Congressional Record, Volume 157 Issue 151 (Tuesday, October 11, 2011)

[Congressional Record Volume 157, Number 151 (Tuesday, October 11, 2011)]
[House]
[Pages H6695-H6698]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

VETERANS' BENEFITS TRAINING IMPROVEMENT ACT OF 2011

Mr. MILLER of Florida. Madam Speaker, I move to suspend the rules and
pass the bill (H.R. 2349) to amend title 38, United States Code, to
direct the Secretary of Veterans Affairs to annually assess the skills
of certain employees and managers of the Veterans Benefits
Administration, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 2349

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Veterans' Benefits Act of
2011''.

SEC. 2. ASSESSMENT OF CLAIMS-PROCESSING SKILLS PILOT PROGRAM.

(a) Pilot Program.--Commencing not later than 180 days
after the date of the enactment of the Act, in addition to
providing employee certification under section 7732A of title
38, United States Code, the Secretary of Veterans Affairs
shall carry out a pilot program to assess skills and provide
training described under subsection (b).
(b) Biennial Skills Assessment and Individualized
Training.--
(1) In general.--The Secretary shall--
(A) biennially assess the skills of appropriate employees
and managers of the Veterans Benefits Administration who are
responsible for processing claims for compensation and
pension benefits under the laws administered by the
Secretary, including by requiring such employees and managers
to take the examination provided under section 7732A(a)(1) of
title 38, United States Code; and
(B) on the basis of the results of such assessment and
examination, and on any relevant regional office quality
review, develop and implement an individualized training plan
related to such skills for each such employee and manager.
(2) Remediation.--
(A) Remediation provided.--In providing training under
paragraph (1)(B), if any employee or manager receives a less
than satisfactory result on any portion of an assessment
under paragraph (1)(A), the Secretary shall provide such
employee or manager with remediation of any deficiency in the
skills related to such portion of the assessment and, within
a reasonable period following the remediation, shall require
the employee or manager to take the examination again.
(B) Personnel actions.--In accordance with titles 5 and 38,
United States Code, the Secretary shall take appropriate
personnel actions with respect to any employee or manager
who, after being given two opportunities for remediation
under subparagraph (A), does not receive a satisfactory
result on an assessment under paragraph (1)(A).
(c) Locations and Duration.--The Secretary shall carry out
the pilot program under this section at five regional offices
of the Veterans Benefits Administration during the four-year
period beginning on the date of the commencement of the pilot
program.
(d) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section a total of
$5,000,000 for fiscal years 2012 through 2016.
(e) Reports.--Not later than November 1 of each year in
which the pilot program under this section is carried out,
the Secretary shall submit to the Committee on Veterans'
Affairs of the House of Representatives and the Committee on
Veterans' Affairs of the Senate a report on any assessments
and training conducted under this section during the previous
year. Each such report shall include--
(1) a summary of--
(A) the results of the assessments under subsection
(b)(1)(A);
(B) remediation provided under subsection (b)(2)(A); and
(C) personnel actions taken under subsection (b)(2)(B); and
(2) any changes made to the training program under
subsection (b)(1)(B) based on the results of such assessments
and remediation and the examinations provided under section
7732A(a)(1) of title 38, United States Code.

SEC. 3. EXCLUSION OF CERTAIN REIMBURSEMENTS OF EXPENSES FROM
DETERMINATION OF ANNUAL INCOME WITH RESPECT TO
PENSIONS FOR VETERANS AND SURVIVING SPOUSES AND
CHILDREN OF VETERANS.

(a) In General.--Paragraph (5) of section 1503(a) of title
38, United States Code, is amended to read as follows:
``(5) payments regarding--
``(A) reimbursements of any kind (including insurance
settlement payments) for--
``(i) expenses related to the repayment, replacement, or
repair of equipment, vehicles, items, money, or property
resulting from--

``(I) any accident (as defined in regulations which the
Secretary shall prescribe), but the amount excluded under
this subclause shall not exceed the greater of the fair
market value or reasonable replacement value of the equipment
or vehicle involved at the time immediately preceding the
accident;
``(II) any theft or loss (as defined in regulations which
the Secretary shall prescribe), but the amount excluded under
this subclause shall not exceed the greater of the fair
market value or reasonable replacement value of the item or
the amount of the money (including legal tender of the United
States or of a foreign country) involved at the time
immediately preceding the theft or loss; or
``(III) any casualty loss (as defined in regulations which
the Secretary shall prescribe), but the amount excluded under
this subclause shall not exceed the greater of the fair
market value or reasonable replacement value of the property
involved at the time immediately preceding the casualty loss;
and

