[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]



                        LEGISLATIVE HEARING ON: 
                        H.R. 705; AND H.R. 4562

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






                                HEARING

                               before the

                     COMMITTEE ON VETERANS' AFFAIRS

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         TUESDAY, JULY 18, 2023

                               __________

                           Serial No. 118-26

                               __________

       Printed for the use of the Committee on Veterans' Affairs 
       
               
               
               
                            
               
               
               
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                    Available via http://govinfo.gov 
                                 ______ 
                                 
                   U.S. GOVERNMENT PUBLISHING OFFICE 
                   
53-171                     WASHINGTON : 2024 
















                    
                    
                    
                     COMMITTEE ON VETERANS' AFFAIRS

                     MIKE BOST, Illinois, Chairman

AUMUA AMATA COLEMAN RADEWAGEN,       MARK TAKANO, California, Ranking 
  American Samoa, Vice-Chairwoman      Member
JACK BERGMAN, Michigan               JULIA BROWNLEY, California
NANCY MACE, South Carolina           MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana   CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa       FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina    SHEILA CHERFILUS-MCCORMICK, Florida
C. SCOTT FRANKLIN, Florida           CHRISTOPHER R. DELUZIO, Pennsylvania
DERRICK VAN ORDEN, Wisconsin         MORGAN MCGARVEY, Kentucky
MORGAN LUTTRELL, Texas               DELIA C. RAMIREZ, Illinois   
JUAN CISCOMANI, Arizona              GREG LANDSMAN, Ohio
ELIJAH CRANE, Arizona                NIKKI BUDZINSKI, Illinois
KEITH SELF, Texas                    
JENNIFER A. KIGGANS, Virginia        

                       Jon Clark, Staff Director
                  Matt Reel, Democratic Staff Director 
                  
                  
                  

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















                         C  O  N  T  E  N  T  S

                              ----------                              

                         TUESDAY, JULY 18, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Mike Bost, Chairman................................     1
The Honorable Mark Takano, Ranking Member........................     1

                               WITNESSES
                                Panel 1

Mr. Ron Burke, Deputy Under Secretary, Policy & Oversight, 
  Veterans Benefits Administration, U.S. Department of Affairs...     5

        Accompanied by:

    Mr. Kevin Friel, Deputy Director, Pension & Fiduciary 
        Services, Veterans Benefits Administration, U.S. 
        Department of Veterans Affairs

    Mr. Dave Barrans, Chief Counsel, Benefits Law Group, Office 
        of General Counsel, U.S. Department of Veterans Affairs

                                Panel 2

Mr. Jeffrey Swanson, Ph.D., Professor in Psychiatry and 
  Behavioral Sciences, Duke University School of Medicine........    28

Mr. Bob "Shoebob" Carey, Captain U.S. Navy (Ret), Chairman and 
  Chief Bottle Washer, National Defense Committee................    29

Mr. Cole Lyle, Executive Director, Mission Roll Call.............    31

Ms. Kristina Keenan, Deputy Director for National Legislative 
  Service, Veterans of Foreign Wars of the United States.........    33

                                APPENDIX
                    Prepared Statements Of Witnesses

Mr. Ron Burke Prepared Statement.................................    45
Mr. Jeffrey Swanson, Ph.D. Prepared Statement....................    49
Mr. Bob "Shoebob" Carey Prepared Statement.......................    62
Mr. Cole Lyle Prepared Statement.................................    80
Ms. Kristina Keenan Prepared Statement...........................    81 

 
                        LEGISLATIVE HEARING ON:
                        H.R. 705; AND H.R. 4562

                              ----------  
                             
                         TUESDAY, JULY 18, 2023

                          Committee on Veterans' Affairs
                                U.S. House of Representatives
                                                   Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
360, Cannon House Office Building, Hon. Mike Bost (chairman of 
the committee) presiding.
    Present: Representatives Bost, Rosendale, Miller-Meeks, 
Murphy, Van Orden, Self, Takano, Brownley, Pappas, Mrvan, 
Cherfilus-McCormick, Deluzio, Ramirez, and Budzinski.
    Also present: Representative Stefanik.

            OPENING STATEMENT OF MIKE BOST, CHAIRMAN

    The Chairman. I am glad to be here today to consider my 
bill, H.R. 705, the Veterans 2nd Amendment Protection Act and 
Ms. Stefanik's bill, H.R. 4562, the Ernest Peltz Accrued 
Benefits Act. I will be recognizing myself to speak on H.R. 705 
in a moment. I do want to give my support to the goals and 
ideas of H.R. 4562. The pension benefit is one that many 
families rely on to pay for expenses and it does not make sense 
to cut these benefits off the month before the veterans pass. I 
look forward to working with Ms. Stefanik and others to find 
appropriate offsets for the bill.
    I would like to welcome all of the witnesses here today to 
testify on these two bills. I am looking forward to a 
thoughtful and healthy discussion on the legislation before us. 
I also ask unanimous consent when she arrives, our colleague, 
Ms. Stefanik of New York, to be allowed to sit and ask from the 
dais to question the witnesses of today's hearing. Hearing no 
objection, so ordered. I now yield to Ranking Member Takano for 
any open remarks he may have.

        OPENING STATEMENT OF MARK TAKANO, RANKING MEMBER

    Mr. Takano. Well, thank you Chairman Bost and thank you to 
all our witnesses for being here today. Speaking to H.R. 705, I 
have to say that this bill is ill-conceived and unwarranted at 
best, and potentially dangerous to veterans and beneficiaries 
at worst. My Republican colleagues have once again eschewed 
evidence-based, data-driven policymaking, and have instead 
embraced unnecessarily partisan legislation, or legislating, 
based on anecdote and soundbite.
    The title of the bill is a case in point. Being provocative 
from the start prevents us from having a real conversation 
about real and important policy, policy that saves lives. 
Republicans have failed to clearly identify or quantify the 
alleged problem they are attempting to address. They have yet 
to even figure out what their preferred statutory change is. In 
fact, we have been told that the legislation we have before us 
today is not the version that will move to markup after this 
hearing. That version has yet to be seen and will not have been 
vetted by the members of this committee, Veterans 
Administration (VA), Veteran Service Organizations (VSOs), and 
other stakeholders prior to the proposed committee action next 
week. It is clear that my colleagues have spurned any attempts 
at sincere bipartisan discussion on the issue at hand and have 
entrenched themselves in tired and false arguments about the 
rights of veterans somehow being at risk when there could be 
nothing further from the truth.
    First, I would like to address the idea that veterans are 
declining to seek mental healthcare for fear that VA will 
confiscate their firearms or prevent them from purchasing new 
ones. I have no doubt whatsoever that this fear is real among 
veterans and does serve as an impediment to seeking care. We 
have all heard that charge. However, the failure of my 
colleagues to condemn and counter the misinformation that leads 
to such a sentiment among veterans is as infuriating as it is 
damaging. I know, as does everyone on this committee and among 
the VSOs, that however real that fear is, it is also unfounded. 
Under no circumstances does VA ever confiscate anyone's 
firearms, and let me be clear about this, under no 
circumstances does VA ever confiscate anyone's firearms.
    Seeking mental healthcare from the Veterans Health 
Administration (VHA) will not result in your firearms being 
taken away. VA does not have the legal authority to do so. Only 
under a very discrete set of circumstances and for a very 
discrete population does the Veterans Benefits Administration 
(VBA) report veterans to the National Instant Criminal 
Background Check System (NICS). VHA never does.
    I asked my colleagues, and I asked the VSOs, what is your 
response to the veteran who expresses fear their firearms will 
be restricted? If it is anything other than an unequivocal, 
that is not true, go get help, then you are perpetuating that 
stigma. This bill traffics in that same disinformation. It is a 
deliberate attempt to scare veterans and that scaring is what 
is doing the real harm.
    Now, moreover, with respect to the protection of a 
beneficiary's Second Amendment rights, there are no less than 
six avenues already available to a claimant for redress. How 
many more layers of government bureaucracy are my colleagues 
suggesting that we add according to data from VA? These are the 
six avenues right behind me. Most of those avenues for redress 
not even are even widely used by claimants. We have not seen 
claimants use these six avenues.
    In fact, in fiscal 22, only 135 claimants out of roughly 
22,000 who were newly assigned a fiduciary appealed the 
incompetency determination and only 33 sought relief from NICS 
reporting. Adding more layers to the six we already see here to 
this process I think is unnecessary.
    A second argument I would like to address is the charge 
that the claims adjudication process is inadequate to discern 
between those who require a fiduciary because they are bad at 
math and those who have a mental illness or a condition that 
makes them a danger to themselves or others. In many ways, that 
distinction is immaterial. In general, it is clear that the 
fiduciary process does serve as an adequate proxy determination 
for potential dangerousness. It is important to acknowledge 
that there are significant data gaps that exist related to the 
population of beneficiaries in the fiduciary program. H.R. 705, 
by the way, addresses none of those data gaps, which is one of 
its many flaws.
    Here are some of what we do know. Among beneficiaries 
assigned a fiduciary because of a mental health condition, the 
most common conditions are as follows: schizophrenia, 36.5 
percent, traumatic brain injury, 31.2 percent, Post-Traumatic 
Stress Disorder (PTSD), 22.3 percent, bipolar disorder and 
dementia, 10 percent. Mr. Chairman, all these disorders are 
associated with elevated risks of dangerousness to self or 
others. Suicide in particular, as are a host of other factors 
that are actually concentrated in the veterans population.
    Moreover, we also know empirically that veterans who are 
found to have poor financial management abilities are also two 
times as likely to have substance use disorders, suicidal 
ideation, engage in violent behavior, and be in the justice 
system. Drawing a distinction between those who simply cannot 
balance their check book and those who are more explicitly 
dangerous to themselves or others is not warranted and in fact 
could cause more veterans to slip through the cracks.
    Mr. Chairman, suicide prevention has been VA's highest 
clinical priority for years. It is a priority I share with 
countless others on this committee and the VSO community. I am 
not questioning anyone's sincerity in wanting to prevent 
veteran suicide, but going back to data driven, evidence-based 
policymaking, here is what we know for certain. Firearms are 
used in over half of suicide attempts nationally. Number two, 
suicide attempts using firearms are lethal in over 85 percent 
of cases. Three, firearms account for 70 percent of male 
veteran suicides, and 50 percent of female veteran suicides. 
Veterans, number 4, are three times more likely to die by 
suicide than the general population. It begs the question, if 
we all care so deeply about preventing what is clearly an 
epidemic among veterans of death by suicide using a firearm, 
why would we pursue a bill which addresses no clearly defined 
problem. The only clear result of which would be the removal of 
a safeguard that puts more guns in the hands of the most 
vulnerable beneficiaries VA has. The answer, as I alluded to 
earlier, is simply this, it is politics. Mr. Chairman, I yield 
back.
    The Chairman. I thank the ranking member. I do not 
necessarily agree with everything he said, but we have two 
panels before us today, so I will be holding myself to a 5-
minute speak on my bill. Now, I recognize myself for 5 minutes.
    You know, I am proud to have introduced my bill, H.R. 705, 
the Veterans 2nd Amendment Protection Act again this Congress. 
My bill would prohibit VA from sending a veteran's name to the 
Federal Bureau of Investigation's (FBI's) National Instant 
Criminal Background Check System, or NICS list, unless there is 
first a determination by a judge or a court, like anyone else 
who is not a veteran, that says that person could be a harm to 
themselves or others.
    In some cases, VA will appoint a fiduciary to a veteran or 
a VA beneficiary to help them manage their VA benefits. The 
appointment of the fiduciary does not, I will say it and repeat 
it, does not indicate the person is dangerous or mentally ill. 
It is about their ability to manage their financial benefits. 
Hundreds of thousands of Americans, including veterans, have 
fiduciaries. When it comes to our veterans, the minute the VA 
appoints a fiduciary, that veteran's name is automatically sent 
to NICS. When the ranking member says that the VA does not take 
their guns away, they do not. They report them to NICS, and 
then their guns are taken away by another agency. The veteran 
is now prohibited from purchasing a firearm based on the 
decisions of the VA employees, not a court's finding.
    My message remains simple. VA should not be able to take 
away a veteran's Second Amendment rights because they need help 
managing their benefits. Veterans should not be treated any 
different than every other American citizen. Even criminals 
have to be convicted of a crime in a court of law before their 
names are reported to NICS. Let me say that again. Even 
criminals have better due process rights than the men and women 
who fought to protect our constitutional rights in the first 
place. Veterans are not being reported to NICS for much less 
than this unjust practice. This unjust practice must end.
    A little over 8,000 U.S. veterans and beneficiaries have 
been reported to NICS since the beginning of last year alone, 
8,000. Why are our veterans losing one of their constitutional 
rights because they need help managing their VA benefits? You 
might be thinking, surely VA that they do additional screening 
with a psychologist, a doctor, a therapist, the veteran's 
family, or anyone else for that matter, before they turn them 
over to the NICS. They do not. It is unacceptable. We know that 
practice creates a stigma around getting veterans into VA to 
get the care and services they have earned. That might not 
happen if you are from a city and you are not using your Second 
Amendment rights on a regular basis. It does happen if you are 
from flyover country.
    I have been hearing from veterans across the country for 
years, and it is time it stops. We should be breaking down 
barriers when our veterans are telling us why they would not go 
to the VA, not standing idle like our hands are tied. My 
legislation is not about guns on demand. It would add one step 
so the veteran can have their day in court before they lose 
their constitutional right, as any American should expect, 
which is something we should all care about. I want to thank 
Mission Roll Call, the National Defense Committee, Veterans of 
Foreign Wars (VFW), the American Legion for their support. 
Together, you have represented millions of veterans' voices 
nationwide.
    Once again, this bill is not about guns on demand, but 
about due process and the Constitution, which is the bedrock of 
our Republic. In my life, I tried to count it up this morning, 
how many times I raised my hand and took an oath to uphold and 
defend the Constitution of this United States. Whether it was 
as a member of the armed services, whether it was an elected 
local official, whether it was a state elected official, or 
whether it has been here in Congress. I am going to do just 
that because what we are doing right now and the reason I am 
carrying this bill to what we are doing for veterans who are 
seeking help is unconstitutional. There is no due process. I 
look forward to hearing comments and having input and having a 
debate over this.
    Now, I will yield back the balance of my time and I will 
now invite our first panel of witnesses to the table, which 
they are already there. Testifying before us today, we have Mr. 
Ron Burke, Deputy Undersecretary of Policy and Oversight at the 
Veterans Benefits Administration for the U.S. Department of 
Affairs. He is accompanied by Kevin Friel, Deputy Director of 
Pension and Fiduciary Services at the Veterans Benefit 
Administration for the Department of Veterans Affairs, and Mr. 
Dave Barrans, Chief Counsel of the Benefits Law Group in the 
Office of the General Counsel at the Department of Veterans 
Affairs. I ask the witnesses if they would please stand and 
raise your right hand.
    [Witnesses sworn.]
    Thank you very much. Let the record reflect that the 
witnesses have answered in the affirmative. Mr. Burke, I now 
recognize myself for 5 minutes for, or I am sorry, I recognize 
you for 5 minutes to give your testimony.

