[Senate Report 107-234]
[From the U.S. Government Publishing Office]
Calendar No. 542
107th Congress Report
SENATE
2nd Session 107-234
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VETERANS HEARING LOSS COMPENSATION ACT OF 2002
_______
August 1, 2002.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany S. 2237]
The Committee on Veterans' Affairs, to which was referred
the bill S. 2237, to amend title 38, United States Code, to
enhance compensation for veterans with hearing loss, and for
other purposes, having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and an
amendment to the title, and recommends that the bill, as
amended, do pass.
Introduction
On April 24, 2002, Committee Chairman John D. Rockefeller
IV introduced S. 2237. S. 2237, as introduced, would have
amended provisions of title 38, United States Code, to enhance
compensation for veterans with hearing loss.
On June 27, 2001, S. 1113 was introduced by Ranking
Committee Member Arlen Specter. Senator Mary Landrieu later
cosponsored the bill. S. 1113 would have increased the amount
of Medal of Honor Roll special pension, to provide for an
annual adjustment in the amount of that special pension.
On November 13, 2001, S. 1680 was introduced by Committee
member Paul D. Wellstone. The bill was later cosponsored by
Senators Joseph R. Biden Jr., Christopher S. Bond, Thomas R.
Carper, Hillary Rodham Clinton, Mark Dayton, Richard J. Durbin,
Judd Gregg, Tim Johnson, Patrick J. Leahy, Harry M. Reid, and
Charles E. Schumer. S. 1680 would have amended the Soldiers'
and Sailors' Civil Relief Act of 1940 to provide that duty of
the National Guard mobilized by a State in support of Operation
Enduring Freedom, or otherwise at the request of the President,
would qualify as military service under that Act.
On January 29, 2002, S. 1905 was introduced by Chairman
Rockefeller at the request of the Administration. S. 1905 would
have enhanced veterans' programs and the ability of the
Department of Veterans Affairs to administer them.
On March 8, 2002, S. 2003 was introduced by Senator Bill
Nelson and cosponsored by Senators Jeff Bingaman, John B.
Breaux, Kent Conrad, Tim Johnson, Mary L. Landrieu, and John
McCain. The bill was later cosponsored by Committee members
Larry Craig, Patty Murray, and Ben Nelson, and Senators Max
Cleland, Durbin, Daniel K. Inouye, John F. Kerry, Carl Levin,
Joseph I. Lieberman, and Jeff Sessions. S. 2003 would have
clarified the applicability of the prohibition on assignment of
veterans benefits to agreements regarding future receipt of
compensation, pension, or dependency and indemnity
compensation.
On March 22, 2002, S. 2073 was introduced by Committee
member Craig. S. 2073 would have provided for the retroactive
entitlement of Ed W. Freemen to Medal of Honor special pension.
On April 9, 2002, S. 2079 was introduced by Chairman
Rockefeller. The bill was later cosponsored by Senators Kent
Conrad and Tim Johnson. S. 2079 would have facilitated and
enhanced judicial review of certain matters regarding veteran's
benefits.
On April 18, 2002, Chairman Rockefeller introduced S. 2205.
S. 2205 would have clarified the entitlement to disability
compensation of women veterans who have service-connected
mastectomies, to provide permanent authority for counseling and
treatment for sexual trauma, and for other purposes.
On April 23, 2002, Ranking Committee Member Specter
introduced S. 2230 with the co-sponsorship of Chairman
Rockefeller. The bill was later cosponsored by Committee member
Craig. S. 2230 would have made permanent the authority of the
Secretary of Veterans Affairs to guarantee adjustable rate
mortgages, and to authorize the guarantee of hybrid adjustable
rate mortgages.
On April 23, 2002, Ranking Committee Member Specter
introduced S. 2231 with the cosponsorship of Chairman
Rockefeller. Committee member Craig later cosponsored the bill.
S. 2231 would have provided an incremental increase in amounts
of educational assistance for survivors and dependents of
veterans.
On May 2, 2002, the Committee held a hearing, chaired by
Senator Rockefeller, to receive testimony on S. 1113, S. 1680,
S. 1905, S. 2003, S. 2073, S. 2079, S. 2205, S. 2230, S. 2231,
and S. 2237.
Testimony was heard from: The Honorable Tim McClain,
General Counsel, Department of Veterans Affairs; Mr. James
Fischl, Director, National Veterans Affairs and Rehabilitation
Commission, The American Legion; Mr. Joseph Violante, National
Legislative Director, Disabled American Veterans; Mr. David
Tucker, Associate Legislative Director, Paralyzed Veterans of
America; and Mr. Dennis Cullinan, Director, National
Legislative Service, Veterans of Foreign Wars.
After carefully reviewing the testimony from the foregoing
hearing, the Committee met in open session on June 6, 2002, and
voted unanimously to report favorably S. 2237, as amended to
include provisions from S. 1680, S. 1905, S. 2003, S. 2073, S.
2079, S. 2205, S. 2230, S. 2231, and S. 2237. Present were
Senators Rockefeller, Jeffords, Wellstone, Murray, Miller,
Nelson, Specter, Thurmond, Murkowski, Hutchinson and Hutchison.
Speakers included Senators Rockefeller, Jeffords, Wellstone,
Murray, Specter and Murkowski. The vote to pass the Committee's
bill was unanimous.
Summary of the Committee Bill as Reported
S. 2237 as reported (hereinafter referred to as the
``Committee bill'') contains various amendments to title 38 of
the United States Code and other freestanding provisions that
would:
(a) clarify the entitlement to special monthly
compensation for women veterans who have service-
connected mastectomies by specifying that female
veterans who have lost half or more of a breast's
tissue are eligible for compensation;
(b) remove the ``total deafness'' requirement for the
non-service-connected ear for compensation for hearing
loss in paired organs, allowing the Department of
Veterans Affairs (hereinafter ``VA'') to consider
partial non-service-connected hearing loss when rating
disability;
(c) give authority for presumption of service-
connected hearing loss associated with particular
military occupational specialties and allow VA to
contract with an independent scientific organization to
review evidence of occupational hearing loss,
particularly that suffered during military service;
(d) increase Medal of Honor pension from $600 to
$1000 per month, provide a cost of living adjustment
for the pension, and make retroactive lump-sum payments
of pension;
(e) prohibit the assignment of monthly veteran's
benefits;
(f) extend the effective date of certain Omnibus
Budget Reconciliation Act provisions to September 30,
2011;
(g) provide for an increase in the aggregate annual
amount authorized for State approving agencies for
administrative expenses from $14,000,000 to $18,000,000
in the Fiscal Years 2003, 2004, and 2005;
(h) clarify and correct various authorities relating
to VA;
(i) authorize a pilot program to guarantee adjustable
rate mortgages and hybrid adjustable rate mortgages;
(j) specify that duty of National Guard members
mobilized by States at the request of a Federal law
enforcement agency for homeland security activities be
treated as military service under the Soldiers and
Sailors' Civil Relief Act;
(k) prohibit certain benefits for persons who commit
capital crimes;
(l) modify the standard of review for the United
States Court of Appeals for Veterans Claims on findings
of fact by the Board of Veterans' Appeals;
(m) authorize review by the United States Court of
Appeals for the Federal Circuit of certain decisions of
law of the United States Court of Appeals for Veterans
Claims;
(n) enhance authority of the United States Court of
Appeals for Veterans Claims to award fees under the
Equal Access to Justice Act for non-attorney
practitioners; and
(o) clarify the retroactive application of the ``duty
to assist'' provisions in the Veterans Claims
Assistance Act.
Committee Bill
SECTION 101: ELIGIBILITY FOR SPECIAL MONTHLY COMPENSATION DUE TO LOSS
OF A BREAST
Background
VA estimates that women now comprise about 5% of enrolled
veterans in the VA healthcare system, a percentage expected to
double over the next two decades. Congress and VA must ensure
that health care and compensation benefits adapt to meet this
growing population's specific needs. The Veterans Benefits and
Health Care Improvement Act of 2000, Public Law 106-419,
authorized VA to provide special monthly compensation to any
woman veteran who ``has suffered the anatomical loss of one or
both breasts (including loss by mastectomy)'' as a result of
military service. 38 U.S.C. Sec. 1114 (k).
On February 14, 2002, VA published a final rule addressing
adjudication of claims for this special monthly compensation.
67 Fed. Reg. 6872. This rule specified that ``Anatomical loss
of a breast exists when there is complete surgical removal of
breast tissue (or the equivalent loss of breast tissue due to
injury). As defined in 38 C.F.R. Sec. 4.116, radical
mastectomy, modified radical mastectomy, and simple (or total)
mastectomy result in anatomical loss of a breast, but wide
local excision, with or without significant alteration of size
or form, does not.'' This decision appears inconsistent with
requirements for ``acquired absence'' of other creative organs
as defined in 38 C.F.R Sec. 3.350, which describe very
specifically how reductions in size or changes in form of male
creative organs can be used to establish loss of use. Measuring
loss of breast tissue should not prove more clinically
challenging than measuring physical or functional loss of male
creative organs.
Although some patients do require mastectomy following a
diagnosis of breast cancer, an increasing number of clinicians
recommend breast-tissue conserving procedures such as wide
local excision for specific patients. Conservation of some
breast tissue does not obviate the need for subsequent
reconstructive surgery, especially if the excision resulted in
significant alteration of size or form, or for additional
intervention with radiation therapy or chemotherapy. Even if
restricting eligibility for compensation to those who have
undergone mastectomy does not influence medical decisions, it
fails to acknowledge that women who undergo significant loss of
breast tissue contend with physical, emotional, and financial
challenges in returning to health.
Committee Bill
Section 101 amends 38 U.S.C. Sec. 1114(k) to specify that
women veterans who have suffered the anatomical loss of half of
the tissue of one or both breasts in or as a result of military
service may be eligible for special monthly compensation. This
provision restores the intent of the original legislation and
makes this provision consistent with other benefits extended
for partial loss or loss of use of an organ.
Cost: Congressional Budget Office (hereinafter ``CBO'')
estimates that the direct spending cost will be less than
$300,000 a year and total about $2 million over the 2003-2012
period.
SECTION 102: ELIMINATES THE ``TOTAL'' DEAFNESS REQUIREMENT FOR THE NON-
SERVICE-CONNECTED EAR, ALLOWING VA TO CONSIDER PARTIAL NON-SERVICE-
CONNECTED HEARING LOSS WHEN RATING DISABILITY
Background
In 1962, Public Law 87-610 was enacted requiring special
consideration for certain cases involving blindness or
bilateral kidney dysfunction when disability of only one eye or
kidney is service-connected. Public Law 87-610 allowed for
compensation as if the ``blindness in both eyes or such
bilateral kidney involvement were the result of service-
connected disability.'' Congress extended the principle of
``paired organ'' impairment to the ears in 1965 with Public Law
89-311. ``This [paired organ] principle recognizes the
additional disability attendant on the non-service-connected
loss of function of a second paired organ when service
connection has been established for the other organ and the
committee believes constitutes a reasonable liberalization of
existing law.'' S. Rept. No. 89-861 (1965). The amendment
provided for a ``veteran [that] has suffered total deafness in
one ear as a result of service-connected disability and total
deafness in the other ear as a result of non-service-connected
disability . . . the Secretary shall assign and pay to the
veteran the applicable rate of compensation under this chapter
as if the combination of disabilities were the result of
service-connected disability.''
Under current 38 U.S.C. Sec. 1160, special consideration is
extended to veterans' service-connected disabilities in
``paired organs or extremities,'' such as eyes, kidneys, lungs,
feet, or hands. For these paired organs or extremities, VA is
authorized to consider any degree of damage to both organs,
even if only one resulted from military service, when rating
disability. Total impairment is not a requirement for eyes,
kidneys, hands, feet, or lungs. In fact, proportional
impairment, such as ``the loss or loss of use of one kidney as
a result of service-connected disability and involvement of the
other kidney as a result of non-service-connected disability,''
is specifically provided for in subsections (1), (2), (4), and
(5) of section 1160(a) of title 38. However, the requirement of
total deafness remains unchanged under current law. 38 U.S.C.
Sec. 1160 (a)(3).
Boyer v. West, 210 F.3d 1351 (2000), demonstrated how this
requirement can affect veterans. Gerald Boyer applied to VA for
service connection for bilateral hearing loss. VA granted Boyer
service connection for the hearing loss in his left ear at
zero-percent disability, but denied service connection for the
hearing loss in his right ear. Under 38 U.S.C. Sec. 1160(a)(3),
Boyer's right-ear hearing loss could not be considered in
rating his service-connected left-ear hearing loss because the
right-ear hearing loss was less than total. On appeal, the
Board of Veterans' Appeals (hereinafter ``BVA'') concluded
that, for the purposes of evaluating the left-ear hearing loss,
Boyer's right-ear hearing had to be considered normal. As a
result, Boyer was not entitled to a compensable rating for his
left-ear loss.
