[Congressional Record Volume 142, Number 66 (Monday, May 13, 1996)]
[Senate]
[Pages S4976-S4978]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SIMPSON (by request):
  S. 1751. A bill to amend title 38, United States Code, to revise the 
procedures for providing claimants and their representatives with 
copies of Board of Veterans' Appeals decisions and to protect the right 
of claimants to appoint veterans' service organizations as their 
representatives in claims before the Department of Veterans Affairs; to 
the Committee on Veterans Affairs''.


                         veterans' legislation

 Mr. SIMPSON. Mr. President, as chairman of the Veterans' 
Affairs Committee, I have today introduced, at the request of the 
Secretary of Veterans Affairs, S. 1751, a bill to revise the procedures 
for providing claimants and their representatives with copies of Board 
of Veterans' Appeals decisions and to protect the right of claimants to 
appoint veterans service organizations as their representatives in 
claims before the Department of Veterans Affairs. The Secretary of 
Veterans Affairs submitted this legislation to the President of the 
Senate by letter dated October 11, 1995.
  My introduction of this measure is in keeping with the policy which I 
have adopted of generally introducing--so that there will be specific 
bills to which my colleagues and others may direct their attention and 
comments--all administration-proposed draft legislation referred to the 
Veterans' Affairs Committee. Thus, I reserve the right to support or 
oppose the provisions of, as well as any amendment to, this 
legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record, together with the transmittal letter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1751

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PROVISION OF COPIES OF BOARD OF VETERANS' APPEALS 
                   DECISIONS.

       (a) Providing the Decisions.--Section 7104(e) of title 38, 
     United States Code, is amended by--
       (1) striking out ``mail'' and inserting in lieu thereof 
     ``send''; and
       (2) adding at the end of that subsection the following:

     ``For the purposes of this subsection, the Board may send a 
     copy of its written decision by any means reasonably 
     calculated to provide the claimant and the claimant's 
     authorized representative (if any) with a copy of the 
     decision within the same time a copy of the decision sent by 
     first-class mail would be expected to reach them.''.
       (b) Beginning of the Appeal Period.--Section 7266(a)(1) of 
     title 38, United States Code, is amended by--
       (1) striking out ``person'' and inserting in lieu thereof 
     ``claimant'';
       (2) striking out ``mailed'' and inserting in lieu thereof 
     ``sent''; and
       (3) inserting ``to the claimant's authorized representative 
     or, if none, to the claimant'' following ``title''.

     SEC. 2. APPOINTMENT OF A VETERANS SERVICE ORGANIZATION AS A 
                   CLAIMANT'S REPRESENTATIVE.

       (a) Power of Attorney Naming a Veterans Service 
     Organization.--Section 5902 of title 38, United States Code, 
     is amended by--
       (1) redesignating subsection (c) as subsection (d); and
       (2) inserting the following new subsection (c):
       ``(c)(1) Unless a claimant specifically indicates his or 
     her desire to appoint only a recognized representative of an 
     organization listed in or approved under subsection (a) of 
     this section, the Secretary may, for any purpose, treat a 
     claimant's power of attorney naming such an organization, a 
     specific office of such an organization, or a recognized 
     representative of such an organization as an appointment of 
     the entire organization.
       ``(2) Whenever the Secretary is required or permitted to 
     notify a claimant's representative, and the claimant has 
     named in a power of attorney an organization listed in or 
     approved under subsection (a) of this section, a specific 
     office of such an organization, or a recognized 
     representative of such an organization without specifically 
     indicating a desire to appoint only a recognized 
     representative of the organization, the Secretary shall 
     notify the organization at the address designated by the 
     organization for the purpose of receiving each kind of 
     notification.''.
       (b) Applicability.--The amendments made by this section 
     apply to any power of attorney filed with the Department of 
     Veterans Affairs regardless of the date of its execution.
                                                                    ____



                            The Secretary of Veterans Affairs,

                                     Washington, October 11, 1995.
     Hon. Albert Gore,
     President of the Senate,
     Washington, DC.
       Dear Mr. President: Transmitted herewith is a draft bill to 
     amend title 38, United States Code, to revise the procedures 
     for providing claimants and their representatives with copies 
     of Board of Veterans' Appeals (Board) decisions and to 
     protect the right of claimants to appoint veterans service 
     organizations as their representatives in claims before the 
     Department of Veterans Affairs (VA). This legislation would 
     permit the Board to provide copies of its appellate decisions 
     to claimants' representatives reasonably and efficiently. It 
     would also permit VA to continue a longstanding method of 
     claimant representation which has proven efficient and 
     beneficial to claimants. I request that this draft bill be 
     referred to the appropriate committee for prompt 
     consideration and enactment.