                     STATEMENT OF RON BURKE

    Mr. Burke. Chairman Bost, Ranking Member Takano, and other 
members of the committee, thank you for inviting us here today 
to discuss pending legislation which would affect the 
Department of Veterans Affairs programs and services. Joining 
me today are Dave Barrans, Chief Counsel, Benefits Law Group, 
Office of General Counsel, and Kevin Friel, Deputy Director, 
Pension and Fiduciary Service.
    Mr. Chairman, I will highlight both bills in my opening 
statement. We have provided detailed comments in the full 
testimony describing areas of concern that VA has on both 
pieces of legislation. At VA, we believe that veterans, their 
families, and survivors have earned and sacrificed for our 
country, and now it is our job to care for them. With these 
principles in mind, VA opposes H.R. 705, the Veterans 2nd 
Amendment Protection Act. VA appreciates the Committee's focus 
on veterans Second Amendment and due process rights. However, 
we do not support a bill that would conflict with existing 
statutory reporting requirements of the Brady Handgun Violence 
Prevention Act, otherwise known as the Brady Act. In accordance 
with Bureau of Alcohol, Tobacco, Firearms (ATF) regulations and 
Department of Justice (DOJ) guidance, VA reports all 
individuals determined unable to manage their VA benefit funds. 
Such a determination must be based on definitive medical 
evidence that is clear, convincing, and leaves no doubt as to 
the person's inability to manage their financial affairs. Once 
a proposal of incompetency is finalized, VA notifies the 
beneficiary orally and in writing and reports the necessary 
information to NICS. When notifying the beneficiary of the 
determination, VA provides information on how to request relief 
from Brady Act restrictions. When deciding a request for 
relief, VA considers not only the beneficiary's individual 
rights, but also the safety of the beneficiary, their family, 
and the community.
    In addition to complying with Federal law, VA is reporting 
to DOJ as a matter of veteran safety, which is of utmost 
concern to VA. In fact, VA's top clinical priority is veteran 
suicide prevention, utilizing a whole-of-VA approach that 
integrates strategic planning, program operations, and program 
evaluation across VA. Scientific research shows that mental 
health is one clear risk factor for suicide, and use of a 
firearm in a suicide attempt significantly reduces the chance 
of survival. Veterans are significantly more likely than 
civilians to use firearms as a suicide method with an extremely 
high lethality rate of 90 percent. When firearm access is 
denied, only one out of five would-be gun suicide attempts 
later died from suicide by substituting another lethal method. 
It is VA's mission to care for our veterans and their families, 
and the removal of the required reporting of veterans to DOJ 
would run counter to this.
    VA also opposes the Ernest Peltz Accrued Veterans Benefits 
Act. This bill would result in different discontinuation dates 
and therefore disparate treatment between beneficiaries in 
receipt of pension based on existing rating or decision and 
beneficiaries in receipt of compensation or dependency and 
indemnity compensation. For beneficiaries in receipt of pension 
based on an existing rating or decision, the discontinuance 
date would be the last day of the month of death. For 
beneficiaries in receipt of compensation or DIC, the 
discontinuation date would be the last day of the month before 
death.
    Further, the bill would create incongruity as it relates to 
the month of death benefit by functionally eliminating that 
benefit in certain circumstances for surviving spouses of 
veterans in receipt of pension, while the month of death 
benefit for the surviving spouse of a veteran in receipt of 
compensation would remain unchanged. This would result in 
disparity between beneficiaries in equivalent situations aside 
from the benefit type the veteran happened to be receiving at 
the time of his death.
    VA is continuously working to deliver earned benefits to 
veterans and their survivors more effectively and efficiently. 
Unfortunately, this bill would result in a change in processing 
that would introduce automation and program limitations. These 
limitations will slow down the receipt of the month of death 
benefit and as such be detrimental to the surviving spouse on 
file at the time of the veteran's death. A surviving spouse who 
would have been able to benefit from expedited processing of a 
month of death benefit will be disadvantaged by the processing 
impacts of this bill. Surviving spouses of veterans in receipt 
of pension at the time of death would have to file for, and be 
found entitled to, accrued benefits in order to receive the 
veteran's payment previously paid separately as the month of 
death benefit. In contrast, the current month of death benefit 
may be paid automatically to the spouse on file and does not 
require that that spouse file a claim.
    Across VA, we are committed to providing the high-quality 
care our veterans have earned and deserve. We continue to 
improve services to meet the needs of our veterans and 
families. We are grateful for the resources that Congress has 
provided to VA and pledge to do all that we can to ensure they 
are used as effectively as possible. Thank you for the 
opportunity to appear before you today. We look forward to 
working with you on this and future legislation. Mr. Chairman, 
this concludes my statement. My colleagues and I are prepared 
to respond to any questions you or other members of the 
committee may have.

    [The Prepared Statement Of Ron Burke Appears In The 
Appendix]