Boyer appealed BVA's decision to the U.S. Court of Appeals
for Veterans Claims (hereinafter ``CAVC''). Relying on 38
U.S.C.Sec. 1160(a) and 38 C.F.R. Sec. 4.85, CAVC affirmed BVA's
decision on Boyer's claim for a compensable rating for his
service-connected left-ear hearing loss. That decision, in
turn, was affirmed by the U.S. Court of Appeals for the Federal
Circuit, stating that 38 U.S.C. Sec. 1160(a)(3) ``plainly
speaks to the issue and precludes any consideration of Mr.
Boyer's right-ear hearing loss for the purposes of evaluating
his service-connected hearing loss in his left ear.''
Committee Bill
Section 102 of the Committee bill would eliminate the
``total deafness'' requirement and, thus, allow VA to consider
partial non-service-connected hearing loss when rating
disability for veterans like Gerald Boyer. The striking of the
word ``total'' in both clauses would allow veterans with less
than total hearing loss in both ears to have their non-service-
connected degree of hearing loss be a factor in evaluation of
service-connected hearing loss. This change would mirror the
exceptions made for other ``paired'' organs and extremities in
section 1160 and is necessary to compensate veterans whose
hearing has been more greatly impaired by service than it would
have been had they not served.
Cost: CBO estimates the direct spending cost will be $2
million in 2003, and about $53 million over the 2004-2007
period, and $178 million over the 2003-2012 period. CBO
estimates that spending subject to appropriations will increase
by $2 million over the 2003-2007 period.
SECTION 103: INDEPENDENT SCIENTIFIC STUDY ON POTENTIAL CONNECTION
BETWEEN MILITARY SERVICE AND HEARING LOSS
Background
According to the February 2001 VBA Annual Benefits Report,
more than 28,000 veterans--almost 11% of those receiving
compensation for the first time--qualified in Fiscal Year 2000
for service-connected disability compensation on the basis of
hearing loss. Tinnitus, a ringing of the ears, and loss of
auditory acuity ranked second and third, respectively, in the
numbers of disabilities most frequently service-connected in
newly compensated veterans. Of these, just over half were rated
10% disabled, and more than 40% were assigned a rating of 0%
disability. A VBA White Paper dated April 4, 2002, showed that
a total of more than 300,000 veterans had been service-
connected for hearing loss by the end of Fiscal Year 2001, with
about 60,000 of these receiving compensation for hearing loss
as their major disability.
In order to establish service connection for hearing loss
or tinnitus, adjudicators must distinguish between noise-
induced hearing loss potentially related to in-service
exposures and hearing disorders unrelated to service. Such
disorders may include age-related hearing loss, one of the most
common health complaints among Americans over the age of 65.
Although research clearly demonstrates a relationship between
occupational or environmental noise and hearing loss in older
adults, establishing a link between a veteran's noise exposure
during service and hearing loss diagnosed years after
separation can be hampered by incomplete medical records and
uncertain clinical evidence.
Research has shown that sound impulses generated by gunfire
can be statistically related to hearing threshold shift--a
change in ability to detect sounds--in exposed recruits. A
study of healthy Finnish military conscripts published in the
journal Military Medicine in 1992 showed that exposure to about
200-300 rifle shots in the course of training, absent any other
acoustic trauma, caused hearing loss that could be measured
clinically but not necessarily noticed subjectively. A 1995
study of hearing loss in thousands of U.S. Army personnel
roughly grouped into high- and low-noise specialties showed
that, despite hearing conservation programs initiated in the
1950's, soldiers in the armor, artillery, and infantry branches
had greater hearing loss than their counterparts in other areas
of service. L.W. Henselman, D. Henderson, J. Shadoan, M.
Sumramaniam, S. Saunders, D. Ohlin. Effects of Noise Exposure,
Race, and Years of Service on Hearing in U.S. Army Soldiers.
Ear and Hearing 1995:16;382-391. This survey also demonstrated
the difficulty of studying service-related hearing loss, as
only 25% of the soldiers in the armor, artillery, and infantry
branches--branches classified as ``high-noise''--had hearing
tests available for evaluation through the Army's hearing
conservation data registry.
Evaluating service-related hearing loss in veterans whose
separations from service occurred many years ago, especially
during wartime, can prove even more challenging. Anecdotally,
veterans have reported that the scarcity of audiometric
resources in the field following World War II meant a wait of
days or weeks, post-discharge, to receive testing prior to
returning home, an unacceptable delay for many. The frequency
with which veterans discharged in this era received audiometric
evaluation--as well as the sensitivity and accuracy of such
testing--are not easily estimated, nor are data uniformly
available for later periods. Even more than forty years after
initiation of military hearing conservation programs, the
adequacy of hearing protection and post-separation testing have
not been conclusively determined.
This lack of a clear clinical history presents an obstacle
to both veterans and VA claims processors in weighing whether
individual hearing loss is service-connected. A veteran who
incurred hearing loss during service might not notice or seek
treatment for that hearing loss for many years. Such a delay
may be especially prevalent given the potentially additive
effects of service-related and age-related hearing disorders,
and the common denial of symptoms.
Although it is plausible to link hearing loss diagnosed
years after separation to noise exposure or acoustic trauma
during service, current data is insufficient to assume this
nexus. When faced with situations of potential exposures with
incomplete scientific evidence and clinical records previously,
the Committee has called upon scientific experts to examine
whether evidence supports a presumption of connection between
in-service exposures and subsequent health effects.
Committee Bill
Section 103 would authorize VA to create a presumption of
service-connection for hearing loss or tinnitus in veterans who
served in certain military occupational specialties if an
outside scientific authority finds that evidence warrants such
a presumption.
The Committee bill would require VA to enter into a
contract with the National Academy of Sciences (hereinafter
``NAS'') or an equivalent scientific organization to review
data related to hearing loss, tinnitus, and military service.
NAS would be charged with reviewing relevant scientific
publications on occupational hearing loss, and identifying
forms of acoustic trauma (including continuously high noise
levels) experienced by servicemembers that could contribute to
hearing loss, hearing threshold shift, or tinnitus. NAS would
be tasked with determining whether hearing disorders resulting
from such exposure would occur immediately or might be noticed
only after a delay, and whether evidence points to cumulative
or progressive hearing problems after the initial insult. NAS
would also be directed to identify military occupational
specialties most likely to be associated with exposures that
could be expected to lead to hearing loss.
Section 103 would also direct NAS to assess whether the
audiometric data collected by the military services are
sufficiently complete and adequate in terms of rate of
participation, thoroughness, and sensitivity to allow an
objective assessment of individual exposure. This would be
based upon a survey of hearing threshold shift records in a
representative sample of members of all service branches during
or after each major conflict of the past century. The
scientific authorities would be asked to use this information
to determine when, if ever, hearing conservation programs
provided sufficient protection and audiometric testing to make
adjudication of hearing loss on an individual basis practical.
VA would be directed to review its own records on hearing
disorders, and to report on the number of claims for disability
compensation for hearing loss, tinnitus, or both from 1999-
2001; the number of those claims awarded, and the disability
ratings assigned; and the total amount of compensation based on
those claims. This report would also include an estimate of the
total cost to VA of adjudicating those claims in full-time-
employee equivalents. Finally, VA would be required to report
on medical care provided to veterans for hearing disorders in
each of the report years, including the number and cost of
hearing aids provided and the military occupational specialties
of those veterans during service.
Collectively, these data would be used by VA to determine
if the evidence warrants a presumption that veterans who served
in specific military occupational specialties during specific
periods were exposed to sufficient noise or acoustic trauma to
cause hearing disorders, regardless of the adequacy of the
individual veteran's audiometric history at separation. Based
on the recommendations of the outside authority and VA's
report, VA would be authorized by the Committee bill to create
a presumption of service connection for hearing loss or
tinnitus for these veterans.
Cost: CBO estimates the cost will be $1 million over the
2003-2007 period in spending subject to appropriations.
SECTION 104: INCREASES THE RATE OF THE MEDAL OF HONOR SPECIAL PENSION
Background
Section 1562 of title 38, of the United States Code
provides a special pension to recipients of the Medal of Honor.
When established in 1916, this pension was meant to recognize,
in some small measure, the extraordinary heroism of the
recipients of our Nation's highest military honor. S. Rept. No.
64-240 (1916). However, the Medal of Honor special pension has
evolved into a form of supplemental income for many recipients.
There are currently 142 living Medal of Honor recipients.
According to testimony presented to the Committee in July 1997
by AMVETS, the majority of Medal of Honor recipients live
solely on Social Security benefits, supplemented by the Medal
of Honor pension. Many recipients also travel extensively,
often at their own expense, to speak at patriotic and
commemorative events. These commitments present an additional
financial strain for these gallant men that ought to be
compensated. The Medal of Honor special pension is currently
$600 per month.
Periodically, the pension amount has been increased to keep
pace with inflation and needs of its recipients. However, these
increases have been irregular in amount and frequency. Since
its inception more than 80 years ago, the pension amount has
been increased on four occasions in amounts ranging from $90 to
$200 (Public Laws 87-138, 95-479, 103-161, and 105-368) to its
current level. For more than 5 years, the Medal of Honor
Society, an organization comprised entirely of Medal of Honor
recipients, has sought to increase the pension amount to $1000
with an automatic cost-of-living adjustment thereafter.
Eligibility to receive the Medal of Honor special pension
is contingent upon having first been awarded the Medal of
Honor. There has been, in some cases, a delay between the date
of a recipient's act of gallantry for which the Medal of Honor
is being awarded, and the date on which the Medal of Honor is
actually awarded. This delay has created a situation which has
resulted in some Medal of Honor recipients receiving lower
aggregate amounts of special pension, based not on differences
of when a recipient's act of valor occurs, but on differences
of when official recognition of that act occurs. Congress has,
in some cases, addressed delay of the award of the Medal of
Honor by conferring retroactive entitlement to special pension
on recipients or their survivors. Section 577 of the National
Defense Authorization Act for Fiscal Year 1998, Public Law 105-
85.
Committee Bill
Section 104 of the Committee bill would increase the Medal
of Honor special pension from $600 to $1000. Beginning in
January 2003, the pension amount would be adjusted annually to
maintain the value of the pension in the face of the rising
cost of living. The amount of this adjustment would match the
percentage of the increase paid to Social Security recipients.
The Committee bill would also provide for a one-time, lump-sum
payment in the amount of pension the recipient would have
received between the date of the act of valor and the date that
the recipient's pension actually commenced.
Cost: CBO estimates the cost will be $2 million in 2003, $6
million over the 5-year period, and $8 million over 10-years.
SECTION 105: PROHIBITS ASSIGNMENT OF MONTHLY VETERANS BENEFITS AND
CREATES AN EDUCATION AND OUTREACH CAMPAIGN ABOUT FINANCIAL SERVICES
AVAILABLE TO VETERANS
Background
Section 5301 of title 38 of the United States Code
currently prohibits the assignment or attachment of a veteran's
disability compensation or pension benefits. Section 5301(a)
provides that:
payments of benefits due or to become due under any
law administered by the Secretary shall not be
assignable except to the extent specifically authorized
by law, and such payments made to, or on account of, a
beneficiary shall be exempt from taxation, shall be
exempt from the claim of creditors, and shall not be
liable to attachment, levy, or seizure by or under any
legal or equitable process whatever, either before or
after receipt by the beneficiary.
In recent years, private companies have offered contracts
to veterans that exchange up-front lump sums for future
benefits, generally valued at a mere 30% of their estimated
future amount. VA's Office of General Counsel has determined
that section 5301(a) provisions were circumvented by
arrangements in which a veteran contracted to pay for services
with future VA benefit payments. These arrangements often
require a veteran to open a joint bank account with the
company, or arrange to have VA benefit checks deposited into an
account identified by the company. The company can then legally
withdraw the money from that account. Some companies have the
veterans arrange for their checks to be sent to a post office
box operated by the company with, presumably, an arrangement
with the veteran to allow the company to cash the check. Some
companies also require the veteran to provide collateral, such
as a home or life insurance policy, in case the veteran stops
payment or dies.
Committee Bill
Section 105 clarifies the applicability of the prohibition
on assignment of veterans benefits through agreements regarding
future receipt of compensation, pension, or dependency and
indemnity compensation. Section 105 would prohibit companies
from entering into agreements with veterans to turn over their
monthly disability compensation benefits to the company in
exchange for a reduced up-front lump sum. It would make the
violation by the companies punishable by a fine and up to one
year in jail. This provision would also require VA to create a
five-year education and outreach campaign to inform veterans
about available financial services, ensuring that those in dire
financial straits are not left without a place to turn.
