[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 569, H.R. 570,
H.R. 602, H.R. 671, H.R. 679, H.R. 733, H.R. 894
AND H.R. 1405
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, APRIL 16, 2013
__________
Serial No. 113-16
__________
Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE
80-455 WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida Minority Member
DAVID P. ROE, Tennessee CORRINE BROWN, Florida
BILL FLORES, Texas MARK TAKANO, California
JEFF DENHAM, California JULIA BROWNLEY, California
JON RUNYAN, New Jersey DINA TITUS, Nevada
DAN BENISHEK, Michigan ANN KIRKPATRICK, Arizona
TIM HUELSKAMP, Kansas RAUL RUIZ, California
MARK E. AMODEI, Nevada GLORIA NEGRETE MCLEOD, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
PAUL COOK, California TIMOTHY J. WALZ, Minnesota
JACKIE WALORSKI, Indiana
Helen W. Tolar, Staff Director and Chief Counsel
______
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
JON RUNYAN, New Jersey, Chairman
DOUG LAMBORN, Colorado DINA TITUS, Nevada, Ranking
GUS M. BILIRAKIS, Florida Minority Member
MARK AMODEI, Nevada BETO O'ROURKE, Texas
PAUL COOK, California RAUL RUIZ, California
GLORIA NEGRETE MCLEOD, California
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
April 16, 2013
Page
Legislative Hearing On H.R. 569, H.R. 570, H.R. 602, H.R. 671,
H.R. 679, H.R. 733, H.R. 894 And H.R. 1405..................... 1
OPENING STATEMENTS
Hon. Jon Runyan, Chairman, Disability Assistance and Memorial
Affairs........................................................ 1
Prepared Statement of Hon. Runyan............................ 29
Hon. Dina Titus, Ranking Minority Member, Subcommittee on
Disability Assistance and Memorial Affairs..................... 2
Prepared Statement of Hon. Titus............................. 30
Hon. Jeff Miller, Chairman, Committee on Veterans' Affairs, U.S.
House of Representatives....................................... 3
Prepared Statement of Chairman Miller........................ 30
Hon. Michael Michaud, Ranking Minority Member, Committee on
Veterans' Affairs, U.S. House of Representatives............... 5
WITNESSES
Hon. Chellie Pingree, U.S. House of Representatives (D-ME-01).... 5
Prepared Statement of Hon. Pingree........................... 31
Executive Summary of Hon. Pingree............................ 32
Hon. Bill Johnson, U.S. House of Representatives (OH-06)......... 7
Prepared Statement of Hon. Johnson........................... 33
Executive Summary of Hon. Johnson............................ 34
Hon. Timothy J. Walz, U.S. House of Representatives (MN-01)...... 9
Prepared Statement of Hon. Walz.............................. 34
Jeffrey C. Hall, Assistant National Legislative Director,
Disabled American Veterans..................................... 11
Prepared Statement of Mr. Hall............................... 35
Raymond Kelley, Director of National Legislative Service,
Veterans of Foreign Wars....................................... 13
Prepared Statement of Mr. Kelley............................. 39
Colonel Robert F. Norton, USA (Ret.), Deputy Director of
Government Relations, Military Officers Association of America. 15
Prepared Statement of Mr. Norton............................. 40
Executive Summary of Mr. Norton.............................. 45
Heather Ansley, Esquire., MSW, Vice President of Veterans Policy,
VetsFirst, a program of United Spinal Association.............. 16
Prepared Statement of Ms. Ansley............................. 46
Executive Summary of Ms. Ansley.............................. 49
Michael D. Murphy, Executive Director, National Association of
County Veterans Service Officers............................... 18
Prepared Statement of Mr. Murphy............................. 50
Executive Summary of Mr. Murphy.............................. 51
David R. McLenachen, Director, Pension and Fiduciary Service,
U.S. Department of Veterans Affairs............................ 23
Prepared Statement of Mr. McLenachen......................... 52
Accompanied by:
Mary Ann Flynn, Deputy Director, Policy and Procedures,
Compensation Service, U.S. Department of Veterans
Affairs
Richard Hipolit, Assistant General Counsel, U.S. Department
of Veterans Affairs
STATEMENT FOR THE RECORD
American Legion.................................................. 63
Iraq and Afghanistan Veterans of America......................... 67
National Organization of Veterans Advocates...................... 69
Wounded Warrior Project.......................................... 71
American Civil Liberties Union (ACLU)............................ 74
LEGISLATIVE HEARING ON H.R. 569, H.R. 570, H.R. 602, H.R. 671, H.R.
679, H.R. 733, H.R. 894 AND H.R. 1405
Tuesday, April 16, 2013
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:37 p.m., in
Room 334, Cannon House Office Building, Hon. Jon Runyan
[Chairman of the Subcommittee] presiding.
Present: Representatives Runyan, Bilirakis, Cook, Titus,
Ruiz, and Negrete McLeod.
Also Present: Representatives Miller, and Michaud.
OPENING STATEMENT OF CHAIRMAN RUNYAN
Mr. Runyan. Good afternoon. This legislation hearing on
H.R. 569, H.R. 570, H.R. 602, H.R. 671, H.R. 679, H.R. 733,
H.R. 894, and H.R. 1405 will now come to order.
Today we have a large number of witnesses present due to
the high level of interest in some of the bills before us.
Therefore, in the interest of time, I am going to forego any
lengthy opening statement and just briefly touch on three of
the bills on the agenda today that I am proud to introduce.
First off, we have H.R. 569. The Veterans' Compensation
Cost-of-Living Act or COLA of 2013 provides a cost-of-living
adjustment increase to veterans' disability compensation rates
and other benefits.
Also, H.R. 570, the American Heroes COLA Act, which is
related to the former H.R. 569 COLA Act of 2013, except this
bill seeks to make permanent the annual increase to veterans'
disability compensation rates and other benefits by tying the
increase to the cost-of-living adjustment for Social Security
benefits.
With the passage of the American Heroes COLA Act, veterans
will never again have to depend on congressional action to
receive an increase in their cost-of-living adjustments they
have more than earned throughout their service.
Instead, this increase will become automatic from year to
year just as Social Security benefits increase and are adjusted
automatically every year.
As some of you may recall last year, our annual COLA bill
was held up in the Senate with reports that had been put on a
secret hold by a senator. There is some question as to whether
this bill would pass and that veterans would receive their
annual COLA in a timely manner.
This situation was unacceptable and unfair to veterans and
thankfully with pressure from this Committee and the veterans'
community, it was ultimately passed and signed into law. And I
can tell you it was really close to the end of the year. It was
November 27th which I know for a fact because that happens to
be my birthday.
However, the final bill that I have here today that I have
sponsored is H.R. 733 along with my good friend, Congressman
Walz, the Access to Veterans Benefits Improvement Act, which
provides certain local government employees and certain
employees of Congress access to case tracking information
through the Department of Veterans Affairs.
There is no doubt that we have a responsibility to serve
our veterans by ensuring that every effort is made to simplify
the claims process. Key actors in this effort are county
veteran service officers whose expertise in claim development
benefits veterans in many communities across America.
Their assistance is especially critical to many thousands
of veterans who live in rural areas hours away from a VA
regional office.
Many veterans are overwhelmed as they try to navigate their
way through the claims process and they are also further
frustrated when they ask for help from their county VSO or
their Member of Congress and that person cannot directly access
even the most basic information about the status of their
claim.
This bill would allow these local government officials to
check on the status of the veteran's claim and ensure that VA
has all of the information needed to process claims in the most
efficient manner possible.
Again, in the interest of time, I would reiterate my
request that today's witnesses abide by the decorum or the
rules to this hearing to summarize your statement to five
minutes or less during the oral testimony. We have a large
number of individuals ready to testify on the legislation
today. I want to make sure everyone is heard in a timely
manner.
