[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON
H.R. 1083; H.R. 2911; H.R. 3651; H.R. 7100; H.R.
7150; H.R. 7777; H.R. 7793; H.R. 7816; H.R.
XXXX; H.R. XXXX; H.R. XXXX; AND H.R. XXXX,
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY
ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY, APRIL 10, 2024
__________
Serial No. 118-60
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
------
U.S. GOVERNMENT PUBLISHING OFFICE
55-604 WASHINGTON : 2025
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,
C. SCOTT FRANKLIN, Florida Florida
DERRICK VAN ORDEN, Wisconsin CHRISTOPHER R. DELUZIO,
MORGAN LUTTRELL, Texas Pennsylvania
JUAN CISCOMANI, Arizona MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia NIKKI BUDZINSKI, Illinois
Jon Clark, Staff Director
Matt Reel, Democratic Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL
AFFAIRS
MORGAN LUTTRELL, Texas, Chairman
C. SCOTT FRANKLIN, Florida CHRIS PAPPAS, New Hampshire,
JUAN CISCOMANI, Arizona Ranking Member
ELIJAH CRANE, Arizona CHRISTOPHER R. DELUZIO,
KEITH SELF, Texas Pennsylvania
MORGAN MCGARVEY, Kentucky
DELIA C. RAMIREZ, Illinois
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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WEDNESDAY, APRIL 10, 2024
Page
OPENING STATEMENTS
The Honorable Morgan Luttrell, Chairman.......................... 1
The Honorable Chris Pappas, Ranking Member....................... 2
WITNESSES
Panel 1
The Honorable John Duarte, U.S. House of Representatives, (CA-13) 3
The Honorable Keith Self, U.S. House of Representatives, (TX-3)). 4
The Honorable Mike Bost, U.S. House of Representatives, (IL-12).. 5
The Honorable Jahana Hayes, U.S. House of Representatives, (CT-5) 6
Panel 2
The Honorable Jaime Areizaga-Soto, Chairman, Board of Veterans'
Appeals, U.S. Department of Veterans Affairs................... 8
Accompanied by:
Ms. Brianne Ogilvie, Assistant Deputy Under Secretary, Office
of Policy and Oversight, Veterans Benefits
Administration, U.S. Department of Veterans Affairs
Ms. Jessica Pierce, Assistant Director, Compensation Service
Policy Staff, U.S. Department of Veterans Affairs
Colonel Tiffany M. Wagner, Clerk of the Court, U.S. Court of
Appeals for Veterans Claims.................................... 9
Mr. Daniel T. Shedd, Legislative Attorney, American Law Division,
Congressional Research Service................................. 10
Panel 3
Ms. Candace Wheeler, Director, Government and Legislative
Affairs, Tragedy Assistance Program for Survivors (TAPS)....... 19
Mr. Christopher Macinkowicz, Deputy Director, National Veterans
Service, Veterans of Foreign Wars of the United States (VFW)... 21
Mr. Andrew Tangen, First Vice President, National Association of
County Veterans Service Officers (NACVSO)...................... 22
Ms. Renee Burbank, Director of Litigation, National Veterans
Legal Services Program (NVLSP)................................. 24
APPENDIX
Prepared Statements Of Witnesses
The Honorable Jaime Areizaga-Soto Prepared Statement............. 33
Colonel Tiffany M. Wagner Prepared Statement..................... 75
APPENDIX--continued
Mr. Daniel T. Shedd Prepared Statement........................... 78
Ms. Candace Wheeler Prepared Statement........................... 97
Mr. Christopher Macinkowicz Prepared Statement................... 107
Mr. Andrew Tangen Prepared Statement............................. 111
Ms. Renee Burbank Prepared Statement............................. 114
Statements For The Record
Disabled American Veterans Prepared Statement.................... 133
National Organization of Veterans' Advocates, Inc. Prepared
Statement...................................................... 138
Administrative Conference of the United States Prepared Statement 145
The American Legion Prepared Statement........................... 150
Paralyzed Veterans of America Prepared Statement................. 162
The Honorable Dean Phillips, U.S. House of Representatives, (MN-
3) Prepared Statement.......................................... 165
The Honorable Marilyn Strickland, U.S. House of Representatives,
(WA-10) Prepared Statement..................................... 165
Professor Michael J. Wishnie Prepared Statement.................. 167
LEGISLATIVE HEARING ON
H.R. 1083; H.R. 2911; H.R. 3651; H.R. 7100; H.R.
7150; H.R. 7777; H.R. 7793; H.R. 7816; H.R.
XXXX; H.R. XXXX; H.R. XXXX; AND H.R. XXXX,
----------
WEDNESDAY, APRIL 10, 2024
Subcommittee on Disability Assistance &
Memorial Affairs,
Committee on Veterans' Affairs,
U. S. House of Representatives,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:34 p.m., in
room 360, Cannon House Office Building, Hon. Morgan Luttrell
(chairman of the subcommittee) presiding.
Present: Representatives Luttrell, Self, Pappas, and
McGarvey.
Also present: Representatives Bost, and Duarte.
OPENING STATEMENT OF MORGAN LUTTRELL, CHAIRMAN
Mr. Luttrell. This subcommittee will come to order. Good
afternoon. Good afternoon, everybody. Not very responsive,
right?
We are here today to discuss 12 bills that would benefit
veterans and their survivors. These bill would ensure that
veterans receive faster, more accurate decisions on their
claims for Department of Veterans Affairs (VA) benefits from VA
Board of Veterans' Appeals (BVA) and the Veterans Benefits
Administration (VBA), provide veterans with more choices to
control how and when their claims are processed by VA, thus
building on the Veterans Appeals Improvement and Modernization
Act of 2017, make the VA claims and appeals process more
understandable for our veterans and their survivors by
providing them with clear updates and instructions.
It will decrease the number of unnecessary disability
compensation examinations that are causing delays in claims
processing, improve access to VA benefits for veterans, spouses
after their loss--after the loss of their loved one and
increase their compensation that survivors are eligible for and
ensure the VA gives equal attention to the needs of our
Nation's veterans as well as their survivors.
I am proud to introduce two bills today. My bill H.R. 7777,
the Veterans Compensation Cost of Living Adjustment Act of 2024
would give a cost-of-living adjustment to veterans and
survivors receiving certain VA benefits. This increase would be
the same as what Social Security recipients gets. In the face
of rampant inflation, these bills--this bill is vital for
ensuring that our veterans are able to pay their bills and put
food on their tables for their families. I appreciate Ranking
Member Pappas for co-leading this important bill. Thank you,
air.
H.R. 7919, Veterans Claims Quality Improvement Act of 2024
would ensure that veterans receive accurate and fair decisions
on their claims from the VA Board of Veterans' Appeals. The
Board claims to have quality rates of over 90 percent however
in November 2023 the subcommittee on oversight hearing revealed
that those rates are slightly inflated or inflated and the
Board's quality control and training programs are ineffective.
As a result, each year thousands of veterans receive Board
decisions that are filled with legal error. To correct these
errors veterans must appeal those Board's decisions to the U.S.
Court of Appeals for Veterans Claims (CAVC) which adds more
months or even years of waiting for an accurate final decision
on their claims. We have heard that the Board often
unnecessarily sends veterans cases back to VBA instead of
actually deciding their claims.
This bill will ensure that the Board leadership and low
performing Board judges are held accountable for the errors
that the Board makes over and over again. Further robust
quality control and adequate training are crucial for ensure
that if the Board does its job of issuing accurate decisions
this bill would ensure that the Board implements effective
quality control and training programs.
Veterans wait years for a final decision from the Board and
each veteran deserves a high-quality decision when they finally
get one. I would like to thank Representatives Stefanik and
Bilirakis for signing on as cosponsors to this bill.
I look forward to working with Chairman Bost and my
colleagues on the subcommittee to advance these important
proposals today. Chairman Bost and I have gone through the
disabilities claims process ourselves and it is the top
priority for us to ensure that the process works for ever
single veteran. I know my colleagues have worked hard on each
of these bills to improve the claims process and to increase
access to VA benefits for veterans and their survivors. I look
forward to discussing these bills on our agenda and hearing
from the witnesses who have joined us today.
I now yield to the ranking member for his opening remarks.
OPENING STATEMENT OF CHRIS PAPPAS, RANKING MEMBER
Mr. Pappas. Thank you very much, Chairman Luttrell, and I
appreciate you holding this hearing today on pending
legislation as we can all tell there is a lot of pent-up
legislating to do in this place so let us get to it. I want to
say, Mr. Chairman, I appreciate you including so many
priorities from our side on the aisle on the agenda today. It
is terrific.
I want to thank all of our witnesses both governmental and
non, who are attending today. We take your testimony incredibly
seriously and it helps inform the important work that is left
ahead of us. With that said, Mr. Chairman, there is a great
deal of policy contained in the bills today and I think we can
find common ground on a host of issues.
For example, I think it is clear that the Appeals
Modernization Act (AMA) has not moved the needle as far and as
fast as the Board of Veterans' Appeals and Congress had hoped.
I think we also agree that the Veterans Benefits Administration
is ordering too many Compensation and Pension (C&P) exams which
can have the effect of slowing down claims processing.
Mr. Chairman, I think where we lack consensus both in
Congress and with stakeholders is on the scope of those
problems and any potential fixes to them. There are a lot of
proposals on the agenda today to address these issues but as we
can see from the testimony there is very little agreement on
which solutions are needed, which are not and which could
actually make things even worse.
I worry that because of the aggressive timeline we will be
on between this hearing, next week's subcommittee markup, and
the full committee markup in May, we may not be able to arrive
at the kind of consensus that also passes muster with
stakeholders on these key issues. I urge thoughtfulness and
caution as we move ahead, and I humbly suggest that it may be
more important to take our time to get the policy right rather
than to be fast and risk any unintended consequences.
I thank you for holding this hearing. Look forward to
testimony from our witnesses. I yield back.
Mr. Luttrell. We have got a very full agenda today, so I
will be holding everyone to 3 minutes per bill so we can get
through this all this morning. We are joined by several of our
colleagues both on and off the committee. We are going to, and
are going to, be testifying on their bills that they have
cosponsored to provide testimony for the--let us see.
Chairman Bost, is he present?
Mr. Duarte, you are recognized, sir.
STATEMENT OF JOHN DUARTE
Mr. Duarte. Thank you, Mr. Chairman, Committee, it is an
honor to be before you. Recently in preparation for this
hearing I had a meeting in my district with veterans' groups
from all over the Central Valley of California to learn more
about the realities of being a veteran help veterans helping
veterans around the valley and what some of their interests and
frustrations were.
This bill, the Clear Communication for Veterans Act is H.R.
7186 as the veterans claims process is broken. Veterans are
getting letters from the VA pertaining to their claims, they
are lengthy letters, they are confusing letters, they are very
hard to decipher and very difficult for the veteran to move
forward and know what the course of action to remedy the claims
disputes or get the services they deserve, and they very
desperately need in many cases. The veterans deserve a smooth
claims process for VA benefits that they have always fully
earned.
Right now, the guidance I receive from the VA is so
comprehensible they often abandon pursuing the benefits they
deserve and, you know, that is not acceptable. VA notice
letters are critical to ensuring veterans understand to how
they pursue their claims for VA benefits that they have earned,
and the veterans should not be subjected to letters that are
overly complex and confusing.
This is a bipartisan bill. The Clear Communication for
Veterans Act is simply access to bring in an outside,
nonpartisan professional research and development corporation
to look through the entire Veterans Claims Processing Act, the
veterans letters and how these communications go forward and
bring us a professional outside opinion on how these can be
better handled.
There is no partisan element to this bill. It is very
commonsense. Takes it out of the VA where they have failed to
improve these letters over years. We have charged them for that
as I understand from your committee. Now it is time to move it
to the professionals and see if an outside group can help
improve these veterans claims letters. It is really that
simple.
I thank you for that and I am open to any questions.
Mr. Luttrell. Thank you, sir. Mr. Duarte, give me 1 second
please. We are going to do a round robin, Mr. Duarte. We will
come back to you.
Mr. Self, you are recognized, sir.
STATEMENT OF KEITH SELF
Mr. Self. Thank you. Mr. Chairman, Chairman Luttrell,
Ranking Member Pappas, I am pleased to sponsor the Toxic
Exposures Examination Improvement Act, which aims to address a
significant flaw in the disability compensation claims process.
We have been told repeatedly that VA is scheduling too
many, unnecessary toxic exposure related disability
examinations. These so-called Toxic Exposure Risk Activity
(TERA) exams are intended to determine whether a veteran's
claimed disability is related to toxic exposure. TERA exams are
more complicated than regular disability compensation exams.
My bill would cut down on unnecessary TERA exams that waste
time and resources for both the veterans and VA. It does this
in two keyways. First, it proposes that the VA should only
obtain a TERA exam when the evidence is insufficient to make a
decision on the claim of compensations. Veterans whose
disabilities are objectively unrelated to any toxic exposures
should not have to attend unnecessary TERA exams.
I must emphasize however that even if a TERA exam is
unnecessary to support a veteran's claim, VA must still get a
regular, less complicated, disability compensation exam when a
veteran's disability might be related to any in-service event
other than toxic exposure.
Second, the bill provides VA clarity by defining injury
into the Department of Defense (DOD) Individual Longitudinal
Exposure Record (ILER) system as any injury indicating toxic
exposure. By removing ambiguity stemming from the current lack
of definition, which is the problem.
We enable the VA to accurately identify veterans who may
have been exposed to harmful agents during their service. By
saving time and resources for both veterans and the VA my bill
would allow VA to prioritize the needs of those who have served
our Nation while maintaining the integrity and efficiency of
our veteran's benefits system.
I urge my colleagues to join me in supporting this
important piece of legislation and I yield back the balance of
my time. Thank you.
Mr. Luttrell. Thank you, Mr. Self.
Chairman Bost, sir, you are recognized for 3 minutes.
STATEMENT OF MIKE BOST
Mr. Bost. Thank you, Chairman. Before I would start, if I
could, I want to give a shout out to Andrew Tangen, who flew in
from my home State of Illinois to testify today, and I wanted
to give that shout out.
I want to let you know that I am proud to have introduced
two bills on the agenda today. Both bills continue my personal
goal to provide veterans with more choices and faster decisions
when it comes to their disability compensation benefits. Just
like the Veterans Appeals Improvement and Modernization Act of
2017 has done.
First, H.R. 7793, the Veterans Appeals Options Expansion
Act of 2024, would lock in the date of an incorrect claim form
for the purpose of veterans being eligible to receive back
payments. Right now, VA does not pay veterans all the way back
to the date of their incorrect claim form. Veterans should not
have to be punished because it is hard to figure out which VA
claim form to use and how to navigate the VA appeals process.
My bill would also allow a veteran more time to switch one
VA Board of Veterans' Appeals docket to another. This is a key
fix to improve the appeals process that we have heard firsthand
from veterans. My bill would also lock in the date of the
veteran's original appeal.
The Board sends back to the VBA 50 percent of the veterans'
appeals. When a veteran's appeal ends up back at the Board that
veteran gets kicked back to the end of the Board line. All of
this bureaucracy adds years of waiting. Veterans should not be
punished because the Board could not or would not make a
decision on their claim the first go around.
My bill would also guarantee that the Board judge who held
a hearing will decide a veteran's claim. The judge who best
knows a veteran should be the one to issue the decision.
Finally, when Congress enacted the AMA we stated that we
intended and expected that the VA would develop robust policies
for addressing untimely evidence. Six years later, VA has not
done that.
My bill would rightfully force VA to ensure that the Board
is promptly telling veterans when they a have submitted
untimely evidence so that they can act on that information. Now
my second bill, H.R. 7917, the Veterans Appeals Efficiency Act
of 2024 would ensure that the VA Board of Veterans' Appeals
issues faster decisions.
Right now, even the massive investment that Congress has
made in the Board, veterans are still waiting 2 to 5 years for
a Board's decision on their AMA appeals, and there are
currently over 200,000 pending appeals before the Board. We
cannot keep giving millions of dollars to the Board to simply
hire more staff when the Board realizes that it will take years
to deplete its inventory at today's rate.
We must authorize additional tools and processes for the
Board to modernize, whether they want to or not, and so that it
can be issued faster decisions in the veterans' claims. We know
that class actions can be powerful tools for processing claims
and case effectively. The real world does it every day. Even
the veterans court recently rose to the challenge and began
doing class actions.
My bill would authorize the Board to decide large groups of
veteran appeals all with similar evidence and themes at the
same time. We must ensure that this process would work for
veterans and for the VA. This is why my bill would require VA
to obtain recommendations on how class actions could work at
the VA.
My bill would also authorize veterans' courts to include
far more veterans cases in class action before the court. Under
current law the veteran court can allow only veterans who have
received a Board decision to join a class action. Not a lot of
veterans have received a Board decision the Board's current
class action authority is currently not effective.
Also, the Board often overlooks key evidence. When that
happens, the Court send the entire case back to the Board. The
court should be requiring the Board to quickly address the
specific things the Board overlooked. Instead, the Board is
issuing an entirely new decision on the whole case. That is
government bureaucracy at its worst.
Now, I know from the personal experience how complicated
and slow VA claims appeals process can be. My bill would ensure
that the process works for, not against, veterans and their
families. I look forward to discussions on both of these
proposals and I would like to thank Representative Stefanik and
Bilirakis for co-leading on both of my bills.
With that I yield back, Mr. Chairman.
Mr. Luttrell. Thank you, Chairman Bost. Mrs. Hayes, thank
you for joining us. You are now recognized.
STATEMENT OF JAHANA HAYES
Ms. Hayes. Thank you, Mr. Chairman. While I do not serve on
the House Veterans' Affairs Committee, I thank you for allowing
me to speak here today. I am committed to honoring the men and
women who serve our country by ensuring veterans and their
families can access the benefits they have earned.
My district office in Waterbury, Connecticut, is the only
congressional office in New England to be recognized as a
Purple Heart Office of Distinction by the Military Order of the
Purple Heart and to be listed on the Purple Heart Trail because
of our work support veterans. My legislation to support
veterans has been signed into law by both Democrat and
Republican administrations, so I appreciate your consideration
today.
Today I am here to speak in support of my bill, the Caring
for Survivors Act, which would support thousands of military
and veteran survivors who feel their current benefits are less
than they have earned and have not been adjusted over time.
When a service member dies in the line of duty or a veteran
dies from service-related injuries their surviving family
members receive a monthly cash payment known as dependency and
indemnity compensation, or DIC. The United States has
compensated surviving families for the death of their loved
ones since the Revolutionary War.
Unfortunately, the DIC rate has been minimally adjusted
since 1993 and is nearly 12 percent lower than the rate of
other Federal survivor programs like the Federal Employees
Retirement Systems or FERS. DIC beneficiaries receive 43
percent of the current rate given to a totally disabled
veteran. Beneficiaries for Federal civilian employees can
receive up to 55 percent of the insurance annuity for their
deceased loved ones.
Also, if a veteran dies because a nonservice-connected
injury left him totally disabled for less than 10 years,
current DIC law limits the number of survivors who can qualify
for these benefits. This provision ignores the years of
sacrifice by families who have cared for their disabled
veterans often putting their own lives on hold.
My legislation does two things to correct these problems.
First my bill raises DIC to 55 percent of the rate given to a
totally disabled veteran instead of the current rate of 43
percent. By bringing DIC to a level consistent with other
Federal survivor programs, survivors will receive an average
increase of about $400 per month.
Second, my bill reduces the 10-year disability rule to 5
years and allows more survivors to quality for DIC benefits.
This provision expedites DIC support for beneficiaries. This
legislation is supported by Tragedy Assistance Program for
Survivors (TAPS), Gold Star Wives of America, the Military
Officers Association of American, Paralyzed Veterans of
America, Veterans of Foreign Wars (VFW), Disabled American
Veterans, and the National Military Family Association.
I want to thank Chairman Tester and Senator Boozman for
their support of this legislation in the Senate. I also want to
thank Chairman Luttrell and Ranking Member Pappas for allowing
me to speak here today in support of my legislation. I want to
take a moment also to recognize the thousands of surviving
spouses around the country for their advocacy to make these
important and necessary changes.
The Caring for Survivors Act recognizes the importances of
timely and substantial benefits for survivors ensuring their
families receive the benefits they have earned through their
service. I encourage all of my colleagues to support this
legislation and move it not only through committee, but to the
floor for consideration and a vote. We must honor the promise
we made to our servicemembers, veterans, and survivors that
have been left behind.
Again, I thank you for allowing me to be here and ask you
again to consider this legislation and the impact on the
families who are left behind.
Thank you. I yield back.
Mr. Luttrell. Thank you, Mrs. Hayes.
We will forgo a round of questioning for the members. Any
questions may be submitted for the record.
In accordance with committee rules I ask unanimous consent
to Representative Duarte of California be permitted to
participate in today's subcommittee.
Mrs. Hayes, you are welcome to join us as well if you wish.
You are now excused.
I invite our second panel to the table. Are you guys ready?
It was not a loaded question. Are you guys ready? Okay. Joining
us today from the Department of Veterans Affairs, The Honorable
Jaime Areizaga-Soto? Did I nail it?
Mr. Areizaga-Soto. Yes, sir.
Mr. Luttrell. Outstanding, thank you. Chairman of the VA
Board of Veterans' Appeals. He is accompanied by Ms. Brianne
Ogilvie, Assistant Deputy Undersecretary for the Office of
Policy and Oversight at the Veterans Benefits Administration;
Ms. Jessica Pierce, assistant director for Compensation Service
Policy staff at the VBA.
Also joining us from the U.S. Court of Appeals for Veterans
Claims is Colonel Tiffany Wagner, Clerk of the Court. I now
recognize the--who did I forget? Mr. Daniel Shedd, I apologize.
I did not leave you out because you are on the end, I promise.
Will all the witnesses please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Luttrell. Thank you, and let the record reflect that
all witnesses answered in the affirmative.
Mr. Chairman, you are now recognized for 5 minutes to
present the Department's testimony.
STATEMENT OF JAMIE AREIZAGA-SOTO
Mr. Areizaga-Soto. Good afternoon, Chairman Luttrell,
Ranking Member Pappas, Congressman Self, and other members of
the subcommittee, Congressman Duarte. Thank you for the
opportunity to appear before you today. With me today are
Brianne Ogilvie and Jessica Pierce, both from VBA. Secretary
McDonough's mission is to provide more care and more benefits
to more veterans.
As the son of a Korean War veteran and as a veteran and
National Guard officer who has been wearing the uniform for
over 36 years, I view my role in the VA as a sacred duty. My
philosophy at the Board is to be veteran-centric in everything
we do whether our work, improvements, or new initiatives.
It is an honor to work with so many dedicated veteran law
judges, decision writing attorneys and administrative
professionals who all share the same objective, to swiftly and
fully resolve appeals for veterans and their families to the
fullest extent of the law with fair and final decisions by a
judge.
I want to thank the committee and Congress for adopting the
Appeals Modernization Act and providing subsequent budget
support. It has enabled us at the Board to build capacity
during the past 2 years and through this year. It is paying
huge dividends for veterans. Last year was the first time in 5
years since AMA implementation that the Board's pending case
load dropped. With Congress's support we plussed-up our judges'
corps by over 30 percent are on pace to do the same with our
attorneys.
