    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                         CORRECTING VA'S VIOLATIONS OF
                           VETERANS' DUE PROCESS AND
                            SECOND AMENDMENT RIGHTS
    =======================================================================

                                    HEARING

                                   BEFORE THE

                           SUBCOMMITTEE ON DISABILITY
                           ASSISTANCE AND MEMORIAL AFFAIRS

                                     OF THE

                         COMMITTEE ON VETERANS' AFFAIRS

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           THURSDAY, JANUARY 23, 2025

                                   __________

                                Serial No. 119-2

                                   __________

           Printed for the use of the Committee on Veterans' Affairs

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                        Available via http://govinfo.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    59-612                     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           CHRIS PAPPAS, New Hampshire
    MARIANNETTE MILLER-MEEKS, Iowa       SHEILA CHERFILUS-MCCORMICK,
    GREGORY F. MURPHY, North Carolina        Florida
    DERRICK VAN ORDEN, Wisconsin         MORGAN MCGARVEY, Kentucky
    MORGAN LUTTRELL, Texas               DELIA RAMIREZ, Illinois
    JUAN CISCOMANI, Arizona              NIKKI BUDZINSKI, Illinois
    KEITH SELF, Texas                    TIMOTHY M. KENNEDY, New York
    JEN KIGGANS, Virginia                MAXINE DEXTER, Oregon
    ABE HAMADEH, Arizona                 HERB CONAWAY, New Jersey
    KIMBERLYN KING-HINDS, Northern       KELLY MORRISON, Minnesota
        Mariana Islands
    TOM BARRETT, Michigan

                           Jon Clark, Staff Director
                      Matt Reel, Democratic Staff Director

           SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                        MORGAN LUTTRELL, Texas, Chairman

    AUMUA AMATA COLEMAN RADEWAGEN,       MORGAN MCGARVEY, Kentucky, Ranking
        American Samoa                       Member
    JACK BERGMAN, Michigan               CHRIS PAPPAS, New Hampshire
    NANCY MACE, South Carolina           MAXINE DEXTER, Oregon
    KEITH SELF, Texas                    KELLY MORRISON, Minnesota

    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

                                  ----------

                           THURSDAY, JANUARY 23, 2025

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Morgan Luttrell, Chairman..........................     1
    The Honorable Morgan McGarvey, Ranking Member....................     3

                                   WITNESSES

    Dr. Jordan B. Cohen, Analyst in Firearms Policy, Congressional
      Research Service...............................................     6

            Accompanied by:

        Dr. Scott D. Szymendera, Analyst in Disability Policy,
            Congressional Research Service

    Mr. James McCormick, Past National Commander, Military Order of
      the Purple Heart...............................................     8

    Dr. Wayne Reynolds, National Treasurer, Vietnam Veterans of
      America........................................................     9

    Ms. Nancy Springer, Associate Director, National Legislative
      Service, Veterans of Foreign Wars of the United States.........    11

    Master Sgt. Michael "Top" Washington, Master Sergeant, U.S.
      Marine Corps (retired), Everytown Veterans Advisory Council....    12

                                    APPENDIX
                        Prepared Statements Of Witnesses

    Dr. Jordan B. Cohen Prepared Statement...........................    33
    Mr. James McCormick Prepared Statement...........................    40
    Dr. Wayne Reynolds Prepared Statement............................    41
    Ms. Nancy Springer Prepared Statement............................    42
    Master Sgt. Michael "Top" Washington Prepared Statement..........    44

                           Statements For The Record

    The American Legion Prepared Statement...........................    49
    GIFFORDS Courage to Fight Gun Violence and Brady United Against
      Gun Violence Prepared Statement................................    53
    National Association of County Veterans Service Officers Prepared
      Statement......................................................    57
    Questions for the Record Submitted by Aumua Amata Coleman
      Radewagen......................................................    62
    Response to Questions for the Record Submitted by Aumua Amata
      Coleman Radewagen..............................................    63

            CORRECTING VA'S VIOLATIONS OF VETERANS' DUE PROCESS AND.
                            SECOND AMENDMENT RIGHTS

                                  ----------

                           THURSDAY, JANUARY 23, 2025

     Subcommittee on Disability Assistance and
                              Memorial Affairs,
                        Committee on Veterans' Affairs,
                                 U.S. House of Representatives,
                                                       Washington, D.C.
        The subcommittee met, pursuant to notice, at 1:16 p.m., in
    room 360, Cannon House Office Building, Hon. Morgan Luttrell
    (chairman of the subcommittee) presiding.
        Present: Representatives Luttrell, Bergman, Mace, Self,
    McGarvey, Dexter, and Morrison.
        Also present: Representatives Crane and Van Orden.

             OPENING STATEMENT OF MORGAN LUTTRELL, CHAIRMAN

        Mr. Luttrell. Good morning. The Subcommittee on Disability
    Assistance and Memorial Affairs will come to order.
        Welcome.
        All right, Mr. Self, there is no making fun of the Chairman
    when I am in control of the gavel.
        I would like to welcome the new members of the subcommittee
    and those returning members. It is absolutely a privilege to be
    the Chairman again for Disability Assistance, and my good
    friend, Morgan McGarvey, from Kentucky's Third District is now
    our ranking member.
        Happy to have you here, sir.
        Today--okay. Today we are going to take a closer look at
    how the Department of Veterans Affairs seems to fail to give
    veterans any due process before violating their constitutional
    right to bear arms.
        According to regulations issued by VA and the Department of
    Justice, VA must report to the (FBI) National Instant Criminal
    Background Check System, or the NICS list, the name of any
    veteran who needs help from a fiduciary to manage their
    finances because of a disability.
        These veterans sacrificed to protect the Constitution due--
    excuse me--these veterans sacrificed to protect the
    Constitution due process and Second Amendment rights of every
    American. Yet for over two decades, without any due process, VA
    bureaucrats have stripped over 250,000 veterans with
    fiduciaries of their constitutional right to possess and
    purchase firearms. These practices have wrongfully prevented
    veterans with fiduciaries from owning--see me after class, sir.
        Dr. Reynolds. I am sorry. Sorry. I will turn it off.
        Mr. Luttrell. You good to go, Mr. Reynolds?
        Dr. Reynolds. I am good.
        Mr. Luttrell. All right. This practice--okay. For over two
    decades--I will repeat this--over 250,000 veterans with
    fiduciaries of the constitutional right to possess and purchase
    firearms. These practices have wrongfully prevented veterans
    with fiduciaries from owning firearms, whether it be to protect
    themselves and/or their families.
        VA reports these veterans to the NICS list without any
    ruling by any judge that they are a danger to themselves or
    others. The VA does this without any medical findings by any
    medical professionals that they are dangerous to themselves or
    their community.
        It is important to understand that the VA strips veterans
    of their constitutional right to bear arms with zero medical
    evidence indicating that they are suicidal, homicidal, or a
    threat to their community.
        Under VA's current practice, at no point before VA reports
    a veteran to the NICS list does any medical professional ever
    need to say that a veteran is at a risk to themselves.
        It should go without saying that there is no data to
    support that a veteran, who is unable to manage their finances
    because of a disability, is automatically dangerous. In fact,
    advocates for mental health care emphasize that assuming anyone
    with a mental illness is dangerous absolutely stigmatizes
    mental illness itself; also when the VA incorrectly assumes
    without any evidence whatsoever that a veteran should be
    stripped of their rights to bear arms or simply because they
    need help paying their bills.
        By comparison, in every other State and Federal legal
    system, civilians and criminals must be proven dangerous by a
    judge based on evidence before they are stripped of their
    constitutional right to bear arms. Veterans with fiduciaries do
    not get the same process.
        Unlike every other American, veterans with fiduciaries must
    undergo a difficult appeals process where they must prove that
    they should be given back their constitutional right to bear
    arms only after they have been added to the NICS list. This
    means that veterans are subject to different rules compared to
    every other American, even though veterans fought to protect
    our American constitutional rights.
        Since March 9th of 2024, VA has been temporarily prohibited
    from using any funds to report a veteran assigned a fiduciary
    to the NICS list without a court ruling that the veteran is a
    danger to themselves or others.
        This hearing will reveal that Congress must pass a
    permanent piece of legislation or legislative solutions to
    protect veterans' constitutional due process. This hearing is
    not about guns or demand. It is about affording veterans with
    the same due process rights every other American is afforded.
        I look forward to hearing from our witnesses.
        Thank you, Dr. Reynolds. I appreciate you traveling all the
    way from Alabama, sir.
        With that, I will yield to the ranking member for his
    opening remarks.

          OPENING STATEMENT OF MORGAN MCGARVEY, RANKING MEMBER

        Mr. McGarvey. Thank you very much, Mr. Chairman. I truly am
    looking forward to working with you. I have enjoyed our
    relationship over the last few years and enjoyed the
    relationship you had with my predecessor, Representative
    Pappas.
        One of the things that we have talked about several times
    is that no matter where we find ourselves outside these walls,
    we agree. We agree that our veterans deserve our care, they
    have earned our care. They have been made both a legal and a
    moral promise, and it is our job on this committee to make sure
    that we live up to that promise. I look forward to working with
    you to do so.
        I know today's hearing is also a little bit tricky. It is a
    little bit tricky because as someone with family members in the
    military, veterans in my family, all around the community, I
    understand that veterans do oftentimes have and enjoy owning
    firearms. We also know the incredibly sobering statistics
    around veteran mental health and veteran suicide. Our job on
    this committee is not to enter into the hot button political
    topics of the day but to figure out how to best take care of
    our veterans.
        These statistics are truly sobering. Today, the most at-
    risk group in the entire country for death by suicide are White
    men over 50 who served in the military and own a firearm.
        Seventy-three percent of veteran suicides involve firearms.
    We also know that death by firearm is the most lethal common
    method of suicide, and male veterans are 41 percent more likely
    to use a firearm in suicide attempts than nonveterans, and
    female veterans are 39 percent more likely to use a firearm in
    suicide than nonveterans.
        This is something we have to continue to be aware of and
    work on this committee. In fact, on Tuesday, Senator Blumenthal
    asked incoming VA Secretary Doug Collins in his confirmation
    hearing if he would commit to find ways to reduce firearm
    suicides by veterans. Doug Collins said, quote, I will look to
    fix anything that takes the lives of our veterans.
        That means we have to talk about it too. We have to lessen
    the very real stigma around seeking mental health. I told you
    this is tricky. We know veterans want to enjoy owning firearms.
    We do not want them to not seek care out of a fear that they
    will lose access to that firearm. At the same time, we cannot
    talk about death by suicide with these statistics without
    talking about the firearms themselves.
        I understand, I empathize with our veterans and others who
    feel there is an unfairness to the current system. We have to
    be willing to talk about this in a way of where the rubber
    meets the road.
        We are talking about a very specific subset of veterans--
    veterans who have gone in for medical care who have been
    diagnosed with conditions such as schizophrenia, Alzheimer's,
    dementia, other conditions severe enough that they are no
    longer able to handle their own affairs.
        In fact, we have a 2018 study by Swanson that found that
    veterans with a fiduciary are, quote, at significantly higher
    risk of suicide compared to other veterans.
        We are not just talking about veterans who are more at risk
    for suicide than the general population. We are talking about a
    population within the veterans that is at a significantly
    greater risk for suicide. Seventeen veterans right now, 17
    veterans a day, are dying by suicide. We cannot ignore these
    facts and these studies.
        The chairman and I joked about this for a minute
    beforehand, and we do not need another study papering the wall
    of the VA. This is worth our attention and worth finding out
    exactly what is going on, because in this situation we are in
    today, we are finding ourselves, I fear, too much talking about
    the politics and not the policy. I want to make this a little
    more concrete as we step into it.
        What happens if you are a veteran in Louisville, Kentucky,
    how does the rubber meet the road? How is this going to impact
    you? The reality is, if you are a veteran going in for
    healthcare--and it is not by going to a mental health
    appointment. If you are going in to get this determination and
    you are going in for mental healthcare as a veteran, that is
    not how you end up here.
        A veteran who goes in for mental health, for schizophrenia,
    for Alzheimer's, for Post-Traumatic Stress Disorder (PTSD), for
    any of the things we have talked about, that is now how you end
    up here in the situation we are discussing today.
        You can be found not to be competent in a medical
    proceeding, but this only kicks in after you apply for a
    disability benefit because of that condition. This happens when
    the vet applies for benefits.
        As part of the benefit application process then, the VA
    records and compiles the medical evidence. This is the first
    step.
        What happens, you go in, there is a person who administers
    a disability benefits questionnaire that the veteran community
    knows as the DBQ. It can indicate that a veteran may require--
    not shall--may require a fiduciary. Then there is a second
    layer of review that kicks in, and the initial findings are
    reviewed by claims processors trained to evaluate this medical
    evidence.
        If there is enough medical evidence to get the claims
    processor to determine that they cannot manage their own
    affairs, then the file goes to the fiduciary program. It is
    during that process that the VA is required by law to notify
    veterans of the proposed determination with respect to their
    competency.
        You have already had a layer of review, then it goes to
    another layer of review and another layer of review, which will
    notify you that there is a potential determination of your
    competency.
        At any point in this process, after you have been notified
    or before, you can actually offer additional or contrary
    evidence. You can appeal the VA's decisions. In fact, there are
    at least six avenues for appeal. On the chart behind me you can
    see through these.
        We are happy to talk about ways with the majority, if we
    can make these notices and appeals more accessible to vets,
    more accessible to them to figure out how they can get through
    this process. Again, we want to make sure we are taking care of
    our veterans.
        Once this determine of incompetency has been made, there
    have been notices for contrary evidence, it is gone through
    several layers of review, then you are determined to be
    incompetent to handle your own affairs. The VA complies with
    the Administrative Procedures Act, the NICS Improvement
    Amendments Act, and the 21st Century Cures Act in their
    notifications to veterans about the ramifications of this
    decision.
        That is when you get reported to NICS.
        It is my understanding, however, that even if we take away
    the notification to NICS, that does not automatically give you
    the right to own a firearm. You have already been deemed
    incompetent to handle your affairs, you have already had a
    condition serious enough you cannot handle your own affairs,
    and you are still incompetent under other laws and are unable
    to own a firearm.
        This prohibits the notification to NICS, which then the
    practical effect of that is you are unable to buy a new
    firearm. Has nothing to do with existing firearms, which when
    you get into the depths of this--and we were talking about this
    yesterday, Mr. Chairman--your fiduciary might keep you from
    buying that firearm anyway, because they are in control of your
    money and can determine how your money is spent because you
    have applied for this disability benefit after you have gotten
    your care.
        Let us take a step back and look at this underlying
    process. I will readily admit the process can be frustrating,
    it can be confusing, and maybe we need to do some work on this
    to better protect our veterans. There is always room for
    improvement.
        I think we can point out some fault lines in the current
    process, and I know that there are veterans who feel this
    process is failing them.
        Those are fair and perhaps essential questions that we
    should ask about the fiduciary program right now, and we do not
    always have the firm evidence to answer.
        I wanted to kind of set the stage today, say that no matter
    what the issue is, we here on the minority side stand ready to
    work with the majority to ensure the care of our veterans, to
    make sure that they are getting the care they need, to reduce
    that number so that veterans are no longer the most at-risk
    group for suicide in our entire country, and to do the work of
    this committee which is, again, to take care of them and keep
    them safe.
        Mr. Chairman, I look forward to doing that with you, and I
    look forward to today's hearing.
        Mr. Luttrell. Thank you, Ranking Member.
        I ask unanimous consent for noncommittee members to
    participate. In accordance with committee rules, I ask
    unanimous consent that the following members be permitted to
    participate in today's subcommittee hearing: Representative Van
    Orden of Wisconsin and Representative Mr. Eli Crane from
    Arizona.
        Without objection, so ordered.
        Today's panels include witnesses from Congressional
    Research Service (CRS) as well as veteran advocates. Our lead
    witness from Congressional Research Service is Dr. Jordan B.
    Cohen, analyst in firearms policy. Welcome, sir.
        Dr. Cohen is joined by Dr. Scott Szymendera--did I nail it?
        Dr. Szymendera. Yes, close enough. Szymendera.
        Mr. Luttrell. Szymendera. Yes, potato, tomato. Sorry,
    buddy--analyst in disability policy in Congressional Research
    Services.
        Today's panels also include Mr. James McCormick, Past
    National Commander of the Military Order of the Purple Heart.
    Welcome.
        Dr. Wayne Reynolds, National Treasurer for Vietnam Veterans
    of America. Sir, welcome again.
        Ms. Nancy Springer, Associate Director, National
    Legislative Service at Veterans of Foreign Wars (VFW) of the
    United States. Welcome, ma'am.
        Master Sergeant Michael ``Top'' Washington, U.S. Marine
    Corps, retired, of the Everytown Veterans Advisory Council.
    Welcome, sir.
        Thank you all for your service.
        I ask that the witnesses on our panel please stand and
    raise your right hand.
        [Witnesses sworn.]
        Mr. Luttrell. Thank you. Let the record reflect that the
    witnesses have answered in the affirmative.
        Dr. Cohen, sir, you are now recognized for 5 minutes to
    deliver your opening statement on behalf of the Congressional
    Research Service.