I want to also remind all present that your written
testimony will be made part of the hearing record, without
objection.
I appreciate everyone's attendance at this hearing and now
call on the Ranking Member, Ms. Titus, for her opening
statement.
[The prepared statement of Chairman Runyan appears in the
Appendix]
OPENING STATEMENT OF HON. DINA TITUS
Ms. Titus. Thank you, Mr. Chairman.
I do realize we have a full schedule and I will keep my
remarks brief as well. But I think it is important that we
thank our colleagues for the good work that they have done on
these various bills and point out that they address some of the
unique needs of our Nation's veterans.
The bills that are before us today are a variety of issues.
They range from military sexual assault, recognizing guard and
reserve members, increasing compensation, and improving the
appeals process, things that we have heard a lot about in
testimony before this Committee.
I am also pleased to say that I am proud that I worked with
the Chairman to introduce the disability compensation COLA
bills which are H.R. 569 and 570.
Another bill on the agenda, H.R. 671, the Ruth Moore Act of
2013, is introduced by Ms. Pingree. I am very pleased to see
that here today because we have heard some very compelling
statistics about the women who are in our military and some of
the problems that they face personally and also professionally
as a result of this and how difficult sometimes it is to
receive assistance and compensation and counseling and the
things that they need. H.R. 671 will address some of these.
Also, H.R. 679, Mr. Walz's bill to honor the guard and
reserves when they retire and they have been in that service
their entire careers, just maybe not have been in the field,
certainly should be recognized. And I support that.
Your other bill, Mr. Chairman, H.R. 733, Access to Veterans
Benefits Improvement Act, would grant county officers and other
state employees access to some records. We want to protect the
privacy of our veterans, but we certainly need to expedite the
process in helping them get compensation and remove the backlog
as quickly as possible.
I know in my district office, as we try to help veterans,
this is often a problem. I think your bill will go a long way
to addressing that.
There are other bills that are before us today which target
the appeals process. I am anxious to hear from our colleagues
on these and, again, appreciate your thoughtful work.
I yield back.
[The prepared statement of Hon. Dina Titus appears in the
Appendix]
Mr. Runyan. I thank the gentle lady, and pleasure to have
the Chairman of the Full Committee and the Ranking Member of
the Full Committee here. And I know Chairman Miller would also
like to make an opening statement.
So, Chairman, you are recognized.
OPENING STATEMENT OF CHAIRMAN JEFF MILLER
Mr. Miller. Thank you very much.
With your permission, I want to make a few remarks on H.R.
602, the Veterans Second Amendment Protection Act, and that is
a bill that I introduced to protect the constitutional rights
of our veterans.
Mr. Runyan. Without objection.
Mr. Miller. This piece of legislation would end an
arbitrary process, which veterans are required to go through at
the Department of Veterans Affairs where they actually strip
certain veterans and other beneficiaries of their Second
Amendment constitutional rights.
Under current practice, veterans who have a fiduciary
appointed to manage their affairs are deemed to be mentally
defective and as a result, these veterans are reported to the
FBI's national instant criminal background check or the NICS
system, a system which prevents individuals from purchasing
firearms in the United States and criminalizes the possession
of a firearm.
I label this process arbitrary because pursuant to VA
regulation 38 CFR Section 3.353, the definition of mental
incompetency is one who because of injury or disease lacks the
mental capacity to contract or to manage his or her own affairs
including disbursement of funds without limitation.
In plain English, this means that if VA determines that a
person cannot manage their finances and needs a fiduciary,
their Second Amendment rights are automatically taken away.
This really makes no sense.
As a reminder, a majority of VA's regulations concerning
fiduciary matters are from 1975, although in the course of this
Committee's oversight, VA has indicated that it will update
these regulations. To date, no new fiduciary regulations have
been promulgated.
In previous discussions with VA, I have emphasized that its
regulatory scheme does not take into account the importance
that our judicial system plays in determining when someone's
constitutional rights should be infringed upon. I would again
encourage VA to update its regulations accordingly.
And as a reminder, the department itself was opposed to
judicial review of any kind on VA determinations all the way
through 1988. Judicial proceedings are comprehensive and all
interested parties have a right to be represented and heard
during them.
This is a far cry from the process during which VA rating
specialists determine that a veteran is mentally defective.
Accordingly, the Veterans Second Amendment Protection Act would
require that a judicial authority rather than an internal VA
decision-maker make the determination that a veteran poses a
danger to themselves or others prior to their name being sent
to the NICS.
Taking away a constitutional right is a serious action and
one that should not be taken lightly, particularly when it
concerns our Nation's veterans. Affording veterans their due
process rights under the law in any and all context is of
utmost important to me and I think most Members of the
Committee.
As will be further discussed during this hearing, there are
other issues with VA's fiduciary program that also affect
veterans' due process rights. And I will defer to the witnesses
that have been called here today to testify as to the specifics
of the fiduciary program as a whole for further comment.
Mr. Chairman, thank you to you and the Members of the
Subcommittee, for your time. And I want to encourage all of you
to support H.R. 602, the Veterans Second Amendment Protection
Act. And with that, I yield back.
[The prepared statement of Chairman Miller appears in the
Appendix]
Mr. Runyan. I thank the Chairman.
And with that, the chair would recognize the Ranking Member
of the Full Committee, Mr. Michaud, for a statement.
OPENING STATEMENT OF HON. MICHAEL MICHAUD
Mr. Michaud. Thank you very much, Mr. Chairman and Madam
Ranking Member, for having this hearing.
It is good to see the Chairman of the Full Committee. We
are on the book ends now. Glad to see him here as well.
And I would like to thank Congressman Pingree for being
here today to testify. My colleague from Maine introduced the
Ruth Moore Act to help victims of military sexual assault get
help that they need. And I am proud to be a co-sponsor of that
legislation.
I would also like to welcome Ruth Moore from Milbridge,
Maine. She is my constituent and the bill's namesake.
Ruth, I know it takes a lot to stand up and fight for the
rights. I want to thank you for your continued advocacy of this
very, very critical issue.
Sadly, sexual assaults in the military continues to be a
problem for too many who are serving our great Nation. Our
Nation must do more to address it and I look forward to hearing
Congresswoman Pingree's testimony today.
The Ruth Moore Act is about making sure that victims of
military sexual trauma get a fair shake and are not further
victimized by the bureaucracy, something that I am confident
that this Committee can deal with as we move forward to look at
this legislation. I look forward to the congresswoman's
testimony.
And I want to thank you very much, Mr. Chairman, for having
this very important hearing on several bills that we are
hearing today. And with that, I yield back the balance of my
time.
Mr. Runyan. I thank the Ranking Member for that.
And at this time, I would like to welcome my colleagues in
the House that are currently sitting at the witness table.
First, we will hear from the gentle lady from Maine, Ms.
Pingree, who is sponsoring H.R. 671. Then we will hear from the
gentleman from Ohio, Mr. Johnson, who is sponsoring H.R. 894.
And finally we will hear from the gentleman from Minnesota, Mr.
Walz, who is sponsoring H.R. 679.
I would like to welcome you all to this legislative
hearing. Your complete and written statements will be entered
into the hearing record.
And with that, Congresswoman Pingree, we will start with
you and you are now recognized for five minutes.
STATEMENT OF HON. CHELLIE PINGREE
Ms. Pingree. Thank you very much, Chairman Runyan. Thank
you to you and Ranking Member Titus.
I also want to thank Ranking Member Michaud for his very
kind introduction. We are very proud of the work that Mike does
back at home in Maine for all of our veterans and the work that
he does on this Committee. And I am honored to serve with him.
There are only two of us in Maine, so we have to cover a lot of
territory.
And thank you to Chairman Miller for being here today and
thank you for your great advocacy for veterans and your
leadership on the Veterans' Affairs Committee. I appreciate
your presence here and the work that you do.