    The Chairman. Thank you, Mr. Burke. Now, we want to go to 
questions, and I would like to recognize myself for 5 minutes 
to start this off. Mr. Burke, can you please explain to me why 
the VA is the only Federal agency that reports citizens to NICS 
without finding them a danger to themselves or others?
    Mr. Burke. Yes, sir. I can share that we are simply 
complying with Federal law. It is VA's intent to comply with 
Federal law and regulations and ensure that we are putting the 
safety of veterans first. Veteran safety is an extremely high 
priority for us, and we are simply complying with Federal law.
    The Chairman. Okay. Then I need to ask the whole panel, or 
you, if you want to answer, and I just need a yes or no. Do you 
believe that everyone that has a fiduciary is a danger to 
themselves or others?
    Mr. Burke. I do not believe that everybody that has a 
fiduciary is a danger to others.
    The Chairman. Okay. Can you explain to me how the 
determination of incompetent for VA purposes is linked to being 
a danger to themselves or others?
    Mr. Burke. Basically the determination of a finding of 
incompetency, which leads to us reporting to NICS is one that 
is based on clear and conclusive evidence that the veteran is 
unable to manage his or her funds. That definition is the same 
definition adopted by DOJ in their determinations. We do not 
have a compliance or an enforcement arm here. We simply have a 
reporting requirement----
    The Chairman. I understand that.
    Mr. Burke [continuing]. that we comply with.
    The Chairman. I understand that. You turn it over to the 
people that do have the enforcement arm.
    Mr. Burke. In comply----
    The Chairman. Correct?
    Mr. Burke. Yes, sir. In compliance with Federal rules.
    The Chairman. I mean, we are not disagreeing on the fact--
what we are disagreeing on here is the fact that a 
constitutional right is not being secured for our veterans and 
can be taken away by a bureaucrat's ruling. That is a problem. 
Any other person in this Nation, besides a veteran, can go and 
receive a fiduciary. They are having trouble with their 
finances at home, they can receive a fiduciary. That does not 
mean that they are a danger to themselves or others. If they 
are a danger to themselves or others, there are reporting 
bodies. It can be a family member. It can be law enforcement. 
It can be others. You at your office could say, we believe that 
they are. We believe that this person is danger to themselves 
or others. Then it goes to a court of law. What we are doing 
and what we are doing with the process, you can say you have 
interpreted the way you want, but what we are doing with the 
process is we are punishing our veterans for simply seeking 
help. That is the problem here. This is not about guns. It is 
about the situation of not using due process. Due process does 
not involve a bureaucrat. A due process has you go before a 
judge.
    Let me give a quick story. I am the owner of a newspaper. I 
have a right to the freedom of speech. If the government comes 
in, shuts down my newspaper without any warning, do you agree 
that there is a violation of my First Amendment? Do you agree 
with that?
    Mr. Burke. Yes, sir.
    The Chairman. Mm-hmm. Why are we applying the same 
situation through the agency for our veterans' Second Amendment 
rights? I do not understand this. When I first came to 
Congress, I heard, and I could not believe that this was what 
the interpretation of the VA was. I heard it from people in the 
coffee shops. I heard it from people in the barber shops. My 
wife and I own a beauty salon. I heard it there. People talk at 
the Legion. People talk at the VFW. They talk about the fact 
that they wanted to seek help, but all of a sudden there is a 
loophole that allows them to lose their Second Amendment right.
    I know that the ranking member gave quite a testimony on 
how he feels about this, but the reality is I am not arguing 
about guns here. I am arguing about the fact that veterans are 
losing their constitutional right without due process. Why it 
is that I receive arguments from the VA or anyone else on why 
it is that I am arguing this point and think that I want to 
endanger the veterans, I do not, because there is still a 
process like any other person. I stand and fight against 
suicide like anybody else. I want no veteran to commit suicide.
    I also do not want any veteran to lose the rights that they 
were willing to fight for, that they took and raised their hand 
to defend the Constitution, to have something that is a right 
in that Constitution have it taken away from them. With that, I 
am going to yield back and ranking member, I recognize you for 
5 minutes.
    Mr. Takano. Well, thank you, Mr. Chairman. Mr. Burke, does 
the status quo, does the status quo in your mind with regard to 
the fiduciary program and the fact that veterans who are 
admitted into the fiduciary program are reported to NICS, do 
you believe that that protects veterans and saves many 
veterans' lives?
    Mr. Burke. Thank you for the question. I appreciate that. 
Yes. Yes, sir, I do. I believe in the fiduciary program. It 
does, it is put in place and protects some of our most 
vulnerable veterans. We do believe that taking firearms away, 
not us, but the process, does protect our veterans. Preventing 
veteran suicide is the number one clinical focus for VA and we 
believe that the process works.
    Mr. Takano. You answered affirmatively to the chairman's 
question, does everyone who has a fiduciary, are they a danger 
to themselves or others? You appropriately answered, no, that 
not every single veteran that has a fiduciary is potentially 
dangerous to themselves or others. I think is it also true that 
many, many, many veterans who have fiduciaries, I read off at 
least one-third of veterans in the fiduciary program are 
identified as potentially schizophrenic, nearly as much are 
identified as with serious bipolar disorder, and that they have 
eight times greater likelihood of suicidal ideations. The 
fiduciary program, by reporting these veterans to NICS so that 
they cannot buy a firearm, would therefore be protective of 
these veterans. Is that correct?
    Mr. Burke. That is correct, yes sir.
    Mr. Takano. Is, you know, the chairman's making, I think 
appropriately, his concern about due process. Is competency, 
veterans' competency to handle their own finances, is that 
based on a bureaucrat's decision or is there a process by which 
a veteran is declared incompetent to handle their finances?
    Mr. Burke. There is a process for that, sir, and it 
requires clear evidence, medical evidence, medical statements. 
In addition to those findings, there is a proposed finding of 
incompetency which gives a veteran due process rights. During 
that period of time, the veteran or his or her accredited 
representative can submit additional evidence for consideration 
that in some cases does change the determination or the 
proposal. There is a due process period of time before a 
finding of incompetency. It is only after due process has been 
served that the veteran's name will be referred to NICS. It is 
not a bureaucratic process. It is one where clear and 
convincing medical evidence and or statements are reviewed as 
part of that.
    Mr. Takano. It is a medical evaluation. Is that right?
    Mr. Burke. In most cases, we will get it from a medical 
exam, medical document, statement from a medical professional.
    Mr. Takano. Are veterans informed at the time that they are 
going through this process that being determined to be mentally 
incompetent and to need a fiduciary would put them on the NICS 
list? Are they made aware of that?
    Mr. Burke. Yes, sir, they are. As part of our requirements 
under the Brady Bill, we are required to make contact, and we 
do that both in writing and in contact.
    Mr. Takano. My understanding is that legislation was passed 
by a Republican House, a Republican Senate, and signed by 
President Trump, reaffirming the process by which mental 
incompetency is determined and by which also being put on the 
NICS list would result, is that right?
    Mr. Burke. Yes sir, that is correct.
    Mr. Takano. In fact there is a due process. A due process 
does exist administratively and that there are six levels of 
appeal. There are six levels where a veteran can seek to not be 
put on the NICS list, even as they are going through a process 
of being determined to be mentally incompetent. Is that 
correct?
    Mr. Burke. There is, in fact, a due process period. In 
addition to that, there is a relief request process. Once 
somebody is placed on the list, there is a process for 
requesting relief as well.
    Mr. Takano. This bill before us, as far as we know, would 
require that a judge be required to be involved in this. How 
would that affect this process? Would anybody be able to be 
protected at all from, you know, themselves if they are a 
danger, if we introduce what the majority is saying we should 
do?
    Mr. Burke. Yes, sir. In many instances, those type of 
records, our claims processors do not have access to. In order 
to get those records, we are going to elongate the process of 
making that determination whether a veteran is incompetent or 
not. We believe as part of suicide prevention, that those 
determinations should not be elongated. We believe it caused 
further harm to veterans by elongating the process to secure 
those type of records.
    Mr. Takano. Sir, I am over time. Mr. Chairman, I just want 
to say that the judicial process you are thinking of bringing 
in would effectively end VA's ability to put anyone, you know, 
on the NICS list. We have at least one-third that definitely 
should be there, and I yield back.
    The Chairman. Thank you for yielding back. Mr. Self, you 
are recognized for 5 minutes. Mr. Self.
    Mr. Self. Thank you, Mr. Chairman. I want to explore your 
using the Brady Act because somehow we have conflated this with 
suicide prevention as opposed to the superior constitutional 
right. Why do you think the Brady Act gives you the 
constitutional right to report? Let me expand the question. You 
said, are you the only Federal agency that has read the Brady 
Act that way? It seems that you are.
    Mr. Burke. I am going to--thank you for your question and 
ask my colleague from Office of General Counsel (OGC) to chime 
in on this one if you could, Mr. Barrans.
    Mr. Barrans. Yes, thank you. The Brady Act authorizes the 
Department of Justice to request and obtain records from any 
agency on categories of individuals identified in the Act who 
are prohibited from owning guns. VA merely complies with that 
requirement. I do not think our interpretation is unique in 
that respect. Our interpretation----
    Mr. Self. Who else----
    Mr. Barrans [continuing]. is one that we verify.
    Mr. Self. Who else does it?
    Mr. Barrans. Well, the Department, we verify that 
interpretation with the Department of Justice when they issued 
their recommendations.
    Mr. Self. What other Federal agencies make the same 
determination?
    Mr. Barrans. I cannot speak for what other Federal agencies 
do. Are you talking about determinations of incompetence?
    Mr. Self. Put yes, exactly.
    Mr. Barrans. Yes.
    Mr. Self. Report to the DOJ and then have weapons taken 
away under the Brady Act. What other agencies do that?
    Mr. Barrans. As far as I am aware, Social Security 
Administration makes similar determinations of the need for a 
representative payee. I am not aware of other agencies that are 
making similar determinations.
    Mr. Self. Okay. We are discussing, it seems to me, hearing 
the chairman and the ranking member, we are discussing drama 
and emotion here versus the rule of law. The alleged problem 
that I want to discuss is the Second Amendment, because there 
is no judicial review here. This is, I know of legislative 
processes. I know of judicial processes. Mr. Burke, you say 
this is not a bureaucratic process. What would you call it then 
if you do not call it a bureaucratic process? What would you 
call it?
    Mr. Burke. Well, the actual process of determining 
competency for a veteran is something that has been in our 
fiduciary portfolio for many years.
    Mr. Self. What would you call it if it is not a 
bureaucratic process?
    Mr. Burke. I would not call it a bureaucratic process. It 
is an established process that we follow with respect to us 
turning those names over in accordance with NICS. We call that 
complying with Federal law.
    Mr. Self. We have legislative processes, we have judiciary, 
judicial processes. What would you call this?
    Mr. Burke. I would not----
    Mr. Self. It has got to conform to eventually 
constitutional. How do we get a court of law involved before 
you make this determination? Tell us, as Congress, how do we do 
that?
    Mr. Burke. Well, I think, sir, that one of the concerns we 
have about getting a court of law involved before was what I 
mentioned briefly a moment ago is the concern that it could 
potentially or will elongate the process. For us, with veteran 
suicide prevention being at the forefront of our clinical 
focus, we do not want folks in harm's way for an extended 
period of time to secure documents.
    Mr. Self. I got what you want, but we are talking about a 
constitutional right here that requires a high bar to take it 
away, a high bar. Anyone will tell you it takes a high bar to 
take a constitutional right away. That is what the chairman was 
referring to in his newspaper example. How do we raise the bar 
here before we take a constitutional right away? That is the 
question.
    Mr. Burke. Sir, I have spent my entire adult life either in 
uniform or serving those that were in uniform, and I will 
continue to do that by doing two things, complying with Federal 
law, which I believe we are doing in this case.
    Mr. Self. What is the highest Federal law?
    Mr. Burke. What is the highest Federal law?
    Mr. Self. Yes, that is my question.
    Mr. Burke. I am not quite sure I understand that.
    Mr. Self. It is the Constitution. Therefore, it takes a 
high bar to take a constitutional right away. That is why the 
Second Amendment, we heard more words about, we heard a lot of 
words here today. The Second Amendment is very clear. It takes 
a high bar. I think my time is almost up. I will yield back 
after I say we need to establish a higher bar here and you need 
to help Congress with how we do that rather than having the 
administrative state make this determination on a 
constitutional right. With that, Mr. Chairman, I yield back.
    The Chairman. Thank you Mr. Self. Ms. Brownley, you are 
recognized for 5 minutes.
    Ms. Brownley. Thank you, Mr. Chairman. Mr. Burke, we have 
discussed this bill several times in this committee, and I 
think on my side of the aisle, we have said, you know, we are, 
if there is any way in which we can improve upon due process, 
we are open and willing to look at it. I think the chairman has 
made it pretty clear that there is a pretty extensive already 
process for due process. I guess my question is to you, is 
there anything that you would recommend to this panel of how we 
can improve due process from where we are today?
    Mr. Burke. Yes, ma'am. I can tell you that VA is always 
committed and willing to collaborate with Congress on ways to 
improve. I am happy to get, you know, outside of the hearing, 
staff level, to connect and communicate on ways that we may be 
able to improve.
    Ms. Brownley. Okay. How many, can you quantify or do you 
have the data to know that how many veterans have used the due 
process and the various steps to reverse the opinion of the VA?
    Mr. Burke. I can. I can speak to two things and I think 
what you may be wanting more specific information is the actual 
relief process. All decisions from VA come with a due process 
period. With respect to the finding of incompetency and those 
that want to seek relief from that, I will tell you that the 
average age of the individual in our fiduciary program is 73. 
The average age of the person that seeks relief from being 
placed on the NICS list is 59. We had in FY 22, we had 33 
individuals seek relief. Of those 33, there were 12 that based 
on submission of new evidence had their competency level 
restored. That was in FY 22. We are on pace this year for very 
similar numbers. It is not a large number of veterans that are 
seeking relief. When they do, they are significantly younger 
than the average age of the person in the fiduciary program.
    Again, there is an avenue even outside of due process where 
the relief process itself has resulted in determinations of the 
removal of the incompetency status. When we report to NICS, we 
report three things. Those that need to be added to the list 
based on a finding of incompetency, those that need to be 
removed from the list because they have been since found to be 
competent, and then three, those that need to be removed from 
the list because they are deceased.
    Ms. Brownley. Thank you for that. Do you have, you know, 
evidence-based data that supports the issue that this process 
indeed saves lives?
    Mr. Burke. I can take that for the record and certainly 
provide you with a more detailed response.
    Ms. Brownley. Thank you. From your vantage point, how many 
veterans do you know who have had their firearms confiscated by 
the VA?
    Mr. Burke. I know right now we have approximately 109,000 
active beneficiaries in our program and those names would have 
been referred obviously to NICS.
    Ms. Brownley. Right, but does VA have the authority to 
confiscate firearms?
    Mr. Burke. The VA has no authority to confiscate. We merely 
have a reporting responsibility.
    Ms. Brownley. Do you know how many veterans who have 
attempted to purchase a firearm, who were denied because they 
have a fiduciary at the VA?
    Mr. Burke. I do not have that data, ma'am.
    Ms. Brownley. Okay. I have no more questions. I will yield 
back.
    The Chairman. Thank you. Dr. Miller-Meeks, you are 
recognized for 5 minutes.
    Ms. Miller-Meeks. Thank you, Mr. Chair, and I thank our 
witnesses for being here today. Mr. Burke, what level of VA 
employee is normally the one who would send the name to the 
NICS system, N-I-C-S system?
    Mr. Burke. We have rating veteran service representatives 
and other employees that make the determinations and I believe 
the feed, if you will, of data from VA to NICS is done at our 
headquarters level and that is an automated process on a weekly 
basis.
    Ms. Miller-Meeks. What type of training do they receive?
    Mr. Burke. All of our rating veteran service 
representatives, there is training on incompetency 
determinations and decisions. Medical providers, both vendor 
and VHA, are required to take incompetency training as well. 
That is training that we track through our training management 
system and other modalities, but they are required to take that 
training.
    Ms. Miller-Meeks. Would you be able to send us what the 
competency training is?
    Mr. Burke. Yes, ma'am.
    Ms. Miller-Meeks. Send it by mail. Thank you.
    Mr. Burke. Yes, ma'am.
    Ms. Miller-Meeks. Even if I accept the VA, and I am a 24-
year military veteran, married to a veteran, in a family of six 
of the eight children, my father was also military, as was my 
grandfather and my uncle. Even if I accept the VA's premises 
that those who need help with their finances are a danger to 
themselves and others, what is done about firearms that are 
already stored in the home by themselves or other members of 
the household? If it is not the veteran's firearm, what happens 
to that firearm?
    Mr. Burke. First let me thank you and your family for your 
collective service. I may have to take that one for the record. 
That is not something that VA, whether VBA, VHA, or National 
Cemetery Administration (NCA) is responsible for.
    Ms. Miller-Meeks. If you have 190,000 veterans who are 
currently under a fiduciary person status, why do you not know 
how many firearms have been confiscated in reference to Ms. 
Brownley's question?
    Mr. Burke. For clarification, it is 109, not to correct 
you, ma'am, but just want to make sure for the record it is 
accurately portrayed. It is 109,000 and about 63 percent of 
that are veterans. In our fiduciary program, we also have 
spouses. With that, again, we report the incompetency numbers 
to DOJ, and there is no other engagement or involvement with us 
reporting or receiving information on numbers of weapons 
collected, taken back, et cetera.
    Ms. Miller-Meeks. Is there a Health Insurance Portability 
and Accountability Act (HIPAA) reason why you would not be able 
to collect that information and do not you think that is 
valuable information to have?
    Mr. Burke. I do believe that is in DOJ's lane. If Mr. 
Barrans has anything he would like to add, please feel free, 
but I do not think that is VA's responsibility.
    Ms. Miller-Meeks. Before Mr. Barrans' answered, have you 
requested that information? Have you sent a letter requesting 
the information for your records?
    Mr. Burke. Not to my knowledge, no ma'am.
    Ms. Miller-Meeks. Mr. Barrans.
    Mr. Barrans. Yes, just to say that this is a governmentwide 
reporting program administered by DOJ, so, you know, VA is one 
of among all the Federal agencies that comply, and I am not 
aware that there is a general report out from DOJ on the 
actions taken.
    Ms. Miller-Meeks. I think that would be important 
information. I appreciate my colleague bringing up the 
question. Does the VA have any evidence that the current system 
in place for sending names to NICS list is actually working? To 
put it simply, has there ever been a study done if it is 
actually providing any level of suicide prevention, i.e., if 
that weapon is confiscated and a veteran had suicidal ideology 
or dementia that led to suicide ideology having read other 
testimony, do we have a correlation, a status? Are we 
preventing? Has veteran suicide gone up, not gone down?
    Mr. Burke. I would say that the studies that we cited in 
the testimony do reflect that, you know, the inability to 
access firearms does prevent suicides. Again, this is something 
that we are continuing, not just VBA, but VA as a whole, 
focusing on suicide prevention. We do cite some studies. I 
think some panel members may have some further information, but 
we do know, and I think it was in my oral statement, that 90 
percent of suicide attempts with a firearm are successful, 
meaning there is a fatality. When those weapons are removed, 
only one out of five that would have used a gun find an 
alternate means to commit suicide.
    Ms. Miller-Meeks. My time is almost over, but I did not see 
in those studies that there was a correlation. Yes, having 
access to a firearm, whether or not they were successful. My 
question is, in a person who is placed in a fiduciary status, 
what is that relationship? I read the physician's testimony 
from Duke, but I did not see that there is a correlation with 
fiduciary status and firearms and suicide. That is more the 
point, since we are talking about a fiduciary status. Thank you 
very much, I yield back.
    The Chairman. Thank you, Doctor. Representative Budzinski, 
you are recognized for 5 minutes.
    Ms. Budzinski. Thank you so much, Mr. Chairman, and good 
morning to everyone. Thank you to my colleagues and the 
committee for this, I think, a really important discussion. I 
had the opportunity recently to visit the Veterans Hospital in 
St. Louis. I learned about all of the critical care they are 
providing to about 35,000 veterans that are on the Illinois 
side, which is the side of the river that I represent in 
Central and Southern Illinois. A lot of those services are 
mental health services and can certainly see the need after 
that visit of the greater need that we have to provide more 
mental health services for our veterans.
    I bring this up because of the statistics, the statistic 
that the suicide rate for veterans is 1-1/2 times higher than 
the general population. I also just want to point out that 71 
percent of those suicides by veterans are happening by firearm. 
I just want to mention this obviously weighs really heavily on 
me personally as we are having this discussion about this 
topic. I do believe we are all here today because we have a 
commitment to mental health providing that to our veterans. I 
hope we can find some commonsense, bipartisan solutions to 
ensure that both our veterans' rights and their health is 
protected.
    I have a few questions related to how the VA evaluates the 
medical evidence that underpin the mental competency decisions 
made. I would like to start with you, Mr. Burke, if you do not 
mind. Mr. Burke, one of the arguments we have heard against the 
current process is that the determination that a veteran needs 
a fiduciary is based solely on their limitations to manage 
their finances. I think you have spoken a little bit about this 
already, but just to ask again, but in reality, there is a 
medical determination underlying that determination, correct, 
is a question. Then just one quick follow-up and I will ask you 
to respond. Can you talk about the level of specificity in that 
medical evidence produced by the Comp and Pen exam?
    Mr. Burke. Yes, to confirm your statement, it is medical 
information that is used to determine a finding or even a 
proposal, if you will, of incompetency. With respect to exams, 
exams are not the only avenue that we use. There could be other 
evidence submitted from a, you know, primary care physician, 
there are, you know, other entities.
    With respect to the VA exams, C&P exams, there used to be a 
simple check block on the exam, yes or no. We found that that 
was insufficient. Now the providers must detail the specific 
diagnosis that led to the check block of yes. Yes because of 
schizophrenia, yes because of PTSD, yes because of something 
else.
    If I could just add one thing for clarification, and I 
think this is an important point when we talk about mental 
health, the mere presence of a mental health diagnosis does not 
lead to a finding of incompetency. When we talk about access to 
VHA and healthcare, we are telling folks through our comms, 
through our outreach, to access the benefits they deserve. The 
mere presence of a diagnosis is not what leads. It is the 
finding of the inability to manage their funds independently or 
through contract.
    Ms. Budzinski. Okay. Thank you for that point. Just to 
follow up. There is an additional charge that there is a lack 
of consistency as well between contract exam providers related 
to how the competency question on a Disability Benefits 
Questionnaire (DBQ) is filled out. Can you speak to that as 
well?
    Mr. Burke. I think with respect to both the training that 
is required for VHA and for our exam vendors, we will 
continuously look at ways to make sure that they are as aligned 
as possible. There is required training there now. The forms 
that we use, again some improvements to the form to make sure 
we are drawing out more adequate, more complete findings. In 
the medical disability exam space, it is something we continue 
to focus on increasing and improving quality and accuracy. You 
have our commitment that we will continue to do so.
    Ms. Budzinski. Okay, thank you. I have a little bit more 
time, so I would like to ask an additional question, Mr. Burke. 
What is the evidentiary standard that a Veteran Service 
Representative (VSR), Rating Veteran Service Representative 
(RVSR), must adhere to when determining that a beneficiary may 
need a fiduciary? Then additionally, how are you training your 
claims raters to interpret and utilize that medical evidence?
    Mr. Burke. The determination of incompetency by our VSRs 
and RVSRs is based upon, and I have to stress, a definitive 
finding by a responsible medical authority or medical evidence 
that is clear, convincing, and leaves no doubt as to the 
person's inability to manage their affairs or a court order 
finding the individual to be incompetent. Again, our employees 
that touch these claims, these cases, do get required training. 
As was asked by the committee already, we will submit those 
training modalities as well.
    Ms. Budzinski. Thank you, and I yield back.
    Mr. Rosendale. [Presiding] Thank you. I recognize Dr. 
Murphy for 5 minutes.
    Mr. Murphy. Just give me a second. I might need a fiduciary 
myself. I want to applaud everybody here, everybody on the 
committee in a totally apolitical, non-partisan manner as 
everybody concerned about veteran suicide. I know there is, you 
know, unanimity in that. The problem is in just in the manner 
in which we are attacking this.
    Mr. Burke, I have a line of questions. I have just been 
sitting here writing out the PhD from Duke, I was just reading 
his report. I am not sure he has ever seen a patient, but just 
reads off studies. Just going through the whole fiduciary 
process, is there just one single individual who gets to check 
the box that says the person needs a fiduciary?
    Mr. Burke. Sir, there is not. The way that the VBA 
processes a workload, there are numerous hands that touch the 
process, those that develop the claim, those that may go out 
and request a medical exam to elicit further information. It 
could be a rater that proposes a finding. They----
    Mr. Murphy. All right, so let me, I am sorry, I do not want 
to go through that because I got other questions. There is one 
person finally that has to check the box. I mean, it has to 
be----
    Mr. Burke. There is one----
    Mr. Murphy [continuing]. there has to be.
    Mr. Burke. There is one person sir.
    Mr. Murphy. Is that automatically referred to a re-referral 
for evaluation? Just because you are taking away a person's 
constitutional rights, is there any checks and balances to that 
final check of a box?
    Mr. Burke. The check and balance is actually the fact that 
before that final determination is made, the veteran and his or 
her representative get a proposed finding with a due process 
period.
    Mr. Murphy. All right.
    Mr. Burke. Once that has expired, that decision is then 
appealable, but it is a final decision. At that point----
    Mr. Murphy. It takes an action of appealing rather than 
because the veteran then has to jump through a bunch of 
different hoops from bureaucrats. I was determined to be my 
mom's fiduciary when she got older and just could not handle 
her financial matters. She just was not there. It was not that 
she had any particular issues, but that made me her fiduciary. 
By definition, I am her fiduciary.
    If she were a veteran, wow, that would put her in a 
different category of an assumption of incompetence. Not 
incompetence, you just sometimes cannot handle your matters. 
You brought up at one point, and Representative Brownley asked 
you the question for evidence that this program had saved 
lives. You mentioned that you would have to get back to her. 
How long has the program been in effect?
    Mr. Burke. With respect to providing information to NICS or 
the fiduciary program? We have had the fiduciary program for 
years.
    Mr. Murphy. For this, for the one we are talking about, for 
taking away a person's Second Amendment rights.
    Mr. Burke. I know there was a NICS improvement in 2017. I 
will ask Mr. Barrans if he has a more----
    Mr. Murphy. The reason I say this is if we do not have 
information at this point that you have not here, not that you 
have right here, that this is saving lives, it is not that you 
do a program with the hope that would save lives, even though I 
guess we all really truly want to save lives. It is not empiric 
evidence, you want factual evidence, objective evidence that 
this is going to save a life. Yes, I understand people with 
suicidal ideations and access to guns, absolutely I get that. I 
have been a surgeon, trauma surgeon, for 35 years and I 
understand that part. I just want us to be on the other side of 
making sure that those veterans have benefits.
    I will ask one thing because you did mention PTSD as being 
one of the issues. Are you aware that there is a very, very 
good program especially in my part of Eastern North Carolina 
where it is where we take veterans out and it is hunting for 
veterans to help them with PTSD?
    Mr. Burke. Yes, sir.
    Mr. Murphy. How would, if then, if somebody has PTSD, how 
would they be able to participate in that program?
    Mr. Burke. Well, as I cited in an earlier question, the 
mere diagnosis of a mental condition is not a bar to owning a 
firearm. There are different levels of severity with post-
traumatic stress disorder and other mental conditions. It is 
only at the point where the medical evidence clearly and 
convincingly shows that the individual is unable to manage 
their funds independently that we refer to NICS.
    Mr. Murphy. Yes, but funds, managing funds, and as I said, 
I was my mom's fiduciary, managing funds and having suicidal 
ideations are two absolute different things. Absolutely 
different. One is simple, basically you cannot handle your 
affairs, and the other thing is you want to kill yourself. You 