Cost: CBO estimates that section 105 would have no effect
on direct spending and a negligible effect on spending subject
to appropriation.
SECTION 106: EXTENSION OF INCOME VERIFICATION AUTHORITY
Background
Section 106 would extend provisions which originated in
Public Law 101-508, the Omnibus Budget Reconciliation Act of
1990, giving the Internal Revenue Service (hereinafter ``IRS'')
authority to furnish income information to VA from IRS records.
The Act required IRS to disclose to VA income information so
that VA might determine eligibility for VA needs-based pension,
parents' dependency and indemnity compensation, and VA health-
care services.
In 1985, Committee member Murkowski requested that the
General Accounting Office (hereinafter ``GAO'') review the
accuracy of self-reported beneficiary income using certain
income tax data maintained by IRS. The study found
discrepancies between the income data the beneficiaries
reported to VA and that reported to IRS in nearly half of the
sample cases. S. Rept. No. 101-134 (1989). This review provided
the impetus for the original legislation, intended to prevent
the payment of needs-based benefits to claimants who under-
report their income.
This provision, codified at Internal Revenue Code
Sec. 6103(l)(7)(D)(viii), was authorized to remain in effect
through September 30, 1992, by Public Law 101-508. In 1992,
Public Law 102-568 extended the authority through September 30,
1997. Public Law 103-66 extended the authority to September 30,
1998, and in 1997, this authority was extended again through
September 30, 2003, by Public Law 105-33.
Additional provisions of Public Law 101-508, codified at 38
U.S.C. Sec. 5317, provide parallel authority for VA to use IRS
information and require VA to notify applicants for needs-based
benefits that income information furnished by the applicant may
be compared with the information obtained from the Departments
of Health and Human Services and Treasury under Internal
Revenue Code Sec. 6103(l)(7)(D)(viii). This parallel authority
was originally in effect through September 30, 1992, pursuant
to Public Law 101-508. In 1992, Public Law 102-568 extended the
authority to September 30, 1997. In 1993, Public Law 103-66
extended it to September 30, 1998. In 1997, Public Law 105-33
extended the authority to September 30, 2002. The VA
Secretary's authority to use IRS income data is now scheduled
to expire on September 30, 2008, pursuant to Public Law 106-
409.
Committee Bill
Section 106(a) of the Committee bill would extend Internal
Revenue Code Sec. 6103(l)(7)(D)(viii) until September 30, 2011,
and section 106(b) would extend 38 U.S.C. Sec. 5317 until
September 30, 2011.
Cost: CBO estimates that this provision will result in
savings of $7 million in 2003, $76 million over 5-years, and
$231 million over the 2004-2012 period.
SECTION 201: INCREASES THE AMOUNT OF FUNDING AUTHORIZED TO STATE
APPROVING AGENCIES
Background
Under chapter 36 of title 38, United States Code, State
Approving Agencies (hereinafter ``SAAs'') assist VA in ensuring
the quality and integrity of educational institutions and job-
training establishments where veterans, spouses and eligible
children use VA educational benefits. Recent legislation has
expanded the number and types of learning opportunities
available to veterans and other beneficiaries, thereby
increasing the workload of the SAAs.
In 2000, Congress enacted Public Law 106-419, which allows
veterans education benefits to be used for the payment of
licensing and certification tests required for certain
professions. SAAs evaluate and approve entities offering these
tests. Public Law 107-103, enacted in 2001, expanded the
definition of ``educational institution'' for Montgomery GI
Bill (hereinafter ``MGIB'') payment eligibility to include
certain private entities offering courses to advance trainees
in high technology vocations. Public Law 107-103 also allowed
the use of MGIB benefits to enroll in non-college degree
programs offered by institutions of higher learning. SAAs are
responsible for determining eligibility and approving such
courses and programs. Under Public Law 107-103, SAAs also
assumed greater veterans outreach responsibilities.
The last permanent increase in authorized funding for SAAs
was in Public Law 103-446 for Fiscal Year 1995. Section 123 of
Public Law 106-419 specified a temporary increase until the end
of Fiscal Year 2002. Without Congressional action, the funding
level will revert from $14 million to $13 million. SAA funding
does not receive cost-of-living adjustments.
Committee Bill
Section 201 would increase the amount authorized for SAA
funding to $18 million through Fiscal Year 2005.
Cost: CBO estimates the cost will be $5 million in 2003,
and $15 million over 2003-2005.
SECTION 202: TECHNICAL CORRECTIONS TO VARIOUS AUTHORITIES RELATING TO
VA EDUCATION ASSISTANCE BENEFITS
Committee Bill
This section clarifies and makes technical amendments to
various education authorities.
Cost: CBO did not estimate any cost to be associated with
section 202.
SECTION 301: AUTHORIZES VA TO CREATE A PILOT PROGRAM TO GUARANTEE
ADJUSTABLE RATE AND HYBRID ADJUSTABLE RATE HOME MORTGAGE LOANS
Background
The VA Home Mortgage Loan Guarantee program, established in
1944 by Public Law 78-346, was meant to help veterans readjust
to civilian life following service in World War II. As private
mortgage lending practices have evolved, this VA guaranty
program has not kept pace.
For more than a decade, adjustable rate mortgages
(hereinafter ``ARMs'') have been commonplace in the home loan
market. These loans provide potential home buyers with greater
flexibility by offering, in the early years of the loan, lower
interest rates than conventional fixed-rate home mortgage
loans. While there is a risk that interest rates may increase
over the life of the loan, this risk is mitigated by generally
accepted safeguards limiting the amount that the interest rate
may increase per year and over the life of the loan.
More recently, hybrid adjustable rate mortgages have gained
prominence within the home mortgage industry. This type of
mortgage provides a fixed interest rate for the first 3 to 10
years of the loan, with annual interest rate adjustments
thereafter. Much like conventional ARMs, hybrid ARMs offer
lower interest rates during the early years of the loan.
Currently, VA is the only major mortgage market participant
without authority to guarantee ARMs and hybrid ARMs. These
options are available under the Federal Housing
Administration's loan insurance program. The Committee believes
that a pilot program should be established to determine if
these loan options would significantly benefit veterans seeking
to purchase a home by creating greater flexibility in financing
options.
Committee Bill
Section 301 of the Committee bill would authorize VA to
establish a 3-year pilot program to guarantee hybrid ARMs and
re-authorize a 1995 pilot program to guarantee conventional
ARMs. This authority would begin in Fiscal Year 2003 and expire
at the end of Fiscal Year 2005.
Cost: CBO estimates the subsidy cost of vendee loans and
sales of vendee loans would be less than $500,000 a year over
the 2003-2005 period and about $1 million a year over the 2006-
2012 period.
SECTION 401: EXTENDS SOLDIERS AND SAILORS CIVIL RELIEF ACT PROTECTION
TO NATIONAL GUARD MEMBERS CALLED TO ACTIVE DUTY UNDER TITLE 32,
UNITED STATES CODE
Background
The Soldiers and Sailor's Civil Relief Act of 1940
(hereinafter ``SSCRA''), 50 U.S.C. Sec. Sec. 501-90, applies to
servicemembers on active service. It was enacted to promote and
strengthen the national defense by suspending enforcement of
certain civil liabilities of servicemembers on active duty,
thus allowing them to devote their energies to the defense
needs of the Nation. SSCRA provides certain rights and legal
protections to servicemembers who have been called up for
active duty. For example, interest on debts that preceded
active duty, such as mortgages, is reduced to 6%.
Servicemembers and their families cannot be evicted or have
their home mortgages foreclosed upon during active duty and
life insurance cannot be canceled, unless it specifically
excludes coverage for military service. Certain legal judgments
cannot be rendered against absent servicemembers by default,
and property cannot be sold to pay taxes during the
servicemember's absence.
National Guard members may be activated under titles 10 or
32 of the U.S. Code. Title 10 authority is used for missions of
national defense funded by the Federal government and commanded
by the President and the Secretary of Defense. National Guard
members called to duty under title 32 authority fall under the
command of their State Governor. Section 502(f) of title 32
allows National Guard members to be called up ``to perform
training or other duty.'' These missions are funded by the
Federal government, but the National Guard units are under the
command of the governor. Only National Guard members who are
called up under title 10 are protected by SSCRA.
Following the events of September 11, 2001, National Guard
members were activated by States to guard airports at the
request and expense of the Federal government. Under the
direction of President George W. Bush, the Federal Aviation
Administration asked the Department of Defense to coordinate
the use of National Guard members at commercial airports
nationwide for a period of four to six months. Clearly, these
servicemembers were called up to serve a national mission, but
their title 32 status prohibited them from receiving SSCRA
protections.
S. 2514, the National Defense Authorization Act for Fiscal
Year 2003, would specifically authorize the Governor of a
State, upon a request by the head of a Federal law enforcement
agency and with the concurrence of the Secretary of Defense, to
order National Guard members of a State to perform full-time
duty under 502(f) of title 32 for the purpose of carrying out
homeland security activities.
Committee Bill
Section 401 of the Committee bill would expand SSCRA
protections to include those National Guard members serving
full-time, upon an order of the Governor of a State, by request
of the head of a Federal law enforcement agency and with the
concurrence of the Secretary of Defense, under 502(f) title 32
for homeland security purposes. Thus, SSCRA benefits will be
provided to National Guard members called up under the specific
authority contemplated under the Defense Authorization Act in
response to the Nation's current focus on homeland security.
Cost: CBO estimates that this provision would have little
or no net effect on federal direct spending and a negligible
effect on State and local tax revenues. CBO was unable to
estimate private sector costs associated with section 401.
SECTION 402: PROHIBITS CERTAIN ADDITIONAL BENEFITS FOR PERSONS
COMMITTING CAPITAL CRIMES
Background
Under current law, veterans are eligible for a number of
benefits by virtue of their service to the Nation. These
benefits are generally provided without consideration of the
veteran's conduct following his or her discharge from the Armed
Services. However, Congress has limited VA benefits available
to veterans who die while fleeing prosecution or after being
convicted of a capital crime.
Sections 6103, 6104, and 6105 of title 38, United States
Code, state that a veteran who has been convicted of fraud,
treason, or subversion forfeits all rights and claims to VA
benefits or compensation. Congress extended this forfeiture of
benefits in 1997 with the passage of Public Law 105-116. That
statute prohibited persons who committed capital crimes from
interment or memorialization in the National Cemetery System,
Arlington National Cemetery, or in State cemeteries that
receive VA grant funding. 38 U.S.C. Sec. Sec. 2411 and 2408(d).
However, this limitation was not extended to the provision of
Presidential Certificates of Appreciation, burial flags and VA
grave markers.
Committee Bill
Section 402 of the Committee bill, would prohibit the
issuance of Presidential Certificates of Appreciation, flags,
and memorial headstones or grave markers to veterans convicted
or fleeing from prosecution of a State or Federal capital
crime.
Cost: CBO estimates that this provision would have little
or no net effect on direct spending.
SECTION 403: MODIFIES THE PROCEDURES FOR DISQUALIFICATION OF PERSONS
COMMITTING CAPITAL CRIMES FOR INTERMENT OR MEMORIALIZATION IN NATIONAL
CEMETERIES
Background
Section 2411 of title 38 of the United States Code
prohibits interment or memorialization in a cemetery in the
National Cemetery System or in Arlington National Cemetery of
any person convicted of a capital crime. In addition, it
prohibits interment or memorialization of persons found by the
Secretary of Veterans Affairs or the Secretary of the Army to
have committed capital crimes but who avoided conviction of the
crime through flight or death preceding prosecution. 38 U.S.C.
Sec. 2411(b). In such cases, the VA Secretary or the Secretary
of the Army must receive notice from the Attorney General of
the United States, or the appropriate State official, of the
Secretary's own finding before the prohibition shall apply.
This requirement is administratively unwieldy and
unnecessarily redundant.
Committee Bill
Section 403 of the Committee bill would eliminate the
requirement that the VA Secretary or the Secretary of the Army
be notified of a finding by the Attorney General or the
appropriate State official, in cases of persons who are found
to have committed capital crimes but who avoided conviction of
the crime through flight or death preceding prosecution.
Cost: CBO did not estimate any cost to be associated with
section 403.
SECTION 501: STANDARD FOR REVERSAL BY COURT OF APPEALS FOR VETERANS
CLAIMS OF ERRONEOUS FINDING OF FACT BY BOARD OF VETERANS' APPEALS
Background
Under 38 U.S.C. Sec. 7261(a)(4), CAVC applies a ``clearly
erroneous'' standard of review to findings of fact made by BVA.