                       STATEMENT OF JORDAN COHEN

        Dr. Cohen. Chairman Luttrell, Ranking Member McGarvey, and
    distinguished members of the committee, my name is Jordan
    Cohen, and I am a CRS analyst in firearms policy. Thank you
    very much for the opportunity to testify before the
    subcommittee today. I will summarize my formal written
    statement with these remarks, and I will focus on the
    Department of Veterans Affairs' reporting requirements for the
    National Instant Criminal Background Check System, otherwise
    known as NICS.
        Joining me is my colleague, Scott Szymendera, and we will
    be available to answer your questions.
        NICS is a national name-check system for Federal firearms
    licensees, otherwise known as FFLs. It is used to confirm that
    a person is not prohibited from legally buying, selling, or
    possessing a firearm.
        Section 102 of the Brady Handgun Violence Prevention Act of
    1993 requires all FFLs to request a background check through
    NICS on prospective buyers before completing a firearms
    transfer.
        NICS reporting refers to the process for Federal, State,
    local, and Tribal law enforcement departments and agencies to
    report persons ineligible, according to Federal law, to own a
    firearm to NICS.
        That Federal law is 18 U.S.C. 922(g), and it lists the nine
    classes of people who cannot buy, sell, or possess a firearm.
    These classes include, but are not limited to, felons in
    possession, persons convicted of misdemeanor crimes of domestic
    violence, unauthorized immigrants and nonimmigrant visitors,
    people who have renounced their U.S. citizenship, and persons
    that are, quote, adjudicated as a mental defective, end quote.
        The class ``persons that are adjudicated as a mental
    defective'' does not require an order or finding from a judge,
    magistrate, or other judicial authority to be added to NICS.
        Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
    regulation 27 CFR, part 478.11 notes that this determination
    can be made by a court, board, commission, or other lawful
    authority, and it includes persons who lack the mental capacity
    to contract or manage their own affairs.
        Under the VA regulations, the VA has the authority to
    determine if a beneficiary in a VA program is mentally
    incompetent. The VA's regulations provide the following
    definition of mental incompetency: Quote, A mentally
    incompetent person is one who because of injury or disease
    lacks the mental capacity to contract or to manage their own
    affairs, including disbursement of funds without limitation end
    quote.
        Thus, any person determined by the agency to be mentally
    incompetent because they need a fiduciary to receive disability
    benefits payments would, in turn, be reported to NICS because
    they would be, quote, adjudicated as a mental defective.
        This determination of mental incompetency by the VA is made
    without any order from a court or judge or finding that the
    veteran is a danger to themselves or others.
        At the end of 2023, there was 270,851 active entries in
    NICS submitted by Federal agencies for having been, quote,
    adjudicated as a mental defective. Of these, 264,893, or 97.8
    percent, were submitted by the VA, though not necessarily all
    were because of the need for a fiduciary to manage their
    financial affairs.
        For veterans appealing the mental incompetency
    determination, section 101(c)(2)(A) of the NICS Improvement
    Amendments Act requires that each Federal department or agency
    that makes mental health adjudications or commitments to mental
    institutions establish processes in which reported individuals
    can apply for relief from the aforementioned disability.
        Beneficiaries requesting relief, though, are not entitled
    to the benefit of the doubt in the evaluation of a request for
    relief. The policy of the VA is to deny a request for relief if
    evidence shows the beneficiary would be a danger to themselves
    or others if relief were granted.
        The VA must grant relief if clear and convincing evidence
    shows that, one, this beneficiary is not likely to act in a
    manner dangerous to the public, and two, that granting relief
    will not be contrary to the public interest.
        A provision in the Consolidated Appropriations Act of 2024
    prohibits the VA from expending any appropriated funds in FY
    2024 to report any person to NICS based on mental incompetency
    without, quote, an order or finding from a judge, magistrate,
    or other judicial authority of competent jurisdiction that the
    beneficiary is a danger to themselves or others, end quote.
        This provision was extended by the two continuing
    resolutions enacted in 2024, and it will expire on March 14th,
    2025, unless extended through additional legislation.
        In addition, this provision does not require removal of
    names that are already reported to NICS.
        This concludes my brief remarks. Thank you for the
    opportunity to testify, and I look forward to your questions.

        [The Prepared Statement Of Jordan Cohen Appears In The
    Appendix]

        Mr. Luttrell. Thank you, sir. The written statement of Dr.
    Cohen will be entered into the hearing record.
        Mr. McCormick, sir, you are now recognized for 5 minutes.

                      STATEMENT OF JAMES MCCORMICK

        Mr. McCormick. Thank you very much.
        Chairman Luttrell, Ranking Member McGarvey, and esteemed
    members of the committee, thank you for the opportunity to
    discuss a critical issue that impacts our veterans: the
    constitutional violations within the Veterans Affairs Fiduciary
    Program related to reporting of veterans to the National
    Instant Criminal Background Check System.
        You know, our President just gave an inauguration speech
    where he stated that we need to have a commonsense revolution.
    I would say that this would be one of those areas that I hope
    that reaches his desk, because this is not only a matter of
    common sense, it is also a matter of due process.
        What part of the right of the people to keep and bear arms
    shall not be infringed do bureaucrats not understand?
        You know, I listen to Members of Congress rale about due
    process on many other areas but not for veterans. This is truly
    a due process issue.
        The very people who serve, bleed, and in many cases die for
    the rights of every other citizen are denied this basic right.
        This process allows veterans to lose their Second Amendment
    rights without due process and based on administrative
    processes and decisions of policy, not due process and
    definitely not constitutional law.
        It goes deeper than that. There are other violations
    involved. The First Amendment, veterans may avoid seeking VA
    benefits or mental health care due to fears of being reported,
    infringing on their right to petition the government.
        The Second Amendment we are talking about. You can strip a
    veteran of their gun rights without basic due process, and that
    is for any citizen without a DD214.
        The Fourth Amendment, reporting veterans without judicial
    oversight violates their privacy acts.
        The Fifth Amendment, veterans lose their rights without due
    process.
        14th Amendment, veterans are treated unequally, lacking the
    same protection as nonveterans.
        These violations erode trust and fail to help our veterans,
    contributing to the stigma that discourages them from seeking
    necessary help. This fear can be devastating, exacerbating, and
    it also aggravates suicide rates.
        The current system does not effectively address the mental
    health challenges veterans face, nor does it reduce the
    alarming suicide rates.
        Why should veterans be punished for seeking help? We are
    not a substandard group of citizens. We deserve the same rights
    and the due process as any other citizen in America.
        My family has a long history of service. My grandfather was
    wounded in World War II. His brother was killed in Korea. My
    father was wounded twice in Vietnam. He died at 52 years of age
    of cancer related to Agent Orange. I served in two combat
    theaters of operation, wounded multiple times, and I gave you
    two of my sons to serve this country, and both of them served
    in combat.
        We have sacrificed, yet we are denied the basic fairness of
    due process and constitutional rights afforded to nonveterans
    when it comes to this.
        I urge this committee to act swiftly to correct these
    violations and restore trust in our system so that these
    veterans will actually seek help, because they are worried
    about losing their rights or being stigmatized as being some
    kind of a crazy maniac that cannot be trusted with a weapon
    when just a few months before, in some cases, they were
    patrolling the streets of Afghanistan and Iraq with grenades
    and rifles and everything else.
        We have to do better.
        Last, to my fellow veterans and your family members, do not
    let the fear of losing your constitutional rights keep you from
    seeking help when you need it. We have your six. If you are a
    veteran or you know a veteran that is in crisis, I encourage
    you, I implore you, to reach out for help. Support is available
    24/7. Simply dial 988 and press 1, or text 838255.
        I thank you for your time, and I welcome your questions.

        [The Prepared Statement Of James McCormick Appears In The
    Appendix]

        Mr. Luttrell. Thank you, Mr. McCormick. The written
    statement will be entered into the hearing record.
        Dr. Reynolds, sir, you are now recognized for 5 minutes.

                      STATEMENT OF WAYNE REYNOLDS

        Dr. Reynolds. Chairman Luttrell, Ranking Member, and
    distinguished members of this panel, I feel so humble to be
    able to sit here and speak to you. I am just a poor country boy
    from Alabama. I am Dr. Reynolds, but my Ph.D. is in statistics.
    My son is a physician. I am also a practicing nurse. I became a
    nurse after I retired as a school superintendent. I am 78 years
    old.
        In Vietnam, I was a combat medic on a helicopter. I have
    dealt with tragedy, trauma, and death for more than any human
    being should have.
        When I finished my education and career, I went and I
    became an Emergency Room (ER) trauma nurse because I wanted to
    treat people and care about people.
        I am here representing a myriad of Vietnam veterans and age
    groups over 50. I am 78, and I want to tell you that we are
    being treated improperly.
        I heard about all the steps that VA goes through. I can
    tell you that is a farce. Ask any veteran who has gone through
    the myriad of problems just to get a mental disability. It is
    horrendous. The older you are, the harder it is to get. Even
    with the presumptives that you have got.
        Today I want to bring you my professional expertise but
    also my personal story, a story shared by thousands of
    veterans, to shed light on the injustice perpetrated on the VA
    Fiduciary Program and its unconstitutional impact on all
    veterans' lives.
        Specifically, I want to highlight the program's flaws,
    flawed practice of linking financial incompetency with
    dangerous and devastating consequences it can have on veterans'
    lives and livelihood.
        Under the VA Fiduciary Program, a veteran can be deemed
    mentally incompetent if it determines he cannot manage its
    financial programs. Does a millionaire be less threatening than
    a person of poverty?
        It is a gross injustice, and it is a bias against people of
    lower income. I came from a family of lower income, and that is
    not their fault. I am the oldest of 12 children. I grew up in
    poverty. I happened to achieve and was fortunate. I got my
    achievement because I was in the Army, and I went and used the
    GI Bill to finish my degree.
        Determination is almost often made without judicial
    oversight, without medical oversight. Can I imagine me having,
    as a nurse, a technician, a clerk, the person that takes the
    people into the Operating Room (OR)--into the ER, determine
    whether they get medical care or not?
        That is ridiculous, and that is what we are doing. We are
    allowing VA clerks to make important decisions that affects
    lives perpetually.
        I spent decades working in education and finance. As a
    professional in these fields I can unequivocally say the
    financial struggles of mismanagement do not correlate--
    statistically--they do not correlate with any propensity for
    violence or dangerous behavior.
        Poor people or people with economic--are not violent. That
    is a terrible thing to put on our society and certainly I do
    not agree. It is unfair and unconstitutional.
        Allow me to speak about my personal experience. I returned
    from Vietnam in 1969 as a 21-year-old mature person, I guess,
    who would have seen hundreds of deaths. When we picked them up
    on the helicopter, we brought people back in pieces. I worked
    in a hospital for sometime, and it was devastating.
        I did not have any money. I relied on the GI Bill when I
    came back to University of Georgia to pursue my degree. I did
    not have any money. I took part-time jobs working in the
    library.
        If somebody had looked at my financial situation and
    reported me to this, as this agency does, I could never have
    gotten a job in education. I could never--because in Alabama, I
    am on the State board--elected State Board of Education in
    Alabama. We insist on a very stringent background search for
    everybody we hire. We would not hire me if I had that blemish
    on my record.
        You see, my life works have been in education and finance,
    and if I had been reported to the NICS, I would not have had
    the opportunities I have had.
        I would just restate the instance that we have had before.
    The amendments that we are violating, the personal freedom that
    we are violating, and the due process rights of humanity are
    being violated, and we need to readdress that.
        Thank you very much, Mr. Chairman.

        [The Prepared Statement Of Wayne Reynolds Appears In The
    Appendix]

        Mr. Luttrell. Thank you, sir. The written statement of Dr.
    Reynolds will be entered into the hearing record.
        Ms. Springer, you are now recognized for 5 minutes.

                      STATEMENT OF NANCY SPRINGER

        Ms. Springer. Chairman Luttrell, Ranking Member McGarvey,
    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
    regarding this important topic.
        The VFW strongly supports protecting the constitutional
    rights of veterans assigned Department of Veterans Affairs'
    fiduciaries and preventing inappropriate assignment to the
    National Instant Criminal Background Check System, or NICS.
    However, underneath this constitutional rights issue lay a
    process that stakeholders could substantially improve to both
    safeguard veterans and ensure due process.
        Conversation with a former VA field examiner, now a VFW
    employee, yielded several actionable suggestions based on her
    experiences in the field. Accordingly, the VFW offers the
    following recommendations.
        After VA sends a veteran the proposed incompetency
    determination letter, require a second medical exam to confirm
    or refute that proposal and to assess the veteran's probability
    to cause harm. Not being able to manage one's finances does not
    necessarily imply a veteran is a danger to self or others or
    could not responsibly own and use firearms.
        Require VA field examiners to operate in two-person teams
    while conducting in-person interviews. To conduct an effective
    interview, VA field examiners must meet the veteran in his or
    her environment.
        Our VA field examiner informed us that this meeting place
    could range from a veteran's job site to a home. However, the
    homes she visited included homeless tent encampments and Skid
    Row in Los Angeles, with significant safety concerns.
        A team would enhance the examiner's personal security and
    encourage interviews in a veteran's domain, contribute to a
    more accurate assessment of the veteran's mental state and
    probability to harm self or others.
        Reassess all COVID-era fiduciary assignments. Our VA field
    examiner informed us that they routinely conducted virtual
    interviews during COVID.
        A virtual interview, while understandable during a public
    health emergency, makes it more difficult to detect vital
    verbal and nonverbal cues that are instrumental to detecting a
    mental health ailment or the telltale signs of someone likely
    to harm self or others.
        Revise all VA letters that inform veterans of VA's proposed
    fiduciary assignment. Simply and directly explain the
    significance of the fiduciary assignment, its relationship to
    NICS referral, and the veteran's appeal rights.
        Also, VA must send the letters in a timely manner to notify
    the veteran prior to the field interview. Our VA field examiner
    was often the one informing the veteran of the fiduciary
    assignment, its relationship to NICS referral, and the
    consequent restriction of firearms purchases and ownership.
        Some veterans reacted angrily when they realized the loss
    of their Second Amendment rights. In one case, a veteran placed
    a firearm on the table during the interview to intimidate the
    VA field examiner, putting her in a potentially dangerous
    situation while merely doing her job.
        As a last step, require a judicial review prior to NICS
    referral to guarantee due process before infringing on
    veterans' constitutional rights.
        However, veterans can challenge VA's proposed incompetency
    determination by requesting a hearing before VA by submitting
    additional evidence. Alternatively, veterans can petition VA
    for relief from the firearms prohibitions imposed by the law.
    Few veterans exercise these options, and the ones that do are
    rarely successful.
        According to a July 2023 congressional Research Service
    report, in Fiscal Year `22, there were 135 hearings on
    incompetency determinations, 24 of which resulted in
    competency. The same report noted that VA processed 33
    petitions of relief of firearms prohibitions but did not grant
    relief in any of these cases. However, 11 veterans who
    petitioned for relief were determined to be competent and were
    subsequently removed from NICS.
        The experiences of our VFW service officers and our former
    VA field examiner corroborate these statistics.
        In the case of the VA field examiner, her familiarity with
    the overall process allowed her to intervene and successfully
    halt inappropriate NICS referral for some beneficiaries.
    However, none of her beneficiaries have successfully appealed a
    NICS referral.
        Unfortunately because of the existing process, some of our
    VFW members are hesitant to use VA healthcare. They fear
    inadvertently making a disqualifying statement or disclosing a
    disabling condition that could ultimately prohibit their
    possession or purchase of a firearm.
        We want our members to use VA healthcare. Unfortunately,
    the stigma could unnecessarily deprive them of the earned
    benefits and compromise their health. However, the process
    changes we propose could preserve the Fiduciary Program for
    deserving beneficiaries, while simultaneously safeguarding
    veterans and preventing inappropriate NICS referrals.
        Chairman Luttrell, Ranking Member McGarvey, this concludes
    my testimony. I welcome any questions from you or members of
    the subcommittee.

        [The Prepared Statement Of Nancy Springer Appears In The
    Appendix]

        Mr. Luttrell. Thank you, ma'am. The written statement of
    Ms. Springer will be entered into the hearing record.
        Master Sergeant Washington, sir, you are now recognized for
    5 minutes.