cannot equivalate, make those equivalent. Not by any means.
    Mr. Burke. Simply complying with Federal law. That is, we 
have a requirement by law to submit those to NICS, and that is 
the crux of this conversation.
    Mr. Murphy. Is there any evidence that requiring a 
fiduciary has decreased suicide attempts?
    Mr. Burke. There is evidence that access to firearms, 
right?
    Mr. Murphy. Sure.
    Mr. Burke. The fiduciary itself, the fiduciary program was 
not set up or established to remove, you know, access to 
weapons. It is a byproduct of the requirement in the Brady Act. 
With respect to science and research, there is research that 
shows that limiting access to firearms does help us in 
preventing suicide.
    Mr. Murphy. Yes, I am really trying not to be belligerent. 
I am really trying because I really want this issue solved with 
veteran suicides. It is tragic. I represent one out of eight of 
my constituents is a veteran in my district. It is an absolute 
tragedy. It is also a tragedy in this country that 110,000-plus 
people are now are dying from overdoses for drugs coming across 
our border, but I do not see us as a administration taking any 
issue with that.
    I appreciate your work. I cannot say I agree with the 
premise on which you are working. With that, I will yield back.
    Mr. Rosendale. Thank you. I recognize Representative 
Deluzio for 5 minutes.
    Mr. Deluzio. Thank you, Mr. Chairman, and good morning. 
Thank you for being here. Before I proceed with my question, I 
want to offer one clarifying point for the record. There was 
some discussion of whether VA was alone in sharing or doing 
this kind of reporting to NICS under Brady, and my 
understanding is others who are doing this reporting include 
the Air Force, the Army, the Marine Corps, the Navy, the 
Defense Department, National Center for Information Security 
(NCIS), Department of Health and Human Services (HHS), FBI, 
ATF, and the Secret Service. VA is not alone here.
    With that, I will ask a question for all or each of you to 
weigh in on. I am struck by how few veterans are using the 
avenues for relief or redress. An open-ended question then to 
each of you, why do you think that is? I mean, it is a small 
percentage of the folks who are subject to these 
determinations. Why are we not seeing more or should we be 
seeing more folks pursue these avenues? Is there something 
about advertising that they exist or some other sort of 
information sharing with veterans in the program?
    Mr. Burke. Yes, sir. Thank you for that question. The 
numbers are staggeringly low. I believe it is a testament to 
the fact that the due process is clear, that there is a due 
process opportunity, that folks are afforded the opportunity to 
submit, you know, medical evidence to the contrary of what we 
have considered. Again, the numbers are low. I honestly do 
think it is because the process is clear. We also articulate in 
the due process with incompetency the specific impact on their 
ability to own firearms. It is pretty clearly explained. I 
believe that the communication is clear and understood and I 
believe that leads to the low numbers.
    Mr. Deluzio. Just a clarifying question, gentlemen, please 
feel free as well to weigh in if you would like. When that 
determination is shared, and you mentioned the impact on 
firearm ownership, is there also information about the avenues 
of redress and relief provided to the veteran as well?
    Mr. Friel. Yes, sir, thank you for the question. Yes, we do 
address relief as part of the process, both in the final 
determination. We also, in the appointment of a fiduciary, a 
field examiner goes out and physically meets with the 
beneficiary and discusses the impacts of the appointment of the 
fiduciary and what abilities exist for them.
    Mr. Deluzio. Mr. Barrans, anything you want to add?
    Mr. Barrans. No, I would just again reemphasize that we do 
conduct extensive outreach in terms of written and oral 
communication, so to the extent people are not taking advantage 
of the avenues of relief, I do not think it is for lack of 
communication.
    Mr. Deluzio. To put a finer point on it, the small number 
of folks who are pursuing this does not give you pause because 
you are taking the view the VA is making it very clear at the 
outset of determination that this is the path both for redress 
but also that there is substantial process to get to that 
point.
    Mr. Barrans. Yes. Yes, I think that is fair and we do give, 
you know, with every decision VA gives appellate rights, so not 
just the NICS relief program but also to appeal the actual 
finding of incompetency.
    Mr. Deluzio. Okay. Thank you. Mr. Chairman, I yield back.
    Mr. Rosendale. Thank you very much. I will now recognize 
myself for 5 minutes. Just following the law is not going to 
cut it. There are a lot of laws that are not right. They just 
are not right. As my good friend, the Ranking Member Takano 
said that Republicans do, yes, they do pass bad legislation 
too. Contrary to what many of you guys might believe. I do not 
believe that only Democrats pass bad legislation. We have 
messed up some things ourselves.
    As a matter of fact, we just had an amendment that I 
proposed and was placed on the National Defense Authorization 
Act that basically for the last decade or more has authorized 
the United States military to pick up American citizens on 
American soil, whisk them off to a foreign land without charges 
without counsel and hold them for an indetermined amount of 
time. That by anybody's estimation is completely 
unconstitutional.
    To continue a process with which our veterans lose their 
Second Amendment rights because somebody might think that they 
are a danger, not a court, not a jury of their peers, but a 
bureaucrat sitting in an office somewhere has made that 
determination is absolutely 100 percent wrong. I really do not 
care what the law says. I really do not care what the law says. 
It is wrong.
    We have programs that show that it is not the simple act of 
owning a firearm that causes a problem and increases the 
likelihood that they are going to, a veteran who is suffering 
with PTSD, is going to take their life. It is the time with 
which they think about it and then have access to that weapon. 
If the weapon's locked away, if it does not have the ammunition 
right next to it, the likelihood that they are going to take 
their life reduces dramatically. There is a very good program 
out. It is called Overwatch Program, that places time and 
distance between a veteran and their firearm to make sure that 
we can drive down the rates of suicide.
    Mr. Burke, with your previous statement, we have already 
established that veterans who need a fiduciary to manage their 
benefits are not always a danger to themselves or others. 
Current law treats them as being dangerous because they are 
unable to own a gun if they have a fiduciary. This is just 
simply false, a false premise. Do you think that a veteran who 
needs a fiduciary is mentally defective? Mr. Burke.
    Mr. Burke. I think the mere placement of somebody in our 
fiduciary program is based on the premise that they were found 
to be unable to manage their funds.
    Mr. Rosendale. Mr. Burke, do you believe that a veteran who 
needs a fiduciary is mentally defective?
    Mr. Burke. In most cases, a veteran that has been appointed 
a fiduciary does have mental impairment or a mental issue that 
has caused them to be unable to manage their funds.
    Mr. Rosendale. That is just stunning to me that you would 
sit here and say that you think that a veteran who has a 
fiduciary is mentally defective. Under the current law, 
procedural due process is violated because a veteran is not 
afforded a proper pre-deprivation hearing before the imposition 
of firearm restrictions. I am very concerned that the VA is 
treating veterans who need help in managing their money as 
criminals.
    Under this policy, anyone who uses the services of a firm 
to manage their books, a bookkeeping service, would be subject 
to surrendering their firearms and their Second Amendment 
rights. This is as ridiculous as it is dangerous. The Supreme 
Court found in Heller that the Second Amendment guarantees the 
individual right to possess and carry firearms in the case of 
confrontation. In McDonald, the court established the Second 
Amendment to be a fundamental right applied equally to the 
Federal Government and the States. The way the VA is 
interpreting the statute is blatantly unconstitutional and an 
affront to the Supreme Court and the separation of powers. Mr. 
Burke, do you believe in due process?
    Mr. Burke. I certainly do, yes, sir.
    Mr. Rosendale. We are losing 21 veterans a day to suicide 
in this country. Are you concerned that veterans might be less 
willing to seek care at the VA knowing that it could result in 
them unfairly losing their Second Amendment rights?
    Mr. Burke. I am concerned any time a veteran does not want 
to seek care or assistance, but I do not believe this process 
is a deterrent. I do not believe it is a deterrent and that is 
why I am here to stand by----
    Mr. Rosendale. Well, Mr. Burke, I will tell you that I have 
had veterans come to me and declare that they are not seeking 
help because they are concerned about their Second Amendment 
rights being violated.
    Mr. Burke. My----
    Mr. Rosendale. Thank you very much.
    Mr. Burke. My point, sir, would be that we can together 
work on their behalf.
    Mr. Rosendale. Mr. Burke, I have got veterans who have 
quoted to me, okay, quoted to me and come to me and said that 
they are concerned about their Second Amendment rights being 
violated and that is not, that is why they are not seeking 
help. I will turn my time. Yes, I will now recognize 
Representative Cherfilus-McCormick for 5 minutes questioning.
    Ms. Cherfilus-McCormick. Thank you, Mr. Chairman. Mr. 
Burke, VA's authorities, as well as the processes and 
procedures used to determine mental incapacity and NICS 
reporting, have been clarified, redefined, and codified since 
then, both in the NICS Improvement Amendments Act and the 21st 
Century Cures Act. Is that correct?
    Mr. Burke. Yes, ma'am.
    Ms. Cherfilus-McCormick. I will remind my colleagues that 
the 21st Century Cures Act was passed under a Republican-led 
House and Senate. If VA's fiduciary program was so problematic, 
Congress could have chosen to reform it as opposed to 
validating it as we did then.
    My next question is for Secretary Burke. Is it safe to say 
that VBA is on firm legal footing to conduct the fiduciary 
program and are complying with the laws as written? Would you 
agree?
    Mr. Burke. Yes, ma'am. In consultation with our Office of 
General Counsel, we believe we are on firm footing. Yes, ma'am.
    Ms. Cherfilus-McCormick. In Fiscal Year 2022, the VA 
provided fiduciary services to over 180,000 veterans. Of these 
veterans, there were a little over 14,000 referrals from the VA 
to the FBI's National Instant Criminal Background Check System, 
NICS. Of these 14,000 referrals to NICS, only 33 were appealed 
and 11 beneficiaries were ultimately removed from NICS. 
Veterans make up less than 4 percent of the total NICS 
reporting despite making up 6.4 of the United States 
population, meaning that veterans are underrepresented in the 
NICS.
    Mr. Friel, how has the VA been estimating how many lives 
have been saved? We asked you this question before and we have 
not got a clear answer. Is your office currently collecting the 
information to make this determination?
    Mr. Friel. Ma'am, thank you for the question. No, we 
currently do not collect that information. We do not have 
insight as to whether or not, you know, the fiduciary process 
and members within the fiduciary process are committing 
suicide. We do not have that information readily available.
    Ms. Cherfilus-McCormick. Thank you. As I mentioned earlier, 
only 33 were appealed out of the 14,000 veterans. How is 
information made available to veterans that they have the 
rights to appeal?
    Mr. Burke. Ma'am, as part of the due process, as well as 
any final decision that VA renders, they get their appeal 
rights. I do want to point out that the numbers that you are 
referencing, the 33, those are ones that sought relief through 
the process, which is a low number. Also, in FY 22, there are 
almost 1,100 veterans who were previously found to be 
incompetent that were later converted to being competent. 
Again, lessening the number of folks that were on that NICS 
list.
    Ms. Cherfilus-McCormick. Those people, were they appealing 
that right, the ones who you said who were made competent, did 
they appeal that right?
    Mr. Burke. That could have been a combination of appealing 
or just mere submission of a new claim through one of those six 
avenues that the ranking member showed. Whether it was a 
higher-level review or some other submission of evidence, at 
some point, they were then later found to be competent to 
manage their funds.
    Ms. Cherfilus-McCormick. Well, what I wanted to confirm was 
that all the veterans are aware of their right to appeal. Is 
that correct?
    Mr. Burke. That is correct. Yes, ma'am.
    Ms. Cherfilus-McCormick. Only 33 appealed that right?
    Mr. Burke. Only 33 sought relief through the relief avenue. 
The numbers that I do not have are how many may have done a 
formal appeal through the Board of Veterans Appeals or beyond.
    Ms. Cherfilus-McCormick. Thank you so much. I yield back 
the balance of my time.
    Mr. Rosendale. Thank you. I will now recognize 
Representative Ramirez for 5 minutes for questions.
    Ms. Ramirez. Thank you. I want to thank Chairman Bost and 
Ranking Member Takano for holding today's hearing. I also want 
to thank the witnesses who are with us today. For the last 
hour, you have heard from several of my colleagues on issues 
spanning from mental health to fiduciary issues. I should be 
able to pronounce it well, we have said it about 35 times in 
the last hour.
    I want to take a moment to refocus on why we are here, why 
every single one of us here chose to be a member of the Veteran 
Affairs Committee and why you sit here and the people that are 
sitting here listening. We are here for our veterans, our 
first-generation veterans, our veterans of color, and even some 
of us are here for our veterans who have been deported after 
risking their lives for the country we love.
    These veterans need our support, and the VA support in 
providing them with wraparound services and other resources 
they may need has to be our priority. We can go back and forth 
and blame game all day here. Let me just say what I think some 
of us have said here already, 121 suicides per day, 121 
veterans commit suicide every single day. If you do the math, 
that means in the hour that we have been debating and 
questioning and talking here and blaming each other, five 
veterans died.
    I really want to make sure that we refocus ourselves and 
ask ourselves what the heck are we doing as Congress, as the 
VA, and as every single organization who is committed in 
ensuring that our veterans have what they need so that they do 
not feel that life is such that they no longer can live. I 
actually want to really focus on the mental health part here 
because I think others will continue to talk about the other 
pieces. I want to ask you, Mr. Burke, what are the initiatives 
that the VA is spearheading to address the concerns with 
seeking mental health services for our veterans?
    Mr. Burke. I think honestly, ma'am, thank you for that 
question. This may be one that we come back with some further 
information from the VHA side of the organization. I will tell 
you that every entity within VA is committed, not just to 
suicide prevention, but making sure that we are communicating 
all rights, all avenues for access for care and for benefits. 
On the VHA side of the house, a very heavy focus, as you can 
imagine, on improving mental health. We have a Suicide 
Prevention Office, obviously, and those folks are connected. It 
is a, I hate to use a generic term, but a synergistic approach 
to us tackling mental health crisis, and also making sure that 
we are putting a primary clinical focus on preventing veteran 
suicide. We are happy to connect with you and members of the 
committee on more detailed information of what we are doing in 
that space if that would be helpful.
    Ms. Ramirez. We know we are not doing certainly enough, 
right? I mean, enough is when we know that no veteran has to 
make that decision between life and death. We have a lot of 
work to do.
    I do want to follow up and say, I mean, we know it is 
critical that we prioritize. We know it is critical that we do 
more. We know it is critical that we get into the nuance of 
what is happening and the supports and the claims. However, 
mental health illness and disorders can also wax and wane over 
time. Mr. Burke, can you tell me what processes are in place 
for veterans to have the impact of their mental health issues 
re-evaluated?
    Mr. Burke. Certainly. With respect to the claims process, 
any veteran that is in receipt of compensation that has 
deteriorated or their condition has worsened, they have the 
opportunity to file a claim for an increase. They can come back 
and have another examination. We will review additional 
evidence. That if they did have an increase or an exacerbation 
of their condition that we could adjust the compensation rate 
and also ensure that is another touch point for us to make sure 
that they are in the VHA system enrolled in healthcare and 
seeking the appropriate attention there. There is a claims 
process where we would collect new information, assess any 
potential increase in the severity of their condition, and then 
re-adjudicate a claim in that same fashion.
    Ms. Ramirez. Thank you, Mr. Burke. Chairman, I yield back.
    Mr. Rosendale. Thank you very much, Representative. I now 
recognize Representative Van Orden for 5 minutes questioning.
    Mr. Van Orden. Thank you, Mr. Chairman. Mr. Burke, I have 
had, as with Senior Chief Mike Day, 21 of my friends and 
colleagues commit suicide, veterans. I am going to say some 
things, and I want you to have that in the back of your mind at 
all times, please. I take this very seriously. It is very 
personal to me. Do you believe that our constitutional rights 
are granted by God?
    Mr. Burke. I am sorry, I am here in a----
    Mr. Van Orden. Do you----
    Mr. Burke [continuing]. professional capacity and my 
personal beliefs I will not bring into the hearing.
    Mr. Van Orden. Okay. Well, do you believe that our 
constitutional rights are articulated in the Constitution of 
the United States?
    Mr. Burke. I do.
    Mr. Van Orden. Do you understand that our foundational 
documents say that our rights are derived from God?
    Mr. Burke. I know the wording in the Constitution, yes, 
sir.
    Mr. Van Orden. Okay, great. Either you believe that our 
constitutional rights are granted to us by God and simply 
articulated in the Constitution, making them immutable or you 
do not. Those two cannot exist in the same universe. Our rights 
are either immutable or they are not, which means if they are 
immutable, you cannot take a pause on them. You cannot have a 
cooling off period. For good or for bad, and oftentimes for 
bad, and this is true, they are still our constitutional rights 
that are granted by God and I believe you took an oath to 
support and defend that at one point, and I do not think that 
expired. It did not.
    When the VA opposes this bill that would absolutely 
infringe on our constitutional rights, a well-regulated militia 
being necessary for the security of a free state, the rights 
for the people to keep and bear arms shall not be infringed. 
This will infringe on that. Either your oath to support and 
defend the Constitution of the United States of America expired 
or you are in error in supporting this--or opposing this bill. 
That is a factual statement. Okay. I want you to rethink this 
policy.
    Mr. Burke. May I respond to that?
    Mr. Van Orden. Of course you can. I would love you to, Mr. 
Burke.
    Mr. Burke. I will just say, I take exception to anyone, 
Member of Congress or not, questioning my oath that I took.
    Mr. Van Orden. I am not.
    Mr. Burke. My entire life, my entire adult life, has either 
been in uniform or serving those that were in uniform.
    Mr. Van Orden. I get it.
    Mr. Burke. I am simply in a position where we are complying 
with the law and we always commit to work with Congress on 
improving legislation and the matter of law. For the record, I 
take it seriously as well.
    Mr. Van Orden. Good. I am not saying you do not.
    Mr. Burke. Okay.
    Mr. Van Orden. I am not impugning your reputation, sir. I 
am just saying that these two things, by definition, cannot 
exist in the same universe. They are incompatible. We have to 
do things in a way that we look at things globally. Again, the 
reason I told you I have had so many of my friends commit 
suicide, so that you know that I am saying this from a place 
where I want that to stop. We also have to balance our 
individual rights that are granted by God and articulated the 
Constitution with sometimes these most horrible things. I have 
held my friend's children's hands at their funeral because 
their father committed suicide. I have cried with their widows. 
This is real. We have to make sure that we do not lose, we do 
not lose our freedoms trying to protect them. Can we agree on 
that, sir?
    Mr. Burke. Yes, sir.
    Mr. Van Orden. Thanks, man. Okay, going to this other. Mr. 
Peltz Accrued Veterans Benefits Act. You oppose this bill and 
why is that again? I mean, I read your testimony. I would just 
like you to do the Reader's Digest. I have 1 minute and 7 
seconds.
    Mr. Burke. Yes, sir. There are just a couple things that it 
creates some complexities, different discontinuation dates.
    Mr. Van Orden. Yes.
    Mr. Burke. It not only makes it complicated for our 
veterans because of different dates and different change in 
benefits, impacts the complexity for the processing for our 
employees. As you know, quality of processing is keenly 
important. Then also the complexity with the different dates 
and the nuances also make it hard for things like technology 
advancements, automation, and speedy delivery of benefits.
    Mr. Van Orden. Okay. So----
    Mr. Burke. Again, happy to work with Congress on some 
technical assistance. As written, we oppose for those reasons.
    Mr. Van Orden. Okay. In the aggregate, if you had your 
choice to err on the side of the veteran or not, would this be 
more beneficial financially to the veteran or not?
    Mr. Burke. Parts of it would be, other parts would actually 
be a detriment. There are some parts where it would negatively 
impact a surviving spouse----
    Mr. Van Orden. Yes.
    Mr. Burke [continuing]. and remove a payment, and those are 
the things that we are concerned about.
    Mr. Van Orden. Okay. Then I seek a little bit more clarity 
in your testimony about this. Is that good? All right, with 
that I yield back, Mr. Chairman.
    Mr. Rosendale. Thank you, Representative. I will now 
recognize the ranking member briefly for a follow-up question 
or two that he had.
    Mr. Takano. Thank you, ranking--Chairman Rosendale. I just 
want to briefly just say that the Constitution begins with we, 
the people, the men and--mostly men wrote the Constitution, 
came together not thinking they were channeling God, but were 
thinking that in a practical way, they were trying to unite 
colonies. The Bill of Rights was added later. That they think 
of human beings neither as God nor devil, but somewhere in 
between. That is why we needed the Constitution, to have power 
and ambition check ambition. It is a very practical document.
    The Declaration of Independence, of course, does claim to 
channel God in terms of endowed by their creator, a sense of 
system, a belief in the natural rights. Let us turn back to, I 
just want to get at a couple of things. Chairman, you said that 
you admired the program that put some distance, that separated 
ammunition from the weapons and you talk about a program that 
could.
    Mr. Rosendale. Urban Watch, Urban Watch.
    Mr. Takano. Urban Watch. Sounds very much like safe storage 
and lethal means training. That counseling veterans about how 
to safely store firearms and lethal means training, that this 
could save lives and could prevent suicides. I hope that you 
might work with us to see that that policy gets implemented, 
because it sounds very much what you were talking about.
    Mr. Burke, I just want to confirm one thing, and the 
chairman was very concerned about the veterans that come to him 
talking about their fear of having their guns taken away 
because they do not trust the VA on that. Does again, I want to 
hear this on record, does the Veterans Health administration 
report any veteran to NICS who are getting treated for mental 
health or any other condition?
    Mr. Burke. No, sir. The VHA does not communicate any 
information to NICS. The only entity that provides information 
is VBA direct to NICS. VHA does not.
    Mr. Takano. Now, I have no doubt that people came to the 
chairman with this concern because there is a perception and a 
belief out there. Is that your understanding, there is a 
perception and belief among veterans that the VHA will turn 
them over to NICS?
    Mr. Burke. Absolutely, and I do appreciate the members that 
communicate directly with each member of this committee. What I 
would say is, you know, our willingness to partner to make sure 
that everybody that has communication and contact with veterans 
has the right message. If we can partner together and 
communicate that the mere diagnosis of a condition, entry into 
the medical centers for treatment does not necessitate an 
automatic removal of weapons. We are willing to partner further 
on strengthening that communication so no veteran feels as 
though he or she cannot go for treatment or care for fear of 
losing their weapon.
    Mr. Takano. There is a perception problem. There is 
misinformation and disinformation out there which is 
insidiously misleading our veterans into thinking that if they 
go to the VA to get treated for mental health or any other 
condition, that that could lead to their inability to buy 
firearms because they have been misled into thinking that the 
VHA will report them to NICS. I want to, just for the record, 
again, that is not true. Is that right?
    Mr. Burke. You are correct. I want to clarify for any 
veteran that watches this hearing or reviews the testimony 
later, the transcript, VHA, the Veterans Health Administration 
does not provide NICS with any information. Any veteran that 
feels that he or she needs assistance or treatment from the VA 
should seek such.
    Mr. Takano. In the time I have remaining, I just want to 
address this issue. I mean, my Republican colleagues believe 
about a pre-deprivation hearing by a judge, a Federal judge. I 
do not believe that that is necessary, that it is important 
that we have a fiduciary program, that we do have six layers of 
appeals where they can seek relief from the putting on the NICS 
list. Effectively, you said, would lengthen the process if they 
brought in a Federal judge or some level, a judicial figure, 
that would effectively really impair VA's ability to put anyone 
on this list, is that right?
    Mr. Burke. That is correct, sir, and I do believe that the 
process as written would prevent us from potentially saving a 
life, and so by elongating the process, that is the point I was 
making earlier.
    Mr. Takano. The process as defined by the Republican bill?
    Mr. Burke. That is correct, yes, sir. Thank you. I yield 
back.
    Mr. Rosendale. Thank you, Ranking Member Takano. I will 
now----
    Ms. Ramirez. Mr. Chair.
    Mr. Rosendale [continuing]. recognize Representative 
Ramirez momentarily.
    Ms. Ramirez. Thank you, Mr. Chairman. I wanted to correct 
the figure that I gave in my remarks. Fortunately, when we were 
talking about the number of suicides per day, the information 
that was given to me was incorrect. It is actually 17 per day. 
I would like to make sure that we correct that for the record. 
Either way, too many. Thank you.
    Mr. Rosendale. Thank you very much for that correction. I 
would just like to say that while the VA may not be the ones 
who actually take a gun or report to NICS, you certainly are 
the conduit with which it happens and it gives you plausible 
deniability having being able to transfer that information off 
to someone else, you start the chain of events that cause this 
to take place. That is what it boils down to.
    With that, I would like to thank Mr. Burke, Mr. Friel, Mr. 
Barrans for testifying today, and you are excused from the 
witness table. Once they are out of there, I would like to 
invite the second panel to the witness table if you want to 
prepare yourselves.
    Before we introduce the second round of witnesses, the 
second panel, I would like to recognize Representative Stefanik 
for 5 minutes to comment on your bill.
    Ms. Stefanik. Thank you so much, Chairman Rosendale, and 
thank you to Ranking Member Takano for the opportunity to join 
the Veterans Affairs Committee today for this critically 
important legislative hearing. Today's hearing is critical for 
veterans across my district in upstate New York and the North 
Country but especially so for the Peltz family from 
Queensberry, New York. Ernest Peltz proudly served in the U.S. 
Navy from 1942 to 1946. During World War II, Mr. Peltz bravely 
protected our freedom in the Pacific Theater on the island of 
Guam.
    During the final chapter of his life, he lived in 
Queensbury, New York to be close to his son, Charles. While 
living there, his health tragically began to decline, and the 
Warren County Veterans Services Office assisted Mr. Peltz with 
his application for pension benefit, for which he was approved 
on December 16, 2019. My office was proud to help with that 
effort in the form of casework and constituent services. Mr. 
Peltz passed away shortly thereafter on January 1, 2020. 
January 1st is New Year's Day. On New Year's Eve, I was in 
contact with the Peltz family, with Charles Peltz, that his 
father, as he was on his deathbed, was so concerned about the 
VA not processing his claim. I told the Peltz family, we would 
work to make this right.
    Due to a processing error at the Department of Veterans 
Affairs, the approved funds were not deposited into Mr. Peltz's 
account until 7 days after his death, on January 7, 2020. The 
VA's erroneous delay in the disbursement of Mr. Peltz's 
benefits resulted in the VA clawing back those funds from Mr. 
Peltz's account, despite the fact that the VA approved his 
benefit while he was alive. This is unacceptable. Mr. Peltz's 
distinguished service to our Nation came in a great national 
time of need, and he worked hard to serve this country to earn 
this benefit, a benefit he was owed. These funds should have 
been passed down to his family through his estate.
    Again, on this gentleman, on this hero's deathbed, he was 
very concerned about the VA malfeasance and the red tape. A 
family mourning the loss of a loved veteran is a burden enough. 
The VA must work to ease these burdens, not increase them as 
they did with the Peltz family. I have worked for years with 
the Peltz family, our great veteran service organizations that 
are before us today, and the VA, as well as members of this 
committee on crafting this legislation to ensure no other 
family has to endure what they went through when World War II 
veteran and hero Ernest Peltz passed away. My bipartisan bill 
named in honor of Ernest Peltz eliminates the burden on 
surviving families by ensuring that veterans receive their 
already approved pension benefits for the month at their death 
and prohibits the VA from clawing back these funds after they 
are approved, as they did in the case of Mr. Ernest Peltz.
    I want to thank the service organizations that are here 
today for your support of this legislation. I want to thank the 
committee for working with us on this legislation as well as my 
colleagues across the aisle who have worked to support this 
legislation as well and I yield back.
    Mr. Rosendale. Thank you very much Representative Stefanik. 
It is very important legislation and we are glad to have it in 
front of us. I would like now to welcome Dr. Jeffrey Swanson 
professor in psychiatry and behavioral sciences from Duke 
University School of Medicine. Mr. Bob Carey Chairman of the 
National Defense Committee, Mr. Cole Lyle, Executive Director 
of Mission Roll Call, and Ms. Kristina Keenan, Deputy Director 
of National Legislative Services for Veterans of Foreign Wars 
of the United States. I appreciate all of you being here today. 
I ask the witnesses to please stand and raise your right hand.
    [Witnesses sworn.]
    Thank you very much and let the record reflect that the 
witnesses have answered in the affirmative. Dr. Swanson, you 
are now recognized for 5 minutes for your testimony.