``(ii) medical expenses resulting from any accident, theft,
loss, or casualty loss (as defined in regulations which the
Secretary shall prescribe), but the amount excluded under
this clause shall not exceed the costs of medical care
provided to the victim of the accident, theft, loss, or
casualty loss; and
``(B) pain and suffering (including insurance settlement
payments and general damages awarded by a court) related to
an accident, theft, loss, or casualty loss, but the amount
excluded under this subparagraph shall not exceed an amount
determined by the Secretary on a case-by-case basis;''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on the date that is one year after the date
of the enactment of this Act.
(c) Extension of Authority to Obtain Certain Information
From Department of Treasury.--Section 5317(g) of title 38,
United States Code, is amended by striking ``2011'' and
inserting ``2013''.

SEC. 4. AUTHORIZATION OF USE OF ELECTRONIC COMMUNICATION TO
PROVIDE NOTICE TO CLAIMANTS FOR BENEFITS UNDER
LAWS ADMINISTERED BY THE SECRETARY OF VETERANS
AFFAIRS.

(a) In General.--Section 5103 of title 38, United States
Code, is amended--
(1) in subsection (a)(1)--
(A) by striking ``Upon receipt of a complete or
substantially complete application, the'' and inserting
``The'';
(B) by striking ``notify'' and inserting ``provide to'';
and
(C) by inserting ``by the most effective means available,
including electronic communication or notification in
writing'' before ``of any information''; and
(2) in subsection (b), by adding at the end the following
new paragraphs:
``(4) Nothing in this section shall require the Secretary
to provide notice for a subsequent claim that is filed while
a previous claim is pending if the notice previously provided
for such pending claim--
``(A) provides sufficient notice of the information and
evidence necessary to substantiate such subsequent claim; and
``(B) was sent within one year of the date on which the
subsequent claim was filed.
``(5)(A) This section shall not apply to any claim or issue
where the Secretary may award the maximum benefit in
accordance with this title based on the evidence of record.
``(B) For purposes of this paragraph, the term `maximum
benefit' means the highest evaluation assignable in
accordance with the evidence of record, as long as such
evaluation is supported by such evidence of record at the
time the decision is rendered.''.
(b) Construction.--Nothing in the amendments made by
subsection (a) shall be construed as eliminating any
requirement with respect to the contents of a notice under
section 5103 of such title that are required under
regulations prescribed pursuant to subsection (a)(2) of such
section as of the date of the enactment of this Act.

SEC. 5. DUTY TO ASSIST CLAIMANTS IN OBTAINING PRIVATE
RECORDS.

(a) In General.--Section 5103A(b) of title 38, United
States Code, is amended to read as follows:
``(b) Assistance in Obtaining Private Records.--(1) As part
of the assistance provided under subsection (a), the
Secretary shall make reasonable efforts to obtain relevant
private records.
``(2)(A) Whenever the Secretary, after making such
reasonable efforts, is unable to obtain all of the relevant
records sought, the Secretary shall notify the claimant that
the Secretary is unable to obtain records with respect to the
claim. Such a notification shall--
``(i) identify the records the Secretary is unable to
obtain;
``(ii) briefly explain the efforts that the Secretary made
to obtain such records; and
``(iii) explain that the Secretary will decide the claim
based on the evidence of record but that this section does
not prohibit the submission of records at a later date if
such submission is otherwise allowed.
``(B) The Secretary shall make not less than two requests
to a custodian of a private record in order for an effort to
obtain relevant private records to be treated as reasonable
under this section, unless it is made evident by the first
request that a second request would be futile in obtaining
such records.

[[Page H6696]]

``(3)(A) This section shall not apply if the evidence of
record allows for the Secretary to award the maximum benefit
in accordance with this title based on the evidence of
record.
``(B) For purposes of this paragraph, the term `maximum
benefit' means the highest evaluation assignable in
accordance with the evidence of record, as long as such
evaluation is supported by such evidence of record at the
time the decision is rendered.
``(4) Under regulations prescribed by the Secretary, the
Secretary--
``(A) shall encourage claimants to submit relevant private
medical records of the claimant to the Secretary if such
submission does not burden the claimant; and
``(B) in obtaining relevant private records under paragraph
(1), may require the claimant to authorize the Secretary to
obtain such records if such authorization is required to
comply with Federal, State, or local law.''.
(b) Public Records.--Section 5103A(c) of such title is
amended to read as follows:
``(c) Obtaining Records for Compensation Claims.--(1) In
the case of a claim for disability compensation, the
assistance provided by the Secretary under this section shall
include obtaining the following records if relevant to the
claim:
``(A) The claimant's service medical records and, if the
claimant has furnished the Secretary information sufficient
to locate such records, other relevant records pertaining to
the claimant's active military, naval, or air service that
are held or maintained by a governmental entity.
``(B) Records of relevant medical treatment or examination
of the claimant at Department health-care facilities or at
the expense of the Department, if the claimant furnishes
information sufficient to locate those records.
``(C) Any other relevant records held by any Federal
department or agency that the claimant adequately identifies
and authorizes the Secretary to obtain.
``(2) Whenever the Secretary attempts to obtain records
from a Federal department or agency under this subsection,
the efforts to obtain those records shall continue until the
records are obtained unless it is reasonably certain that
such records do not exist or that further efforts to obtain
those records would be futile.''.