                    STATEMENT OF MICHAEL WASHINGTON

        Mr. Washington. Thank you.
        Good afternoon, Chairman Luttrell, Ranking Member McGarvey,
    and members of the subcommittee. My name is Master Sergeant
    Michael Washington, United States Marine Corps, retired.
        I am a proud veteran, the second of four generations of
    marines and numerous other branches of the service in my
    family. I served as an infantry platoon sergeant and
    counterintelligence agent for 23 years.
        As a civilian, I spent three decades as a Seattle
    firefighter. Now I am a mental health counselor serving
    veterans and first responders, many whom are veterans
    themselves.
        Thank you for allowing me to speak with you today.
        On 14 June 2008, as I prepared to go on a fire response on
    engine 16 in Seattle, a white, government-issue Chevy Suburban
    with 2 marines in the front seat suddenly arrived at the
    station. I knew instantly that they were there to inform me
    that my son, Sergeant Michael T. Washington of Gulf Company 2nd
    Battalion 7th Marines, had been killed in action in
    Afghanistan.
        My world stopped. I did not know how to feel his loss. I
    tried to man-up as dictated by my culture. My long dormant PTSD
    and accumulation of childhood traumas, tragedies witnessed as a
    firefighter, and my four combat tours erupted like a
    psychological Mount Saint Helens.
        Rather than talk, I drank and I fought, which were
    acceptable responses in my generational and professional
    cultures. Eventually, mentally exhausted, I sought an end to
    the pain. I engaged in risky behaviors, especially riding my
    Harley-Davidson through red lights, hoping for an instant end
    to my suffering. Finally, I sought release by leaping to my
    death from a nearby bridge. Just as I was about to go over the
    railing, I heard my son's voice plain as day. It said, Dad,
    your story does not end here. You have work to do.
        I soaked in his voice and his message, and after a few
    minutes, walked off the bridge, never to return to suicidal
    ideation. I was not fixed by a long stretch, but I was no
    longer suicidal.
        Had I had access--easy access to a firearm, I would never
    have had that chance. I would not be able to do the work I do
    now to help other veterans and first responders.
        We are experiencing an epidemic of veteran suicides. More
    than 6,400 veterans died by suicide in 2022. More than 73
    percent involved firearms.
        This should be an urgent call to action to stop this
    epidemic. To do that, we must do something about access to
    firearms in moments of crisis.
        The background check system is the best tool we have to
    prevent access to a firearm, but it is only as strong as the
    information that is in it. When information is left out, people
    cannot have guns that can get them.
        For 30 years, until last March, the VA provided information
    on certain veterans not allowed to have guns under Federal law
    to the background check system with due process protections in
    place. These were veterans the VA had diagnosed with serious
    mental health disorders. Of the veterans who died by suicide in
    2022, more than 1,500 had been diagnosed with a mental health
    or substance abuse disorder.
        Last March, Congress effectively blocked the VA from
    providing this information to the background check system.
    There is now a growing number of veterans the background check
    system knows nothing about--the exact cohort at risk.
        Congress should think twice before continuing to block the
    VA like this or taking other steps to undermine this important
    tool.
        I also want to address other access interventions. Like the
    continuum of force in the military, these are also a continuum.
    Some are about creating time and space between someone in a
    crisis and a gun, secure storage in and outside the home, or
    giving the keys to gun safes and lockboxes to someone else.
    Others are about preventing access, like State-level Do-Not-
    Sell lists and Extreme Risk laws.
        Veteran suicide is a public health issue, not a political
    one. Both parties understand that. President Trump and
    President Biden both took steps to reduce veteran suicide,
    including firearm suicides. This bipartisan work must continue.
        I am humble to be of some small service to this cause, the
    cause that I am proud to say everyone in this room is dedicated
    to.
        My son gave what Abraham Lincoln called his last full
    measure of devotion to this country and what it stands for, and
    I aim to continue the fight in his name. I am and I remain at
    your service.
        Thank you again, and I look forward to your questions.

        [The Prepared Statement Of Michael Washington Appears In
    The Appendix]

