[Congressional Record Volume 146, Number 115 (Monday, September 25, 2000)]
[Senate]
[Pages S9211-S9213]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THE VETERANS CLAIMS ASSISTANCE ACT OF 2000

  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the 
Veterans' Affairs Committee be discharged from further consideration of 
H.R. 4864, and the Senate then proceed to its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 4864) to amend title 48, United States Code, 
     to reaffirm and clarify the duty of the Secretary of Veterans 
     Affairs to assist claimants for benefits under laws 
     administered by the Secretary, and for other purposes.

  There being no objection, the Senate proceeded to the consider the 
bill.


                           Amendment No. 4189

  Mr. BROWNBACK. Mr. President, there is a substitute amendment at the 
desk submitted by Senators Specter and Rockefeller.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas (Mr. Brownback) for Mr. Specter and 
     Mr. Rockefeller proposes an amendment numbered 4189.

  Mr. BROWNBACK. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. SPECTER. Mr. President, I have sought recognition to explain 
briefly an action that I, as chairman of the Senate Committee on 
Veterans' Affairs, propose to take today with respect to a House-passed 
bill, H.R. 4864. I take this action with the concurrence and support of 
the committee's ranking member, Senator Jay rockefeller and Senator 
Patty Murray, the original sponsor of Senate legislation, S. 1810, to 
reinstate VA's duty to assist claimants in the preparation of their 
claims.
  In 1999, the United States Court of Appeals for Veterans claims 
issued a ruling, Morton v. West, 12 Vet. App. 477 (1999), which had the 
effect of barring the Department of Veterans Affairs (VA) from offering 
its assistance to

[[Page S9212]]