A year ago, the Board's pending workload was almost 216,000
appeals. Today it is under 206,000 appeals. A year ago, we were
averaging 1,900 cases per week. During the past few months, we
have averaged over 2,300 decisions per week and that will
continue to grow over the next year as we reach full capacity.
It takes time to hire right and train right, to ensure high
quality and we are doing it. Quality assurance (QA) rates have
never been higher consistently around 95 percent each month.
That is veteran-centric. AMA adjudication it is also growing
exponentially. Last year at this time only a little over 25
percent of the Board's output was AMA adjudications.
Today, it is consistently over 60 percent each week and
growing. This is significant because AMA cases have 20 percent
lower remand rates and 10 percent higher grant rates compared
to legacy cases. In short, we are able to fully resolve AMA
cases 3 to 4 years faster than legacy cases. That gap is
growing.
We set a record last year with 103,245 decisions and we
will set another record this year with at least 111,000
decisions. That is veteran-centric. The Board is concerned with
any legislation that stifles this veteran-centric progress.
Some of these proposals return to legacy type rules while
others add unnecessary administrative burdens that will only
make us go slower with no discernible benefits for veterans.
I am concerned that some of today's witnesses appear to
support recreating legacy type rules in the AMA. This will have
a dramatic and adverse impact on wait times for veterans with
pending appeals. Incentives matter and slowing down the line
does not help veterans.
VA supports H.R. 3651, the Love Lies Lives On Act, if
amended. VA all supports--well, VA supports the removal of
remarriage restriction requirements for surviving spouses. VA
also supports H.R. 1083, the Caring for Survivors Act, if
amended. VA has provided suggested edits for clarity in our
testimony. This concludes my testimony. My colleagues and I
stand ready to respond to any questions you may have.
[The Prepared Statement Of Jamie Areizaga-Soto Appears In
The Appendix]
Mr. Luttrell. Thank you, Mr. Chairman.
Colonel Wagner, you are now recognized for 5 minutes.
STATEMENT OF TIFFANY WAGNER
Ms. Wagner. Good afternoon, Chairman Luttrell, Ranking
Member Pappas, members of the committee. The Court limits its
testimony to two of the bills under consideration, specifically
three sections within those bills that directly impact the
Court.
Respectfully, the Court does not support passage of these
provisions for the following reasons. First, proposed section
5(d)(2) of the Medical Disability Examination Improvement Act
of 2024 would add an additional element to the Court's annual
workload report directing the Court to summarize recurring
issues it believes could be resolved by better VA training or
by increased oversight or clarification from the Department or
Congress.
Respectfully such an executive function rests with the
Secretary. As a judicial body with exclusive jurisdiction to
review individual Board decisions the Court is not in a
position to opine generally on internal VA process or suggest
how the agency could or should better manage resources or train
personnel. Like all courts the veterans' courts must speak
through it is individual juridical decisions and does not issue
advisory opinions.
Respectfully, as a recipient of every decision that is
reversed or remanded by the Court the Board is responsible for
and is in the best position to evaluate error trends in its
decisions, allocate resources, and develop corrected strategies
and training.
The second bill I will address is the Veterans Appeals
Efficiency Act of 2024 and two specific provisions within it.
The first would give the Court supplemental jurisdiction to
review eligible claims that are pending a final agency
decision. The Court is concerned that as written the proposed
statutory language lacks clarity and could result in unintended
broad construction that could significantly grow the Court's
caseload and in turn require reevaluation of the Court
processes and resource needs.
Finally, the second provision of the Veterans Appeals
Efficiency Act would statutorily authorize the Court to order a
limited remand to the Board while retaining jurisdiction of the
remanded matter.
Respectfully, the Court already has the authority to take
the actions contemplated in this proposal and indeed the
proposal may inadvertently limit the Court's current authority.
In conclusion, the Court takes seriously its mission to afford
veterans and their families and survivors full, fair, and
prompt judicial review of final Board decisions.
We are open to ways to improve the Court's functioning and
sincerely appreciate the subcommittee's continued interest and
effort in this shared goal. I am happy to answer any questions.
[The Prepared Statement Of Tiffany Wagner Appears In The
Appendix]
Mr. Luttrell. Thank you, Colonel.
Mr. Shedd, you are recognized for 5 minutes, sir.
STATEMENT OF DANIEL SHEDD
Mr. Shedd. Chairman Luttrell, Ranking Member Pappas, and
members of the subcommittee, my name is Daniel Shedd and I am
an legislative attorney in the American Law Division with the
congressional Research Service.
Thank you for the opportunity to testify on the proposed
legislation entitled the Veterans Appeals Efficiency Act of
2024. My oral testimony will focus on the proposal to authorize
the Chairman of the Board of Veterans' Appeals or BVA to
aggregate appeals pending before the Board.
Aggregation involves grouping together claims or appeals
that have similar questions of law or fact for collective
resolution or processing. Aggregation can take different forms.
One of the most well-known devices for aggregation is the class
action lawsuit. It provides a good example of what claim
aggregation seeks to achieve.
A class action allows a large group of similar situated
claimants known as a class to challenge a defendant's unlawful
conduct in a single lawsuit rather than through numerous suits
initiated by individual plaintiffs. A single plaintiff can file
a claim not only for himself but on behalf of the class as a
whole. The outcome of the case binds the defendant and the
entire class even if the other class members do not participate
in the proceeding.
The Supreme Court has explained that one of the principal
purposes for allowing class actions is to promote judicial
efficiency. For example, if you have 1,000 people that have
been wronged in essentially the same way the thinking is that
it is more efficient use of adjudicatory resources for one
judge to determine the answer once for all 1,000 people instead
of multiple judges hearing the same factual and legal arguments
1,000 times over.
Achieving this adjudicatory efficiency is one of the
purported goals of all forms of aggregate procedures. They also
provide for consistent outcomes for similarly situated parties
because all parties are bound by the same decision. On the
other hand, aggregate procedures may also have potential
drawbacks.
Although aggregation may provide for some judicial
efficiencies from a big picture perspective, some commentators
suggest that aggregation also adds increased complexity to
individual cases subject to those proceedings.
Courts and agencies that have used class action proceedings
note that these aggregate adjudications can occupy significant
adjudicatory resources and time. As a consequence, individuals
involved in a class action may be delayed in obtaining justice.
Further legal commentators note that there may be fairness
concerns with regards to aggregate procedures. From the
perspective of a person that can be bound by a judicial
proceeding that they never took part in it might seem
antithetical to one of the quintessential American
understandings of justice, that is everyone gets their day in
court.
Currently the BVA has no procedures in statute regulation
or practice that provide for the aggregation of appeals. The
Veterans Appeals Efficiency Act of 2024 would permit but not
require the chairman of the Board to aggregate similar claims.
This broad permissive authority in the bill appears to comport
with congressional delegation of broad powers to agencies in
order to allow them to develop policies and practices that best
fit their adjudicatory model.
I thank you for the opportunity to testify today and I look
forward to your questions.
[The Prepared Statement Of Daniel Shedd Appears In The
Appendix]
Mr. Luttrell. Thank you, Mr. Shedd.
We will move to questioning. Colonel Wagner, in your
opening statement you said that some of the legislation--you
disagree with some of the legislation that this body has put
forward and that the Court itself has the ability to act on the
issues without this legislation being pushed forward. Yes?
Ms. Wagner. That is correct, for limited remains. The Court
already has the authority to take limited remands.
Mr. Luttrell. My issue is this legislation was created for
the Court's inability to act on those issues. We have presented
this to you. With you all saying that you have the ability to
do so, but our constituents are the ones saying that this is an
issue, now we are in, we are in conflict.
I am going to need you to explain to me when that is-
because if the Court itself would actually, would have, could
acted on this without it being raised up to the congressional
level here at this committee today we would not be having this
conversation but here we are. I cannot really sit here and say
I agree with what you are saying because it is not holding
water.
Ms. Wagner. Understood, Chairman Luttrell. The Court does
currently have the authority to issue limited remands. However,
it has not been used--it has been used sparingly by the Court.
Mr. Luttrell. Why?
Ms. Wagner. That is an issue of judicial discretion. Each
judge may look at an issue as the cases, as they come up on an
individual basis looking at the veteran's claims and they make
the decision whether or not to do a limited remand.
One of the reasons that judges may choose not to order a
limited remand is a concern that it is going to disrupt the
claims already in queue at the Board. When a court issues a
limited remand, they send it back for readjudication. If it is
limited, they are going to retain the jurisdiction. If they
send it back the veterans claim at the queue, that will be
disrupted because there are parameters put on that limited
remand, time constraints if they would take priority over the
other traditional remands. That may just be one of the reasons.
I cannot talk for all of the judges. I am just giving an
example of what maybe a thought process that the judges have on
that. It is really comes down to judicial discretion and the
tools that they use in their toolbox.
Mr. Luttrell. Imagine us having to explain that to our
base. Okay. Mr. Chairman, do you believe that the Board's
quality rate should reflect all errored data coming from the
veterans' courts including data on joint motions for remand?
Yes.
Mr. Areizaga-Soto. Let me go ahead and--we take quality
very serious, Mr. Chairman, and the data that is done now, it
is basically we do a sample of cases before we even assign
them. We say we are going to take all these cases and follow
them and review them when they come out. That is the pool that
we review.
It is not being--it is being done generally. Remember we
have been doing more legacy cases than AMA cases. We are now
focusing on AMA cases. Going forward we are reviewing more AMA
cases not only because it is a majority of the cases we are
doing now but also because we want to ensure the AMA quality.
That is how the quality process works now, Mr. Chairman.
Mr. Luttrell. In your opening statement you said there is
going to be folks in the crowd that are going to try to defend
the legacy process? Is that how you put it?
Mr. Areizaga-Soto. What I said is--what I said is a number
of the provisions in the options act in that bill open and
bring back in a number of concepts that were existing under
legacy. All the stakeholders got together, Mr. Chairman, and
came with what we believe is a much better process which AMA.
For example, one concept is following that the judge that does
the hearing is the judge that gives you the decision.
Mr. Luttrell. Yes.
Mr. Areizaga-Soto. As you know, I have been in this
position for 2 years. I came in and that sounded very
reasonable to me. I have instructed for that to be done
whenever possible. To make it a requirement like it was under
legacy could have very negative effects. You have a judge that
goes on extended leave. I am going to have to hold that case
because that judge was the one that did the hearing and then
the judge-we need to wait for that judge to do the decision.
That is the commonsense changes and veteran-centric. It is
all about the veteran experience.
I understand if we can match it, we will match it, Mr.
Chairman. We do not want to have it a requirement as in the
case of legacy. A number of--to ensure the line moves if you
get a case and the case goes through the court and the case has
to be remanded back----
Mr. Luttrell. Yes, sir.
Mr. Areizaga-Soto [continuing]. you get back in the line.
Under legacy you would keep your place in line so that is what
would generate a lot of churn and remember, cases that come
back from the Court, the veteran does not necessarily get, does
get a change in benefits but many of those Joint Motion for
Remands (JMR) are, they just go back in the system without a
decision by the Court.
Mr. Luttrell. Okay. Thank you, sir. Ranking Member. You may
be recognized, sir.
Mr. Pappas. Thank you, Mr. Chairman. I do think there is
consensus among members and stakeholders as well that the full
benefits of the Appeals Modernization Act have not yet been
realized and I think one of the reasons is these legacy appeals
which the Board has not cleared out as quickly as you had
initially projected you would.
I think there is also this feedback look between VBA and
BVA regarding quality that is not working as well as it could,
and I think that has slowed things down as well. Claims have
gotten stuck in a feedback loop with multiple remands. Mr.
Chairman, you were talking about the success story here over
the last few years. You talked about building capacity, pending
caseloads dropping, QA rates improving.
I am really concerned about the challenges, the areas that
are not going well. We are not just on this glide path that is
going to continue. Where do you see the challenges ahead? Very
importantly, what kind of feedback are you getting from
attorneys, from Veterans Service Organizations (VSO), from
stakeholders about challenges and progress and where things
need to go as we look out into the future?
Mr. Areizaga-Soto. Thank you for--thank you for your
question, Ranking Member Pappas. It is definitely a half full
glass story, and I am an optimist so I recognize that. I do
think that the AMA, it is now finally coming into full
implementation because as you know over these 5 years, we have
had to operate under two systems.
We had a majority inventory of legacy cases that continue
to operate under the legacy rules and then we had a new AMA so
we have been managing those two. Fortunately, we are at the end
of legacy and for the first time we are full, we are in a
majority AMA world and that is showing the benefits of AMA.
Challenges, one of the challenges has been raised by the
committee and we take it very seriously is to ensure training.
One of the questions that has been raised by the committee
is what we are doing on the training side. I can tell you that
we are head on with training. Just last week we had all the
judges for a week of training here together for only the second
time in the history of the Board. The reality is that we are
scheduling and hosting over 300 trainings per year for our team
members whether judges or attorneys. That is one challenge.
The other challenge, Mr. Ranking Member, has been the
remands. I recognize that the remands are a challenge because
you get in line, you get for a decision, and you do not get a
decision in a high number of cases. We have been laser focused
in identifying why are we having remands? I have been telling
the judges, I cannot force you to make a decision, military,
undue command influence.
I can tell them, hey, you are not doing any good for our
veterans. Veterans want finality. We are--we are doing training
and we are doing a whole system to ensure that we reduce
remands. Just last week out of those 24 hours of training we
gave the judges, 8 hours were dedicated to implement the
Government Accountability Office (GAO) recommendations. We have
already implemented the first two, that is recommendation
number 3, to ensure consistency and a reduction of remands.
That is what we are doing, Ranking Member Pappas to deal with
that challenge.
Mr. Pappas. Thanks for those comments. I want to move on to
a different issue and, Ms. Pierce, maybe I can direct this to
you. We are considering a couple of bills to address issues
communicated to us directly from VA's frontline employees
regarding over utilization of toxic exposure risk activity
exams specifically for claims that are seemingly unrelated to
toxic exposure.
The exams and subsequent memos Veterans Service
Representatives (VSR) must create as a result of them have the
effect of slowing down the processing of a claim. According to
your testimony VA is largely rejecting both of those proposals.
In your opinion, Ms. Pierce, what can Congress do to
alleviate the increased workload extraneous toxic exposure
exams have imposed on employees? Is it possible to preserve VA
duty to assist while also narrowing the scope of TERA exams?
Ms. Pierce. Thank you for the question. There are a large
variety of different things that could be done to impact the
mandatory requirements for the TERA exams. Both of these bills
take different approaches to doing so.
We have identified some operational challenges ourselves
with claims related to TERA taking approximately 33 days longer
than other types of claims and the large volume of TERA exams
that are being requested, resulting in a relatively low grant
rate related to all other claims.
We have identified that there are some limitations in our
data, how we are collecting data on TERA and we have heard
perspectives from our employees, from VSO and other
stakeholders. We have set up a TERA data workgroup to analyze
the data, look at potential policy and procedural changes or
system updates that could enhance how we are providing benefits
to this population. We want to make sure we are taking a
deliberate approach, so I do not have any concrete
recommendations on what could be specifically done.
I would draw attention to the provision in the toxic
exposure examination improvement Act that would amend the
definition of TERA in 38 USC 1710, specifically adding a
qualifier that a TERA would be established for an entry in an
exposure record tracking system that specifically indicates the
veteran was subjected to toxic exposure.
We do not support that because it limits both health care
and eligibility for examinations because that is a health care
statute. Amendments to potentially make changes to the
mandatory requirements for TERA exams should consider any
unintended consequence on also limiting health care
eligibility.
Mr. Pappas. Thanks for those comments. I am way over my
time but I hope we can continue talking about this. I yield
back.
Mr. Luttrell. Thank you, sir.
Mr. Self, you are recognized for 5 minutes.
Mr. Self. Thank you, Mr. Chairman. Mr. Chairman, before I
get to my questions how many legacy cases are remaining?
Mr. Areizaga-Soto. Sir, some of the--some of the inventory
is at the--at the BVA and some of it is at the Court. At the
Board we have 12,000, sir.
Mr. Self. Twelve thousand, okay, thank you.
Mr. Chairman, accountability is often an issue in our
hearings with VA in every area. If I understood your testimony
correctly for decades the Board has held the VA, the VBA
accountable for failing to comply with the Board's orders. Did
I understand your testimony correct, that the Board should stop
doing that?
Mr. Areizaga-Soto. Thank you for your question, Congressman
Self. The Board does not hold accountable. What the Board does
it reviews, so under the AMA, under, you know, between legacy
and AMA, in legacy the veteran only had one option if they did
not accept the decision of VBA and it was to appeal to the
Board.
Under AMA as it is veteran centric and it looks for veteran
choices, the veteran has an option to a higher-level review
appeal at VBA. That is working very well. Many veterans are
taking that choice. VBA has grown exponentially their number of
decisions, up to 2.4 million a year. We are still seeing the
same number of appeals, Mr. Congressman.
When it comes to us the judge reviews it, he can grant it,
he can deny it, or he can say there is the information is not
enough or there is another issue that needs to be reviewed----
Mr. Self. Okay.
Mr. Areizaga-Soto [continuing]. and it remands it back to,
back to VBA, sir.
Mr. Self. Okay. That is the process. I am talking about
accountability. Who is holding VBA accountable for Board
orders, is the bottom line?
Mr. Areizaga-Soto. Sir, that is--that is the system. We
are. That is the system because by going back it goes back to
their inventory and they need, and they act upon it and we
would expect that, you know, in this----
Mr. Self. It is a self-policing process?
Mr. Areizaga-Soto. It is but let me go and turn it over to
Ms. Ogilvie because we have created a Tiger Team to coordinate
issues and work through interfacing.
Mr. Self. Okay. Ms. Ogilvie.
Ms. Ogilvie. Yes.
Mr. Self. You have been very patient.
Ms. Ogilvie. As to remand and VBA's adherence to the remand
instructions that are sent from the Board, that is overseen by
VBA, yes. It is self-policing. It is through our quality
system, so we have in progress reviews and we have reviews that
happen after the fact quality reviews.
We also, as the chairman mentioned, we have a Tiger Team
within VBA and at the Board that looks at the instructions
themselves as well as the adherence to those instructions. We
have a feedback between BVA and VBA to discuss any problematic
instructions that need--cause concerns or if VBA is not
adhering to those instructions.
Mr. Self. Who ultimately holds the authority to hold VBA
accountable? Is it within VBA?
Ms. Ogilvie. Yes. It is within VBA.
Mr. Self. I thought that might be the answer. Okay. Ms.
Ogilvie, for you again, does DOD consistently classify entries
in ILER as toxic even though they may or may not be toxic?
Ms. Ogilvie. I am going to actually defer that to Ms.
Pierce.
Mr. Self. Okay.
Ms. Pierce. Thank you. The ILER system collects a lot of
different information. There is a lot of surveillance of
exposure events that takes place. Typically----
Mr. Self. Okay. My question is very narrow. Let us narrow
to the question. Do you over classify--my question is, do you
over classify toxic versus nontoxic? I am trying to get to the
number of TERA exams that we have.
Ms. Pierce. Yes, there are definitely entries in ILER that
are not related to toxic exposures, related to just routine and
monitoring of substances at locations as well as just health
assessments that are totally unrelated.
Mr. Self. As the The Sergeant First Class Heath Robinson
Honoring our Promise to Address Comprehensive Toxics (PACT) Act
requires a TERA exam if they see an entry that is toxic, is
that correct?
Ms. Pierce. As we have interpreted essentially any entry in
ILER would trigger both eligibility to health care and an exam
under Section 1168 based on TERA.
Mr. Self. Any entry, is that what you said?
Ms. Pierce. Yes.
Mr. Self. I think we have identified the problem. Mr.
Chairman, I yield back.
Mr. Luttrell. Thank you, Mr. Self.
Mr. Duarte, sir, you are recognized for 5 minutes.
Mr. Duarte. Thank you, Mr. Chairman. It is great to be here
with the committee today. I appreciate your time, appreciate
the panel.
Colonel Wagner described the veterans' courts and remands
and some judges do it some way and some judges do not do it as
much and it seems like--is that based in a vagary of the law
itself or a vagary of the understanding of the law or judge's
preference?
Ms. Wagner. Congressman Duarte, I believe it is really a
judicial discretion issue. When a case comes in front of a
judge, the judge has a decision when they review the decision
of the Board--the final decision of the Board whether or not
they are going to affirm, reverse, or remand.
One of the reasons there is a high remand issue of case is
that there are two ways that Board decisions are remanded back
to the Board. One is by judges remanding it back where they
find an error, or they find that the Board is not clearly
laying out the facts or developing the facts.
The Court does not have the authority to fact-find in the
first instance. If there is a fact that needs to be resolved,
it must be sent back. There is no other alternative but to send
it back for readjudication to develop those facts.
Mr. Duarte. Sure.
Ms. Wagner. Then also when a case comes to the Court on
appeal, the first process is that the veterans counsel as well
as the Secretary's counsel attend the conference where they are
mediated by a court's staff, and they discuss the summary of
the issues before the Court. The parties agree that there are
errors in the Board's decisions.
In 76 percent of the cases that are conferenced are
remanded back where the attorneys agree that there is an error
by the Board and that is big chunk.
Mr. Duarte. Okay. Thank you. That is--Mr. Shedd, you have
done a lot of research on this type of stuff. I have seen a
couple of your documents. In your opinion, is the caselaw
crystal clear as to whether veterans court can issue limited
remands?
Mr. Shedd. Thank you for the question. Most recently the
Court in Kisor v. Wilkie issued a limited remand where it sent
the case back to the BVA with instructions to hear additional
evidence with a strict timeline as this bill would clarify that
it can do.
The dissenting and concurring opinions made it difficult to
determine whether or not when limited remands should be used.
The majority opinion did not--although it indicated that it is
appropriate in certain circumstances, it did not indicate when
those circumstances or what those circumstances are.
Mr. Duarte. Okay. Well, thank you. That is enough, sir. Ms.
Pierce, so I have a Clear Communication for Veterans Claims Act
and I understand the Veterans Administration has some concerns
about the bill.
If Congress compelled a third party to collaborate with the
VA, would that alleviate the VA's concern that the entity's
recommendation for improving notice letters might be
noncompliant with the law? Is the law clear enough to where
even the VA itself can give clear direction as to what is
certain in terms of clarity and consistency with the law?
Ms. Pierce. I will defer that question to Ms. Ogilvie.
Ms. Ogilvie. Thank you for the question. Yes, so VA
believes that legislative action here is not required for a
comprehensive letter review. VBA's business line already engage
in continuous improvement of notification letters. There is an
existing governance process in place. There is--the concerns
that we have with this bill specifically are about the legal
issues that you mentioned.
Mr. Duarte. Well I think that is the essence of our problem
with not having the bill, with not having a reformed Clear
Communication for Veterans Act because these letters are so
full of legal concerns and self-protections of the agency that
they can get up to 20 pages long and, I mean, I, as a layman,
not familiar with veterans' affairs, I am lost in your jargon
and lingo to some degree today. That is my problem. I jumped in
on the committee.
These veterans have serious life issues hanging on their
end. I do not think they need more legalese. I think these
veterans need clear communications that is focused around
themselves, their cases, their needs, and the resources
available from the Veterans Administration to get it to them.
I have a feeling if I left every legal issue to be
clarified by the VA itself, these letters would go from 20 to
30 pages, not from 20 to 2 pages.