I am very grateful that you are considering the Ruth Moore
Act in this afternoon's legislative hearing and I appreciate
the opportunity just to talk a little bit more about this bill
and why I desperately think it needs to become the law.
The bill has been endorsed by every major VSO including The
American Legion and the Veterans of Foreign Wars. We appreciate
their support and all the work that they do for veterans and
their families.
The Ruth Moore Act would relax the evidentiary standards
for survivors of military sexual trauma who file claims for
mental health conditions with the VA. Currently, MST survivors
need further proof of the assault which for many of them is
impossible.
Under the bill, in order to receive service-connected
benefits, a veteran would need a statement that the assault
took place along with a diagnosis from a VA health care
professional that links the assault to a mental health
condition.
This bill also requires the VA to report MST-related claims
information back to Congress. As Members of Congress, we have a
responsibility to ensure that the VA is providing timely and
accurate decisions to veterans, but we cannot do that without
sufficient data.
The bill is closely modeled after the 2010 change to VA
regulations for combat veterans who have filed PTSD claims
based on their military service. As I am sure most of you know,
the VA relaxed the evidentiary standards for veterans who
suffer from combat-related PTSD.
The VA finally acknowledged that far too many veterans who
have deployed into harm's way suffered from service-related
PTSD but could not through no fault of their own locate
military documentation that verified the traumatic events that
triggered their PTSD.
The VA now accepts their statement of traumatic events
along with a PTSD diagnosis and a medical link as enough to
receive disability benefits.
So what we have is an inequity in the system and those who
were raped or harassed in the military have a much harder path
to receiving benefits even though these injuries are service-
connected and the same standards should apply.
Ruth Moore, who Ranking Member Michaud introduced earlier,
who is here with her husband, Butch, and her daughter,
Samantha, is who this bill is named for. She is a U.S. Navy
veteran from Maine who was raped twice during her military
service. When she reported it, she was discharged and labeled
as having a personality disorder. She spent 23 years fighting
the VA to get benefits and she battled homelessness and PTSD
during that time.
I am very proud of Ruth for being here with us today, with
her willingness to come forward and to help so many others in
her own testimony both before this Committee and with the many
people she has been willing to talk to about her story.
Ruth, like many MST survivors, did not have the military
records that corroborated the rape, so her claim was repeatedly
denied. And, unfortunately, she is not alone. DoD's own numbers
indicated that over 85 percent of assaults go unreported.
So I ask you how are these veterans supposed to qualify for
the help they need from the VA? The VA will tell you that the
system accepts secondary markers as evidence to verify that
these assaults occurred. And as comforting as that sounds, we
have seen time and time again that the VA is inconsistent in
applying those standards.
What one regional office will accept as proof, another will
deny. Almost every day I hear from another survivor who has had
their claim denied after these secondary markers were ignored.
So I think it is a problem of fundamental fairness. If a
medical diagnosis linked to a claimed event is enough for one
group of veterans, it ought to be enough for another,
especially when we know how hard it is for documentation to
exist to support both instances of sexual assault or combat-
related events.
Critics of this bill might say that it is too easy and
veterans can just say anything to get those benefits. First of
all, that is just simply not true. There still needs to be a
medical diagnosis and a medical link which are not at all easy
to come by.
And, secondly, we heard the same argument when the VA
proposed similar changes for combat veterans. And I have not
heard the VA say there were big problems with veterans lying
about their service.
The bottom line is that it has gone on for too long. The
burden of proof has been on the veteran and it needs to change
now.
Mr. Chair, over the last two years, I have heard from
dozens and dozens of veterans from all over the country, men
and women who volunteered to serve, many of them planning on a
career in the military, only to have their career cut short by
the horror of a violent sexual assault.
Whether the attack happened on a navy base in Europe or a
national guard training facility here in the U.S., whether they
were soldiers, sailors, airmen, marines, the story too often
has the same ending. The victims were blamed. The crime was
covered up and the survivors themselves become the subject of
further harassment and recrimination.
All too often what followed was years of mental health
issues, lost jobs, substance abuse, and homelessness, but the
stories do not have to end this way. With the Ruth Moore Act,
we can change the VA's policies so that veterans who survive a
sexual assault can at least get the benefits they deserve.
Thank you very much for your time and thank you for
considering this bill.
[The prepared statement of Hon. Chellie Pingree appears in
the Appendix]
Mr. Runyan. Thank you, Congresswoman Pingree.
With that, I would recognize Congressman Johnson. You are
now recognized for five minutes for your oral statement.
STATEMENT OF HON. BILL JOHNSON
Mr. Johnson. Chairman Runyan, Ranking Member Titus, and
Members of the Subcommittee, I appreciate the opportunity to
testify before you on H.R. 894. This is important legislation I
introduced to reform the Department of Veterans Affairs'
fiduciary program.
As most of you know, last Congress I served as the
Oversight & Investigations Subcommittee Chairman on the House
Veterans' Affairs Committee. An investigation into the VA's
fiduciary program by my Subcommittee revealed shocking behavior
on the part of the VA's hired fiduciaries and gross misfeasance
on the part of the VA.
Some fiduciaries entrusted to manage the finances of our
Nation's heroes who are unable to do so themselves were caught
abusing the system by withholding funds, embezzling veterans'
money, and other egregious actions.
Furthermore, an Oversight & Investigations Subcommittee
hearing held on February 9th of last year uncovered the fact
that many of the VA's fiduciary program policies do not
correspond with actual practices.
For instance, the VA claims to have a policy stating
preference for family members and friends to serve as a
veteran's fiduciary. However, the investigation into the
fiduciary program revealed instances where this is not the
case.
In one instance, the VA arbitrarily removed a veteran's
wife who served as her husband's fiduciary for ten years and
replaced her with a paid fiduciary.
There were also many honest and hard-working fiduciaries
that experienced difficulty performing their duties due to the
bureaucratic nature of the VA's fiduciary program.
We owe it to America's heroes to provide them with a
fiduciary program that is more responsive to the needs of the
veterans it is supposed to serve.
For these reasons, I am proud to sponsor H.R. 894, the
Veterans Fiduciary Reform Act. This important legislation
initially introduced last Congress is based on problems
uncovered before, during, and after the hearing as well as
valuable input from veteran service organizations and
individuals who have experienced difficulties with the program
firsthand.
It is designed to transform the VA's fiduciary program to
better serve the needs of our most vulnerable veterans and
their hard-working fiduciaries. And most importantly, it will
protect veterans in the program from falling victim to
deceitful and criminal fiduciaries.
Specifically, the Veterans Fiduciary Reform Act would
require a credit and criminal background check each time a
fiduciary is appointed and allow veterans to petition to have
their fiduciary removed if problems arise.
It would also decrease the potential maximum fee a
fiduciary can receive to the lesser of three percent or $35.00
per month similar to Social Security's fiduciary program. This
will help discourage those who enroll as VA fiduciaries with
only a profit motive in mind.
Importantly, H.R. 894 would enable veterans to appeal their
incompetent status at any time, a right currently not granted
to veterans.
Additionally, it would allow veterans to name a preferred
fiduciary such as a family member.
Last year, my Subcommittee heard numerous complaints about
the requirement for fiduciaries to obtain a bond. While proper
in some settings, it is inappropriate when it causes
unnecessary hardship such as a mother caring for her veteran
son.
This legislation would require the VA to consider whether a
bond is necessary and if it will adversely affect the fiduciary
and the veterans he or she serves.
H.R. 894 would also direct the VA's under secretaries for
Health and Benefits to coordinate their efforts to ensure that
fiduciaries caring for their loved ones are not overly burdened
by redundant requirements.
Lastly, this bill aims to simplify annual reporting
requirements. Currently, the VA does not have to review a
fiduciary's annual accounting and when it does, it places an
onerous burden on those fiduciaries who are serving out of
love, not of monetary gain.