        Mr. Luttrell. Thank you, sir. Master Sergeant Washington's
    statements will be entered into the record.
        We now move to questioning. I recognize myself for 5
    minutes.
        Dr. Cohen, the Supreme Court says that the government must
    have a very good reason for stripping Americans of the
    constitutional right. Does the VA--in your opinion, does the VA
    have good reasons to strip our veterans of their Second
    Amendment right?
        Dr. Cohen. When it comes to legal scholarship, I can reach
    out to one of the CRS legislative attorneys and report back,
    but----
        Mr. Luttrell. I have got you right here in front of me. It
    is all you, buddy.
        Dr. Cohen. I, in terms of legal issues, do not--it is not
    my expertise. What I can say is that the VA, since the 1990's,
    since the passage of the Brady Handgun Violence Prevention Act,
    and since the ATF recognized VA policy and VA interpretation of
    regulations regarding the NICS system to be accurate--and that
    is how the VA has done it--in many ways that could be
    considered to have been done because of either beliefs in
    underlying causes between being in the Fiduciary Program, being
    somebody who needs fiduciary to manage their disability
    benefits.
        It also could be done in terms--like, viewed as an
    automatization issue in the sense that, once the Brady Handgun
    Violence Prevention Act was passed, these agencies were not
    given unlimited funds to hire, like, something like a, quote/
    unquote, NICS reporter.
        A lot of agencies just try to make the policy as seamless
    as possible, the reporting as seamless as possible. The Fix
    NICS Act of 2018 also very much emphasized that agencies should
    do their best to automatize reporting to NICS and to kind of
    take any thought really out of it and just have a very
    systematic approach.
        Mr. Luttrell. Mr. McCormick----
        Mr. McCormick. Yes, sir.
        Mr. Luttrell [continuing]. so when it comes to the
    fiduciary process with the VA--and Mr. McGarvey and I have
    absolutely been digging in to a very deep hole trying to figure
    out at the granular level the problem set here. The waters are
    extremely muddied.
        From start to finish, can you walk me through--because we
    have, in a sense, that by the time the veteran gets to the
    fiduciary threshold, there has been a process in place that has
    picked apart every single aspect of that veteran's life, and,
    like, okay, we are here.
        My concern is and what we do not know and it is like--and
    what the ranking member said is, like, what really happens.
        Can you give me--in your opinion, is there enough--is there
    enough meat on the bone from start to finish or--because a
    veteran's rights are just as important than any other
    American's rights. The fact that this is happening and we do
    not have the processes in place that we think are there, can
    you walk me through, in your opinion, what that looks like?
        Mr. McCormick. Well, I can walk you through in my knowledge
    of seeing other people go through the process.
        Many times the information flow from the VA back to the
    veteran is not consistent. There are many veterans that are,
    you know, in there asking for assistance, whether it be for a
    mental issue or whether it be for a physical issue, and then
    they run into an issue with finances, managing their own money.
    Then they end up in a position to where, you know, they are
    reported.
        As far as this lengthy process that was just brought up in
    the beginning of this, that is the first that we have really
    seen.
        I can tell you that I have a very close, personal
    interaction with this, where a young man was placed on this
    list and inadvertently was denied a job as a police officer and
    denied the right to purchase a firearm.
        Now, that was quite a shock to that person and quite a
    shock to his dad.
        Mr. Luttrell. Did he say at any time that he was aware that
    that was going to be the circumstances of a fiduciary?
        Mr. McCormick. No, sir. He had no idea.
        Mr. Luttrell. Ms. Springer, can you back that up? When the
    veterans receive their VA notices, it seems like there is an
    inadequate explanation on exactly where they are headed. Can
    you add some amplifying information, please?
        Ms. Springer. Yes, certainly. I am referring to an actual
    proposal of incompetency letter from one of our case files.
        Mr. Luttrell. Yes, ma'am.
        Ms. Springer. I have some real data here. I will compliment
    VA in that, on the second page, though, they do have a heading
    that says how this decision could affect you. I do think VA
    could rewrite these letters just a little bit more----
        Mr. Luttrell. VA has a problem with letters going to
    veterans----
        Ms. Springer. Yes.
        Mr. Luttrell [continuing]. that it takes 5 or 6 lawyers in
    order to get through it, I got that.
        Ms. Springer. Yes.
        Mr. Luttrell. In that letter right there on that second
    page, would you read me that?
        Ms. Springer. Okay. There is a heading on the second page
    that says ``How this decision could affect you,'' and that
    decision is referring to VA considering that this person should
    be deemed incompetent and then have a fiduciary.
        It is very wordy.
        Under Federal law----
        Mr. Luttrell. Could be or will be?
        Ms. Springer. It is. Oh, could you say it again, please.
        Mr. Luttrell. Could be or will be?
        Ms. Springer. How this decision could affect you. What I am
    referring to is what is called a proposal of incompetency. That
    is one of the first steps in the process. VA is proposing to
    the veteran that you may be incompetent and you may ultimately
    get a fiduciary.
        It allows the veteran to respond to this letter within a
    60-day period.
        Mr. Luttrell. Okay. Thank you.
        Ms. Springer. Yes.
        Mr. Luttrell. Mr. McGarvey, sir, you are recognized for 5
    minutes.
        Mr. McGarvey. Thank you Mr. Chairman.
        First of all, I want to thank everyone for their service--
    your continued service to our country.
        Master Sergeant Washington, please know we are especially
    grateful to you and sorry, terribly sorry for your loss.
        I think one thing you are hearing from me and the chairman
    is we want to make sure that this process is also working for
    our veterans and that there is clear information.
        I want to also point out a couple of things here after the
    testimony that--you all correct me. We have been asking. We
    want to get this right.
        When you go through this process, through the disability
    process because of incompetency in particular, we have not
    found a single instance of a veteran who has had their firearm
    confiscated because of this issue alone.
        Just--I do think it is important for some--because we do
    not want veterans not seeking treatment under the idea that
    that might happen. It has never happened, and if we are wrong,
    please tell us when that has happened and why.
        I also want to talk a little bit about the
    constitutionality of this, only because this is the first time
    in my tenure in Washington that on the dais and on the panel I
    am the only lawyer. Every time there is always more lawyers at
    the table, and I just want to say that this provision has never
    been found to be unconstitutional.
        There has been lots of litigation around firearms, there
    are lots of think tanks, and there are lots of groups out there
    who are interested in bringing these types of lawsuits.
        While there might be different opinions on the
    constitutionality of it, the fact is that under the current law
    in the United States, it is not unconstitutional. I just want
    to clear that up as well.
        I want to talk a little bit about what goes on in the NICS
    data base currently. Dr. Cohen, for you, I just want to
    summarize.
        The VA's determinations, it is a lengthy process. By the
    time you are determined incompetent and then looking for a
    disability benefit for that incompetency, which is what we are
    talking about here today, the VA's determinations are based on
    the medical evidence of record and not arbitrary, correct?
        Dr. Cohen. Medical record does play a role in the process,
    absolutely.
        Mr. McGarvey. It is ``the'' part of the process, right?
    They are here because they have gone in for treatment, they
    have been deemed incompetent, and now they are looking for a
    disability because of that incompetence. Yes, the medical
    record plays a big part of this.
        I want to reiterate that the VA----
        Dr. Szymendera. Excuse me. Excuse me, Congressman. If I----
        Mr. McGarvey. It is my time. It is my time.
        Dr. Szymendera. Oh, please. Please, go ahead, yes.
        Mr. Luttrell. Doctor, you are not recognized.
        Dr. Szymendera. Okay.
        Mr. McGarvey. I want to reiterate that the VA did not make
    up this idea to report beneficiaries deemed mentally
    incompetent, and they are obligated to do so under the Gun
    Control Act of 1968, mentioned in your report, Dr. Cohen, and
    the Brady Act.
        What we are talking about here today on the Kennedy
    amendment does not change or repeal either one of those laws.
    Is that correct?
        Dr. Cohen. Yes, the Kennedy amendment, it does not repeal
    the Gun Control Act or the Brady Handgun----
        Mr. McGarvey. I just want to point out that when we are
    talking about this process--we are talking about protecting
    veterans, we are talking about all these sorts of things--a lot
    of this is window dressing. There are other things in play--and
    you can disagree with them--but this is what is actually
    happening and what is going on behind it.
        I have just a little bit of time left, and I want to focus
    again on the health of our veterans because what we are all
    trying to do here is do what is best for our veterans.
        Master Sergeant Washington, I want to thank you again for
    sharing your story. You talked a little bit about some of what
    happened in your own life.
        Can you elaborate on your experience with service-connected
    disabilities and how some of them--we might be able to go about
    mitigating some of those risk factors you experienced, in the
    next 36 seconds?
        Mr. Washington. Yes, sir. My experience actually was pretty
    streamlined because I think the government was in the mode of
    clearing the backlog. That is just my opinion. There was a
    backlog of PTSD claims and things like that through the VA. I
    felt that my process went fast, and it was well served, and I
    talked to a mental health professional who listened to my story
    and then gave his opinion. That is what it looked like. It
    seemed to work out pretty well in my case. I know that is not
    everybody's case.
        Mr. McGarvey. Thank you, Mr. Chairman. I yield back.
        Mr. Luttrell. Thank you, sir.
        Ms. Mace, you are recognized for 5 minutes.
        Ms. Mace. Thank you, Mr. Chairman, and honored to be here
    today serving on your committee. I was the first one here, by
    the way, so--and I want to thank everyone who is here with us
    this afternoon. Thank you for your service. Thank you for
    sharing your personal stories of pain. It is very difficult for
    me to hear that as a mom. It is very tough. I want to thank you
    all today.
        It is very clear to me the VA's definition of mentally
    incompetent has nothing to do with mental health and everything
    to do with the simple fact that veterans need help balancing
    their checkbooks.
        It is a stigma to assume veterans are dangerous or suicidal
    simply because they have a mental illness. Every veteran with a
    mental illness deserves to be treated like an individual with
    individual needs.
        We cannot make sweeping policy changes based on harmful
    generalizations about disabled veterans, and policies must be
    based on real evidence. The VA's Fiduciary Program fails to
    consider any evidence of dangerous, and it also fails to
    provide veterans with due process. We have got to correct it.
        Now, I actually think it is great that there is only one
    lawyer on this subcommittee and that we are--no offense. You
    spent a lot of time and money in law school, I am sure. I think
    it is a good thing that we have--that not everybody here is an
    attorney, that we can ask some of the basic, most commonsense
    questions about policies for our veterans. We have many
    veterans on this committee who can also get into the heart of
    it.
        Under current VA procedures, veterans' rights are stripped
    from them by purely administrative rather than judicial
    process. Under these procedures, veterans' rights are unjustly
    stripped from them, and Congress must right this wrong. We must
    also make sure that the VA is working for our vets and not
    against them.
        My first question is for Ms. Springer today. Do you think
    there may be survivors of military sexual trauma (MST) who
    hesitate to seek VA mental healthcare because of the risk that
    VA could strip them of their rights?
        Ms. Springer. Thank you for the question, Congresswoman.
        I would broaden that to actually just all veterans in
    general, our VFW members, not just specifically MST survivors
    because of the perception, whether true or not, that if they
    say the wrong thing, if they present a disability and
    condition, they could go from there to the NICS incompetency
    determination and then to a fiduciary assignment and then to
    NICS.
        Ms. Mace. My next question is for Dr. Szymendera. Is it
    difficult for veterans to prove they are not dangerous in order
    to convince the VA to remove them from the NICS list?
        Dr. Szymendera. Well, I think you have seen the statistics
    that when we get to this question of whether the veteran is a
    danger or not, that really only comes into play if the veteran
    applies--or files a petition for relief disability of which,
    according to statistics that we have seen from the VA, very few
    veterans--I mean, less than a hundred a year--do that.
        At no other point in this process, from the very beginning
    to the determination of incompetency, to all of the appeals up
    to the U.S. Court of Appeals for veterans' claims, et cetera,
    none of that addresses the issue of whether the veteran is a
    harm--potentially a harm to themselves or others.
        It is only if you file the petition for the relief of
    disability, then VA looks at a number of factors to determine
    that level of risk.
        Ms. Mace. Okay. Captain McCormick, my question for you
    today, do veterans receive due process before the VA reports
    them to NICS?
        Mr. McCormick. Absolutely not.
        Ms. Mace. What roadblocks do you veterans experience in the
    appeals process?
        Mr. McCormick. Multiple. It is a timely and it is a costly
    process that, you know, you are asking a veteran to go and
    fight to resecure the very rights that they served to defend
    and protect. You are stripping them of a constitutional right--
    that is a fact--and then you are asking them, well, you have
    got an opportunity, you can go and fight for it.
        Well, I guess we could pull you over, arrest you for
    something, and say, well, you can always fight to get your
    right of freedom back. I think that is the issue, is the level
    of fairness and the lack of due process as far as the judicial
    process. It is just ultimately unfair.
        Ms. Mace. Does it erode trust in the VA for veterans?
        Mr. McCormick. A hundred percent. A hundred percent erodes
    trust in the VA.
        Ms. Mace. Okay. Thank you, Mr. Chairman. I yield back.
        Mr. Luttrell. Yes, ma'am. Thank you, Ms. Mace.
        Ms. Dexter, you are recognized for 5 minutes.
        Ms. Dexter. Thank you, Mr. Chairman. Thank you first to you
    and Ranking Member McGarvey for having this important hearing.
    I very much appreciate it.
        To our witnesses, thank you all for your service and for
    being here. It is extremely important.
        As a former VA healthcare physician, I witnessed firsthand
    the importance of having a well-functioning system, and you
    have highlighted some of the challenges to that.
        I also witnessed the devastating impacts of access to
    firearms for veterans, many of whom were struggling with mental
    health conditions and not getting the care that they needed or
    the advice that they needed.
        The one thing that I really want to elevate from Master
    Sergeant Washington's compelling and heartfelt, heartbreaking
    testimony is that moment of time that he was given, that
    opportunity to turn back.
        What we know is that people with access to firearms, well,
    in that moment of despair, lose that opportunity to turn back.
    I take care of people in the intensive care unit. These are
    folks who have survived, and almost none of them are firearm
    victims.
        My first question, Master Sergeant Washington, is, can you
    comment on whether it would benefit veterans to ensure that
    every VA healthcare provider receives lethal means safety
    counseling training.
        Mr. Washington. Personally, I think absolutely that would
    be beneficial, just to give the information--if I understand
    your question, just counseling, right?
        Ms. Dexter. Counseling.
        Mr. Washington. Yes. To get the information that, you know,
    here is some of the risk factors, here is what is going on,
    here is what is of danger to you. Why would not anybody want to
    hear that?
        Ms. Dexter. Great.
        Mr. Washington. Why would that be harmful?
        Ms. Dexter. Thank you, Master Sergeant Washington. Would it
    also be beneficial for community care providers to receive this
    training?
        Mr. Washington. Again, I think that is--that would be a
    bedrock, just getting that information straight from the
    beginning.
        My mantra is training, safety, and accountability with
    firearms--training, safety, and accountability with firearms.
        Ms. Dexter. A hundred percent agree. Not talking about
    taking them away but making sure----
        Mr. Washington. No, ma'am.
        Ms. Dexter [continuing]. people are safe.
        Mr. Washington. Not at all.
        Ms. Dexter. Very good. In preventing veteran suicide,
    Master Sergeant Washington, as you have said, veteran suicide
    is an epidemic in this country. It is unacceptable, in my mind.
    It is a tragedy that an average or more than 17 veterans die
    per day of suicide.
        We have to do better by our veterans, and I think we are
    all in agreement on that. It will require, again, putting that
    time and space in that moment of the lowest point in someone's
    life and an action they could take.
        Based on your personal experiences, how can the VA and
    Veterans Service Organizations (VSO)s work together to provide
    veterans that time and space and make meaningful progress in
    addressing veteran suicide rates in this country?
        Mr. Washington. Well, that is a great question. I think
    part of it is what we are doing right now, having these hard
    conversations. Right now I am hearing two very opposite ideas
    of what the system looks like and what it is doing and what it
    is not doing. I appreciate that we are here having the
    conversation.
        Also my spoken testimony, we are about safety and securing
    our weapons. If somebody is in crisis, being able to turn your
    weapons over to a friend or a colleague or trusted adviser, or
    to the VFW, just getting them out of their hands so they do not
    make that permanent decision for that temporary problem. That
    is what it is all about.
        There is a number of fronts that we move forward on to
    protect our veterans, some of whom, like myself, have been in
    those dark times, and we are literally--quite literally--on a
    bridge.
        Ms. Dexter. Thank you so much.
        I just want to state that as we discuss NICS and the
    Fiduciary Program, it is really important that we remain laser-
    focused on the end goal of ensuring our veterans and their
    families are protected from harm, and really appreciate the
    testimony today.
        With that, I yield back. Thank you.
        Mr. Luttrell. Thank you, ma'am.
        Mr. Self, sir, you are recognized for 5 minutes.
        Mr. Self. Thank you, Mr. Chairman.
        I just want to make sure I am in the right hearing. We have
    heard a lot of issues here, but the memo that I was given says
    we are correcting VA's violations of veterans' due process and
    Second Amendment rights.
        Is that what this hearing is about?
        Thank you.
        Dr. Cohen, for you, are there other groups of Americans
    that have similar processes that do not constitute what most of
    us consider the constitutional high bar to take away one's
    Second Amendment rights? Are there other groups of Americans
    that have this same low bar?
        Dr. Cohen. Just clarification for my own purposes. Are you
    asking like are other----
        Mr. Self. We treat veterans one way. Is there another group
    of Americans that we treat the same way without judicial or
    medical review?
        Dr. Cohen. Right, because of 18 U.S.C. 922(g), the nine
    classes, a lot of the classes are--by definition, require some
    sort of judicial review or court order. For example, like----
        Mr. Self. The question is real simple. Is there another
    group of Americans, another class of Americans that are treated
    like our veterans? Yes or no?
        Dr. Cohen. I mean, like----
        Mr. Self. Who would like to answer that question?
        Yes, sir. Dr. Reynolds.
        Dr. Reynolds. I do not think so. I do not think so.
        Mr. Self. I suspect that is the answer. Thank you so much.
        Now----
        Dr. Reynolds. May I clarify?
        Mr. Self. No, just----
        Dr. Reynolds. Thank you, sir.
        Mr. Self. We have heard some things here about settled law.
    When was--and this may be for Dr. Cohen as well. When was the
    last time the Supreme Court ruled on this issue? The Warren
    Court?
        Dr. Cohen. As I mentioned earlier, I do not cover legal
    issues at CRS, so I cannot----
        Mr. Self. Exactly. We are in a constitutional issue here
    that we are discussing. As far as I know, the Supreme Court's
    never ruled on it.
        We need to--Dr. Cohen, if I heard your testimony right, you
    are satisfied with the legal procedure to do this. I looked at
    your written testimony. I heard your spoken testimony. You are
    satisfied, if I understand you right, that this is proper.
        Dr. Cohen. I have not given an opinion as such. The
    written--I am just straightforward saying this is how the
    process works. I am not saying the process is good, bad, or
    otherwise, just that this is what the process looks like.
        Mr. Self. I am not sure who this should go to. Probably
    Captain McCormick, I would guess. Is it true that we put--and I
    want to remind people of what the NICS is, because I heard some
    mental health issues--mental health mentioned earlier.
        This is the National Instant Criminal Background Check
    System. We need to remember what this is--criminals.
        I think, Captain McCormick, do we put veterans into this
    National Instant Criminal Background Check System with
    absolutely no evidence that they are a danger to anyone?
        Mr. McCormick. Yes, sir, you do. You also label them as a
    criminal because you put them on that list.
        Mr. Self. Thank you very much, Mr. Chairman. I yield back.
        Mr. Luttrell. Thank you, Mr. Self.
        Mr. Crane, sir, you are recognized for 5 minutes.
        Mr. Crane. Thank you, Mr. Chairman, for allowing me to
    waive onto this committee today. Thank you to you guys for
    showing up.
        Let us just get this straight right now. What is this
    hearing that we are having really about? It is really about
    whether or not unelected bureaucrats can strip away Second
    Amendment God-given rights from our veterans if they need help
    managing their finances or their assets. Is that correct?
        I think it is. All right.
        This is wrong in so many ways. What I am hearing my
    colleagues on the other side of the aisle say is that, well, we
    are concerned about veteran suicide, and so since most of them
    are committing suicide with firearms, you know, we need to have
    measures and tools to, you know, take those firearms away from
    them. That is what I am hearing.
        What about civilians that are committing suicide and using
    firearms? Are we going to also argue in this body that they
    should have their firearms and their Second Amendment rights
    taken away from them?
        I looked up fiduciary, and here is a quick summary
    definition: Someone who is legally obligated to act solely in
    the best interest of another party managing their assets or
    affairs.
        There are many people I know and I am sure many of you know
    people out there that need help managing their assets or their
    affairs. I am sorry, but I do not remember in the Constitution
    where it says if somebody needs help managing their assets or
    their affairs that they should have their Second Amendment
    rights taken away from them.
        When it comes to suicide, a lot of these individuals, a lot
    of veterans--and there is four of us on this panel right now
    that are not only veterans but we are all from the special
    operations community who I think are against this. We will tell
    you this right now.
        Many of our veterans that are struggling with PTSD and have
    some of these issues that we are talking about here today, one
    of our biggest issues is fear and trauma, because we thought we
    might lose our life or we lost our life in battle against other
    people with guns.
        If you want to increase veteran suicide, take some of these
    issues who are afraid, isolated, and alone and take away their
    ability to defend themselves. That is a really good way to
    actually increase what these guys say that they are trying to
    stop. All right?
        I want to ask you guys a question. At any point does the VA
    have to establish that a veteran is a threat to themselves or a
    danger to others when administratively reporting a veteran with
    a fiduciary to NICS, which, again, is the National Instant
    Criminal System?
        Dr. Reynolds. No.
        Dr. Szymendera. No.
        Mr. Crane. No. Okay. Thank you.
        Does having a fiduciary alone mean that someone is mentally
    incompetent or mentally deficient?
        Dr. Reynolds. No.
        Mr. McCormick. No.
        Ms. Springer. No.
        Dr. Szymendera. No, but----
        Mr. Crane. Hold on. Is there any data correlating having a
    fiduciary or being associated with increased risk of homicide
    or suicide?
        Dr. Reynolds. No.
        Ms. Springer. No.
        Mr. McCormick. No.
        Mr. Crane. Those three quick answers right there show the
    American people exactly what has been taking place here:
    violation of Second Amendment rights without due process.
        Captain McCormick, is it due process to have unelected
    bureaucrats making a designation about a veteran's mental state
    or, you know, need of a fiduciary? Is that due process, sir?
        Mr. McCormick. No, sir, it is not.
        Mr. Crane. Why do you think it is important that, you know,
    for our constitutional God-given rights to be stripped of us,
    why do you think it should be necessary to have due process,
    sir?
        Mr. McCormick. Well, so that we can ensure that that does
    not happen. If it happens to us, it might--it looks like we are
    almost in this socio class that they are testing this on
    almost. I am not trying to be--you know, have a conspiracy
    theory, but we are the only class of citizens that they do this
    to.
        Mr. Crane. Yes. Mr.--my colleague, Mr. Self, over here, I
    believe you were Special Forces, is that right, Mr. Self? Yes.
    He brought up--is there any other class of people that are
    treated this way?
        Dr. Reynolds. No.
        Mr. McCormick. No, sir.
        Mr. Crane. No. Why is it fair for veterans to be treated
    this way?
        Dr. Reynolds. It is not.
        Mr. McCormick. It is unfair.
        Mr. Crane. How many veterans have lost their Second
    Amendment rights, to your knowledge, Mr. McCormick, because of
    these, you know, overreaching VA regulations?
        Mr. McCormick. I think the number was just over 270,000,
    sir.
        Mr. Crane. Yes. That is what I saw as well. That is why--
    this is my bill--H.R. 496, that would not only stop the VA from
    doing this in the future, but would restore the God-given
    constitutional rights to these veterans. We need to get--we
    need to get behind this.
        I hope my colleagues on the other side of the aisle, many
    of them who are not veterans, would take it maybe from the
    veterans up here who are saying, hey, this is not the way to do
    it.
        Mr. Washington, God bless you, sir. Thank you for your
    service. I am dearly sorry for the loss of your son. I mean
    that.
        Mr. Washington himself said, when he was feeling suicidal,
    what did he say? He was running red lights on his motorcycle
    hoping that someone would end it quickly or he was thinking
    about jumping off a bridge.
        Let us be really clear in here right now. If we are going
    to have tough conversations, let us have tough conversations.
    There are numerous, countless ways to commit suicide. Taking
    firearms and constitutional rights from veterans away is not
    going to help. It is actually going to hurt our veteran
    community.
        Thank you. I yield back.
        Dr. Reynolds. Thank you.
        Mr. Luttrell. Thank you, Mr. Crane.
        Dr. Morrison, you are recognized for 5 minutes.
        Ms. Morrison. Thank you, Mr. Chair.
        Thank you to the witnesses both for your service and for
    being with us today to talk about this important issue.
        I am a physician by training, and my husband is an Army
    combat veteran, a former Army Ranger. Veteran suicide is an
    issue that concerns me deeply and greatly.
        I am genuinely interested--and I apologize that I had to
    step away to another hearing--but I am genuinely interested in
    hearing from each of you, if there is time, what is the single
    biggest, most important thing that Congress could do to
    decrease veteran suicide?
        Dr. Reynolds. Can I comment?
        Ms. Morrison. Please.
        Dr. Reynolds. Create more efficiency in the VA for treating
    the problems we have medically. You are a physician. I am a
    nurse. You did not hear that, you were not here. I can tell
    you, I am a professional educator, I am a statistician. You do
    not deal with the problems at the root level, you drive people
    to suicide.
        I am--in 1993, I faced the intention of committing suicide
    by taking Seconal. Because of my relationship, I got it. I got
    300 Seconals from my friends.
        Suicide and weapons are tangential but not the problem. I
    took 25 years to get my disability. I have been all the way to
    Federal--to courts here in Washington, a lot--and a lot because
    of my ability to be politically and socially astute and get my
    way.
        Veterans are ignored. Veterans are suffering. They are--
    people say to me, thank you for your service, but they do not
    act it. The bureaucracy that exists in veterans, and the idea
    that a clerk may--the testimony was made earlier that, yes,
    medical testimony goes into the determination, but a medical
    person does not do it. Nobody with psychological training does
    it.
        That is the error of this whole thing. We are turning it
    over to inept, ill-trained bureaucrats, and I resent that. As a
    combat medic, it is stupid.
        Ms. Morrison. Thank you, sir.
        Others.
        Mr. McCormick. I would just echo with what he said. Again,
    when you talk about the meaning of this whole hearing, it is
    about due process. You are stripping these veterans of their
    dignity. You are stripping them of their right to their Second
    Amendment right that they served to protect and defend. That is
    not helping at all. That is hurting more than it is helping.
        You are preventing them from getting jobs. My own son
    cannot--you know, he had a job that he was supposed to become a
    police officer. Now he cannot become a police officer. Why is
    that? Well, because he went to combat, served this country, he
    had some problems and he came back and he got some counseling.
        Again, the stigmatization, the over-stigmatization that we
    are all unstable, crazy, and all of these other things that I
    have heard since I have returned from my combat tours in `04,
    `05, `90, `91, and we can just go down the pike, has always
    been, are you okay, are you okay, just because I get upset or
    just because we happen to disagree on something.
        We are not unstable. We are okay. We just need to be
    treated like every other citizen in this country. My God, I got
    shot three times in combat fighting for this country. You know,
    for me to come back and for you to even entertain the thought
    of taking away my constitutional freedom, that is not common
    sense. That is not right. We need to fix this.
        Ms. Morrison. Thank you, sir.
        Other ideas for what Congress could do to decrease veteran
    suicide?
        Ms. Springer. We favor overhauling this process. In my
    opening statement, we would include a medical screening as part
    of this process to determine the veteran's propensity to harm
    self or others and a judicial review before NICS assignment.
        I have two components. We have control over the process,
    because underlying the constitutional rights issue is a
    process, and a process can be improved and that is what we
    propose to improve it is have a medical component, make sure
    that person, as much as you can, is not a danger to self or
    others, and before a NICS assignment have a judicial review,
    and define all those terms, define how this would go in
    statute.
        Ms. Morrison. Thank you.
        Mr. Washington.
        Mr. Washington. I think, in my opinion--I work with law
    enforcement first responders as well as veterans, and it really
    is about changing that stigma about mental health and seeking
    mental health counseling.
        We are starting to make inroads. We are--it is a giant
    super tanker that we are trying to turn in a different
    direction. That is slowly happening. It is not moving as fast.
    I know results are not the same across the board, but we keep
    fighting that fight in the general sense.
        Ms. Morrison. Thank you, sir. Thank you again for your
    service.
        I yield my time, Mr. Chair.
        Mr. Luttrell. Thank you, ma'am.
        Mr. Van Orden, sir, 5 minutes.
        Mr. Van Orden. Thank you, Mr. Chairman.
        Dr. Cohen, is the Veterans Affairs Administration a law
    enforcement agency?
        Dr. Cohen. No.
        Mr. Van Orden. Okay. Good, we cleared that up.
        I have had--with the passing of Senior Chief Mike Day, I
    have had 21 of my friends commit suicide, 21 of them. Those are
    all Navy SEALs. You can read about them. They all died because
    of spiritual wounds that they received by serving our country.
        Dr. Reynolds, you are right, the problem is we are not
    treating the root cause. Mr. Crane is right.
        Dr. Reynolds. Thank you.
        Mr. Van Orden. You are welcome. Keith is right. Everybody
    over here when we are talking about this, this issue, is
    correct when they are saying we are not addressing the problem,
    that we need efficiencies in the VA.
        I want to read something to you. ``The sacred rights of
    mankind are not to be rummaged for among old parchments or
    musty records. They are written, as with a sunbeam, in the
    whole volume of human nature, by the hand of the divinity
    itself; and can never be erased or obscured by mortal power.''
        Alexander Hamilton wrote that in 1775, and this is what he
    is saying. He is saying that either you believe that our
    constitutional rights are given to us by God and simply
    articulated to us in the Constitution or you do not.
        If you believe that to be true, that makes them immutable.
    If something is immutable, it cannot be erased. It cannot be
    erased by the hand of man. It could only be erased by the hand
    of God.
        What, unfortunately, is taking place is that the Veterans
    Affairs Administration is essentially playing God because they
    are trying to remove something that is immutable. Words have
    meaning. Our country is based on this document, and our country
    is nothing without this document. We are not.
        Mr. McGarvey, who I respect tremendously, I just got to
    tell you something. When you say the--you know, the medical
    record is the one thing. Now, we have got a doctor here.
    Morgan, you were a corpsman, were not you, before? Okay. We are
    both medics, right?
        When you write--when you see a patient, you write something
    called a SOAP note. The S in the SOAP note stands for
    subjective. Then it is objective, then it is assessment and
    plan.
        Every single one of these medical records that we are
    looking at, the first thing in there is a subjective view by
    the healthcare provider about the person. If it is subjective,
    it cannot be objective because that is the next line in the
    SOAP note.
        When we look at that document, a medical record written by
    a human hand, it is subjective and it is not immutable.
    Philosophically, we either have to say we are going to treat
    our veterans like the apex of creation that they are and
    respect them or we are not. I am not willing to take away a
    veteran's right.
        We fought to defend the Constitution of the United States
    against all enemies, foreign and domestic. We did not fight to
    have a bureaucrat be able to subjectively remove our
    constitutional rights.
        Dr. Reynolds. Thank you.
        Mr. Van Orden. You are welcome, sir, and thank you for your
    service.
        Master Sergeant Washington, my wife and I, Sara Jane, lost
    our sweet Sydney last year, and I know what it means to lose a
    child. There is no darkness at the end of that tunnel. I am
    very thankful that your son spoke to you on that bridge.
        We do have to understand and we have to think globally
    about this and know that we are going to lose more veterans by
    degrading them, by treating us like children, than we will from
    them committing suicide with a firearm.
        Sir, you have my deepest condolences, and I thank you for
    your son's sacrifice and for your service.
        With that, I yield back.
        Mr. Luttrell. Thank you, sir.
        Mr. Bergman, sir, you are recognized for 5 minutes.
        Mr. Bergman. Thank you, Mr. Chairman.
        Well, in listening, I do not know there is anything else to
    be said, unless you want to change small dog to puppy or happy
    to glad and pick pepper from fly manure. In the end, you get
    two piles and you cannot tell which is which.
        How many people are left to talk, Mr. Chairman?
        Mr. Luttrell. I would say we will possibly do a second
    round.
        Mr. Bergman. Okay. All right. Well, the point is, just as a
    data point, sometimes this microphone is used to put out our
    message in such a way that it is not exactly adding to the goal
    of helping veterans; it is adding to our social media presence
    and all that.
        I get it. You know, if we took away microphones and
    cameras, you know, and this and then, you would have a lot more
    interesting, I think, and more productive conversations, but
    that is just the bias of one of the three--and I repeat,
    three--remaining Vietnam veterans in Congress.
        I mean, as I look to my left and right here, I see, you
    know, Iraq/Afghanistan veterans who served with great honor
    under great duress. There is only three of us left from
    Vietnam, and--you know, Mike Thompson from California, Jim
    Baird from Indiana, and me.
        All that means is we have been around a long time. We saw
    in our country, when we came back, we were not welcomed back.
    We saw that the country as a whole saw the mistakes made of the
    sixties in not welcoming us back. We got it right after Desert
    Shield, Desert Storm, and after, you know, Iraqi Freedom and
    Enduring Freedom and all of that.
        We as a society with a conscience and understanding that
    everything we have comes from God, to include especially our
    rights, not bureaucrats, we have an opportunity here. As we,
    this committee, sets the framework for holding the Veterans
    Administration accountable to the higher standards necessary to
    maintain the rights and the freedoms of all of our veterans,
    because if they have them, it is going to spread out across our
    population to help others, especially family members who have
    suffered the loss as well.
        The only thing we can do in this committee is ask
    questions, set the stage, and set the momentum. It is going to
    be up to all of you in the trenches to get it done. I am--now I
    am just going to stop here, because I do not want to waste
    time.
        As a marine, I am basically frugal, some might say cheap. I
    do not waste money--yours, mine, or anybody else--and I do not
    waste ammunition.
        We have to continue to press the message that our veterans
    need every bit of assistance, not necessarily help but
    assistance to enable them to live their own productive lives,
    however much time is left.
        With that, Mr. Chairman, I am just going to yield back
    because, again, I am not saying anything that has not already
    been said.
        Mr. Luttrell. Thank you, General.
        Thank you to every one of you for coming.
        Thank you for your service, Mr. Washington. God bless you.
    I am very sorry for your loss.
        Ranking Member, you said you wanted to enter something into
    the record?
        Mr. McGarvey. Sure do. Thank you, Mr. Chairman.
        We would please ask unanimous consent to enter the
    following letter from Everytown for Gun Safety into the hearing
    record.
        Mr. Luttrell. Without objection.
        Mr. Luttrell. Thank you to all the witnesses testifying
    before us today in revealing how crucial it is to end VA's
    practice of violating the constitutional due process and Second
    Amendment rights of veterans with fiduciaries.
        With that, I yield for the ranking member, your closing
    statement, sir.
        Mr. McGarvey. Thank you, Mr. Chairman.
        Mr. Luttrell. One moment, Mr. Ranking Member, sir.
        I apologize. Mr. Crane, yes, sir.
        Mr. Crane. Mr. Chairman, can I enter my bill, H.R. 496,
    into the official record?
        Mr. Luttrell. Without objection.
        Mr. Luttrell. Mr. McGarvey, sir, you are recognized.
        Mr. McGarvey. Thank you, Mr. Chairman.
        Thank you once again, everyone, for your service, for being
    here today.
        As I said at the top of my hearing, I hope--it truly is my
    hope and my desire that we can work together to address any and
    all of the shortcomings at the VA with regards to this and any
    process which has to do with our veterans' care. For example,
    Captain McCormick, the idea that someone is falsely reported is
    something we have got to look at and how that happens.
        I know that the chairman and I have talked a lot about
    where do we get to the core of this issue. I think it is also
    worth pointing out again today that when you look at what we
    are doing, we are talking about preexisting laws. Those laws,
    like the 1968 Gun Control Act, like the Brady Law, have not
    been found unconstitutional.
        Even if passed, the law we are talking about today would
    still leave veterans with a determination of mental
    incompetency that under current law would keep them from going
    and purchasing a new firearm. It is just that this amendment
    would keep it from being reported to NICS.
        There is a lot of work that we have to do here. The effort
    requires thoughtful analysis, what the program does, what it
    does not do, what it entails, and an honest attempt to bridge
    these data gaps, and a sincere admission of policymakers what
    we know and what we do not know exactly of how the rubber meets
    the road for the veterans.
        I want to again emphasize this is about veteran safety. We
    are not just talking about all veterans. We are talking about
    veterans--a very select subset of veterans who have not only
    been deemed incompetent but are claiming a disability benefit
    because of that incompetence. This is the subsection we are
    talking about.
        The only published studies we could find--and we were
    looking for the studies and the data--show that this particular
    group is at a higher risk for suicide than the normal veteran
    population.
        I want to emphasize, Mr. Chairman, that everyone on our
    side stands ready to work with you on improving all aspects of
    the Fiduciary Program and to protect our veterans' health in a
    way that balances their need for treatment and the protection
    of their rights.
        I yield back.
        Mr. Luttrell. Thank you, sir.
        To the members, once again, thank you for your service. To
    all of my veterans who are in the committee room today, thank
    you for your service.
        We will, myself and the committee, will break this down to
    parade rest. We will find where the problem sets exist, where
    the collision points are. We will make clarifications, and we
    will move legislation to make sure that our veterans are
    treated like every other human being in this country because
    they absolutely have those rights.
        I ask unanimous consent that all members have the right--
    have 5 legislative days to revise and extend their remarks and
    include extraneous materials. Without objection, so ordered.
        Adjourned.
        [Whereupon, at 2:41 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