Ms. Ogilvie. Our concern with the bill is that it leaves no
room for VA to clarify or refine some of the language that the
Federally Funded Research and Development Centers (FFRDC) would
recommend. We have no issue with an FFRDC looking at letters
and suggesting improvements. The language as written makes it
mandatory for VA to accept that language and there are legal
issues that must--the law does lay out things that we must tell
the veteran in every letter especially notice letters.
We do not want that to be something that will be a risk for
veterans as well because they do need to be aware of their
rights.
Mr. Duarte. Do these letters have an executive summary at
the front that tells them what their issue is and what they can
do and then all the boilerplate and legal mumbo jumbo, as we
generally call it when we are buying a car or a house, an
insurance policy, or whatever can be at the back?
My understanding is these letters are coming to the veteran
where this stuff is more front and center and comingled with
the useful information than it is put as a disclosure as is the
case in most transactions.
Ms. Ogilvie. Yes. In some--in some letters, like
notification letters, there is kind of a bottom-line up front
about whether there has been a grant or denial of the claim and
what kind of payment that the veteran can expect and the
appellate rights and other rights are at the back.
Mr. Duarte. That is in some letters?
Ms. Ogilvie. In some letters. Yes.
Mr. Duarte. We do not--we are not confident that that is--
that is consistent, that every veteran is going to have that
luxury of having a clear set of information up front versus
comingling it and hiding it to some perspectives within the
body of long legalese and confusing letter?
Ms. Ogilvie. Yes, that is correct, sir.
Mr. Duarte. If you have involvement to make sure all of
your legal disclaimers are there somewhere I think a company
that has skills in bureaucratic engineering and informing for
customer satisfaction, because that is ultimately what we are
trying to do is going to know what to put up front and what to
put in back.
I do not think they will limit your legalese. I think they
will just get it out of the way and kind of where everybody
else puts it.
Thank you, Chairman. I yield back.
Mr. Luttrell. Thank you, Mr. Duarte. Mr. Duarte, do you
have another question, sir, for a second round?
Mr. Duarte. Not for this panel, no. Thank you, sir.
Mr. Luttrell. Okay. Ms. Ogilvie, just to piggyback off of
from what Mr. Duarte was saying, is there a specific regulation
or reason why every member does not receive, as you said, the
bottom-line up front on the front page of every letter that is
sent to them? That just seems like that would work so much
better than the letters that do not have that. Is there
something in place that is preventing that from happening?
Ms. Ogilvie. No, there is not. And----
Mr. Luttrell. Outstanding.
Ms. Ogilvie [continuing]. I would just note that also we,
after the recent hearing on letters, we have also been working
very closely with VSOs and other attorney representatives to
get their feedback about letters that are----
Mr. Luttrell. Great. I am pretty sure I asked you guys to
do that.
Ms. Ogilvie. Yes. And----
Mr. Luttrell. Outstanding.
Ms. Ogilvie [continuing]. we are looking forward to the May
roundtable to discuss this further.
Mr. Luttrell. Okay. Perfect. All right. On behalf of the
subcommittee, I thank you for your testimony and joining us for
today. You are now excused.
Third panel, you may approach. Good afternoon. I am
assuming Ms. Pierce is not joining us with this panel, is that
correct? Just so I do not mess--Okay.
Our third panel includes Ms. Candace Wheeler, director of
government and legislative affairs for the Tragedy Assistance
Program for Survivors; Christopher Macinkowicz, deputy director
for the National Veterans Service at Veterans of Foreign Wars
of the United States; and Mr. Andrew Tangen, first vice
president of the National Association of County Veteran Service
Officers; and Ms. Renee Burbank, director of Litigation of the
National Veterans Legal Service Programs.
Would the witnesses please stand and raise your right hand?
[Witnesses sworn.]
Mr. Luttrell. Please be seated. Thank you and let the
reflect that all witnesses answered in the affirmative.
Ms. Wheeler, you are now recognized for 5 minutes to
present the testimony of the Tragedy Assistance Program for
Survivors.
STATEMENT OF CANDACE WHEELER
Ms. Wheeler. Chairman Luttrell and Ranking Member Pappas,
and distinguished committee members, the Tragedy Assistance
Program for Survivors is grateful for the opportunity to
testify today on behalf of over 120,000 surviving families,
TAPS is honored to service.
A top legislative priority for TAPS is ensuring surviving
spouses are allowed to remarry at any age and retain their
benefits. Current law penalizes them if they remarry before age
55. Given that many post 9-11 surviving spouses are widowed in
their 20's or 30's, we are asking them to wait 20-plus years to
remarry and retain benefits.
Surviving spouses should not have to choose between
remarrying and financial security. Regardless of their marital
status, they will always be the widow or widower of someone who
served and sacrificed and our country. TAPS is proud to work
with Representatives Phillips and Hudson on the Love Lives On
Act to address this important issue and we urge its swift
passage.
We also request that Congressional Budget Office (CBO)
reconsider its scoring of this bill based on VA's much lower
cost projection and the fact that surviving spouses who remarry
do not retain their TRICARE or CHAMPVA insurance, which is a
major cost savings to the government.
Another priority for TAPS and the survivor community is
strengthening Dependency and Indemnity Compensation. Stringent
limitations on DIC payments to surviving families have
financial and widespread impacts. As surviving spouse Katie
Hubbard states, ``Increasing DIC would allow me to be able to
afford groceries and childcare, medical expenses and home and
car maintenance while just trying to survive.''
We strongly support the Caring for Survivors Act and thank
Representatives Hayes and Fitzpatrick for reintroducing this
important bill. Raising DIC from 43 to 55 percent of the
compensation rate paid to 100 percent disabled veterans will
provide parity with other Federal survivor programs.
In addition, we thank Chairman Luttrell and Ranking Member
Pappas for introducing the Veterans Compensation and Cost of
Living Adjustment Act which will help increase DIC. TAPS
appreciates Congressman Ciscomani and Chairman Bost for
introducing the Prioritizing Veterans Survivors Act which would
return the Office of Survivor Assistance (OSA) to its previous
location within the Office of the VA Secretary.
OSA was established by law in 2008 to serve as a principal
advisor to the secretary and as a resource for surviving
families regarding benefits, care, and memorial services. In
its current placement within Pension and Fiduciary Services,
survivors lack daily representation before the secretary
depriving critical insights and perspectives.
With more than 505,000 survivors eligible for DIC, OSA
staffing should be significantly increased to better serve
surviving families. OSA should be the official entry point into
VA for survivors with the authority, bandwidth, expertise, and
access needed to address any challenges that survivors face
regarding all VA benefits and services.
TAPS also recommends creating a dedicated survivor help
line within the veterans call center to provide access to
trained agents with the cultural competency and compassion to
address survivor issues enterprise wide. We appreciate VA
recently holding a survivor summit to gain valuable insight and
input from survivors and key stakeholder organizations to
ensure survivors receive the highest quality of services and
support they deserve.
TAPS thanks Ranking Member Takano for introducing the
Survivor Benefits Delivery Improvement Act to improve access to
VA survivor benefits through the collection of demographic data
and to ensure necessary resources for survivors. TAPS
recommends adding cause of death as a tracked demographic.
This data would be incredibly important to understand the
different types of losses survivors face as well as creating
programming and resources that are relevant for all survivors.
In closing TAPS thanks Congresswoman Strickland for introducing
the Fairness for Service Members and Their Families Act.
We appreciate the importance of reviewing the automatic
maximum coverage of the service members and veterans group life
insurance programs and would ideally like to see both the
Servicemembers' Group Life Insurance (SGLI) and Veterans' Group
Life Insurance program (VGLI) fully tied to cost of living
adjustments and inflation to ensure it maintains the intended
rate long term. On behalf of our Nation's surviving families,
we thank this committee and I look forward to your questions.
Thank you.
[The Prepared Statement Of Candace Wheeler Appears In The
Appendix]
Mr. Luttrell. Thank you, Ms. Wheeler.
Mr. Macinkowicz, you are now recognized for 5 minutes to
present the testimony of the Veterans of Foreign Wars of the
United States.
STATEMENT OF CHRISTOPHER MACINKOWICZ
Mr. Macinkowicz. Chairman Luttrell, Ranking Member Pappas,
and members of the subcommittee, 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 testimony
with regard to this pending legislation.
As the former VFW training and quality assurance director,
I am keenly aware of how quickly and often VA regulations
change as well as the need to ensure that updated regulations
are understood by those who use them. Recently I was
representing a veteran from Maryland who had a claim for a
mental health condition denied by VA. The veteran had claimed
Post-Traumatic Stress Disorder (PTSD) on the initial
application for benefits, however during the C&P examination
the examiner diagnosed a different mental health condition and
provided a medical opinion linking the condition to active
military service.
Though there is a 2009 Court of Appeals case that directly
references this type of situation and VA's own regulation
states that raters are required to consider all the mental
diagnoses in the record, a VA rating officer denied the claim
because the veteran did not have PTSD. Though the referenced
court case and the regulation both state that the rater was
supposed to consider all mental health diagnoses of record
without proper training in plain language this regulation is
often confused, thus causing an unnecessary appeal.
The VFW supports the Veterans Claims Quality Improvement
Act of 2024 which would provide much needed training and
oversight for those deciding VA claims. However, addition of
more oversight often comes with delays and timeliness if the
program is not properly funded. This bill instructs the general
counsel to review each updated VA regulation and develop a
training program to ensure that those writing the regulations
are properly trained.
It also instructs the Board of Veterans' Appeals to create
a training quality insurance program. While training and
oversight is essential, without proper funding for these
programs the development and execution could be severely
impacted thus limiting the effectiveness of these programs.
Since the creation of the VA National Work Queue in 2016,
VFW accredited representatives have seen numerous instances of
claims and appeals that have been sent to the National Work
Queue where they sit unassigned and unworked by VA staff. In a
recent VA meeting, VSOs were briefed that once a claim is in
the National Work Queue it is not uncommon to be untouched
still at the 6-month mark.
The VFW can definitely corroborate this. In fact, one of
our service officers submitted a claim for an increased rating
more than 10 months ago, but it is still sitting the National
Work Queue untouched. This is one of many examples of claims in
remanded appeals that are waiting in this queue.
The Veterans Appeals Efficiency Act of 2024 would require
the secretary to track claims in the National Work Queue,
submit an annual report, and provide notice to veterans of the
reasons why their claim is still waiting in the National Work
Queue.
The VFW supports this intent but feels that there needs to
be more guidance regarding the delivery and language of the
notifications to veterans. During the claims process veterans
are often inundated with different notifications from VA which
can be confusing, overwhelming, and repetitive. Simply sending
another notification to the veteran that their claim is pending
in the National Work Queue will not answer the question as to
why their claim is waiting in the National Work Queue.
Therefore, we recommend that accredited VSOs be included in
the development process to ensure that the messaging and
notifications is clear and effective. The VFW also supports
H.R. 7816, the Clear Communication for Veterans Claims Act. One
of the primary challenges veterans encounter when reviewing
their disability notification letters is the intricate language
and terminology used.
Far too often accredited representatives spend a great deal
of time explaining the letters that make sense to the trained
eye but not to anyone else. The VA disability system involves a
multitude of regulations, policies, and procedures.
Unfortunately, these guidelines can be subject to
interpretation resulting in inconsistencies and notification
letters and frustration on the part of the veteran.
Understanding the full spectrum of benefits associated with
the disability rating is another hurdle for veterans. Most
notification letters include information on additional benefits
but veterans may struggle to connect these pieces of
information to effectively assess the services to which they
are entitled. This lack of clarity can impede veterans' ability
to make informed decisions about their health care and overall
well-being.
The VFW supports effective notification and believes that
veterans should not be penalized for not understanding the
complex laws of the VA process.
Chairman Luttrell, Ranking Member Pappas, this concludes
our testimony and I am happy to answer any questions that you
may have.
[The Prepared Statement Of Christopher Macinkowicz Appears
In The Appendix]
Mr. Luttrell. Thank you, Mr. Macinkowicz.
Mr. Tangen, you are recognized for 5 minutes, sir, to
present the testimony of the National Associations of County
Veterans Service Officers (NACVSO).
STATEMENT OF ANDREW TANGEN
Mr. Tangen. Chairman Luttrell, Ranking Member Pappas, and
distinguished members of the subcommittee, the National
Associations of County Veterans Service Officers would like to
thank you for the opportunity to submit our views on pending
legislation impacting the Department of Veterans Affairs before
the subcommittee.
My name is Andrew Tangen and as a first vice president of
NACVSO, I am honored to speak to you--before you today. Due to
the highly complex and technical nature of these pending bills
I would like to focus my oral testimony on the importance of
Congress's continued efforts to improve the appeals process for
veterans and survivors specifically surrounding the Board of
Veterans' Appeals.
Many times, veterans and survivors are trapped in a cycle
of repeated denials for benefits owed to them. It starts with a
decision at the VA regional office (RO), it is sent to review
by the Board, then returned to the regional office for a
denial. It is appealed and then reviewed again by the Board and
then sent back to the regional office for another denial. Then
another appeal, another denial, another appeal, and denial,
becoming an endless loop that can take years to complete.
I can spend days describing individual cases where we as
Government Veterans Service Officers (GVSO) have seen this
exact scenario play out. In the interest of time, I will speak
on one of the most egregious cases I have personally witnessed.
My office represented the widowed spouse of a Vietnam era
veteran through multiple appeals and readjudication of a
veteran who died of Methicillin-resistant Staphylococcus aureus
(MRSA) without ever being diagnosed with it. The veteran was
experiencing left side weakness and loss of balance, so he went
to his primary care physician in November 2007.
A Computed Tomography (CT) scan found an abnormal finding,
so he was admitted to Edward Hines VA Medical Center (VAMC) for
a brain biopsy, chemotherapy, and radiation to reduce the size
of a tumor he had and needed surgery on. However, this veteran
was found unresponsive 1 month later. He looked incredibly sick
and was running a high-grade fever. The veteran also
immediately began to lose the ability to speak and could not
open his eyes and passed away a week later.
The widow began attempting to uncover what happened to her
husband and reached for help from former Congressman and
Senator Mark Kirk. Congressman Kirk sent two requests for lab
results to the VAMC regarding the veteran's death. The results
showed the veteran had been diagnosed with MRSA but that was
never recorded in his medical records in Hines VAMC.
Following the diagnosis the Hines employees gave the widow
a pamphlet explaining the contamination procedures the widow
needed to know because the veteran had tested positive for
MRSA. Unfortunately, the veteran was already dead. You would
think that would be enough but it is not.
The spouse was denied benefits twice under a 1151 claim
based on VA negligence. Upon appeal the widow and her daughter
testified about the lack of care provided to the veteran to
such an extent that the daughter specifically testified that
she had to wear a gown and protective equipment when she went
to see the veteran 2 days before he passed and that her
father's tongue and mouth were blackened like a hotdog that had
been left far too long on a grill. The Board still denied the
case, stating it remained an unestablished fact that the
medical evidence existed that the VA hospitalization medical or
surgical treatment resulted in the veteran's death.
My office stepped in to represent the widow in 2020 at the
Court of Appeals for Veterans Claims, where we pointed out
medical treatment was not provided correctly. We also retained
an internist with 40 years of medical experience and 35 years
of medical malpractice expertise who determined VA providers
negligently treated this veteran's MRSA infection.
The case once again went to the Board, was remanded to the
regional office for a new forensic examination where the
testimony of our expert witness was completely ignored, and the
claim denied again. We again appealed the case, correctly
pointing out the failure to consider our expert witness 5 more
times.
On the 6th remand the VA finally ordered an examination,
this time by a high-level VA provider who immediately
determined the VA failed to treat the veteran's MRSA infection,
failed to follow VA procedures as well as failed to follow
guidelines from the Infectious Disease Society of America and
the American Thoracic Society.
It took 15 years, 15 long, unnecessary years of constant
back-and-forth between the regional office and the Board before
the widow was finally awarded benefits for the death of her
husband. Unfortunately, this is not an uncommon occurrence.
This happens repeatedly and consistently, whether in the legacy
appeals or the Appeals Modernization Act.
Ultimately, it should never take 15 years for a widow to
receive benefits she rightly deserves.
Chairman, Ranking Member, and members of the subcommittee,
on behalf of NACVSO, thank you for the opportunity to submit
our views on some of these bills pending before--being
considered today and we look forward to working with you on the
legislation and would be happy to take any questions for the
record.
[The Prepared Statement Of Andrew Tangen Appears In The
Appendix]
Mr. Luttrell. Thank you, sir.
Ms. Burbank, you are now recognized for 5 minutes to
present the testimony of the National Veterans Legal Services
Program (NVLSP).
STATEMENT OF RENEE BURBANK
Ms. Burbank. Good afternoon. Thank you, Chairman Luttrell,
Ranking Member Pappas, and the esteemed members of the
Disability Assistance and Memorial Affairs Subcommittee.
On behalf of the National Veterans Legal Services Program,
thank you for the opportunity to testify before you today on
ways to improve the claims adjudication and in particularly the
appeals process at the Department of Veterans Affairs and the
Court of Appeals for Veterans Claims.
NVLSP is a nonprofit veterans services organization founded
in 1981 and we are dedicated to ensuring that our Nation's 18
million veterans and their families receive the benefits that
they need and deserve for disabilities resulting from their
military service to our country.
For the sake of time, I would like to focus, though, on
just a couple of issues and particularly the Veterans Appeals
Efficiency Act of 2024 and the provisions relating to the Court
of Appeals of Veterans Claims. This is not a one fix, one piece
of legislation is not going to fix everything about the delays,
the inefficiency, the inconsistency of decisions. These tweaks
will make a difference and NVLSP supports taking a multifaceted
approach as reflected in the legislation you are considering
today.
The Veterans Appeals Efficiency Act will provide to the
CAVC several tools for its toolbox that will make sure that the
Veterans Court has the same kind of authorities as other
Federal courts do when they review other Federal agencies'
actions. The Veterans Court should not be hampered in its
ability to act efficiently and craft effective and timely
relief for veterans.
In particular NVLSP strongly supports codifying the Court's
authority to issue limited remands to the Board. Basically this
means that the Court can, when it thinks it is appropriate,
send a case back to the Board to answer a narrow question that
the Court needs answered before making its decision. Limited
remands can help reduce the churn that occurs when a case go
back to the Board and then back to the RO and then back to the
Board and then back to the Court.
Instead with a limited remand the Board can get--the Court,
excuse me, the Court can get the Board to act narrowly and
quickly and then the case comes right back to the Court to
resolve the case, hopefully for the last time. Other courts
routinely do this when they are reviewing agency actions. They
do not use it all the time but where the Court is particularly
skeptical of the agency getting it right on remand or is
concerned about undue delay this is a useful tool to have.
The Veterans Court should have and we believe does have
this authority but it should be clear and it should be clear
that this is an appropriate tool for the Court to use. NVLSP
also supports the CAVC's ability to use its class action
authority for aggregating claims in the way that other courts
do. Right now, the CAVC's ability to use its class action
authority is narrower than any other Federal Court's class
action authority because of the way the Federal Circuit, the
court that reviews CAVC decisions recently interpreted the
CAVC's limited jurisdiction to prevent considering common
questions of law on claims that do not yet have final Board
decisions.
Giving CAVC the power to issue class action decisions that
affect all veterans with the same issue is vital to make
decisions fair, consistent, and improve efficiency by deciding
a common legal issue for everyone at the same time.
With that I will restrain myself from talking about all of
the other provisions and therefore just thank you for time,
thank you for the opportunity to testify, and we welcome any
questions.
[The Prepared Statement Of Renee Burbank Appears In The
Appendix]
Mr. Luttrell. Yes, ma'am. Keep going.
Ms. Burbank. All right. I will keep going. In particular
the discussion from the previous panel, there was a discussion
about whether the Veterans Court has this limited remand
authority. The clerk of the Veterans Court stated in written
testimony that this provision could inject uncertainty into the
law and restrict the authority that they already have.
With all due respect, NVLSP position is that this bill will
inject certainty. There is some lack of clarity between a
couple of cases. Mr. Shedd discussed Cleary and for----
Mr. Luttrell. We can appreciate the argument from the other
side, I Am sure.
Ms. Burbank. Excuse me?
Mr. Luttrell. You can appreciate the argument from the
other side?
Ms. Burbank. I think the key is that the provision as
written does not require using limited remands in a way
different from how the Court already sees its authority. The
problem is that several of the judges on the Court have said
explicitly in decisions, we are not sure how this works with
our other caselaw that says we do not have the ability to just
keep jurisdiction on certain cases and send them back. The
ability to----
Mr. Luttrell. They do not say that. From what I understand
from the previous panel is that they have absolute
understanding that that belongs to them.
Ms. Burbank. They have not used that authority that they
are now saying they have. Right? We agree that they have the
authority. They do not use it very often. And----
Mr. Luttrell. You can appreciate that I have to take what
you are saying, what the previous panel said, because I am
looking at you as the subject matter expert and the previous
panel, they are subject matter experts, but I was not there. I
did not witness this.
Now here we are once again in conflict. Is this a
widespread, wide casted net problem? Are these singularities
that we are dealing with because the legislation that we are
pushing across is exactly what you are--is why--what you are
saying is why we are doing it.
Ms. Burbank. Right. For example, there are two cases and
they are called Best and Mahl, M-a-h-l, and it is--they are
often referred to together, Best and Mahl. What happens with
the veterans court now is that when there are say five issues
that come in one case and there is one issue that should be
remanded to the Board. It is very clear that it should be
remanded.
There is some issue maybe the Board has not decided--has
not explained it is reasons for its decision. Under the case
law that exists right now that case has to go back. You take
the low-hanging fruit. The Court takes the low-hanging fruit
and sends the whole case back.
This would provide an opportunity and clarity that what the
Court could do instead is say if there is just one issue that
needs, the Board needs to just cleanup part of its decision, it
can come straight back to the Court to decide an important
issue--to decide an important legal question that otherwise may
never come back to the Court or may take years to come back to
the Court.
Mr. Luttrell. Mr. Tangen, do you got anything for that?
Mr. Tangen. I would say, Chairman, I agree with NVLSP. We
also agree with NVLSP on what they were saying as well. I will
also point out that there are many cases that come from the
Court of Appeals to veterans' claims back down to the Board
that the Board is not tracking the data on why they were sent
back to them through remands, through joint motions for
remands.
Mr. Luttrell. Like an individual or like the entire Court
itself?
Mr. Tangen. The Board itself is not tracking what the
reasons that their decisions were sent back through a joint
motion for remand on those.
Mr. Luttrell. Okay. Hang on for a second. I do not think
anybody likes to beat up the VA more than I do. I also can
appreciate what they are and everything that they are trying to
accomplish. I do appreciate the struggles that we all--that you
all are experiencing with the veterans that you are helping.
Right?
I am a veteran myself. I get it. I am not going to blame
the entire Board. I am not going to--the Court system, I would
not do that. I find that really hard to believe and I am not--I
am not getting on to you about this, but what I am saying is I
find it hard to believe that the entire Court itself would not
know that or cannot--would not understand exactly what came
back down to you all. That does not make any sense to me on how
that would happen.
You tell me it went up into the system. Nobody took a look
at it and they sent it right back down to you and you went up
there and said, hey, what is the problem? They are like, we do
not have any idea. We have never seen it?
