House Report 110-789 - VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008

[House Report 110-789]
[From the U.S. Government Publishing Office]

110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-789

======================================================================

VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008

_______

July 29, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Filner, from the Committee on Veterans' Affairs, submitted the
following

R E P O R T

[To accompany H.R. 5892]

[Including cost estimate of the Congressional Budget Office]

The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 5892) to amend title 38, United States Code, to
direct the Secretary of Veterans Affairs to modernize the
disability benefits claims processing system of the Department
of Veterans Affairs to ensure the accurate and timely delivery
of compensation to veterans and their families and survivors,
and for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.

CONTENTS

Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 20
Subcommittee Consideration....................................... 25
Committee Consideration.......................................... 25
Committee Votes.................................................. 25
Committee Oversight Findings..................................... 25
Statement of General Performance Goals and Objectives............ 25
New Budget Authority, Entitlement Authority, and Tax Expenditures 25
Earmarks and Tax and Tariff Benefits............................. 25
Committee Cost Estimate.......................................... 25
Congressional Budget Office Estimate............................. 26
Federal Mandates Statement....................................... 29
Advisory Committee Statement..................................... 29
Constitutional Authority Statement............................... 29
Applicability to Legislative Branch.............................. 30
Section-by-Section Analysis of the Legislation................... 30
Changes in Existing Law Made by the Bill as Reported............. 33

Purpose and Summary

H.R. 5892 was introduced by Representative John J. Hall of
New York, the Chairman of the Subcommittee on Disability
Assistance and Memorial Affairs, on April 24, 2008. This
legislation, as amended, would comprehensively overhaul the
Department of Veterans Affairs (VA) claims processing system to
ensure the accurate and timely delivery of compensation and
pension benefits for veterans, their families, and survivors.

Background and Need for Legislation

There are nearly 24 million veterans and more than 2.7
million receive disability compensation benefits from the VA.
Upon filing a claim for disability compensation benefits at VA,
veterans and their beneficiaries face increased waiting times.
As many veterans service organizations assert, a ``benefit
delayed is a benefit denied.''
As of July 19, 2008, the number of pending disability
compensation claims stood at nearly 630,000, with almost a
quarter of these pending for longer than six months. In 2007,
the VA Regional Offices (VAROs) took in more than 800,000
claims for disability compensation, up from 675,000 in 2006.
The number of filed claims is likely to increase steadily as
Operation Enduring Freedom and Operation Iraqi Freedom (OEF/
OIF) veterans return and veterans from previous conflicts age.
Although the VA's fiscal year 2009 budget submission projected
receipt of more than 872,000 claims, the actual number of
claims received in the coming year could easily exceed one
million.
As VA's inventory of claims increases, its realistic
ability to process these claims in a timely fashion under its
current system has been called into serious question. In 2007,
the average claims processing waiting time increased by six
days from 177 days in 2006 to 183 days. According to the VA
Office of the Inspector General (OIG), VA failed to meet its
2007 performance goals or targets in all major compensation and
pension rating related actions: compensation and pension rating
related actions--target 160 days, actual 183 days (6-day
increase); Dependency and Indemnity Compensation (DIC)--target
125 days, actual 132 days (7-day increase); non-rating pension
actions--target 96 days, actual 104 days (8-day increase);
burial reimbursements--target 60 days, actual 91 days (31-day
increase); percent of applications for headstones and markers
for the graves of veterans not buried in national cemeteries
within 20 days--target 70 percent, actual 38 percent. Moreover,
the Veterans Benefits Administration (VBA) consistently missed
customer satisfaction targets and the time for seasoned raters
to complete ready-to-rate claims (claims that are fully-
developed) increased from 127 days to 135 days.\1\
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\1\Department of Veterans Affairs, FY 2007 Performance and
Accountability Report, See generally, pp. 265-268.
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The Veterans' Disability Benefits Commission (VDBC),
established pursuant to Public Law 108-136, issued its report
Honoring the Call to Duty: Veterans' Disability Benefits in the
21st Century on October 3, 2007. The VDBC found that two-thirds
of compensation claims made each year are from veterans
previously determined to have a service-connected disability
and most are veterans of WWII, Korea and Vietnam. It concluded
that as this population ages, the VBA can expect to see
increases in the percentage of claims for worsening or chronic
conditions. Currently, the average age of veterans who are
filing claims for disability compensation is 55. The VDBC also
found that in 2006, the large majority of claims (81 percent)
were reopened claims (claims that were initially denied or the
veteran was dissatisfied with the disability rating) and
approximately 20 percent were original claims.
The Consolidated Appropriations Act of 2008 (Public Law
110-161) secured the largest increase in VA funding with a
record $4.8 billion increase in VA discretionary funding above
fiscal year 2007 enacted levels. This increase included
additional resources for the VA to be able to secure more than
1,300 new VBA employees, in addition to the 1,700 full-time
employees (FTEs) from recent funding cycles. However, the
Committee has heard from some VBA employees that new hires
often have no place to work and may be assigned to non-
production duties due to space constraints.
The VA, in its fiscal year 2009 budget request, sought an
additional 703 FTEs for the VBA. Although the Committee
supports hiring additional employees to address the claims
backlog, the Committee believes that adding them to a broken
processing system will not necessarily eliminate the backlog or
decrease lengthy processing times for veterans filing
disability claims.
Dating as far back as the Bradley Commission Report of
1956, VA has been awash in informed recommendations on how to
improve its claims processing system. Yet, despite the benefit
of numerous well-informed and detailed reports, the Committee
finds that VA leadership has consistently failed to implement
most of the stated recommendations for reform and to develop
its own strategic plan with proper forecasting and
accountability.
The VDBC urged the VA to simplify and expedite the
processing of disability claims. The President's Commission on
Care for America's Returning Wounded Warriors (Dole-Shalala
Commission) report, while lacking specifics on how to carry out
the reinvention, called for revamping of VA's entire claims
processing system. The Committee concluded, based on these and
an innumerable number of other reports, as well as its own
analysis and oversight, that the VA's disability claims
processing system is heavily paper-based, relies on WWII-era
processing and disability paradigms, is fraught with
inefficiencies and is in need of 21st Century improvements.\2\
The Committee believes that the linchpin to problems in claims
processing begins with the failure to properly develop and
adjudicate original claims at the VARO level within the VBA.
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\2\The VDBC found that while, ``[t]echnology offers opportunity for
improvements, but it is unlikely to solve all problems. The Commission
believes that increased reliance on best business practices and maximum
use of information technology should be coupled with a simplified and
expedited process for well-documented claims to improve timeliness and
reduce the backlog.'' VDBC report at 15 (Executive Summary).
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Moreover, as it has been every year since 2003, modernizing
the VA's disability program again was placed on the Government
Accountability Office's (GAO) high-risk list for 2007.\3\
Finding that the current system has lagged behind economic and
social changes, the GAO stated that VA should take a lead role
in seeking the regulatory and legislative solutions needed to
transform its programs so that they are aligned with the
current state of science, medicine, technology, and labor
market conditions. Due to continued variation experienced in
the decisions made at the field level offices, the GAO
recommended a comprehensive review of the structure and the
division of labor in the VAROs. The Committee concurs in these
findings.
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\3\GAO, High Risk List: An Update, GAO 07-310 (Washington, DC,
January 2007).
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The production challenges VA faces are not new problems for
the VBA and there are several reasons for the failures of VA's
claims processing system that the Committee's oversight has
uncovered or reemphasized which led to the development of H.R.
5892.\4\ While there may have been a few circumstances at play
beyond VA's control (e.g., the OEF/OIF war efforts and influx
of returning veterans), the Committee remains perplexed at the
VA's inability to vigorously address managerial and systematic
problems in the claims processing system.
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\4\See, generally, VA Claims Processing Taskforce, Report to the
Secretary of Veterans Affairs, October 2001.
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H.R. 5892 would comprehensively modernize the VBA claims
processing system and arm it with the up-to-date tools and
paradigms it needs to process claims using integrated
information technology and platforms, while improving the
accountability, timeliness, and quality of adjudicated claims.
Additionally, it would enhance the annual reporting
requirements of the United States Court of Appeals for Veterans
Claims as well as provide the Court with more discretion to
decide all issues raised on appeal by appellate veterans. The
Committee believes that H.R. 5892 will help VA update its
claims processing system so that the VBA will become a 21st
century, world-class entity that reflects the selfless
sacrifices of those it serves--our veterans, their families,
and survivors.

VA SCHEDULE FOR RATING DISABILITIES

Veterans' disabilities are evaluated in accordance with the
VA Schedule for Rating Disabilities (VASRD). The VASRD was
originally created in 1917 to address the needs of returning
World War I veterans and avoid the economic devastation that
the United States faced after the Civil War. The VASRD was last
comprehensively revised in 1945, although modifications have
been made to certain sections. Overall, the VASRD contains many
outdated and archaic criteria and lacks more commonly accepted
medical practices and procedures. Studies conducted in 2007 by
the Institute of Medicine (IOM), entitled PTSD Compensation and
Military Service and A 21st Century System for Evaluating
Veterans for Disability Benefits, and the Center for Naval
Analyses Corporation (CNAC) 2007, found it to be an inadequate
instrument for compensating disabilities for the average
impairments of earning capacity, especially in the areas of
mental health, unemployability, and issues affecting younger
severely injured veterans.\5\
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\5\Christensen, E. McMahon, Et. Al. Final Report for the Veterans'
Disability Benefits Commission: Survey Results and Selected Topics. CRM
D0016570.A2/Final. Center for Naval Analyses, Alexandria, VA: August
2007. pp. 194-195.
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The IOM further recommended the VASRD be revised using more
modern medical concepts in order to interrelate with other
commonly used codes or guides, such as the International
Classification of Diseases published by the World Health
Organization; the Diagnostic and Statistical Manual published
by the American Psychiatric Association, or the Guides to
Evaluating Permanent Impairment published by the American
Medical Association.
This provision of H.R. 5892, derived in part from the
Veterans Quality of Life Study Act of 2007, H.R. 4084,
introduced by the Honorable John J. Hall of New York on
November 6, 2007, would require the Secretary to conduct a
study on adjusting the VASRD to take into account the loss of
quality of life and loss of earnings capacity as recommended by
the IOM. VA also would need to submit a plan and timeline to
Congress for the revision of the VASRD using current medical
and technological concepts, practices, and standards. An
implementation plan and biannual progress reports would be due
to Congress not later than three years after enactment.
Additionally, this provision requires the establishment of an
18-member Advisory Committee on Disability Compensation to
consist of leading experts who will guide the Secretary on
revising and readjusting the VASRD in the future.
Current law requires that VA compensate service-disabled
veterans for loss of potential earnings. However, the
aforementioned IOM and CNAC reports indicate that service-
connected disabled veterans report lower quality of life than
the average population. Currently, it is not clear whether the
VA standard addresses the non-work-related effects of permanent
physical and mental combat-related injuries, although special
monthly compensation awards are currently made for veterans who
qualify.
Following extensive research, the VDBC, the IOM, and the
Dole-Shalala Commission all concluded that VA should compensate
disabled veterans for their loss of ability to function in
activities of daily life and, if possible, for the loss of
quality of life. These entities further recommended that
Congress direct VA to revise the VASRD to account for these
additional effects of impairment. Answering the call of these
recommendations, H.R. 5892 would require VA to commission a
study to determine the appropriate level and duration of
benefits that would compensate veterans for the full impact of
their service-connected disability. VA policy officials
informed the Committee that a study consistent with the
requirement in H.R. 5892 is currently ongoing. It is the
intention of the Committee that this provision inform VA's
implementation of this study's findings.