The ``clearly erroneous'' standard has been defined as
requiring CAVC to uphold BVA findings of fact if the findings
are supported by ``a plausible basis in the record . . . even
if [CAVC] might not have reached the same factual
determinations.'' Wensch v. Principi, 15 Vet. App. 362, 366-68
(2001) (affirming BVA's denial of service connection where
appellant provided substantial medical evidence in support of
the claim).
The ``clearly erroneous'' standard was originally adopted
in 1988 in the Veterans' Judicial Review Act, Public Law 100-
687, which established the current system of appellate
adjudication for VA benefits cases. The statute was amended
slightly by Public Law 101-237 in 1989, although the ``clearly
erroneous'' standard of judicial review remained unchanged.
The ``clearly erroneous'' standard emerged as part of a
compromise agreement after Senate approval of S. 11 and the
House of Representatives approval of H.R. 5288. S. 11 directed
CAVC to set aside a BVA factual finding only ``when it is so
utterly lacking in a rational evidentiary basis that a manifest
and grievous injustice would result if the finding were not set
aside.'' H.R. 5288 precluded any CAVC review of BVA factual
determinations ``unless a constitutional issue is presented.''
The House and Senate Committees on Veterans' Affairs noted that
the ``clearly erroneous'' standard adopted at conference is
``markedly wider than the standard specified in the Senate
bill.'' 134 Cong. Rec. 31772 (1988).
More than a decade of experience with CAVC's application of
the ``clearly erroneous'' standard suggests that CAVC is not
consistently performing thorough reviews of BVA findings and
that the Congressional intent for a broad standard of review
has often been narrowed in application. In the recent U.S.
Court of Appeals for the Federal Circuit decision of Hensley v.
West, 212 F.3d 1255 (Fed. Cir. 2000), the Federal Circuit
vacated a CAVC decision that BVA had not erred in finding that
a veteran's claim was not well-grounded. The Federal Circuit
rejected CAVC's de novo review, which it characterized as a
``dissecting [of] the factual record in minute detail.'' Id. at
1264. The Federal Circuit emphasized that CAVC should perform
only limited, deferential review of BVA decisions, and stated
that BVA fact-finding ``is entitled on review to substantial
deference.'' Id. at 1263. The Committee is concerned with the
high level of deference that Hensley suggests CAVC should
employ in its review of BVA findings.
The limited extent of CAVC's review of BVA fact-finding is
also evident in CAVC opinions. CAVC has described its level of
review as ``significantly deferential'' and providing only
``very narrow bases for the Court to overturn [BVA] . . .
determinations.'' Butts v. Brown, 5 Vet. App. 532, 544 (1993)
(sustaining BVA's rejection of a veteran's claim of service
connection); see also Ammons v. Gober, 2000 WL 1114147 (Vet.
App. 2000); accord Presley v. West, 2000 WL 1114124 (Vet. App.
2000) (describing the ``clearly erroneous'' standard as
``deferential'' and upholding BVA's denial of service
connection). Although Ammons and Presley are both unpublished
memorandum decisions, they exemplify the limited extent of the
review CAVC is performing of BVA fact-finding. This undesirable
situation may be the result of confusion concerning the
``clearly erroneous'' standard, which exists outside the rubric
set forth in the Administrative Procedure Act (hereinafter
``APA''). 5 U.S.C. Sec. 5107(2)(e).
In their testimony at the Committee hearing on May 2, 2002,
veterans service organizations (hereinafter ``VSOs'') voiced
frustration with the perceived lack of searching appellate
review of BVA decisions. These groups argued that the large
measure of deference that CAVC affords BVA fact-finding is
detrimental to claimants and may result in failure to consider
the ``benefit of the doubt'' rule in 38 U.S.C. Sec. 5107(b).
Section 5107(b) provides that VA must find for the claimant
when, considering the evidence of record, there is an
approximate balance of positive and negative evidence regarding
any material issue including the ultimate merits of the claim.
This ``benefit of the doubt'' standard is distinctly different
from standards applicable to most adjudicatory proceedings,
where claimants are required to produce a preponderance of
evidence so that the weight of the evidence favoring their
claims.
VA also testified at the Committee hearing on May 2, 2002,
and opined that CAVC routinely considers whether BVA has
applied the ``benefit of the doubt'' rule. However, VA
suggested that if the Committee believed a less restrictive
standard than ``clear erroneous'' was warranted that the
substantial evidence standard of the APA was appropriate.
The Committee solicited comments from CAVC, the Federal
Circuit, and the Administrative Office of the United States
Courts. All declined to comment.
Committee Bill
Section 501 amends section 7261(a)(4) of title 38 to change
the standard of review CAVC applies to BVA findings of fact
from ``clearly erroneous'' to ``unsupported by substantial
evidence.'' Section 502 also cross-references section 5107(b)
in order to emphasize that the Secretary's application of the
``benefit of the doubt'' to an appellant's claim shall be
considered by CAVC on appeal. The combination of these changes
is intended to provide far more searching appellate review of
BVA decisions, and thus give full force to the ``benefit of the
doubt'' provision. The formula ``unsupported by substantial
evidence of record'' is similar to the standard specified in
the APA, and should be interpreted as such except that the
interpretation must reflect the ``benefit of the doubt'' rule
and thus provide a unique bias in favor of the claimant when
the evidence is balanced.
Change in CAVC's standard of review was first proposed in
S. 2079. That bill would have changed the ``clearly erroneous''
standard by allowing CAVC reversal of BVA fact-finding whenever
that finding was ``not reasonably supported by a preponderance
of the evidence.'' The Committee modified this standard in
order to provide a more familiar and judicially-recognized
standard of appellate review. Although the ``clearly
erroneous'' standard has been interpreted by some to require an
incrementally more searching review than ``substantial
evidence,'' the ``substantial evidence'' standard is within the
APA's rubric.\1\ Under the APA's rubric for agency review,
``substantial evidence'' review is the least deferential review
an appellate court may apply short of ``de novo'' review. By
including specific reference to the ``benefit of the doubt''
rule in the amendment made by section 501 and moving to a
standard that is recognized to provide for searching review,
the Committee intends for section 501 to make it clear that
CAVC is to provide a thorough review of VA benefits claims on
appeal.
---------------------------------------------------------------------------
\1\ The ``substantial evidence'' formula has been judicially
interpreted to be slightly more deferential than a traditional
``clearly erroneous'' standard. Dickinson v. Zurko, 527 U.S. 150, 162-
163 (1999). However, the difference, if any, is slight: the Supreme
Court stated in Dickinson: ``[T]he difference is a subtle one-so fine
that (apart from the present case) we have failed to uncover a single
instance in which a reviewing court conceded that use of one standard
rather than the other would in fact have produced a different
outcome.'' Id.
---------------------------------------------------------------------------
The Committee intends the ``substantial evidence'' standard
to mandate a limited degree of deference to BVA fact-finding,
with substantial deference given to findings of fact based on
demeanor evidence, but to provide for searching judicial review
of VA benefits claims encompassing the ``benefit of the doubt''
rule. The Committee believes this formula will achieve this
goal.
Cost: CBO was unable to provide a cost estimate associated
with section 501.
SECTION 502: REVIEW BY THE U.S. COURT OF APPEALS FOR THE FEDERAL
CIRCUIT OF CERTAIN DECISIONS OF LAW
Background
In their testimony at the Committee hearing on May 2, 2002,
VSOs expressed concerns about the perceived inability of the
U.S. Court of Appeals for the Federal Circuit to review certain
CAVC decisions, specifically those involving questions of law
not ``with respect to the validity of any statute or
regulation.'' 38 U.S.C. Sec. 7292(a). In the Independent Budget
for Fiscal Year 2003, the veterans service organizations
offered the ``treating physician rule'' as an example of judge-
made law that is not derived from a specific regulation or
statute. The ``treating physician rule'' refers to an
evidentiary rule applied in Social Security cases where greater
weight is given to the opinion of a physician who treated the
claimant than the opinion of a non-treating expert. The
veterans service organizations argued that there is no valid
reason why this particular class of legal decisions should be
exempt from judicial review, while legal decisions that involve
interpretation of regulations or statutes receive appellate
review. VA responded at a Committee hearing on May 2, 2002,
asserting that the Federal Circuit has assumed the power to
address such questions, specifically citing Bailey v. West, 160
F.3d 1360 (Fed. Cir. 1998) (en banc), where the Federal Circuit
examined the validity of the ``treating physician rule,'' and
implicitly found jurisdiction to determine the issue, but did
not object to the provision. In sum, confusion has developed as
to the extent of the Federal Circuit's jurisdiction to hear
appeals of CAVC decisions that are not clearly legal
interpretations of statutes or regulations.
Committee Bill
Section 502 responds to the concerns raised above by
amending sections 7292(a) and (c) of title 38 to provide for
appellate review of a CAVC decision on any rule of law. The
purpose of this change is to clarify the jurisdiction of the
Federal Circuit when reviewing CAVC decisions so as to include,
unequivocally, CAVC decisions involving rulings of law not
derived from a statute or regulation.
Cost: CBO was unable to provide a cost estimate associated
with section 502.
SECTION 503: AUTHORITY OF COURT OF APPEALS FOR VETERANS CLAIMS TO AWARD
FEES UNDER EQUAL ACCESS TO JUSTICE ACT TO NON-ATTORNEY PRACTITIONERS
Background
Currently, VA claimants who enlist the aid of attorneys and
non-attorney practitioners supervised by attorneys, and who are
successful in their claims and satisfy certain statutory
requirements, can avail themselves of the benefits of the Equal
Access to Justice Act (hereinafter ``EAJA''), 28 U.S.C.
Sec. 2412(d). The EAJA shifts the burden of attorney fees from
the citizen to the government in cases where the government's
litigation position in not substantially justified and the
citizen does not exceed certain income and asset criteria. In
the case of VA claims, claimants are often represented up to
and through CAVC by qualified non-attorney representatives from
the VSOs.
Based upon a long-standing limitation on paying attorney
fees in veterans' benefits cases, there had not been an active
veterans' bar until the enactment of the Veterans Judicial
Review Act, Public Law 100-527. As a result, non-attorney
volunteers and employees of veterans service organizations and
other non-profit organizations began to represent veteran
claimants before VA without direct supervision by an attorney.
VA policy has never required that these representatives be
attorneys, only that they be credentialed by a VA-recognized
VSO. Currently, these non-attorney practitioners, who have been
credentialed by VSOs and admitted to practice before CAVC, are
not eligible for EAJA fees unless the EAJA application is
signed by an attorney.
Committee Bill
Section 503 would allow VSOs to be awarded fees under the
EAJA for representation provided to VA claimants by their
employee non-attorney practitioners without the requirement
that attorney to sign the EAJA application.
Cost: CBO estimates that this provision would have no
effect on mandatory spending and an insignificant effect on
discretionary spending.
SECTION 504: CLARIFICATION OF RETROACTIVE APPLICATION OF PROVISIONS OF
THE VETERANS CLAIMS ASSISTANCE ACT
Background
Public Law 106-475, the Veterans Claims Assistance Act of
2000 (hereinafter ``VCAA''), restored and enhanced VA's duty to
assist claimants in developing their claims for veterans
benefits. VCAA requires VA to take very specific steps to
assist claimants.
Although VA was already required to notify a claimant whose
application was incomplete, under VCAA VA must also inform a
claimant of any medical or lay evidence necessary to
substantiate his or her claim. VCAA also specified that this
notice must indicate which portion of the evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on behalf of the claimant.
VCAA clarified VA's duty to assist claimants in developing
evidence for their claims for benefits. Section 3 requires VA
to make reasonable efforts to assist in obtaining evidence
necessary to substantiate a claimant's eligibility for
benefits, but allows VA to decide a claim without providing
such assistance when no reasonable possibility exists that such
assistance will aid in substantiating the claim. Relevant
records must be obtained by VA if the claimant adequately
identifies them to VA and authorizes them to be obtained. VA
must inform the claimant whenever it is unable to obtain such
records.
In the case of a veteran's claim for disability
compensation, section 3 also requires that VA obtain the
claimant's relevant service medical records and, if the
claimant has furnished sufficient information, other relevant
service records, existing records of relevant medical treatment
or examination at VA health care facilities, and any other
relevant records held by a Federal department or agency. VA
must provide a medical examination or obtain a medical opinion
when the evidence indicates that the claimant has a current
disability or persistent or recurrent symptoms of disability,
which may be associated with active military service, and when
such an examination or opinion is necessary for VA to make a
decision on the claim.