SEC. 6. CONDITIONS FOR TREATMENT OF CERTAIN PERSONS AS
ADJUDICATED MENTALLY INCOMPETENT FOR CERTAIN
PURPOSES.

(a) In General.--Chapter 55 of title 38, United States
Code, is amended by adding at the end the following new
section:

``Sec. 5511. Conditions for treatment of certain persons as
adjudicated mentally incompetent for certain purposes

``In any case arising out of the administration by the
Secretary of laws and benefits under this title, a person who
is mentally incapacitated, deemed mentally incompetent, or
experiencing an extended loss of consciousness shall not be
considered adjudicated as a mental defective under subsection
(d)(4) or (g)(4) of section 922 of title 18 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.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 55 of such title is amended by adding at
the end the following new item:

``5511. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes.''.

SEC. 7. REINSTATEMENT OF PENALTIES FOR CHARGING VETERANS
UNAUTHORIZED FEES.

(a) In General.--Section 5905 of title 38, United States
Code, is amended to read as follows:

``Sec. 5905. Penalty for certain acts

``Except as provided in section 5904 or 1984 of this title,
whoever--
``(1) in connection with a proceeding before the
Department, knowingly solicits, contracts for, charges, or
receives any fee or compensation in connection for--
``(A) the provision of advice on how to file a claim for
benefits under the laws administered by the Secretary; or
``(B) the preparation, presentation, or prosecution of such
a claim before the date on which a notice of disagreement is
filed in a proceeding on the claim,
or attempts to do so;
``(2) unlawfully withholds from any claimant or beneficiary
any part of a benefit or claim under the laws administered by
the Secretary that is allowed and due to the claimant or
beneficiary, or attempts to do so;
``(3) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures the commission
of such an act; or
``(4) causes an act to be done, which if directly performed
would be punishable by this chapter,
shall be fined as provided in title 18, or imprisoned for not
more than one year, or both.''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply with respect to acts committed after the date of
the enactment of this Act.

SEC. 8. PERFORMANCE AWARDS IN THE SENIOR EXECUTIVE SERVICE.

For each of fiscal years 2012 through 2016, the Secretary
of Veterans Affairs may not pay more than $2,000,000 in
performance awards under section 5384 of title 5, United
States Code.

SEC. 9. BUDGETARY EFFECTS OF THIS ACT.