EMPLOYEE WORK CREDIT SYSTEM OF THE VBA

The Committee finds that VBA's current work credit system
does not take into account the correct or incorrect outcome of
the claim, but rather focuses on the number of tasks completed
by the individual claims rating personnel leading, ultimately,
to very little individual accountability within the VBA.
Currently, each claim is given an ``end product code,''
which estimates the amount of time it will take for an employee
to complete their assigned tasks for each claim. After
completing this task, the employee receives credit for their
work. The time included in the product code for each task
varies by difficulty of the task that was completed. This means
that a member of the Post-Determination team may only work on
three claims a day because of the level of difficulty while a
member of the triage team may complete ten claims in a day.
These end product codes are also linked to the difficulty level
of the claims adjudicated. For example, the employee (and
ultimately the VARO) receives more credit if they complete an
original compensation claim vs. an original pension claim. Even
though these work credits and end product codes are not
supposed to serve as part of the employee's, and VARO's,
performance standards it has been shown that this is one of the
first statistics VBA examines when it evaluates performance.
While a seemingly sound system in theory, The American
Legion, National Veterans Legal Services Program (NVLSP) and
many other veterans service organizations have informed the
Committee repeatedly during hearings conducted during the 110th
Congress, that the practical effects of the current system
places a dangerous emphasis on quantity over quality where the
accuracy of adjudicated claims suffers as a result. Since
employees receive credit for the work they do, regardless of
whether they did the work correctly, there is less of an
incentive for any employee to do the work correctly the first
time. For instance, when an employee makes a mistake where a
decision is overruled by the Decision Review Officer (DRO),
Board of Veterans Appeals (BVA) or the Court of Appeals for
Veterans Claims (CAVC), there is little to no counseling with
that individual employee to remediate the mistake to prevent
future errors. Instead, when enough errors of a certain type
have been made by a VARO, a remediation team comes in and
trains the whole team on these deficiencies even if this
training is only needed by a few members of the team.
Several witnesses have suggested that Congress direct VA to
change this current system to create one where a VARO cannot
receive credit for its work until one year after the
adjudication of a claim occurs. This timeframe coincides with
the statutory limit on how long a veteran can take to file an
appeal with the BVA. The rationale is that lengthening the
timeframe to receive credit would force the VARO to take more
time examining the quality of their decisions in the first
instance. H.R. 5892 does not capture this recommendation, but
the Committee views it as a viable alternative for ensuring
better accountability.
Moreover, the Committee believes that there is no reason
why the VBA could not continue to use its current work credit
system while the new system is being implemented. With
increasing BVA and CAVC dockets, it is critically important
that VA's 57 VAROs adjudicate claims correctly the first time.
Improving VBA's work credit system is one way to do that. The
Committee points out that the language of H.R. 5892 is not
intended to preclude VA from using its current end product
coding system for identifying and distinguishing workload.
H.R. 5892 would require the Secretary to conduct a study of
the VBA's work credit system focusing on improving the quality,
performance, accuracy of claims, and the enhanced use of
information technology. VA would have to report to Congress on
how it plans to implement a new system for measuring work
production within 180 days of enactment. The legislation would
require suspension of the current work credit system if VA
fails to implement a new system for measuring work production
of VBA employees.

VA WORK MANAGEMENT SYSTEM

In 2002, VA shifted its claims processing system from a
case management model, where one employee was responsible for
completion of a claims file, to the Claims Process Improvement
(CPI) model which emphasizes specialization of processing.
According to VA, the CPI model allows for specialization of
processing through the use of six specialized teams. Four of
these teams address specific cycles in claims processing:
triage, pre-determination, rating, and post-determination. Two
additional teams, public contact and appeals, address important
areas related to operations. VA reasoned it would be easier to
spot process or flow disruptions by shifting from an individual
focus to a process focus. Additionally, training and
development could be specific and focused and tools to monitor
inventory would be more effective. However, the Committee
concludes that to date, none of these projected efficiencies
have been realized for VA's current claims processing system
after adoption of the CPI.
The Committee finds that what the CPI model means to a
veteran filing a claim is that, at the very least, six VBA
employees handle the claim, none of whom are held accountable
for any of the errors it may contain. If the case is appealed
or remanded, it does not seem as if this error reverts back to
the actual employee who committed the error for corrective
action. When there is no accountability or consequence for poor
quality, then employees may not have an incentive to focus the
work product on quality outputs.
Between 2000 and 2007, the appeals rate on disability
determinations has more than doubled to approximately 12
percent. According to VA, the current remand rate (cases sent
back to VARO for further development) is approximately 57
percent. More importantly, both the backlog and processing
times have increased dramatically since implementation of the
CPI model in 2002 and quality and accuracy seem to have been
dramatically sacrificed. This poor performance trend seems
likely to continue for the foreseeable future and the Committee
finds that VA needs to shift its claims processing system from
this extremely unsuccessful paradigm.
During a Subcommittee on Disability Assistance and Memorial
Affairs hearing concerning the VA claims backlog on February
14, 2008, the American Federation of Government Employees
(AFGE) stated that it was ``concerned that the claims process
improvement pendulum had swung too far turning the claims
process into an assembly line'' with accountability being hard
to pinpoint. AFGE further stated that ``[t]here are many
benefits when employees work the entire claim from the
application to the appeal[.] Our members really feel the loss
of weekly case management meetings that used to give them the
opportunity to discuss challenging claims, changes in the laws
and best practices.''
H.R. 5892 would require the Secretary to conduct a study
and report on the work management system of the VBA. The
Committee finds that the current CPI model does not focus on
accuracy and is overly geared towards production and output
without regard to quality or accountability.
While this provision is not intended to compel VA to return
to its pre-CPI claims processing model, the Committee does find
that its current system fails to provide adequate training for
raters, timely notification of changes in law, or opportunities
to standardize best practices throughout all of its regional
offices. As such, these lessons from the past should be used to
inform VA's efforts to improve the accountability and accuracy
of its current claims processing paradigm.
The Committee believes that overall, VA needs to focus on
making its disability claims processing system more veteran-
focused and much less process-focused. CPI, as currently
implemented, seems antithetical to meeting this need. H.R. 5892
would encourage VA to reevaluate and revise its current failed
claims processing model.\6\
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\6\According to the VDBC and based on Committee assessments, the
most time-consuming part of claims processing is the time it takes to
begin development until the time the development has been received and
the claim is referred to the rating board for a decision. When the
average processing time was 181 days, the VDBC estimated that the
development portion of the claims process takes approximately 111 days.
Including the other 3-4 steps in the CPI Model, which all disability
claims are subjected, it seems nearly impossible for VA to ever meet
its current claims processing target of 145 days.
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CERTIFICATION AND TRAINING OF EMPLOYEES OF VETERANS BENEFITS
ADMINISTRATION RESPONSIBLE FOR PROCESSING CLAIMS

The training program for VBA employees seems to still
present challenges for VA. The Committee applauds recent
efforts by the VBA to require at least 80 hours of training for
each employee and to centralize the training program at its
National Training Academy in Baltimore. However, gaps in
training and inconsistencies between the VAROs clearly persist.
As pointed out by the Institute for Defense Analyses (IDA) in
its study on VARO variances, points on which the Committee
concurs, the VBA needs to standardize initial and ongoing
training for rating specialists which includes implementing its
Training and Performance Support System (TPSS), Rating Veteran
Service Representative (RVSR) certification, and advanced
development training for complex claims (like PTSD).\7\ The VBA
informed the Committee that it plans to reinstate its RVSR
testing certification which it had suspended for over two years
due to poor performance. However, disputes continue between
management and labor on test contents.
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\7\Institute for Defense Analyses, Analysis of Differences in VA
Disability Compensation, August 2007, p. 39.
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The Committee believes that certification testing is an
appropriate means to measure an employee's qualifications and
skills and should be a part of the VA's human resources
evaluation system.
The Systematic Technical Accuracy Review (STAR) is the
VBA's national program for measuring compensation and pension
claims processing accuracy. The STAR includes evaluation of
work in three areas: claims that usually require a rating
decision, claims that generally do not require a rating
decision, and fiduciary work. Audit style case reviews are
conducted after completion of all required processing actions
on a claim. The review is outcome-based and includes all
elements of processing the particular claim. STAR accuracy
review results are generated for all 57 VAROs and are included
in both the station and VARO Director's annual performance
measures, but not an individual employee's performance
measures.
The STAR review takes a sample size of ten cases requiring
a rating decision, ten cases that do not require a rating
decision, and three to ten cases of fiduciary work. The samples
are reviewed monthly at each of VBA's 57 VAROs. These numbers
are somewhat different for smaller and larger stations. This
means that roughly 19,000 claims or 2.4 percent are reviewed by
STAR each year.
These cases are randomly selected for each area based on
end product codes. When completing a review, raters use a
special checklist that checks for everything from development
to dates and completion of duty to assist letters. An answer of
``No'' to any of the questions on the checklist relating to the
processing of the issue (end product) action under review will
result in the case being classified as ``in error.'' The last
section of the rating, authorization and fiduciary checklists,
contains an area for administrative questions that are not
related to the accuracy of claims processing: an answer of
``No'' for one of these questions will not indicate error in
the case.
It is unclear what the VBA actually does with STAR reviews
once they are completed. If a claim is found to be in error, a
re-adjudication is requested and is supposed to be completed by
VARO staff. It is uncertain what additional training is
conducted or whether or not there is any level of
accountability for an individual VARO when mistakes are made.
In an August 2007 report, the IDA recommended that VA
increase oversight and review rating decisions by increasing
the STAR's staffing and sample size, by participation of STAR
staff in site visits, and by using STAR results to clarify
procedures and focus training activities and enhancements to
the STAR database. Additionally, the report called for VA to
improve and expand data capture and retention (a byproduct of
transition from the legacy to its corporate system, VETSNET)
with more robust data collection and better support for
information management and analysis.\8\
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\8\Ibid, p. 41.
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As of July 2008, there were more than 162,000 appeals
currently pending in VAROs and the VBA's Appeals Management
Center, including cases requiring processing prior to transfer
to the BVA and cases remanded to the VBA offices by the BVA or
the CAVC. Also, there are nearly 40,000 additional appeals now
pending at the BVA. By most accounts, this increase is due to a
sharp increase in denials by the VBA and poorly adjudicated
claims at the VARO in the first instance.
This ``hamster wheel'' appeal cycle adds years to the
processing time for a veteran's claim and the OIG found that
``all of these processes--initial decisions by VBA, pre-
appellate reviews in VA regional offices, actions by VBA's
Appeals Management Center, consideration at BVA, and ultimately
consideration by the CAVC--present VA with a formidable
challenge in terms of timeliness in providing monetary benefits
to veterans.''\9\ The Committee believes the VBA should devote
significant resources to addressing this growing crisis and
continue to improve its training and accountability to reduce
the avoidable remand rate.
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\9\Department of Veterans Affairs, FY 2007 Performance and
Accountability Report, p. 266.
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The Committee is pleased that the VBA indicated in the VA's
fiscal year 2009 budget submission that it plans to increase
its STAR staff by approximately12 FTEs and insists that the
STAR accuracy rating has improved since fiscal year 2004 to
about 88 percent (although its stated goal is 98 percent). The
Committee believes the VBA should increase the number of cases
subject to STAR Review and develop a system of accountability
for improperly processed claims.
Lastly, there have been on-going problems with VA's ability
to recruit and retain qualified rating officials and managers.
In general, it takes two to three years to train a rater who
will stay on the job for an average of five years. Senior
employees are at retirement age and many are expected to leave
the VA in the near future which will create a drain on the
claims processing system. VA must ensure that it both develops
the proper tools to train new employees and adopts retention
policies that encourage employee stability at its regional
offices where benefits claims are processed.
H.R. 5892 would require VA to redevelop this certification
exam to test both appropriate VBA employees and managers and to
include appropriate input from interested stakeholders in its
development. It would also require the Secretary to contract
with an outside entity to conduct an evaluation of VBA's
training and quality assurance programs within 180 days of
enactment.