Two recent decisions by the U.S. Court of Appeals for the
Federal Circuit have found that the provisions in section 3 of
VCAA pertaining to VA's duty to assist cannot be applied
retroactively to claims pending at the time of enactment. In
Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), the Federal
Circuit stated: ``The Supreme Court has held that a federal
statute will not be given retroactive effect unless Congress
has made its contrary intention clear. There is nothing in the
VCAA to suggest that section 3(a) was intended to applied [sic]
retroactively.'' In Bernklau v. Principi, 291 F.3d 795, 806
(2002), the Court again concluded: ``[S]ection 3(a) of the VCAA
does not apply retroactively to require that proceedings that
were complete before the Department of Veterans Affairs and
were on appeal to the Court of Appeals for Veterans Claims or
this court be remanded for readjudication under the new
statute.''
Committee Bill
Section 504 clarifies Congress' intention that section 3 of
VCAA, be applied retroactively to cases that were ongoing
either at the various adjudication levels within VA or pending
at the applicable Federal courts prior to the date of VCAA's
enactment. In order to prevent the creation of a group of VA
claimants who would have their claims decided without the
benefit of the additional VA assistance under VCAA, section 505
of the Committee bill contains language that would provide for
claims decided between the handing down of the Dyment case and
enactment of this provision to receive the full notice,
assistance, and protection afforded under VCAA. VCAA was
enacted to ensure that VA assist veterans in obtaining evidence
that is vital to their claims. This provision clarifies that
section 3 of the VCAA applies retroactively in order to ensure
that those VA claimants whose claims are denied or dismissed
during the period between April 24, 2002 and the date of
enactment of this Act, are given the higher level of VA
assistance required.
Cost: CBO estimates that this provision would have no
effect on mandatory spending and an insignificant effect on
discretionary spending.
Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 1, 2002.
Hon. John D. Rockefeller IV,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2237, the Veterans
Benefits Improvement Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Melissa E.
Zimmerman.
Sincerely,
Barry B. Anderson,
for Dan L. Crippen, Director.
S. 2237 Veterans Benefits Improvement Act of 2002 (As ordered reported
by the Senate Committee on Veterans' Affairs on June 6, 2002)
SUMMARY
S. 2237 would affect several veterans programs, including
compensation, pensions, burial benefits, housing, and
education. The bill contains provisions that would increase
direct spending for certain veterans' compensation, housing,
and education programs. It also contains a provision to extend
income verification authorities that would reduce direct
spending over the 2004-2012 period. On balance, CBO estimates
that enacting S. 2237 would result in a net increase in direct
spending totaling $31 million in 2003, $69 million over the
2003-2007 period, and $49 million over the 2003-2012 period.
The bill also contains one provision that could affect
revenues, but we cannot estimate the amounts of any such
effects. Because the bill would affect direct spending and
revenues, pay-as-you-go procedures would apply.
In addition, CBO estimates that implementing S. 2237 would
increase spending subject to appropriation by $2 million in
2003 and $4 million over the 2003-2007 period, assuming
appropriation of the necessary amounts.
While S. 2237 contains an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA), CBO
estimates that the costs of complying with that mandate would
not exceed the threshold established in that act ($58 million
in 2002, adjusted annually for inflation).
The bill also contains a private-sector mandate as defined
by UMRA that would extend coverage under the Soldiers and
Sailors Civil Relief Act to certain National Guard members who
are performing homeland security activities. While the number
of National Guard members affected by this extension is
currently quite small, CBO cannot estimate how many members
might be called up to perform these duties in the future, and
thus, we cannot determine the extent of the mandate. CBO
expects that the cost could exceed the UMRA threshold for
private-sector mandates ($115 million in 2002, adjusted
annually for inflation) if, in the future, a large number of
National Guard members were called up by the states to perform
homeland security activities.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of S. 2237 is shown in Table
1. The costs of this legislation fall within budget functions
700 (veterans benefits and services) and 750 (administration of
justice).
Table 1.--Estimated Budgetary Impact of S. 2237
[By Fiscal Year, in Millions Dollars]
------------------------------------------------------------------------
2003 2004 2005 2006 2007
------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING a, b
Estimated Budget Authority...... 31 27 25 -6 -8
Estimated Outlays............... 31 27 25 -6 -8
CHANGES IN SPENDING SUBJECT TO
APPROPRIATION a
Estimated Authorization Level... 2 c c c c
Estimated Outlays............... 2 c c c c
------------------------------------------------------------------------
a In addition to the bill's impact on direct spending and discretionary
spending, CBO estimates that S. 2237 could increase revenues into the
Crime Victims Fund over the 2003-2012 period for settlement of court
cases brought by the Department of Veterans Affairs (VA) against
veterans who sign over their rights to compensation to another party.
CBO cannot provide a specific estimate, however, given the uncertainty
surrounding the number of cases that might be brought by VA, when any
such cases might be resolved, or the size of any penalties that a
court might impose.
b A provision in S. 2237 would direct VA to presume that, for veterans
who served on active duty during certain time periods and in certain
military occupations, hearing loss and tinnitus are service-connected
disabilities for the purposes of compensation. CBO cannot estimate the
cost of any increase in compensation payments that may result from
enacting this provision because we cannot estimate the number of
veterans who might be eligible for compensation benefits until the
National Academy of Sciences completes a study and VA writes the
necessary regulations. It is possible, however, that the costs of this
provision could be significant depending on how many veterans could
gain eligibility for compensation under the new regulations.
c Less than $500,000.
BASIS OF ESTIMATE
Direct Spending and Revenues
The legislation would affect direct spending in veterans'
programs for compensation, pensions, burial benefits, housing,
and education. Table 2 summarizes those effects, and the
individual provisions that would affect direct spending are
described below.
Table 2.--Estimated Direct Spending Under S. 2237
[By Fiscal Year, Outlays in Millions of Dollars]
----------------------------------------------------------------------------------------------------------------
2002 2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
COMPENSATION, PENSIONS, AND BURIAL BENEFITS
Spending Under Current Law.......................... 24,406 25,678 26,910 30,115 28,674 27,013
Proposed Changes.................................... 0 4 -1 -4 -7 -9
Spending Under S. 2237.............................. 24,406 25,682 26,909 30,111 28,667 27,004
HOUSING
Spending Under Current Law.......................... -1,041 299 317 326 335 341
Proposed Changes.................................... 0 22 23 24 1 1
Spending Under S. 2237.............................. -1,041 321 340 350 336 342
VETERANS' READJUSTMENT BENEFITS
Spending Under Current Law.......................... 1,959 2,276 2,544 2,715 2,875 3,036
Proposed Changes.................................... 0 5 5 5 0 0
Spending Under S. 2237.............................. 1,959 2,281 2,549 2,720 2,875 3,036
----------------------------------------------------------------------------------------------------------------
Compensation, Pensions, and Burial Benefits. Several
sections of the bill would affect spending for veterans'
disability compensation, pensions, and burial benefits (see
Table 3). Together, those provisions would increase spending by
$4 million in 2003, but would lower spending by $17 million
over the 2003-2007 period and by $42 million over the 2003-2012
period.
Compensation for Hearing Loss in Paired Organs. For
veterans with hearing loss, current law requires that both ears
must be diagnosed as totally deaf for hearing loss that was not
caused by military service to be rated as service-connected for
the purposes of disability compensation. Section 102 would
modify this requirement so that any degree of hearing loss in
one ear that was not caused by military service would be rated
as service-connected if any degree of hearing loss in the other
ear was rated as service-connected.
Table 3. Estimated Changes in Direct Spending for Compensation,
Pensions, and Burial Benefits Under S. 2237
[By Fiscal Year, Outlays in Millions of Dollars]
------------------------------------------------------------------------
Description of Provision 2003 2004 2005 2006 2007
------------------------------------------------------------------------
Compensation for Hearing Loss in 2 7 11 15 18
Paired Organs..................
Income Verification Extension... 0 -9 -16 -23 -28
Medal of Honor Special Pension.. 2 1 1 1 1
Mastectomy Benefits............. a a a a a
Denial of Burial Benefits....... a a a a a
Retroactive Claims Assistance... a a a a a
---------------------------------------
Total Changes in 4 -1 -4 -7 -9
Compensation, Pensions, and
Burial Benefits b..........
------------------------------------------------------------------------
a Less than $500,000.
b A provision in S. 2237 would direct VA to presume that, for veterans
who served on active duty during certain time periods and in certain
military occupations, hearing loss and tinnitus are service-connected
disabilities for the purposes of compensation. CBO cannot estimate the
cost of any increase in compensation payments that may result from
enacting this provision because we cannot estimate the number of
veterans who might be eligible for compensation benefits until the
National Academy of Sciences completes a study and VA writes the
necessary regulations. It is possible, however, that the costs of this
provision could be significant depending on how many veterans could
gain eligibility for compensation under the new regulations.
Based on data provided by the Department of Veterans
Affairs (VA), CBO estimates that enacting this provision would
increase the disability compensation paid to eligible veterans
by about $100 a month on average. CBO estimates that, over the
2003-2007 period, about 6,000 veterans who are already
receiving disability compensation for hearing loss would apply
for a reevaluation of their rating and receive an increase in
their monthly disability payment. CBO also estimates that, over
the 10-year period, about 1,500 veterans would be eligible for
the higher payment out of the almost 33,000 veterans who would
receive ratings for hearing loss for the first time each year.
Considering expected mortality and new disability claims
for hearing loss, CBO estimates that about 13,000 veterans
would be receiving the increase in compensation in 2007 and
about 19,000 veterans would receive it in 2012. After
accounting for cost-of-living adjustments (COLAs) over the
2003-2012 period, CBO estimates that section 102 would increase
direct spending by about $2 million in 2003, $53 million over
the 2003-2007 period, and $178 million over the 2003-2012
period. (CBO estimates that implementing this section also
would increase spending subject to appropriation by about $2
million over the 2003-2007 period, assuming appropriation of
the estimated amounts. CBO's estimate of those outlays is
discussed below under the heading of ``Spending Subject to
Appropriation.'')
Income Verification Extension. Section 106 would extend
authorities under current law that allow VA to acquire
information on income reported to the Internal Revenue Service
(IRS) to verify income reported by recipients of VA pension
benefits. The authorization allowing the IRS to provide income
information to VA will expire on September 30, 2003, while the
authorization allowing VA to acquire the information will
expire on September 30, 2008. Section 106 would extend these
authorities through September 30, 2011, for both VA and the
IRS. Because current law allows VA and the IRS to conduct
income verification through the end of fiscal year 2003, CBO
estimates that enacting this provision would provide no
additional cost savings for that year.
CBO estimates that, based on recent experience, VA will
save (under current law) approximately $7 million in pension
benefit overpayments from verifying veterans' incomes in 2003.
Using that information, CBO estimates that enacting section 106
would result in direct spending savings of $76 million over the
2004-2007 period and $231 million over the 2004-2012 period.
Medal of Honor Special Pension. Section 104 would increase
the special pension paid to most Medal of Honor recipients from
$600 to $1,000 a month and, beginning on December 1, 2003,
increase the pension each year by the same cost-of-living
adjustment payable to Social Security recipients. This
provision also would direct VA to pay a lump-sum payment to
compensate each recipient of the special pension for the time
period between the recognized act of valor and the first
special pension payment. The amount of the payment would be
calculated using the rate of compensation that was in effect
during the applicable time period. According to VA and the
Congressional Medal of Honor Society, there are 145 Medal of
Honor recipients that would receive the special pension
increase and COLAs under this provision, and 139 recipients who
would be eligible for the lump-sum payments.
CBO estimates that this provision would cost roughly $2
million in 2003, the year the lump-sum payments would be made.
In each subsequent year, CBO estimates the provision would cost
less than $1 million a year. In total, CBO estimates the
provision would cost $8 million over the 2003-2012 period.
Mastectomy Benefits. Veterans who have suffered certain
service-connected anatomical losses (e.g., the loss of a hand,
a foot, etc.) are eligible to receive a special compensation
payment of $80 a month in addition to any other disability
compensation they receive. Under current law, to be entitled to
this special compensation for the loss of breast tissue caused
by breast cancer that was diagnosed during military service, a
woman must have lost an entire breast as the result of a
mastectomy. Section 101 would change this standard by providing
the special compensation to women who have lost half or more of
the breast tissue as a result of a mastectomy for breast cancer
that was diagnosed during military service.
Based on data provided by VA, CBO estimates that less than
150 women would be entitled to the special compensation in 2003
under this provision, with about 10 new cases occurring each
year after that. CBO estimates that the additional cost to
provide special payments to the affected women would be less
than $300,000 a year and total about $2 million over the 2003-
2012 period.