This bill will implement a straightforward annual
accounting requirement and gives the VA the opportunity to
audit fiduciaries whose accounting is suspect.
These significant changes would strengthen the VA standards
for administering the fiduciary program and increase protection
for vulnerable veterans.
Requiring background checks and lowering the fee a
fiduciary can charge would also increase scrutiny of potential
fiduciaries and help root out potential predators.
This legislation also adds a layer of protection for
veterans with fiduciaries by incorporating the ability for
veterans to petition to have their fiduciary removed and
replaced.
I am proud that last Congress, the Veterans Fiduciary Act
of 2012 passed the House Veterans' Affairs Committee unopposed
and passed the Full House by voice vote on September 19th,
2012. Unfortunately, this important legislation was not
considered by the Senate and, therefore, the VA's fiduciary
program is still in urgent need of reform.
Chairman Runyan, Ranking Member Titus, thank you again for
the opportunity to speak on this important legislation, H.R.
894. I am hopeful that this legislation will again be favorably
considered by the Veterans' Affairs Committee and this time
become law. Our veterans are willing to sacrifice everything to
serve our Nation and they deserve to receive the care, the
benefits, and the respect they have earned.
With that, I yield back, sir.
[The prepared statement of Hon. Bill Johnson appears in the
Appendix]
Mr. Runyan. Thank you, Congressman Johnson.
With that, I recognize Congressman Walz for his testimony.
STATEMENT OF HON. TIMOTHY WALZ
Mr. Walz. Thank you, Chairman Runyan and Ranking Member
Titus, for your commitment to our veterans and to our Full
Committee Chairman and Ranking Member.
I may be somewhat biased, but I am incredibly proud of this
Committee and the work you have done. And I would extend that
to an incredible staff on the majority and minority side of
making sure they are working to our veterans.
So thank you for bringing up H.R. 679 to give us the
opportunity to present it, Honor America's Guard and Reserve
Retiree Act.
This is one of those rare, very simple bills. First and
foremost, it costs nothing, but it extends respect and honor to
our veterans. It is something that they will not ask for, but
they have certainly earned.
This is a case of a guardsman or woman can serve 20 years
in uniform, by the way, meeting every standard of their active
duty counterparts from enlistment standards to physical fitness
to weapons proficiency to their professional training. In some
cases, those can be months long and they are in many cases
after 20 years, they are the most senior people responsible for
the training of our warriors. But if they were never called to
active duty, Title 10 for other than training for more than 179
days, we reward them with all of the benefits they have earned,
financial benefits.
This bill is not about financial benefits. It is about what
I consider to be a simple oversight that they do not have the
legal ability to call themselves veterans of America's Armed
Forces. And it corrects that. It is the right thing to do.
It has been vetted in the last two Congresses. The staff
and the legal counsel have done a wonderful job of putting up a
firewall to make sure this is not about additional benefits. It
is about duty, honor, country, and respect.
It has passed the House of Representatives twice
unanimously and has stalled in the Senate. And I think since
that time, we have taken great care to educate our colleagues
in the other chamber about what this is about.
I ask that we be given the opportunity to bring this up one
more time to do what is right to allow those folks--most
Americans do not know this is the case, but I think sitting
next to Colonel Johnson and others in this room, veterans are
very, very particular about getting right of where they served,
what devices they wear, and how they are addressed. And getting
this wrong for them, having someone who served in uniform for
20 years feel bad about referring to themselves as a veteran is
simply wrong, and we can fix that with this bill.
So I thank you all.
Thank you, Chairman Runyan, for being an early supporter of
this bill and give the opportunity.
I would also like to add one more word of support for the
Chairman's H.R. 733, the Veterans Benefits Improvement Act.
This is smart stuff. It came out of, and I watched this
firsthand last May traveling with the Chairman in New Jersey
and Minnesota, listening to veterans and the case was let's use
this as a force multiplier. Let's use folks who can access
this, help get knowledge of the claim, help the VA, be a
partner with them to move this further. And this piece of
legislation just puts another eye, another help, another way of
moving the process forward.
And it originated out of the concerns of veterans and
watching the Chairman hear that on both sides of the country
there. And it was the same exact concerns. So I fully support
this. I think it is a smart piece of legislation.
And with that, I yield back, Mr. Chairman.
[The prepared statement of Hon. Timothy Walz appears in the
Appendix]
Mr. Runyan. I thank the gentleman for that.
And in the interest of time, we will forego a round of
questions unless anyone has any questions for this panel. No?
On behalf of the Subcommittee, I thank you all for your
testimony and you are now excused. We will ask the second panel
to come to the witness table.
With this panel, we will first hear from Jeff Hall, the
Assistant National Legislative Director for Disabled American
Veterans. Then we will hear from Mr. Raymond Kelley, Director
of National Legislative Service for Veterans of Foreign Wars.
Next we will hear from Colonel Robert Norton, Deputy Director
of Government Relations for the Military Officers Association,
on behalf of H.R. 679. And then we will hear from Ms. Heather
Ansley, Vice President of Veterans Policy for VetsFirst. And,
finally, we will hear from Mr. Michael Murphy, Executive
Director of the National Association of County Veterans Service
Officers, who will testify on H.R. 733.
Thank you all for being here today.
And, Mr. Hall, you are now recognized for five minutes for
your testimony.
STATEMENTS OF JEFFREY HALL, ASSISTANT NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS; RAYMOND KELLEY, DIRECTOR
OF NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS;
ROBERT F. NORTON, DEPUTY DIRECTOR OF GOVERNMENT RELATIONS,
MILITARY OFFICERS ASSOCIATION OF AMERICA; HEATHER ANSLEY, VICE
PRESIDENT OF VETERANS POLICY, VETSFIRST, A PROGRAM OF UNITED
SPINAL ASSOCIATION; MICHAEL D. MURPHY, EXECUTIVE DIRECTOR,
NATIONAL ASSOCIATION OF COUNTY VETERANS SERVICE OFFICERS
STATEMENT OF JEFFREY HALL
Mr. Hall. Thank you.
Chairman Runyan, Ranking Member Titus, and Members of the
Subcommittee, DAV is pleased to be here today to offer our
views regarding pending legislation before this Subcommittee.
In the interest of time, my remarks today will be limited
to only a few of the bills.
As you know, many disabled veterans, their survivors and
dependents rely solely on their VA compensation or DIC as their
only means of income. These men and women should not have to
struggle simply to make ends meet because their rightfully
earned benefits are not able to keep pace with inflation, nor
should these deserving individuals have to sit in uncertainty
from year to year.
H.R. 569 would provide a COLA effective December 1st, 2013
while H.R. 570 would provide annual COLAs to be automatic. DAV
strongly supports enactment of both of these bills.
However, DAV remains adamantly opposed to the section in
both of these bills requiring the rounding down of COLA
increases to the next lower whole dollar amount. This unfair
practice began more than 20 years ago and was only to be a
temporary measure.
Nonetheless, the practice has continued and has cost
veterans and their families millions and millions of dollars of
compensation earned through their selfless sacrifice and
service to this great Nation.
Likewise, Mr. Chairman, DAV is steadfastly opposed to the
so-called chained CPI which will not only have an adverse
effect on disabled veterans, it will be a double impact on
disabled veterans who are also seniors. And reducing the
deficit on the backs of our disabled veterans and seniors who
have already paid the prices is unacceptable.
Regarding H.R. 671, the Ruth Moore Act of 2013 would change
the standard of proof required and allow service-connection for
veterans suffering from certain mental health conditions
including PTSD resulting from military sexual trauma that
occurred in service even in the absence of any official record
of the claimed trauma.
Enactment of this legislation would allow service-
connection for certain mental health conditions which a
veteran's claim was incurred or aggravated by military sexual
trauma in service.