                                  ----------

                       Prepared Statement of Jordan Cohen

    Overview:

        Chairman Luttrell, Ranking Member McGarvey, and distinguished
    Members of the Committee, my name is Jordan Cohen, and I am a CRS
    analyst in firearms policy. Thank you very much for the opportunity to
    testify before the subcommittee. My testimony will focus on National
    Instant Criminal Background Check System (NICS) reporting requirements
    for the Department of Veterans Affairs (VA). Joining me is my colleague
    Scott Szymendera and we will both be available to answer your
    questions.
        NICS is a national namecheck system for Federal Firearms Licensees
    (FFLs). It is used to confirm that a person is not prohibited from
    legally buying, selling, or possessing a firearm.\1\ It is administered
    by the Federal Bureau of Investigation (FBI).
    ---------------------------------------------------------------------------
        \1\ FBI, ``About NICS,'' https://www.fbi.gov/how-we-can-help-you/
    more-fbi-services-and-information/nics/about-nics, accessed December
    17, 2024.
    ---------------------------------------------------------------------------
        Federal law at 18 U.S.C. 922(g) lists the nine classes of people
    (listed below) who cannot ship, transport, possess, or receive firearms
    and ammunition. The fourth class, persons ``adjudicated as a mental
    defective'' does not require an order or finding from a judge,
    magistrate, or other judicial authority of competent jurisdiction for
    this information to be added to NICS. \2\ Furthermore, ATF regulation
    27 CFR Sec.  478.11 reads: ``a determination by a court, board,
    commission, or other lawful authority that a person . . . lacks the
    mental capacity to contract or manage his own affairs.'' \3\
    ---------------------------------------------------------------------------
        \2\ Federal Bureau of Investigation, National Instant Background
    Check System: Prohibiting Categories Defined By Statute, February 2016,
    https://ucr.fbi.gov/nics/general-information/nics-index-brochure.
        \3\ 27 C.F.R. Sec.  478.11.
    ---------------------------------------------------------------------------
        Accordingly, the Department of Veterans Affairs (VA) interpreted
    this provision such that any beneficiary determined by the agency to be
    mentally incompetent because they need a fiduciary to receive benefit
    payments would, in turn, be reported to NICS in the prohibited class of
    persons ``adjudicated as a mental defective.'' While veterans
    determined by the VA to be mentally incompetent and thus reported to
    NICS have certain appellate rights, the determination of mental
    incompetency by the VA, prior to March 2024, was made without any order
    from a court or judge or finding that the veteran is a danger to
    themselves or others.\4\
    ---------------------------------------------------------------------------
        \4\ P.L. 118-42, Title IV, Section 413.
    ---------------------------------------------------------------------------
        A provision in the Consolidated Appropriations Act, 2024 (P.L. 118-
    42) prohibits the VA from expending any appropriated funds in FY 2024
    to report any person to NICS based on mental incompetency without ``an
    order or finding from a judge, magistrate, or other judicial authority
    of competent jurisdiction that the beneficiary is a danger to
    themselves or others.'' \5\ This provision was extended through March
    14, 2025 by the two continuing resolutions enacted in 2024 (P.L. 118-83
    and P.L. 118-158). Because this provision is in an annual
    appropriations bill, rather than in U.S. code, it expires on March 14,
    2025 unless extended through additional legislation. In addition, this
    provision does not require removal of names already reported to NICS.
    ---------------------------------------------------------------------------
        \5\ P.L. 118-42, Title IV, Section 413.

    ---------------------------------------------------------------------------
    NICS Reporting Requirements

        The Gun Control Act of 1968, as amended (GCA), makes it illegal for
    nine classes of persons to ship, transport, possess, or receive
    firearms and ammunition. The classes of prohibited persons under the
    GCA are

            1. persons convicted in any court of a crime punishable by
            imprisonment for a term exceeding one year;

            2. fugitives from justice;

            3. unlawful users or addicts of any controlled substance as
            defined in Section 102 of the Controlled Substances Act (21
            U.S.C. Sec. 802);

            4. persons ``adjudicated as a mental defective'' or committed
            to mental institutions;

            5. unauthorized immigrants and nonimmigrant visitors (with
            exceptions in the latter case); \6\
    ---------------------------------------------------------------------------
        \6\ Until 2011, the Bureau of Alcohol, Tobacco, Firearms, and
    Explosives (ATF) interpreted this provision to apply to any noncitizen
    whose immigration status was ``nonimmigrant alien,'' regardless of
    whether the alien had been required to obtain a visa prior to arrival
    at a port of entry. In 2011, the ATF was informed by the Department of
    Justice's Office of Legal Counsel (OLC) that the ATF interpretation was
    too broad and that the prohibition ``applies only to nonimmigrant
    aliens who must have visas to be admitted, not to all aliens with
    nonimmigrant status'' (Department of Justice, Office of Legal Counsel,
    Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act,
    35 Op. O.L.C. 171 (2011), October 28, 2011, https://www.justice.gov/d9/
    opinions/attachments/2021/02/18/2011-10-28-firearms-nonimmig-
    aliens.pdf). Under current ATF regulations at Title 27, Part 478, of
    the Code of Federal Regulations, nonimmigrants who enter the country
    validly without visas (e.g., under the Visa Waiver Program) are
    eligible to purchase firearms and ammunition. However, those
    individuals must demonstrate that they are ``present in a State with
    the intention of making a home in that State.''

    ---------------------------------------------------------------------------
            6. persons dishonorably discharged from the U.S. Armed Forces;

            7. persons who have renounced their U.S. citizenship;

            8. persons under court-ordered restraints related to harassing,
            stalking, or threatening intimate partners or children of such
            intimate partners; and

            9. persons convicted of misdemeanor crimes of domestic
            violence.\7\
    ---------------------------------------------------------------------------
        \7\ 18 U.S.C. Sec. 922(g).

        NICS is a national namecheck system for Federal Firearms Licensees
    (FFLs). It is used to confirm that a person is not prohibited from
    legally buying, selling, or possessing a firearm.\8\ It is administered
    by the Federal Bureau of Investigation (FBI). A new background check is
    initiated every time an FFL contacts NICS electronically or by
    phone.\9\ Section 102 of the Brady Handgun Violence Prevention Act of
    1993, P.L. 103-159, requires all FFLs to use NICS to conduct background
    checks on prospective buyers before completing a firearm transfer. Only
    FFLs are permitted to request a background check through NICS.\10\ NICS
    reporting refers to the process, for federal, state, local, and tribal
    law enforcement agencies, to report persons ineligible, according to
    federal law, to own a firearm to NICS. In order to purchase a firearm,
    a prospective buyer must complete a Firearms Transaction Record (ATF
    Form 4473). Using the information acquired from ATF Form 4473, NICS
    staff verify the prospective buyer's eligibility to purchase a firearm
    and issue a final ``proceed'' or ``denied'' response to the FFL. In
    some cases, NICS may issue a temporary ``delayed'' response if the
    initial NICS check reveals a record that requires more research to
    determine the prospective buyer's eligibility to possess a firearm. If
    the FFL has not received a final determination from NICS within three
    business of the ``delayed'' response, it is within the FFL's discretion
    whether or not to transfer the firearm (if state law permits the
    transfer).\11\
    ---------------------------------------------------------------------------
        \8\  FBI, ``About NICS,'' https://www.fbi.gov/how-we-can-help-you/
    more-fbi-services-and-information/nics/about-nics, accessed December
    17, 2024.
        \9\  FBI, ``Firearms Checks (NICS),'' https://www.fbi.gov/how-we-
    can-help-you/more-fbi-services-and-information/nics, accessed December
    17, 2024.
        \10\ Some states require that sales from private individuals go
    through NICS. In such cases the private seller can contract with an FFL
    to perform the NICS background check for the seller.
        \11\ ATF, A NICS DELAY, October 29, 2004, p.1, http://www.atf.gov/
    file/61086/download.