Presumption of Service Connection for Hearing Loss. Section
103 would direct VA to presume that, for veterans who served on
active duty during certain time periods and in certain military
occupations, hearing loss and tinnitus are service-connected
disabilities for the purposes of compensation. VA would be
authorized to issue regulations specifying the qualifying time
periods and occupations, and to subsequently provide monthly
disability compensation payments to qualifying veterans based
on a study to be conducted by the National Academy of Sciences
(NAS) in 2003. Because of the time needed to conduct the study
and draft the regulations, CBO estimates that VA would not
increase disability compensation benefits to eligible veterans
under this provision until 2004.
CBO cannot estimate the cost of any increase in
compensation payments that may result from enacting this
provision because we cannot estimate the number of veterans who
might be eligible for compensation benefits until the NAS
completes the study and VA writes the regulations. It is
possible, however, that the costs of this provision could be
significant depending on how many veterans could gain
eligibility for compensation under the new regulations. (CBO
estimates that implementing this section also would increase
spending subject to appropriation by $1 million over the 2003-
2007 period, assuming appropriation of the estimated amounts.
CBO's estimate of those outlays is discussed below under the
heading of ``Spending Subject to Appropriation.'')
Prohibition on Assigning Benefits. Section 105 would
prohibit beneficiaries from signing over their rights to
receive veterans' compensation, pension, or dependency and
indemnity compensation benefits to another person. Any person,
including the beneficiary, who participates in an arrangement
to reassign benefits would be subject to a fine, imprisonment,
or both penalties. This provision also would direct VA to
conduct a five-year outreach program to inform veterans about
the prohibition on assigning benefits.
Because those prosecuted and convicted under section 105
could be subject to criminal fines, the government might
collect additional fines if this provision is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund, and later spent. CBO cannot estimate the
impact on receipts because we cannot determine how many alleged
violators VA might file suit against, whether the agency would
win such legal action, or the size of any penalties that a
court might impose. (CBO estimates that implementing this
section also would increase spending subject to appropriation
by a negligible amount over the 2003-2007 period, assuming
appropriation of the estimated amounts. CBO's estimate of those
outlays is discussed below under the heading of ``Spending
Subject to Appropriation.'')
Standard of Reversal and Scope of Authority. Under current
law, the Court of Appeals for Veterans Claims (CAVC) must
determine that any finding of material fact in a veteran's
appeal of a VA decision is ``clearly erroneous' to disregard it
in reaching a decision. Section 502 would direct the CAVC to
apply a less restrictive standard to evaluate findings of
material fact that are adverse to the claimant. It also would
allow the CAVC to reverse a finding under this standard.
Based on information provided by the Board of Veterans
Appeals, CBO expects that enacting this provision could make it
more likely that the CAVC would set aside VA findings of fact
that are adverse to the claimant which could result in more
cases being remanded to VA or decided in favor of the claimant.
CBO cannot estimate the cost of enacting this provision,
however, because we cannot predict the outcome of such
litigation before the CAVC.
Review by Court of Appeals for the Federal Circuit. Section
503 would expand the jurisdiction of the U.S. Court of Appeals
for the Federal Circuit (CAFC) to allow the court to review a
``rule of law.'' A rule of law is a legal issue that does not
involve a statute, regulation, or constitutional provision, but
that may involve judicially created legal principles. According
to VA, enacting section 503 would likely cause more cases to
fall under CAFC jurisdiction. Because we cannot predict the
outcome of litigation brought before the CAFC, however, CBO
cannot estimate any potential increase in direct spending that
may result from a change in the number of decisions being
reversed in favor of claimants.
Other Provisions. CBO estimates that the following
provisions would have an insignificant budgetary impact on
direct spending:
Denial of Burial Benefits. Current law
authorizes VA to provide a Presidential Memorial
Certificate, a flag to drape the casket, and a
headstone or grave marker for veterans who were
discharged or separated from active duty under
conditions other than dishonorable to memorialize their
death. Section 402 would authorize VA to deny these
benefits to veterans who have been convicted of a
capital crime and sentenced to death or life
imprisonment.
CBO estimates that enacting this section would have
an insignificant effect on the federal budget. Using
data from the U.S. Bureau of Justice Statistics and the
Federal Bureau of Prisons, CBO estimates that the
prohibition would authorize VA to deny these benefits
to only a small number of veterans each year. Based on
information from the National Cemetery Administration,
the cost savings would be less than $150 a person, CBO
estimates.
Retroactive Claims Assistance. The Veterans
Claims Assistance Act of 2000 (VCAA), enacted on
November 9, 2000, directed VA to provide assistance to
veterans who file claims for VA benefits. VA
interpreted the VCAA as being retroactive for certain
cases that were open on or after the VCAA was enacted;
however, in 2002, the CAVC ruled that the VCAA does not
apply retroactively for any case.
Section 505 would amend the law to specify that the
VCAA applies retroactively for all cases. It also would
direct VA to assist the veterans whose claims were
affected by the court's ruling by helping them document
their claim for reconsideration by the department. This
provision would only apply to certain cases that were
pending before a court on November 9, 2000, and had
been denied after April 24, 2002. According to
information provided by VA, less than five cases would
be eligible to be reopened. While we cannot predict the
outcome of these appeals, CBO estimates that because of
the very small number of cases, the cost of enacting
this provision would be negligible.
Housing. Section 301 would authorize VA to guarantee
adjustable rate mortgages (ARMs) through 2005, including a
relatively new mortgage product, known as a hybrid ARM. These
mortgages carry an initial fixed interest rate for longer than
one year and then are subject to interest rate adjustments. The
hybrid ARMs authorized under the bill would carry an initial
fixed interest rate for a period of not less than three years
of the mortgage term.
Based on information from VA and the Federal Housing
Administration, CBO estimates that about 10,000 new ARMs worth
roughly $1.6 billion would be guaranteed each year under this
new authority and that these loans would be 20 percent larger
and 20 percent more likely to enter into default than fixed-
rate mortgages. (CBO estimates that fixed-rate mortgages have a
default rate of 10.5 percent and that these ARMs would have a
default rate of 12.4 percent.) CBO estimates that the net
subsidy cost, as defined by the Federal Credit Reform Act, of
providing guarantees for these ARMs would average $23 million
over the 2003-2005 period. That estimate reflects gross costs
averaging about $27 million a year, offset by savings of about
$4 million a year for having fewer guarantees of fixed-rate
mortgages. (Under the Federal Credit Reform Act, the subsidy
cost of a new guaranteed loan is the net present value of
estimated costs--at the time the loan is disbursed--of expected
payments by the government to cover defaults and delinquencies,
and other payments, net of expected payments to the government
including any loan fees, penalties, and recoveries.)
When a guaranteed loan defaults and goes into foreclosure,
VA often acquires the property and issues a new direct loan
(called a vendee loan) when the property is sold. VA sells most
vendee loans on the secondary mortgage market and guarantees
their timely repayment. Based on information from VA, CBO
estimates the subsidy cost of vendee loans and sales of vendee
loans would be less than $500,000 a year over the 2003-2005
period and about $1 million a year over the 2006-2012 period.
Veterans' Readjustment Benefits. Section 201 would increase
the amount available to state approving agencies by $5 million
each year in 2003, 2004, and 2005. CBO expects this change
would increase direct spending by $15 million over the 2003-
2005 period.
SPENDING SUBJECT TO APPROPRIATION
CBO estimates that implementing S. 2237 would increase
discretionary spending for VA's general operating expenses by
$2 million in 2003 and $4 million over the 2003-2007 period,
assuming that the necessary amounts are appropriated.
Compensation for Hearing Loss in Paired Organs. For
veterans with hearing loss, current law requires that both ears
must be diagnosed as totally deaf for hearing loss that was not
caused by military service to be rated as service-connected for
the purposes of disability compensation. Section 102 would
modify this requirement so that any hearing loss in one ear
that was not caused by military service would be rated as
service-connected if any degree of hearing loss in the other
ear was rated as service-connected. CBO estimates that enacting
this provision would cause certain veterans with hearing loss
to seek a reevaluation of their rating for disability
compensation from VA. CBO estimates that, as a result of
implementing this provision, about 4,000 veterans would submit
applications for a reevaluation of their rating in 2003 on top
of VA's routine workload for rating applications. CBO also
estimates that in 2003, under this provision, about 500
veterans would apply for disability compensation for hearing
loss that would otherwise not apply. Processing these
additional applications would cost less than $1 million in 2003
and about $2 million over the 2004-2007 period, CBO estimates.
Presumption of Service Connection for Hearing Loss. Section
103 would direct the Secretary of Veterans Affairs to enter
into an agreement with the NAS or another appropriate
scientific organization to conduct a study to determine the
military occupations and time periods, if any, under which
servicemembers may have been exposed to conditions likely to
cause or contribute to hearing loss or tinnitus. Based on
information provided by NAS, CBO estimates that it would cost
about $1 million in 2003 to perform this study.
Review by Court of Appeals for the Federal Circuit. Section
503 would expand the jurisdiction of the U.S. Court of Appeals
for the Federal Circuit to allow the court to review a ``rule
of law.'' According to VA, enacting section 503 would likely
increase the number of cases brought before the court. CBO
cannot estimate the costs associated with this larger workload
because we have no basis on which to predict the number of
veterans that might file an appeal under this provision.
Standard of Reversal and Scope of Authority. Section 502
would direct the CAVC to apply a less restrictive standard to
evaluate findings of material fact that are adverse to the
claimant and allow the court to reverse a finding under this
new standard. Based on information provided by the Board of
Veterans Appeals, CBO expects that more cases could be remanded
to VA or decided in favor of the claimant than under current
law. Thus, CBO believes that CAVC actions could, under section
502, increase VA's discretionary costs for processing and
paying claims. CBO cannot estimate the likelihood or magnitude
of such effects, however, because there is no basis to predict
the outcome of such litigation before the CAVC.
Other Provisions. CBO estimates that implementing the
following provisions would cost less than $500,000 a year:
Fees for Non-Attorney Practitioners. Current law
authorizes the CAVC to award fees and expenses to attorneys who
successfully represent clients before the court. Section 504
would authorize the CAVC to award these fees and expenses to
individuals who are not attorneys as well. According to VA,
there are less than 35 of these practitioners who present a
small number of cases before the court each year. Thus, CBO
estimates that the cost of implementing this provision would be
insignificant.
Retroactive Requirement to Assist Claimants.
Section 505, described above under the heading of ``Direct
Spending,'' would increase administrative costs for the CAVC
because it would expand the docket for that court. However, CBO
estimates that the costs of implementing this provision would
be negligible because the court's docket would grow by less
than five cases.
Prohibition on Assigning Benefits. Section 105
would prohibit beneficiaries from signing over their rights to
receive veterans' compensation, pension, or dependency and
indemnity compensation benefits to another person. Any person,
including the beneficiary, who participates in an arrangement
to reassign benefits would be subject to a fine, imprisonment,
or both penalties. This provision also would direct VA to
conduct a five-year outreach program to inform veterans about
the prohibition on assigning benefits. According to VA, the
department would carry out this outreach program by adding
information about the prohibition into its regular mailings to
veterans. CBO estimates that the cost of updating these
documents would be negligible.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts. The net changes in outlays that are
subject to pay-as-you-go procedures are shown in Table 4. For
the purposes of enforcing pay-as-you-go procedures, only the
effects through fiscal year 2006 are counted.
Table 4.--Estimated Impact of S. 2237 on Direct Spending and Receipts
[By Fiscal Year, in Millions of Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays a............................................ 0 31 27 25 -6 -8 -11 -13 -14 -14 32
Changes in receipts............................................. 0 b b b b b b b b b b
--------------------------------------------------------------------------------------------------------------------------------------------------------
a A provision in S. 2237 would direct the Department of Veterans Affairs to presume that, for veterans who served on active duty during certain time
periods and in certain military occupations, hearing loss and tinnitus are service-connected disabilities for the purposes of compensation. CBO cannot
estimate the cost of any increase in compensation payments that may result from enacting this provision because we cannot estimate the number of
veterans who might be eligible for compensation benefits until the National Academy of Sciences completes a study and VA writes the necessary
regulations. It is possible, however, that the costs of this provision could be significant depending on how many veterans could gain eligibility for
compensation under the new regulations.
b CBO estimates that S. 2237 could increase revenues into the Crime Victims Fund over the 2003-2012 period for settlement of court cases brought by the
Department of Veterans Affairs against veterans who sign over their rights to compensation to another party. CBO cannot provide a specific estimate,
however, given the uncertainty surrounding the number of cases that might be brought by VA, when any such cases might be resolved, or the size of any
penalties that a court might impose.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
S. 2237 contains an intergovernmental mandate as defined in
UMRA because it would extend coverage under the Soldiers and
Sailors Civil Relief Act (SSCRA) to National Guard members who
are called up by the states but are performing homeland
security activities upon the request of a federal law
enforcement agency. This coverage would extend to those
National Guard members certain protections including the right
to maintain a single state of residence for purposes of state
and local personal and income taxes, and the right to request a
deferral in the payment of certain state and local taxes and
fees.
