[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
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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,
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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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