                  STATEMENT OF JEFFREY SWANSON

    Mr. Swanson. Good morning Mr. Chairman, Ranking Member 
Takano, and members of the committee. A challenging policy 
dilemma underlies arguments for and against the proposed 
Veterans 2nd Amendment Protection Act. On the one hand, private 
ownership of firearms is a constitutionally protected 
individual right that is especially cherished by many U.S. 
military veterans. As a group, veterans are twice as likely to 
own a firearm as the general population. On the other hand, 
veterans are dying every single day by suicide with firearms, 
in numbers exceeding the toll of those who perished in war. 
Each is a preventable tragedy of immense human cost.
    Suicide is the second leading cause of death in veterans, 
who are 57 percent more likely to die by suicide than non-
veteran adults. Veterans' greater access to firearms plays a 
key role in their increased risk of suicide. Veterans are far 
more likely than non-veterans to use guns, the most lethal 
weapon in suicide attempts. Approximately one in five suicides 
in the United States is a military veteran.
    A key policy question is, how do we find the right balance 
between mitigating risk and upholding rights in designing and 
implementing legal restrictions to veterans' access to 
firearms? No firearm restriction policy is perfect, and there 
will always be errors made in its application to individuals, 
false positives, and false negatives. Is it better for the law 
to err on the side of preserving the Second Amendment right for 
more veterans, even if it means that some will die preventable 
deaths? Or is it better to err on the side of saving more lives 
at the cost of restricting the gun rights of some veterans who 
would not have died by suicide anyway. Wherever the lines are 
drawn to mark out a category of people deemed sufficiently 
risky to override their Second Amendment right, we should 
aspire to provide due process protections and opportunities for 
appeal that are sufficiently robust to offer a meaningful and 
not overly burdensome chance for individuals to contest their 
deprivation in an adjudicative process, either by judicial 
authority or an administrative officer acting in that capacity. 
On that score, the current policy might be seen as a work in 
progress. It could be improved.
    We cannot know precisely each individual's likelihood of 
harming others or self with a gun. We know that some categories 
of people are generally associated with relatively higher risk. 
One such category comprises VA beneficiaries found incompetent 
to manage their VA affairs. The statistical evidence for this 
is indirect. It would be most informative to bring direct 
evidence to bear by studying the actual population of veterans 
with fiduciaries, to quantify their concentration of risk 
factors for dangerous behavior, and examine their specific 
suicide mortality rate with and without firearm involvement. 
Such a study has yet to be conducted.
    In the meantime, our research group carried out a study 
designed to estimate risk of suicidal behavior and 
interpersonal violence in veterans who are most likely to be 
assigned a fiduciary. We analyzed data on 3,200 post-deployment 
veterans from the Iraq and Afghanistan war era, we constructed 
three separate indicators of need for a fiduciary in these 
data, based on cognitive performance, substance use disorder, 
and acute psychopathology. We found that all three of these 
proxies for a fiduciary assignment were statistically 
significantly correlated with suicidal symptoms and 
interpersonal violence. This third indicator identified a small 
group of veterans who were, on average, eight times more likely 
than other veterans to have suicidal symptoms and to have 
engaged in violence.
    In summary, our research provided evidence consistent with 
the public safety rationale for the policy of fiduciary NICS 
reporting. However, I have also concluded that a somewhat 
analogous civilian policy of reporting incompetent Social 
Security beneficiaries to the NICS was not warranted. It was 
overbroad, not supported by evidence, and lacked due process. 
Policies that restrict access to firearms for people who pose a 
high risk of harming others or themselves can and do save 
lives. In this country, such policies need to find the right 
balance between mitigating risk and preserving rights. The 
current VA policy of reporting to the NICS the names of 
veterans who are assigned fiduciaries is not perfect. It could 
be improved, especially if guided by more research.
    We cannot know precisely each individual's likelihood of 
harming others or self with a gun. We know that some categories 
of people are generally associated with relatively higher risk 
and one such category comprises VA beneficiaries found 
incompetent to manage their VA benefits. The statistical 
evidence for this is indirect.
    In closing, I have a personal interest in this as well. My 
late father, a gun owner who served honorably in the United 
States Navy in the 1940's, was deemed incompetent by the VA 
toward the end of his life. I was his fiduciary and I 
understood clearly why he should not have access to guns. I 
have also lost three members of my extended family to gun-
related suicides and each of them was a preventable tragedy 
that caused immense suffering for their families and friends. I 
am happy to take your questions and provide further assistance 
to the committee.

    [The Prepared Statement Of Jeffrey Swanson Appears In The 
Appendix]

    The Chairman. Thank you, Dr. Swanson. Mr. Carey, you are 
now recognized for 5 minutes for your opening statement.

                     STATEMENT OF BOB CAREY

    Mr. Carey. Chairman Bost, Representative Takano, members of 
the committee, thank you very much for having me here today. I 
am Bob Carey of the National Defense Committee. I am going to 
probably be somewhat contrarian here, but I believe there are 
no constitutional rights to due process or to ownership of 
guns. These rights are inalienable and pre-exist the 
Constitution. The Second, Fifth, and Fourteenth Amendments do 
not grant those rights. They restrain the Federal Government 
from impinging upon those rights. That is what is not being 
provided by the current fiduciary program.
    The fiduciary program is effectively a gun control program. 
It does not matter who takes away the gun rights, whether VA or 
DOJ takes away the right. The previous VA officials admitted 
that the program saves lives, and from a policy perspective, 
they wanted to by controlling access to guns. When we talk 
about the VHA versus VBA, the Veterans Benefits Administration, 
as the previous official said, use VHA data to determine 
whether someone needs to go into the fiduciary program. Then 
the VBA uses that data to make the fiduciary determination. 
Then the VBA justifies reporting to the DOJ based upon that 
Veterans Health Administration data.
    The VA fiduciary program does not provide adequate due 
process. It does not meet the standards of the ATF regulations 
for mental defective. There is a presumption of incompetency. 
The burden of proof is on the veteran to prove their 
competency, not upon the VA to prove the veteran's 
incompetency. There is no judicial oversight or requirement as 
there is with the Social Security Administration's incompetency 
process that does require court action.
    There is no statistical correlation between gun access 
restrictions and reductions in suicide or mass shootings. As I 
detail in my report, in my written testimony, the RAND study 
did an extensive meta-analysis of all these different gun 
safety studies and found no statistical correlation, 
inconclusive evidence that either restricting access to guns 
because of mental health issues or emergency protective 
regulatory orders, you know, red flag laws, reduce suicides or 
mass shootings. As I detail in my testimony, my written 
testimony, the VA itself presented at the VA Department of 
Defense (DoD) Suicide Prevention Conference of 2019, an 
extensive study of about 7,300 suicide risk models and found 
that there is no capacity to predict that activity. In fact, 
when you have a--and in fact that it was able to positively 
predict 1 percent of the suicides, but that for every one 
suicide that was properly, that would be properly predicted, 
842 false positives would be predicted, but they would still be 
under the same fiduciary rule.
    Then the American Psychological Association said there is 
no statistical evidence that links any type of psychological 
illness to mass shootings--to gun violence. Then the National 
Academy of Sciences study that I referenced also said that 35 
percent of the veterans that were surveyed said they did not 
believe that their gun rights would be protected if they went 
to the VA. It does not matter, you know, whether, you know, 
whether the VA is the one that takes away your gun rights or 
the Department of Justice, your gun rights get taken away.
    What are our recommendations? We do not believe that VA 
will ever change on this. It is going to have to be 
legislatively mandated if we are going to provide those due 
process rights, not only on the gun rights issue, but on the 
underlying issue of due process rights for managing your own 
finances and managing your own--and managing your own 
healthcare. We need to place the burden of proof on the VA to 
prove incompetency, not upon the veteran to prove their 
competency. We need to refer positive decisions by the VA to 
the Court of Veterans' Appeals to give a judicial oversight, 
and we need to de-link the fiduciary program from reporting to 
the NICS data base.
    As far as the Peltz Act, we do support that. Given some of 
the concerns raised, which I think are legitimate about 
differentiation between different types of, you know, different 
types of final benefits being provided, my recommendation is 
you standardize it and standardize it across the board and just 
expand the Peltz Act and standardize it across the board. I 
look forward to your questions.

    [The Prepared Statement Of Bob Carey Appears In The 
Appendix]

    The Chairman. Thank you. Mr. Lyle, you are now recognized 
for 5 minutes.