                 provision of copies of board decisions

       Section 7104(e) of title 38, United States Code, specifies 
     that ``the Board shall promptly mail a copy of its written 
     decision to the claimant and the claimant's authorized 
     representative (if any).'' In the past, the Board's method of 
     representative (if any).'' In the past, the Board's method of 
     ``mailing'' a copy of a decision to a representative depended 
     on where the representative was located. For a representative 
     at the Board's offices in Washington, D.C., a contractor 
     hand-delivered the Board decision to the representative. For 
     a representative at a VA regional office, the Board gave the 
     decision to the contractor, who ``bundled'' mail for the 58 
     VA regional offices and delivered the bundles to the United 
     States Postal Service. After the United States Postal Service 
     delivered the bundles to the VA regional offices, each 
     regional office sorted its bundled mail and distributed any 
     Board decision to the appropriate representative at that 
     regional office. For a representative not at an office at a 
     VA facility, the Board mailed its decision directly to the 
     representative.
       This past practice made sense considering the number of 
     Board decisions and the number of representatives who have 
     offices at VA facilities. The Board decides more than 25,000 
     cases per year. In more than 85 percent of those cases, one 
     of the various veterans service organizations represents the 
     claimant. Often, as authorized by 38 U.S.C. Sec. 5902(a)(2), 
     the service organization occupies free office space in either 
     a VA regional office or at the Board's offices in Washington, 
     D.C. Thus, the

[[Page S4977]]

     Board's past practice of distributing decisions to 
     representatives was flexible and efficient.
       This past practice, however, was invalidated by the Court 
     of Veterans Appeals. In Trammell v. Brown, 6 Vet. App. 181 
     (1994), the Court of Veterans Appeals held that an apparently 
     late notice of appeal was timely filed because the Board's 
     decision-distribution procedure did not accord with 38 U.S.C. 
     Sec. 7104(e). In Davis v. Brown, 7 Vet. App. 298 (1995), the 
     court held that the phrase ``the Board shall promptly mail'' 
     in section 7104(e) means that the Board decision ``must be 
     correctly addressed, stamped with the proper postage, and 
     delivered directly by the [Board] into the custody of the 
     U.S. Postal Service.'' Id. at 303. The court then concluded 
     that the apparently late notice of appeal in Davis was timely 
     filed. Id. at 304.
       The court's interpretation of section 7104(e) creates 
     problems with logistical solutions the Board has developed 
     over the years to provide representatives with copies of its 
     decisions. Indeed, it leads to some absurd results. For 
     example, instead of a Board employee (or a contractor) simply 
     walking down the hall to deliver a Board decision to a 
     service organization representative on the same floor, now 
     the employee, not a contractor, must place the decision in an 
     envelope, affix proper postage, and deliver it directly into 
     the United States Postal Service's custody. We understand 
     that the Postal Service takes this mail to Maryland for 
     sorting, then returns it to the District of Columbia for 
     delivery. The Postal Service delivers VA mail to the VA 
     building across the street from the Board's offices, where a 
     contractor sorts it for international delivery. The 
     contractor must then carry the Board decision across the 
     street to the building housing the Board and the service 
     organization representative and deliver it to the 
     representative.
       The Board should be permitted to provide representatives 
     with copies of its decisions sensibly. Thus, we propose this 
     legislation to permit the Board to ``send'' its decisions to 
     claimants and their representatives by any means reasonably 
     calculated to provide them with a copy of the decision within 
     the same time a copy of the decision sent by first-class mail 
     would be expected to reach them.
       Section 1(b) of this draft bill would also make a 
     corresponding change to 38 U.S.C. Sec. 7266(a)(1), which 
     currently provides that, to obtain review by the Court of 
     Veterans Appeals, a person adversely affected by a final 
     Board decision must file a notice of appeal within 120 days 
     after the date on which notice of the decision is mailed 
     pursuant to section 7104(e). Our proposed amendment would 
     require that a notice of appeal be filed within 120 days 
     after the date on which notice of the Board decision is sent 
     pursuant to section 7104(e) to the representative or, if 
     none, to the claimant.


    appointment of a veterans service organization as a claimant's 
                             representative