ANNUAL ASSESSMENT OF QUALITY ASSURANCE PROGRAM

In a statement for the record presented to the Committee on
Veterans' Affairs in December 2005, the GAO highlighted the
lack of consistency and accuracy at VA's 57 VAROs. It has been
widely reported that Regional Directors often make autonomous
decisions regarding ratings, training, resource allocations,
and production goals with very little oversight by the VA's
Central Office. This persistent lack of accountability
partially explains the great variances in disability
compensation awards between the 57 VAROs.
These findings were also underscored in the IDA report
which found that ``in practice, regional offices are largely
independent . . . and the quality assurance program is
insufficient to promote consistency across regional
offices.''\10\ The report came about as the result of an in-
depth analysis of variances among VAROS that was prompted by a
series of articles in the Chicago Sun Times which revealed that
Illinois veterans receive less disability compensation than
other veterans around the country. The range of compensation in
2003 for veterans with similar disabilities was $6,802 in
Illinois to $10,852 in New Mexico. In 2005, the variance was
$7,500 to $12,500.
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\10\Institute for Defense Analyses, Analysis of Differences in VA
Disability Compensation, August 2007, p. 37.
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This variability in ratings and awards is not a new problem
for VA. In fact, the IDA found that historically the relative
variability across states and VAROs has existed at or near the
current level over the past 35 years. The Committee believes VA
should focus on instituting the reforms set forth in the IDA's
Report to promote uniformity in training and better
accountability across its 57 VAROs.
Currently, VA does not review a statistically valid sample
of a veteran's claim within its STAR program. Moreover, the
STAR analysis is usually conducted in-house by VBA managers who
may be reluctant to report real quality concerns.
H.R. 5892 would require the Secretary to contract for an
annual quality assurance assessment that measures a
statistically valid sample of VBA employees and their work
product for accuracy, consistency, and reliability, and to
track trends. H.R. 5892 contains language derived from H.R.
5709, a measure introduced by the Honorable Zachary Space of
Ohio, on April 3, 2008, that would also require the VA to
standardize its data collection and capture more meaningful
data for comparative analysis. The Committee believes that
expanding this collection to include race, sex, and other
pertinent demographic information would also prove useful for
comparative and oversight purposes. Furthermore, the
information gathered during an objective quality assessment
would be used to inform the development of training and
certification goals under section 105 of the bill.

EMPLOYING MEDICAL PROFESSIONALS TO ASSIST EMPLOYEES OF VETERANS
BENEFITS ADMINISTRATION

A study conducted by the CNAC found that, among VBA raters,
more than 75 percent of rating personnel indicated they would
benefit from having an expert health professional available to
answer medical questions and to assist in their understanding
of a disease or progression of injuries. Rating personnel
receive medically-informed training in order to decide and
adjudicate claims, but the overwhelming majority do not possess
medical backgrounds, education, or experience. Having on-hand
access to medical professionals would likely improve rating
accuracy and consistency.\11\
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\11\Harris, Daniel, Findings from Raters and VSO Surveys. CRM
D0015934.A2/Final. Center for Naval Analyses Corporation for the
Veterans' Disability Benefits Commission. Alexandria, VA: May 2007. p.
134.
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H.R. 5892 would require the Secretary within 90 days of
enactment to conduct a study to evaluate the use of medical
professionals as a reference resource to assist its personnel
responsible for processing and adjudicating claims. This
assistance would be in addition to any assistance provided by
medical professionals of the Veterans Health Administration and
would also include medical professionals who are not
physicians.
The Committee emphasizes the point that medical
professionals are intended to serve as medical reference
resources only; much as a medical reference guide might prove
useful in informing decisions of rating personnel. None of the
information provided by these medical professionals is to be
used as a source to rate any disability or evaluate any claim.
H.R. 5892 expressly forbids the use of medical professionals
for these purposes. The Secretary would be required to provide
a report to Congress within 180 days of enactment on its
findings and conclusion. If the Secretary hires medical
professionals pursuant to this Act, the Secretary must ensure
that all rating specialists employed by its 57 VAROs have
access to these medical professionals for reference purposes.

REVIEW AND ENHANCEMENT OF USE OF INFORMATION TECHNOLOGY AT VETERANS
BENEFITS ADMINISTRATION

According to VA, 12 percent of the more than 800,000 claims
filed are appealed. The remand rate as of 2007 is more than 56
percent and variances across the VAROs have generated
investigations by the OIG (Review of State Variances in VA
Disability Compensation Payments) and a study by the Institute
for Defense Analyses previously mentioned. High staff turnover,
improper training, lack of resources, and lost, missing, and
unassociated paper records have waylaid the system. Increased
use of information technology, such as rules-based systems
decision support software and fully relational databases, will
promote three desired goals: timeliness, consistency, and
accuracy.
VBA is in the process of reorganizing its Information
Technology (IT) management and converting its legacy Benefits
Delivery Network (BDN) system to the VETSNET platform. VETSNET
is a group of applications that can perform payment,
accounting, and workflow management functions. According to VA,
as of January 2008, more than 850,000 veterans were receiving
their benefits payment via VETSNET. The claims development and
rating decision support component of VETSNET is fully
functional at all the VAROs and the VAROs are incorporating
imaging and electronic records into the disability compensation
claims process.
Despite these achievements, the GAO noted in March 2007,
``VA continues to experience significant service delivery
challenges including lengthy processing times, and inaccurate
and inconsistent decisions.''\12\ GAO further concluded, ``VA
lacks a consistent method for ensuring consistency of decision
making within VA as a whole.''\13\
---------------------------------------------------------------------------
\12\GAO, Long-Standing Claims Processing Challenges Persist. GAO-
07-512T, p. 3.
\13\Ibid, p. 6.
---------------------------------------------------------------------------
VETSNET (unlike BDN) would allow for the use of decision-
support and expert system applications, but these have not yet
been integrated with BDN. These tools are available today and
the Committee expects the VA to complete VETSNET and its
enhancements on a priority basis. VA indicated during testimony
before the Subcommittee on Disability Assistance and Memorial
Affairs on January 29, 2008, that it intends to eventually
process claims in an entirely electronic environment and would
be employing a lead system integrator.
The Committee is concerned that VA has only recently, over
the past year, begun development of a strategic plan for
systematically processing claims using an integrated electronic
platform.\14\ The Committee received the results of the IBM
study commissioned by VA in March 2008 to fully assess its
claims processing system. The results were not surprising to
the Committee and reiterated findings outlined in prior
studies. Moreover, at least three private entities have
apprised the Committee and VA of rules-based programs that will
help process veterans' claims more efficiently and effectively,
yet the VBA seems incapable of harnessing the value of these
developments or other IT developments to improve its
dysfunctional and outmoded claims processing system. The
Committee firmly concludes that VA leadership should work on
developing an internal, system-wide strategic plan in order to
improve its claims processing outcomes, with appropriate
organizational and individual accountability that employs
rules-based IT platforms and decision-support software.
---------------------------------------------------------------------------
\14\Information discussed during a VBA briefing to staff of the
Committee on Veterans' Affairs in January 2007, VA testimony before the
Committee on Veterans' Affairs, Subcommittee on Disability Assistance
and Memorial Affairs hearing on The Use of Artificial Intelligence in
the VA's Claims Processing System, January 29, 2008.
---------------------------------------------------------------------------
H.R. 5892 would require the Secretary to develop a plan to
implement comprehensive information technology upgrades,
including web portals, rule-based expert systems, and decision
support software within one year to enhance its claims
processing capabilities and to rate claims within the time
period VA identifies in its Annual Performance Report to
Congress. The technology exists for VA to be able to assist its
rating personnel in effectively utilizing key word classifiers,
scanning and indexing data, and employing other information
architecture platforms and software. Electronic health records
and examination templates currently used by the Veterans Health
Administration (VHA), and electronically transferred Department
of Defense records, along with an online application system
could be integrated to improve the quality and timeliness of
claims adjudication. The Committee believes that based on
current technology, VA should be able to manage a claim from
the point of application to the payment of compensation in an
integrated electronic environment. Currently, it falls far
short of this goal.

CLARIFICATION OF ``ENGAGED IN COMBAT WITH THE ENEMY''

H.R. 5892 would amend section 1154(b) of title 38, United
States Code, to ease the weighty evidentiary burdens VA imposes
on combat veterans who may not have unit records or other
documentation of exposure to stressful events, but whose
injuries are consistent with the duties and hardships of their
service and hence should be service-connected. This usually
arises in the instance where a servicemember is separated from
the assigned unit during the time a traumatic event occurs (for
instance when a military police officer, a truck driver in a
convoy, or other support personnel comes under attack while
assigned temporarily to another unit).
These evidentiary hurdles become even more critical for
conditions such as PTSD where the injury to the mind is not
visible and the documentation, due to the unpredictable enemy
fire lines and nature of battle, as well as frequent separation
from units, may not exist. The Committee finds that these
veterans are not the outliers and too many are improperly being
denied service-connected benefits based on VA's overly
stringent interpretation of the presumption of exposure clearly
outlined in section 1154(b) of title 38, United States Code.
While the provision in H.R. 5892 is not intended to solely ease
the evidence hurdles that veterans suffering from PTSD face
when trying to prove service-connection for exposure to
stressors, this may be its practical effect.\15\
---------------------------------------------------------------------------
\15\The most prevalent conditions that are service-connected by VA
are auditory with almost 840,000 veterans receiving compensation
followed by musculoskeletal and arthritis. PTSD is the sixth most
common condition with 269,399 service connected veterans. In 2006, the
Veterans Health Administration (VHA) treated 345,713 veterans with
PTSD, which represented an increase of 27,099 over 2005 and included
34,000 veterans who served after October 7, 2001. In June 2007, the
Army reported an increase in suicide rates among its troops.
---------------------------------------------------------------------------
Incidences of PTSD are higher than anticipated in the
current OEF/OIF conflicts and this number will likely only grow
due to lengthy combat deployments. A recent RAND study
concluded that approximately 18.5 percent of OEF/OIF veterans
have PTSD or depression, which equates to approximately 300,000
veterans; only 53 percent sought some type of treatment partly
due to the stigma surrounding mental health treatment. PTSD is
not unique to OEF/OIF veterans. We know that many veterans from
other wars were also afflicted, many of whom, according to
testimony presented to the Committee, often are undiagnosed or
have been denied benefits.
As noted, PTSD is the sixth most common service-connected
condition with 269,399 veterans receiving benefits in fiscal
year 2006. It is estimated that the societal costs (loss of
productivity, treatment, suicide) of PTSD is $6.2 billion
dollars. If all veterans and servicemembers who needed PTSD
care were treated, it could save as much as $1.7 billion per
year in societal costs and would cost only approximately $1,063
per veteran according to the RAND study. Additionally, the CNAC
found that those with mental disabilities, especially veterans
with PTSD and who were also unemployable were below economic
parity when compared to other disabled peers.
Additionally, recent reports discussed during full
Committee hearings indicate that the true number of veteran
suicides could be as high as 1,000 per month, twice as high as
for the general population.
The Committee finds that the evidentiary requirements to
prove ``engaged in combat with the enemy'' found in VA's
procedural manuals, the M-21-1s, are unrealistic and
inconsistent with corresponding statute and regulations. As the
Disabled American Veterans pointed out in testimony before the
Subcommittee on Disability Assistance and Memorial Affairs
hearing on the draft legislation of H.R 5892 conducted on April
10, 2008, ``[n]either the statute or regulation requires
validation by official military records of an in-service combat
stressor . . . [t]hese internal instructions defy incredible
supporting evidence that an in-service stressor occurred as
evidence that specifically documents personal participation in
the event[.]'' The Committee also concurs with the Veterans of
Foreign Wars' assessment, highlighted during this hearing, that
the presumption afforded under Section 1154(b) for exposure to
stressors should not require a combat medal to prove service-
connection for PTSD or any other condition.
The Committee concludes that VA frustrates Congress' intent
when the VA applies additional and unauthorized requirements
contained in its internal M-21-1 manuals to determine
eligibility for presumptions this provision of law is intended
to afford combat veterans. H.R. 5892 would clarify the meaning
of ``engaged in combat with the enemy,'' which the Committee
believes is already explicitly defined both in statute and in
regulations in order to ensure more proper grants of
presumption of service-connection to those veterans who also
served in a theater of combat operations during a period of war
or in combat against a hostile force during a period of
hostilities.