Mr. Tangen. No, Chairman, what I am specifically
referencing is that we had the AMA summit at the beginning of
February and the question was specifically asked to the Board
there out of the 9,000 joint motions for remands or returns
from the Court to the Board does the Board track those reasons
for remand from the Court and do they provide any training? The
Board said, no.
Mr. Luttrell. Okay. It is just a documentation thing?
Mr. Tangen. Correct.
Mr. Luttrell. Okay. Mr. Duarte, sir, you are recognized.
Mr. Duarte. Thank you, Mr. Chairman. Thank you to the panel
for being here today. Ms. Wheeler, thank you for being here.
Can you elaborate on why TAPS supports the clear communication
for veterans Act?
Ms. Wheeler. Yes, I would be happy to. First of all, thank
you so much for introducing this piece of legislation. We have
seen that survivors often struggle as well with clear
communication. Oftentimes these letters, as we have all been
discussing today, are down in the weeds and very hard for the
layman to understand. Especially add a surviving spouse that is
grieving on top of that and trying to be able to understand
what is being said to them, it would be very helpful to have it
in very clear, layman's terms up front as we were all
discussing earlier.
What we also find with the whole letter type of back-and-
forth between our survivors is that often it is asking them to
prove that they have done something or to respond back. In the
case of remarriage, a letter is sent to them that says, have
you remarried? If they have not remarried they are still
supposed to send the letter back, which is wasting time for
both the VA and the survivor.
We would like that communication not only to be clear but
also thoughtful in the sense of what you are asking. You may
not need to have that reply. If they indeed need to respond
back to the VA, then they can do so at that time. That is one
of the things that we hear repeatedly from survivors in terms
of communication.
We also believe it is important for our veterans as well,
making sure that it is in laymen's terms up front,
understanding that the VA does need to put different types of
legalese toward the back but it would be very helpful, so thank
you so much.
Mr. Duarte. Thank you. Thank you very much for that answer.
Ms. Burbank, do you think that the veterans would receive
faster decision if we authorized class actions at the VA Board
of Veterans' Appeals?
Ms. Burbank. I am sorry, at the--I am sorry, at the BVA or
at the Court?
Mr. Duarte. At the VA Board of Veterans' Appeals. Do you
think the class action lawsuit is going to help veterans access
their outcomes and their benefits faster by allowing class
action?
Ms. Burbank. Class actions as a rule whether it is a courts
or a board, they are a tool of efficiency. They are designed to
make claims go faster because you are dealing with issues once
rather than dozens, hundreds, thousands of times. It relieves
not just the one--it makes one case more complex certainly, but
it means that you are not having 100 cases, 1,000 cases.
Mr. Duarte. Sure, the class action as you understand, as we
understand them in business, you have a giant business that is
going to be sued with a number of, a myriad of small claims
from similar from similar plaintiffs. You assume an adversarial
position.
You assume they need to unite through a big law firm who is
going to take a very large percentage of the outcome of the
award. In the case of veterans where they have us here
providing oversight, where they have veterans advocacy groups
on the ground, do class actions make the same sense when the
defendant often times is the government represented by this
committee and the Congress itself.
Ms. Burbank. Class actions against the government in other
circumstances also exists. The whole idea is, yes, they are a
tool that again not every case is one that is amenable to class
actions. Right?
Mr. Duarte. Sure.
Ms. Burbank. You have to have a common question of law and
fact that is going to make it faster and more efficient to deal
with all at once rather than every single time.
Mr. Duarte. Thank you. Great. Mr. Tangen, I will take your
comments on either the Communication for Veterans Claims Act.
Do you see these letters as frequently and are they more
obstructive than they have to be to the veterans getting access
to their benefits without services from someone like yourself?
Mr. Tangen. I will give a real quick story to answer your
question. My office represented a veteran, a Vietnam veteran
diagnosed with Parkinson's. He was an elected official in our
county. He wanted to give up because of the amount of paperwork
that he got from the VA. And came into my office with a box of
paperwork and said I do not want to do this anymore, keep
reading this stuff. I looked at him and I said, stop reading
the letters. That is why you have me.
Mr. Duarte. It was virtually impossible for him to get his
services and benefits that he deserved without an attorney as
yourself?
Mr. Tangen. That is correct.
Mr. Duarte. Does that need to be that way?
Mr. Tangen. I do not think so. No.
Mr. Duarte. It has not corrected itself as of yet through
the Veterans Administration directly?
Mr. Tangen. That is correct.
Mr. Duarte. You have given them some input over the years?
Mr. Tangen. That is correct, I have.
Mr. Duarte. I assume veteran groups have given them some
input over the years and it has not been fixed yet?
Mr. Tangen. That is correct.
Mr. Duarte. Thank you. Appreciate it.
Yield back, Mr. Chairman.
Mr. Luttrell. Thank you, sir.
Ms. Wheeler, I have a follow-on question for you about the
spouses and the letters that they receive asking if they had
been remarried because current law states that if you are
remarried before 55 you lose your benefits by law until this
current legislation that we are trying to push through if that
is enacted and passed.
Now, the VA sitting in this room with us their job is to
reach out to those spouses and ask those questions. I get it.
Every time I get a letter from the VA, I am not going to say
what happens to it, but I am a nonresponsive guy. If they do
not ask those questions and they do not have those answers when
they come to sit before us with a full committee, we are going
to hold them accountable.
My question is how do we fix that problem? Do not say pass
the law because we are not there yet. The way we engage with
the spouses is by mail, snail mail, email. I dare not say the
VA's launching out folks to go knock on doors. I do not know
that for certain. I do not think that would be the case. Here
is the problem.
When talking with the spouses have you in your engagements
have they responded in a way that said I would prefer this to
happen? Or are they just okay with like, I am not responding?
There is two sides to this coin.
Ms. Wheeler. That is true. We do understand that the VA is
contractually obligated to ask that question and we understand
that, and we agree with that. The problem is it is not
consistent. These letters come but not every year. Oftentimes a
survivor may get one every year. They may have a lapse in time
between that so they do not always know that they are coming
and to expect them. If they had remarried, we encourage
survivors to proactively reach out to the VA.
Mr. Luttrell. Is there a timeframe that is more--and I do
not mean for this to sound in anyway disrespectful, but is
there a timeframe that they would appreciate, like is the VA,
they reach out every 5 years or VA reach out every year? Is
there a--I am trying to solve a problem where it lives right
now.
Ms. Wheeler. It would be helpful if it was consistent. If
they are going to do it every year in a particular timeframe
then the spouse knows to expect it. We also encourage surviving
spouses to reach out to the VA to inform them that they have
remarried. I think that is a very important part of this as
well.
Mr. Luttrell. Okay. Thank you. Mr. Tangen, I have a
question Mr. Self asked me to address to you. Do you agree that
VA is obtaining too many unnecessary toxic exposure related
disability compensation exams?
Mr. Tangen. Chairman, I do absolutely believe that. What we
have seen is, and this is part of our written testimony that
was submitted, it appears to us that it is almost become a
sixth theory of entitlement, namely being the five ones that
under law are direct aggravated secondary presumptive and VA
negligence.
In some situations, it feels like the VA is using TERA as a
method of proving by a theory of service connection and we have
seen C&P exams where veterans who have not even filed for TERA
go through a TERA exam and the box is checked, no, this is not
a TERA and none of the other five theories of entitlement are
checked off.
It goes to the RO and is then denied and then we have to
take the claim through supplemental or a higher-level review or
up to the Board in order to get another C&P examination, a
forensic examination to have it be done the right way.
Mr. Luttrell. Okay. Thank you. Ranking Member had to step
away. I look forward to working with these issues with the
Department and the rest of my colleagues on this subcommittee.
These bills discussed today would provide important
improvements for veterans and survivors navigating the VA
claims and appeals process. They would also improve access to
benefits for veterans and their surviving loved ones.
The written statement of our witnesses will entered into
the hearing record. I ask unanimous consent that statements for
the record, for the record we have received be entered into the
hearing record. Hearing no objection, so ordered.
I ask unanimous consent that all members have 5 legislative
days to revised extended remarks including extraneous material.
Hearing no objections, so ordered. Thank you all for attending
today.
[Whereupon, at 4:12 p.m., the subcommittee was adjourned.]
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A P P E N D I X
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Prepared Statements of Witnesses
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Prepared Statement of Jaime Areizaga-Soto
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Tiffany Wagner
CHAIRMAN LUTTRELL, RANKING MEMBER PAPPAS, AND DISTINGUISHED MEMBERS
OF THE SUBCOMMITTEE:
Thank you for inviting the U.S. Court of Appeals for Veterans
Claims (Court) to participate in the April 10, 2024, legislative
hearing of the U.S. House of Representatives, Committee on Veterans'
Affairs, Subcommittee on Disability Assistance and Memorial Affairs
(Subcommittee). I'm Tiffany Wagner, the Court's Executive Officer and
Clerk of Court, and I'm pleased to appear as the designee of Chief
Judge Margaret Bartley on behalf of the Court. The Subcommittee is
considering several bills, but we limit our testimony to the Medical
Disability Examination Improvement Act of 2024 and the Veterans Appeals
Efficiency Act of 2024, and specifically, to the sections within those
bills that directly impact the Court. Those provisions pertain to the
Court's Annual Report and to proposed supplemental jurisdiction and
limited remand authority for the Court. While we are appreciative of
the Committee's efforts on our behalf, for the reasons outlined below
the Court does not support adoption of the proposals.
I. Proposed Section 5(d)(2) of the Medical Disability
Examination Improvement Act of 2024
Section 5(d)(2) of the Medical Disability Examination Improvement
Act of 2024 would add an additional annual reporting requirement under
38 U.S.C. Sec. 7288(b). Currently, the Court is required to summarize
our annual workload as to 15 specific elements. Proposed Section
5(d)(2) would add a 16th element, requiring a ``summary of recurring
issues that the chief judge of the Court believes could be resolved by
better training for employees of the Department, increased oversight,
or clarification from either the Department or Congress.''
Respectfully, the Court opposes this proposal.
The Court was established by Congress 35 years ago as an
independent Federal court with ``exclusive jurisdiction to review
decisions of the Board of Veterans' Appeals'' (Board) (38 U.S.C. Sec.
7252). The Board is the entity within the Department of Veterans
Affairs (VA) that provides final executive agency decisions as to
veterans benefits entitlement (38 U.S.C. Sec. 7104). Administration of
the Board is the ultimate responsibility of the Secretary of VA (38
U.S.C. Sec. 7101).
There are two primary reasons for the Court's opposition to the
Section 5(d)(2) proposal. First, the Court, as a judicial entity, has
no authority or responsibility to oversee VA or to resolve VA training
issues. The VA Secretary is tasked by the President to lead the
Department and, of course, this Committee maintains oversight as to VA
operations. Thus, it is the Secretary's responsibility to manage
Department employees, to include establishing internal operations and
directing necessary training or supervision based on his knowledge of
any VA deficiencies. The Court and its judges have no role in that
executive function, and no role in the legislative oversight function.
Court judges are not privy to internal VA operations, including as to
current training or oversight. The Court reviews issues and arguments
presented in appeals; decides all relevant questions of law; holds
unlawful and sets aside Board decisions and findings that are, among
other things, arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; and affirms, reverses, or remands
as appropriate. When the Court finds Board error requiring reversal or
remand, the Court identifies the error and explains the reasons for its
decision. Once the Court's action becomes final, the matter returns to
the Board and the Court has no further involvement. Therefore, even
were it appropriate, the Court's judges have no means to evaluate what
is or is not working successfully within VA or to suggest changes or
enhancements to VA internal operations.
A second reason for the Court's opposition to the Section 5(d)(2)
proposal is that, as with all judicial tribunals, the Veterans Court
speaks through its judicial decisions and does not issue advisory
opinions or generalize or summarize the errors of one of the parties
outside of the context of a case. VA is charged to readjudicate claims
that are returned to it for error correction. By statute, 38 U.S.C.
Sec. 7112, the Board is the recipient of every reversed or remanded
Court decision, and is likely in the best position to assess and
evaluate trends; to develop strategies and training to address errors;
to allocate resources toward such initiatives; and to limit error
recurrence. In this vein, the Court notes that proposed subsection
5(d)(1) of the Medical Disability Examination Improvement Act of 2024
places on the Chairman of the Board a reporting requirement identical
to that of proposed Section 5(d)(2). The Court believes that the burden
of identifying, reporting, and remedying errors should rest with the
Board. Indeed, in November 2023 testimony to this Subcommittee, the
U.S. Government Accountability Office made similar recommendations to
improve Board quality assurance, to include: ``The [Board] Chairman...
should develop and implement an evidence-based decision-making process
that includes a plan outlining how it will build evidence to assess the
underlying causes for the most common errors identified by the case
review process and the most common reasons for [Court] remands. The
Board should use this evidence to better target its interventions and
assess their results.'' (https://www.gao.gov/products/gao-24-106156).
Thus, as others with knowledge of this area have prescribed, the Board
is in the best position and has the authority and responsibility to
collect and provide the information outlined in proposed Section
5(d)(2).
For these reasons, the Court respectfully opposes Section 5(d)(2)
of the Medical Disability Examination Improvement Act of 2024.
II. Proposed Section 2(d) of the Veterans Appeals Efficiency
Act of 2024
Section 2(d) of the Veterans Appeals Efficiency Act of 2024, titled
``Expansion of Jurisdiction of [the Court],'' would modify 38 U.S.C
Sec. 7252 to add two additional subsections-the first pertaining to
supplemental jurisdiction and the second to limited remand authority.
A. Supplemental Jurisdiction
Section 7252 of title 38 U.S. Code establishes the Court's
jurisdiction, stating that the Court has ``exclusive jurisdiction to
review decisions of the Board.'' Proposed subsection 7252(b)(1) would
add that the Court ``shall have supplemental jurisdiction to review an
eligible claim pending a final decision of the [Board] with respect to
such eligible claim''; proposed subsection 7252(b)(2) would address how
the period for administrative review of such claims would be tolled
pending a Court decision; and proposed subsection 7252(b)(3) would
define an ``eligible claim'' for purposes of supplemental jurisdiction.
This proposal appears to be directed toward that part of the U.S.
Court of Appeals for the Federal Circuit's decision in Skaar v.
McDonough, 48 F.4th 1323 (Fed. Cir. 2022), that held that the Veterans
Court exceeded its jurisdiction when it included in a certified class
veterans who had not yet received final Board decisions as to their
individual claims. The Federal Circuit held: ``While district courts
may indeed exercise jurisdiction over future claimants, that is because
Congress explicitly conferred the district courts with supplemental
jurisdiction encompassing such claims. Critically, Congress has not
enacted any comparable jurisdictional statute for the Veterans Court.''
Skaar, 48 F.4th at 1333-34 (internal citations omitted).
Congressional modification or expansion of the Veterans Court's
jurisdiction is a legislative policy determination that the Court will
not comment on. However, the Court offers the following observations
with regard to the specific language in proposed subsections
7252(b)(1), (b)(2), and (b)(3).
First, the term ``supplemental jurisdiction'' is not defined in new
proposed subsection 7252(b)(1), and therefore is susceptible to broad
construction. The statutory basis for supplemental jurisdiction in
United States district courts is found in 28 U.S.C. Sec. 1367(a). That
statute defines a claim over which a district court has supplemental
jurisdiction as one that is ``so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy.'' Stated differently, if a district court has jurisdiction
over claim #1, it may exercise supplemental jurisdiction over claim #2
(over which it would not have original jurisdiction) so long as the two
claims ``form part of the same case or controversy.'' The absence of a
definition of ``supplemental jurisdiction'' in proposed section 7252(b)
may invite a wave of requests citing this proposed provision and
arguing for a wider interpretation of the expansion of the Court's
jurisdiction than Congress may have contemplated.
Second, new proposed subsection 7252(b)(2) may be intended to
permit a claimant who is included in a certified or proposed class
pending at the Court and who has not yet received a final Board
decision to temporarily stop the clock on agency review deadlines that
follow an initial VA decision on a claim. But it is unclear whether the
subsection intends to use the word ``claimant'' to refer to different
actors. The first use of ``claimant'' may be referencing an individual
needing tolling of the period in which to submit a request for agency
administrative review when that individual is included in a class
action pending before the Court. In other words, the first ``claimant''
may refer to a person whose claim remains before the agency. However,
the second use of ``claimant'' refers to an individual who ``submits to
the Court a motion for class action review.'' It is unclear whether
this second use intended to include someone who has appealed a final
Board decision to this Court and has submitted a request for class
certification. Because the intent is unclear and because the Court may
be called upon in the future to interpret whatever language Congress
enacts, the Court finds it difficult to provide thoughtful feedback as
to this proposed subsection.
Third, new proposed subsection 7252(b)(3) defines the term
``eligible claim'' used in subsection 7252(b)(1) concerning
supplemental jurisdiction as a claim pending a final Board decision
``for which relief may be granted on a class-wide basis'' pursuant to
the Court's Rules of Practice and Procedure (Rules). If Congress's sole
intent is to permit the Court to include in an existing class a VA
claimant who lacks a final Board decision, the Court suggests that
Congress seriously consider whether the definition goes beyond what
Congress has contemplated. Because the Court's Rules contain no
restriction as to appeals that may be subject to relief on a class-wide
basis, this leaves unsettled whether as written the Court might have
supplemental jurisdiction over any claim pending before VA, regardless
of whether a request for class certification and class action has been
filed. This could result in a flood of claimants seeking Court review
of myriad non-final agency actions. It may be possible to read
``eligible claim'' in the context of supplemental jurisdiction as
fundamentally changing the Court's current statutory jurisdictional
requirement that there be a final Board decision prior to Court review.
Unfettered jurisdiction could significantly grow the Court's caseload,
which in turn would require reevaluation of Court processes and
resource needs.
For the above reasons, the Court has serious concerns about Section
2(d) of the Veterans Appeals Efficiency Act of 2024.
B. Limited Remand Authority
Section 2(c) of the Veterans Appeals Efficiency Act of 2024
proposes to add new 38 U.S.C Sec. 7252(c), addressing the Court's
remand authority.
Proposed new subsection 7252(c)(1) would authorize the Court to
remand a matter to the Board ``for the limited purpose of ordering the
Board to address a question of law or fact'' that the Court determines
the Board failed to either (1) address after it was explicitly or
reasonably raised, or (2) adequately explain the reasons or bases for
the Board's decision as to such question. Proposed new subsection
7252(c)(2) would permit the Court, when issuing such a limited remand,
to direct the Board to issue a decision by a date certain. Proposed new
subsection 7252(c)(3) would require the Court to retain jurisdiction
over such remanded matters and to stay Court proceedings until the
Board satisfies the remand instructions and issues a decision.
Proposed subsection 7252(c) could inject uncertainty into the law
given that the Court already has the authority to take the actions
contemplated in this proposed new section. Currently, 38 U.S.C. Sec.
7252(a) permits the Court to remand matters as appropriate. Issuing
limited remands, retaining jurisdiction, and setting out a timetable
within which the Board must act are all actions that the Court at the
current time may take or has taken. Most recently, the en banc Court in
Skaar v. Wilkie, 31 Vet.App. 16 (2019) (per curiam order), did just
that. There, the Court clarified its authority in this regard and noted
that the unique circumstances of that case made using a limited remand
appropriate. The Court retained jurisdiction of the matter and directed
the Board to address specific issues on a detailed timeline. Although
later holdings in Skaar were overturned by the Federal Circuit, this
holding was not disturbed.
The fact that the Court has current authority to engage in limited
remands is the primary reason that the Court raises questions about the
proposed changes regarding limited remand authority. But in addition,
by articulating when the Court may order a limited remand, new
subsection 7252(c)(1) may in fact limit the Court's current authority
to engage limited remands. And proposed new subsection 7252(c)(3) could
impose a potentially unclear and unnecessarily rigid framework on Court
actions. How and when to act in handling cases before the Court is a
judicial determination and the Court, for example, should not be
prevented from acting in cases where the Board fails to comply with the
remand instructions.
Without a doubt, retaining jurisdiction and directing a limited
remand with specific adjudication instructions to the agency could be a
powerful tool. But this tool is already in the Court's toolbox--and we
suggest that Congress consider whether increased use may disturb the
normal process for veterans waiting in the traditional appeal queue. In
short, under our current authority the Court may undertake case-by-case
judicial determinations as to when and to what extent to remand, and it
is unclear to the Court why Congress may believe this to be
insufficient.
III. Conclusion
The Court takes seriously its mission to afford veterans and their
families and survivors full, fair, and prompt judicial review of final
Board decisions. The Court is open to ways to improve its functioning
and appreciates the Subcommittee's continued interest and effort in
this shared goal. Thank you for the opportunity to submit this
statement.
______
Prepared Statement of Daniel Shedd
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Candace Wheeler
The Tragedy Assistance Program for Survivors (TAPS) is the national
provider of comfort, care, and resources to all those grieving the
death of a military or veteran loved one. TAPS was founded in 1994 as a
501(c)(3) nonprofit organization to provide 24/7 care to all military
survivors, regardless of a service member's duty status at the time of
death, a survivor's relationship to the deceased service member, or the
circumstances or geography of a service member's death.
TAPS provides comprehensive support through services and programs
that include peer-based emotional support, casework, assistance with
education benefits, and community-based grief and trauma resources, all
delivered at no cost to military survivors. TAPS offers additional
programs including, but not limited to, the following: the 24/7
National Military Survivor Helpline; national, regional, and community
programs to facilitate a healthy grief journey for survivors of all
ages; and information and resources provided through the TAPS Institute
for Hope and Healing. TAPS extends a significant service to military
survivors by facilitating meaningful connections to peer survivors with
shared loss experiences.
In 1994, Bonnie Carroll founded TAPS after the death of her
husband, Brigadier General Tom Carroll, who was killed along with seven
other soldiers in 1992 when their Army National Guard plane crashed in
the mountains of Alaska. Since its founding, TAPS has provided care and
support to more than 120,000 bereaved military survivors.
In 2023 alone, 9,611 newly bereaved military and veteran survivors
connected with TAPS for care and services, the most in our 30-year
history. This is an average of 26 new survivors coming to TAPS each and
every day. Of the survivors seeking our care in 2023, 34 percent were
grieving the death of a military loved one to illness, including as a
result of exposure to toxins; 30 percent were grieving the death of a
military loved one to suicide; and only 3 percent were grieving the
death of a military loved one to hostile action.
As the leading nonprofit organization offering military grief
support, TAPS builds a community of survivors helping survivors heal.
TAPS provides connections to a network of peer-based emotional support
and critical casework assistance, empowering survivors to grow with
their grief. Engaging with TAPS programs and services has inspired many
survivors to care for other more newly bereaved survivors by working
and volunteering for TAPS.
Chairman Luttrell and Ranking Member Pappas, and distinguished
members of the House Committee on Veterans' Affairs, Disability and
Memorial Affairs Subcommittee, the Tragedy Assistance Program for
Survivors (TAPS) is grateful for the opportunity to provide a statement
for the record on issues of importance to the 120,000-plus surviving
family members of all ages, representing all services, and with losses
from all causes who we are honored to serve.
The mission of TAPS is to provide comfort, care, and resources for
all those grieving the death of a military loved one, regardless of the
manner or location of death, the duty status at the time of death, the
survivor's relationship to the deceased, or the survivor's phase in
their grief journey. Part of that commitment includes advocating for
improvements in programs and services provided by the U.S. Federal
Government--the Department of Defense (DOD), Department of Veterans
Affairs (VA), Department of Education (DoED), Department of Labor
(DOL), and Department of Health and Human Services (HHS)--and State and
local governments.