       Current law authorizes the Secretary to recognize 
     individuals to prepare, present, and prosecute claims for VA 
     benefits on behalf of claimants. Section 5904(a) of title 38, 
     United States Code, authorizes the Secretary to recognize any 
     individual as an agent or attorney for the preparation, 
     presentation, and prosecution of VA benefit claims. Section 
     5903 of title 38, United States Code, authorizes the 
     Secretary to recognize any individual for the preparation, 
     presentation, and prosecution of any particular VA benefit 
     claim. In addition, section 5902(a)(1) of title 38, United 
     States Code, authorizes the Secretary to recognize 
     representatives of certain veterans service organizations in 
     the preparation, presentation, and prosecution of VA benefit 
     claims.
       With respect to representatives of veterans service 
     organizations, VA's policy and practice has been to recognize 
     any accredited representative of an approved service 
     organization if a claimant files a power of attorney in favor 
     of the organization itself, a specific office of the 
     organization, or a particular representative of the 
     organization. This practice affords several advantages. 
     First, it allows different representatives of an organization 
     to handle a particular claim at different stages of the 
     claim, without the claimant having to file a separate power 
     of attorney for each representative. For example, a 
     representative of an organization at a VA field office can 
     prosecute a claim there and initiate an appeal. Another 
     representative of the same organization at the organization's 
     national office can then argue the claim on appeal before the 
     Board in Washington, D.C. Second, it allows different 
     representatives of the organization to handle a particular 
     claim at different locations and times, without the claimant 
     having to file another power of attorney. For example, if a 
     claimant moves from New York to Los Angeles while his or her 
     claim is pending, a representative of an organization at a 
     local office in New York can initially handle the claim 
     there, and another representative of the organization at a 
     local office in Los Angeles can subsequently pursue the claim 
     at the location. Similarly, a second representative of an 
     organization can assume responsibility for the prosecution of 
     a claim if the original representative of that organization 
     moves, becomes incapacitated, or leaves the organization. 
     Third, the practice allows VA to notify a claimant's 
     representative in a manner best suited to assure notice is 
     received. For example, the Board can mail a copy of its 
     decision to a representative of a given organization in 
     Washington, D.C., as well as to a local representative at a 
     field station, thereby doubling the likelihood that the 
     claimant's representative will actually receive notice.
       Cases pending before or recently decided by the Court of 
     Veterans Appeals are imperiling VA's longstanding practice of 
     recognizing any accredited representative of a veterans 
     service organization in a particular claim. In Leo v. Brown, 
     U.S. Vet. App. No. 93-844 (June 16, 1995), the court again 
     held that an apparently late notice of appeal was timely 
     filed because the Board's decision-distribution procedure did 
     not accord with 39 U.S.C. Sec. 7104(e). In this case, the 
     claimant executed a power of attorney in which, in the 
     space for designation of a representative, he entered the 
     American Legion and the address of the Greenville, South 
     Carolina, Veterans Affairs Office, where the American 
     Legion had a local representative. The Greenville office 
     stated that it had no record of having received a copy of 
     the Board's decision on the veteran's claim. The court 
     ruled that actual receipt of a copy of the decision by the 
     American Legion's national office in Washington, D.C., did 
     not cure the failure to mail a copy to the claimant's 
     designated representative, ``i.e., the Greenville, South 
     Carolina, office.''
       Based on inquiries from the court in cases currently 
     pending, we are concerned that the court may go further and 
     hold that, based on the plain meaning of 38 U.S.C. 
     Sec. 5902(A)(1), a claimant may appoint only an individual, 
     not an organization, to prepare, present, and prosecute a 
     claim before VA on the claimant's behalf. Such a holding 
     would play havoc with the traditional role of veterans 
     service organizations in the claim process and inject 
     additional technical demands into that process. If a claimant 
     could appoint only an individual, the claimant would have to 
     file another power of attorney each time it became necessary 
     or expedient for another accredited representative to assist 
     with his or her claim. VA could not allow another 
     representative of the same organization access to the 
     claimant's files or mail another representative a copy of a 
     Board decision without risking violation of the Privacy Act. 
     Under the Leo decision, similar problems would frequently 
     arise in the cases of claimants who designate a particular 
     office of an organization on their power-of-attorney forms.
       A recent survey at the Board showed that 79 percent of 
     appellants who designated a veterans service organization on 
     their power-of-attorney form (which, as noted above, occurs 
     in more than 85 percent of the 25,000 cases that pass through 
     the Board each year) designated only the organization, not a 
     specific office or an individual representative of the 
     organization. Thus, if the court were to invalidate VA's 
     practice of recognizing organizations rather than 
     individuals, it would cast doubt on the validity and meaning 
     of nearly 16,800 powers of attorney in cases coming before 
     the Board alone over one year. It would delay decisions on 
     numerous claims while VA tried to clarify what individual 
     representative, if any, each appellant wanted to represent 
     him or her.
       The impact on the Compensation and Pension Service (C&P) 
     would be even greater. Last year, C&P completed action on 
     2,127,265 compensation and pension claims. As of December 31, 
     1994, national veterans service organizations represented 
     approximately 36 percent of the beneficiaries receiving 
     monthly compensation or pension payments from C&P. It would 
     be fair to conclude that veterans service organizations 
     represented approximately 36 percent of the compensation or 
     pension claimants whose cases were handled in 1994. Although 
     C&P does not have statistics on the number of claimants who 
     designate only an organization (as opposed to a specific 
     office or recognized representative of an organization), let 
     us assume that, as at the Board, approximately 79 percent of 
     claimants represented by service organizations designated 
     only an organization on their powers of attorney. Thus, an 
     ``individuals only'' holding by the court would cast doubt on 
     the validity and meaning of nearly 605,000 powers of attorney 
     coming before C&P during one year.
       An ``individuals only'' rule would require extensive and 
     costly reprogramming of the Veterans Benefits 
     Administration's (VBA) automated data processing system and 
     greatly increase VBA's annual postage costs. In connection 
     with claim development, award notification, and routine 
     communications concerning awards, VBA's regional offices 
     annually produce more than 3 million letters for veterans 
     service organizations representing claimants or 
     beneficiaries. Currently, the Hines, Illinois, computer 
     center prepares and mails one copy of each letter to the 
     claimant or beneficiary and ships three copies to the 
     appropriate regional office, where one copy is filed in the 
     claim folder and two are delivered through internal mail to 
     the organization. If required to notify individual 
     representatives of organizations by mail, VBA would have to 
     reprogram the computer system and, most likely, mail the 
     representatives' copies from Hines. Postage costs alone could 
     approach $1 million annually. We think that such a 
     procedure would waste limited resources, particularly 
     since the current procedure provides an efficient means of 
     notifying organizations.
       An ``individuals only'' rule would also probably force VBA 
     to curtail or eliminate veterans service organizations' 
     access to veterans' computer records. Currently, an 
     accredited representative of an organization may access the 
     records of any veteran represented by that organization. 
     Under an ``individuals only'' system, however, VBA would