EXPEDITED TREATMENT OF FULLY DEVELOPED CLAIMS AND REQUIREMENT FOR
CHECKLIST TO BE PROVIDED TO INDIVIDUALS SUBMITTING INCOMPLETE CLAIMS

Pursuant to section 5103 of title 38, United States Code,
VA must fulfill its duty to assist by providing the veteran
with appropriate records and exams, and advising of incomplete
applications and necessary evidence needed to process the
claim. This also usually includes a medical exam, but not
necessarily. The Veterans Claims Assistance Act of 2000 (VCAA)
(Public Law 106-475) changed the burden of claim development
from the veteran to VA. Prior to passage of VCAA, the veteran
had the burden of proof in producing the evidence necessary to
establish the cause and extent of the disability, usually
medical evidence.
VA contends that the implementation of VCAA notice
requirements has significantly contributed to the time it takes
to process disability claims. Based on VA's interpretation of
notice requirements under VCAA, the processing timeline is
extended by 90 days minimum (60 days after receipt of claims
and an additional 30 if no response). Nonetheless, as
recommended by the VDBC, the Committee supports efforts to
further streamline the VCAA notice by possible implementation
of an informed consent form when the claim has been fully
developed and the veteran is satisfied with the evidence
submitted before the 60-90 day window. This would likely allow
well-developed claims to be adjudicated upon receipt,
decreasing processing timeframes.
Furthermore, the Committee finds that it is essential that
VA develop a detailed checklist to include with its VCAA
letters that it sends to veterans. The Committee is absolutely
confounded by VA's resistance and reluctance to make this move
peremptorily. VA complains of the additional requirements that
subsequent Court decisions have mandated. However, the
Committee believes that VA has failed to embrace the spirit of
the VCAA by not providing veterans with useful information to
assist in their claims for benefits. In fact, during a
Subcommittee on Disability Assistance and Memorial Affairs
hearing conducted on April 10, 2008, William P. Greene, Jr.,
Chief Judge, U.S. Court of Appeals for Veterans Claims, stated
in response to a question posed by Chairman John J. Hall: ``In
2000, I thought the message was clear that all VA had to do was
do a checklist and run down and make sure the veteran
understood what it was that they had to present. And that is
the message that the court has been trying to convey over the
last seven years and the Federal Circuit.'' The Committee
wholeheartedly concurs in the CAVC Chief Judge Greene's
conclusion.
Allowing a veteran to state that a claim is ready to rate
should reduce the amount of time it takes VA to adjudicate the
claim since it will not have to wait the mandatory 60 days and
potentially the additional 30 days for veterans to otherwise
respond. Additionally, over the course of the development of
this legislation, VA, with input from the House and Senate
Committees on Veterans' Affairs, and in response to years of
complaints from veterans and other stakeholders, voluntarily
shortened the VCAA letters, simplified its verbiage, and made
the waiver a more prominent part of the VCAA letter. The
Committee commends VA for these efforts and encourages it to
further embrace the goal of VCAA of better informing and
assisting veterans with evidence and information needed to
fairly adjudicate their claims.
H.R. 5892 would require the Secretary to set a policy that
would allow veterans to submit claims and declare them fully
developed and ``ready to rate'' at the time of submission and
receive a rating within 90 days. This section would also amend
VA's duty to notify and require the creation of a detailed
checklist for claims for specific requests of additional
evidence. VA has certain duties to assist the veteran in
developing the claim.

ASSIGNMENT OF PARTIAL RATINGS

According to VA, in a hearing before the Subcommittee on
Disability Assistance and Memorial Affairs on February 14,
2008, and in subsequent meetings with staff, it currently
possesses the ability to issue partial ratings, although this
authority is not expressly stated in statute. The Committee
presumes VA believes it possesses this authority from section
501 of title 38, United States Code. H.R. 5892, also informed
by provisions of H.R. 1490, introduced by the Honorable Joe
Donnelly of Indiana on March 13, 2007, would expressly grant VA
that authority and require VA to issue a partial rating in the
instances where a veteran has sustained severe injuries (50
percent or above) and very serve injuries (100 percent) that
can be promptly rated, while deferring other conditions that
may not. VA and the Department of Defense have defined these
conditions, and they include limb amputations, paralysis, TBI,
severe burns, blindness, deafness, along with other radical
injuries. Adoption of this section would help further ensure
that those veterans returning from Iraq and Afghanistan are not
asked to sacrifice their family's financial stability and well-
being while recuperating from significant injuries. There have
been too many cases of severely injured veterans with such
injuries as amputations or paralysis that wait months or years
for VA to adjudicate their complete claim as opposed to
granting a rating for the parts of the claim that are
indisputable and obviously attributable to military service.
The Committee also further clarified the language in this
provision so that VA can rate the indisputable injuries based
solely on the Department of Defense medical records, which
would be extensive for these categories of injuries. This
provision is intended to force VA to provide benefits to the
nation's more severely disabled veterans without unnecessary
delay while allowing it to retain the discretion of whether a
Compensation and Pension exam is necessary. As presented in
testimony in numerous hearings before the Committee during the
110th Congress, these processing delays cause veterans
unnecessary emotional stress, financial burdens, and more often
than not leave families in crisis.
H.R. 5892 would in no way affect VA's ability to render a
permanent rating for any claimed conditions and would not
interfere with the processing of a veteran's claim, a finding
consistent with staff discussions with VA's policy experts. Nor
would it impede a veteran from being granted special monthly
compensation, aid and attendance, housing or auto grants,
clothing allowances, or vocational rehabilitation--in fact it
would likely expedite the availability of those benefits since
they are contingent upon a grant of service-connection.
The Committee points out that a partial rating is different
from a temporary rating, as a temporary rating is usually only
assigned when a veteran experiences a prolonged
hospitalization. A partial rating is also different from a pre-
stabilization rating, in that the latter is usually assigned
only to veterans that have conditions that are still undergoing
treatment. These distinctions were made to Committee staff by
VA policy officials. A partial rating is different from both
the temporary or pre-stabilization rating, in that the rating
is permanent but can be amended when other deferred conditions
have evidence to warrant further adjudication.
H.R. 5892 would simply require VA to act more promptly for
claims presenting undisputed severe and very severe injuries
and in turn provide compensation more quickly where the
service-connection link is indisputable. Whereas this provision
uses the same scale for the partial rating as that outlined in
the regulations for the pre-stabilization ratings, mostly for
ease of administration purposes, its application is different
and should not be confused. The Committee informs that this
provision should be implemented by VA in a manner that provides
the best outcome for the impacted veteran.

TREATMENT OF CLAIMS UPON DEATH OF A CLAIMANT

The provision in H.R. 5892 addressing the treatment of
claims upon the death of a claimant is derived from H.R. 4084,
introduced by Representative Honorable John J. Hall of New York
on November 6, 2007, and H.R. 3047, introduced by
Representative Doug Lamborn on July 16, 2007, which provide
that in the event of the death of a veteran with a pending
disability claim, an eligible dependent as identified under
section 5121(a)(2) of title 38, United States Code, would be
authorized to substitute for the deceased claimant at the point
the claim had proceeded rather than being forced to re-file and
restart the claim or appeal. This provision also would allow an
eligible survivor to submit additional evidence for up to one
year after the death of a veteran.
During a hearing conducted by the Subcommittee on
Disability Assistance and Memorial Affairs on April 24, 2007,
entitled, ``Helping Those Left Behind: Are We Doing Enough for
the Parents, Spouses and Children of Veterans?'', the NVLSP
apprised the Committee of the many instances where veterans die
while awaiting resolution of a claim pending before the VARO,
BVA, CAVC, or other reviewing court. This is due primarily to
the fact that upon their deaths, survivors who are eligible to
pursue a claim for accrued benefits are unable to continue that
claim from the point it had progressed and essentially must
restart the claim ``at the back of the line.'' Additionally,
upon re-filing a claim for benefits, survivors also are
currently prohibited from submitting any additional information
to help further develop the claim after the veteran's death.
The Committee finds this result both unfair and
inefficient. Allowing substitution prevents unnecessary
reworking of the same claim, allowing it to move forward from
its current state of development to appropriate finality and
saves families from facing unnecessary administrative hurdles.
H.R. 5892 would also allow the dependent, in order of
priority as identified under 5121(a)(2) of title 38, United
States Code, to designate another qualified survivor to pursue
the claim for accrued benefits. This would likely prove to be a
very helpful provision for aged and ailing survivors of
deceased veterans who might not otherwise pursue the pending
claim for accrued benefits for these reasons. VA should
interpret this section so that only one qualified dependent at
a time is deemed eligible to apply as the substitute claimant.

ANNUAL REPORTS ON WORKLOAD OF THE UNITED STATES COURT OF APPEALS FOR
VETERANS CLAIMS

Currently the CAVC voluntarily provides an annual report to
Congress which it also posts on its official Web site. H.R.
5892 would mandate reporting requirements to Congress upon
enactment to include the number of petitions filed, number and
types of dispositions, number of oral arguments, number and
status of pending appeals and petitions, summary of service
performed by retired judges, number of decisions by a single
judge, multi-judge and full Court panels, number of cases
pending longer than 18 months, and number of oral arguments.
This information should better aid the Committee in conducting
more focused oversight of the backlog of pending claims and in
better assessing the needed resources.
The CAVC has indicated on numerous occasions to the
Committee that it would like to establish a Veterans Courthouse
and Justice Center Complex and expand the number of judges from
seven to nine. The Committee applauds Chief Judge Greene's
efficient and effective use of retired judges, but is concerned
with its growing backlog of appeals. The additional reporting
requirements would likely enhance the Committee's ability to
determine the need for additional resources at the CAVC.

MODIFICATION OF JURISDICTION AND FINALITY OF DECISIONS OF UNITED STATES
COURT OF APPEALS FOR VETERANS CLAIMS

H.R. 5892 would modify the jurisdiction and finality of
CAVC decisions on veterans' claims by providing the Court with
additional discretion to decide all issues presented on appeal,
except in the case of a reversal.
Pursuant to section 7251 of title 38, United States Code,
the CVAC has exclusive jurisdiction to review decisions of the
BVA. The Secretary of VA may not seek review of any of the
CAVC's decisions. The Court has the power to affirm, modify, or
reverse a decision, or remand the case back to the BVA for
further review, but it does not have the ability to review the
ratings of disabilities claims. The majority of the cases
decided are remanded back to the Board. This has seemed to
impact the effectiveness of the CAVC in providing intermediate
res judicata and the result is often an overly elongated
appeals process for veterans' claims.
In 2007, 4,644 new cases were filed with the CAVC, up from
3,729 in 2006. With a Court currently comprised of seven
judges, the average caseload is approximately 663 cases per
judge. This makes it one of the busiest federal appellate
courts, where the average hovers around 263 cases. During the
same period, 53 percent of these cases received were filed by
unrepresented, pro se veterans, a decrease from 63 percent in
2006. Also in 2007, the CAVC decided 4,877 cases of which 1,666
were dismissed on procedural grounds. There were 3,211 merit
decisions, the majority of which, more than 2000, were remanded
(some in part only) and 1,098 were affirmed.
Currently the median time from filing at the CAVC to
disposition is 416 days, up from 351 days in 2006. The average
disposition time for a claim appealed to the CAVC hovers around
five to seven years. The Court can hear cases by a single judge
or in panels of no less than three judges. In 2005 the Court
heard only 24 oral arguments, or one percent--the remaining
cases pending were decided on brief, BVA decision, and the
record available to the BVA. Since its inception, the CAVC has
disposed of more than 25,000 cases. Currently, it receives
approximately 300-500 cases each month. Pursuant to section
7299 of title 38, United States Code, the Court has the right
to recall retired judges for 90 days of service and as noted
above has made impressive progress through use of this
provision.
The number of remands ordered by the CAVC concerns the
Committee. While the Committee is aware that improved accuracy
of adjudicated claims at the VARO and the BVA levels would
significantly stem the need for the Court to remand the large
number of claims, it also finds that the Court is not operating
efficiently by remanding the majority of cases without
addressing meritorious issues raised on appeal. The Committee
does not accept the Court's judicial economy explanation for
this high remand rate.
Further, remanding a majority of cases mostly for
procedural reasons without reaching the merits of issues
presented is not in the spirit of Congress' intent in creating
the CAVC. Before the Court's inception in 1988, the only means
of appeal for a veteran was an appeal with the BVA, a VA
entity. Veterans had no recourse for judicial review of rating
decisions outside of the VA.
Finding this system of no judicial review inadequate,
Congress, after significant pressure from veterans service
organizations, created the CAVC (created as the United States
Court of Veterans Appeals). If the Court remands the majority
of its cases on procedural grounds, it does not encourage the
VAROs and the BVA to improve its accuracy, to inform of
mistakes in interpretation of VA laws and regulations, or
afford veterans a timely resolution of claims. As the NVLSP
pointed out in its May 22, 2007, testimony before the
Subcommittee on Disability Assistance and Memorial Affairs:

The piecemeal adjudication policy adopted in Best
[Best v. Principi, 15 Vet.App. 18, 19-20 (2001)] and
Mahl [Mahl v. Principi, 15 Vet.App. 37 (2001)] may
benefit the Court in the short term. By resolving only
one of the issues briefed by the parties, a judge can
finish an appeal in less time than would be required if
he or she had to resolve all of the other disputed
issues, thereby allowing the judge to turn his or her
attention at an earlier time to other appeals. But the
policy is myopic. Both disabled veterans and the VA are
seriously harmed by how Best and Mahl contribute to the
Hamster Wheel.
Moreover, the CAVC may not be saving time in the long
run. Each time a veteran appeals a case that was
previously remanded by the CAVC due to Best and Mahl,
the Central Legal Staff and at least one judge of the
Court will have to duplicate the time they expended on
the case the first time around by taking the time to
analyze the case for a second time.