TAPS and the VA have mutually benefited from a long-standing,
collaborative working relationship. In 2014, TAPS and the VA entered
into a Memorandum of Agreement that formalized their partnership with
the goal of providing earlier and expedited access to crucial survivor
services. In 2023, TAPS and the VA renewed and expanded their formal
partnership to better serve our survivor community. TAPS works with
military and veteran survivors to identify, refer, and apply for
resources available within the VA, including education, burial,
benefits and entitlements, grief counseling, and survivor assistance.
TAPS also works collaboratively with the VA and DOD Survivors
Forum, which serves as a clearinghouse for information on government
and private-sector programs and policies affecting surviving families.
Through its quarterly meetings, TAPS shares information on its programs
and services as well as fulfills any referrals to support all those
grieving the death of a military and veteran loved one.
TAPS President and Founder Bonnie Carroll served on the Department
of Veterans Affairs Federal Advisory Committee on Veterans' Families,
Caregivers, and Survivors, where she chaired the Subcommittee on
Survivors. The committee advises the Secretary of the VA on matters
related to veterans' families, caregivers, and survivors across all
generations, relationships, and veteran statuses. Ms. Carroll is also a
distinguished recipient of the Presidential Medal of Freedom, the
Nation's highest civilian honor.
LOVE LIVES ON ACT OF 2023 (H.R. 3651)
(TAPS Strongly Supports)
TAPS is honored to work with members of this committee to pass one
of our top legislative priorities, the Love Lives On Act of 2023 (H.R.
3651). This comprehensive legislation will allow surviving spouses to
retain their benefits following remarriage before the age of 55. TAPS
is grateful to Representatives Dean Phillips (D-MN-3) and Richard
Hudson (R-NC-9), and Senators Jerry Moran (R-KS) and Raphael Warnock
(D-GA) for introducing this important legislation in the 118th
Congress.
We ask Congress to:
Remove the age of 55 as a requirement for surviving
spouses to retain benefits after remarrying.
Allow surviving spouses to retain both the Survivor
Benefit Plan (SBP) and Dependency and Indemnity Compensation (DIC) upon
remarriage at any age.
Allow remarried surviving spouses to maintain access to
education benefits under the Fry Scholarship and Dependents Education
Assistance (DEA).
Allow remarried surviving spouses to retain Commissary
and Exchange benefits
(Passed in Fiscal Year 2024 National Defense Authorization Act).
Allow remarried surviving spouses to regain their TRICARE
benefits if their remarriage ends due to death, divorce, or annulment.
Remove the ``Hold Themselves Out to Be Married'' clause
from 38 USC, Section 101, paragraph 3.
Current law significantly penalizes surviving spouses if they
choose to remarry before the age of 55. Given that most surviving
spouses from the post-9/11 era are widowed in their 20's or 30's, we
are asking them to wait 20-plus years to move forward in their lives
with the financial security given as a result of their loved ones'
service and sacrifice. They often have children who they must raise
alone. Many surviving spouses choose not to remarry after the death of
their service member because the loss of financial benefits would
negatively impact their family, especially those with children. Many
choose to cohabitate instead of legally remarrying.
The long-term goal for TAPS is to secure the right for surviving
spouses to remarry at any age and retain their benefits. TAPS is
leading efforts to pass the Love Lives On Act of 2023, which is
supported by over 40 veteran and military organizations. TAPS
spearheaded a letter of support from these partner organizations that
has been shared with every member of this committee.
Military spouses are among the most unemployed and underemployed
population in the United States. Due to frequent military moves,
absence due to frequent deployments of the service member, and
expensive child care, military spouses face high barriers to employment
and are unable to fully invest in their own careers and retirement. For
many families, military retirement pay is treated as the household's
retirement pay. These barriers to employment continue when a military
spouse becomes a surviving spouse. Many surviving spouses have to put
their lives on hold to raise bereaved children. They are reliant on
their survivor benefits to help offset the loss of pay from their late
spouse and their own lost income as a result of military life.
If a surviving spouse's subsequent marriage ends due to death,
divorce, or annulment, while most benefits can be restored, TRICARE
benefits are not restored. If a surviving spouse was previously
eligible for CHAMPVA, that benefit can be restored. TAPS is not asking
for surviving spouses to maintain TRICARE upon remarriage, only that we
provide parity with other Federal programs, and allow it to be restored
if the subsequent marriage ends.
These restrictions appear to be punitive, as they are only imposed
on military surviving families, but not others who put their lives on
the line to protect and defend. For example, in 30 states, including
Texas \1\, Virginia \2\, and Louisiana \3\, first responders' survivors
may legally remarry and maintain all or partial pensions and benefits.
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\1\ https://www.firehero.org/resources/family-resources/benefits/
local/tx/
\2\ https://www.firehero.org/resources/family-resources/benefits/
local/va/
\3\ https://irp-cdn.multiscreensite.com/ac5c0731/files/uploaded/
Louisiana.pdf
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In certain circumstances, divorcees are granted more respect than
surviving spouses. If a service member was married for at least 20
years and served 20 years, their divorced spouse is entitled to a
portion of that retirement benefit regardless of whether they remarry
or not. Surviving spouses should not be penalized for remarrying when
we grant the right to retain benefits to certain divorced spouses.
Additionally, when a surviving spouse remarries before the age of
55, they are legally required to notify the Department of Veterans
Affairs (VA) to discontinue Dependency and Indemnity Compensation
(DIC). The VA states that the processing time for these claims is
typically eight to 12 weeks, but unfortunately, this is most often not
the case. Numerous surviving spouses experience delays ranging from six
to 18 months, with some cases taking up to 42 months of constant effort
to terminate their benefits. They often encounter the need to make
multiple calls and resend paperwork repeatedly.
As these survivors continue to receive payments, they subsequently
receive debt letters demanding the immediate repayment of benefits,
often with added interest. This places an undue burden and emotional
distress on surviving spouses who followed the required procedures. The
challenge is exacerbated by the fact that many surviving spouses, often
with minor children, are unaware of the specific portions of the
payments they are supposed to retain and which portions should cease.
Additionally, they may lack the financial resources to repay the VA
promptly. This is a waste of VA resources, and allowing our surviving
spouses to maintain benefits upon remarriage would eliminate these
unnecessary challenges.
According to the VA, there are approximately 505,000 DIC
recipients. Less than 30,000 of those surviving spouses are under the
age of 55 and could potentially benefit from this legislation.
Currently, less than 5 percent of surviving spouses under the age of 55
have chosen to remarry due to these penalties.
The Federal Government has allowed surviving spouses to maintain
benefits upon remarriage over the age of 55 or 57 for decades. There is
no specific reason for the age of 55, it is just the age Congress
decided they could live with, but it sets the precedent that surviving
spouses can and should be able to remarry and retain survivor benefits
without waiting 20-plus years. Most choose to cohabitate until age 55,
so all this law does is discourage legal marriages and prevent our
young surviving children from having a mother or father figure legally
in their lives.
Additionally, not only can a surviving spouse not legally remarry
without losing survivor benefits, but there is also a clause in statute
that states surviving spouses cannot ``hold oneself out to be married''
( 38 U.S. Code Sec. 101 Paragraph 3). Originally, this referred to
common law marriages, but in practice, it means that if anyone could
view your new significant other as your ``spouse,'' you could lose your
benefits. If someone addresses a Christmas card to ``Mr. & Mrs. Smith''
as opposed to ``Mr. Smith and Mrs. Johnson,'' that is holding oneself
out. If a survivor refers to their new partner as their spouse to
simplify explaining the relationship, that is holding oneself out. If
your neighbors presume you are married, that is holding oneself out.
Anyone can turn in a survivor for holding oneself out, just because
they do not like them. The VA is legally required to investigate them
and suspend their benefits during the investigation. While the VA does
not actively go out and search for these cases, they have to
investigate when someone submits a tip. This leads to our surviving
spouses constantly living in fear of being turned in, even when they
have not remarried.
With recruiting and retention at an all-time low in the military,
every time we do not keep our promises to our military, veterans, and
their families, we are discouraging our younger generations from
serving. When an 18-year-old enlists in the military, they sign a check
for up to and including their life. They also know that if something
happens to them, our government will take care of their family. Period.
There are no conditions, they are promised that their family will be
taken care of for the rest of their lives. The current law breaks that
promise. Our military, Members of Congress, and administration
frequently remind survivors that the death of their loved one ``is a
debt that can never be repaid,'' but ending survivor benefits upon
remarriage is saying, ``that debt is paid in full.'' Just because a
surviving spouse remarries does not mean they stop grieving. A piece of
paper will never change that they are a widow or widower; it just means
they are also someone else's spouse.
Remarriage should not impact a surviving spouse's ability to pay
bills. They should not have to choose between another chance at love, a
stable home life for their children, and financial security. They are
still the surviving spouse of a fallen service member or veteran, who
earned these benefits through their service and sacrifice. Regardless
of their marital status, surviving spouses should not be penalized for
finding love in the future. All they are asking for is to choose how
they move forward to pick up the broken pieces of their lives.
TAPS appreciates the House and Senate Armed Services Committee
including section V in the Fiscal Year 2024 National Defense
Authorization Act, and we are optimistic this committee will pass
sections II and VII in The Senator Elizabeth Dole 21st Century Veterans
Healthcare and Benefits Improvement Act soon.
The following personal testimonials from surviving spouses help
highlight these important issues.
Gina Kincaide Piland, Surviving Spouse of Lt Col John Kincade U.S. Air
Force
``On November 21, 2019, my husband of 20 years, Lt Col John (Matt)
Kincade, lost his life in a military aviation training mishap at Vance
Air Force Base. Through his (our) 20 years of service, I followed him
from base to base--Texas to California to Nevada back to California,
then Iowa, and finally `home' to Oklahoma--raising our two amazing
sons, keeping the home fires burning, and praying he would come home
safely. The day after my Matt died, I sat down with a representative
from Vance AFB and received my benefits briefing. That day I learned
about the benefits I would collect due to Matt's death. I also learned
that most of the benefits would never expire--assuming I remained
unmarried until the age of 55. I remember thinking that wouldn't be a
problem. I couldn't see past the grief and despair of the fresh loss to
consider that someday in the future I might meet someone who could make
my life--and my sons' lives--beautiful again. And yet, that's exactly
where I find myself today.
``In March 2022, I met Cally, a man who helped me see the beauty of
life again. He allowed space for the legacy of my late husband. Cally
and I struggled with how to move forward together, knowing the severe
financial repercussions we would face upon marrying. Because we are
both Christians who are dedicated to having God at the center of our
relationship, and because we believe marriage is a holy covenant that
we want to model for our combined six children, Cally and I made the
choice to accept the financial penalty and were married on December 31,
2023. I am no longer eligible to receive DIC or the SBP that my late
husband invested in to provide for our needs.
``For the 20 years my late husband served, our sons have been my
priority. Matt and I always had the belief that one parent should be
wholly available to our kids at all times. In the years of deployments,
work-ups, and training, I sacrificed my career goals to support him and
to raise our two amazing sons. And now, as a result of his death, I
find myself at 50 years old starting over again--not just in a
relationship, but also in a career.
``In spite of our tremendous loss, under current law, the U.S.
Government, the Department of Defense, and Veterans Affairs will be
free and clear of any responsibility to the family of the late Lt Col
John (Matt) Kincade when our youngest son turns 22.''
Marcie Robertson, Surviving Spouse of SFC Forrest Robertson, U.S. Army
``I lost my husband in November 2013 when he was killed in action
in Afghanistan. At the time, I was 34 years old, and our daughters were
14, 10, and 6 years old. One day I had a partner, and the next day I
was the only one to make decisions, discipline, and raise three
daughters.
``My husband deployed four times during our marriage, so we both
understood his job meant there was a real possibility that he might not
come home each time he deployed. Early on, we had a discussion about
what would happen if he were to lose his life. He told me where he
wanted to be buried and what to do with the insurance money. He also
told me that when I felt ready, he wanted me to move forward with
someone new. It was very important to him that I not spend the rest of
my life alone. He said this, not realizing that his wish for me would
mean the end of the benefits he provided for me. He went to war for his
country knowing that if he sacrificed his life, his family would be
taken care of. He did not know that meant his widow would have to stay
unmarried until she was practically a senior citizen to maintain her
benefits.
``I have met a wonderful man who has become a partner to me and a
`bonus dad' to my daughters. He is exactly what my husband would want
for the four of us. I dream of the day when I can marry him. I am a
Christian and believe that God provided this amazing man to be my
husband. I was pulled aside several times by my church leader and told
that if I didn't marry him or kick him out of my home, I would lose my
ability to volunteer in the church. This ultimately pushed me away from
my church and severed important friendships in my support system. I am
being forced to make a choice to put aside my religious beliefs to
maintain my income.
``Even after all of this, he is willing to wait until we are in our
50's to marry me. I should never have been put in a position to have to
ask that of him--especially when a soldier can get divorced, and, if
the couple was married for a certain length of time, the spouse will
receive as much as half of the soldier's retirement. That same spouse
can remarry and maintain their share of retirement. It is unbelievable
that this is not the same for me.
``It appalls me that my country would ask me to give up my
financial independence to get married. We are talking about a small
portion of the population of the United States that has sacrificed so
much. If you are willing to vote `yes' on a bill to send people to war,
you should also hold responsibility for the catastrophic effects of war
and serving. It should be a reminder of the cost of war. Continuing to
pay these earned benefits after remarriage is a small price to pay to
take care of the families of our fallen. If you are concerned about the
cost of supporting survivors, stop asking men and women to give their
lives.''
Kellie Hazlett, Surviving Spouse of Capt Mark Nickles U.S. Marine Corps
``My husband, a United States Marine Corps F-18 pilot, died in a
training accident while deployed to Japan in 1997 on my 30th birthday.
He is still considered Missing in Action because they were never able
to recover his remains. I had to move out of our home in San Diego
within 6 weeks of his death because I could not afford to maintain the
payments on our rental without his paycheck, so I moved back home to be
a caregiver to my mother. I could no longer continue my career in the
medical field due to the trauma of losing my husband and had to start
over.
``Eventually I met my now husband, Steve, but I hesitated to
remarry as I was dependent on the financial benefits that helped offset
my own lost income as a military and surviving spouse. Mark and I never
had the chance to start a family, and it was important to me that when
Steve and I did, we were legally married. We now have three beautiful
children.
``I was recently diagnosed with a long-term illness, and my
treatments are not covered by insurance as they are viewed as
experimental. Restoring my survivor benefits, that Mark and I paid
into, would go a long way in helping offset the very expensive costs of
my treatments. As I am 57 years old, I could divorce Steve, reinstate
my benefits, and remarry him the next day because of the arbitrary
remarriage age of 55. This is something that I have seriously
considered, due to the unfair penalty.''
Linda Ambard Rickard, Surviving Spouse of MAJ Phil Ambard, U.S.
Army
``I became a widow just before my 50th birthday when my husband of
23 years, Major Phil Ambard, was killed in Kabul, Afghanistan, in a
mass shooting that left eight airmen and one civilian dead. For over
two decades, we had moved every 2 to 4 years. While I had multiple
master's degrees and a teaching license, I never progressed beyond
probation/provisional status at my jobs because we were never in any
one place long enough. I never got too attached to a home, people, or a
job because everything was so temporary.
``When I became a widow, I didn't know where to move. I hadn't
lived back home in Idaho since 1979. I was too old to go live with my
mom and dad, and too young to live with my children, four of whom were
in the military. It took me years to get my feet on the ground.
``I didn't date for many years because I just couldn't. At 57, I
met the man who would become my husband. I married him just after my
60th birthday. While I maintain my survivor benefits and survivor
social security, due to my age, I had to give up TRICARE even though I
now qualify for CHAMPVA. It is ridiculous that younger widows and
widowers lose everything with remarriage; there is a big difference
with the magic age of 55.''
Tonya Syers, Surviving Spouse of W4 Lowell Syers II, U.S. Army
``My husband, Lowell, enlisted in high school via the delayed entry
program. We met at Fort Campbell, Kentucky, and married 6 months later.
After multiple moves, he decided to join the National Guard, and we
moved to California. He retired after 20.5 years. In May 2019, we
watched my son graduate from UGA and be commissioned into the USAR. My
husband gave him his first official salute. It was a very exciting
moment, but the next day Lowell asked me to take him to the emergency
room. Instead of celebrating Jake's graduation, we found out Lowell had
stage 4 glioblastoma from exposure to the burn pits while deployed. By
the end of July, it took his life.
``Eventually, I met a gentleman named James `Jay' Matheson. He also
retired from the reserves. We got engaged. I was shocked to learn that
remarrying before the age of 55 would cause me to lose my military
benefits. Jay's ex-wife was granted half of his Navy retirement. She is
free to remarry without any financial loss. Why does the government
allow divorcees to keep military pensions but punish military widows? I
am not in any way telling the government to rescind ex-wives' court-
appointed portions of military pensions. I am only saying that it is
morally wrong not to offer military widows the same option to remarry
without financial penalty.
``The most pro-family and pro-military decision Congress could make
is to change this law! Lowell served over 20 years and never collected
one cent in retirement. He died, like most, too early due to military
service. We would gladly trade our benefits to have our spouse back.
Unfortunately, we do not have that option.''
CARING FOR SURVIVORS ACT OF 2023 (H.R. 1083)
(TAPS Strongly Supports)
TAPS and the survivor community have supported increasing
Dependency and Indemnity Compensation (DIC) for many years. We are
grateful to Congresswoman Jahana Hayes (D-CT-5) and Congressman Brian
Fitzpatrick (R-PA-1), and Senate Veterans' Affairs Committee Chairman
Jon Tester (D-MT) and Senator John Boozman (R-AR) for reintroducing the
Caring for Survivors Act of 2023 (H.R. 1083).
Passing this important legislation is a top priority for The
Military Coalition (TMC) Survivor Committee, co-chaired by TAPS. TMC
consists of 35 organizations representing more than 5.5 million members
of the uniformed services--active, reserve, retired, survivors,
veterans, and their families.
TAPS remains committed to improving DIC and providing equity with
other Federal benefits. We continue to work with Congress to:
Pass the Caring for Survivors Act of 2023.
Increase DIC from 43 percent to 55 percent of the
compensation rate paid to a 100 percent disabled veteran.
Reduce the timeframe a veteran needs to be rated totally
disabled from 10 to 5 years, allowing more survivors to become eligible
for DIC benefits.
More than 505,000 survivors receive DIC from the Department of
Veterans Affairs (VA). DIC is a tax-free monetary benefit paid to
eligible surviving spouses, children, or parents of service members
whose death was in the line of duty or resulted from a service-related
injury or illness.
The current monthly DIC rate for eligible surviving spouses is
$1,612.75 (Dec. 1, 2023), which has only increased due to Cost-of-
Living Adjustments (COLA). TAPS is working to raise DIC from 43 percent
to 55 percent of the compensation rate paid to a 100 percent disabled
veteran; ensure the DIC base rate is increased equally; and protect
added monthly amounts, like the 8-year provision and Aid and
Attendance.
The following statements from survivors demonstrate that stringent
limitations on DIC payments have financial and widespread impacts on
housing, transportation, utilities, clothing, food, medical care,
recreation, and employment for surviving families:
Katie Hubbard, Surviving Spouse of CSM James Hubbard Jr., U.S. Army
``Due to his status at the time of my husband's death, the only
financial benefit we are eligible for is DIC. CSM James W. Hubbard Jr.
died May 21, 2009, while in treatment for leukemia caused by the burn
pits in Iraq. Having your income cut by more than 60 percent while
trying to navigate funeral costs, bills that aren't stopping, and
unexpected ambulance and ER charges nearly took me out too.
``My mental health was not conducive to returning to the workplace
quickly after being his caregiver and dealing with the unexpected loss,
yet I had to figure out something to make up the income or lose our
home too. My future, my best friend, and my normal were gone. While a
12 percent increase doesn't seem like much, any widow living paycheck
to paycheck can tell you it is.
``The military is a Federal entity, yet their survivors are treated
less than. Passing the Caring for Survivors Act would show military
widows that their spouse and themselves are cared for and not
forgotten.''
MaryAnne Kerr, Surviving Spouse of GySgt Cory Kerr, U.S. Marine Corps
``The money that I receive from DIC has allowed me to stay at home
to care for my children full-time. However, an increase will be very
beneficial due to my new role as the sole provider for my children. The
loss of my husband and children's father has been very hard on our
family and especially hard on my daughter. She is not only dealing with
the loss of her father but the trauma she endured while he was battling
with the effects of combat trauma. There have been incidents at school
where she had to be picked up and could not return until cleared by her
therapist. An increase in DIC will be greatly appreciated and allow us
to continue to heal from the trauma and death of our loved one, free
from financial burden.''
Sadie Clardy, Surviving Spouse of TSgt Michael Clardy, U.S. Air Force
``Five years ago, my husband died suddenly, leaving me to raise
four children--ages 11 and under--on my own. My earning potential is
severely limited, due to the years I dedicated to supporting my
husband's career, and also the logistics of maintaining a job as a
single mother of four. These past few years have been financially
draining with supply chain issues, inflation, and the loss of a vehicle
due to an uninsured driver.
``It is time to increase DIC in parity with Federal death benefits.
It is time to give families of the fallen some breathing room. A DIC
increase for our family would mean paying back savings, music lessons,
school supplies, and cooking for my children with carefree abandon.
Moreover, putting us level with other survivor groups is the right
thing to do.''
Jackie Ferguson, Surviving Spouse of SGT James Ferguson, U.S. Army
``I completed my degree before my husband joined the Army. It was a
blessing I finished. We moved several times before he passed, but I
found it very difficult to obtain a position using my degree. It seemed
no one was interested in hiring me because we would be moving
constantly. In order to work in my field, I drove every day from Fort
Sill, Oklahoma, to Oklahoma City, which is over an hour each way. I
think that raising the DIC to 55 percent would help me offset the
earning potential I have lost due to unemployment and underemployment
during my husband's service.''
Harry McNally, Surviving Spouse of SGT Shanna Golden, U.S. Army
``Increasing the amount of DIC to levels identical to other Federal
survivor benefits should have been done decades ago. As it stands, the
implication is that the death of a veteran or service member is worth
less than the death of other Federal employees.''
Melissa Evinger, Surviving Spouse of Sgt Barry Evinger, U.S. Marine
Corps
``As a widow and mother of three children, the weight I carry on my
shoulders is substantial and often paralyzing as I strategize how to
take care of my children. As a Texas public school teacher, my income
will never be substantial. I do receive DIC, however, this does not
come close to what my husband received in disability compensation.
Because of this, I have to supplement my income by working as a tutor
before and after school. This all amounts to time I have to be away
from my children just to ensure we can afford a basic lifestyle.
``My husband, children, and I have paid a huge price for our
country. As the Nation asked my husband to help defend its interests, I
now ask for your help in return. I respectfully ask you to consider the
possibility of increasing the amount of DIC for the widows and children
of the fallen.''