Similar to the evidentiary standard for PTSD, the veteran
must have a diagnosis of the covered mental health condition
together with satisfactory lay or other evidence of such trauma
and an opinion by a mental health professional that the
diagnosed mental health condition is related to the claimed
military sexual trauma if consistent with the circumstances,
conditions, or hardships of such service.
As such, Mr. Chairman, DAV strongly supports the enactment
of H.R. 671 which would provide a more equitable standard of
proof for veterans who suffer from serious mental or physical
traumas in environments that make it difficult to establish
exact causal connections.
H.R. 733, the Access to Veterans Benefits Improvement Act,
would provide certain employees and Members of Congress and
certain employees of state or local governmental agencies with
the access to case tracking information in the VA.
DAV supports the intent of the bill as it could be
beneficial to all parties in the process. However, the bill's
current language is not explicit enough to ensure the privacy
of a veteran or a claimant is safeguarded.
We recommend that the covered employee be required to
obtain written consent from the veteran to access his or her
records. Additionally, the veteran should be notified when his
or her record is being accessed by the covered employee and the
bill should plainly set forth any penalties for such access
violations.
While DAV would not oppose passage of the legislation, we
would urge the Subcommittee to consider these suggested
language changes.
And, finally, H.R. 1405 would require the inclusion of an
appeals form in any notice of decision from the VA. DAV
supports the intent of this legislation, but we recommend
changes to the language to avoid any confusion as to the
purpose of the bill or what is intended by the phrases appeals
form or a form that may be used to file an appeal.
If the intent is to include a standard VBA form to be used
by a claimant to submit a notice of disagreement, then it
should clearly state such. Otherwise, the intent of the form
may become confused with the standard VA Form 9, appeal to the
Board of Veterans' Appeals, which is currently used by the
board and included in a statement of the case after a notice of
disagreement has been submitted.
It is our understanding that a standardized NOD form has
been developed by VBA and is currently at OMB waiting approval.
While we do not oppose the creation and use of any standard
form directed at simplifying the process, our first concern is
always with the claimant.
If VBA is going to use a standard NOD form, it must also
allow for those instances wherein a claimant will submit their
NOD in another form such as a letter. VBA should not be allowed
to simply stop accepting NODs if they are not submitted in the
prescribed manner.
Mr. Chairman, this concludes my testimony. I will be happy
to answer any questions.
[The prepared statement of Jeffrey C. Hall appears in the
Appendix]
Mr. Runyan. Thank you, Mr. Hall.
Mr. Kelley.
STATEMENT OF RAYMOND KELLEY
Mr. Kelley. Mr. Chairman, Ranking Member, Members of the
Committee, on behalf of the two million members of the Veterans
of Foreign Wars and our auxiliary, thank you for the
opportunity to testify today on these pending bills.
The VFW supports H.R. 569. The Cost-of-Living Adjustment
Act is important to veterans and their survivors' compensation
to keep pace with inflation. However, to do that fairly and
effectively, the currently used index, CPIW, must be used in
relation to this bill and any future COLA adjustments.
Converting to the chained CPI model will come at the expense of
the needs of our veterans and their survivors and must be
prevented.
The VFW also continues to oppose the round-down of COLA.
This is nothing more than a money-saving gimmick that comes at
the expense of our veterans and their survivors.
The VFW supports the intent of H.R. 570. Placing an
automatic trigger to COLA adjustments for VA disability pension
and survivor benefits will prevent confusion among veterans and
survivors who know that VA COLA is somehow tied to Social
Security, but do not understand the complete process.
Using Social Security as that automatic trigger will
streamline the process and remove the confusion the current
process holds.
The only concern the VFW has with this legislation is that
there has been strong talk to change Social Security COLA to
the chained CPI model. The VFW believes this index undercuts
the purchasing power that CPIW provides for those who receive
VA compensation. We recommend this bill be amended to maintain
CPIW as the index used to calculate VA COLA.
The VFW supports H.R. 602. Servicemembers that have sought
or may seek treatment for mental health conditions including
TBI must know that seeking treatment and the possible loss of
Second Amendment rights do not go hand in hand.
This bill provides an innocent until proven guilty clause
by ensuring a judicial authority concludes that the veteran who
sought treatment is a danger to themselves or others before the
Second Amendment right is revoked.
The VFW supports H.R. 671, the Ruth Moore Act. Relaxing the
evidentiary burden on veterans who have experienced or suffered
from military sexual trauma to the same level as combat PTSD
only makes sense. We must trust our physicians in determining
the root cause of this trauma and then make sure that those
suffering from MST find the care and treatment they need.
The VFW supports H.R. 679, the Honor America Guard and
Reserve Retirement Act. Twenty years of service to our country
regardless of when or where one served should entitle that
guardsman or reservist to the moniker of veteran. No added
benefits will be provided, just the recognition that two plus
decades of service should provide.
The VFW supports H.R. 733. The bill would grant certain
Congressional staff and members of local governmental agency
employees access to VA case tracking information. In doing so,
this bill will allow Congress to better represent and respond
to inquiries from their veteran constituents.
The VFW contends, however, that the state and county
service officers should only have access to veterans for whom
they hold a power of attorney or for veterans who are not
represented by a service officer.
This will ensure that service officers who hold the POA
will be maintained as the primary point of contact for the
veterans they represent.
The VFW supports the intent of H.R. 894, the Improved
Fiduciaries Veterans Act. Veterans who need a fiduciary are the
most vulnerable of us and every effort must be made to protect
them.
Congressman Johnson laid out all the reasons why this is
important. However, in trying to remodel this comprehensively
at one time, the VFW would like to point out a couple things
that we feel might be an issue.
The VFW is concerned that the rewrite to paragraph 5502, a
veterans' due process may be violated as the bill stands now.
The reason we think this is currently the appointment of a
fiduciary is provided for in regulation and not in code. By
placing the authority of the appointment on the fiduciary in
code, the appointment and due process provisions and regulation
will be superseded without the addition of that protection in
the statute.
The VFW would be happy to work with the Committee to ensure
the intent of this bill is realized while due process is
retained.
The VFW also supports the intent of H.R. 1405. However, we
recommend that the bill be amended to describe the proposed
form as a notice of disagreement and not as an appeals form.
This concludes my testimony and I look forward to any
questions the Committee may have.
[The prepared statement of Raymond Kelley appears in the
Appendix]
Mr. Runyan. Thank you, Mr. Kelley.
And with that, Colonel Norton.
STATEMENT OF ROBERT F. NORTON
Colonel Norton. Thank you, Mr. Chairman, Ranking Member
Titus, Members of the Subcommittee.
On behalf of the over 380,000 members of the Military
Officers Association of America, I am honored to appear before
you today.
I will limit my remarks to H.R. 679, the Honor America's
Guard and Reserve Retirees Act of 2013. The key word in the
bill, honor, is the very purpose of this legislation.
On Veterans Day, Memorial Day, and other days celebrating
our national heritage and honoring all those who served and
sacrificed on behalf of our country, there are tens of
thousands of career national guard and reserve members who
cannot stand to be recognized during such ceremonies as
veterans of our Armed Forces.
That is because they are not veterans under the law,
strange as that may sound. They are not veterans.
These are servicemen and women who have completed 20 to 35
years of service in the national guard or reserves. They are
entitled to a military pension at age 60, government health
care, and access to U.S. bases and posts all over the world.
They have a military retiree ID card. They are also entitled to
certain earned veterans' benefits.
Those veterans' benefits include the selected reserve
Montgomery GI Bill, VA backed mortgage loans, servicemembers'
group life insurance during service, and veterans' group life
insurance later, and they are entitled to burial in national
cemeteries administered by the VA and state veteran cemeteries
established under Federal dollars.
During their careers, many of these career service guard
and reserve servicemembers performed real-world military
missions, but because their duties were performed under non-
Federal orders, their contributions to the national security at
home and overseas do not measure up for award of status as
veterans of our Armed Forces. Only Federal active duty orders
count for becoming a veteran under the law.