veterans and other claimants in preparing and presenting their claims 
to VA prior to the veteran first accumulating sufficient evidence to 
show that his or her claim is ``well grounded.'' This decision 
overturned a long history of VA practice under which VA had taken upon 
itself a duty to assist veterans in gathering evidence and otherwise 
preparing their claims for VA adjudication. That practice was grounded 
in a long VA tradition of non-adversarial practice in the 
administrative litigation of veterans' claims.
  For over a year, the Senate Committee on Veterans' Affairs has worked 
to craft, and then to develop VA and veterans service organization 
support for, a legislative solution that returns VA to the pre-Morton 
status quo ante, and reinstates VA's duty to assist veterans and other 
claimants in the preparation of their claims. The product of the Senate 
committee's work is contained in section 101 of S. 1810, a bill which 
was approved by the Senate on September 21, 2000. Since S. 1810 was 
reported, however, committee staff has worked with the staff of the 
House Veterans' Affairs Committee to reconcile the provisions of 
section 101 of S. 1810 and a similar bill, H.R. 4864, which passed the 
House of Representatives on July 25, 2000.
  The Senate and House committees have now reached such an agreement, 
and have reconciled the differences between the Senate- and House-
passed provisions. Those differences--which are, principally, matters 
of tone and emphasis, not substance--are contained in the proposed 
amendment to H.R. 4864 which I present to the Senate today and which is 
explained in detail in the staff-prepared joint explanatory statement 
which I have filed with the amendment's text. This compromise agreement 
has been reached after extensive consultation with VA's general counsel 
and the major veterans service organizations.
  I now ask that the Senate approve this compromise agreement by 
approving the proposed amendments to H.R. 4864. The House will then be 
in a position to approve the Senate-passed amendments to the House bill 
and send this legislation to the President for his signature.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the 
amendment be agreed to, the bill be read a third time and passed, as 
amended, the motion to reconsider be laid upon the table, and that any 
statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4189) was agreed to.
  The bill (H.R. 4864), as amended, was passed.
  Mr. ROCKEFELLER. Mr. President, as the ranking member of the 
Committee on Veterans' Affairs, I am enormously pleased that the Senate 
has passed this bill to reestablish the Department of Veterans Affairs' 
duty to assist veterans in developing their claims for benefits from 
the Department. Senator Murray, who introduced the original Senate 
bill, S. 1810, that led to this compromise bill should be praised for 
her leadership on this issue.
  The ``duty to assist,'' along with other principles such as giving 
the veteran the benefit of the doubt in benefits' determinations, are 
parts of what make the relationship between the Department of Veterans 
Affairs (VA) and the claimant unique in the Federal Government. 
Congress has long recognized that this Nation owes a special obligation 
to its veterans. The system to provide benefits to veterans was never 
intended to be adversarial or difficult for the veteran to navigate. 
That is why Congress codified, in the Veterans Judicial Review Act of 
1988 (Public Law 100-687), these longstanding practices of the VA to 
help claimants develop their claims for veterans benefits.
  Over time, the U.S. Court of Appeals for Veterans Claims attempted to 
give meaning to loosely defined, but well-ingrained concepts of law. In 
Caluza v. Brown, the Court identified three requirements that would be 
necessary to establish a well-grounded claim, which the Court viewed as 
a prerequisite to VA's duty to assist. These requirements were: (1) a 
medical diagnosis of a current disability; (2) medical or lay evidence 
of the inservice occurrence or aggravation of a disease or injury; and 
(3) medical evidence of a nexus or link between an inservice injury or 
disease and the current disability. Through a series of cases, which 
culminated in Morton v. West, the Court ruled that VA has no authority 
to develop claims that are not ``well-grounded.'' This resulted in a 
change of practice where VA no longer sought records or offered medical 
examinations and opinions to assist the veteran in ``grounding'' the 
claim.
  Veterans advocates, VA, and Congress grew very concerned over this 
situation and the resulting potential unfairness to veterans. Veterans 
may be required to submit records that are in the government's 
possession (e.g., VA medical records, military service records, etc.). 
Also, veterans who could not afford medical treatment and did not live 
near or did not use a VA medical facility (and thus had no medical 
records to submit) would not be provided a medical exam. Many veterans 
claims were denied as not well-grounded.
  Therefore, Congress, with significant input from the veterans service 
organizations and VA, developed legislation to correct this problem. 
H.R. 4864, as amended, reflects the compromise language developed 
jointly by the staff of the House and Senate Committees on Veterans' 
Affairs. I believe that this bill restores VA to its pre-Morton duty to 
assist, as well as enhances VA's obligation to notify claimants of what 
is necessary to establish a claim and what evidence VA has not been 
able to obtain before it makes its decision on the claim.
  In developing this compromise, it was very important to me to ensure 
that veterans will get all the assistance that is necessary and 
relevant to their claim for benefits. This assistance should include 
obtaining records, providing medical examinations to determine the 
veteran's disability or opinions as to whether the disability is 
related to service, or any other assistance that VA needs to decide the 
claim. On the other hand, it was also important to balance this duty 
against the futility of requiring VA to develop claims where there is 
no reasonable possibility that the assistance would substantiate the 
claim. For example, wartime service is a statutory requirement for VA 
non-service-connected pension benefits. Therefore, if a veteran with 
only peacetime service sought pension, no level of assistance would 
help the veteran prove the claim; and if VA were to spend time 
developing such a claim, some other veteran's claim where assistance 
would be helpful would be delayed. However we need to ensure that the 
bar is no longer set so high that veterans with meritorious claims will 
be turned away without assistance.
  H.R. 4864, as amended, does specify certain types and levels of 
assistance for compensation claims. The majority of VA's new casework 
is in making these initial disability determinations. If the record 
could be developed properly the first time the veteran submits an 
application for benefits, subsequent appeals or claims for rating 
increases or for service connection for additional conditions would be 
much more accurate and efficient.
  The compromise bill provides that VA shall provide a veteran a 
medical examination or a medical opinion when such an exam or opinion 
is necessary to make a decision on the claim. The bill specifies one 
instance when an exam or opinion is necessary--when there is competent 
evidence that the veteran has a disability or symptoms that may be 
related to service, but there is not sufficient evidence to make a 
decision. This determination may be based upon a lay statement by the 
veteran on a subject that he or she is competent to speak about. That 
is, if a veteran comes to VA claiming that she or he has a pain in his 
leg that may be related to service--and there is no evidence that the 
veteran, for example, was awarded a workers compensation claim for a 
leg disability last month--VA must provide an examination or opinion. 
The veteran can probably not provide evidence that the pain is due to 
traumatic arthritis; that would requires a doctor's expertise. H.R. 
4864 does recognize that there are many other instances when a medical 
examination or opinion would be appropriate or necessary.
  Again, by specifying certain types of assistance for compensation 
claims,

[[Page S9213]]

the bill does not limit VA's assistance to those types of claims or to 
a specific type of assistance. It expressly provides that nothing in 
the bill prevents the Secretary from rendering whatever assistance is 
necessary. It also does not undo some of the complementary Court 
decisions that require the VA to render certain additional types of 
assistance, such as those required in McCormick v. Gober.
  Although VA is moving its claims adjudication system toward a team-
based, case management system that will result in better service and 
communication with claimants, I felt that it was critical to include 
requirements that VA explain to claimants what information and evidence 
will be needed to prove their claim. VA will also be required to 
explain what information and evidence it would secure (e.g., medical 
records, service medical records, etc.) and what information the 
claimant should submit (e.g., marriage certificate, Social Security 
number, etc.). Currently, many veterans are asked for information in a 
piecemeal fashion and don't know what VA is doing to secure other 
evidence. Better communication will lead to expedited decisionmaking 
and higher satisfaction in the process.
  H.R. 4864, as amended, provides for retroactive applications of the 
bill's duty to assist provisions, as well as the enhanced notice 
procedures. Now, claimants that were denied due to the Morton decision 
will be able to have their claims readjudicated in accordance with the 
provisions of this bill and receive VA's full duty to assist. This will 
also ensure an earlier effective date if their claim is successful.
  It is critical that we honor our commitment to veterans and their 
families. We should not create technicalities and bureaucratic hoops 
for them to jump through. I am pleased that Congress is able to move 
this provision and begin the restoration of VA's duty to assist 
claimants in developing the evidence and information necessary to 
establish their claims for veterans benefits.

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