                     STATEMENT OF COLE LYLE

    Mr. Lyle. Thank you, Chairman Bost, Ranking Member Takano, 
and members of the committee. On behalf of Mission Roll Call 
(MRC), a national nonpartisan program, and the roughly 1.4 
million veterans and supporters who have opted into our digital 
advocacy network, thank you for the opportunity to provide 
their feedback through our remarks on pending legislation.
    In 2022, Mission Roll Call sent out 30 policy-based polls 
with approximately 159,000 responses and spoke to 5,000 
veterans in person around the country seeking the ground truth. 
Based on those interactions, MRC's three main priorities are 
veteran suicide prevention, access to healthcare and benefits, 
and amplification of voices of traditionally underserved 
populations. As these topics are broad and complicated to 
tackle, MRC continuously polls veterans and supporters on a 
wide range of topics, usually when Congress, the VA, or the 
White House releases policy that may directly or tangentially 
affect veterans across the United States, or at the suggestion 
of a Member of Congress or committee that wishes to ascertain 
the veteran community's opinion on a particular topic. I 
welcome all members of this committee to use MRC as a resource 
as you seek to craft thoughtful legislation with respect to 
veteran issues.
    MRC supports H.R. 705, the Veterans 2nd Amendment 
Protection Act, as a necessity to ensure veterans receive the 
same due process as the average American whose rights they 
serve to protect. Currently, the VA is the only Federal agency 
to refer veterans to the FBI's NICS data base following a 
determination by agency officials, not a court, that the 
veteran cannot manage their own VA benefits. Under the Brady 
Act of 1993, Congress authorized the DOJ to receive data from 
government agencies on any person whose receipt or possession 
of firearms violated the Gun Control Act of 1968.
    As part of the implementation process, the VA defined a 
mentally incompetent person as ``one who because of injury or 
disease lacks the mental capacity to contract or to manage his 
or her own affairs, including of disbursement of funds without 
limitation.'' This determination does not include any 
consideration of whether the person is considered to have a 
propensity for violence or is considered a threat to themselves 
or others. Thus, for example, a veteran who during the 
determination process for disability compensation indicates 
that because of a traumatic brain injury, they are experiencing 
short-term memory loss which affects their ability to manage 
their finances, they could be determined to be mentally 
incompetent, even if there is no evidence that this veteran's 
condition would impair their ability to safely own or handle a 
firearm, or that they are a threat to themselves or others.
    Since 1998, VA has provided records to the FBI for 
inclusion in the NICS index on beneficiaries for whom a 
fiduciary has been appointed by VA on his or her behalf. The 
appointment of a fiduciary is based on a VA determination that 
they are mentally incompetent under the previously mentioned 
definition in VA regulations. As of December 2020, Federal 
agencies have contributed 263,225 records to NICS, of which the 
VA contributed 98.1 percent of the total number. This 
incongruity in the implementation of the law between the VA and 
other Federal agencies unfairly prejudices veterans by 
stigmatizing those who are challenged with service-related 
healthcare issues as inherently dangerous to others, when in 
fact several studies and data from the U.S. Bureau of Justice 
statistics show no evidence that military veterans, including 
those who saw combat, are more prone to lethal violence than 
the general population. Furthermore, veterans convicted of 
violent gun-related crimes in the Federal prison system 
accounted for less than 1 percent of the entire Federal prison 
population and were almost 7 percent less likely to be 
incarcerated for a gun-related charge than the civilian 
population, per the United States Sentencing Commission.
    Veterans across this country know that, despite challenges 
with a few bad apples, our community is one of service that 
abides by the laws they were sworn to protect, and in fact is 
less dangerous and less prone to extremism, as some have 
argued. These points are likely why, when asked about the VA's 
current policy of referral to NICS per the Brady Act in a 
recent MRC poll, 83 percent of 9,968 veterans said Congress 
should change the law.
    Finally, there are those who would use the alarming rate of 
veteran suicide to justify a lower standard of referral to 
NICS, citing access to guns as a prime driver of veteran 
suicide rates. While data from the U.S. Department of Veterans 
Affairs asserts veterans who kill themselves are more likely to 
use a firearm, they only track declared suicides and fail to 
account for self-injury mortality. Per recent studies, over 80 
percent of self-injury mortalities are overdose deaths. 
Accordingly, a more upstream approach to tackle veteran 
suicide, rather than focusing on the lethal means of carrying 
out the deed, would serve to prevent far more veteran suicide 
deaths. This is in line with the wishes of many veterans 
throughout the Nation who are begging the VA to approach 
suicide prevention in a more holistic way, looking proactively 
instead of reactively at the issue.
    The current status quo of fiduciary determination and 
referral to NICS for veterans simply undermines the spirit of 
justice veterans fought to defend, taking away a 
constitutionally enumerated right by a bureaucratic 
determination rather than a court order. The results of MRC's 
poll were clear. Congress should pass legislation protecting 
veterans' rights. Chairman Bost, Ranking Member Takano, this 
concludes my testimony and I am happy to answer any questions 
you or other committee members may have.

    [The Prepared Statement Of Cole Lyle Appears In The 
Appendix]

    The Chairman. Thank you Mr. Lyle. Ms. Kristina Keenan, you 
are now recognized for 5 minutes.

                  STATEMENT OF KRISTINA KEENAN

    Ms. Keenan. Chairman Bost, Ranking Member Takano, and 
members of the committee, on behalf of the men and women of the 
Veterans of Foreign Wars of the United States and its 
auxiliary, thank you for the opportunity to provide our remarks 
on legislation pending before this committee. The VFW supports 
the Ernest Peltz Accrued Veterans Benefits Act, which would 
ensure VA pension benefits are paid out for the entire month 
when a veteran passes away. By receiving the full month-of-
death payment, survivors would be able to better manage the 
financial hardships that come with a veteran's passing.
    The VFW also supports the Veterans 2nd Amendment Protection 
Act. This would establish due process for veterans with 
fiduciaries before VA refers them to the National Instant 
Criminal Background Check System or NICS. The Department of 
Veterans Affairs sends the names of all veterans in their 
system with fiduciaries to NICS and once referred, veterans are 
prohibited from purchasing, possessing, receiving, or 
transporting firearms.
    The fact is, VA is the only Federal entity that has made 
substantial referrals to NICS. Why? It comes down to 
definitions. The Brady Handgun Violence Prevention Act of 1993 
established that an individual adjudicated as a mental 
defective or who is committed to a mental institution may not 
own a firearm. The ATF further explains that this would include 
persons determined by a court, board, or commission to be a 
danger to themselves or others or lacks the mental capacity to 
contract or manage his own affairs.
    The VA has interpreted the law even broader within its own 
regulations. It defines a mentally incompetent person to be one 
who, because of injury or disease, lacks the mental capacity to 
contract or manage his or her own affairs, including 
disbursement of funds without limitation. The VA's 
interpretation concerns the VFW because once a veteran is 
determined to need a fiduciary, no other screenings or medical 
assessments are conducted. These would be key to learning if 
the veteran is a danger to themselves or others, or indeed 
lacks the mental capacity to manage aspects of their lives 
besides their finances. For example, take a veteran with severe 
PTSD who experiences debilitating anxiety when trying to go 
through their bills. While they may require assistance to 
ensure their bills are looked at and paid on time, the veteran 
may be capable of taking care of other aspects of their life 
and poses no threat to themselves or others. Without due 
process, veterans with fiduciaries may be wrongly referred to 
NICS, infringing on their Second Amendment rights.
    Furthermore, VA's practice of referring all veterans with 
fiduciaries to NICS has had a negative impact on veteran trust. 
Our members regularly tell us that they refuse to seek VA 
mental healthcare because they fear their firearms will be 
taken away. This has created a significant stigma around mental 
health and has created barriers to care. This perception is 
difficult to change. The VFW encourages veterans to use their 
earned VA healthcare, including the world-class veteran-
specific mental health services that VA provides.
    The VFW has also been involved in numerous efforts to 
reduce veteran suicide, including urging veterans in distress 
to consider using trigger locks or to temporarily give their 
firearms to a trusted friend to lessen the ease of using a 
firearm to harm themselves or others. The VFW also believes in 
looking at the economic factors that veterans face that can 
also put them at a risk for death by suicide. As we know, 
suicide is not solely a mental health or firearm issue.
    Last, though the VFW estimates that the problems 
surrounding fiduciaries likely affects a small number of 
veterans, we argue that every veteran deserves protection of 
their constitutional rights. Chairman Bost, Ranking Member 
Takano, this concludes my testimony. I am prepared to take any 
questions you or the committee may have. Thank you.

    [The Prepared Statement Of Kristina Keenan Appears In The 
Appendix]