While CBO has no basis for estimating the number of
National Guard members that would ultimately be eligible for
such protections, based on information from the Federation of
Tax Administrators, we expect that relatively few would take
advantage of these protections and that the per capita cost
would be small. We thus estimate that any lost tax revenues to
state and local governments are unlikely to exceed the
threshold for intergovernmental mandates ($58 million in 2002,
adjusted annually for inflation).
The remaining provisions of S. 2237 contain no
intergovernmental mandates and would impose no costs on state,
local, or tribal governments.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
The bill contains a private-sector mandate as defined by
UMRA. Section 401 would extend coverage under SSCRA to National
Guard members who are called up by the states but are
performing homeland security activities upon the request of a
federal agency and with the agreement of the Department of
Defense.
SSCRA requires creditors to reduce the interest rate on
servicemembers' obligations to 6 percent when such obligations
predate active-duty service, unless the creditor convinces a
court that a member's financial situation has not been
materially affected by reason of military service. SSCRA also
allows the courts, when they find that active-duty service has
adversely affected a member's financial condition, to
temporarily stay certain civil proceedings, such as evictions,
foreclosures, and repossessions.
Since the number of affected personnel, while currently
small, fluctuates, CBO cannot determine the extent of the
mandate. The per capita mandate would be small, but the cost
could exceed the UMRA threshold if, in the future, a large
number of National Guard members fell into this category.
UMRA's threshold for private-sector mandates is $115 million in
2002 (and is adjusted annually for inflation).
PREVIOUS CBO ESTIMATE
On June 10, 2002, CBO transmitted a cost estimate for H.R.
4085, the Veterans' and Survivors' Benefits Expansion Act of
2002, as ordered reported by the House Committee on Veterans'
Affairs on May 9, 2002. Section 6 of H.R. 4085, which increases
funds for state approving agencies, is effectively identical to
section 201 of H.R. 2237. CBO estimates both sections would
cost $15 million over the 2003-2007 period.
Estimate prepared by: Federal Costs: (Compensation,
Pensions, Burial Benefits, and Court of Appeals for Veterans
Claims) Melissa E. Zimmerman; (Education Benefits) Sarah T.
Jennings; (Housing) Sunita D'Monte. Impact on State, Local, and
Tribal Governments: Theresa Gullo. Impact on the Private
Sector: Sally S. Maxwell.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Committee Bill, As Reported
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, the following provides a print of the
statute or the part or section thereof to be amended or
replaced (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
Sec. 112. Presidential memorial certificate program
* * * * * * *
(c) A certificate may not be furnished under the program
under subsection (a) on behalf of a deceased person described
in section 2411(b) of this title.
* * * * * * *
Sec. 1113. Presumptions rebuttable
(a) Where there is affirmative evidence to the contrary, or
evidence to establish that an intercurrent injury or disease
which is a recognized cause of any of the diseases or
disabilities within the purview of section 1112, 1116, 1117,
[or 1118] 1118, or 1119 of this title, has been suffered
between the date of separation from service and the onset of
any such diseases or disabilities, or the disability is due to
the veteran's own willful misconduct, service-connection
pursuant to section 1112, 1116, [or 1118] 1118, or 1119 of this
title, or payments of compensation pursuant to section 1117 of
this title, will not be in order.
(b) Nothing in section 1112, 1116, 1117, [or 1118] 1118, or
1119 of this title, subsection (a) of this section, or section
5 of Public Law 98-542 (38 U.S.C. 1154 note) shall be construed
to prevent the granting of service-connection for any disease
or disorder otherwise shown by sound judgment to have been
incurred in or aggravated by active military, naval, or air
service.
Sec. 1114. Rates of wartime disability compensation
For the purposes of section 1110 of this title--
* * * * * * *
(k) if the veteran, as the result of service-
connected disability, has suffered the anatomical loss
or loss of use of one or more creative organs, or one
foot, or one hand, or both buttocks, or blindness of
one eye, having only light perception, has suffered
complete organic aphonia with constant inability to
communicate by speech, or deafness of both ears, having
absence of air and bone conduction, or, in the case of
a woman veteran, has suffered the anatomical loss of
half or more of the tissue of one or both breasts
(including loss by mastectomy), the rate of
compensation therefor shall be $80 per month for each
such loss or loss of use independent of any other
compensation provided in subsections (a) through (j) or
subsection (s) of this section but in no event to
exceed $2,691 per month; and in the event the veteran
has suffered one or more of the disabilities heretofore
specified in this subsection, in addition to the
requirement for any of the rates specified in
subsections (l) through (n) of this section, the rate
of compensation shall be increased by $80 per month for
each such loss or loss of use, but in no event to
exceed $3,775 per month;
* * * * * * *
CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH
SUBCHAPTER I--GENERAL
Sec.
* * * * * * *
1119. Presumption of service connection for hearing loss associated
with particular military occupational specialties.
* * * * * * *
Sec. 1119. Presumption of service connection for hearing loss
associated with particular military occupational
specialties
(a) For purposes of section 1110 of this title, and subject
to section 1113 of this title, hearing loss, tinnitus, or both
of a veteran who served on active military, naval, or air
service during a period specified by the Secretary under
subsection (b)(1) and was assigned during the period of such
service to a military occupational specialty or equivalent
described in subsection (b)(2) shall be considered to have been
incurred in or aggravated by such service, notwithstanding that
there is no record of evidence of such hearing loss or
tinnitus, as the case may be, during the period of such
service.
(b)(1) A period referred to in subsection (a) is a period, if
any, that the Secretary determines in regulations prescribed
under this section--
(A) during which audiometric measures were
consistently not adequate to assess individual hearing
threshold shift; or
(B) with respect to service in a military
occupational specialty or equivalent described in
paragraph (2), during which hearing conservation
measures to prevent individual hearing threshold shift
were unavailable or provided insufficient protection
for members assigned to such military occupational
specialty or equivalent.
(2) A military occupational specialty or equivalent referred
to in subsection (a) is a military occupational specialty or
equivalent, if any, that the Secretary determines in
regulations prescribed under this section in which individuals
assigned to such military occupational specialty or equivalent
in the active military, naval, or air service are or were
likely to be exposed to a sufficiently high level of acoustic
trauma as to result in permanent hearing loss, tinnitus, or
both.
(c) In making determinations for purposes of subsection (b),
the Secretary shall take into account the report submitted to
the Secretary by the National Academy of Sciences under section
103(c) of the Veterans Benefits Improvement Act of 2002.
(d)(1) Not later than 60 days after the date on which the
Secretary receives the report referred to in subsection (c),
the Secretary shall determine whether or not a presumption of
service connection for hearing loss, tinnitus, or both is
warranted for the hearing loss, tinnitus, or both, as the case
may be, of individuals assigned to each military occupational
specialty or equivalent, and during each period, identified by
the National Academy of Sciences in such report as a military
occupational specialty or equivalent in which individuals are
or were likely to be exposed during such period to a
sufficiently high level of acoustic trauma as to result in
permanent hearing loss, tinnitus, or both to a degree which
would be compensable as a service-connected disability under
the laws administered by the Secretary.
(2) If the Secretary determines under paragraph (1) that a
presumption of service connection is warranted with respect to
any military occupational specialty or equivalent described in
that paragraph and hearing loss, tinnitus, or both, the
Secretary shall, not later than 60 days after the date of the
determination, issue proposed regulations setting forth the
Secretary's determination.
(3) If the Secretary determines under paragraph (1) that a
presumption of service connection is not warranted with respect
to any military occupational specialty or equivalent described
in that paragraph and hearing loss, tinnitus, or both, the
Secretary shall, not later than 60 days after the date of the
determination--
(A) publish the determination in the Federal
Register; and
(B) submit to the Committees on Veterans' Affairs of
the Senate and the House of Representatives a report on
the determination, including a justification for the
determination.
(e) Any regulations issued under subsection (d)(2) shall take
effect on the date provided for in such regulations. No benefit
may be paid under this section for any month that begins before
that date.
* * * * * * *
Sec. 1160. Special consideration for certain cases of loss of paired
organs or extremities
(a) Where a veteran has suffered--
* * * * * * *
(3) [total] deafness in one ear as a result of
service-connected disability and [total] deafness in
the other ear as the result of non-service-connected
disability not the result of the veteran's own willful
misconduct;
* * * * * * *
Sec. 1562. Special provisions relating to pension
(a) The Secretary shall pay monthly to each person whose name
has been entered on the Army, Navy, Air Force, and Coast Guard
Medal of Honor roll, and a copy of whose certificate has been
delivered to the Secretary under subsection (c) of section 1561
of this title, a special pension at the rate of [$600] $1,000,
as adjusted from time to time under subsection (e), beginning
as of the date of application therefor under section 1560 of
this title.
* * * * * * *
(e) Effective as of December 1 each year, the Secretary shall
increase the amount of monthly special pension payable under
subsection (a) as of November 30 of such year by the same
percentage as the percentage by which benefit amounts payable
under title II of the Social Security Act (42 U.S.C. 401 et
seq.) are increased effective December 1 of such year as a
result of a determination under section 215(i) of that Act (42
U.S.C. 415(i)).
* * * * * * *
Sec. 2301. Flags
* * * * * * *
(g) A flag may not be furnished under this section on behalf
of a deceased person described in section 2411(b) of this
title.
[(g)] (h)(1) The Secretary may not procure any flag for the
purposes of this section that is not wholly produced in the
United States.
* * * * * * *
Sec. 2306. Headstones, markers, and burial receptacles
* * * * * * *
(g)(1) A headstone or marker may not be furnished under
subsection (a) for the unmarked grave of a person described in
section 2411(b) of this title.
(2) A memorial headstone or marker may not be furnished under
subsection (b) for the purpose of commemorating a person
described in section 2411(b) of this title.
(3) A marker may not be furnished under subsection (d) for
the grave of a person described in section 2411(b) of this
title.
* * * * * * *
Sec. 2411. Prohibition against interment or memorialization in the
National Cemetery System or Arlington National
Cemetery of persons committing Federal or State
capital crimes
(a)(1) * * *
* * * * * * *
(2) [The prohibition] In the case of a person described in
subsection (b)(1) or (b)(2), the prohibition under paragraph
(1) shall not apply unless written notice of a conviction [or
finding under subsection (b)] referred to in subsection (b)(1)
or (b)(2), as the case may be, is received by the appropriate
Federal official before such official approves an application
for the interment or memorialization of such person. Such
written notice shall be furnished to such official by the
Attorney General, in the case of a Federal capital crime, or by
an appropriate State official, in the case of a State capital
crime.
* * * * * * *
Sec. 3011. Basic educational assistance entitlement for service on
active duty
(a) Except as provided in subsection (c) of this section,
each individual--
(1) who--
* * * * * * *
(C) as of December 31, 1989, was eligible for
educational assistance benefits under chapter
34 of this title and--
* * * * * * *
(ii) reenlists or reenters on a
period of active duty [on or] after
October 19, 1984; and
* * * * * * *
CHAPTER 30--ALL-VOLUNTEER FORCE EDUCATIONAL ASSISTANCE PROGRAM
SUBCHAPTER I--PURPOSES; DEFINITIONS
Sec.
* * * * * * *
[3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology industry.]
3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology occupation
in high technology industry.
* * * * * * *
[Sec. 3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology
industry]
Sec. 3014A. Accelerated payment of basic educational assistance for
education leading to employment in high technology
occupation in high technology industry
* * * * * * *
(b) An individual described in this subsection is an
individual who is--
(1) enrolled in an approved program of education that
leads to [employment in a high technology industry]
employment in a high technology occupation in a high
technology industry (as determined pursuant to
regulations prescribed by the Secretary); and
* * * * * * *
Sec. 3035. Allocation of administration and of program costs
* * * * * * *
(b)(1) Except to the extent provided in [paragraphs (2) and
(3) of this subsection,] paragraphs (2), (3), and (4), payments
for entitlement earned under subchapter II of this chapter
shall be made from funds appropriated to, or otherwise
available to, the Department of Veterans Affairs for the
payment of readjustment benefits and from transfers from the
Post-Vietnam Era Veterans Education Account pursuant to section
3232(b)(2)(B) of this title.