During the decades of the Cold War and continuing in
practice today, there are some 29 different types of orders
that the Pentagon uses to account for reservists' military
duty. That dizzying array of orders reflects the different pay
accounts and the types of missions that reservists perform.
The truth is that the services prefer to access guard and
reserve manpower for lots of different kinds of work but not
call them to active duty unless a formal national emergency is
invoked.
The point is that in many cases, the work performed under
those 29 types of orders is, in fact, operational duty or in
support of operations. However, unless an order is issued under
Title 10 active duty authority, the mission performed does not
count for veteran status.
Under the law, the VA only accepts a DD-214 as proof of
veteran status except in the unusual case where a reservist is
injured or killed while performing in active duty or active
duty for training.
The Honor America's Guard and Reserve Retirees Act simply
authorizes career reservists who served for decades and
performed their duty honorably but not under a Title 10 duty
order that they be honored as veterans of our Armed Forces.
The bill is cost neutral and the language specifically
prohibits the award of any new or unearned veterans' benefits.
The Military Coalition has again endorsed the legislation and
its letter of support is in my statement for the record.
MOAA is very grateful to Congressman Walz and to you, Mr.
Chairman, for your leadership on this issue. The Subcommittee,
the Full House Committee of Veterans' Affairs, and the Full
House have passed similar legislation in the last two sessions
of Congress. We look forward to the speedy passage of H.R. 679.
I will close by quoting a letter of a retired New York Army
National Guard master sergeant who expressed his thoughts on
this issue to military update syndicated columnist Tom
Philpott.
And I quote, ``I served 35 years as a guardsman and I am
told I am not a veteran. I did two weeks at ground zero and
many tours in Germany doing logistics for the War in Iraq, yet
I am still not a veteran.''
On his behalf and on behalf of tens of thousands of other
career guard and reserve servicemembers, the Military Officers
Association of America strongly urges passage again of H.R.
679.
Thank you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Robert F. Norton appears in the
Appendix]
Mr. Runyan. Thank you, Colonel Norton.
With that, Ms. Ansley.
STATEMENT OF HEATHER ANSLEY
Ms. Ansley. Thank you.
Chairman Runyan, Ranking Member Titus, and distinguished
Members of the Subcommittee, thank you for inviting VetsFirst
to share our views regarding the eight bills that are the
subject of this afternoon's hearing.
First, we support the Veterans' Compensation Cost-of-Living
Adjustment Act and the American Heroes COLA Act. Disabled
veterans and their survivors depend on VA benefits to provide
for themselves and their families.
Cost-of-living adjustments are an important aspect of
ensuring that these benefits are able to meet a beneficiary's
basic needs.
We urge the passage of both pieces of these legislation and
would also associate ourselves with the comments of our
colleagues who have spoken out against using the chained CPI to
calculate the cost-of-living for those benefits.
Second, we support the Veterans Second Amendment Protection
Act. We believe that this legislation will ensure that a
veteran's Second Amendment rights are not unduly limited to
VA's determination that the veteran requires assistance
managing his or her benefits.
It will also help to ensure that fears about loss of Second
Amendment rights are not barriers to treatment for veterans who
may have mental health concerns. This legislation would ensure
needed judicial protections.
Third, we support the Ruth Moore Act. This legislation
would ease the burden on military sexual trauma or MST
survivors in receiving benefits for an MST-related mental
health condition and we also urge swift passage of this
critical legislation.
Fourth, we associate ourselves with the comments of my
colleague, Colonel Norton, in supporting the Honor America's
Guard-Reserve Retirees Act and hope that that legislation will
again be passed by this body and enacted into law.
Fifth, we have concerns about the Access to Veterans
Benefits Improvement Act. Although we support the goal of
ensuring that veterans receive timely information regarding the
status of their claims, we are concerned that providing access
to sensitive claimant information without regard to the
designation of a power of attorney or written release of
information could jeopardize sensitive information.
With proper safeguards, the ability to access information
through VA's case tracking system could be of great benefit to
veterans and those who are assisting them. However, VA must
also take increased steps to provide accurate status
information to claimants.
Next we would like to offer qualified support for the
requirement for VA to include an appeals form in any notice of
decision issued for benefits or H.R. 1405.
Specifically, we support this legislation but propose that
the language be clarified to state that VA must provide a form
that may be used to file a notice of disagreement with the
decision to eliminate any potential confusion with VA's Form 9,
the appeal to the Board of Veterans' Appeals.
The remainder of my remarks will be regarding H.R. 894. We
support legislation to improve the supervision of fiduciaries
of VA's beneficiaries which is again H.R. 894. We believe that
VA's fiduciary program must be veteran centered and tailored to
address the needs of those beneficiaries who truly do need
assistance in managing their benefits.
This legislation takes important steps to ensuring that
VA's fiduciary program has greater transparency. For example,
if VA determines that a beneficiary is incompetent, then he or
she must be provided with a written statement detailing the
reasons for such a determination.
We suggest, however, that this provision would be
strengthened by addressing the criteria that VA should use in
making the determination.
We would also suggest that the legislation's use of the
term mentally incompetent does not accurately reflect the
limits of VA's role and instead suggest the use of the term
financially incompetent.
Also included in this legislation are statutory protections
to ensure that beneficiaries have the ability to request the
removal and replacement of a fiduciary. This legislation also
requires that any removal or new appointment of a fiduciary not
delay or interrupt the beneficiary's receipt of benefits.
While matters of fiduciary appointments are being resolved,
veterans must be able to continue to access their benefits.
Access to benefits including retroactive benefits has remained
a problem for too many veterans.
We also believe that efforts to strengthen the inquiry and
investigation into the qualifications for fiduciaries will
ensure a higher level of service for many of our beneficiaries.
It will be important, however, to ensure that VA exercises
appropriate discretion to ensure that family member fiduciaries
are not unduly burdened in complying with requirements.
Again, thank you for the opportunity to share our views on
each of these bills and we look forward to answering any
questions that you may have today. Thank you.
[The prepared statement of Heather Ansley appears in the
Appendix]
Mr. Runyan. Thank you, Ms. Ansley.
Mr. Murphy.
STATEMENT OF MICHAEL D. MURPHY
Mr. Murphy. Mr. Chairman, Members of the Committee, and
staff, it is truly my honor to be here for this hearing.
As Executive Director of the National Association of County
Veterans Service Officers, I am here today to comment on the
proposed bill, H.R. 733, to grant access to Veterans
Administration information to governmental veteran service
officers.
The National Association of County Veterans Service
Officers is an organization made up of local government
employees, local government employees that believe that we can
help the Department of Veterans Affairs reduce the number of
backlogged benefits claims that veterans are currently waiting
to have adjudicated by the Department of Veterans Affairs.
Our members work in local government offices as an arm of
government, if you will, in 37 states and currently it
comprises 2,400 full-time employees in 700 communities. We are
not like a veteran service organization. We are not dues driven
or membership driven.
Every veteran, their dependents, and their survivors who
live in our respective jurisdictions are our clients. We serve
them at no cost to the client. We are equipped to handle and
ready to assist veterans one on one with every Department of
Veterans Affairs' benefit, state and local benefits, and the
reason we are here today to assist them in tracking with their
claim.
There are over 22 million honorably discharged veterans of
the Armed Forces of the United States. During the course of
their life after the military, they may have occasion to file a
benefits claim for pension or compensation.
Most veterans are not a member of a veteran service
organization, but the chances are that they will live in one of
our communities served by a state, county, or veteran service
officer, or city veteran service officer. To the citizens of
our communities, we are the Veterans Administration.
The main issue we are here to talk about today is a lack of
cooperation by the Department of Veterans Affairs in
recognizing our members as an arm of government. We are treated
as if we are a veteran service organization rather than what we
are.
As governmental employees, we are not unlike the VA itself.