PRIORITIZING VETERANS' SURVIVORS ACT (H.R. 7100)
(TAPS Strongly Supports)
TAPS appreciates Congressman Juan Ciscomani (R-AZ-06) and House
Veterans' Affairs Committee Chairman Mike Bost's (R-IL-12) many
expressions of strong support for the community of military and veteran
survivors, the most recent being their introduction of the Prioritizing
Veterans' Survivors Act (H.R. 7100), which would return the Office of
Survivor Assistance organizationally to its previous location within
the Office of the VA Secretary. Additionally, we are grateful to the
Department of Veterans Affairs (VA) for recently holding a Survivor
Summit to gain valuable insight and input from survivors and survivor-
focused organizations to enhance VA services for survivors enterprise-
wide.
The Office of Survivor Assistance (OSA) was established in 2008 in
recognition of the sacred obligation the Nation has to the survivors of
military service members and veterans. Its director was to serve as a
principal advisor to the VA Secretary on policies impacting military
service members' and veterans' survivors, and to serve as a resource
for surviving family members regarding the benefits, care, and memorial
services provided across the entire department.
Unfortunately, this office has been relocated several times over
the past 15 years--moved from within the Office of the Secretary under
the Chief of Staff to the Veteran Experience Office; then to the
Veterans Benefits Administration, where it was placed in the Office of
Outreach, Transition and Economic Development; and then recently moved
under the Pension and Fiduciary Service in June 2023. These moves have
made it very difficult for survivors to understand its role, find
needed information on resources, and access all the department's
support with reliable consistency.
While the Department of Defense (DOD) is able to use existing
contact information to reach out to grieving families in the event of
the death of an active-duty service member to ensure that they have
access to the comprehensive support provided by both the DOD and the
VA, the VA lacks a similar proactive capability. Prior to the death of
their veteran, family members are generally not known to the VA because
they are not receiving benefits or services. Thus, following a
veteran's death, the burden falls on grieving families to identify,
interpret, apply for, and comply with the complex eligibility
requirements and siloed administration of benefits, care, and memorial
services across one of the largest agencies in the government.
Despite the best intentions of Congress and the VA leadership and
employees, the multiple ongoing navigation challenges survivors must
manage across their survivor journey too often become confusing,
frustrating, and unmanageable, and many fail to even access the much-
needed assistance available to them.
For example, surviving spouses are expected to find and use the
same entry points for information as veterans. Regrettably, survivors
tell us that calls to the general helpline can result in inaccurate
information, and some have even been told that they are ineligible for
benefits during their initial call. Survivors share this experience
with one another, and the unfortunate result is that they become less
willing to turn to the VA for assistance. This is harmful to the
survivor, and it undermines trust in the VA among the community it
serves. Although survivors represent only 1 percent of those receiving
VA services, it is essential that all VA staff they may come in contact
with have the same willing spirit of customer service that the
department's motto expresses so clearly.
From the perspective of the community, OSA would be the logical
entry point or ``front door'' to access VA assistance, but far too many
survivors don't even know it exists. It falls on organizations like
TAPS to inform them of all the VA resources they may be eligible for
and to reach out to OSA on their behalf.
The frequent moves of OSA and its minimal staffing appear to the
survivor community to reflect a less than full understanding of the
comprehensive nature of their needs and willingness to support their
access to the full range of care, benefits, and memorial services that
they so desperately need at a most difficult time in their lives.
In its current placement within Pension and Fiduciary Services, the
department is operating OSA as if the only benefits survivors receive
are related to compensation. Currently, OSA staff only have access to
DIC and Pension records, therefore they are unable to assist with many
issues survivors face, to include burial benefits, education benefits,
CHAMPVA, Survivors Group Life Insurance, home loans, or additional
programs and benefits survivors are eligible to receive enterprise-
wide, to include the new VHA Survivors Assistance and Memorial Support
(SAMS) program. OSA appears not to have the authority and full range of
case management coordination processes in place to ensure that they can
help survivors access all of the care and memorial services available
in other administrations within the VA.
With more than 505,000 survivors currently eligible for DIC, OSA
staffing should be significantly increased to better serve surviving
families. OSA should be the official entry point into VA for survivors,
with the authority, bandwidth, expertise, and access needed to answer
any and all challenges that survivors face regarding VA benefits and
services. There should also be a dedicated survivor helpline within the
Veterans Call Center to provide access to trained agents with the
knowledge to address survivor issues. We applaud VA for implementing an
education-specific helpline for survivors in 2019, which has been a
huge success.
The limited awareness among survivors regarding OSA highlights the
need for VA to more effectively communicate and promote this essential
survivor program. TAPS strongly believes that OSA should be elevated to
the Office of the Secretary or the Office of the Under Secretary for
Benefits and granted the necessary authority and access to all programs
and services survivors are eligible to receive.
TAPS is committed to working with Congress and the VA to ensure
that the organizational placement, staffing, and department-wide
connectivity are in place to enable OSA to serve as the ``front door''
for the department and the advocate for the increasing number of
surviving veteran families seeking access to all VA benefits, care, and
memorial services.
Melissa Alex, Surviving Spouse of SSGT Eugene Alex, U.S. Army
``The Office of Survivor Assistance was established in 2008 to
serve as an outreach regarding benefits and services for our families.
I didn't know for years that they existed. I found out only because I
am a service provider with the Michigan National Guard, not because
they reached out to me and my children personally!''
Sadie Clardy, Surviving Spouse of TSgt Michael Clardy, U.S. Air Force
``My husband passed in 2017 and I had never heard of OSA until
learning about them from TAPS. I had to Google the Office of Survivor
Assistance to find out about their services. Without that search, I
would not be able to tell you anything about OSA, not even who they're
affiliated with. I'm still a little hazy as to what role they may be
able to play in supporting me and my children.''
SURVIVOR BENEFITS DELIVERY IMPROVEMENT ACT OF 2024 (H.R. 7150)
(TAPS Strongly Supports with Further Recommendation)
TAPS appreciates House Veterans' Affairs Committee Ranking Member
Mark Takano (D-CA-39) for introducing the Survivor Benefits Delivery
Improvement Act of 2024 (H.R. 7170), which would improve equitable
access to certain benefits of the Department of Veterans Affairs (VA)
for survivors of veterans, through the collection of demographic data,
and would improve outreach services to individuals who served in the
uniformed services, their dependents, and survivors.
In addition to collecting demographic data, TAPS recommends adding
``Cause of Death'' as a tracked demographic. This data would be
incredibly important to understand the different types of losses
survivors face as well as creating programming and resources that are
relevant for all survivors.
The lack of data collection based on the cause of death has also
led to issues with the implementation of the PACT Act. For example, the
VA estimates there are 382,000 potential survivors who may be eligible
for PACT-related benefits, but this number includes all manners of
death, including those who died of old age, by suicide, or in car
accidents, not just those filing claims related to toxic exposure. This
helps explain why after extensive outreach by the VA and organizations
like TAPS, more survivors have not applied for PACT-related benefits.
Unfortunately, the potential survivor numbers have also informed the
Congressional Budget Office's (CBO) scoring of current survivor
legislation, such as the Love Lives On Act and Caring for Survivors
Act, almost doubling the cost and creating exorbitant scores, making it
difficult to find funding.
The Survivor Benefits Delivery Improvement Act of 2024, would also
require an assessment of the resources of the VA Office of Survivors
Assistance (OSA) and the development of a strategy to ensure the
availability of these necessary resources. TAPS strongly supports the
development of such a strategy, and will continue to work in
partnership with the VA to ensure that survivor needs are included in
this discussion.
VETERANS COMPENSATION AND COST OF LIVING ADJUSTMENT ACT OF 2023 (H.R.
1529)
(TAPS Strongly Supports)
TAPS thanks Chairman Luttrell and Ranking Member Pappas for
introducing the Veterans Compensation and Cost of Living Adjustment Act
of 2023 (H.R. 1529) to help improve Dependency and Indemnity
Compensation (DIC). The current monthly DIC rate for eligible surviving
spouses is $1,612.75 (Dec. 1, 2023), which has only increased due to
Cost-of-Living-Adjustments (COLA).
TAPS also encourages the committee to pass the Caring for Survivors
Act of 2023 (H.R. 1083) to increase DIC from 43 percent to 55 percent
of the compensation rate paid to a 100 percent disabled veteran,
providing parity with other Federal survivor programs.
More than 505,000 survivors receive Dependency and Indemnity
Compensation (DIC) from the VA. DIC is a tax-free monetary benefit paid
to eligible surviving spouses, children, or parents of service members
whose death was in the line of duty or resulted from a service-related
injury or illness. TAPS is committed to strengthening DIC and providing
equity with other Federal benefits.
Barclay Murphy, Surviving Spouse of MAJ Edward Murphy, U.S. Army
``When my son turned 18 and went to college, a significant amount
of income was lost while expenses remained constant--if not higher--due
to inflation. I had planned for the income loss; I even sold my house
and downsized. I raised two kids solo for almost 18 years. As an empty
nester, I thought I'd have enough money for just me, but it has been
tough even after the Widow's Tax repeal and cutting out so much.''
FAIRNESS FOR SERVICEMEMBERS AND THEIR FAMILIES ACT OF 2023 (H.R. 2911)
(TAPS Supports With Further Recommendation)
TAPS thanks Congresswoman Marilyn Strickland (D-WA-10) for
introducing the Fairness for Servicemembers and their Families Act of
2023 (H.R. 2911), which would require the Department of Veterans
Affairs to periodically review the automatic maximum coverage under the
Servicemembers' Group Life Insurance (SGLI) program and the Veterans'
Group Life Insurance program (VGLI).
While TAPS appreciates the importance of periodically reviewing the
automatic maximum coverage, TAPS would ideally like to see both the
SGLI and VGLI fully tied to Cost-of-Living-Adjustments (COLA) and
inflation to ensure it stays at the intended rate long term. This would
prevent it from continuing to fall behind the intended rates without
Congress having to repeatedly increase the maximum amount. While it was
increased from $400,000 to $500,000 in 2023, it has already fallen
behind due to inflation.
MEDICAL DISABILITY EXAMINATION IMPROVEMENT ACT OF 2024 (Discussion
Draft)
(TAPS Supports)
TAPS thanks House Veterans' Affairs Committee Ranking Member Takano
for introducing the Medical Disability Examination Improvement Act of
2024. This important legislation would improve medical nexus
examinations for claims associated with toxic exposure risk activities
(TERA) for covered veterans and seek to improve Department of Veterans
Affairs (VA) medical disability examinations for rural veterans. It
would also require additional training for VA employees who process or
review medical disability examinations.
This legislation would also allow the Secretary of Veterans Affairs
to provide each claimant with another examination and priority
processing for the impacted claim if the Secretary finds any covered
medical disability examination to be not adequate for adjudicating a
claim.
By improving the medical nexus examination claims process for TERA,
more veterans will be able to access critical VA benefits, positively
impacting their lives, and improving the financial well-being of their
families, caregivers, and survivors.
TOXIC EXPOSURES EXAMINATION IMPROVEMENT ACT (Discussion Draft)
(TAPS Supports)
TAPS thanks the committee for introducing the Toxic Exposures
Examination Improvement Act, which would provide a veteran with a
medical examination in connection with certain claims for disability
compensation under the laws administered by the Department of Veterans
Affairs (VA).
By amending the current language from ``such evidence is not
sufficient to establish a service-connection for the disability'' and
inserting ``such evidence does not contain sufficient medical evidence
for the Secretary to make a decision on the claim,'' would provide a
toxic-exposed veteran the opportunity for a medical examination in the
claims process for disability compensation.
This important legislation would allow more veterans to potentially
establish a service connection for disability, and secure disability
compensation for themselves and their families, and Dependency and
Indemnity Compensation (DIC) for their survivors.
CLEAR COMMUNICATION FOR VETERANS CLAIMS ACT (Discussion Draft)
(TAPS Supports)
TAPS expresses gratitude to the committee for introducing the Clear
Communication for Veterans Claims Act, which proposes that the
Secretary of Veterans Affairs collaborate with a federally funded
research and development center to evaluate notice letters sent to
claimants for benefits under laws administered by the Secretary, among
other purposes. The primary objectives of this evaluation are as
follows.
1. Assess whether modifications to the letters could decrease
paper usage and costs incurred by the Federal Government.
2. Enhance the clarity, organization, and conciseness of
notices and letters to claimants in accordance with the laws
administered by the Secretary.
TAPS is of the opinion that veterans, their families, caregivers,
and survivors would derive significant benefits from receiving clearer
communication from the Department of Veterans Affairs (VA), with legal
disclaimers positioned at the conclusion of all notices. It is believed
that this approach would contribute to a reduction in appeals and an
increase in the accurate processing of claims for all veterans,
caregivers, and survivors.
Should the involvement of a third-party entity be deemed beneficial
in simplifying language while ensuring compliance with all relevant
laws, TAPS fully supports this notion. Ensuring that our veterans,
families, caregivers, and survivors comprehend the requests made by the
VA, and more importantly, providing accurate information to survivors,
while ensuring they understand what the letters mean for them in a
practical sense.
CONCLUSION
TAPS thanks the leadership of the House Committee on Veterans'
Affairs, Disability and Memorial Affairs Subcommittee, distinguished
members, and professional staff for convening this important hearing to
address key veteran and survivor legislation introduced in the 118th
Congress. TAPS is honored to testify on behalf of the thousands of
veteran and military surviving families we serve.
______
Prepared Statement of Christopher Macinkowicz
Chairman Luttrell, Ranking Member Pappas, and members of the
subcommittee, on behalf of the men and women of the Veterans of Foreign
Wars of the United States (VFW) and its Auxiliary, thank you for the
opportunity to provide testimony with regard to this pending
legislation.
H.R. 1083, Caring for Survivors Act of 2023
The VFW has been advocating for many components of this legislation
for several years and strongly supports its swift passage. The rate of
Dependency and Indemnity Compensation (DIC) paid to the survivors of
service members who died in the line of duty or to veterans who died
from service-related injuries or illnesses has only minimally increased
since the benefit was created in 1993. Currently, DIC is paid at 43
percent of 100 percent permanent and total disability while all other
Federal survivor programs are paid at 55 percent. This legislation
would increase DIC to 55 percent, finally reaching parity with other
Federal agencies.
H.R. 2911, Fairness for Servicemembers and their Families Act of 2023
In 2021, the VFW advocated for the Servicemembers' Group Life
Insurance (SGLI) and Veterans' Group Life Insurance (VGLI) maximum
payouts to be increased from $400,000 to $500,000 to reflect inflation
and the cost of living. This change was passed as part of the
Supporting Families of the Fallen Act in October 2022 and came into
effect on March 1, 2023. Before this increase, the maximum had not been
increased since 2005. The VFW supports the Fairness for Servicemembers
and their Families Act of 2023 to require VA to review the maximum
coverage for both SGLI and VGLI every 3 years. Service members and
their families should have peace of mind when selecting either of these
insurance policies and anticipating what their needs might be in the
event of the individual's passing while considering overall rising
costs over time due to inflation.
H.R. 3651, Love Lives On Act of 2023
As a resolutions-based Veterans Service Organization (VSO), the VFW
does not have a position on whether survivors should retain their
benefits upon remarriage. There are, however, provisions within this
legislation that the VFW supports.
We support updating the definition of surviving spouse within title
38 of the United States Code. The last time the definition was updated
was in 1962 and much has changed in the last sixty years. The change
would remove the currently restrictive language that describes a
surviving spouse as a person of the opposite sex to be more in line
with current law that allows for same-sex marriages. The change also
strikes the wording that states a surviving spouse may not live with
another person or hold themselves out to be married. Survivors should
not fear that living with another person could cause them to lose their
benefits. This is outdated language that should be updated to reflect
the marriage requirements of the current era.
The VFW supports eliminating the time limit for surviving spouses
to use the Fry Scholarship. Following the death of their service
members, surviving spouses may not be in the position to use this
important education benefit for several years since they may suddenly
be faced with finding stable employment, housing, child care or other
critical needs. Survivors should be able to use this benefit without
time limits.
The VFW also supports a surviving spouse regaining TRICARE benefits
if the individual remarries and that marriage later ends. A survivor
who remarries but that marriage later ends can regain DIC and Survivor
Benefit Plan payments. TRICARE benefits to which unmarried survivors
are entitled should be reinstated if their future marriages end in
order to have parity with other survivor benefits.
H.R. 7100, Prioritizing Veterans' Survivors Act
The VFW supports this legislation that relocates the Office of
Survivors Assistance (OSA) from its current placement in the Veterans
Benefits Administration to the Office of the Secretary of the
Department of Veterans Affairs (VA). As the large cohorts of Vietnam
and then Gulf War veterans age and die, demand for OSA services will
significantly rise. Survivors who may not be familiar with the military
or VA will have to successfully navigate a bureaucratic process to
access benefits while simultaneously coping with grief, significant
upheaval, and loss of income. In this context, VA must robustly
resource and optimally locate OSA to ensure maximum beneficial effect.
H.R. 7150, Survivor Benefits Delivery Improvement Act of 2024
The VFW supports this bill that would establish a data-informed
survivors education and outreach program. Focused outreach using
demographic data to confirm survivors most in need is a smart and
efficient practice that would enable VA to best use its limited
resources to accurately disseminate critical information, particularly
in regard to immediately needed burial benefits. Also, the VFW
wholeheartedly endorses Section 3's proactive, personal, and multi--
media ``Survivor Solid Start Act of 2024'' in which VA would maintain a
quarterly outreach to each eligible dependent until that person files a
claim for a benefit. A particularly attractive feature is VA assisting
survivors with accessing accredited representatives to file claims.
This action would aid survivors coping with the loss of loved ones to
fulfill basic needs as soon as possible, and hopefully debunk common
misconceptions about VA benefits. For example, based on previous
testimony, VFW Service Officers report that some survivors do not
realize their deceased loved ones' VA benefits are not transferrable,
resulting in a loss of income when the survivors start receiving lower
DIC amounts. Last, the VFW supports the explicit mention of call center
manning levels to facilitate this outreach and education plan, implying
VA would ensure the program has adequate resources.
H.R. 7777, Veterans' Compensation Cost-of-Living Adjustment Act of 2024
Every year Congress introduces legislation to make cost-of-living
adjustments to the rates of disability compensation for veterans with
service-connected disabilities, and to the rates for DIC for survivors.
These increases are the same percentage as that for Social Security
benefits. The VFW supports this legislation that would provide
automatic increases in the rates for these benefits when increases are
made for Social Security each year. This would provide a guarantee to
veterans and survivors that their payments would always be aligned to
counteract inflation. We are grateful for the bipartisan and bicameral
commitment to making sure cost of living is addressed each year, but we
recommend this process be automatic to eliminate the need for
subsequent legislation.
H.R. 7793, Veterans Appeals Options Expansion Act of 2024
The VFW supports this bill, with a few recommendations, to expand
claimants' options during the appeals process and to research the most
common reasons for appeals at the Board of Veterans' Appeals (BVA).
While working as a VFW Appeals Consultant, I often worked with veterans
who would have directly benefited from this legislation. When reviewing
records in preparation for a hearing or informal presentation, it was
not uncommon to find that the veteran had other appeals pending that
were not allowed to be discussed during the upcoming hearing because
they were not part of the original appeal. This resulted in unnecessary
delays and frustration for everyone involved. This legislation would
allow BVA to combine appeals and honor the original appeal's docket
date, which would create a more efficient appeals process overall.
The VFW also supports the intent behind authorizing appellants to
switch dockets or withdraw an issue within a claim as long as the claim
has not been assigned to whomever is writing the decision at BVA.
However, we feel this is a little unclear because the deadline can be
moved based on workload at BVA or the speed of the individual working
the claim. We recommend setting a more definitive deadline for
switching BVA dockets.
Finally, the VFW supports effective notification and also believes
that veterans should not be penalized for not understanding the complex
laws of the VA claims process. This law provides authorization for VA
to treat claims filed on the wrong form as an Intent to File, and
requires BVA to notify claimants if their evidence was received after
the submission deadline. Both of these provisions would offer veterans
a second chance if they make mistakes while trying to navigate the
appeals process.
H.R. 7816, Clear Communication for Veterans Claims Act
The VFW supports this proposal to streamline communication and
messaging from VA. One of the primary challenges veterans encounter
when reviewing their disability notification letters is the intricate
language and terminology used. Legal jargon and medical terms can be
overwhelming, especially for those without a background in law or
medicine. This complexity often leads to confusion and frustration,
hindering veterans from grasping the full scope of their benefits and
entitlements.
Far too often, accredited representatives spend a great deal of
time explaining letters that make sense to the trained eye, but not to
anyone else. The VA disability system involves a multitude of
regulations, policies, and procedures. Unfortunately, these guidelines
can be subject to interpretation, resulting in inconsistencies in
notification letters. Veterans often find it challenging to reconcile
the information presented with their own experiences, leading to
uncertainty about the accuracy of the provided details.
Understanding the full spectrum of benefits associated with a
disability rating is another hurdle for veterans. The notification
letter may mention various forms of compensation, health care coverage,
and vocational rehabilitation, but veterans may struggle to connect
these pieces of information and effectively access the services to
which they are entitled. This lack of clarity can impede veterans'
ability to make informed decisions about their health care and overall
well--being.
Discussion Draft, Veterans Appeals Efficiency Act of 2024
Since the creation of the VA National Work Queue (NWQ) in 2016, VFW
accredited representatives have seen numerous instances of claims and
appeals that have been sent to the NWQ where they stagnate unassigned
and unworked by VA staff. In a recent VA meeting with VSOs, it was
stated that it is not uncommon for a claim to still be untouched in the
NWQ 6 months after submission. Unfortunately, it is also a common
occurrence with remanded BVA claims. With this proposed legislation,
the VA Secretary would be required to track claims electronically,
submit an annual report, and provide notice to veterans of the reasons
why their claims are still waiting in the NWQ.
The VFW supports this intent, but feels there needs to be more
guidance in regard to the actual method and delivery of the
notifications to veterans. During the claims process, veterans are
often inundated with different notifications from VA that can be
confusing, overwhelming, and repetitive. Simply adding another
notification to the veteran that the claim is pending will not solve
the underlying issue of why the claim is waiting in the NWQ. Therefore,
we recommend that any notifications created as a result of this
legislation be reviewed and offered for comment by accredited VSOs to
ensure that the messaging is clear and effective.
The VFW also supports improvements to BVA and the United States
Court of Appeals for Veterans Claims (CAVC). This bill expands the
ability of BVA and CAVC to decide appeals in a few ways. First, it
allows BVA to bypass the remand process if additional evidence is
received after a BVA decision has been made if that evidence would
satisfy the appeal. This idea is beneficial as it would prevent
unnecessary remands, but there is no indication as to the timeframe in
which the evidence would need to be received before BVA would remand
the appeal. We recommend that the bill be amended to include a
timeframe for BVA to receive new evidence before remanding the claim.
Additionally, the bill allows BVA to submit a request to the VA
Office of General Council for an opinion if there is a question of law
during an appeal. The VFW supports this as it would allow legal
questions to be addressed without the need for an appeal to CAVC. Also
included in this bill are provisions to allow BVA to aggregate appeals
if they involve similar laws. While this may be beneficial in some
cases, we must ensure that BVA does not sacrifice the accuracy of the
decision in order to combine claims for efficiency.
Finally, this bill also authorizes CAVC to perform an
administrative review of eligible claims upon request of the claimant.
The VFW supports this as well, provided that it does not create an
unnecessary backlog of appeals.
