[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.
______