* * * * * * *
(4) Payments attributable to the increased usage of benefits
as a result of transfers of entitlement to basic educational
assistance under section 3020 of this title shall be made from
the Department of Defense Educations Benefits Fund established
under section 2006 of title 10 or from appropriations made to
the Department of Transportation, as appropriate.
* * * * * * *
Sec. 3232. Duration; limitations
* * * * * * *
(c)(1) Subject to paragraph (3), the amount of educational
assistance payable under this chapter for [a licensing] a
particular licensing or certification test described in section
3452(b) of this title is the lesser of $2,000 or the fee
charged for the test.
* * * * * * *
Sec. 3512. Periods of eligibility
(a) * * *
* * * * * * *
(3) if the Secretary first finds that the parent from
whom eligibility is derived has a service-connected
total disability permanent in nature, or if the death
of the parent from whom eligibility is derived occurs,
after the eligible person's eighteenth birthday but
before the person's twenty-sixth birthday, then (unless
[paragraph (4)] paragraph (4) or (5) applies) such
period shall end 8 years after the date that is elected
by that person to be the beginning date of entitlement
under section 3511 of this title or subchapter V of
this chapter if--
* * * * * * *
(4) if the person otherwise eligible under paragraph
(3) fails to elect a beginning date of entitlement in
accordance with that paragraph, the beginning date of
the person's entitlement shall be the date of the
Secretary's decision that the parent has a service-
connected total disability permanent in nature, or that
the parent's death was service-connected, whichever is
applicable;
[(4)] (5) if the person serves on duty with the Armed
Forces as an eligible person after the person's
eighteenth birthday but before the person's twenty-
sixth birthday, then such period shall end 8 years
after the person's first discharge or release from such
duty with the Armed Forces (excluding from such 8 years
all periods during which the eligible person served on
active duty before August 1, 1962, pursuant to (A) a
call or order thereto issued to the person as a Reserve
after July 30, 1961, or (B) an extension of enlistment,
appointment, or period of duty with the Armed Forces
pursuant to section 2 of Public Law 87-117); however,
in no event shall such period be extended beyond the
person's thirty-first birthday by reason of this
paragraph;
[(5)] (6) if the person becomes eligible by reason of
the provisions of section 3501(a)(1)(A)(iii) of this
title after the person's eighteenth birthday but before
the person's twenty-sixth birthday, then (unless
[paragraph (4)] paragraph (5) applies) such period
shall end eight years after the date on which the
person becomes eligible by reason of such provisions,
but in no event shall such period be extended beyond
the person's thirty-first birthday by reason of this
clause;
[(6)] (7)(A) if such person is enrolled in an
educational institution regularly operated on the
quarter or semester system and such period ends during
a quarter or semester, such period shall be extended to
the end of the quarter or semester; or
* * * * * * *
[(7)] (8) if the person is pursuing a preparatory
course described in section 3002(3)(B) of this title,
such period may begin on the date that is the first day
of such course pursuit, notwithstanding that such date
may be before the person's eighteenth birthday, except
that in no case may such person be afforded educational
assistance under this chapter for pursuit of secondary
schooling unless such course pursuit would otherwise be
authorized under this subsection.
* * * * * * *
Sec. 3674. Reimbursement of expenses
(a)(1) * * *
(4) The total amount made available under this section for
any fiscal year may not exceed $13,000,000 or, for each of
[fiscal years 2001 and 2002, $14,000,000] fiscal years 2003,
2004, and 2005, $18,000,000. For any fiscal year in which the
total amount that would be made available under this section
would exceed the amount applicable to that fiscal year under
the preceding sentence except for the provisions of this
paragraph, the Secretary shall provide that each agency shall
receive the same percentage of the amount applicable to that
fiscal year under the preceding sentence as the agency would
have received of the total amount that would have been made
available without the limitation of this paragraph.
* * * * * * *
Sec. 3689. Approval requirements for licensing and certification
testing
* * * * * * *
(b) Requirements for Tests.--(1) Subject to paragraph (2), a
licensing or certification test is approved for purposes of
this section only if--
* * * * * * *
(B) the Secretary determines that the test is
generally accepted, in accordance with relevant
government, business, or industry standards, employment
policies, or hiring practices, and with such other
standards as the Secretary may prescribe, as attesting
to a level of knowledge or skill required to qualify to
enter into, maintain, or advance in employment in a
predetermined and identified vocation or profession.
* * * * * * *
(c) Requirements for Organizations or Entities Offering
Tests.--(1) Each organization or entity that is not an entity
of the United States, a State, or political subdivision of a
State, that offers a licensing or certification test for which
payment may be made under chapter 30, 32, 34, or 35 of this
title and that meets the following requirements, shall be
approved by the Secretary to offer such test:
(A) The organization or entity certifies to the
Secretary that the licensing or certification test
offered by the organization or entity is generally
accepted, in accordance with relevant government,
business, or industry standards, employment policies,
or hiring practices, and with such other standards as
the Secretary may prescribe, as attesting to a level of
knowledge or skill required to qualify to enter into,
maintain, or advance in employment in a predetermined
and identified vocation or profession.
(B) The organization or entity is licensed,
chartered, or incorporated in a State and has offered
[the test] such test, or a test to certify or license
in a similar or related occupation, for a minimum of
two years before the date on which the organization or
entity first submits to the Secretary an application
for approval under this section.
* * * * * * *
Sec. 3707. Adjustable rate mortgages
(a) The Secretary shall carry out a demonstration project
under this section [during fiscal years 1993, 1994, and 1995]
through fiscal year 2005 for the purpose of guaranteeing loans
in a manner similar to the manner in which the Secretary of
Housing and Urban Development insures adjustable rate mortgages
under section 251 of the National Housing Act.
(b) [Interest rate adjustment provisions] Except as provided
in subsection (c)(1), interest rate adjustment provisions of a
mortgage guaranteed under this section shall--
(c) Adjustable rate mortgages that are guaranteed under this
section shall include adjustable rate mortgages (commonly
referred to as ``hybrid adjustable rate mortgages'') having
interest rate adjustment provisions that--
(1) are not subject to subsection (b)(1);
(2) specify an initial rate of interest that is fixed
for a period of not less than the first three years of
the mortgage term;
(3) provide for an initial adjustment in the rate of
interest by the mortgagee at the end of the period
described in paragraph (2); and
(4) comply in such initial adjustment, and any
subsequent adjustment, with paragraphs (2) through (4)
of subsection (b).
[(c)] (d) The Secretary shall promulgate underwriting
standards for loans guaranteed under this section, taking into
account--
* * * * * * *
[(d)] (e) The Secretary shall require that the mortgagee make
available to the mortgagor, at the time of loan application, a
written explanation of the features of the adjustable rate
mortgage, including a hypothetical payment schedule that
displays the maximum potential increases in monthly payments to
the mortgagor over the first five years of the mortgage term.
* * * * * * *
Sec. 5301. Nonassignability and exempt status of benefits
(a)(1) Payments of benefits due or to become due under any
law administered by the Secretary shall not be assignable
except to the extent specifically authorized by law, and such
payments made to, or on account of, a beneficiary shall be
exempt from taxation, shall be exempt from the claim of
creditors, and shall not be liable to attachment, levy, or
seizure by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary. The
preceding sentence shall not apply to claims of the United
States arising under such laws nor shall the exemption therein
contained as to taxation extend to any property purchased in
part or wholly out of such payments. The provisions of this
section shall not be construed to prohibit the assignment of
insurance otherwise authorized under chapter 19 of this title,
or of servicemen's indemnity.
(2) For the purposes of this subsection, in any case where a
payee of an educational assistance allowance has designated the
address of an attorney-in-fact as the payee's address for the
purpose of receiving a benefit check and has also executed a
power of attorney giving the attorney-in-fact authority to
negotiate such benefit check, such action shall be deemed to be
an assignment and is prohibited.
(3)(A) For purposes of this subsection, in any case where a
beneficiary entitled to compensation, pension, or dependency
and indemnity compensation enters into an agreement with
another person under which agreement such other person acquires
for consideration the right to receive payment of such
compensation, pension, or dependency and indemnity
compensation, as the case may be, whether by payment from the
beneficiary to such other person, deposit into an account from
which such other person may make withdrawals, or otherwise,
such agreement shall be deemed to be an assignment and is
prohibited.
(B) Any agreement or arrangement for collateral for security
for an agreement that is prohibited under subparagraph (A) is
also prohibited.
(C)(i) Any person who enters into an agreement that is
prohibited under subparagraph (A), or an agreement or
arrangement that is prohibited under subparagraph (B), shall be
fined under title 18, imprisoned for not more than one year, or
both.
(ii) This subparagraph does not apply to a beneficiary with
respect to compensation, pension, or dependency and indemnity
compensation to which the beneficiary is entitled under a law
administered by the Secretary.
* * * * * * *
Sec. 5317. Use of income information from other agencies: notice and
verification
* * * * * * *
(g) The authority of the Secretary to obtain information from
the Secretary of the Treasury or the Secretary of Health and
Human Services under section 6103(l)(7)(D)(viii) of the
Internal Revenue Code of 1986 expires on [September 30, 2008]
September 30, 2011.
* * * * * * *
Sec. 7261. Scope of review
(a) In any action brought under [this chapter] section
7252(a) of this title, the Court of Appeals for Veterans
Claims, to the extent necessary to its decision and when
presented, shall--
* * * * * * *
(4) in the case of a finding of material fact made in
reaching a decision in a case before the Department
with respect to benefits under laws administered by the
Secretary, hold unlawful and set aside or reverse such
finding [if the finding is clearly erroneous] if the
finding is adverse to the claimant and the Court
determines that the finding is unsupported by
substantial evidence of record, taking into account the
Secretary's application of section 5107(b) of this
title.
* * * * * * *
(e)(1) In making a determination on a finding of material
fact under subsection (a)(4), the Court shall review the record
of proceedings before the Secretary and the Board of Veterans'
Appeals pursuant to section 7252(b) of this title.
(2) A determination on a finding of material fact under
subsection (a)(4) shall specify the evidence or material on
which the Court relied in making such determination.
* * * * * * *
Sec. 7292. Review by United States Court of Appeals for the Federal
Circuit
(a) After a decision of the United States Court of Appeals
for Veterans Claims is entered in a case, any party to the case
may obtain a review of the decision with respect to the
validity of a decision of the Court on a rule of law or of any
statute or regulation (other than a refusal to review the
schedule of ratings for disabilities adopted under section 1155
of this title) or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by the
Court in making the decision. Such a review shall be obtained
by filing a notice of appeal with the Court of Appeals for
Veterans Claims within the time and in the manner prescribed
for appeal to United States courts of appeals for United States
district courts.
* * * * * * *
(c) The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction to review and decide
any challenge to the validity of a decision of the Court of
Appeals for Veterans Claims on a rule of law or of any statute
or regulation or any interpretation thereof brought under this
section, and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision. The judgment of [such court] the Court of Appeals for
the Federal Circuit shall be final subject to review by the
Supreme Court upon certiorari, in the manner provided in
section 1254 of title 28.
* * * * * * *
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940
OCT. 17, 1940, CH. 888, 54 STAT. 1178
* * * * * * *
Sec. 511. Definitions
(1) The term ``person in the military service'', the term
``persons in military service'', and the term ``persons in the
military service of the United States'', as used in this Act
(sections 501 to 593 of this Appendix), shall include the
following persons and not other: All members of the Army of the
United States, the United States Navy, the Marine Corps, the
Air Force, the Coast Guard, [and all] all officers of the
Public Health Service detailed by proper authority for duty
either with the Army or the Navy, and shall include service of
the National Guard, pursuant to a call or order to duty by the
Governor of a State, upon the request of a Federal law
enforcement agency and with the concurrence of the Secretary of
Defense, to perform full-time duty under section 502(f) of
title 32, United States Code, for purposes of carrying out
homeland security activities. The term ``military service'', as
used in this Act (said sections), shall signify Federal service
on active duty with any branch of service heretofore referred
to or mentioned as well as training or education under the
supervision of the United States preliminary to induction into
the military service. The terms ``active service'' or ``active
duty'' shall include the period during which a person in
military service is absent from duty on account of sickness,
wounds, leave, or other lawful cause.
* * * * * * *
TITLE 26--UNITED STATES CODE
* * * * * * *
Sec. 6103. Confidentiality and disclosure of returns and return
information
* * * * * * *
(l) Disclosure of returns and return information for purposes
other than tax administration
* * * * * * *
(7) Disclosure upon request of information relating
to terrorist activities, etc.--
(E) Termination.--No disclosure may be made
under this paragraph after [December 31, 2003]
September 30, 2011.