The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go-Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Florida (Mr. Miller) and the gentleman from California (Mr. Filner)
each will control 20 minutes.
The Chair recognizes the gentleman from Florida.
Mr. MILLER of Florida. Madam Speaker, I yield myself such time as I
may consume.
I support strongly H.R. 2349, as amended, the Veterans' Benefits
Training Improvement Act of 2011. It was created by the chairman of the
Subcommittee on Disability Assistance and Memorial Affairs, the
gentleman from New Jersey (Mr. Runyan). It also was worked on in
collaboration with the ranking member of that subcommittee, the
gentleman from California (Mr. McNerney).
To describe H.R. 2349, as amended, I would like to yield such time as
he may consume to the gentleman from New Jersey (Mr. Runyan).
Mr. RUNYAN. Mr. Chairman, thank you again.
Madam Speaker, I rise in support of H.R. 2349, as amended, the
Veterans' Benefits Training Improvement Act of 2011.
There are several components to this legislation, and they are all
aimed towards ensuring the veterans' benefits process is more
efficient, accountable, and fair for all veterans and their families.
The first piece of this legislation addresses the minimalist approach
that the VA has adopted in complying with its employees' skill
certification mandate. This section will reverse the current trend
within the VA of using the employment certification process solely to
increase an employee's pay grade by introducing a pilot program to
conduct a biennial assessment for all claims processors and managers.
The key to this program's success will be individualized remediation.
This will facilitate individual accountability of employees while
addressing disparities in experience and training at the pilot sites
and eventually throughout the VA.
Section 3 prevents the offset of pension benefits for veterans and
their family members due to the receipt of payments by insurance or
settlements to reimburse expenses incurred after an accident or theft.
This will be accomplished by exempting reimbursements of expenses
related to accident, theft, loss, or casualty loss from determinations
of annual income.
The next section implements the use of electronic communication
within the VA to provide notices of responsibility to claimants. This
also removes the administrative provisions which have slowed down the
process for veterans' disability claims. In total, this section will
increase efficiency and help modernize the VA by authorizing the most
effective means available for communication while simultaneously
removing administrative redtape.
Section 5 clarifies the meaning of the VA's duty to assist claimants
in obtaining evidence needed to verify a claim. As a result, this
section establishes a clear and reasonable standard for private record
requests as ``not less than two requests.'' In addition, this section
will encourage claimants to take a proactive role in the claims
process. This, in turn, will have the positive effect of reducing the
claims backlog over the long term.
Section 6 corrects a serious concern which has curtailed the Second
Amendment rights of many VA beneficiaries. Due to unclear and improper
statutory language, under the current system, veterans seeking help
managing their financial affairs are categorized as mentally defective.
They are then entered into an FBI database which prohibits their
ability to legally obtain a firearm. This section would restore these
veterans' constitutional rights by requiring such determinations to be
made by a judge, magistrate, or other judicial authority to properly
determine whether such veterans are, in fact, mentally defective for
the purposes of obtaining a firearm.
Section 7 of this bill is designed to protect the veterans from being
charged excessive fees for aid in submitting applications to the VA for
benefits. Since 2006, there has been an increase in non-accredited
individuals,

[[Page H6697]]

organizations, and private companies that have been taking advantage of
veterans by charging fees to assist them with filing claims for
veterans' benefits with the VA.