The VFW supports transparency and research and believes that a
study to identify commonly appealed issues would help identify
potential inefficiencies in the appeals process. The VFW also agrees
with the requirement for VA to meet with a federally funded research
and development center (FFRDC) to determine if BVA can issue
precedential decisions and aggregate claims. However, when this
assessment takes place, we ask that VA and the FFRDC be cognizant of
the time it takes to render decisions and ensure that offering
precedential decisions would not unduly slow down the appeals process.
Discussion Draft, Medical Disability Examination Improvement Act of
2024
The VFW appreciates the intent of this bill to help streamline
Toxic Exposure Risk Activity (TERA) examinations, but we believe
Section 2 of this proposed legislation could lead to fewer
examinations, which would potentially result in missed opportunities to
identify exposures.
We are concerned about the proposed language that would limit TERA
examinations of veterans as identified in Section 1119(c) of title 38,
United States Code, or anyone else who self-reports. Section 1119
basically covers veterans who deployed to areas in the Middle East.
This would exclude countless veterans who had exposures in other areas
where they served. Additionally, asking veterans who are not on the
list of areas described in Section 1119 to self-report possible
exposures could lead to missed identifications.
The critical component of the TERA examinations was for VA
providers to probe patients about their possible exposures and try to
identify areas where there might be risk. We believe this proactive
approach is more beneficial to veterans because it may draw out
information regarding risks that were unknown to the veterans.
However, there are portions of this proposal that we do support,
such as identifying issues facing rural veterans and improving the
training for processing medical examinations. We would recommend
combining the two TERA proposals and taking the best parts of each bill
to craft comprehensive legislation that would streamline efficiency
without reducing necessary examinations.
Discussion Draft, Toxic Exposures Examination Improvement Act
The VFW believes we should help improve and streamline toxic
exposure examinations, but we are concerned this proposal would also
reduce the number of examinations for veterans. The PACT Act
intentionally set a lower standard for exposure examinations to
identify as many exposed veterans as possible. This process seeks to
help identify a nexus through direct service connection and secondary
service connection. We are concerned that this language change would
limit veterans seeking service connections by raising the standard for
examinations.
We have heard of veterans claiming toxic exposure illnesses due to
seemingly non-connected issues. However, we believe an examination
should still be conducted because of VA's duty to assist in order to
determine possible connection. As unusual as it seems, disabilities
like tinnitus could be affected by certain exposures to toxins.
Tinnitus is a neurological condition as well as a hearing condition,
and toxins can affect our neurological systems. At face value there
might not be an obvious connection with issues like tinnitus and toxic
exposure, which is why examinations can be beneficial. An examiner may
not grant an examination if this language were passed into law.
The VFW is encouraged by both proposals that seek to strengthen the
TERA examination process. We look forward to working together in a
bipartisan manner to hopefully produce a comprehensive TERA reform bill
that would benefit all veterans and reduce inefficiencies.
Discussion Draft, Veterans Claims Quality Improvement Act of 2024
The VFW supports this legislation that would provide much needed
training and oversight for those deciding VA claims. However, the
addition of more oversight often comes with delays in timeliness if the
program is not properly funded. This bill instructs the General Council
to review each updated VA regulation, and to develop and administer a
training program to ensure that those writing the regulations are
properly trained. It also instructs BVA to create a training and
quality assurance program. While training and oversight is essential,
without proper funding for these programs, the development and
execution could be severely impacted thus limiting the effectiveness of
these programs.
As the former director for training and quality assurance in VFW
National Veterans Service, I am keenly aware of how quickly and often
VA regulations change as well as the need to ensure that updated
regulations are understood by those who use them. Recently, I was
representing a veteran who had a claim for service connection for a
mental health condition denied by VA. The veteran had claimed post-
traumatic stress disorder (PTSD) on the initial application for
benefits. However, during his compensation and pension examination the
examiner diagnosed him with a different mental health condition and
provided a medical opinion linking the condition to his active military
service. A VA rating officer denied the claim because the veteran did
not have PTSD.
According to VA's M21-1 Manual, ``It is impermissible to limit the
scope of the claim for SC to the claimant's lay hypothesis about the
nature of a specific mental disorder disability. Because the Veteran is
reasonably requesting benefits for symptoms of a mental disorder but is
not competent to medically identify such symptoms, it is insufficient
for the Department of Veterans Affairs (VA) to simply deny benefits for
the claimed diagnosis and not address evidence in the record of other
mental disorder diagnoses, as indicated in Clemons v. Shinseki, 23 Vet.
App. 1 (2009).'' Though the referenced CAVC case and the regulation
both state that the rater was supposed to consider all mental health
diagnoses of record, without proper training and plain language this
regulation can easily confuse a VA Rating Veterans Service
Representative and result in an unnecessary appeal.
Chairman Luttrell and Ranking Member Pappas, this concludes my
testimony. I am happy to answer any questions you 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 2024, nor has it
received any Federal grants in the two previous Fiscal Years.
The VFW has not received payments or contracts from any foreign
governments in the current year or preceding two calendar years.
______
Prepared Statement of Andrew Tangen
Chairman Luttrell, Ranking Member Pappas, and distinguished members
of the Subcommittee, the National Association of County Veteran Service
Officers, commonly referred to as NACVSO, would like to thank you for
the opportunity to submit our views on pending legislation impacting
the Department of Veterans Affairs (VA) that is before the
Subcommittee.
NACVSO is a unique organization in that all our elected or
appointed leaders and most of our members are currently serving as VA
accredited representatives--working as Government Veteran Service
Officers (GVSOs) in the field every day to help America's Veterans and
their dependents access the benefits they earned with their service.
Once again, it is our honor to share with you the issues that are
important to NACVSO.
Veterans Appeals Options Expansion Act of 2024
NACVSO supports the proposed legislation's goal of removing
barriers for Veterans that were inadvertently created under AMA.
Although Public Law 115-55, Veterans Appeals Improvement and
Modernization Act of 2017 (hereinafter AMA) greatly improved Veterans'
and advocates' ability to challenge initial benefit eligibility
determinations, a number of issues became apparent during the
implementation of the AMA.
A primary challenge with the AMA is how supplemental claims are
processed when there is an unintentional or clerical error in form
filing. Take for example, a Veteran from the Vietnam era, who filed an
initial claim for hearing loss in 1972 with the Veterans Benefits
Administration (hereinafter VBA), which the VBA denied in 1972. Decades
later, that same Veteran has progressive hearing loss and inadvertently
submits another initial claim form for hearing loss instead of a
supplemental claim form, as historical evidence of the first claim from
1972 is unavailable to the Veteran or their advocate at the time of
submission. When VA receives the new claim submission, it correctly
identifies that the Veteran previously filed a claim for hearing loss
and informs the Veteran by mail that he or she used the wrong form. The
Veteran then correctly submits a supplemental claim form to VBA, and
the effective date for the Veteran, in many instances, becomes the date
that VBA receives the correct form, not the date when the Veteran
actually notified VA of his intent to file, but inadvertently used the
wrong form. Since it takes several months or, in some cases, even years
for VA to notify Veterans of clerical errors in form filing, many
Veterans lose out on benefits they should have been entitled to simply
because of a clerical error. This also increases the number of appeals
to the Board of Veterans Appeals (hereinafter Board).
AMA made other changes to the VBA claims adjudication process that
have slowed benefits delivery to eligible Veterans. Under AMA, when a
claim is remanded and returned by the Board to the VA Regional Office
for additional follow-up, it can be denied at the Regional Office and
ultimately end up back at the Board. When this happens, Veterans' cases
are placed in a ``queue'' in which any judge on the Board may be
assigned to review the decision. Under the prior system, the same judge
who initially remanded the case would review and render a decision on
the case when it is returned to the Board. Under the AMA, the judge who
conducted the initial hearing, and who likely has the best
understanding of the case, is now unlikely to be the same judge to
review the new determination of the Regional Office. Further, Veterans
who find themselves returning to the Board do not receive priority for
new decisions; some Veterans have waited over 2 years for a decision on
the return of their case to the Board under AMA.
Veterans Appeals Efficiency Act of 2024 and the Veterans Claims Quality
Improvement Act of 2024
NACVSO supports the proposed legislation's overall goals of
improving Board decisions and VBA compliance with those decisions,
expanding the jurisdiction of the Court of Appeals for Veterans Claims,
and requiring notice for reasons for deferrals and assigned suspense
dates for further actions on claims pending adjudication. However,
NACVSO does not believe that allowing the Board to issue precedential
decisions is in keeping with the non-adversarial nature of initial
appeals before the Board. NACVSO believes that each appeal at the Board
should be evaluated on its own merit and set of facts and conditions.
An AMA Summit hosted by The Board and VBA on 6-7 February 2024,
brought to light many of the current challenges with Board decisions
and VBA compliance. At this summit, the Board informed participants
that between 1 October 2023 and 6 February 2024, there were 20,381
reasons for remands from the Board to VBA. Fifty-two percent (52
percent) of these remands (10,607) dealt with errors, omissions, or
inadequacy in the required forensic examinations that Veterans must
complete in order to receive a decision on their claim for benefits.
As an example, GVSOs have seen situations where a Veteran with an
established history of receiving treatment for Post-Traumatic Stress
(PTS) at a VA medical center was denied benefits because the VBA
forensic examiner determined, despite having the treatment records,
that the Veteran not only does not have PTS, but also no mental health
diagnosis. Upon appeal to the Board, these cases are currently remanded
to the VBA for a new examination to determine whether the Veteran has
PTS again, rather than the Board relying on medical evidence of a
diagnosis, granting PTS, and remanding to the VBA solely to determine
severity of the Veteran's PTS. Currently, Veterans who find themselves
in the appeals repeat loop who have PTS have sometimes had to go
through multiple forensic examinations, which leaves Veterans feeling
helpless, unwanted, and untrusted.
Toxic Exposures Examination Improvement Act and Medical Disability
Examination Act of 2024
NACVSO supports both of these proposed pieces of legislation but
recommends combining the bills and striking Section 2 from the Medical
Disability Examinations Act of 2024. The Sergeant First Class (SFC)
Heath Robinson Honoring Our Promise to Address Comprehensive Toxics
(PACT) Act of 2022 (Pub. L. 117-168) (hereinafter PACT Act) was a
lifechanging piece of legislation for so many Veterans who now receive
services and benefits that were previously not available to them.
However, its implementation has revealed issues that we believe must be
urgently addressed. For example, a massive amount of Veterans who have
filed a claim for benefits since the PACT Act was signed into law are
having their claims processed under a toxic exposure risk activity
claim (hereinafter TERA), even if the Veteran did not allege or claim
TERA when filing for a condition, they believe they are eligible for
but is not related to toxic exposure. Under the US Code, Veterans
filing a disability claim must have: 1) an in-service injury or
disease; 2) a current diagnosis; and 3) a medical nexus connecting the
two. Further, a Veteran may be awarded benefits under any of the five
theories of entitlement: 1) direct service connection; 2) aggravation
of a pre-existing condition; 3) a presumptive condition relating to the
nature of the Veterans service; 4) a condition deemed secondary, or
caused by, an already established service connected injury or disease;
or, 5) due to injuries sustained by the VA (38 U.S.C. Sec. 1151).
Since passage of the PACT Act, GVSOs have seen situations where
forensic examiners and VA ratings specialists rely solely on TERA
claims, and not on the aforementioned entitlement theories in US Code
for granting benefits. Without official action on the part of Congress
or the Secretary, overreliance on TERA has created a situation in which
some VBA employees have, in essence, created a sixth criteria of
entitlement (e.g., toxic exposure) rather than utilizing TERA as part
of determining eligibility under the five established theories of
entitlement.
Both of the proposed bills are designed to remedy this situation;
however, under Section 2 of the Medical Disability Examinations Act of
2024, the change to what constitutes a ``covered Veteran'' to only
those Veterans who fall under section 1119(c) carries with it an
unintended consequence. As an example, consider a Veteran who served as
a heavy equipment operator in Germany during the Vietnam War and who
was routinely exposed to toxins. Medical studies indicate these
Veterans carry an increased risk of developing Non-Hodgkins
Lymphoma.\1\, \2\, \3\ The changes proposed under
Section 2 of the Medical Disability Examinations Act of 2024 would, in
essence, preclude this Veteran from being able to prove service
connection for benefits, even though medical literature shows an
extremely high likelihood of Non-Hodgkins Lymphoma due to that
Veteran's military service.
---------------------------------------------------------------------------
\1\ See e.g. Schenk M, Purdue MP, Colt JS, Hartge P, Blair A,
Stewart P, Cerhan JR, De Roos AJ, Cozen W, Severson RK. Occupation/
industry and risk of non-Hodgkin's lymphoma in the United States. Occup
Environ Med. 2009 Jan;66(1):23-31. doi: 10.1136/oem.2007.036723. Epub
2008 Sep 19. PMID: 18805886; PMCID: PMC3051169.
\2\ See e.g. Mester B, Nieters A, Deeg E, Elsner G, Becker N,
Seidler A. Occupation and malignant lymphoma: a population based case
control study in Germany. Occup Environ Med. 2006 Jan;63(1):17-26. doi:
10.1136/oem.2005.020453. PMID: 16361401; PMCID: PMC2078033.
\3\ See e.g. Francisco LFV, da Silva RN, Oliveira MA, Dos Santos
Neto MF, Goncalves IZ, Marques MMC, Silveira HCS. Occupational
Exposures and Risks of Non-Hodgkin Lymphoma: A Meta-Analysis. Cancers
(Basel). 2023 May 4;15(9):2600. doi: 10.3390/cancers15092600. PMID:
37174074; PMCID: PMC10177442.
HR 2911 - Fairness for Servicemembers and their Families Act of 2023
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and the Veterans' Compensation Cost-of-Living Adjustment Act of 2024
NACVSO supports both H.R. 2911 and the proposed Veterans'
Compensation Cost-of-Living Adjustment Act of 2024.
Chairman, Ranking Member, and members of the subcommittee, on
behalf of NACVSO thank you for the opportunity to submit our views on
some of the bills being considered today. We look forward to working
with you on this legislation and would be happy to take any questions
for the record.
______
Prepared Statement of Renee Burbank
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statements for the Record
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Prepared Statement of Disabled American Veterans
Chairman Luttrell, Ranking Member Pappas and Members of the
Subcommittee:
DAV (Disabled American Veterans) is grateful to provide testimony
for the record for this legislative hearing concerning 12 different
pieces of legislation. DAV is a congressionally chartered and
Department of Veterans Affairs (VA) accredited veterans service
organization (VSO). We provide meaningful claims support free of charge
to more than 1 million veterans, family members, caregivers and
survivors.
To fulfill our service mission, DAV directly employs a corps of
benefits advisors, national service officers (NSOs), all of whom are
themselves wartime service-connected disabled veterans, at every VA
regional office (VARO) as well as other VA facilities throughout the
Nation, including the Board of Veterans' Appeals (Board).
We are pleased to provide our views on the bills impacting service-
disabled veterans, their families and the programs administered by the
VA that are under consideration by the Subcommittee.
H.R. 1083, the Caring for Survivors Act
Created in 1993, Dependency and Indemnity Compensation (DIC) is a
benefit paid to surviving spouses of service members who die in the
line of duty or veterans who die from service-related injuries or
diseases. DIC provides surviving families with the means to maintain
some semblance of economic stability after losing their veteran.
Increase DIC Rates
When a veteran receiving compensation passes away, not only does
the surviving spouse have to deal with the loss of the veteran, they
also have to contend with the loss of annual income. This loss can be
devastating, especially if the spouse was also the veteran's caregiver
and reliant on that compensation as their sole income source.
Survivors who rely solely on DIC benefits face significant
financial hardships after the death of their loved one. For example, a
veteran who is married and receiving compensation at the 100 percent
rate would be paid $3,946 a month. Once that veteran passes away, the
survivor would only be eligible to receive $1,612.75 a month, a loss of
nearly $28,000 a year.
In contrast, monthly benefits for survivors of Federal civil
service retirees are calculated as a percentage of the civil service
retiree's Federal Employees Retirement (FERS) or Civil Service
Retirement System (CSRS) benefits, up to 55 percent. This difference
presents an inequity for survivors of our Nation's heroes compared to
survivors of Federal employees. The death benefit is about $33,000
annually for Federal employees compared to DIC at $19,353 in 2024.
The Caring for Survivors Act would increase the rate of
compensation for DIC to 55 percent of a totally disabled veteran's
compensation to correspond with what Federal employee survivors
receive, thus providing parity for veterans' survivors and families.
Reduce the 10-Year Rule for DIC
If a veteran is 100 percent disabled, to include unemployable, for
10 consecutive years before their death, their surviving spouse and
minor children are eligible for DIC benefits even if the death is not
considered service connected.
Conversely, if that veteran dies due to a nonservice-connected
condition before they reach 10 consecutive years of being totally
disabled, their dependents are not eligible to receive the DIC benefit.
This happens even though many surviving spouses put their careers on
hold to act as primary caregivers for the veteran, and now with the
loss of their loved one, they could potentially be left destitute. DAV
believes the requirement of 10 years is arbitrary.
The Caring for Survivors Act would modify the DIC program and
institute a partial DIC benefit starting at 5 years after a veteran is
rated totally disabled and reaching full entitlement at 10 years. This
would mean if a veteran is rated as totally disabled for 5 years and
dies, a survivor would be eligible for 50 percent of the total DIC
benefit, increasing until the 10-year threshold and the maximum DIC
amount is awarded.
DAV strongly supports the Caring for Survivors Act, consistent with
DAV Resolution Nos. 039 and 241. We urge Congress to provide parity for
DIC compensation in comparison to Federal programs and establish equity
concerning the current 10-year rule.
H.R. 2911, the Fairness for Servicemembers and their Families Act
The Fairness for Servicemembers and their Families Act would
require the VA to periodically review and report on the maximum
coverage available under the Servicemembers' Group Life Insurance
(SGLI) and Veterans' Group Life Insurance (VGLI) programs.
From 2006 to 2023, the maximum insurance value available for
servicemembers and veterans remained static, diminishing its value for
military families affected. H.R. 2911 would improve the financial
safety net for veterans, servicemembers, and their families by helping
to ensure coverage amounts for the SGLI and the VGLI account for
changes in economic trends. Specifically, it would help ensure the
maximum group insurance available to servicemembers and veterans
account for rising costs by requiring the Secretary to submit a report
to Congress indicating the buying power of the current maximum coverage
against Fiscal Year 2005 dollars using data from the Bureau of Labor
and Statistics.
DAV supports the Fairness for Servicemembers and their Families Act
based on DAV Resolution No. 530, calling for reform to life insurance
benefits for veterans.
H.R. 3651, the Love Lives On Act
The Love Lives On Act would restore payment of dependency and
indemnity compensation (DIC) to surviving spouses who remarry before
the age of 55. This legislation would also not allow the termination of
annuity payments to surviving spouses solely on the basis of them
remarrying. In the case of a spouse that has remarried prior to the age
of 55 and before this act becomes law, payments would be resumed. This
legislation would also entitle a surviving spouse the opportunity to
use the commissary and exchange stores. H.R. 3651, also expands the
definition of a surviving spouse and dependent for entitlement to
certain benefits, to include veterans benefits and Tricare.
DAV strongly supports the Love Lives On Act in accordance with DAV
Resolution No. 241. Removing the remarriage age for surviving spouses
has been a long-standing issue for DAV. Surviving spouses who are
currently in receipt of DIC benefits should not have to worry about
losing their benefits if they remarry before age 55.
H.R. 7100, the Prioritizing Veterans' Survivors Act
The Office of Survivors Assistance (OSA) was established by Public
Law 110-389, in October 2008, to serve as a resource regarding all
benefits and services furnished by VA to survivors and dependents of
deceased veterans and members of the Armed Forces. Additionally, it
serves as a principal advisor to the Secretary of Veterans Affairs,
working to promote the use of VA benefits, programs, and services to
survivors while ensuring that they are properly supported as stated in
VA's mission.
On January 30, 2024, Josh Jacobs, VA Under Secretary for Benefits,
testified before the House Veterans' Affairs Committee. In his written
testimony he noted, ``In February 2021, OSA was moved under the
Veterans Benefits Administration (VBA) to better align OSA's work with
survivors, outreach, and survivors' monetary benefits under the program
office that has oversight of several benefit programs available to
survivors.''
The Prioritizing Veterans' Survivors Act would require the removal
of the OSA from VBA and place it directly within the office of the VA
Secretary. DAV does not have a specific resolution or a position on
this legislation. Our concern lies directly with survivors and
dependents receiving the appropriate resources and maximum benefits
available.
H.R. 7150, Survivor Benefits Delivery Improvement Act of 2024
Following the passage of P.L. 117-168, the Sergeant First Class
Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act
of 2022, known as the PACT Act, VA extended outreach to 385,000
potential survivors who may be impacted. Since then, as of January 1,
2024, VA has received 13,768 DIC claims related to presumptive
conditions. A total of $116 million has been awarded in retroactive
benefits to survivors. However, we question if VA reached out to all of
the impacted survivors in all locations?
The Survivor Benefits Delivery Improvement Act would require VA to
collect demographic data on the survivor population. This could assist
VA with outreach to very specific populations. Additionally, this
legislation directs VA to develop an outreach program for survivors to
make sure that every survivor knows what benefits are available to
them.
DAV supports H.R. 7150 in accordance with DAV Resolution No. 241.
The onus should not be on survivors to reach out to VA during a
difficult time. VA should make every effort to inform all survivors of
the resources and benefits available to them.
H.R. 7777, the Veterans' Compensation Cost-of-Living Adjustment Act
The Veterans' Compensation Cost-of-Living Adjustment (COLA) Act
would increase compensation rates for VA benefits, including clothing
allowance, and dependency and indemnity benefits paid to survivors and
families of service members who died in the line of duty or suffer from
a service-related injury or disease.
Many service-disabled veterans and their families depend on VA
compensation benefits just to make ends meet. This COLA will benefit
wounded, injured and ill veterans, their families and survivors by
helping to maintain the value of VA benefits.
DAV strongly supports H.R. 7777, in accordance with DAV Resolution
No. 226. To avoid any potential delays in applying the increase, we
urge swift passage of the Veterans' COLA Act. Without annual COLAs,
many disabled veterans, who sacrificed their own health and family life
for the good of our Nation, may not be able to maintain the quality of
life they and their families deserve.
H.R. 7793: Veterans Appeals Options Expansion Act
The Veterans Appeals Options Expansion Act would address several
areas of concern DAV has raised regarding the VA's rejection of claims
based on submittal of the wrong form and the increasing backlog of
appeals at the Board of Veterans Appeals.
Effective March 24, 2015, VA amended its adjudication regulations
adding the Standard Claims and Appeals Forms Regulation, which requires
all claims to be on the appropriate VA form. If the veteran uses the
wrong form, VA sends a letter to acknowledge they received a claim but
noting it was on the wrong form. Further, VA will not accept the
submission of the wrong form as an informal claim or as an Intent to
File (ITF), thus not establishing the veteran's potential effective
date for a grant of benefits.
H.R. 7793, provides, ``If an individual with a claim for benefits
under the laws administered by the Secretary submits to the Secretary a
form under paragraph (1) that is not the correct form prescribed by the
Secretary for such claim, the Secretary shall treat such form as an
intent to file a claim under section 3.155 of title 38, Code of Federal
Regulations, or successor regulation.''