The Committee concurs with this conclusion. Section 202 is
intended to encourage the CAVC to reach the merits of issues
filed on brief, to stop the recycling of claims, and to provide
a more timely resolution that veterans deserve on appeal and
Congress intended for them to receive.
The high percentage of remanded cases by the CAVC is not
the only barrier to achieving appellate justice that our
veterans face. In a statement before the Senate Committee on
Veterans' Affairs, retired judges from the CAVC indicated that
judicial review by the Federal Circuit has resulted in too much
judicial review and contributed greatly ``to the intertwined
problems of delay and backlog in finalizing decisions.'' With
four levels of appeals (one administrative to the BVA) and
three possible levels of judicial appeal the judges noted that,
``this is just more justice than the system can bear.''\16\ The
retired judges also noted that judicial review of one Federal
intermediate appeals court by another is unique as the judges
all have similar qualifications, backgrounds, nominations, and
selection procedures; the difference being that CAVC judges
have far more expertise in veterans' law.\17\ Further the
retired judges have estimated that Federal Circuit Court review
accounts for an increase of more than 35 percent in the CAVC
caseload.\18\ The Committee finds that these assessments
warrant further oversight and policy consideration, but H.R.
5892 does not address these specific issues.
---------------------------------------------------------------------------
\16\Statement of Retired Judges, Senate Committee on Veterans
Affairs hearing, S. Hrg. 109-694.
\17\Ibid.
\18\Ibid.
---------------------------------------------------------------------------

Hearings

On March 13, 2007, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled, ``The
Impact of Operation Iraqi Freedom/Operation Enduring Freedom on
the U.S. Department of Veterans Affairs Claims Process.'' The
following witnesses testified: Mr. Daniel Bertoni, Acting
Director, Education, Workforce, and Income Security Issues,
U.S. Government Accountability Office; Ms. Linda J. Bilmes,
Professor, John F. Kennedy School of Government, Harvard
University; Mr. Stephen L. Robinson, Director of Veterans
Affairs, Veterans for America; Mr. Brady Van Engelen, Associate
Director, Veterans for America; Mr. Patrick Campbell,
Legislative Director, Iraq and Afghanistan Veterans of America;
Ms. Ann G. Knowles, President, National Association of County
Veterans Service Officers; Mr. Jon Soltz, Co-Founder and
Chairman, VoteVets.org; Mr. Ronald R. Aument, Deputy Under
Secretary for Benefits, Veterans Benefits Administration, U.S.
Department of Veterans Affairs, accompanied by Mr. Michael
Walcoff, Associate Deputy Under Secretary for Field Operations,
Veterans Benefits Administration, U.S. Department of Veterans
Affairs.
On April 24, 2007, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled
``Helping Those Left Behind: Are We Doing Enough for the
Parents, Spouses and Children of Veterans?'' The following
witnesses testified: The Honorable Brad Ellsworth, on behalf of
Ron Nesler, Caregiver of Adult Dependent, New Harmony, Indiana;
The Honorable Tom Latham of Iowa; Ms. Susan Jaenke, Mother of
Deceased Veteran and Guardian of Grandchild, Iowa Falls, Iowa;
Mr. Matthew B. Heavrin, Father of Deceased Veteran, Redlands,
California, accompanied by Ms. Barbara Jean Heavrin; Ms. Amy
Clark, Spouse of Terminally-Ill Veteran, Bartow, Florida; Ms.
Kimberly Dawn Hazelgrove, Widow, Lorton, Virginia; Ms. Rose
Elizabeth Lee, Chair, Government Relations Committee, Gold Star
Wives of America, Inc.; Ms. Patricia Montes Barron, Deputy
Director of Government Relations, National Military Family
Association; Ms. Christine Cote, Staff Attorney, National
Veterans Legal Services Program; Mr. Jack McCoy, Associate
Deputy Under Secretary for Policy and Program Management,
Veterans Benefits Administration, U.S. Department of Veterans
Affairs, accompanied by Mr. Thomas M. Lastowka, Director,
Philadelphia Veterans Affairs Regional Office and Insurance
Center, Veterans Benefits Administration, U.S. Department of
Veterans Affairs. Statements for the Record Included: Mr. Peter
S. Gayan, Director, Veterans Affairs and Rehabilitation
Commission, The American Legion; The Honorable Solomon P. Ortiz
of Texas; and Ms. Priscilla Piestewa, Mother of Deceased
Veterans and Guardian of Grandchildren, Flagstaff, Arizona.
On May 22, 2007, the Subcommittee on Disability Assistance
and Memorial Affairs held a hearing entitled, ``The Challenges
Facing the Court of Appeals for Veterans Claims.'' The
following witnesses testified: The Honorable William P. Greene,
Jr., Chief Judge, U.S. Court of Appeals for Veterans Claims;
Mr. Bart Stichman, Joint Executive Director, National Veterans
Legal Services; Mr. Robert Chisholm, Former President, National
Organization of Veterans' Advocates; Mr. Brian Lawrence,
Assistant National Legislative Director, Disabled American
Veterans; The Honorable James P. Terry, Chairman, Board of
Veterans' Appeals, U.S. Department of Veterans Affairs,
accompanied by Mr. Randy Campbell, General Counsel Group II,
U.S. Department of Veterans Affairs.
On September 25, 2007, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled,
``Board of Veterans' Appeals Adjudication Process and the
Appeals Management Center.'' The following witnesses testified:
Mr. Barton F. Stichman, Joint Executive Director, National
Veterans Legal Services Program; Mr. Richard Paul Cohen,
President, National Organization of Veterans Advocates, Inc.;
Mr. Carl Blake, National Legislative Director, Paralyzed
Veterans of America; Mr. Steve Smithson, Deputy Director,
Veterans Affairs and Rehabilitation Commission, The American
Legion; Mr. Adrian Atizado, Assistant National Legislative
Director, Disabled American Veterans; Mr. Eric A. Hilleman,
Deputy Director National Legislative Service, Veterans of
Foreign Wars of the United States; Mr. Arnold Russo, Director,
Appeals Management Center, Veterans Benefits Administration,
U.S. Department of Veterans Affairs; Honorable James P. Terry,
Chairman, Board of Veterans' Appeals, U.S. Department of
Veterans Affairs.
On October 9, 2007, the Subcommittee on Disability
Assistance and Memorial Affairs conducted a field hearing in
New Windsor, New York, entitled, ``Personal Costs of the U.S.
Department of Veterans Claims Backlog.'' The following
witnesses testified: Mr. Anthony Zippo, Director, Orange County
Veterans Service Agency; Mr. Ned Foote, New York State Council,
Vietnam Veterans of America; Mr. R. Michael Suter, Chairman,
Veterans Affairs and Rehabilitation Commission, The American
Legion; Mr. Alex Lazos, Veteran, Harriman, New York; Mr. John
Rowan, President, Vietnam Veterans of America on behalf of Mr.
Ted H. Wolf, Veteran, Pomona, New York; Mr. Eddie J. Senior,
Veteran, West Harrison, New York; Christopher Ryan, Veteran,
Ellenville, New York, accompanied by Ms. Angela Ryan; Mr.
Michael Walcoff, Associate Deputy Under Secretary for Field
Operations, Veterans Benefits Administration, U.S. Department
of Veterans Affairs. Statements for the Record Included: Mr.
Michael Tokarz, Legislative Counsel Member, The American
Legion; and, Mr. Jerry Donnellan, Director, Rockland County
Veterans Service Agency.
On October 10, 2007, the Committee on Veterans' Affairs
conducted a full Committee hearing entitled, ``Findings of the
Veterans' Disability Benefits Commission.'' The following
witness testified: James Terry Scott, LTG, USA (Ret.),
Chairman, Veterans' Disability Benefits Commission.
On November 8, 2007, the Subcommittee on Disability
Assistance and Memorial Affairs conducted a legislative hearing
on a number of bills introduced in the 110th Congress,
including H.R. 3047, H.R. 3249, H.R. 3286, H.R. 3415, H.R.
1137, H.R. 3954, and H.R. 4084. The following witnesses
testified: Mr. Richard Daley, Associate Legislation Director,
Paralyzed Veterans of America; Mr. Steve Smithson, Deputy
Director, Veterans Affairs and Rehabilitation Commission, The
American Legion; Mr. Bradley G. Mayes, Director, Compensation
and Pension Service, Veterans Benefits Administration, U.S.
Department of Veterans Affairs, accompanied by Mr. Richard J.
Hipolit, Assistant General Counsel, U.S. Department of Veterans
Affairs; Paul Tibbits, M.D., Deputy Chief Information Officer,
Office of Enterprise Development, Office of Information
Technology, U.S. Department of Veterans Affairs; and, Mr. David
K. Schettler, Director, Communications Management Service,
National Cemetery Administration, U.S. Department of Veterans
Affairs. Statements for the Record Included: The Honorable Jim
Langevin of Rhode Island; Mr. Raymond C. Kelley, National
Legislative Director, American Veterans (AMVETS); Mr. Kerry
Baker, Associate Legislative Director, Disabled American
Veterans; Ms. Rose Elizabeth Lee, Chair, Government Relations
Committee, Gold Star Wives of America, Inc.; Mr. Lesley Witter,
Director of Political Affairs, National Funeral Directors
Association; and, Mr. Ronald B. Abrams, Joint Executive
Director, National Veterans Legal Services Program.
On January 29, 2008, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled, ``The
Use of Artificial Intelligence to Improve the U.S. Department
of Veterans Affairs Claims Processing System.'' The following
witnesses testified: Tai Cleveland, GySgt, USMC (Ret.),
Disabled Veteran, accompanied by Ms. Robin Cleveland; Mr. John
Roberts, National Service Director, Wounded Warrior Project;
Tom M. Mitchell, Ph.D., E. Fredkin Professor and Chair, Machine
Learning Department, School of Computer Science, Carnegie
Mellon University; Randolph A. Miller, M.D., Donald A.B. and
Mary M. Lindberg University Professor of Biomedical
Informatics, Vanderbilt University School of Medicine; Marjie
Shahani, M.D., Senior Vice President of Operations, QTC
Management, Inc; Mr. Ned M. Hunter, President and Chief
Executive Officer, Stratizon Corporation; Mr. John F. McGarry,
Senior Vice President of Benefits, Chief Risk Officer Unum; Mr.
Gary A. Christopherson, Former Senior Advisor to the Under
Secretary for Health and Chief Information Officer, Veterans
Health Administration, U.S. Department of Veterans Affairs, and
Former Principal Deputy Assistant Secretary for Health Affairs,
U.S. Department of Defense; Ms. Kim Graves, Director, Office of
Business Process Integration, Veterans Benefits Administration,
U.S. Department of Veterans Affairs; and, Mr. Stephen W.
Warren, Principal Deputy Assistant Secretary for Information
Technology, Office of Information and Technology, U.S.
Department of Veterans Affairs. Statements for the Record
Included: Mr. Raymond C. Kelley, National Legislative Director,
American Veterans (AMVETS); Mr. Kerry Baker, Associate National
Legislative Director, Disabled American Veterans; Mr. Steve
Smithson, Deputy Director, Veterans Affairs and Rehabilitation
Commission, The American Legion; and, the Paralyzed Veterans of
America.
On February 14, 2008, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled,
``Examining the U.S. Department of Veterans Affairs' Claims
Processing System.'' The following witnesses testified: Ms.
Joyce McMahon, Ph.D., Managing Director, CNA Corporation; Mr.
Michael McGeary, Senior Program Officer and Study Director,
Committee on Medical Evaluation of Veterans for Disability
Benefits, Board on Military and Veterans Health, Institute of
Medicine; Mr. Daniel Bertoni, Director, Education, Workforce,
and Income Security Issues, U.S. Government Accountability
Office; Mr. Richard Paul Cohen, Executive Director, National
Organization of Veterans' Advocates, Inc.; Mr. Ronald B.
Abrams, Joint Executive Director, National Veterans Legal
Services Program; Mr. J. David Cox, R.N., National Secretary-
Treasurer, American Federation of Government Employees, AFL-
CIO; Mr. Gordon Erspamer, Senior Counsel, Morrison and
Foerster; Mr. Adrian Atizado, Assistant National Legislative
Director, Disabled American Veterans; Mr. Paul Sullivan,
Executive Director, Veterans for Common Sense; Mr. Steve
Smithson, Deputy Director, Veterans Affairs and Rehabilitation
Commission, The American Legion; Mr. Gerald T. Manar, Deputy
Director, National Veterans Service, Veterans of Foreign Wars
of the United States; Mr. John Roberts, National Service
Director, Wounded Warrior Project; Mr. Michael Walcoff, Deputy
Under Secretary for Benefits, Veterans Benefits Administration,
U.S. Department of Veterans Affairs; Ms. Diana Rubens,
Associate Deputy Under Secretary for Field Operations, Veterans
Benefits Administration, U.S. Department of Veterans Affairs;
Mr. Bradley G. Mayes, Director, Compensation and Pension
Service, Veterans Benefits Administration, U.S. Department of
Veterans Affairs. Statements for the Record Included: Ms. Linda
J. Bilmes, Professor, Kennedy School of Government, Harvard
University; and, Master Sergeant Kurt Priessman, Veteran, USAF
(Ret.).
On February 26, 2008, the Subcommittee on Disability
Assistance and Memorial Affairs held a hearing entitled, ``The
U.S. Department of Veterans Affairs Schedule for Rating
Disabilities.'' The following witnesses testified: Dennis
Vincent McGinn, VADM, USN (Ret.), Member, Veterans' Disability
Benefits Commission; Lonnie Bristow, M.D., Chair, Committee on
Medical Evaluation of Veterans for Disability Compensation,
Board on Military and Veterans Health, Institute of Medicine;
Dean G. Kilpatrick, Ph.D., Member, Committee on Veterans'
Compensation for Posttraumatic Stress Disorder, Institute of
Medicine and National Research Council; Jonathan Samet, M.D.,
M.S., Chairman, Committee on Evaluation of the Presumptive
Disability, Decision-Making Process for Veterans, Board on
Military and Veterans Health, Institute of Medicine; Joyce
McMahon, Ph.D., Health Care Operations and Policy Research
Center, Center for Naval Analyses Corporation; Mark H. Hyman,
M.D., Presenter, American Academy of Disability Evaluating
Physicians; Sidney Weissman, M.D., Member, Committee on Mental
Healthcare for Veterans and Military Personnel and Their
Families, American Psychiatric Association; Mr. Ronald B.
Abrams, Joint Executive Director, National Veterans Legal
Service Program; Mr. Dean Stoline, Assistant Director, National
Legislative Commission, The American Legion; Mr. Kerry Baker,
Associate National Legislative Director, Disabled American
Veterans; Mr. Gerald T. Manar, Deputy Director, National
Veterans Service, Veterans of Foreign Wars of the United
States; Mr. Bradley G. Mayes, Director, Compensation and
Pension Service, Veterans Benefits Administration, U.S.
Department of Veterans Affairs, accompanied by Tom Pamperin,
Deputy Director for Policy and Procedures, Veterans Benefits
Administration, U.S. Department of Veterans Affairs; Steven H.
Brown, M.D., M.S., Director, Compensation and Pension Exam
Program, Veterans Health Administration, U.S. Department of
Veterans Affairs; Patrick Joyce, M.D., Chief Occupational
Health Clinic, Veterans Health Administration, U.S. Department
of Veterans Affairs; Mr. Richard Hipolit, Assistant General
Counsel, U.S. Department of Veterans Affairs, and, Joseph
Kelley, M.D., Deputy Assistant Secretary of Defense for
Clinical and Program Policy (Health Affairs), U.S. Department
of Defense, accompanied by Horace Carson, M.D., Senior Medical
Advisor, Air Force Review Boards Agency (SAF/MRB), U.S.
Department of Defense. Statement for the Record Included: the
American Medical Association.
On April 10, 2008, the Subcommittee on Disability
Assistance and Memorial Affairs held a legislative hearing
entitled, ``The Veterans Disability Benefits Claims
Modernization Act of 2008.'' The following witnesses testified:
The Honorable William P. Greene, Jr., Chief Judge, U.S. Court
of Appeals for Veterans Claims; Mr. Kerry Baker, Associate
National Legislative Director, Disabled American Veterans; Mr.
Ronald B. Abrams, Joint Executive Director, National Veterans
Legal Services Program; Mr. Steve Smithson, Deputy Director,
Veterans Affairs and Rehabilitation Commission, The American
Legion; Mr. Eric A. Hilleman, Deputy Director, National
Legislative Service, Veterans of Foreign Wars of the United
States; Mr. Carl Blake, National Legislative Director,
Paralyzed Veterans of America; and, Mr. Bradley G. Mayes,
Director, Compensation and Pension Service, Veterans Benefits
Administration, U.S. Department of Veterans Affairs,
accompanied by Mr. Richard J. Hipolit, Assistant General
Counsel, and Steven L. Keller, Senior Deputy Vice Chairman,
Board of Veterans' Appeals, U.S. Department of Veterans
Affairs. Statements for the Record Included: Mr. Raymond C.
Kelley, National Legislative Director, American Veterans
(AMVETS); Ms. Rose Elizabeth Lee, Chair, Executive Director,
National Organization of Veterans' Advocates, Inc.; Mr. Richard
Paul Cohen, Executive Director, National Organization of
Veterans' Advocates, Inc.; and, Mr. Richard Weidman, Executive
Director for Policy and Government Affairs, Vietnam Veterans of
America.