    The Chairman. Thank you, and I would now like to go to 
questions. I will recognize myself for 5 minutes. Now this is 
for anyone on the panel, or all of you on the panel. Do you 
believe an American citizen is due their day in court before 
they lose a constitutional right?
    Mr. Carey. Yes.
    Mr. Swanson. Yes.
    Mr. Lyle. Yes.
    Ms. Keenan. Yes.
    The Chairman. This is for the whole panel as well. Do you 
believe that veterans fought to defend those constitutional 
rights?
    Mr. Lyle. Absolutely.
    Ms. Keenan. Yes.
    Mr. Swanson. Mm-hmm.
    Mr. Carey. Yes.
    The Chairman. Do you believe that veterans have been 
trained on how to handle a gun?
    Mr. Swanson. Yes.
    Ms. Keenan. Yes.
    Mr. Lyle. Yes.
    Mr. Carey. Yes.
    The Chairman. Do you think it is logical to assume that 
veterans are better suited to handle a gun safely compared to 
the average citizen?
    Mr. Swanson. Yes.
    Mr. Carey. Probably.
    The Chairman. Yes. Okay. Given that, do you think a 
veteran, at the very minimum, should have the same due process 
rights as every other American before they lose their 
constitutional right?
    Mr. Swanson. Yes.
    Mr. Carey. Yes.
    Mr. Lyle. Yes.
    Ms. Keenan. Yes.
    The Chairman. Okay. With that being said, remember what we 
are trying to do here. What we are trying to do is make sure 
that it is not, regardless of what was said earlier, a 
bureaucrat, but a court of law, that makes a decision to remove 
a constitutional right based on evidence that is found.
    Ms. Keenan, would you please elaborate on the consequences 
of the VA current practices of reporting veterans with a 
fiduciary to the NICS list has had with respect to perpetuate 
the broken veteran stigma?
    Ms. Keenan. Thank you, Chairman, for that question. The 
current VA process of referring veterans to the NICS list has 
created mistrust with veterans in regards to VA mental 
healthcare. When we talk about suicide prevention, there are 
risks to veterans not seeking mental healthcare. We want to 
consider that as a factor. We want to encourage veterans to 
come to VA for their mental healthcare. If that trust is 
broken, then we also look at this as a suicide marker. Thank 
you.
    The Chairman. Thank you. Mr. Carey, are you familiar with 
the research done by Dr. Swanson? Do you have any comments with 
that?
    Mr. Carey. Well, yes, I did read over the--I appreciate him 
attaching the report, the Informing Federal Policy on Firearm 
Restrictions. I think there is some, sorry, I think there is 
some methodological issues here that may overestimate the 
amount of positive flags. You know, for the proxy regarding 
illicit drug use, it is any diagnosis of drug abuse except 
alcohol. In the substance use disorder cases that I have seen, 
not only is it comorbid to have alcohol and illicit drug abuse, 
but alcohol itself is pretty darn bad. In the example that he 
used in his study, in the case of Clemons v. Shinseki, it was 
about cannabis. Basically, the court was deciding that the 
fiduciary ruling was adequate because the continued cannabis 
use is detrimental to Mr. Clemon's further progress and needs 
to be stopped. Now, at the same time, this committee, the 
Senate Veterans Affairs Committee have been discussing how to 
expand the availability of cannabis for veterans. Where does 
this stand?
    On the IQ based, there is a, you know, there is a--for all 
these proxies, 74 were flagged as hitting the IQ proxy, but 
only 14 of them were flagged as having a suicide risk. Seventy-
two were flagged as hitting the substance abuse proxy, but only 
14 of them were flagged as suicide risks. Of the 294 who 
reported violent behavior, only 13 of the IQ flags, 18 of the 
substance abuse flags, and 39 of the severe mental illness 
flags were classified to be at risk of fiduciary need.
    Dr. Swanson goes through and points out a number of 
limitations to his studies, such as self-reported suicidal 
ideation and troubling controlling violent behavior do not 
directly assess the risk of misusing a firearm. The public 
safety case for reputative risk-based reporting to NICS is 
weaker for veterans identified solely by the illicit drug abuse 
proxy or intellectual impairment. I think this, you know, lines 
up with the VA study that I talk about in my report, that in my 
testimony that goes on about how there is really no 
statistically significant predictive methodologies.
    The Chairman. Thank you. My time has expired. Ranking 
member, I recognize you for 5 minutes.
    Mr. Takano. Thank you, Mr. Chairman. Dr. Swanson, 
recognizing that no system is perfect, does your research lead 
you to believe the fiduciary assignment process is a sufficient 
proxy for a direct determination of dangerousness as it is 
currently constituted?
    Mr. Swanson. I think it is the best we have available now, 
and I think we need to be careful not to make the perfect the 
enemy of the good enough as we try to find our way, perhaps, to 
a better policy in the future. As I mentioned in my testimony, 
the evidence for the fiduciary being correlated with risk is 
indirect. It would be better if we had a direct study of the 
individuals who have been assigned fiduciaries. I would be 
eager to conduct such a study in collaboration with VA. As for 
now, the problem we are addressing is that all of the risk 
factors for suicide and for violence are nonspecific and they 
are going to apply to more people who are not going do the 
thing we are trying to prevent.
    Unfortunately, when we balance probability of a poor 
outcome, we have to think about the consequence we are talking 
about. If it is going to be catastrophic, somebody's going to 
die, someone's life is going to be cut short with loved ones 
left behind, maybe it is important to, you know, have a 
probability that is going to try to save that life.
    Mr. Takano. Well, in terms of your pragmatic observation, 
if I could restate it, the result of a false positive in this 
case is that a veteran will not be able to buy a gun if they 
are put on the NICS list. The result of a false negative is 
that a veteran dies, potentially. You are conceding that we 
have indirect evidence and you are saying that you would think 
that we should need, that we should pursue studies that offer a 
more direct understanding. I would agree with you. I would say 
that the committee should not rush into a bifurcation or 
separation of the determination process and the NICS list, but 
that we should hold steady for the sake of caution, the 
practical result of which would be potentially saving veterans 
lives. We do not know that for sure with absolute certainty.
    Perhaps this committee should be interested in pursuing and 
urging VA, or requiring VA, or mandating VA to do more studies, 
to get more information, to look at the data more carefully. 
What do we know currently from the data we do have and the 
analysis we do have, what do we know about the population of 
veterans, of beneficiaries assigned a fiduciary with respect to 
their increased risk for death by suicide?
    Mr. Swanson. Again, we do not have direct evidence of the 
veterans who have been assigned fiduciaries because we have not 
studied those individuals directly. What we can do is make an 
inference based on people who look like them, other veterans. 
There, in terms of relative risk, if we think about suicidal 
ideation in the first two proxies we talked about, it is 
probably about twice as high. The third one with regard to 
acute psychopathology, which is having a disorder like 
schizophrenia that impairs the brain's ability to reason or to 
regulate mood in the case of bipolar disorder. In addition to 
that, having been hospitalized as a criterion and having active 
symptoms. That, as in terms of relative risk, was eight times 
more likely to have suicidal ideation or violent behavior.
    Again, it is relative risk. We have to keep that in mind in 
terms of, you know, balancing out the efforts to mitigate risk 
and to uphold the right that we are talking about, because 
there is a constitutional right at stake.
    Mr. Takano. As I was suggesting in my statement, would it 
not be more prudent to wait until we had additional information 
before plowing forward with the reforms my colleagues are 
proposing in the bill we are considering today?
    Mr. Swanson. I think so. I think in the meantime, it seems 
unwise to me to simply scrap the reporting policy that is been 
in place for decades without having something better to put in 
its place.
    Mr. Takano. Thank you. Before yielding back, I just want to 
say that, you know, the rights, if you believe that they pre-
existed the Constitution, that the Constitution attempts to 
preserve, was a practical attempt by very practical men, 
objected to by Abigail Adams, who felt that John Adams had 
forgotten about the ladies. That ultimately they were 
practical, but the Constitution itself had some very serious 
flaws and serious compromises within it. Nevertheless, you 
know, I think in the spirit of the pragmatism of our founding 
fathers that we should err on the side of caution in this case 
and practicality. I yield back.
    Mr. Rosendale. Thank you very much. I will now recognize 
Representative Self for 5 minutes of questioning.
    Mr. Self. I think I heard one of you in your testimony say 
we need to normalize under the second bill that we are--
normalize when death happens, normalize all of that. I think 
that is a pretty good solution.
    I want to go back to the Bill of Rights, though, just real 
simply, and it will not take long, there is a preamble to the 
Bill of Rights. Not the preamble to the Constitution itself, 
but a preamble to the Bill of Rights. The Constitution to the 
Bill of Rights is very clear that the states wanted another set 
of amendments, a set of amendments that would further constrain 
the Federal Government. It is very clear in the preamble that 
this is not, they were being very pragmatic, that the 
Constitution itself, the articles themselves in the body of the 
Constitution did not go far enough in limiting the Federal 
Government. That is why we have the first 10 amendments to the 
Constitution. They set that high bar. I appreciate the 
testimony of all of you here. I am going to leave it at that. 
There is not a question here. I just want to point out that the 
preamble to the Bill of Rights is very important to tell us why 
we have the first 10 amendments to the Constitution. Thank you. 
I yield back.
    Mr. Rosendale. Thank you very much, Representative Self. I 
will now recognize Representative Van Orden for 5 minutes of 
questioning.
    Mr. Van Orden. Thank you, Mr. Chairman. Were you here 
earlier, sir, Mr. Swanson?
    Mr. Swanson. Was I here? Yes.
    Mr. Van Orden. Were you here for the first panel?
    Mr. Swanson. Yes.
    Mr. Van Orden. Okay, so I do not have to go through the 
whole thing----
    Mr. Swanson. Yes.
    Mr. Van Orden.--that Mr. Takano was referring to. It is 
very easy to legislate the removal of an inanimate object. I 
have been carrying weapons my entire adult life. It is very 
easy to legislate removing that. It is nearly impossible to 
legislate the healing of a man's soul. That is the core issue 
here. It is not the weapon. It is the soul of the person that 
has been injured by combat, and I had multiple combat tours. 
What you are doing, sir, is chasing a symptom. You are not 
looking at the root cause.
    I understand that you volunteered to study this again. I 
read your resume. It is incredibly impressive and tragic at the 
same time. I am very sorry about your family's history. It is 
just terrible. Your academic record is incredibly impressive. 
It just seems like you want to do more of the same, study, 
study, study, study, study.
    On a philosophical level, the Constitution of the United 
States has a provision that is written into it that allows you 
to change the Constitution if you feel that it has been in 
error or it needs addition. That is the amendment process. The 
Eighteenth Amendment was passed that prohibited the sale of 
alcohol in the United States of America. It was in play for 
like 3 years and they realized it was a terrible mistake 
because it had increased organized crime and it was repealed.
    The original error that Mr. Takano is referring to was not 
just an error, it was the original sin of the United States of 
America the compromise was made to count human beings as 2/3 of 
one person if they had more melanin in their skin than other 
people. That was horrible. The finest, in my opinion, amendment 
that has ever passed in the United States of America is the 
Thirteenth, which got rid of slavery and indentured servitude. 
In the spirit of the Eighteenth and the Twenty-first Amendment, 
which repealed it, are you calling for the repeal of the Second 
Amendment?
    Mr. Swanson. I am not. I am prepared to accept the way the 
Supreme Court has interpreted the Second Amendment and to try 
to work within the exception in Justice Scalia's statement in 
Heller that the right is not unlimited. It falls to us to try--
--
    Mr. Van Orden. That is correct. In the Reading Law, in the 
book Reading Law, Antonin Scalia goes through the developmental 
process of the Second Amendment. I think that you are 
misinterpreting what he is saying. Now listen to me here, what 
we are doing is we are subverting the Second Amendment.
    The Veterans Administration does not have the authority to 
remove constitutional rights now or ever. This body, including 
my Democrat colleagues, are the only body that are chartered by 
our Constitution that can change it. You are not. Neither is 
he. You cannot do that. You are actively, willfully, and 
knowingly subverting the Constitution of the United States of 
America, and that will not stand with this body, sir. Either 
you amend the Constitution, which is incredibly difficult on 
purpose so you cannot willy nilly change these things. It takes 
a very deliberative and hard-fought process. We watched the 
movie Lincoln last night as a body. It was fantastic. It was a 
2-month period of time about the ratification of the Thirteenth 
Amendment, which freed men and helped correct the original sin 
in this country. It was 20 Democrats voted for that. If they 
had not, it would not have passed.
    Either you call for the repeal of the Second Amendment or 
you stop doing this. You stop doing this. Knock it off. You are 
subverting the constitutional rights of American citizens, and 
you do not have that authority. We do.
    Mr. Swanson. May I----
    Mr. Van Orden. That is all I have to say. Yes sir, please 
comment, Mr. Swanson.
    Mr. Swanson. I certainly concede that we cannot broadly 
limit legal access to guns in this country.
    Mr. Van Orden. Well then do not.
    Mr. Swanson. What we have to do is something more 
difficult, and that is to figure out who are the people who 
pose such a high risk of harming themselves or others that it 
is justified to limit their Second Amendment Right.
    Mr. Van Orden. Mr. Swanson, you are a clinical psychologist 
who has been in this field for almost 40 years, and you have 
not figured it out yet? Then maybe you should look at----
    Mr. Swanson. I----
    Mr. Van Orden.--a different vocation, sir.
    Mr. Swanson. I think we have made a lot of progress on that 
score. I think we have some evidence.
    Mr. Van Orden. We have not. Veteran suicide is increasing. 
That is not true. That is not true. We have spent $19 billion 
in 2023 on suicide prevention and suicides are increasing. So, 
your----
    Mr. Swanson. We need to----
    Mr. Van Orden.--your methodology has been proven to be bad 
and I have no more time, sir. With that I yield back. Thank 
you.
    Mr. Rosendale. Thank you, Representative. I am now going to 
recognize myself for a line of questioning. Ms. Keenan, thanks 
for your testimony. You mentioned that currently the VA sends 
the names of all veterans who have fiduciaries to the NICS, the 
NICS system. Can you explain why this violates due process and 
is harmful to veterans?
    Ms. Keenan. Thank you for the question. The VFW believes 
that veterans are owed due process in this process. It is 
clear, and we have discussed it today, that that is lacking in 
this process and unfairly discriminates veterans from a step 
further that is necessary to determine if they should even be 
referred to that list.
    Mr. Rosendale. Thank you very much. You mentioned that the 
Social Security Administration does not report information to 
NICS of people who have been assigned to pay. Why is this?
    Ms. Keenan. It is our understanding that the Social 
Security Administration has a rigorous process if they are ever 
to do that. At this point, the VA has a simplified process, and 
we think that does not go far enough to screen veterans, to 
look at additional medical evidence, to understand if they 
should be referred to NICS or not.
    Mr. Rosendale. Ms. Keenan, finally, thank you for pointing 
this out. It seems to me that veterans are being held basically 
to a different standard than the rest of the population. They 
are simply being deprived of their Second Amendment rights. I, 
as many of you do, believe that this is wrong. Can you 
elaborate on how this is a complete violation?
    Ms. Keenan. The assumption that veterans are at more of a 
risk of violence or harm to themselves or others is in and of 
itself a harmful notion. Veterans, their rights should be 
protected. They serve this country to protect our Nation's 
rights, and so we ought to protect their own individual rights. 
Our fear is that, as VFW members tell us, that the mistrust 
with VA and seeking mental healthcare is a major issue, and we 
need to take that into consideration with these policies.
    Mr. Rosendale. Mr. Lyle, you made mention of that as well, 
that there are veterans who do not seek the treatment that they 
not only have earned and deserve, but need, because of fear of 
losing their Second Amendment rights. Can you expand on that a 
little bit?
    Mr. Lyle. Well, thank you for the question, Mr. Chairman. I 
think when you look at this problem in context, less than 50 
percent or about 50 percent of veterans do not utilize the VA 
or are not enrolled in VA healthcare and even less use it on a 
regular basis. I would assume that some of those veterans do 
not use it because there is a perception, now whether it is 
right or wrong, it is still felt true, that their Second 
Amendment rights would be infringed upon if they sought 
healthcare, not just mental healthcare, but especially mental 
health care at the VA.
    Mr. Rosendale. Thank you very much. Mr. Carey, we have 
heard that no other department or agency uses this policy of 
reporting to NICS, thereby putting into action whether the VA 
themselves are responsible for implementing it or not. It puts 
into action the process of violating Second Amendment rights of 
all of our veterans. Is there a special carve out? Are you 
familiar with any special carve out in the Brady Act or is this 
just an overreach by the VA?
    Mr. Carey. I was a Senate staffer back in 1998, and I 
remember when this was all going down. What I remember is that 
the Clinton administration was concerned that there were not 
enough names in the NICS data base, which is a big part of the 
Brady Handgun Violence Prevention Act. That they were looking 
at ways in order to be able to make sure that all the Federal 
agencies were indeed reporting.
    Now you know, the Department of Defense agencies that were 
talked about as reporting, that is the dishonorable discharges 
that they are reporting. They are not reporting mental 
healthcare cases. They are not reporting financial 
mismanagement cases. They are only reporting the dishonorable 
discharges.
    Social Security Administration, you know, to the extent 
that they do find incompetence, they only find incompetence 
when a court order says so, and they do not report. As I 
understand, you know, during that process, basically VA was 
called upon to start, you know, to comment on their regulation 
and to say, well, hold it, we have all these fiduciaries. They 
should be classified as mental defectives and we will start 
reporting that. That is where it came from.
    Mr. Rosendale. Thank you very much. Ms. Keenan, one last 
question for you. I myself have hosted at my ranch in Montana 
several Wounded Warriors programs and the hunters come out and 
whether they are pheasant hunting for the day or deer hunting 
for the day, the Wounded Warriors program and the sponsors for 
the day typically purchase firearms for those veterans that 
they keep, they retain. Would then they be in violation of 
Federal law or in conflict with this statute that is currently 
being implemented by receiving as a gift a firearm from Wounded 
Warriors Program when they otherwise would be prohibited from 
going to the sporting goods store and purchasing one if they 
had been utilizing services of a fiduciary?
    Ms. Keenan. That is a possible scenario, unfortunately. If 
they, indeed have been reported to NICS, that could be an issue 
for them.
    Mr. Rosendale. Thank you so much. I thank you all so much 
for your testimony. I will now turn to Ranking Member Takano if 
you have any closing remarks.
    Mr. Takano. Thank you, Mr. Chairman. Thank you again for 
our witnesses. Thank you to our witnesses today for being here 
and contributing to the discussion. Mr. Chairman, at no time 
during this hearing have you heard anyone on our side of the 
aisle assert that the fiduciary program is infallible. No 
policy or program is, and to state otherwise would be 
disingenuous. However, what we have said and will continue to 
say is that any change to a program or policy must be evidence-
based and data-driven. In the case of VA's fiduciary program, a 
program designed to protect the most vulnerable veterans from 
both financial and physical harm, we must be especially careful 
not to put more veterans at risk. Democrats are more than 
willing to have a debate on the merits of this program under 
those parameters.
    Unfortunately, Mr. Chairman, this committee is embarking 
down a different path, and it is trotting out a highly charged, 
highly partisan bill that precludes us from having a reasoned 
and nuanced debate. I assure you, Mr. Chairman, that if you 
insist on pushing this bill through this committee, and perhaps 
even the floor of the House, it will die a quiet death in the 
Senate. If for some reason it did pass the Senate, I guarantee 
the President will not sign such a faulty piece of legislation.
    I implore you, Mr. Chairman, if you actually are attempting 
to address what you feel to be a problem, pull back from this 
course and let us get to work on a bill that may actually have 
a chance of becoming law and does not inject more bureaucracy 
or harm into the system. There is absolutely room for 
compromise on this issue, but it involves inclusion of things 
like lethal means training and safe storage and handling and 
commonsense ideas that are actually proven to prevent suicide.
    Sadly, I fear that my Republican colleagues would rather 
use this as a messaging bill to score cheap political points, 
because for some reason, you are reflexively against those 
things. Again, that begs the question, how serious are you 
about actually addressing this topic? The answer to that 
question has been made painfully obvious during this hearing. 
It is not serious at all. Democrats stand ready to engage on 
this topic in an informed and reasoned way. What Republicans 
have put forth here today is a philosophical debate about the 
absoluteness of the Second Amendment. They have made this 
argument in the absence of data to push legislation without 
safeguards that will have real life consequences for veterans.
    Nowhere in these debates have Republicans presented an 
example of a veteran's firearm being confiscated, but they have 
perpetuated that fear. Nowhere in this debate have they even 
presented an example or any quantification of veterans assigned 
a fiduciary and subsequently reported to NICS that have asked 
for assistance. This bill is, you know, a solution in search of 
a problem. Mr. Chairman, it seems as if this committee is 
intent on letting politics win over sound policy and to me that 
is very regrettable and I yield back.
    The Chairman. I thank the Ranking Member for yielding back 
and I thank the witnesses for being here today. I look forward 
to addressing the issues these bills are written to fix on 
behalf of the men and women who are serving our Nation. With 
that, I need to also say that we actually did bring out a lot 
of facts on where we are at. That this is not about guns, I 
said that. This is about a constitutional right. I am not 
trying to make political hay, neither are anyone of my members 
on this side of the aisle, though it was said in the closing 
statement.
    What we are doing is, is we are trying to make sure that 
everyone, especially our veterans, receive the rights that they 
have under the Constitution and that they can keep those 
rights. That they have due process, not due process by 
bureaucrats. You can say, well, that is not really bureaucrats. 
Yes, it is, you are bureaucrats. Everyone else has to go before 
a judge, a judge, a person that we have assigned in our 
judicial system to weigh the evidence of whether or not someone 
should have their Second Amendment rights removed. The fact 
that we are doing this and have been doing this with those 
people who have served this Nation to protect the rights for 
every other person out there, it is not a problem in search of 
a solution--a solution in search of a problem. It is a real 
live fact that some people, matter of fact, what was the 
numbers here? Let me see. In 2022, 14,158 were ruled 
incompetent and then turned over to the NICS. Already this 
year, 8,431. Of that going through the process in 2022, there 
were 12 that were reversed. In 2023 so far, there has been two 
that have been reversed.
    It is a legitimate issue. I unfortunately in both the 
opening and closing remarks, which I hope were written by 
staff, basically said that this is not happening and that we 
are scaring veterans, but yet veteran service organizations are 
giving testimony that they are talking about this. They might 
not be talking about it in California. I think they probably 
are. I know they are talking about it in deep Southern Illinois 
and the other areas around this Nation that it discourages our 
men and women that are veterans from seeking the help that they 
truly need that is available and presented well. I want to be 
very, very clear. You can say that the VA does not take away 
their rights. They do not. They simply turn them over to the 
NICS list and they take away the rights. That is the way it 
works. They do not have a judge to make that decision. All we 
are trying to do is make sure that the rights of our veterans 
are the exact same rights that every other citizens have.
    With that, I want to ask unanimous consent that all members 
have 5 legislative days in which to revise and extend their 
remarks and include any extraneous material. Hearing no 
objections, so ordered. This hearing is now adjourned.
    [Whereupon, at 12:20 p.m., the committee was adjourned.] 

      
      
      
      
 
 
 
      
      
      
      
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                     Prepared Statement of Witness