This is consistent with recommendations DAV made in our testimony
before the Subcommittee on March 20, 2024. We stated, ``DAV believes
there should never be a wrong door at VA and we recommend that VA
reconsider the standardized forms requirement or take an approach that
will either accept the wrong form as an Intent to File or if all of the
needed information is provided VA should process and decide the
claim.''
DAV strongly supports this proposed change; however, VA regulations
only allow a veteran to have one pending ITF at a time. Therefore, this
change could have a negative impact on effective dates as the most
recent ITF would negate an already established ITF. We recommend that
the language be amended to consider this potential complication and
ensure that a veteran's effective date, already established by an ITF,
is not impacted.
Additionally, the Veterans Appeals Option Expansion Act would allow
veterans to switch Board dockets at any time before their appeal has
been assigned to a Board decision-maker. Further, it would require the
Board to promptly notify veterans when they have submitted untimely
evidence and the consequences of doing so, and would prevent veterans
from being moved to the back of the Board's line after the Board sends
those veterans' claims back to VBA.
The Board noted in its final Fiscal Year 2023 quarterly report,
published on its website, that 103,245 appeals were decided while
receiving over 101,000 new appeals. There were 24,145 legacy appeals
pending and over 180,000 pending AMA cases totaling 208,155 appeals
pending on October 1, 2023. Of the appeals pending, it noted that AMA
appeals on a direct route were pending an average of 577 days, AMA
appeals with evidence were pending an average of 682 days and AMA
appeals requesting a hearing were pending an average of 700 days. Given
the backlog of appeals and those that have been pending for years,
there should be an alternative option for veterans.
DAV supports the Veterans Appeals Option Expansion Act in
accordance with DAV Resolution No. 220. We believe any appeals reform
must preserve or enhance veterans' due process rights and ensure that
adjudications are fair, accurate, timely and of acceptable quality.
H.R. 7816, the Clear Communication for Veterans Claims Act
The Clear Communications for Veterans Claims Act would require the
VA Secretary to enter into an agreement with a federally funded
research and development center, (FFRDC), which are owned by the
Federal Government, but operated by contractors, including
universities, nonprofit organizations, and industrial firms.
The subject for the FFRDC is the notices and letters issued by the
VA to veterans and other claimants. As we highlighted in our testimony
before this Subcommittee on March 20, 2024, ``it is evident that these
letters speak a language that veterans cannot always translate.''
Additionally, we recommended that VA take a new look at its letters
by concentrating on the language for the reader and not the legal
requirements. We suggested the use of focus groups populated with
veterans and veterans service organizations to assist in developing
language that is understood and clearly conveys information and the
intent of the letter.
VA letters should not be structured in a way that induces
confusion, anxiety or frustration for veterans. DAV fully supports the
Clear Communications for Veterans Claims Act in accord with DAV
Resolution No. 220, which calls for meaningful claims and appeals
reform.
Discussion Draft--The Veterans Appeals Efficiency Act
This proposed bill, the Veterans Appeals Efficiency Act, would
require several reporting and tracking requirements for VBA and the
Board to include tracking and maintaining information on Higher Levels
Reviews, Supplemental Claims and Notices of Disagreement. Further, it
would require tracking on claims pending in the National Work Queue not
assigned to an adjudicator, cases remanded by the Board, AMA cases
pending a hearing and when a decision-maker did not comply with the
Board's decision.
The draft legislation contains other noteworthy requirements such
as improvements to the Board, a study and report on common questions of
law or fact before the Board and an independent assessment of potential
modifications to the authority of the Board.
In principle, DAV would support tracking and reporting information
on claims and appeals in order to help resolve the current lengthy
timeline for pending appeals. Based on DAV Resolution No. 220, DAV
could support this proposed legislation. However, we have concerns over
any potential changes to the authority of the Board. The independent
review has the ability to provide insights to the process, but before
any changes to the Board's authority are contemplated, the VSO and
stakeholder community must be engaged in thoughtful and deliberate
conversations over any such changes.
Medical Nexus Examinations for Toxic Exposure Risk Activities as
Addressed in
Discussion Draft--Medical Disability Examination Improvement Act &
Discussion Draft--Toxic Exposures Examination Improvement Act
For more than 100 years, our servicemembers have been exposed to
hazardous environments and toxins, often resulting in negative health
impacts, which require future health care and benefits. Historically,
it takes VA and Congress decades to establish recognized toxic
exposures and related diseases.
Our sense of duty to them must be heightened as many of the
illnesses and diseases due to these toxic exposures may not be
identifiable for years, even decades, after they have completed their
service. When VA and Congress do not recognize toxic exposures or
presumptive diseases, toxic exposed veterans are placed at a severe
disadvantage in trying to establish direct service connection for
diseases. The PACT Act included in Title 38, United States Code,
section 1168, which requires VA to provide a medical nexus examination
for toxic exposed veterans if the evidence is not sufficient to
establish direct service connection. This removed a barrier for toxic
exposed veterans, without this, many claims will be denied without VA
requiring an examination or a medical opinion.
Currently, the statute states that if a veteran submits a claim for
a condition due to toxic exposures, the VA will provide the veteran an
examination as indicated. However, provisions in the Discussion Draft--
Medical Disability Examination Improvement Act, would change this
statute by redefining who is eligible for the medical nexus opinion.
The proposal would change veteran to covered veteran. The statute
defines a covered veteran as only those noted directly in the PACT Act.
DAV would not support this proposed change in the Discussion
Draft--Medical Disability Examination Improvement Act, as it is
defining a toxic exposed veteran with restrictions and limitations for
the purpose of a medical nexus examination. Thus, not every toxic
exposed veteran would fit in this definition, including those exposed
toxins at Ft. McClellan, veterans exposed to PFAS or other toxins. We
argue that the congressional intent of the law was to cover all toxic
exposed veterans not just a smaller group of veterans.
The Discussion Draft--Toxic Exposures Examination Improvement Act,
would also make changes to section 1168 of Public Law 117-168, that
does not honor the heightened sense of duty to toxic exposed veterans.
This proposal would remove the current requirement, ``if the evidence
is not sufficient to establish direct service connection.'' It would
change it to ``such evidence does not contain sufficient medical
evidence for the Secretary to make a decision on the claim''. While
this would reduce the number of examinations VA would be required to
conduct, it creates a barrier for toxic exposed veterans trying to
establish direct service connection for a toxin-related disease.
DAV would not support this proposed change in the Discussion
Draft--Toxic Exposures Examination Improvement Act. It takes VA and
Congress decades to establish toxic exposure related diseases and this
proposed change would remove an advantage toxic exposed veterans were
guaranteed by the PACT Act.
Discussion Draft--The Veterans Claims Quality Improvement Act
The proposed bill, the Veterans Claims Quality Improvement Act,
would provide for certain revisions to the manual of the Veterans
Benefits Administration and aims to improve the quality of the
adjudication of claims for benefits.
Specifically, it would require the VA General Counsel to review and
comment on any revisions to VBA manuals addressing the adjudication of
claims. Additionally, it would require the VA General Counsel to
develop a training program and provide training for any employees
responsible for drafting rules, guidance, or any other types of
issuances.
The proposed bill would also require the Chairman of the Board to
establish a program to ensure the quality of Board decisions with a
requirement to report to the House and Senate Veterans' Affairs
Committee annually.
In accordance with DAV Resolution No. 220, we support the
discussion draft as currently written to strengthen VBA adjudication
manuals, Office of General Counsel opinions, and training programs,
which could result in an overall improvement of decisions within VBA
and the Board.
In closing, Mr. Chairman, we thank you for the opportunity to
submit a statement for the record addressing our concerns on the 12
bills being considered by the Subcommittee.
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Prepared Statement of National Organization of Veterans' Advocates,
Inc.
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Prepared Statement of Administrative Conference of the United States
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Prepared Statement of The American Legion
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Prepared Statement of Paralyzed Veterans of America
Chairman Luttrell, Ranking Member Pappas, and members of the
subcommittee, Paralyzed Veterans of America (PVA), would like to thank
you for the opportunity to submit our views on pending legislation
impacting the Department of Veterans Affairs (VA) that is before the
subcommittee. No group of veterans understand the full scope of
benefits and care provided by VA better than PVA members--veterans who
have incurred a spinal cord injury or disorder (SCI/D). Several of
these bills will help to ensure veterans and their survivors receive
earned benefits and support. PVA provides comment on the following
bills included in today's hearing.
H.R. 1083, the Caring for Survivors Act of 2023
Losing a spouse is never easy, but knowing that financial help will
be available following the death of a loved one can ease this burden.
Dependency and Indemnity Compensation (DIC) is intended to protect
against survivor impoverishment after the death of a service-disabled
veteran. In 2024, this compensation starts at $1,612.75 per month and
increases if the surviving spouse has eligible children who are under
age 18. DIC benefits last the entire life of the surviving spouse
except in the case of remarriage before a certain age. For surviving
children, DIC benefits last until the age of 18. If the child is still
in school, these benefits might go until age 23.
The rate of compensation paid to survivors of servicemembers who
die in the line of duty or veterans who die from service-related
injuries or diseases was established in 1993 and has been minimally
adjusted since then. In contrast, monthly benefits for survivors of
Federal civil service retirees are calculated as a percentage of the
civil service retiree's Federal Employees Retirement System or Civil
Service Retirement System benefits, up to 55 percent. This difference
presents an inequity for survivors of our Nation's heroes compared to
survivors of Federal employees. DIC payments were intended to provide
surviving spouses with the means to maintain some semblance of economic
stability after the loss of their loved one.
PVA supports the Caring for Survivors Act of 2023, which raises DIC
rates to meet the 55 percent threshold. Additionally, current law
restricts the DIC benefit for survivors if the veteran was disabled for
less than 10 years before his or her death. This bill reduces the
timeframe a veteran needed to be rated totally disabled from 10 to 5
years which would allow greater numbers of survivors to benefit from
this important program.
H.R. 2911, the Fairness for Servicemembers and their Families Act of
2023
PVA supports this legislation which requires the VA to periodically
review and report on the maximum coverage available under the
Servicemembers' Group Life Insurance and Veterans' Group Life Insurance
programs. It would help ensure the relevancy of this pair of financial
safety nets by ensuring their coverage amounts account for changes in
economic trends.
H.R. 3651, the Love Lives On Act of 2023
When a military member or veteran dies, their spouse is eligible to
receive a number of survivor benefits, but current law strips many of
them if the spouse remarries again before age 55. This arbitrary age
limit often prevents many surviving spouses from remarrying out of
concern for the financial stability of their surviving children. These
surviving spouses should be freed from the fear of losing the benefits
owed to them through their late spouse's military sacrifice. PVA
supports the Love Lives On Act, which would ensure they retain many
benefits from both the VA and the Department of Defense, regardless of
their age at the time of remarriage.
H.R. 7100, the Prioritizing Veterans' Survivors Act
VA's Office of Survivors Assistance (OSA) was established in 2008
(P.L. 110-389) to serve as a resource regarding all benefits and
services furnished by the department to the survivors and dependents of
deceased veterans and members of the Armed Forces. Congress also
intended that OSA would serve as a principal advisor to the VA
Secretary, and promote the use of VA benefits, programs, and services
to survivors. In February 2021, the OSA was moved from the Office of
the VA Secretary to the Veterans Benefits Administration's (VBA),
Pension and Fiduciary Service, changing the span of control and
altering a key role that Congress intended for the office. PVA has no
objection to this bill which seeks to realign the OSA back under the
Office of the VA Secretary.
H.R. 7150, the Survivor Benefits Delivery Improvement Act of 2024
PVA supports this bill which directs the VA to collect demographic
data on the survivor population. We believe the change would help the
department and Congress better understand the utilization of survivor-
related benefits and services. It also directs the VA to develop an
outreach program for survivors, similar to the Solid Start program, to
make sure that every survivor knows what benefits are available to
them.
H.R. 7777, the Veterans' Compensation Cost-of-Living Adjustment Act of
2024
PVA supports this legislation which directs VA to increase amounts
payable for disability compensation, additional compensation for
dependents, the clothing allowance for certain disabled veterans, and
DIC for surviving spouses and children. VA would be required to raise
compensation amounts by the same percentage as the cost-of-living
increase in benefits for Social Security recipients that is effective
on December 1, 2024. It also requires the VA to publish the amounts
payable, as increased, in the Federal Register.
H.R. 7793, the Veterans Appeals Options Expansion Act of 2024
Veterans often find the claims process extremely confusing so it is
not too surprising whenever mistakes are made. Currently, if a veteran
filed an initial claim for VA benefits on the wrong form, then later
submits the correct one, VA does not backdate payments to the date of
the wrong form when that claim is eventually granted. This bill would
ensure that veterans are not penalized for making small errors when
filling out forms by requiring the department to treat the original
submission as an intent to file a claim according to 38 C.F.R. Sec.
3.155. PVA agrees with this change but feels strongly that this section
of the bill could be strengthened and confusion over which form to use
be fully eliminated if Congress would direct the VA to create a single
form that can be used for any kind of claim.
Another provision in the bill requires the Board of Veterans'
Appeals to promptly notify veterans when they have submitted untimely
evidence and the consequences of doing so, and would prevent veterans
from being moved to the back of the Board's line once the veteran's
claim is returned to VBA. PVA supports telling veterans when they have
filed something that the agency won't look at, but don't think that
should be limited to the Board. If we are going to address that
problem, it should apply to the whole agency. Finally, the current
timeframe to resolve appeals remains unacceptably long and this would
allow veterans to switch Board dockets at any time before their appeal
has been assigned to a Board decision-maker.
H.R. 7816, the Clear Communication for Veterans Claims Act
Testimony received by this subcommittee on March 20, 2024, revealed
many problems with the language the VA uses in its letters to veterans
regarding the status of their disability claims and appeals. In recent
years, these letters have become lengthy tomes that require veterans to
obtain help to interpret them. The Clear Communication for Veterans
Claims Act directs the VA to enter into an agreement with a federally
funded research and development center for an assessment of notice
letters that the department sends to claimants. PVA believes the VA
should place greater emphasis on successfully communicating with the
veteran, and focus less on legalese. Therefore, we appreciate and
strongly support efforts like this to help demystify the VA claims
process.
Discussion Draft, the Medical Disability Examination Improvement Act
When a veteran files a claim for disability compensation, the VA
often requires a medical disability exam to determine if a medical
connection can be established between a condition being claimed and a
veteran's military service. Between August 10, 2022, and February 24,
2024, the VA added 264,548 veterans to its healthcare rolls and 1.4
million claims for benefits had been filed. This draft bill seeks to
ensure the VA can handle its increasing workload which is largely
caused by the PACT Act (P.L. 117-168). Specifically, it would bolster
the department's ability to hire more medical disability examiners and
improve training for VA claims processing staff to determine if a
medical disability exam is necessary or if there's already sufficient
existing evidence to grant a claim. Other language in the bill requires
the VA to study and develop a plan to improve rural veterans' access to
quality and timely medical disability examinations and to develop a
mechanism for contract examiners to transmit evidence introduced by
veterans during their exam for their claim--a move PVA strongly
supports.
Our lone concern with this draft measure rests with the language in
section two seeking to change ``veteran'' to ``covered veteran.'' This
differs from current law which states, that if a veteran submits a
claim for a condition stemming from toxic exposures, the VA will
provide the veteran an examination as indicated. Without additional
information on why such a change is necessary, we could not support its
inclusion in the bill.
Discussion Draft, the Toxic Exposures Examination Improvement Act
This draft bill proposes to change the definition of evidence as it
pertains to toxic exposure-related claims. Specifically, it would
remove the language in 38 C.F.R. Sec. 1168 (a) that currently reads,
``if the evidence is not sufficient to establish direct service
connection,'' and replace it with ``such evidence does not contain
sufficient medical evidence for the Secretary to make a decision on the
claim.'' PVA cannot support this bill at this time because we believe
the change may create an unnecessary barrier for veterans seeking to
establish a direct service connection for their toxin-related
conditions.
Discussion Draft, the Veterans Appeals Efficiency Act of 2024
This draft bill creates additional reporting and tracking
requirements for VBA and the Board, such as information on Higher Level
Reviews, Supplemental Claims, and Notices of Disagreement. It also
requires the tracking of claims pending in the National Work Queue, not
assigned to an adjudicator; cases that are remanded by the Board;
Veteran Appeals Improvement and Modernization Act cases pending a
hearing; and when a decision-maker did not comply with the Board's
decision. We recognize the value of and support efforts to track
meaningful data to improve the effectiveness and accuracy of the claims
process. However, the data sought by this legislation will be
meaningless until the VA first fixes their problems with obtaining
medical opinions, since the lack of them are constantly creating
remandable errors.
We also have concerns with language regarding potential changes to
the authority of the Board, and oppose the provision about seeking an
opinion from VA's Office of General Counsel (OGC) with respect to a
question of law arising in an appeal under review by the Board. Under
38 U.S.C. Sec. 7104 (c), the Board is already bound by the opinions of
the chief legal officer (i.e., the General Counsel) and they already do
seek opinions from time to time. For example, PVA had a case where we
challenged the legal finding of the opinion sought in that specific
case and we prevailed on the legal interpretation.
This legislation would open the option to seek an opinion to
claimants as well. But, we already have an appeals structure that
includes court review, which would be the ``final'' say on the
interpretive question. And, since the VA OGC's authority is unclear as
to any interpretive or regulatory authority for the department in
individual claims, it would actually be less efficient to seek an OGC
opinion, since if the veteran loses, it will certainly be litigated and
there is not a time limit on when the OGC produces the opinion. Thus,
it delays the veteran's case. While we see the facial appeal of
allowing both claimants and the Board to seek an OGC opinion, we don't
want the OGC's intervention to be used more than it is now or to be
seen as a short cut of some sort. We view this as a Pandora's box that
likely would not aid efficiency.
Discussion Draft, the Veterans Claims Quality Improvement Act
This draft legislation requires the VA General Counsel to review
and comment on any revisions to the VBA manuals addressing the
adjudication of claims. It also requires them to develop a training
program and provide training for any employees responsible for drafting
rules, guidance, or any other types of issuances.
Aside from potentially slowing the claims process down, we have no
concerns with the first two provisions. After the Veterans Auto and
Education Improvement Act (P.L. 117-333) was signed authorizing an
additional Auto Grant for certain veterans, it took about 10 months for
VA Manual M-21 to be updated. Our service officers who are assisting
veterans in filing these claims found many VA Regional Offices didn't
even know about this benefit until they told them. In effect, it was
our personnel who had to teach them about the statutory change, VA's
interim procedures, and subsequent changes to the M-21, because it
appears the VA does not have an effective, standardized method of
updating the field on changes to the manual. We highly recommend
language be added to the bill directing the VA to establish such a
process.
A third provision in the bill directs the Chairman of the Board to
establish a program to ensure the quality of Board decisions with a
requirement to report to the Veterans' Affairs Committees annually.
This section would impose many requirements related to items that are
already the Board's responsibility. Instead of a new law, the Board
should be held accountable for these existing requirements.
PVA would once again like to thank the subcommittee for the
opportunity to submit our views on some of the bills being considered
today. We look forward to working with you on this legislation and
would be happy to take any questions for the record.
Information Required by Rule XI 2(g) of the House of Representatives
Pursuant to Rule XI 2(g) of the House of Representatives, the following
information is provided regarding Federal grants and contracts.
Fiscal Year 2023
Department of Veterans Affairs, Office of National Veterans Sports
Programs & Special Events--Grant to support rehabilitation sports
activities--$479,000.
Fiscal Year 2022
Department of Veterans Affairs, Office of National Veterans Sports
Programs & Special Events--Grant to support rehabilitation sports
activities--$ 437,745.
Disclosure of Foreign Payments
Paralyzed Veterans of America is largely supported by donations from
the general public. However, in some very rare cases we receive direct
donations from foreign nationals. In addition, we receive funding from
corporations and foundations which in some cases are U.S. subsidiaries
of non-U.S. companies.
______
Prepared Statement of Dean Phillips
Thank you, M. Chair. I would like to begin by thanking the
leadership of the House Veterans Affairs Committee - Chairman Bost and
Ranking Member Takano - and the Subcommittee on Disability Assistance
and Memorial Affairs - Chairman Luttrell and Ranking Member Pappas. I
am grateful for all you do to advocate for our Nation's veterans.
I am delighted to testify before the Subcommittee on behalf of my
legislation, the Love Lives On Act. I thank the Subcommittee for
considering this important bill and my esteemed colleague from North
Carolina - Mr. Hudson - for his partnership in introducing this
measure.
As a Gold Star Son, my gratitude to our servicemembers and their
families is immeasurable. Spouses of those who die in service to our
Nation make unimaginable sacrifices and deserve unending respect and
support in return. Unfortunately, surviving spouses of Federal
personnel risk losing survivor benefits if they remarry under the age
of 55. My legislation, the Love Lives On Act, would ensure military
spouses are allowed to retain benefits upon remarriage no matter their
age. The bill's protections extend to surviving spouses of active-duty,
veteran, and retired military personnel.
I was thrilled to help pass a portion of this legislation in the
Fiscal Year 2024 National Defense Authorization Act. That provision
granted all remarried surviving spouses access to Commissary and
Exchange benefits. This is a great start, but I will continue to push
the remaining components of this legislation until we eliminate all
remarriage benefit reductions for anyone whose spouse dies in service
to our country.
The Love Lives On Act would extend other critical benefits to
remarried surviving spouses, such as Survivor Benefit Plan and
Dependency and Indemnity Compensation, certain electronic medical
services, and education benefits under the Fry Scholarship program.
These survivor benefits help us honor Gold Star families - we must
ensure they receive every single benefit they are owed for their
sacrifice.
Thank you very much for the opportunity to advocate for the Love
Lives on Act and I look forward to our continued collaboration.
______
Prepared Statement of Marilyn Strickland
Chairman Luttrell, Ranking Member Pappas, and members of this
distinguished Committee, thank you for allowing me to submit a
statement supporting critical legislation that benefits our active duty
servicemembers, Veterans, and their families.
I write today in support of my bill, H.R. 2911, the Fairness for
Servicemembers and their Families Act of 2023, which will help ensure
that life insurance packages for servicemembers and veterans account
for changes in the economy. This legislation will require the
Department of Veterans Affairs to periodically review and report on the
maximum coverage available under the Servicemembers' Group Life
Insurance and Veterans' Group Life Insurance.
Our servicemembers courageously put their lives on the line for
their country, and it is our duty to reciprocate. This means ensuring
the well-being of their families and loved ones in the event of a
tragedy. The importance of servicemembers' life insurance plans keeping
pace with economic demands cannot be overstated. A robust life
insurance policy will provide grieving families the security they need
to navigate the loss of their loved ones with pride and dignity.
The brave men and women who sacrifice their lives deserve peace of
mind in knowing that their families are able to take care of final
expenses and carry on their legacy. As a daughter of a veteran, I
understand the many challenges veterans experience. It is imperative
that we ensure those who serve can provide a sense of security for
their families.
For nearly two decades, the maximum coverage of the Servicemembers
Group Life Insurance and Veterans' Group Life Insurance programs
remained stagnant, even as the cost of housing, goods, and services
rose. This bill, H.R. 2911, will ensure that these programs are
reviewed periodically to verify that their value sufficiently reflects
contemporary consumer price index.
Chairman Luttrell, Ranking Member Pappas, and esteemed members of
this distinguished Committee, thank you for your unwavering commitment
to supporting veterans and their families and for prioritizing their
care.
Prepared Statement of Michael Wishnie
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