    ---------------------------------------------------------------------------
    NICS Amendments

        Two pieces of legislation have been enacted to improve the
    efficiency and frequency of NICS reporting and are relevant to VA
    reporting: the NICS Improvement Amendments Act of 2007 (NIAA: P.L. 110-
    180 ) and the Fix NICS Act of 2017 (P.L. 115-141).

    NIAA

        The NIAA was enacted after the 2007 mass shooting at Virginia Tech
    University and was meant to improve federal department and agency
    reporting to NICS as well as reporting from state, local, and tribal
    law enforcement agencies. This information included reporting
    prohibiting mental health adjudications and commitments.\12\
    Specifically, the NIAA authorizes the Attorney General to obtain
    electronic versions of information from federal agencies on persons
    disqualified from receiving firearms and requires federal agencies to,
    quarterly, provide such information to the Attorney General. It also
    requires these agencies to update, correct, modify, or remove records
    and notify the Attorney General of such actions.\13\ Furthermore,
    states must certify to the Attorney General, once every two-year
    period, that at least 90 percent of all records relevant to a
    determination of whether a person is disqualified from possessing or
    receiving a firearm have been submitted to NICS.
    ---------------------------------------------------------------------------
        \12\ The Virginia Tech school shooter was ``cleared'' by NICS to
    purchase firearms from an FFL because the shooter's prohibiting mental
    health adjudications were not made available to NICS. DOJ, BJS, NICS
    Act Record Improvement Program (NARIP), March 3, 2021, https://
    bjs.ojp.gov/programs/nics-improvement-amendments-act.
        \13\ P.L. 110-180.

    ---------------------------------------------------------------------------
    FBI NICS Appeals and Overturning

        Under the GCA, there is a provision that allows the Attorney
    General (previously, the Secretary of the Treasury) to consider
    petitions from a prohibited person for ``relief from disabilities'' and
    to have his firearms transfer and possession eligibility restored.\14\
    Since FY 1993, however, a limitation (or ``rider'') on the ATF annual
    appropriations for salaries and expenses has prohibited the expenditure
    of any appropriated funding for ATF to process such petitions from
    individuals.\15\ Conversely, under the NICS Improvement Amendments Act
    of 2007 (P.L. 110-180), any Federal agency that submits any records on
    individuals considered to be mentally incompetent and thereby
    prohibited from possessing a firearm under the GCA must provide an
    avenue of administrative relief to those individuals, so if their
    mental health or other related conditions improve, their firearms
    rights and privileges may be restored. As a condition of grant
    eligibility, states must provide similar administrative avenues of
    relief for those purposes, that is, ``disability relief.''
    ---------------------------------------------------------------------------
        \14\ 18 U.S.C. Sec. 925(c). See also Relief from Disabilities Under
    the Act, 27 C.F.R. Sec. 478.144.
        \15\ For FY 1993, see P.L. 102-393, 106 Stat. 1732 (1992). For FY
    2024, see P.L. 118-42,138 Stat. 139 (2024) and the ATF appropriation
    for salaries and expenses. It reads: ``none of the funds appropriated
    herein shall be available to investigate or act upon applications for
    relief from Federal firearms disabilities under section 925(c) of title
    18, United States Code.''

    Relief from Disability\16\
    ---------------------------------------------------------------------------
        \16\ In this context, the term disability refers to a prohibited
    person's inability to purchase or possess firearms and ammunition.

        Section 101(c)(2)(A) of the NIAA requires that each federal
    department or agency that makes mental health adjudications or
    commitments to mental institutions that would affect the ability of
    persons to ship, transport, possess, or receive firearms and
    ammunition, to establish processes in which such persons can apply for
    relief from disability. Applications for disability relief must be
    processed by federal departments and agencies within one year of
    receipt. If a federal department or agency fails to resolve an
    application for disability relief within one year for any reason,
    including a lack of appropriated funds, the application is deemed to
    have been denied without cause and subject to de novo judicial
    review.\17\ All denials of disability relief by federal departments and
    agencies are subject to judicial review by the U.S. District Court for
    the district of residence of the petitioner.
    ---------------------------------------------------------------------------
        \17\ De novo review is a standard of review used by an adjudicative
    body to rule on evidence and matters of law without giving deference to
    the findings, rulings, or conclusions of a lower-level adjudicative
    body.
    ---------------------------------------------------------------------------
        Section 101(c)(2)(B) of the NIAA provides that for persons who are
    granted relief from disability or who are subjects of mental health
    records that are prohibited from being provided to the Attorney
    General, the underlying events that were the basis for those records
    are deemed not to have occurred for the purposes of determining
    eligibility to ship, transport, possess, or receive firearms and
    ammunition.

    Petitions for Relief from Disability

        The NIAA requires the VA to allow a beneficiary determined to be
    incompetent and referred to NICS to petition for relief from
    disability. As this relief is not provided by the VA, the VA does not
    have a statutory ``duty to assist'' a beneficiary in a request for
    relief, and a beneficiary is not entitled to the ``benefit of the
    doubt'' in the evaluation of a request for relief.\18\ A denial of
    relief from disability may not be appealed to the Board of Veterans
    Appeals or U.S. Court of Appeals for Veterans Claims.\19\ The decision
    can, however, be reviewed by the U.S. District Court for the district
    of residence of the beneficiary.
    ---------------------------------------------------------------------------
        \18\ Per Title 38, Section 5303A, of the U.S. Code, the VA has a
    ``duty to assist'' claimants with their claims for benefits
    administered by the VA. Per Section 5107(b), when there is an
    ``approximate balance of positive and negative evidence regarding any
    issue material to the determination of a matter,'' the VA must give the
    ``benefit of the doubt'' to the claimant.
        \19\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
    Chapter 6, Section D, Topic 4.g, December 28, 2022, https://
    www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
    customer/locale/en-US/portal/554400000001018/content/554400000177977/
    M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
    Incompetent-Beneficiaries#4.
    ---------------------------------------------------------------------------
        The policy of the VA is to deny a request for relief if evidence
    shows the beneficiary would be a ``danger to self or others'' if relief
    were granted. The evidence must be ``clear and convincing'' to deny a
    request for relief, and according to the VA, claims processors must
    deny a request for relief from disability if any of the following is
    reflected in the beneficiary's record:

              an assessment performed by the beneficiary's primary
            mental-health physician that indicates the beneficiary would be
            a danger to self or others if VA granted the request;

              a diagnosis of mental disability with symptoms that
            include the presence of suicidal or homicidal ideations;

              a diagnosis of substance abuse with symptoms that
            would render the beneficiary a danger to self or others;

              a reputation for violence, which a claims processor
            has confirmed by personally contacting the person that cited
            the reputation;

              conviction of a felony unless the beneficiary
            presents evidence that, notwithstanding the felony conviction,
            the right to possess a firearm has been restored;

              conviction of a misdemeanor in the past five years
            for committing or attempting to commit a violent offense;

              pending felony or misdemeanor charge for committing
            or attempting to commit a violent offense (including, but not
            limited to, menacing, stalking, assault, or battery); or

              a charge for a violent offense (including, but not
            limited to, menacing, stalking, assault, or battery) that has
            not been brought to trial because a court, board, or commission
            has determined that the beneficiary lacks the mental capacity
            to proceed with a trial unless:

              competency has been restored; or

              the beneficiary has been rehabilitated through any
            procedure available under the law.\20\
    ---------------------------------------------------------------------------
        \20\ Ibid., Topic 4.i.

        If clear and convincing evidence to deny a request for relief does
    not exist, the VA must consider granting the request. The VA must grant
    relief if clear and convincing evidence ``affirmatively, substantially,
    ---------------------------------------------------------------------------
    and specifically'' shows that

          the beneficiary is not likely to act in a manner
    dangerous to the public; and

          granting relief will not be contrary to the public
    interest.\21\
    ---------------------------------------------------------------------------
        \21\ Ibid., Topic 4.j.

        In FY 2022, the VA indicated it processed 33 petitions for relief
    and did not grant relief in any of these cases.\22\
    ---------------------------------------------------------------------------
        \22\ VA data provided to CRS by the House Committee on Veterans'
    Affairs.

    ---------------------------------------------------------------------------
    Fix NICS Act

        The Fix NICS Act requires the Attorney General to establish a plan
    to ensure maximum coordination and automation of reporting to NICS and
    release a semiannual report on NICS reporting by each federal
    department or agency, and state and tribal governments. Each federal
    department or agency is required to certify that it has accurately and
    efficiently provided disqualifying records of persons prohibited from
    receiving or possession a firearm. The act also requires each
    department or agency to establish and comply with their own
    implementation plan to maximize accurate submissions. Moreover, the Fix
    NICS Act requires the Attorney General to publish names of each federal
    department or agency, and state and tribal government that failed to
    achieve compliance with an implementation plan, a description of why,
    and the types and number of records that have not been submitted.\23\
    ---------------------------------------------------------------------------
        \23\  Section 601(F) of P.L. 115-141.
    ---------------------------------------------------------------------------
        Recently, some have voiced concern about the comprehensiveness of
    NICS reporting requirements for federal departments or agencies, and
    state and tribal governments. They are concerned that it is possible
    that individuals who have court-identified risks for the perpetration
    of violence toward themselves or others may still be allowed to possess
    firearms because, for example, there is ``substantial heterogeneity in
    [state] NICS reporting requirements and lack of clarity around
    processes,'' \24\ despite the September 2022 Fix NICS Act report, which
    is the most recent, suggesting that NICS reporting was up by twenty
    percent since 2018.\25\ There have also been concerns expressed that
    government agencies as well as state, local, and tribal law enforcement
    overreport names to NICS, resulting in ``false positives'' every
    year.\26\
    ---------------------------------------------------------------------------
        \24\ Marian E. Betz, Deirdre M. Bowen, and Ali Rowhani-Rahbar, et
    al., ``State Reporting Requirements for Involuntary Holds, Court-
    Ordered Guardianship, and the US National Firearm Background Check
    System,'' Journal of the American Medical Association, vol. 4, no. 11
    (November 17, 2023).
        \25\ Department of Justice, The Department of Justice's Semiannual
    Report on the Fix NICS Act, September 2022, https://www.justice.gov/d9/
    nics_semiannual_report_september_2022.pdf.
        \26\ John R. Lott Jr, ``Background Checks Are Not The Answer To Gun
    Violence,'' New York Times, February 12, 2018, https://www.nytimes.com/
    2018/02/12/opinion/politics/background-checks-gun-violence.html.

    ---------------------------------------------------------------------------
    Department of Veterans Affairs NICS Reporting

        As described above, one of nine classes of persons prohibited by
    the GCA from shipping, transporting, receiving, or possessing firearms
    or ammunition are persons who have been ``adjudicated as a mental
    defective'' or have been committed to mental institutions.\27\ Neither
    the GCA nor the Brady Act define the term ``mental defective'' or
    provide any additional guidance on what would constitute such an
    adjudication.
    ---------------------------------------------------------------------------
        \27\ 18 U.S.C. Sec. 922(g)(4).
    ---------------------------------------------------------------------------
        The ATF's regulations implementing the Brady Act provide the
    following definition for the term ``adjudicated as a mental
    defective:''

        (a) A determination by a court, board, commission, or other lawful
    authority that a person, as a result of marked subnormal intelligence,
    or mental illness, incompetency, condition, or disease:

            (1) Is a danger to himself or to others; or

            (2) Lacks the mental capacity to contract or manage his own
            affairs.

        (b) The term shall include----

            (1) A finding of insanity by a court in a criminal case; and

            (2) Those persons found incompetent to stand trial or found not
            guilty by reason of lack of mental responsibility pursuant to
            articles 50a and 72b of the Uniform Code of Military Justice,
            10 U.S.C. 850a, 876b.\28\
    ---------------------------------------------------------------------------
        \28\  27 C.F.R. Sec. 478.11.
    ---------------------------------------------------------------------------
        Under the VA's regulations, the VA has the authority to determine
    if a beneficiary in a VA program is mentally competent or mentally
    incompetent.\29\ The VA's regulations provide the following definition
    of mental incompetency:
    ---------------------------------------------------------------------------
        \29\ 38 C.F.R. Sec. 3.353.

            A mentally incompetent person is one who because of injury or
            disease lacks the mental capacity to contract or to manage his
            or her own affairs, including disbursement of funds without
            limitation.\30\
    ---------------------------------------------------------------------------
        \30\ 38 C.F.R. Sec. 3.353(a).

        The VA employees tasked with adjudicating whether a veteran is
    financially incompetent are Veterans Service Representatives and Rating
    Veterans Services Representatives and their training does not require
    them to have legal or medical expertise.\31\
    ---------------------------------------------------------------------------
        \31\ U.S. Government Accountability Office, Testimony Before the
    Subcommittee on Disability Assistance and Memorial Affairs, Committee
    on Veterans Affairs, House of Representatives: VA Disability Benefits:
    Training for Claims Processors Needs to Be Enhanced, GAO-24-107510,
    July 23, 2024, pp. 3-4, https://www.gao.gov/assets/gao-24-107510.pdf.
    ---------------------------------------------------------------------------
        Generally, if the VA determines that a beneficiary is incompetent,
    that person's benefits will be paid on his or her behalf to a third-
    party fiduciary.\32\ The VA can later reverse a determination of
    incompetency based on evidence of the beneficiary's competency.
    ---------------------------------------------------------------------------
        \32\ For additional information on benefit payments to a fiduciary,
    see the VA website at https://www.benefits.va.gov/fiduciary/.
    ---------------------------------------------------------------------------
        The VA's regulations require that no determination as to a
    beneficiary's competency be made unless the ``medical evidence is
    clear, convincing, and leaves no doubt as to the person's
    incompetency'' or there has been ``a definite expression regarding the
    question by the responsible medical authorities.'' \33\ A determination
    of incompetency must be based on all evidence of record and be
    consistent with the percentage of disability and facts related to any
    hospitalization or commitment of the person. In a case in which there
    is a reasonable doubt as to the beneficiary's competency to contract or
    manage his or her affairs, the regulations require the doubt to be
    resolved in favor of a determination of competency.\34\
    ---------------------------------------------------------------------------
        \33\  38 C.F.R. Sec. 3.353(c).
        \34\  38 C.F.R. Sec. 3.353(d).

    ---------------------------------------------------------------------------
    21st Century Cures Act Provision

        Section 14017 of the 21st Century Cures Act (P.L. 114-255) codified
    the existing due process policies and regulations of the VA regarding
    determinations of incompetency. As codified by this legislation, the VA
    may not determine that a beneficiary is incompetent unless the VA has
    provided all of the following to the beneficiary:

              notice of the proposed determination and supporting
            evidence;

              an opportunity to request a hearing;

              an opportunity to present evidence, including
            evidence from a medical professional or other person, of the
            beneficiary's ability to manage benefits paid by the VA; and

              an opportunity to be represented, including by
            counsel, at no expense to the federal government, at a hearing
            and to bring a medical professional or other person to provide
            testimony at the hearing.\35\
    ---------------------------------------------------------------------------
        \35\  38 U.S.C. Sec. 5101A.

    ---------------------------------------------------------------------------
    VA Submissions to NICS

        It is the VA's policy, subject to the limitation through March 14,
    2025, imposed by the continuing resolutions, to submit the names of all
    beneficiaries determined to be incompetent to the Attorney General for
    inclusion in NICS. \36\ This policy has been consistent since the ATF
    first promulgated its regulations implementing the Brady Act. In the
    preamble to the publication of the final rule regarding categories of
    prohibited persons, the ATF addressed a comment submitted on the Notice
    of Proposed Rulemaking by the VA regarding how the VA would interpret
    the definition of ``adjudicated as a mental defective'' as follows,
    indicating that ATF considered the VA's planned interpretation to be
    correct:
    ---------------------------------------------------------------------------
        \36\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
    Chapter 6, Section D, Topic 4.a, December 28, 2022, https://
    www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
    customer/locale/en-US/portal/554400000001018/content/554400000177977/
    M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
    Incompetent-Beneficiaries#4.

            In its comment, the U.S. Department of Veterans Affairs
            correctly interpreted the proposed definition of ``adjudicated
            as a mental defective'' to mean that any person who is found
            incompetent by the Veterans Administration under 38 CFR 3.353
            will be considered to have been adjudicated as a mental
            defective for purposes of the GCA. Section 3.353 provides that
            a mentally incompetent person is one who, because of injury or
            disease, lacks the mental capacity to contract or manage his or
            her own affairs.\37\
    ---------------------------------------------------------------------------
        \37\ ATF, ``Definitions for the Categories of Persons Prohibited
    from Receiving Firearms,'' 62 Federal Register 34637, June 27, 1997.