{time} 1520

This section reinstates criminal penalties for persons charging
veterans unauthorized fees for preparation and filing veterans claims
with the VA.
The final section addresses the unrestrained government spending on
the part of the VA, which is currently permitted to offer pay increases
and bonuses to managers and employees who had been cited for
mismanagement and poor performance. At a time when our government must
be especially prudent in its management of debt, this section
establishes caps for bonuses and performance awards to VA's most senior
employees at $2 million a year, a reduction from $3.5 million.
It has been an honor working with my colleagues in a bipartisan
manner to move H.R. 2349, as amended, forward. And I thank each Member
for their tireless support on behalf of our honored veterans. I ask all
of my colleagues to join me in supporting this important legislation.
Mr. FILNER. Madam Speaker, I yield myself such time as I may consume.
This is an omnibus bill that on balance I can't support. Omnibus
bills are good and bad, and we have to balance that. Let me tell you
why there are two provisions in here that make it impossible for me to
support this omnibus bill.
Section 2 requires the VA to institute a pilot program to hold
employees of the Veterans Benefits Administration to annual testing and
to even greater training requirements than their current 80 hours at
five regional offices at a cost of $5 million over 5 years. Now, we are
all for training of our employees and want them to do a good job and be
adequately trained for it. Secretary Shinseki has set a goal of
processing all claims within 125 days at 98 percent accuracy. That's a
great goal, and we have to get a handle on that and get a handle on the
backlog and the claims that are languishing unnecessarily.
I think this provision is misguided because it will stand in the way
of reaching the Secretary's goal, because I don't think we can test our
way out of the claims backlog. Anybody can pass a test. The real
question is can they adequately process claims. That's what the VA
needs from its employees, not another additional burden resulting in
work stoppages, which is what this testing requirement will do.
We already have a certification testing program used for the
advancement of VBA employees, which was greatly strengthened in the
bill that we passed in 2008 with great bipartisan support. I think that
this bill has redundant testing and wastes $5 million and will only go
to the fattening of the contractors' pockets who develop the test,
money that I think can be more efficiently used to help our veterans.
I should remind the body that this mandatory testing provision never
passed out of the subcommittee that was responsible for the bill. It
failed. It was withdrawn, but it showed up in the full committee markup
and I think violates the spirit of regular order that we supposedly
prize.
More importantly, there is a provision in this bill which, let me
first state in legal terms and then in English, which would prohibit
the reporting of those who have an appointed VA fiduciary to the
National Instant Criminal Background Check system required by the Brady
Act. What does that mean in English? That means people who have been
judged by the VA to be mentally incompetent of handling their own
financial affairs qualify to purchase a gun. Hello? We heard the chair
of the subcommittee support, oh, this is a constitutional right. Hey,
we have a long history of law and precedent which says we can deny
rights to mentally incompetent people, especially to own a gun, a
handgun. How many people have to commit mass murders who are mentally
incompetent before we understand that we ought to prevent them from
getting a gun in the first place? Yet we have a justification of that
right here in this bill.
The gentleman wants to keep the right to purchase firearms until they
have a determination from a State judge. Well, that's a non sequitur,
Madam Speaker.
While I agree that some of these people who've been judged by the VA
not to be mentally competent to handle their financial affairs may not
pose a threat to themselves or others, the prudent course of action,
the reasonable course of action, the commonsense course of action, the
course of action that will save lives in this Nation is that we not
allow these VA beneficiaries to have access to lethal weapons until the
legal determination is made by that judge. Let's have the determination
first, not after they kill somebody.
So we're going to put guns in the hands of people who may not be
mentally capable of responsible gun ownership. This does not strike the
proper balance between ensuring societal safety and individual rights.
I don't have to list all of the atrocities that have gone on in this
Nation over the past decade that happened because of irresponsible gun
ownership; and yet we have a defense of a bill that specifically, it
doesn't even leave it to implicit, it specifically says if you are
judged to be mentally incompetent, you still have a right to go get a
gun. How stupid are we, Madam Speaker? Come on. This is a scary
thought. It's irresponsible legislating. We have got to do a better job
of striking a balance on this issue.
Everybody on an earlier bill is afraid of Grover Norquist. Everybody
here is afraid of the NRA. Come on, let's be responsible. Let's use
common sense. Let's protect the American people. Let's not go for these
pledges that are made in a partisan way to make sure you're reelected
and hurt the American people in the long run. That's what we are doing
here. This is irresponsible. You give, by law, by a sentence that you
put in, Mr. Chairman, you give them, mentally incompetent people,
they've already been defined as that, you give them the right to be
exempt from the Brady law's registration. Come on, we can do a better
job than that!
I reserve the balance of my time.
Mr. MILLER of Florida. I have no more speakers, if the gentleman is
ready to close.
I reserve the balance of my time.
Mr. FILNER. Madam Speaker, again, there are some good provisions of
this bill. The Hastings provision is especially appropriate. But we owe
the American people better than just ideological legislating because I
made this promise and this is a constitutional right. I believe in the
Second Amendment. But we can regulate the conditions of that amendment,
and this is an especially egregious case which needs regulation.
The VA has said that someone cannot manage their own affairs, and yet
we write in the provision that says, okay, go buy a gun anyway until
some judge says you're mentally incompetent. Let's have the judge's
decision first. Then if they are judged to be mentally sound, they can
buy a gun. That's their constitutional right. They don't have a
constitutional right to be mentally imbalanced and buy a gun that kills
dozens or even hundreds of people. That's what we've seen in this
country for decades. Let's do a better job.
I yield back the balance of my time.
Mr. MILLER of Florida. Madam Speaker, what we owe the United States'
people is the truth.
The truth is that the Senate Veterans Affairs Committee approved
under Democrat leadership this exact language under the past two
Congresses. In fact, what my good friend, the ranking member, wants to
do is to give a bureaucrat within VA the opportunity to adjudicate
somebody mentally incompetent. Now they do have the ability to say they
are not able to control their finances. What this act in the
legislation does is it says they cannot do it without the order or
finding of a judge, a magistrate, or other judicial authority of
competent jurisdiction that such a person is in danger to himself or to
others. I do not believe that a bureaucrat within the Department of
Veterans Affairs has that ability nor that authority, and I think that
judges need to do it. So we do agree on that particular instance.

General Leave

Mr. MILLER of Florida. I ask unanimous consent that all Members have
5 legislative days to revise and extend their remarks.

[[Page H6698]]

The SPEAKER pro tempore (Mr. Stutzman). Is there objection to the
request of the gentleman from Florida?
There was no objection.
Mr. MILLER of Florida. With that, I urge all of my colleagues to
support this outstanding piece of legislation, and I yield back the
balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Florida (Mr. Miller) that the House suspend the rules
and pass the bill, H.R. 2349, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
The title was amended so as to read: ``A bill to amend title 38,
United States Code, to improve the determination of annual income with
respect to pensions for certain veterans, to direct the Secretary of
Veterans Affairs to establish a pilot program to assess the skills of
certain employees and managers of the Veterans Benefits Administration,
and for other purposes.''
A motion to reconsider was laid on the table.

____________________