation: The IOM found more pathways of Agent Orange 
exposure for land based veterans than those at sea.
    MVA Comment: Technically this is true but irrelevant. The IOM noted 
that discharges from rivers and steams was a pathway unique to the Blue 
Water Navy and that it was one of the plausible pathways of exposure. 
The number of possible pathways is not determinative. What is 
conclusive is that pathways of exposure existed.
    Misrepresentation: The IOM could not quantify any Agent Orange in 
the water.
    MVA Comment: This again is a red herring. Any amount of exposure 
can do damage to the human body. The IOM also found that the 
evaporation distillation process enriched the dioxin by a factor of 
ten. This is consistent with Australian studies showing a higher cancer 
incidence among Navy veterans and a Center for Disease Control study 
showing a higher incidence of Non-Hodgkin's Lymphoma among Navy 
veterans. Additionally, measurements of the dioxin found in Nha Trang 
Harbor have been repeatedly provided to the VA The VA has ignored this 
evidence.

    Misrepresentation: Ships operating hundreds of miles off shore who 
were not exposed will be given the presumption of exposure.
    MVA Comment: Not true. This bill applies only to the territorial 
seas which at their widest point off the Mekong extends out to 90 
nautical miles from the mainland. In the central and northern part of 
the Republic of Vietnam, the territorial seas would only extend 20-30 
nautical miles from the mainland.

    Misrepresentation: Submarines would come into the area to obtain 
the Vietnam Service Medal for their crews and would be eligible for the 
presumption.
    MVA Comment: One ballistic missile submarine the USS Tecumseh, SSBN 
628 did enter the VSM area for that purpose but there is no indication 
that they entered the territorial seas. Submarines operating off of 
Haiphong or near Hainan Island would not have been within the 
territorial seas and are not covered by H.R. 299.

    Misrepresentation: No Agent Orange was sprayed over water.
    MVA Comment: Not true. MVA is in possession of statements from 
witnesses that ships anchored in Da Nang Harbor were inadvertently 
sprayed as the ``Ranch Hand'' planes made their approach to the 
airfield. Additionally, there are anecdotal reports of defective spray 
nozzles resulting in spray over the ships at anchor or operating in the 
South China Sea. Finally, the IOM recognized that the offsetting winds 
would blow some spray intended for the landmass over water.

    Misrepresentation: Navy regulations prevented ships from distilling 
water within ten miles of land.
    MVA Comment: This statement was taken out of context from a 
preventive medicine manual and was not a firm requirement. Ships were 
encouraged to not distill potable water near land because of the 
possibility of bacteriological contamination. Commanding Officers could 
allow potable water to be distilled close to land and often delegated 
that authority to the Chief Engineer. The IOM noted that the 
recommendation contained in the manual was widely ignored. More 
importantly, the recommendations in the manual did not apply to the 
distillation of feed water for use in the boilers. Since the same 
equipment was used for potable water, distillation to feed water would 
contaminate the entire system down to the final discharge manifold. 
Additionally, feed water used in auxiliary systems was discharged to 
the bilges via low pressure drains. Crew members would also be exposed 
to Agent Orange residue while cleaning and inspecting the watersides of 
boilers and the steam sides of condensers as well as other equipment.
    Additionally, when potable water was not distilled, water barges 
were used to furnish contaminated water to anchored ships.

    Misrepresentation: The IOM confirmed that there was no likelihood 
of exposure to herbicides in Da Nang Harbor.
    MVA Comment: The court in Gray v. McDonald, took the VA to task for 
this statement noting that this was not the conclusion of the IOM.
    Misrepresentation: There is no evidence that the dioxin entered the 
bays, harbors and territorial seas.
    MVA Comment: This is simply not true. Toxic levels were found in 
Nha Trang Harbor. Additionally, numerous drainage ditches and canals 
ran from the Da Nang airfield, where the planes were washed down and 
the spray tanks washed out, to the river and harbor.
    There are also anecdotal stories of the C-123s dumping excess spray 
as they approached the air field. That flight path often came over the 
harbor. Given the offsetting winds, it is probable that some portion of 
the spray was blown out to the harbor and the seas beyond.

                      Conclusion concerning HR 299

    MVA urges the adoption of HR 299. It will restore the earned 
benefits to tens of thousands of Navy veterans that were taken from 
them over a decade ago. This bill is supported by virtually all 
veterans organizations including the American Legion, The Military 
Coalition, Veterans of Foreign Wars, Vietnam Veterans of America, 
Reserve Officers Association, Fleet Reserve Association, Military 
Officers Association of America, Association of the U.S. Navy and other 
groups. Enactment of this legislation is overdue and Military-Veterans 
Advocacy most strongly supports its passage.

                                H.R. 105

    While Military-Veterans Advocacy supports the concept, that 
veterans should be reimbursed for financial fraud on the part of a 
fiduciary, we do not believe HR 105 is the proper avenue. This bill 
would effectively make the Department an insurer for the fiduciaries. 
While the pertinent statute does call for recoupment, such an effort 
may be ineffective and result in an unnecessary burden on the 
Secretary. Collection will require the allocation of money and the 
expenditure of significant employee time to collect what may be a small 
debt.
    A better approach is to require the fiduciary to obtain a bond in 
the amount of benefits to be awarded annually. The Secretary can 
promulgate a listing of approved bond companies and update that listing 
periodically. The Secretary can also pay the cost of the bond from the 
fee claimed by each fiduciary. This bond should also apply to cases 
where the Secretary was negligent in investigating allegations of 
fraud. The application of the bond to the latter situation will recover 
money that would otherwise be expended pursuant to 38 U.S.C. Sec.  
6107.

                               H.R. 1328

    Military-Veterans Advocacy supports H.R. 1328. This bill will allow 
an automatic increase in COLA based on the Social Security Act. 
Enactment of this bill will streamline the process and eliminate the 
need for a separate bill each year.

                               H.R. 1329

    Military-Veterans Advocacy concurs with the cost of living 
increase.

                               H.R. 1390

    Military-Veterans Advocacy supports this bill. The cost is minimal 
and is outweighed by assuming the financial burden that would otherwise 
be placed on the veteran's survivors.

                               H.R. 1564

    Military-Veterans Advocacy supports this bill.

             Quicker Veterans Benefits Delivery Act of 2017

    Military-Veterans Advocacy supports this bill. This bill makes good 
sense. There is no need to duplicate the efforts of qualified medical 
professionals. In many cases, the VA doctors performing Compensation 
and Pension examinations are not board certified in the pertinent 
specialty. The evidence of qualified non-VA doctors should be accepted 
into evidence. There is no need to duplicate the evidence.
    Thank you for allowing Military-Veterans Advocacy to testify on 
this matter.

    John B. Wells
    Commander, USN (Retired)
    Executive Director

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