There is just a failure to recognize us in that light.
Let's say a veteran comes into my office to file a claim
for a knee injury that occurred while the veteran was on active
duty in the army. We have to first determine his eligibility on
wartime, peacetime service, and a number of factors established
by the Veterans Administration.
Let's say the veteran appears to be eligible. We then put
together a claim for compensation, gather up medical evidence,
service medical records, service records, buddy statements, and
other pertinent information and submit the claim to one of a
number of veteran service organizations.
We help the veteran select the veteran service organization
to represent the veteran through the power of attorney. This is
done so that the veteran may have representation at the VA
regional office for any subsequent appeals that may occur.
Our local government veteran service officers may hold the
power of attorney, but many are just too far away from the
regional office to adequately represent their client. My own
office is 305 miles away from the regional office.
Then after about three months, the veteran comes back into
my office and asks what the status of his claim is because he
has heard nothing. I have no way to gain this knowledge even
though the claim originated in my office. I have to refer him
to the VA's 1-800 number and hope that he can ask the right
questions or back to the veteran service organization that
holds his power of attorney and who he does not know and
probably won't call. Hopefully he won't go to another
jurisdiction and file another claim which adds to the backlog.
What we are asking in this bill under consideration is to
allow the government veteran service officers to have read-only
access to their clients' information. This will allow a local
government veteran service officer to properly track and
provide follow-up for their clients.
Sometimes a veteran will file an appeal on a deny claim and
then go to another veteran service officer in another
jurisdiction and file another claim for the same thing. This
ultimately adds to the backlog and unnecessarily bogs down the
system. If enacted, this bill would avoid duplication of claims
which in turn will assist in reducing the backlog of claims.
We know there is much consternation on the part of the
Veterans Administration regarding this issue. They have had
some problems in the past keeping secure that information that
veterans must give to the government to obtain the benefits
they earned. We understand this and are held to the same
standards as the VA already.
Remember that the majority of claims for compensation and
pension originate in local governmental veteran service
officers. We are required to keep secure that information that
we are supplied to the veteran service organizations and
ultimately to the Veterans Administration.
As a prerequisite to receive access to the VA databases,
the government employee must be accredited with the Veterans
Administration, must have attended and successfully completed
training responsibility, involvement and preparation of claims
or TRIP training, and must have had a background check
performed on them as a condition of employment.
In closing, the National Association of County Veterans
Service Officers recommends that this Committee move this bill
along in the legislative process. We believe that this bill has
the potential to make a significant difference in the lives of
returning veterans and will afford them a better opportunity to
obtain their earned benefits.
Thank you for your time and attention.
[The prepared statement of Michael D. Murphy appears in the
Appendix]
Mr. Runyan. Thank you, Mr. Murphy.
And thank all of you for your testimony.
I wanted to give a special thanks to Colonel Norton. I know
he went above and beyond, if you can believe that, having
emergency dental surgery yesterday and not only that, his
daughter was in Boston at the marathon.
So thank you for doing everything you could to get here to
help us move this important legislation.
Colonel Norton. Thank you, Mr. Chairman. I appreciate that.
Mr. Runyan. With that being said, Mr. Murphy, my first
question is for you. Why do you believe the VA is reluctant to
grant additional access to county veteran service officers?
Mr. Murphy. I think it is exactly for the reason I stated
in the testimony is that they have had problems with
safeguarding this information in the past.
I think they received an awful lot of egg on their face
over that lost computer or whatever the situation was. It hit
the press. It was a bad situation for everybody involved. And
we certainly understand that.
I mean, we are held to the same standards at the county
level where I work. The HIPAA regulations, everything is
exactly the same for us as for them. I think that is the main
reason they are reluctant in doing it.
Mr. Runyan. I know in a Federal office, a veteran has to
sign a release for us to even start to process their claim.
Is it much the same process where you are at?
Mr. Murphy. Exactly. And when they come in, we hold a file
on them, our own C file, if you will, and track that claim as
best we can so that we have information readily available to
the veteran.
Unfortunately, we just cannot find out the status of it
based on that. So----
Mr. Runyan. That is kind of in the same line of questioning
to Mr. Hall and Mr. Kelley. I understand the security concerns.
How do we avoid them? I mean, obviously Mr. Murphy has what
he feels the fear of the VA, and we know you have to have
clearance to do any of this. How do we make it happen and
satisfy the VA fear?
Mr. Hall. When this legislation was, another version of it
was in the last Congress, we had recommendations for improving
the language of that to allow DAV to be able to support this.
We are pleased to say that it has moved along further in
the present tense bill and we do not really have a problem in
supporting this particular legislation or I should say it this
way. We can support this legislation provided that those
additional security measures that we are asking for are
incorporated into that language, written permission from the
veteran to ensure that he or she has given that to that
particular service officer to be able to access it, and also--
--
Mr. Runyan. Do you see an issue with people going out there
without their request being made?
Mr. Hall. Could be. Again, one of our previous concerns on
how we phrased it when the last bill was presented was simply
they do not have to have a power of attorney and if they have
access--I have to have a power of attorney through DAV. I am an
accredited service officer to be able to do that. That gives me
the ability to access the system.
What we are talking about in a bill, if we are going to
allow anybody, any service officer, county service officer in
this case that we are referring to, to access a record, they
need to have written permission in the file from the veteran to
do so.
Would they? Could. There is nothing in the bill that would
stop them from doing it which leads to the second point which
is the bill should contain language or a provision in there
that clearly spells out any violations of such access.
And we are not saying that they are out there just
maliciously and every one of them is going to do it. Let's be
fair minded here. We want to ensure that it is minimized at the
very most because even as the gentleman to the end has said,
you know, there has been incidents in the past. We just want to
ensure that a veteran is protected and we feel that our three
recommendations that we have included will do that.
Mr. Runyan. I know everybody kind of commented on our
notice of the disagreement of form. Is it more just how we are
titling the form than anything else, Mr. Kelley?
Mr. Kelley. It is. We read it and I called Mr. Hall and we
both concluded the same thing. That there is a process in
place. And it felt like because of the title of it that the
process was being diverted. So just changing it to that notice
of disagreement at the beginning clarifies that, the process
stays the way it is. Nothing else would need to be changed
within Code or regulation. And veterans would be better served
with this bill passing.
Mr. Runyan. Ms. Ansley, did you want to say something?
Ms. Ansley. I would like to say I showed the bill to our
National Service Director and got the very same question of
which appeal form are we talking about? So it is people who
look at the claims everyday. Nothing against including a notice
of disagreement form. But he just was not certain exactly what
it was that was being referred to, and he has been doing
benefits for a number of years as an attorney. So we just want
to make it clear, that was our only thing. And I think that
would associate with my colleagues.
Mr. Hall. And again, Mr. Chairman, our understanding as of
this morning that there is a standardized notice of
disagreement form that has been created, developed, and is
currently, by VBA, and is currently over at OMB waiting final
approval. That clearly would say at the top of it notice of
disagreement. And I understand now upon first reading it, as my
colleagues have said, upon first reading, I didn't know exactly
what form we were talking about. Because the only appeal form I
know of is the VA Form 9, which is a Board form and not a VBA
form. And so just a simple clarification of what exactly it is
that, what form we are talking about to be included. And so if
it is the standardized notice of disagreement, then that is
fine.
Mr. Runyan. Thank you. With that, I recognize the Ranking
Member Ms. Titus.
Ms. Titus. Thank you very much, Mr. Chairman. And thank all
of you for coming. It is very valuable for us to have your wise
counsel on these bills as we move forward. I would like to
start by saying that I am the cosponsor, and a proud cosponsor,
of 569 and 570, the American Heroes COLA Act. And I completely
agree with those of you who made the statement that we do not
want to see this tied to any kind of chained CPI. And I, that
would not be my intent at all and I would fight against that.