Subcommittee Consideration

On April 24, 2008, the Subcommittee on Disability
Assistance and Memorial Affairs met in open markup session and
ordered favorably forwarded to the full Committee H.R. 5892, by
voice vote.

Committee Consideration

On April 30, 2008, the full Committee met in open markup
session, a quorum being present, and ordered H.R. 5892
favorably reported to the House of Representatives, by voice
vote.

Committee Votes

Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report the legislation and amendments thereto.
There were no record votes taken on amendments or in connection
with ordering H.R. 5892 reported to the House. A motion by Mr.
Hall of New York to order H.R. 5892 reported favorably to the
House of Representatives was agreed to by voice vote.

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.

Statement of General Performance Goals and Objectives

In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.

New Budget Authority, Entitlement Authority, and Tax Expenditures

In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.

Earmarks and Tax and Tariff Benefits

H.R. 5892 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the
House of Representatives.

Committee Cost Estimate

The Committee adopts as its own the cost estimate on H.R.
5892 prepared by the Director of the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974.

Congressional Budget Office Cost Estimate

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 5892 provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, July 28, 2008.
Hon. Bob Filner,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5892, the Veterans
Disability Benefits Claims Modernization Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Robert A. Sunshine
(For Peter H. Orszag, Director).
Enclosure.

H.R. 5892--Veterans Disability Benefits Claims Modernization Act of
2008

Summary: H.R. 5892 would increase the number of veterans
eligible for disability compensation by modifying the
requirements for eligibility. The bill also would require the
Department of Veterans Affairs (VA) to conduct several studies
and complete several reports on various matters relating to the
delivery of veterans disability benefits and the Court of
Appeals for Veterans Claims (CAVC), and for other purposes. CBO
estimates that enacting H.R. 5892 would increase direct
spending by $60 million in 2009, by $1.5 billion over the 2009-
2013 period, and by $4.8 billion over the 2009-2018 period. In
addition, CBO estimates that implementing H.R. 5892 would
increase discretionary costs by $5 million over the 2009-2013
period, assuming appropriation of the necessary amounts.
Enacting the bill would have no impact on revenues.
H.R. 5892 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The costs of this
legislation fall within budget function 700 (veterans benefits
and services).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------
Total Total
2009- 2009-
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2013 2018

----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING

Estimated Budget Authority.. 60 165 360 420 480 540 600 670 730 800 1,485 4,825
Estimated Outlays........... 60 165 360 420 480 540 600 670 730 800 1,485 4,825
----------------------------------------------------------------------------------------------------------------
Note: In addition, H.R. 5892 would increase spending subject to appropriation by $5 million over the 2009-2013
period.

Direct spending
To receive disability compensation from VA, veterans must
demonstrate, generally through documentation in official
records, that their disabilities are related to their service
in the military. Veterans who have engaged in combat with the
enemy face a much lower burden of proof. Those veterans'
disabilities can be presumed to be service-connected if any
type of evidence--verification from other members of the
veteran's unit, for example--is consistent with the
circumstances of the veterans' service. According to VA
regulations, engaging in combat with the enemy means personal
participation in events constituting an actual fight or
encounter with a military foe or hostile unit or
instrumentality. It includes presence during such events either
as a combatant or servicemember performing duty in support of
combatants, such as providing medical care to the wounded.
Section 101 would expand the definition of combat with the
enemy to include service on active duty in a theater of combat
operations--as determined by VA in consultation with the
Secretary of Defense--during a period of war. Many veterans
cannot have their disability presumed to be service-connected
because they cannot prove that they engaged in combat with the
enemy. Section 101 would alleviate the evidentiary burden of
proof of personal participation as long as the veteran could
prove that he or she served in a theater of combat operations
during a period of war.
Based on data from VA, CBO expects that most of the
population affected would be veterans seeking disability
compensation for post-traumatic stress disorder (PTSD). VA
reports that 50 percent of disability claims for PTSD are
approved and that the majority of denials are because of lack
of evidence of service-connection.
In total, CBO estimates that enacting section 101 would
increase direct spending by $4.8 billion over the 2009-2018
period; those costs would include amounts for new accessions
(newly approved beneficiaries), veterans currently on the
rolls, and surviving spouses and dependents.
New Accessions. CBO expects that implementing section 101
would increase both the number of disability claims that VA
would receive for PTSD, and the approval rate for such claims.
Over the 2002-2006 period, VA received about 188,000 (on
average) initial claims for disability compensation each year.
About 80 percent of those claims were approved. Of those new
accessions to the disability compensation rolls, about 15
percent involved PTSD (about 20,000 per year).
Based on data from VA, CBO estimates that enacting H.R.
5892 would increase applications for disability compensation
for PTSD by 20 percent and the approval rate for such claims by
25 percent. Thus, CBO estimates that about 11,000 additional
veterans would be eligible to receive compensation in 2009. Of
those, CBO further estimates that 25 percent would apply and be
approved for benefits in 2009--the remainder would be approved
over the next two years--and that, on average, they would
receive one-half of the annual benefit. Consistent with CBO' s
baseline assumptions for new accessions, CBO estimates that the
number of veterans who would be newly eligible each year would
decline to about 6,800 by 2018.
In 2006 (2007 data are unavailable), the average disability
rating for a veteran with PTSD was 40 percent and the average
annual benefit payment for a disability rated at 40 percent was
$6,516 (or $543 monthly). Adjusting for cost-of-living
increases, the annual payment for a veteran rated at 40 percent
in 2009 would be about $7,080. After accounting for mortality
and cost-of-living adjustments, CBO estimates that, under
section 101, direct spending for new accessions would increase
by $10 million in 2009, by about $770 million over the 2009-
2013 period, and by $3 billion over the 2009-2018 period.
Veterans Currently on the Rolls. Section 101 also would
make some veterans who are currently receiving disability
compensation for other disabilities eligible to receive
compensation for PTSD as well. Many veterans who are receiving
a disability compensation payment are rated for more than one
disability. The average rating for veterans on the disability
compensation rolls in 2007 was 40 percent and the average
combined rating--a combination of all disabilities for which a
veteran is receiving compensation--for veterans with PTSD was
70 percent.
About 12,600 veterans who are currently receiving
compensation, and who served in Iraq, Afghanistan, and/or
elsewhere in the war on terrorism, had disability claims for
PTSD denied over the period from October 2001 through March
2008, because their PTSD could not be verified as service-
connected. Of those, CBO estimates 80 percent (or about 10,000
veterans) would be eligible for an increase in their disability
payment under H.R. 5892. CBO expects that such veterans would
see their disability ratings increase from 40 percent to 70
percent.
In 2006, the average annual disability payment for a
veteran rated at 40 percent was $6,516 and the average payment
for a veteran rated at 70 percent was $22,326--a difference of
$15,810. CBO estimates that, in 2009, the annual difference
between a 40 percent and a 70 percent rating would be $17,175
and that it would increase with cost-of-living adjustments to
about $20,800 by 2018. After also adjusting for mortality, and
assuming a three-year phase-in of veterans re-applying for
benefits, CBO estimates that enacting section 102 would
increase direct spending for existing recipients by about $1.6
billion over the 2009-2018 period.
Surviving Spouses and Dependents. VA provides dependency
and indemnity compensation (DIC) payments to the surviving
spouses of certain deceased veterans. CBO expects that some of
the veterans who would become eligible for disability
compensation under H.R. 5892 would die over the 2009-2018
period, leaving survivors who would be eligible for DIC
payments. Currently, about 25 percent of veterans' deaths
result in new accessions to the DIC rolls. Assuming an average
age for a DIC accession of 63 years and accounting for
mortality of surviving spouses, CBO estimates that about 30
surviving spouses would receive a DIC payment in 2009,
increasing to about 1,800 in 2018. The average annual DIC
benefit payment in 2007 was $13,667. After adjusting for cost-
of-living increases, CBO expects the annual DIC benefit payment
would average about $14,430 in 2009 and would increase to about
$17,500 in 2018. We estimate that enacting section 101 would
increase direct spending for surviving spouses by about $120
million over the 2009-2018 period.
Discretionary spending
H.R. 5892 includes several provisions that, in total, would
increase discretionary costs by $5 million over the 2009-2013
period, assuming appropriation of the necessary amounts.
Reports. The bill would require VA to complete a series of
reports and studies for the Congress on varying topics. Those
studies include: an overhaul of the disability compensation
ratings system; the employee work credit system of the Veterans
Benefits Administration (VBA); the work management system of
VBA, which is designed to improve claims processing times for
benefits delivery; an assessment of VBA's quality assurance
program; the employment of medical professionals to provide
expert medical advice in evaluating disability claims; a review
of VA's information technology systems for processing claims
and a comprehensive plan for improving those systems; and
workload reports for the CAVC. Based on information from VA,
CBO estimates that completing those reports would cost about $3
million over the 2009-2013 period.
Advisory Committee on Disability Compensation. Section 102
would establish the Advisory Committee on Disability
Compensation. The committee would provide recommendations and
advice to the Congress and the Secretary about maintaining and
periodically adjusting the schedule for VA disability ratings.
Based on information from the General Services Administration
on the cost of administering and staffing an advisory
committee, CBO estimates that implementing section 102 would
cost about $2 million over the 2009-2013 period, assuming
availability of appropriated funds.
Intergovernmental and private-sector impact: H.R. 5892
contains no intergovernmental or private-sector mandates as
defined in the UMRA and would impose no costs on state, local,
or tribal governments.
Estimate prepared by: Federal Costs: Dwayne M. Wright;
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum; Impact on the Private Sector: Daniel Frisk.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.