[[Page S4978]]

     have to restrict a representative's access to only the files 
     of those veterans whose powers of attorney designate that 
     representative. The cost of establishing appropriate security 
     for the computer files in a system that includes over 6,000 
     individual representatives would probably be too great to 
     justify continued access to the records. The Board would also 
     face a similar problem with access it provides veterans 
     service organizations to its computer records.
       Section 2 of the draft bill would address these problems. 
     Section 2(a) would authorize the Secretary to treat a power 
     of attorney naming an organization, a specific office of an 
     organization, or a recognized representative of an 
     organization as an appointment of the entire organization, 
     unless the claimant specifically indicated his or her desire 
     to appoint only a recognized representative of the 
     organization. Under this amendment, whether a claimant's 
     power of attorney is executed in favor of an approved 
     organization, a local office of that organization, or an 
     individual representative of the organization, the claimant 
     could rest assured of the assistance of an accredited 
     representative of the organization at every stage of the 
     claim or appeal before VA, regardless of location or the 
     inability of a particular individual to continue 
     representation, without having to file additional powers of 
     attorney.
       Section 2(a) of the draft bill would also require the 
     Secretary, when required or permitted to notify a claimant's 
     representative, and when the claimant has in effect appointed 
     a veterans service organization as representative, to notify 
     the organization at the address designated by the 
     organization for the purpose of receiving each kind of 
     notification.
       Under section 2(b) of the draft bill, the amendments made 
     by section 2(a) would apply to any power of attorney filed 
     with VA regardless of the date of its execution.


                           costs and savings

       We estimate that the savings from enactment of the 
     provision authorizing the sending of Board decisions would be 
     insignificant, i.e., administrative savings of less than 
     $100,000 per year. Depending on how the Court of Veterans 
     Appeals interprets current 38 U.S.C. Sec. 5902(a), enactment 
     of the provision regarding the appointment of veterans 
     service organizations as claimants' representatives could 
     result in cost avoidance in excess of $1 million annually.
       We have been advised by the Office of Management and Budget 
     that there is no objection to the submission of this draft 
     bill to Congress from the standpoint of the Administration's 
     program.
           Sincerely yours,

                                              Jesse Brown.

                                 ______