                              ----------                              

                    Prepared Statement of Ron Burke 
                    
                    
               [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 


                 Prepared Statement of Jeffrey Swanson

    Good morning, Mr. Chairman and members of the Committee. Thank you 
for this opportunity to submit testimony regarding H.R. 705, Veterans 
2nd Amendment Protection Act. My purpose today is to share some 
relevant information from scientific research to assist the Committee 
in making an evidence-based legislative decision--one that will protect 
the safety of military veterans who pose a high risk of suicide, while 
also respecting the Constitutional right to bear arms.
    In my professional capacity, I serve as Professor in Psychiatry and 
Behavioral Sciences at the Duke University School of Medicine. I am 
also a faculty affiliate of the Wilson Center for Science and Justice 
and the Center for Firearms Law at Duke Law School. However, I speak 
for myself today and not officially on behalf of these institutions.
    I hold a PhD in medical sociology from Yale University with 
additional postdoctoral training in psychiatric epidemiology and mental 
health services and policy research at Duke University and the 
University of North Carolina at Chapel Hill.
    As a social scientist and researcher, I have spent more than three 
decades of my career conducting interdisciplinary studies to build 
scientific evidence for interventions, policies and legal tools to 
improve outcomes for adults with serious behavioral health challenges 
in the community, and to reduce firearm-related violence and suicide.
    For nearly a decade, until last year, I also held a part-time 
appointment in the VA Medical Center in Durham, NC, as a research 
scientist affiliated with VA's VISN 6 Mid-Atlantic Mental Illness 
Research, Education, and Clinical Center (MIRECC). In that capacity, I 
devoted myself to conducting research studies on the specific question 
of how best to prevent suicide in the U.S. military veteran population.
    Also in this topical area of research, I now serve as the principal 
investigator of a federal grant to Duke University from the National 
Institute of Mental Health for a multi-site study known as VESPER, 
designed to develop better suicide risk-prediction models for military 
veterans who receive healthcare in civilian, non-VA healthcare systems.
    I have a personal concern for preventing suicide, too, as three 
members of my own extended family died of suicide using a firearm. I 
know from experience how these tragedies can rip through families and 
communities across generations.
    I deeply respect military veterans and care about their safety and 
well-being for another personal reason as well. My father, the late Dr. 
Wallace Swanson, served honorably in the United States Navy in the mid-
1940's. After he reached the age of 90, my dad became a VA 
beneficiary--at a time when he suffered from chronic pain and 
significant cognitive decline.
    The VA found my father to be incompetent to manage his VA benefit 
funds due to his health condition, and in due course appointed me to 
serve as his fiduciary; I did so gladly for several years and am thus 
familiar with the fiduciary examination, appointment and reporting 
process. I remain grateful for the kind and able assistance of a field 
examiner at VA's Milwaukee Fiduciary Hub.
    My father had owned rifles and shotguns in his younger years. He 
enjoyed hunting as an outdoor recreational activity, and he taught me 
to shoot safely and responsibly when I was a boy. When the time came 
for me to care for my dad and to manage his money in the last season of 
his life, I understood why the VA notified him that they were sending 
his name to the National Instant Check System. While he was never 
determined in a legal proceeding to be a specific danger to himself or 
others, I understood why he would be legally disqualified from 
accessing firearms from that point on.
    Last October, my father passed away peacefully of natural causes. I 
proudly display in my home office the flag that I received from the 
U.S. Government in his honor ``on behalf of a grateful nation.'' I miss 
him still.
    I am not here to express my personal opinion on the benefits or 
drawbacks of VA's longstanding practice of reporting the names of 
incompetent beneficiaries such as my father to the NICS, nor my opinion 
on whether to enact H.R. 705 in its current form; that is for you as 
lawmakers to decide. Instead, I would like to use this opportunity to 
present the results of a relevant research study that my colleagues and 
I published in 2018 as a peer-reviewed article in a policy studies 
journal with a long name: Administration and Policy in Mental Health 
and Mental Health Services Research. Our paper is titled: ``Informing 
Federal Policy on Firearm Restrictions for Veterans with Fiduciaries: 
Risk Indicators in the Post-Deployment Mental Health Study.'' I have 
attached a copy of the published article to my written testimony.\1\
---------------------------------------------------------------------------
    \1\ Swanson JW, Easter MM, Brancu M, VA Mid-Atlantic MIRECC 
Workgroup, Fairbank JA (2018). Informing Federal policy on firearm 
restrictions for veterans with fiduciaries: risk indicators in the 
Post-Deployment Mental Health Study. Administration and Policy in 
Mental Health and Mental Health Services Research 4, 673-683.
---------------------------------------------------------------------------
    Our study amounts to an empirical evaluation of the public safety 
rationale for prohibiting veterans with fiduciaries from accessing 
firearms. To do this, we analyzed data on 3,200 post-deployment 
veterans from the Iraq and Afghanistan war era. We constructed three 
separate indicators of need for a fiduciary in these data and then 
examined the statistical correlation between the indicators and 
veterans' self-reported suicidal symptoms and violent behavior.
    The first measure relied on a standard test of cognitive 
performance, falling below a cutoff score indicating both mental 
incapacity and functional impairment. This widely used measure 
identified 74 of the 3,200 veterans in the study, or 2.3 percent of the 
sample. About 1 out of 5 of these individuals were then found to pose a 
suicide risk--a rate twice as high as the rate among those without the 
indicator of cognitive decline.
    The second indicator of fiduciary need relied upon evidence of drug 
abuse. This criterion identified a similar proportion of veterans--just 
over 2 percent--and was similarly associated with increased risk of 
suicidality as well as with a self-report measure of interpersonal 
violence; the rate of both of these kinds of injurious behaviors was 
about twice as high among those with the substance abuse indicator of 
fiduciary need.
    The third indicator rested on evidence of acute psychopathology, 
meeting diagnostic criteria for a serious psychiatric disorder such as 
schizophrenia or bipolar disorder, with a history of inpatient 
psychiatric hospitalization, as well as some reported active symptoms 
in the past year. This indicator of fiduciary need in veterans was 
associated most strongly with increased risk of both suicidality and 
interpersonal violence--about 8 times higher in each case.
    Demographic, clinical, service-use and combat exposure 
characteristics were also included in our statistical analysis. 
Clinical variables included self-reported service-connected mental 
health disability, trauma and traumatic life events, traumatic brain 
injuries, drug or alcohol use problems.
    In summary, our research provided evidence consistent with a 
public-safety rationale for the policy of separating firearms from 
veterans found mentally incompetent to manage their VA benefits and 
assigned a fiduciary.
    Suicide is a top-tier public health problem in the U.S., and 
suicides among military veterans represent an important part of that 
problem. More veterans have died by suicide than in our wars--mostly by 
firearms. Veterans carry a unique burden of medical, psychological, and 
social risk factors, often compounded by ready access to lethal means. 
Firearms are involved in most veteran suicide deaths. Nearly 1 in 5 
firearm suicide decedents in the U.S. is a veteran.\2\, \3\ 
Veterans are more likely than civilians to own firearms,\4\ to use them 
in suicide attempts,\5\ and to die from suicide attempts; approximately 
90 percent of firearm suicide attempts are fatal, compared with 3 
percent of drug overdose suicide attempts.\6\, 
\7\,\8\  Thus, firearms contribute significantly to 
veterans' excess burden of suicide mortality.
---------------------------------------------------------------------------
    \2\ Web-based Injury Statistics Query and Reporting System 
(WISQARS) [online]. Accessed May 18, 2021.
    \3\ U.S. Department of Veterans Affairs, Office of Mental Health 
and Suicide Prevention. 2021 National Veteran Suicide Prevention Annual 
Report.
    \4\ Cleveland EC, Azrael D, Simonetti JA, Miller M. Firearm 
ownership among American veterans: findings from the 2015 National 
Firearm Survey. Inj Epidemiol 2017;4(1):33.
    \5\ U.S. Department of Veterans Affairs, Office of Mental Health 
and Suicide Prevention. 2021 National Veteran Suicide Prevention Annual 
Report.
    \6\ Conner A, Azrael D, Miller M. Suicide case-fatality rates in 
the united states, 2007 to 2014: A nationwide population-based study. 
Ann Intern Med 2019;171(12):885-895.
    \7\ Elnour AA, Harrison J. Lethality of suicide methods. Inj Prev 
2008;14(1):39-45.
    \8\  Fowler KA, Dahlberg LL, Haileyesus T, Annest JL. Firearm 
injuries in the United States. Prev Med 2015;79:5-14.
---------------------------------------------------------------------------
    Policies and laws that find the right balance between risk and 
rights in separating firearms from veterans at risk of suicide will 
save lives.
    I am happy to take your questions and to provide any further 
assistance the Committee might like in making this important decision.
    Thank you. 
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
        
                    Prepared Statement of Bob Carey 
                    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

                    Prepared Statement of Cole Lyle

    Chairman Bost, Ranking Member Takano, and members of the committee, 
on behalf of Mission Roll Call, a non-partisan program of America's 
Warrior Partnership, and the roughly 1.4 million veterans and 
supporters who have opted-in to our digital advocacy network, thank you 
for the opportunity to provide their feedback through our remarks on 
pending legislation.
    In 2022, Mission Roll Call sent out 30 policy-based polls with 
approximately 159,000 responses and spoke to 5,000 veterans in-person 
around the country, seeking the ground truth. Based on those 
interactions, MRC's three main priorities are veteran suicide 
prevention, access to healthcare and benefits, and amplifying the 
voices of traditionally underserved populations. As these topics are 
broad and complicated to tackle, MRC continuously polls veterans and 
supporters on a wide range of topics, usually when Congress, the VA, or 
the White House releases policy that may directly or tangentially 
affect veterans across the United States, or at the suggestion of a 
Member of Congress or committee that wishes to ascertain the veteran 
communities' opinion on a particular topic. I welcome all members of 
this committee to use MRC as a resource as you seek to craft thoughtful 
legislation with respect to veteran issues.

H.R. 705, Veterans 2nd Amendment Protection Act

    MRC supports H.R. 705, the Veterans 2nd Amendment Protection Act, 
as a necessity to ensure veterans receive the same due process as the 
average American, whose rights they served to protect.
    Currently, the VA is the only federal agency to refer veterans to 
the FBI's NICS data base following a determination by agency officials, 
not a court, that the veteran cannot manage their own VA benefits.
    Under the Brady Act of 1993, Congress authorized the DOJ to receive 
data from government agencies on any person whose receipt or possession 
of firearms violated the Gun Control Act of 1968. As part of the 
implementation process, the VA defined a ``mentally incompetent 
person'' as ``one who because of injury or disease lacks the mental 
capacity to contract or to manage his or her own affairs, including 
disbursement of funds without limitation.'' This determination does not 
include any consideration of whether the person is considered to have a 
propensity for violence or is considered a threat to themselves or 
others. Thus, for example, a veteran who during the determination 
process for disability compensation indicates that because of a 
traumatic brain injury he is experiencing some short-term memory loss 
which affects his ability to manage his finances, could be determined 
to be ``mentally incompetent'' even if there is no evidence that this 
veteran's condition would impair his ability to safely own or handle a 
firearm or that he is a threat to himself or others.
    Since 1998, VA has provided records to the FBI for inclusion in the 
NICS index on beneficiaries for whom a fiduciary has been appointed by 
VA on his or her behalf. The appointment of a fiduciary is based on a 
VA determination that the beneficiary is ``mentally incompetent'' under 
the previous mentioned definition in VA regulations. As of December 
2020, federal agencies have contributed 263,225 records to NICS, of 
which the VA contributed 98.1 percent of the total number.
    This incongruity in the implementation of the law, between the VA 
and other federal agencies, unfairly prejudices veterans by 
stigmatizing those who are challenged with service-related healthcare 
issues as inherently dangerous to others, when in fact, several studies 
and data from the U.S. Bureau of Justice Statistics show no evidence 
that military veterans--including those who saw combat--are more prone 
to lethal violence than the general population.\1\ Furthermore, 
veterans convicted of violent gun-related crimes in the federal prison 
system accounted for less than 1 percent of the entire federal prison 
population and were almost 7 percent less likely to be incarcerated for 
a gun-related charge than the civilian population, per the United 
States Sentencing Commission.\2\ Veterans across this country know 
that, despite challenges with a few bad apples, our community is one of 
service that abides by the laws they were sworn to protect, and in fact 
less dangerous and less prone to extremism, as some have argued.
---------------------------------------------------------------------------
    \1\ https://bjs.ojp.gov/content/pub/pdf/vpspi16st.pdf
    \2\ https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-publications/2021/20211028--armed-forces.pdf
---------------------------------------------------------------------------
    These points are likely why, when asked about the VA's current 
policy of referral to NICS per the Brady Act in a recent MRC poll, 83 
percent of veterans said Congress should change the law out of 9,968 
responses.
    Finally, there are those that would use the alarming rate of 
veteran suicide to justify a lower standard of referral to NICS, citing 
access to guns as a prime driver of veteran suicide rates. While data 
from the U.S. Department of Veterans Affairs asserts veterans who kill 
themselves are more likely to use a firearm, only track declared 
suicides and fail to account for self-injury mortality. Per the interim 
results of Operation Deep Dive published last year, over 80 percent of 
self-injury mortalities are overdose deaths. Accordingly, a more 
upstream approach to tackle veteran suicide rather than focusing on the 
lethal means of carrying out the deed, would serve to prevent far more 
veteran suicide deaths. This is in line with the wishes of many 
veterans throughout the nation who are begging the VA to approach 
suicide prevention in a more wholistic way, looking proactively instead 
of reactively at the issue.
    The current status quo of a fiduciary determination and referral to 
NICS for veterans simply undermines the spirit of justice veterans 
fought to defend, taking away a constitutionally enumerated right by a 
bureaucratic determination rather than a court order. The results of 
MRC's poll were clear: Congress should pass legislation protecting 
veterans' rights.
    Chairman Bost, Ranking Member Takano, this concludes my testimony. 
Thank you again for the opportunity to be here today, and I'm happy to 
answer any questions you or other committee members may have.
                                 ______
                                 

                 Prepared Statement of Kristina Keenan

    Chairman Bost, Ranking Member Takano, and members of the committee, 
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 this committee.

H.R. 705, Veterans 2nd Amendment Protection Act

    The VFW supports this proposal to protect veterans' Second 
Amendment rights and to establish due process for veterans who have 
been assigned fiduciaries before referring them to the National Instant 
Criminal Background Check System (NICS).

Background

    The Department of Veterans' Affairs (VA) may determine that a 
veteran is unable to manage their finances when there is medical 
documentation. This determination could be made by a Compensation and 
Pension medical examiner, a medical provider, or other VA official who 
determines that the veteran is incompetent and requires a fiduciary to 
manage their benefits. This is then confirmed by one of VA's fiduciary 
hubs and the veteran is informed of the decision.
    VA sends the names of all veterans who have fiduciaries to NICS. 
This is a name check system, managed by the Federal Bureau of 
Investigation, and is used primarily by licensed sellers to know if a 
person has been disqualified from purchasing or possessing a firearm.
    VA refers veterans with fiduciaries to NICS without additional 
screening or medical assessments to ascertain if the individual is a 
danger to themselves or others. Once referred, veterans are then 
prohibited from purchasing, possessing, receiving, or transporting a 
firearm. Individuals may appeal the decision, though few actually do, 
perhaps because they do not know that is an option.

Definitions and Reporting Practices

    The Brady Handgun Violence Prevention Act (Public Law 103-159) of 
1993, which created NICS, established that an individual ``adjudicated 
as a mental defective or committed to a mental institution'' may not 
own a firearm. The Bureau of Alcohol, Tobacco, Firearms and Explosives 
(ATF) defines that a person is adjudicated as a mental defective ``if a 
court, board, commission, or other lawful authority has made a 
determination that a person, as a result of marked subnormal 
intelligence, mental illness, incompetency, condition or disease: is a 
danger to himself or others; lacks the mental capacity to contract or 
manage his own affairs; is found insane by a court in a criminal case; 
or is found incompetent to stand trial.''
    VA's broader characterization within regulation (38 C.F.R. 3.353) 
defines ``A mentally incompetent person is one who because of injury or 
disease lacks the mental capacity to contract or to manage his or her 
own affairs, including disbursement of funds without limitation.'' As 
explained in a September 2021 Congressional Research Service (CRS) 
report titled Gun Control, Veterans Benefits, and Mental Incompetency 
Determinations VA does not make any consideration if the veteran is a 
threat to themselves or others. One example from this report shows the 
risk of VA's regulation: ``for example, a veteran who during the 
determination process for Veterans Disability Compensation (VDC) 
indicates that because of a traumatic brain injury he is experiencing 
some short-term memory loss which affects his ability to manage his 
finances, could be determined to be `mentally incompetent' even if 
there is no evidence that this veteran's condition would impair his 
ability to safely own or handle a firearm or that he is a threat to 
himself or others.''
    Furthermore, the Social Security Administration (SSA) does not 
report information to NICS. In a 2009 letter to the FBI's NICS section 
chief, the legal basis for not reporting individuals to NICS is 
explained in that the inability to manage one's finances does not 
always preclude someone from managing other aspects of their life. 
``Thus, if SSA were to submit for NICS inclusion the names of all 
beneficiaries with mental impairments who have been assigned a 
representative payee, a significant number of those individuals would 
be wrongfully identified as lacking the mental capacity to manage their 
own affairs.''
    The earlier mentioned CRS report concludes that VA's procedures 
could be viewed as an incongruity of the law. It states that one might 
ask ``why VA is the only federal department or agency that has made 
substantial numbers of NICS referrals to the FBI based on mental 
incompetency determinations, even though other federal agencies that 
provide similar disability and income security benefits have not done 
so.'' This incongruity calls into question if VA's process goes far 
enough to ensure that veterans' Second Amendment rights are not 
infringed.

VFW Observations

    A negative consequence of VA's current practice is that veterans 
tell the VFW that they refuse to seek mental health care at VA because 
they fear their firearms will be taken away. This has created a 
significant stigma surrounding mental health and has created a barrier 
to care for many. This perception is difficult to change. The VFW 
continues to encourage veterans to use their earned VA health care, 
including the world-class, veteran-specific mental health services that 
VA provides. The VFW has also been involved in numerous efforts to 
reduce veteran suicide, including urging that veterans in distress 
temporarily give their firearms to a trusted friend or consider using 
trigger locks to lessen the ease of using a firearm to harm themselves. 
The VFW also believes in looking at the economic factors veterans face 
that can put them at risk for death by suicide, as we know suicide is 
not solely a mental health or firearm issue.
    Last, few veterans that the VFW represents in the VA disability 
claims process are assigned a fiduciary, and of those it is very rare 
that our accredited representatives are asked to assist in appealing 
the decision. Even though we estimate the issue surrounding fiduciaries 
likely affects a small number of veterans, we argue that every veteran 
deserves protection of their constitutional rights.

Discussion Draft, Ernest Peltz Accrued Veterans Benefits Act

    The VFW supports this proposal which would ensure VA pension 
benefits are paid out for the entire month when a veteran passes away. 
By receiving the ``month-of-death'' full benefit payment, the surviving 
family members would be able to better manage the financial hardships 
that come with a veteran's passing. Rather than suddenly stopping those 
benefits in the middle of the month, this would provide survivors with 
assistance and peace of mind during a devastating moment in their 
lives.
    The legislation is named after the World War II veteran Ernest 
Peltz of Queensbury, New York. He had been approved for his accrued 
pension and wanted his surviving family to use it for his end-of-life 
care and funeral expenses. Due to a VA error, the funds were deposited 
seven days after his death (during the following month) and then were 
immediately pulled back, leaving his family without these funds to 
manage impending expenses. This bill would ensure that pension funds 
reach survivors and would cover the full month of the veteran's 
passing.
    Chairman Bost, this concludes my testimony. Again, the VFW thanks 
you and Ranking Member Takano for the opportunity to testify on these 
important issues before this committee. I am prepared to take any 
questions you or the committee members may have.

 Information Required by Rule XI2(g)(4) of the House of Representatives

    Pursuant to Rule XI2(g)(4) of the House of Representatives, the VFW 
has not received any federal grants in Fiscal Year 2023, nor has it 
received any federal grants in the two previous Fiscal Years.

    The VFW has not received payments or contracts from any foreign 
governments in the current year or preceding two calendar years.

                                 [all]