Federal Mandates Statement

The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 5892 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.

Advisory Committee Statement

Regarding section 5(b) of the Federal Advisory Committee
Act, section 102 of the bill requires the establishment of an
advisory committee. The Committee finds that establishing the
advisory committee is the most efficient way of carrying out
the policies involved.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for H.R. 5892 is provided by Article
I, section 8 of the Constitution of the United States.

Applicability To Legislative Branch

The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.

Section-by-Section Analysis of the Legislation

Section 1. Short title; table of contents

This section provides the short title of H.R. 5982 as the
``Veterans Disability Benefits Claims Modernization Act of
2008,'' and the table of contents.

Section 2. Findings

This section provides a number of findings related to the
VA claims processing system.

TITLE I. MATTERS RELATING TO MODERNIZING THE DISABILITY COMPENSATION
SYSTEM OF THE DEPARTMENT OF VETERANS AFFAIRS

Section 101. Clarification of meaning of ``combat with the enemy'' for
purposes of service-connection of disabilities

This section would expand the definition of ``combat with
the enemy'' under section 1154(b) of title 38, United States
Code, to include active service in a theater of combat
operations (as determined by the Secretary in consultation with
the Secretary of Defense) during a period of war; or in combat
against a hostile force during a period of hostilities. This
would be effective upon enactment of this act.

Section 102. Study on readjustment of schedule for rating disabilities

This section would require the Secretary to conduct a study
on adjusting the VA Schedule for Rating Disabilities (VASRD)
taking into standards, practices and codes in common and
current use by the medical, psychiatric and disability
communities. The study would take into account loss of quality
of life and loss of earnings capacity and examine the nature of
the disability. Furthermore, the study would examine potential
disparities between physical and mental disability ratings and
be adjusted to ensure parity, especially in regard to
employability, as needed. VA would be required to consult with
other stakeholders and the veteran service organizations and
also take into consideration reports from previous commissions
and task forces.
The study would be required to be completed within 180 days
after enactment. A report to Congress would be due 60 days
after the completion of the study. A plan would be due to
Congress 120 days after the report had been submitted that
would outline alignment of the VA Rating Schedule with commonly
used medical codes, would bridge gaps between the current
schedule and current state of medical knowledge, would give
priority to certain common disorders, ensure continuous
updates, and ascertain transition. A timeline, not to exceed
three years, for the plan would be required.
Additionally, this section would require the establishment
of an 18-member Advisory Committee on Disability Compensation
of leading experts who would advise the Secretary on revising
and readjusting the VASRD on an on-going basis and provide
annual reports to the VA Secretary which would be required to
be submitted to Congress within 90 days after receipt by the
Secretary.

Section 103. Study on employee work credit system of Veterans Benefits
Administration

This section would require the Secretary to conduct a study
on its work credit system focusing on performance standards and
accountability, objectivity, accuracy, consistency, and
efficiency, timeliness, prioritization of the severely injured,
and documenting lessons learned.
A study report would be due to Congress not later than 180
days after enactment of H.R. 5892 along with a plan for
implementing a new system for evaluating work production. If a
new system is not implemented, this section would require the
Secretary to suspend the current work credit system.

Section 104. Study on work management system

This section would require Secretary to conduct a study and
report on the work management system of the VBA (currently CPI)
focusing on increasing accountability, quality, accuracy, and
timeliness of the VBA claims processing system. A report to
Congress would be due within 180 days of enactment.

Section 105. Certification and training of employees of Veterans
Benefits Administration responsible for processing claims

This section would mandate a certification examination of
appropriate VBA claims processing personnel and managers.
Development of a certification examination would be required to
take place not later than one year after enactment of this act.
Implementation procedures would be required 90 days later. In
addition, a contract with an outside entity to conduct an
evaluation of VBA's training would be required to evaluate its
process, continuing education needs, and centralization
requirements. A training study report would be due to Congress
within 180 days enactment with annual reports and plans due
thereafter.

Section 106. Annual assessment of quality assurance program

This section would amend section 7731 of title 38, United
States Code, to require the Secretary to contract with an
independent entity to conduct an annual quality assurance
assessment that measures a statistically valid sample of VBA
employees and their work product for accuracy, consistency, and
reliability and to track trends. An annual report to Congress
would be required.

Section 107. Expedited treatment of fully developed claims and
requirement for checklist to be provided to individuals
submitting incomplete claims

This section would require the Secretary to set a policy
within 180 days of enactment for veterans to be able to submit
claims and declare them fully developed and ``ready to rate''
at the time of submission and receive a rating within 90 days.
This section would also amend VA's duty to notify under
section 5103(a) of title 38, United States Code, by obligating
the Secretary to create a checklist for claims specific
requests of additional evidence. The checklist would need to be
completed within 180 days of enactment and submitted to
Congress within 60 days.

Section 108. Study and report on employing medical professionals to
assist employees of Veterans Benefits Administration

This section would require the Secretary evaluate the need
for the VBA to hire medical professionals (including those who
are not physicians) to assist its personnel responsible for
processing and adjudicating claims as a reference resource and
report to congress within 180 days of enactment. This section
requires the study to include a statistically significant
sample of VBA employees to ascertain their views on such
assistance. If hired by the VBA as advisors, medical
professionals would not be permitted to contribute to the
rating or to influence rating decisions. If implemented by VA
this section would require that all VBA rating personnel would
have access to such professionals.

Section 109. Assignment of partial ratings to qualifying veterans

This section would amend chapter 11 of title 38, United
States Code, to provide authority for the VA to provide partial
ratings for qualified severely (50 percent service-connected)
and very severely (100 percent service-connected) injured
veterans who are 365 days or less from discharge from active
duty and gainful employment is not feasible. A partial rating
would be rendered on the most obvious conditions not requiring
a medical examination while deferring other issues for which a
rating is not immediately assignable until such ratings can be
established.

Section 110. Review and enhancement of use of information technology at
Veterans Benefits Administration

This section would require the VA to conduct a review and
to develop a plan to implement comprehensive information
technology upgrades, including web portals, rule-based expert
systems, and decision support software within one year to
enhance its claims processing capabilities and to rate claims
within the time period VA identifies in its Annual Performance
Report to Congress. This information technology capability
would also include the integration of exam templates with the
VASRD and bi-directional access to medical records from VA and
the Department of Defense. In carrying out this review,
information technology best practices and lessons learned by
the Veterans Health Administration and other entities would be
incorporated. A report to Congress with a plan would be due not
later than January 1, 2009.

Section 111. Treatment of claims upon death of claimant

This section would allow an eligible survivor to become a
substitute claimant upon the death of a veteran in order to
continue the claim and to submit additional evidence up to one-
year after death of veteran. Only one person at a time may be
treated as the claimant to processing a claim to completion.
This section would be effective upon the date of enactment of
H.R. 5892.

TITLE II. MATTERS RELATING TO UNITED STATES COURT OF APPEALS FOR
VETERANS CLAIMS

Section 201. Annual reports on workload of United States Court of
Appeals for Veterans Claims

This section would mandate the chief judge of the CAVC to
report annually to Congress, providing additional workload data
on appeals, petitions, applications, dispositions, oral
arguments and other measures.

Section 202. Modification of jurisdiction and finality of decisions of
United States Court of Appeals for Veterans Claims

This section would amend section 7252(a) of title 38,
United States Code, regarding the jurisdiction and finality of
CAVC decisions on veterans' claims to give the CAVC greater
discretion to decide all issues presented except in the case of
a reversal. This section would apply to decisions of the BVA
made on or after the date of enactment of H.R. 5892.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (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

* * * * * * *
PART I--GENERAL PROVISIONS

* * * * * * *

CHAPTER 5--AUTHORITY AND DUTIES OF THE SECRETARY

SUBCHAPTER I--GENERAL AUTHORITIES

Sec.
501. Rules and regulations.
* * * * * * *

SUBCHAPTER III--ADVISORY COMMITTEES

* * * * * * *
546. Advisory Committee on Disability Compensation.
* * * * * * *

SUBCHAPTER III--ADVISORY COMMITTEES

* * * * * * *

Sec. 546. Advisory Committee on Disability Compensation

(a) Establishment.--(1) There is in the Department the
Advisory Committee on Disability Compensation (hereinafter in
this section referred to as the ``Committee'').
(2) The Committee shall consist of not more than 18 members
appointed by the Secretary from among individuals who--
(A) have demonstrated significant civic or
professional achievement; and
(B) have experience with the provision of disability
compensation by the Department or are leading medical
or scientific experts in relevant fields.
(3) The Secretary shall seek to ensure that members appointed
to the Committee include individuals from a wide variety of
geographic areas and ethnic backgrounds, individuals from
veterans service organizations, individuals with combat
experience, and women.
(4) The Secretary shall determine the terms of service and
pay and allowances of the members of the Committee, except that
a term of service may not exceed two years. The Secretary may
reappoint any member for additional terms of service.
(b) Responsibilities of Committee.--(1) The Secretary shall,
on a regular basis, consult with and seek the advice of the
Committee with respect to the maintenance and periodic
readjustment of the schedule for rating disabilities under
section 1155 of this title.
(2)(A) In providing advice to the Secretary under this
subsection, the Committee shall--
(i) assemble and review relevant information relating
to the needs of veterans with disabilities;
(ii) provide information relating to the nature and
character of disabilities arising from service in the
Armed Forces;
(iii) provide an on-going assessment of the
effectiveness of the schedule for rating disabilities;
and
(iv) provide on-going advice on the most appropriate
means of responding to the needs of veterans relating
to disability compensation in the future.
(B) In carrying out its duties under subparagraph (A), the
Committee shall take into special account the needs of veterans
who have served in a theater of combat operations.
(c) Annual Report.--(1) Not later than March 31 of each year,
the Committee shall submit to the Secretary a report on the
programs and activities of the Department that relate to the
payment of disability compensation. Each such report shall
include--
(A) an assessment of the needs of veterans with
respect to disability compensation;
(B) a review of the programs and activities of the
Department designed to meet such needs; and
(C) such recommendations (including recommendations
for administrative and legislative action) as the
Committee considers appropriate.
(2) Not later than 90 days after the receipt of a report
under paragraph (1), the Secretary shall transmit to the
Committees on Veterans' Affairs of the Senate and House of
Representatives a copy of the report, together with any
comments and recommendations concerning the report that the
Secretary considers appropriate.
(3) The Committee may also submit to the Secretary such other
reports and recommendations as the Committee considers
appropriate.
(4) The Secretary shall submit with each annual report
submitted to the Congress pursuant to section 529 of this title
a summary of all reports and recommendations of the Committee
submitted to the Secretary since the previous annual report of
the Secretary submitted pursuant to that section.
(d) Applicability of Federal Advisory Committee Act.--(1)
Except as provided in paragraph (2), the provisions of the
Federal Advisory Committee Act (5 U.S.C. App.) shall apply to
the activities of the Committee under this section.
(2) Section 14 of such Act shall not apply to the Committee.