        As of the end of 2023, of the 270,851 active entries in NICS
    submitted by federal agencies for having been ``adjudicated as a mental
    defective'' or committed to mental institutions, 264,893 (97.8 percent)
    were submitted by the VA, though all of these were not necessarily
    because a veteran was determined mentally incompetent and needed a
    fiduciary to collect benefit payments.\38\ While state laws vary
    significantly about who is required to report an individual to
    NICS,\39\ if the appropriations rider preventing this expires without
    replacement on March 14, 2025, VA may report people to NICS without a
    court order as mental incompetency determinations for veterans are
    determined through an administrative, rather than judicial process.\40\
    ---------------------------------------------------------------------------
        \38\ FBI, Active Records in the NICS Index as of December 31, 2023,
    pp. 3-4.
        \39\ Marian E. Betz, Deirdre M. Bowen, and Ali Rowhani-Rahbar, et
    al., ``State Reporting Requirements for Involuntary Holds, Court-
    Ordered Guardianship,'' Journal of the American Medical Association
    Health Forum, vol. 4, no. 11 (November 17, 2023).
        \40\ Additionally, per a 2020 report from the GAO, ``the Veterans
    Benefits Administration reported that it provides relevant records for
    those individuals rated as ``mentally incompetent'' to manage their
    financial affairs to the NICS Indices on a monthly basis using an
    automated system.''40 This automatic reporting began occurring on a
    weekly basis in July 2020. See Department of Justice, The Department of
    Justice Semiannual Report on the FIX NICS Act--September 2022,
    September 2022, p. 29, https://www.justice.gov/d9/
    nics_semiannual_report_september_2022.pdf.
    ---------------------------------------------------------------------------
        VA policy requires that the following statement (or one with
    similar language) be included in the letter notifying a beneficiary of
    a proposed incompetency determination:

            The Brady Handgun Violence Prevention Act prohibits you from
            purchasing, possessing, receiving or transporting a firearm or
            ammunition based upon our determination that you are
            incompetent to handle your VA funds. You may be fined and/or
            imprisoned if you knowingly violate this law.

            You may apply to VA for relief of firearms prohibitions imposed
            by the law by submitting your request to the address at the top
            of this letter on the enclosed VA Form 21-4138, Statement in
            Support of Claim. VA will determine whether such relief is
            warranted.\41\
    ---------------------------------------------------------------------------
        \41\ VA, M21-1 Adjudication Procedures Manual, Part X, Subpart ii,
    Chapter 6, Section D, Topic 4.b, December 28, 2022, https://
    www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/
    customer/locale/en-US/portal/554400000001018/content/554400000177977/
    M21-1-Part-X-Subpart-ii-Chapter-6-Section-D-Processing-Awards-to-
    Incompetent-Beneficiaries#4.

    ---------------------------------------------------------------------------
    Appeals of Incompetency Determinations

        Unless a court has found the beneficiary incompetent or a guardian
    has been appointed for the beneficiary based on a court determination
    of incompetency, the VA is required to notify the beneficiary of the
    proposed incompetency determination and the right to have a hearing
    before the VA before the decision is finalized in the same manner as
    other adverse actions by the VA are subject to hearings.\42\ The
    determination of the VA that a beneficiary is incompetent can be
    appealed to the Board of Veterans Appeals, whose decisions are subject
    to judicial review by the U.S. Court of Appeals for Veterans Claims.
    The court's decisions may be appealed to the U.S. Court of Appeals for
    the Federal Circuit.
    ---------------------------------------------------------------------------
        \42\ 38 C.F.R. Sec. 3.353(e).
    ---------------------------------------------------------------------------
        In FY 2022, VA data indicates there were 135 hearings on
    incompetency determinations, 24 of which resulted in a finding of
    competency.\43\
    ---------------------------------------------------------------------------
        \43\ VA data provided to CRS by the House Committee on Veterans'
    Affairs.

    ---------------------------------------------------------------------------
    Recent Legislative Activity

    Veterans 2nd Amendment Protection Act

        In the 110th Congress, Senator Richard Burr first introduced the
    Veterans 2nd Amendment Protection Act (S. 3167). This bill would have
    provided that ``a veteran, surviving spouse, or child who is mentally
    incapacitated, deemed mentally incompetent, or experiencing an extended
    loss of consciousness shall not be considered adjudicated as a mental
    defective'' for purposes of the GCA ``without the order or finding of a
    judge, magistrate, or other judicial authority of competent
    jurisdiction that such veteran, surviving spouse, or child is a danger
    to him or herself or others.'' This legislation has been introduced in
    each subsequent Congress through the 118th. In the 118th Congress, the
    House bill was reported favorably by the House Committee on Veterans
    Affairs but was not acted on by the full House.

    Appropriations Restriction

        In the 118th Congress, the Consolidated Appropriations Act, 2024
    included language that mirrored the Veterans 2nd Amendment Protection
    Act. Sec. 413 of Title IV of the act provides that:

            None of the funds made available by this Act may be used by the
            Secretary of Veterans Affairs under section 5502 of title 38,
            United States Code, in any case arising out of the
            administration by the Secretary of laws and benefits under such
            title, to report a person who is deemed mentally incapacitated,
            mentally incompetent, or to be experiencing an extended loss of
            consciousness as a person who has been adjudicated as a mental
            defective under subsection (d)(4) or (g)(4) of section 922 of
            title 18, United States Code, without the order or finding of a
            judge, magistrate, or other judicial authority of competent
            jurisdiction that such person is a danger to himself or herself
            or others.\44\
    ---------------------------------------------------------------------------
        \44\ P.L. 118-42, Title IV, Section 413.

        This provision includes no language about removal of already-
    reported parties that were deemed mentally incompetent and reported to
    NICS under subsection (d)(4) or (g)(4) of section 18 U.S.C.
    Sec. 922.\45\
    ---------------------------------------------------------------------------
        \45\ This appropriations rider only affects NICS reporting and does
    not affect the underlying legality of an individual with a VA
    determination owning a firearm under Sec.  922 or the ATF regulation 27
    C.F.R. 478.11
    ---------------------------------------------------------------------------
        This provision was extended by the two continuing resolutions
    enacted to provide appropriations for FY 2025 (P.L. 118-83 and P.L.
    118-158) through March 14, 2025 at which point, absent the enactment of
    additional legislation, the VA will be permitted to resume its policy
    of reporting to NICS those persons it has determined to be mentally
    incompetent, regardless of any judicial finding or determination if
    they are danger to themselves or others.
                                     ______

                     Prepared Statement of James McCormick

        Mr. Chairman, Mr. Ranking Member, and distinguished Members of the
    Subcommittee, Thank you for the opportunity to present the stance as
    Past National Commanders of the Military Order of the Purple Heart and
    as a representative for MOPH on a pressing issue: the constitutional
    violations embedded in the Veterans Affairs fiduciary program's process
    of reporting veterans to the National Instant Criminal Background Check
    System, or NICS.
        The name itself is a mouthful--and the process is just as
    convoluted. Let me paint a picture for you, and you can tell me if this
    aligns with the Constitution's promise that ``the right of the people
    to keep and bear Arms, shall not be infringed.''
        But under the VA fiduciary program, a veteran may be considered
    ``mentally incompetent'' if they decide the veteran cannot manage their
    financial benefits and have a disability, how is this determined to be
    dangerous or criminal? This finding--made without judicial oversight--
    results in the veteran being reported to the NICS data base. Here is
    what that means:

          Veterans in NICS are prohibited from owning or buying
    firearms under federal law.

          This determination is often made without a hearing,
    without proper notice, and without the veteran understanding its impact
    on their Second Amendment rights.

          Financial incompetence does not necessarily mean the
    veteran poses a danger to themselves or others--the standard typically
    needed to limit gun rights.

        In simple terms, a veteran can lose a constitutionally protected
    right without due process, based solely on a bureaucratic decision
    about their ability to ``balance the books.''

        If we subjected private citizens to this process--where financial
    decisions could strip away fundamental rights with or without appeal,
    there would be national outrage.
        Let's break down the constitutional violations:

          First Amendment: Veterans who fear being flagged in NICS
    may avoid seeking VA benefits or mental health treatment, creating
    obstacles to their right to petition the government or freely
    associate.

          Second Amendment: Veterans are unjustly stripped of their
    gun rights without individualized assessments or evidence of
    dangerousness.

          Fourth Amendment: Reporting veterans without proper
    judicial oversight, sharing confidential information violates their
    privacy and protection against unreasonable searches.

          Fifth Amendment: Veterans lose their rights without due
    process.

          Fourteenth Amendment: Veterans are treated unequally
    compared to non-veterans, deprived of equal protection and fundamental
    fairness.

        The impact of these violations goes beyond legal arguments, it
    erodes trust and is a dangerous process that is NOT helping our
    veterans or rigorously evaluating them as you would any citizen without
    a DD214.
        Even more troubling, this adds to the stigma many veterans already
    face. It discourages them from seeking help. For a veteran, this can be
    devastating, contributing to the alarming suicide rates among our
    veterans. This is pushing veterans to NOT seek mental health services
    out of fear of losing their rights as citizens, the fact this process
    has gone on for decades and we see no reduction in suicides related to
    the fiduciary program, says a great deal for its lack of effectiveness.
        Suicide is a national epidemic, Mr. Chairman. Why should only
    veterans be punished for that? Are we simply used as some sub-standard
    group of citizens to test elements of social change without our
    consent. I am not pushing some conspiracy theory - merely saying that
    we treat our veterans differently than everyday citizens - we are
    willing to take away their rights and allow malicious attacks against
    their service without due process and that is not right.

        Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee,
    this program not only violates the Constitution, it undermines the
    values we claim to uphold as a nation. Where I am from, we would say,
    ``that dog don't hunt.'' My family lineage goes back to Charles
    Washington the brother of our first President George Washington, that
    is well known and easy to confirm but let us start with this. My
    grandfather served in WWII, wounded in a bombing mission over Europe,
    His brother was KIA in Korea, My Dad was wounded in Vietnam passing
    away at 52 from Cancer related to Agent Orange Exposure, I served in
    Desert Storm and Iraqi Freedom wounded in combat multiple times,
    awarded the Silver Star and 3 Bronze Stars for Valor, my wife and I
    recently gave you two of our sons who served overseas in combat
    operations. What more does my family, or any veteran must give to
    simply get the same due process and fairness as every other citizen
    gets who does not serve?

        I urge this committee to act swiftly to address these violations
    and restore trust in the system for those who have served. Finally: To
    my fellow veterans Do not let the current process keep you from seeking
    help, Vietnam Veterans of America, and Military Order of the Purple
    Heart-are going to make sure your rights, respect and fairness are not
    violated, so please not let the bureaucracy or fear of religion drive
    you from seeking help or earned benefits.
        If you or a veteran you know is in crisis, please reach out. Help
    is available 24/7 Call 988 and press 1, text 838255.
        Thank you for your time and consideration, I look forward to your
    questions.
                                     ______

                      Prepared Statement of Wayne Reynolds

        Mr. Chairman, Mr. Ranking Member, and distinguished Members of the
    Subcommittee,
        Thank you for the opportunity to testify today on behalf of Vietnam
    Veterans of America (VVA). My name is Dr. Wayne Reynolds, and I am the
    Treasurer of the VVA. I am also a Vietnam veteran, a lifelong advocate
    for veterans' rights, and a proud American who believes deeply in the
    values of our Constitution.
        Today, I bring to you not only my professional expertise but also
    my personal story--a story shared by thousands of my fellow veterans--
    to shed light on the injustices perpetuated by the VA fiduciary program
    and its unconstitutional impact on veterans' lives.
        Specifically, I want to highlight the program's flawed practice of
    linking financial incompetency with dangerousness and the devastating
    consequences this can have on veterans' rights, livelihoods, and
    dignity.

    Financial Incompetency Does Not Equal Dangerousness

        Under the VA fiduciary program, a veteran may be deemed ``mentally
    incompetent'' if the VA determines they cannot manage their financial
    benefits.
        This determination--often made without judicial oversight--triggers
    an automatic reporting of the veteran to the National Instant Criminal
    Background Check System (NICS), barring them from purchasing or owning
    firearms. The justification is that financial incompetency equates to
    dangerousness. But where is the proof?
        I've spent decades working in education and finance. As a
    professional in these fields, I can unequivocally say that financial
    struggles or mismanagement do not correlate with a propensity for
    violence or dangerous behavior.
        Financial incompetency is a bureaucratic judgment, not a
    psychological diagnosis. And yet, veterans subjected to this program
    are stripped of their Second Amendment rights without any evidence that
    they pose a threat to themselves or others.
        This is not only unfair; it is unconstitutional.

    A Personal Perspective: The Consequences of Unjust Policies

        Allow me to speak from my own experience as a 78-year-old Vietnam
    veteran. When I returned from Vietnam, I was like many of my brothers
    and sisters in arms: struggling with the invisible scars of war,
    grappling with PTSD, and trying to find my footing in a society that
    did not yet understand the complexities of mental health in veterans.
        On top of that, I faced significant financial challenges. I had
    little to no savings, and my job prospects were uncertain.
        Had the VA fiduciary program's standards been applied to me at that
    time, I could have been deemed financially incompetent. My PTSD and
    limited finances might have been used as grounds to report me to NICS,
    branding me as a potential danger and barring me from certain
    opportunities.
        This designation would have devastated my career path.
        You see, my life's work has been in education and finance--fields
    that require extensive background checks. If I had been reported to
    NICS, I likely would have been disqualified from working in those
    fields.
        The unjust stigma attached to being labeled ``mentally
    incompetent'' would have overshadowed my capabilities and aspirations.
    My contributions to society--as an educator, as a financial
    professional, and as a leader within the VVA--might never have come to
    fruition.
        But more than that, this process would have stripped me of my
    dignity. Like so many veterans, I took an oath to serve and protect
    this nation. To come home and have my rights stripped away by a
    faceless bureaucracy would have been a betrayal of the values I fought
    to defend.

    The Fiduciary Program's Constitutional Violations

        The VA fiduciary program is rife with constitutional violations:

          Second Amendment: Veterans are unjustly stripped of their
    right to bear arms based on financial assessments, not evidence of
    dangerousness.

          Fifth Amendment: Veterans lose their rights without due
    process. They are not given proper notice, hearings, or appeals before
    being reported to NICS.

          Fourteenth Amendment: Veterans are treated unequally
    compared to non-veterans, deprived of equal protection and fundamental
    fairness.

        These violations are not just legal abstractions; they have real
    and devastating consequences. They undermine trust in the VA,
    discourage veterans from seeking help, and perpetuate the stigma
    surrounding mental health and financial struggles.

    A Call to Action

        Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee,
    I urge you to act swiftly to reform the VA fiduciary program. We must
    ensure that no veteran loses their rights without due process, and we
    must decouple financial incompetency from dangerousness.
        Veterans who have served this Nation with honor deserve better than
    to be subjected to unconstitutional and dehumanizing policies.
        I close with a simple question: If we do not stand up for the
    rights of those who stood up for us, what does that say about us as a
    nation?
        Thank you for your time and attention. I look forward to your
    questions.
                                     ______

                      Prepared Statement of Nancy Springer

        Chairman Luttrell, Ranking Member McGarvey, 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 regarding this important topic.
        The VFW strongly supports protecting the Second Amendment rights of
    veterans who have fiduciaries assigned by the Department of Veterans
    Affairs (VA), and ensuring they are not unfairly referred to the
    National Instant Criminal Background Check System (NICS) without a due
    process judicial review.
        However, underneath this constitutional rights issue lays a process
    that stakeholders could substantially improve. Conversation with an
    individual who is a former VA field examiner and current VFW member
    yielded several actionable suggestions for process improvement based on
    her experiences. Accordingly, the VFW offers the following
    recommendations:

            1) After initial diagnosis, require a second medical
            examination to confirm or refute the veteran's competency and
            assess propensity for causing harm. Not being able to manage
            one's finances does not necessarily imply a veteran is a danger
            to self or others, or could not responsibly own and use
            firearms;

            2) Require VA field examiners to operate in two-person teams
            while conducting interviews in person. To conduct an effective
            interview, the VA field examiner must meet the veteran in his
            or her environment. Our VFW comrade informed us that the
            meeting place could range from a veteran's job site to a home;
            however, the homes she visited included homeless tent
            encampments and ``skid row'' areas of dubious safety. The team
            construct would enhance the examiners' personal security and
            encourage in-person interviews in the veteran's environment,
            aiding the examiners in more accurately assessing well-being
            and mental health status;

            3) Reassess all fiduciary assignments made during the COVID-19
            pandemic timeframe. Our VFW comrade informed us that the VA
            field examiners routinely conducted virtual interviews during
            that time. While understandable during a public health
            emergency, a virtual interview made it more difficult, if not
            impossible, to detect vital verbal and non-verbal cues
            indicative of either a mental health ailment or other situation
            that could contribute to a veteran endangering self or others
            due to the irresponsible use of firearms;

            4) Revise VA letters that inform veterans they require a
            fiduciary to simply and comprehensively explain the
            significance of this status and the veteran's appeal rights.
            Also, VA must send letters in a timely manner so veterans
            receive initial notification prior to a field interview. Our
            VFW comrade informed us that she was often the first one to
            inform the veteran of the relationship between fiduciary
            assignment, NICS referral, and the resulting prohibition
            against firearm ownership and purchase. Some veterans reacted
            angrily when they realized the loss of their Second Amendment
            rights. In one case, a veteran placed a firearm on the table
            between them during the interview in an attempt to intimidate
            the VA field examiner, thus putting her in a potentially
            dangerous situation while merely doing her job; and

            5) Require a judicial review prior to NICS referral to
            guarantee due process before infringing on veterans' Second
            Amendment rights.