* * * * * * *

PART II--GENERAL BENEFITS

* * * * * * *

CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH

SUBCHAPTER I--GENERAL

Sec.
1101. Definitions.
* * * * * * *

SUBCHAPTER VI--GENERAL COMPENSATION PROVISIONS

* * * * * * *
1156. Partial disability ratings.

* * * * * * *

SUBCHAPTER VI--GENERAL COMPENSATION PROVISIONS

* * * * * * *

Sec. 1154. Consideration to be accorded time, place, and circumstances
of service

(a) * * *
(b)(1) In the case of any veteran who engaged in combat with
the enemy in active service with a military, naval, or air
organization of the United States during a period of war,
campaign, or expedition, the Secretary shall accept as
sufficient proof of service-connection of any disease or injury
alleged to have been incurred in or aggravated by such service
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence or aggravation in such service, and, to that
end, shall resolve every reasonable doubt in favor of the
veteran. Service-connection of such injury or disease may be
rebutted by clear and convincing evidence to the contrary. The
reasons for granting or denying service-connection in each case
shall be recorded in full.
(2) For the purposes of this subsection, the term ``combat
with the enemy'' includes service on active duty--
(A) in a theater of combat operations (as determined
by the Secretary in consultation with the Secretary of
Defense) during a period of war; or
(B) in combat against a hostile force during a period
of hostilities.

* * * * * * *

Sec. 1156. Partial disability ratings

(a) Assignment of Partial Ratings.--For the purpose of
providing disability compensation under this chapter to a
qualifying veteran, the Secretary shall assign a partial
disability rating to the veteran as follows:
(1) In the case of a qualifying veteran described in
subsection (b)(3)(A), a rating of 100 percent.
(2) In the case of a qualifying veteran described in
subsection (b)(3)(B), a rating of 50 percent.
(b) Qualifying Veteran.--For the purposes of this section, a
qualifying veteran is a veteran--
(1) who has been discharged from active duty service
for 365 days or less;
(2) for whom a permanent disability rating is not
immediately assignable under the regular provisions of
the schedule for rating disabilities under section 1155
of this title or on the basis of individual
unemployability; and
(3) who has--
(A) a severe disability for whom
substantially gainful employment is not
feasible or advisable; or
(B) a wound or injury, whether healed,
unhealed or incompletely healed for whom
material impairment of employability is likely.
(c) Examinations.--A medical examination of a qualifying
veteran is not required to be performed before assigning a
partial disability rating to the veteran under this section,
but the fact that such an examination is conducted shall not
prevent the Secretary from assigning such a rating.
(d) Termination of Partial Rating.--(1) Except as provided in
paragraph (2), a partial disability rating assigned to a
veteran under this section shall remain in effect until the
earlier of the following dates:
(A) The date on which the veteran receives a
permanent disability rating based on the schedule for
rating disabilities under section 1155 of this title.
(B) The date that is 365 days after the date of the
veteran's last separation or release from active duty.
(2) The Secretary may extend a partial disability rating
assigned to a veteran under this section beyond the applicable
termination date under paragraph (1), if the Secretary
determines that such an extension is appropriate.

* * * * * * *

PART IV--GENERAL ADMINISTRATIVE PROVISIONS

* * * * * * *

CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND PAYMENTS

SUBCHAPTER I--CLAIMS

Sec.
5100. Definition of ``claimant''.
* * * * * * *
5109C. Expedited treatment of fully developed claims.

SUBCHAPTER III--PAYMENT OF BENEFITS

* * * * * * *
5121A. Death of claimant.

* * * * * * *

SUBCHAPTER I--CLAIMS

* * * * * * *

Sec. 5103. Notice to claimants of required information and evidence

(a) * * *
(b) Provision of Checklist.--In providing notice of required
information and evidence to a claimant and a claimant's
representative, if any, under subsection (a), the Secretary
shall provide to the claimant and any such representative a
checklist that includes a detailed description of information
or evidence required to be submitted by the claimant to
substantiate the claim.
[(b)] (c) Time Limitation.--(1) * * *

* * * * * * *

Sec. 5109C. Expedited treatment of fully developed claims

(a) Expedited Treatment Required.--The Secretary shall take
such actions as may be necessary to provide for the expeditious
treatment by the appropriate regional office of the Veterans
Benefits Administration of any fully developed claim to ensure
that any such claim is adjudicated not later than 90 days after
the date on which the claim is submitted.
(b) Notice of Required Information and Evidence.--Nothing in
this section shall affect the responsibility of the Secretary
to provide notice under section 5103 to a claimant and a
claimant's representative of required information and evidence
that is necessary to substantiate a fully developed claim.
(c) Fully Developed Claim Defined.--For purposes of this
section, the term ``fully developed claim'' means a claim for a
benefit under a law administered by the Secretary--
(1) for which the claimant--
(A) received assistance from a veterans
service officer, a State or county veterans
service officer, an agent, or an attorney; or
(B) submits along with the claim an
appropriate indication that the claimant does
not intend to submit any additional information
in support of the claim and does not require
additional assistance with respect to the
claim; and
(2) for which the claimant submits a certification in
writing that is signed by the claimant stating that at
the time of signature, no additional information is
available or needs to be submitted in order for the
claim to be adjudicated.

* * * * * * *

SUBCHAPTER III--PAYMENT OF BENEFITS

* * * * * * *

Sec. 5121A. Substitution in case of death of claimant

(a) Substitution.--If a veteran who is a claimant dies while
a claim for any benefit under a law administered by the
Secretary, or an appeal of a decision with respect to such a
claim, is pending and awaiting adjudication, the person who
would receive any accrued benefits due to the veteran under
section 5121(a)(2) of this title shall be treated as the
claimant for the purposes of processing the claim to
completion, except that such person may only submit new
evidence in support of the claim during the one-year period
beginning on the date of the death of the veteran.
(b) Limitation.--Only one person may be treated as the
claimant under subsection (a).
(c) Designation of Third Party.--If the person who would be
eligible to be treated as the claimant under subsection (a)
certifies to the Secretary that the person does not want to be
treated as the claimant for such purposes, such person may
designate the person who would receive the benefits under
section 5121(a)(2) upon the death of the person who would
otherwise be treated as the claimant under subsection (a) to be
treated as the claimant for the purposes of processing the
claim to completion.

* * * * * * *

PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

* * * * * * *

CHAPTER 72--UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

SUBCHAPTER I--ORGANIZATION AND JURISDICTION

Sec.
7251. Status.
* * * * * * *

SUBCHAPTER III--MISCELLANEOUS PROVISIONS

* * * * * * *
7288. Annual report.
* * * * * * *

SUBCHAPTER I--ORGANIZATION AND JURISDICTION

* * * * * * *

Sec. 7252. Jurisdiction; finality of decisions

(a) The Court of Appeals for Veterans Claims shall have
exclusive jurisdiction to review decisions of the Board of
Veterans' Appeals. The Secretary may not seek review of any
such decision. [The Court shall have power to affirm, modify,
or reverse a decision of the Board or to remand the matter, as
appropriate.] The Court shall have power to affirm, modify,
reverse, remand, or vacate and remand a decision of the Board
after deciding all relevant assignments of error raised by an
appellant for each particular claim for benefits. In a case in
which the Court reverses a decision on the merits of a
particular claim and orders an award of benefits, the Court
need not decide any additional assignments of error with
respect to that claim.

* * * * * * *

SUBCHAPTER III--MISCELLANEOUS PROVISIONS

* * * * * * *

Sec. 7288. Annual report

The chief judge of the Court shall annually submit to the
Committee on Veterans' Affairs of the Senate and the Committee
on Veterans' Affairs of the House of Representatives a report
summarizing the workload of the Court during the last fiscal
year that ended before the submission of such report. Such
report shall include, with respect to such fiscal year, the
following information:
(1) The number of appeals filed.
(2) The number of petitions filed.
(3) The number of applications filed under section
2412 of title 28.
(4) The number and type of dispositions, including
settlements.
(5) The median time from filing to disposition.
(6) The number of oral arguments.
(7) The number and status of pending appeals and
petitions and of applications described in paragraph
(3).
(8) A summary of any service performed by recalled
retired judges during the fiscal year.
(9) The number of decisions or dispositions rendered
by a single judge, multi-judge panels and the full
Court.
(10) The number of cases pending longer than 18
months.

* * * * * * *

CHAPTER 77--VETERANS BENEFITS ADMINISTRATION

SUBCHAPTER I--ORGANIZATION; GENERAL

Sec.
7701. Organization of the Administration.
* * * * * * *

SUBCHAPTER II--QUALITY ASSURANCE

* * * * * * *
7735. Employee certification.

* * * * * * *

SUBCHAPTER II--QUALITY ASSURANCE

Sec. 7731. Establishment

(a) * * *

* * * * * * *

(c)(1) The Secretary shall enter into a contract with an
independent third-party entity for the conduct of an annual
assessment of the quality assurance program under this section.
Each such assessment shall--
(A) evaluate a statistically valid sample of
employees of the Veterans Benefits Administration and a
statistically valid sample of the work product of such
employees to assess the quality and accuracy of such
work product;
(B) measure the performance of each regional office
of the Veterans Benefits Administration;
(C) measure the accuracy of the disability ratings
assigned under the schedule for rating disabilities
under section 1155 of this title;
(D) compare disability ratings and evaluate
consistency between regional offices;
(E) assess the performance of employees and managers
of the Veterans Benefits Administration; and
(F) produce automated categorizable data to help
identify trends.
(2) The Secretary shall use information gathered through the
annual assessments required under this section in developing
the employee certification required under section 7735 of this
title.
(3) Nothing in this subsection shall require the Secretary to
replace the quality assurance program under this section, as in
effect on the date of the enactment of the Veterans Disability
Benefits Claims Modernization Act of 2008.

* * * * * * *

Sec. 7734. Annual report to Congress

The Secretary shall include in the annual report to the
Congress required by section 529 of this title a report on the
quality assurance activities carried out under this subchapter.
Each such report shall include--
(1) * * *
(2) information with respect to the accuracy of
decisions, including trends in that information; [and]
(3) the results and findings of the most recent
annual assessment conducted under section 7731(c) of
this title; and
[(3)] (4) such other information as the Secretary
considers appropriate.

Sec. 7735. Employee certification

(a) Development of Certification Examination.--The Secretary
shall develop a certification examination for appropriate
employees and managers of the Veterans Benefits Administration
who are responsible for processing claims for benefits under
the laws administered by the Secretary. The Secretary shall
develop such examination in consultation with examination
development experts, interested stakeholders, including such
appropriate employees, employee representatives, and managers,
and appropriate public and private entities, including veterans
service organizations and other service organizations.
(b) Employee and Manager Requirement.--The Secretary shall
require appropriate employees and managers of the Veterans
Benefits Administration who are responsible for processing
claims for benefits under the laws administered by the
Secretary to take a certification examination.
(c) Limitation.--The Secretary may not satisfy any
requirement of this section through the use of any
certification examination or program that exists as of the date
of the enactment of the Veterans Disability Benefits Claims
Modernization Act of 2008.

* * * * * * *