    Background

        VA administers a fiduciary program for veterans who cannot manage
    their VA benefits for several reasons. One cause is mental
    incompetence, which is defined in 38 CFR 3.353 as, ``A mentally
    incompetent person is one who because of injury or disease lacks the
    mental capacity to contract or to manage his or her own affairs.'' VA
    bases its incompetency determinations on medical documentation from a
    variety of sources, such as a medical provider who conducted a routine,
    incidental medical or mental health examination; a compensation and
    pension medical examiner in the course of a veteran's application for
    VA disability compensation; or another VA official who determines that
    the veteran is incompetent and requires a fiduciary. After initial
    determination, VA will inform the veteran of its proposed finding of
    incompetency and initiate the fiduciary assignment process. As part of
    that process, a VA field examiner will interview the veteran to assist
    in assigning an appropriate fiduciary. Currently, VA does not order any
    additional medical or mental health examinations to determine the
    veteran's propensity for self-harm or harm to others.
        Both the Gun Control Act of 1968 (Public Law 90-618) and the Brady
    Handgun Violence Prevention Act (Public Law 103-159) prohibit a person
    ``adjudicated as a mental defective or who has been committed to a
    mental institution'' from possessing or purchasing a firearm, though
    neither law defines ``adjudicated as a mental defective.'' However, in
    its 1997 rulemaking to implement the Brady Act, the Bureau of Alcohol,
    Tobacco, Firearms and Explosives (ATF) clarified that adjudicated as a
    mental defective occurs ``if a court, board, commission or other lawful
    authority has made a determination that a person, as a result of marked
    subnormal intelligence, mental illness, incompetency, condition or
    disease is a danger to himself or others; lacks the mental capacity to
    contract or manage his own affairs; is found insane by a court in a
    criminal case; or is found incompetent to stand trial.'' In its
    comments pertaining to this rulemaking, VA interpreted ``adjudicated as
    a mental defective'' as a veteran that VA would assess as incompetent
    under 38 CFR 3.353. This regulation states that a mentally incompetent
    person is one who, because of injury or disease, lacks the mental
    capacity to contract or manage his or her own affairs. ATF agreed with
    VA's interpretation and commented that the inclusion of the term
    ``mentally incompetent'' in the definition of ``mental defective'' is
    consistent with the legislative history of the Gun Control Act.
        The Brady Act also mandated the creation of the NICS--a name check
    system managed by the Federal Bureau of Investigation (FBI) that
    licensed firearms dealers use to confirm a prospective firearms buyer's
    qualifications to purchase firearms or ammunition. In compliance with
    the Brady Act, VA refers the names of veterans with fiduciaries to NICS
    since VA categorizes these veterans as mentally incompetent. As
    previously stated, VA requires neither additional medical examinations
    nor a judicial review to determine the veteran's propensity to harm
    self or others prior to NICS referral. Veterans may appeal VA's
    decision, though few actually do for undetermined reasons. Of note,
    according to a July 2023 Congressional Research Service report titled
    Gun Control, Veterans' Benefits, and Mental Incompetency
    Determinations, of the 135 appeals filed in fiscal year 2022, VA data
    indicate only 24 successful appeals. Our VFW comrade's personal
    experience corroborates this statistic. Because of her diligence and
    experience with the appeal process, she successfully halted referral to
    NICS for some veterans she assisted. However, none of them successfully
    appealed their NICS referrals.
        In accordance with the NICS Improvement Amendments Act of 2007
    (Public Law 110-180) all federal agencies that hold records on people
    prohibited from possessing or purchasing firearms must refer these
    records to the FBI for inclusion in NICS. Some of these prohibitions
    are based upon findings of ``mental incompetency'' made during certain
    federal benefit claims processes. For instance, in December 2016, the
    Social Security Administration (SSA) published its final rule to
    implement applicable provisions of the law. Under this rule, SSA would
    refer to NICS its disability beneficiaries for whom it appointed a
    ``representative payee'' to manage day-to-day affairs and whose
    disability could be tied to a mental impairment. However, in February
    2017, the House of Representatives passed a Congressional Review Act
    disapproval resolution that was signed by President Trump overturning
    this rule.
        Currently, VA is the only federal department that makes substantial
    NICS referrals, though other agencies provide similar disability and
    other financial benefits. In this context, veterans could consider that
    existing VA procedures are both inappropriate and contradictory to the
    law.
        Veterans deserve due process when it comes to the potential removal
    of their constitutional rights.

    Conclusion

        Because of the somewhat subjective VA incompetency determination
    process and related loss of Second Amendment rights, some veterans
    refuse to use VA health care for fear of inadvertently making a
    disqualifying statement or disclosing a temporary disabling condition
    that could lead to NICS referral. This stigma unnecessarily deprives
    veterans of their earned benefits and could compromise their physical
    and mental health. However, a process that includes additional medical
    screening and a judicial review prior to NICS assignment could assure
    veterans of unconditional medical and mental health care without
    jeopardizing their constitutional rights.
        Chairman Luttrell and Ranking Member McGarvey, this concludes my
    testimony. I am prepared to take any questions you or members of the
    subcommittee 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 2025, 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 Michael Washington

        Good afternoon, Chairman Luttrell, Ranking Member McGarvey, and
    Members of this Subcommittee. Thank you for the opportunity to share my
    story with you this afternoon.
        My name is Master Sergeant Michael Washington, U.S. Marine Corps,
    retired. I am proud to be a veteran. I served as an infantry platoon
    sergeant and counterintelligence agent for a combined 23 years in
    active duty and reserve service. I led an infantry platoon in combat
    during Operation Desert Storm and I also served deployments in Bosnia,
    Afghanistan, Iraq, and Africa. And, for the last three decades, in my
    civilian life, I have been a firefighter, including 25 years with the
    Seattle Fire Department. After obtaining a master's in social work, I
    now work as a mental health counselor specializing in veterans and
    first responders--many of whom are also veterans.
        On June 14, 2008, I learned that my son, Sergeant Michael
    Washington--who had followed me into the Marine Corps just as I had
    followed my own father--had been killed in combat in Afghanistan while
    serving with the 2nd Battalion, 7th Marine Regiment. Despite the severe
    casualties taken during their deployment, the 2-7 has lost more Marines
    here at home to suicide than on the battlefield.
        When my son was killed, my world stopped. I didn't know how to cope
    with the news, let alone feel the loss. I tried to keep it together and
    follow the example that had been set for me: drinking instead of
    talking.
        From there, my own PTSD from my deployments began to surface and my
    marriage began to fall apart. When the pain became too much, I began to
    think about killing myself. At first, that meant riding my motorcycle
    through red lights. But I didn't want another first responder to have
    to pick me up off the street. Eventually, I found myself on a bridge.
        On the edge of that bridge, with my eyes closed, waiting for a
    final feeling that would push me forward, I heard my son's voice. He
    said to me: Your story doesn't end here. You have work to do. Don't do
    this, Dad. This is not how it ends.
        That was all I needed to go home, start to open up to others, seek
    mental health assistance from the Department of Veterans Affairs (VA),
    and head down a path that helped me get better. But if I'd had easy
    access to a gun, I wouldn't have ever had that chance.
        I wouldn't have gotten better. I wouldn't have remarried or gotten
    to spend time with my grandchildren. I also wouldn't be able to be here
    with you today. And I wouldn't be able to do the work I do now to help
    others get better--work that I do to honor and in memory of my son.
        I am testifying here today on behalf of the Everytown Veterans
    Advisory Council. We are a group of military veterans that advocate for
    responsible gun ownership and gun safety in order to prevent gun
    violence and save lives. Today, the Veterans Advisory Council is made
    up of 40 veterans from across the Nation. I appreciate the chance to
    testify at this hearing and to provide important context for the
    Subcommittee when it comes to veterans, firearms, and mental health.

    The crisis of veteran suicide deaths.

        No one is immune to gun violence, including veterans. As veterans,
    we know that all too well--because our Nation is experiencing an
    epidemic of veteran suicides, and most of these suicides involve
    firearms. In 2022, there were 6,407 veteran suicide deaths--an average
    of more than 17 per day. Guns were used in 73.5 percent of those
    deaths--a proportion that increases year after year.\1\ According to
    the VA, at least 1,548 of those veterans who died by suicide in 2022
    had been diagnosed by the VA with a mental health or substance abuse
    disorder, and that number is likely an undercount.\2\
    ---------------------------------------------------------------------------
        \1\ U.S. Department of Veterans Affairs, ``2024 National Veteran
    Suicide Prevention Annual Report, Part 2 of 2: Report Findings,'' at p.
    4 (Dec. 2024), available at https://www.mentalhealth.va.gov/docs/data-
    sheets/2024/2024-Annual-Report-Part-2-of-2_508.pdf.
        \2\ Id. at p. 33, Table 6. This is the number the VA reported of
    veterans who died by suicide in 2022 who had received health care at a
    Veterans Health Administration (VHA) facility in 2022 or 2021 and who
    had been diagnosed by the VHA with mental health or substance use
    disorders. The number does not include veterans who may have been
    diagnosed with mental health or substance use disorders but who did not
    receive care at a VHA facility in either 2022 or 2021.
    ---------------------------------------------------------------------------
        Every suicide death of a veteran who served and sacrificed for the
    United States is a tragedy, and the loss of 17 veterans a day to
    suicide should be an urgent call to action. We should be doing
    everything in our power to stop this epidemic, and that means we must
    do something about access to firearms in moments of crisis. This is the
    most important investment we can make, because every dollar spent on
    mental health services, peer-to-peer support, and substance abuse
    counseling is moot if a veteran in crisis has attempted suicide with a
    firearm.

    Access interventions for preventing gun suicide: background checks.

        The background check system is the best tool we have to prevent
    access to a firearm--blocking gun sales from licensed dealers to
    individuals who are not allowed under the law to have firearms in the
    first place. But the background check system is only as strong as the
    information it contains, and if information is left out, those who
    can't have guns are able to pass a background check and purchase a
    firearm.
        For 30 years, until last March, the VA had provided information on
    certain veterans who are legally barred from having guns to the FBI's
    National Instant Criminal Background Check System (NICS) under
    longstanding federal law and with strong due process protections in
    place. These are veterans who the VA has determined are ``mentally
    incompetent''--not solely because the VA may appoint a fiduciary to
    manage their benefits, as some have suggested, but ``because of injury
    or disease.'' These injuries and diseases include diagnoses for major
    depressive disorder, panic disorder, schizophrenia, bipolar disorder,
    and more. As Congress has required, these veterans go through a
    comprehensive process that provides them with many due process
    safeguards: notice and the right to a hearing, the right to present
    evidence and witness, and the right to have legal representation, as
    well as a high standard of proof. For any veteran who contests the VA's
    determination, he or she has the right to appeal any decision through
    both the VA and the courts.
        Since last year, however, it's no longer enough that the VA makes a
    determination that a veteran is mentally incompetent due to a serious
    mental disorder for the VA to alert the background checks system. As of
    March 2024, Congress has temporarily blocked the VA from alerting NICS
    unless the VA takes the additional step of confirming that a court has
    also found that such a veteran is a danger to themselves or others. But
    Congress didn't give the VA any funding, resources, guidance, or even
    time to set up a process to do so. As a result, since last March there
    has been a growing number of veterans with serious diagnosed mental
    disorders who NICS has not been alerted about--and this is the exact
    cohort of veterans who are at increased risk of suicide. In other
    words, the VA and veterans are now down a critical tool to help reduce
    suicide deaths due to Congress' decision to change how, and under what
    circumstances, the VA is allowed to provide information to NICS.
        Congress made this change even though the VA's existing system
    already had many due process safeguards and even though that
    information sharing has long been important for suicide prevention
    efforts. Congress should look at the effect this change is having on
    the risk of veteran suicide--before Congress decides whether to
    continue it at all, and certainly before Congress makes it permanent or
    seeks to expand it. And if Congress is going to continue to restrict
    the VA from providing this information to NICS without an additional
    step of court review, then Congress and the VA must figure out how to
    make sure this additional step is taking place--every single time these
    mental incompetency determinations are being made, as a matter of
    routine process.
        That will take time and resources, but you have to do it. Because
    turning a blind eye and requiring the background check system to ignore
    what the VA knows about veterans with serious mental health diagnoses
    is undermining our collective efforts to reduce veteran suicide deaths.
    I worry that may already be happening since the change Congress made
    last March, and I hope this Subcommittee can quickly get the data to
    find out if that's the case.

    Other access interventions: a continuum.

        In addition to background checks, there are other practical and
    proven interventions that can prevent firearm suicide. Like the
    continuum of force I followed in the military, we can think of these
    interventions on a continuum of intervention.
        The continuum of intervention, which is set in motion by asking
    whether someone in crisis has access to a firearm, has five steps of
    escalating action:

        Step One: Firearms should be stored unloaded, separate from
    ammunition, and locked in a gun safe, lockbox, or some other device.
    This is a cornerstone of responsible gun ownership--whether someone is,
    for example, a veteran or a parent or a hunter. Secure firearm storage
    creates time and space between someone in crisis and a firearm, and
    this time and space can be enough to get help.

        Step Two: When guns are stored in a secure storage device, someone
    in crisis can ``give the keys'' to that device to a family member or
    friend or even another veteran. This creates even more time and space
    between someone in crisis and a firearm by temporarily limiting access
    without removing ownership of the firearms.

        Like ``giving the keys,'' in Step Three, gun owners can--
    voluntarily--store their firearms outside their homes at, for instance,
    a gun dealer or even with an eligible family member. Several states and
    localities have developed gun storage maps to help increase public
    awareness of out-of-home storage options. Then, when the crisis has
    passed, the gun owner can regain possession of their firearms.

        Step Four can be taken in states that allow individuals who know
    they are at risk for suicide are empowered to add themselves
    voluntarily and confidentially to a ``do-not-sell'' list. At present,
    these states include Utah, Washington, Virginia, and Delaware. Such a
    list prevents them from being allowed to purchase a gun in the future.
    And when the person is no longer at risk or is no longer in crisis,
    they can take themselves off the list. This step allows individuals to
    exercise personal freedom to keep themselves safe and alive.

        Finally, Step Five is available in the 21 states--red, purple, and
    blue--and Washington DC that have enacted Extreme Risk laws. These laws
    allow certain individuals to petition a court to issue an order, on the
    basis of evidence and with other strong due process protections in
    place, that temporarily removes firearms from someone who is determined
    to be a danger to themselves or others. Law enforcement is the common
    petitioner in all 22 jurisdictions, but many allow others who may be
    the first to recognize that someone is in crisis, like immediate family
    members and medical professionals, to do so as well.

    Conclusion.

        Veteran suicide is a public health issue--not a political one. I
    know both parties understand that. President Trump, in his first term,
    and President Biden both took steps to help reduce veteran suicide,
    including firearm suicides. It's more important now than ever that we
    continue to do this work, and to do it together.
        Thank you again for the chance to speak with you this afternoon,
    and I look forward to your questions.

                           Statements for the Record

                                  ----------

                   Prepared Statement of The American Legion
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Prepared Statement of GIFFORDS Courage to Fight Gun Violence and Brady
                          United Against Gun Violence
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

     Prepared Statement of National Association of County Veterans Service
                                    Officers
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

      Questions for the Record Submitted by Aumua Amata Coleman Radewagen
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

     Response to Questions for the Record Submitted by Aumua Amata Coleman
                                   Radewagen
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]