Second, the bill that you all have been talking about is my
bill, H.R. 1405, about the request to include the form when you
send out a denial for benefits. And I very much appreciate your
support. And I look forward to working with you on clearing up
that language. We do not want to make it more trouble. We want
to make it easier. And in previous hearings we heard that once
you get the denial you have a certain amount of time to request
the form. Then they have a certain amount of time to send you
the form. And then you are down the road several months. If you
get the form when you get the denial, then you can go forward
much more quickly and expeditiously and that is what our intent
was. So thank you for helping us clear that up. And we want to
put that language in there that meets those needs.
Also, I just want to ask you kind of a general question.
When I was in the Nevada legislature I had a bill to create the
Office of Women's Services in Nevada. Some states have it. Some
do not. We did not, even though we had about 30,000 women
veterans in the state. And they are often referred to as
forgotten veterans because they are less likely to take
advantage of benefits, both health care and education, than our
men. I am very supportive of Chellie Pingree's bill before us
today about sexual assault. But I wonder if in some of your
assistance to veterans groups you have come across other things
that we could do to help with women veterans specifically that
you might want to suggest to us? And if not right now, maybe
you would think about that and get that information to me?
Mr. Kelley. Thank you, ma'am. If I could, as you suggested,
we would like to submit for the record on that. One of my
colleagues in our national office has served on the VA Advisory
Committee on Women Veterans and this is a big issue in terms of
the cultural development, if you will, the cultural evolution
of the VA. I think they are doing a lot more to be welcoming to
women veterans. But there is still a lot more to be done. I
mean, the face of the VA frankly still today looks like guys
like me. But we need to be much more receptive to our young
women warriors who are coming back from Iraq and Afghanistan,
and for women who have served during previous periods of
conflict. It is a very important issue. And we would look
forward to providing some information to the record on that.
Thank you.
Ms. Titus. Thank you.
Mr. Hall. I would just say, I do not personally have that
in my portfolio at my office. But we do have quite a forward
Stand Up for Women Veterans initiative that we have had for
several years. And what I would like to do is take that for the
record and go back to our Deputy Joy Ilem who handles that
particular matter and hopefully can provide you some, I am
sure, some suggestions.
Ms. Titus. Well I would appreciate that. And we will see if
there is anything we can do legislatively. And I would like to
work with the Chairman to follow up on some of that. So thank
you very much.
Colonel Norton. I would like to comment as well.
Ms. Titus. Sure, please do.
Colonel Norton. Three priorities is passing the Ruth Moore
Act. Second is outreach to women veterans, to let them know
they are veterans, to let them know there is access. I was at
the Baltimore VA yesterday for an appointment. As I walked in
and checked, I looked over at the sign to point you to the
right room, there is a women's clinic there. I went up to the
neurology floor where I needed to be seen, and more than half
of the patients in there were female veterans. So women are
starting to recognize they have those, that accessibility.
We also need to do training. So when a, when any veteran
walks up, that they are treated properly. And specifically
women veterans. So there is not the assumption that they are
the spouse or the daughter of some other veterans. The training
within VA to make sure that folks know that women veterans are
coming here, treat them as such.
Ms. Titus. Thank you. Thank you, Mr. Chairman.
Mr. Runyan. Thank you. Mrs. Negrete McLeod? Okay. Well on
behalf of the Subcommittee I want to thank each of you for your
testimony. And you are all now excused and I will ask the third
panel to come to the table.
On this panel we will hear from David McLenachen, Director
of Pension and Fiduciary Services with the U.S. Department of
Veterans Affairs. He is accompanied by Mary Ann Flynn, Deputy
Director for Policy and Procedures Compensation Service with
the U.S. Department of Veterans Affairs, and Mr. Richard
Hipolit. Mr. McLenachen, you are now recognized for your
testimony.
STATEMENT OF DAVID R. MCLENACHEN, DIRECTOR, PENSION AND
FIDUCIARY SERVICE, U.S. DEPARTMENT OF VETERANS AFFAIRS;
ACCOMPANIED BY MARY ANN FLYNN, DEPUTY DIRECTOR, POLICY AND
PROCEDURES COMPENSATION SERVICE, U.S. DEPARTMENT OF VETERANS
AFFAIRS; AND RICHARD HIPOLIT, ASSISTANT GENERAL COUNSEL, U.S.
DEPARTMENT OF VETERANS AFFAIRS
STATEMENT OF DAVID R. MCLENACHEN
Mr. McLenachen. Mr. Chairman and Members of the
Subcommittee, thank you for the opportunity to present VA's
views on several bills that are pending before the Committee.
Joining me today, as you just heard are Ms. Mary Flynn, an
Assistant Director in VA's Compensation Service, and Assistant
General Counsel Richard Hipolit.
The issues covered by these bills are important for
veterans and we look forward to working with the Subcommittee
on these bills. VA strongly supports the bills providing cost-
of-living adjustments to the rates of disability compensation
and dependency and indemnity compensation because they tangibly
express the Nation's gratitude for the service of disabled
veterans and their survivors.
We are also glad to offer our support for H.R. 1405, which
would require VA to provide with notice of each decision on a
claim for benefits a standard form that may be used to appeal
the decision. It would simplify the appeal process and improve
the timeliness and quality of processing notices of
disagreement.
H.R. 602 would in effect exclude VA determinations of
incompetency from the coverage of the Brady Handgun Violence
Protection Act restrictions. VA does not support this bill.
However, we believe VA provides adequate protection to veterans
who cannot manage their own financial affairs under current
authority, which allows a beneficiary to reopen the issue of
competence or petition VA for relief from the Brady Act
restrictions.
Mr. Chairman, the Secretary and the Under Secretary for
Benefits have a strong interest in ensuring that military
sexual trauma receives the attention it deserves in VA. VA is
committed to serving veterans by accurately adjudicating claims
based on sexual trauma in a thoughtful and sensitive manner,
while fully recognizing the unique evidentiary considerations
presented by each individual claim. To address those
considerations, VA developed policies and procedures intended
to assist claimants in developing evidence for these claims and
trained its personnel on proper adjudication. As we describe at
lengthy in our testimony, our focused training and recognition
of the unique evidentiary considerations for each claim has
yielded a significant increase in grant rates.
Regarding H.R. 671, we do have concerns detailed in our
testimony about the evidentiary standards in the bill which
could have unintended consequences for the claims process.
Because of the progress we have made with these claims under
revised procedures, policies, and training, VA prefers to
continue pursuing non-legislative actions to address the
special nature of claims based on military sexual trauma.
H.R. 679 would add a provision to current law to honor as
veterans based on retirement status alone certain persons who
performed service in the Reserve components of the armed
forces. VA recognizes that the National Guard and Reserves have
admirably served this country. However, VA does not support
this bill because it represents a departure from active service
as the foundation for veteran status.
H.R. 733 would require VA to provide a covered employee
with access to VA's case tracking system to provide a veteran
with information regarding the status of his or her claim
regardless of whether the covered employee is acting under a
power of attorney executed by the veteran. VA does not support
this bill because it would lessen veterans' personal privacy
protections while adding a significant administrative burden
for VA.
VA appreciates the Committee's interest in improving the
fiduciary program but finds several provisions of H.R. 894
problematic. Although VA does not support these measures, VA
shares the desire to improve the program and has already taken
significant steps to address concerns. For example, VA
consolidated its fiduciary activities to six regionally aligned
fiduciary hubs; rewrote all of its fiduciary regulations;
implemented a new field examiner training program; and designed
a new information technology system for the program.
Currently, 92 percent of the beneficiaries in the program
receive services from an unpaid, volunteer fiduciary, generally
a family member or a friend. However, VA appoints paid
fiduciary in some of its most difficult cases. This bill would
reduce fiduciary commissions to three percent of the
beneficiary's monthly benefits, or $35, whichever is less. It
would also require both paid and volunteer fiduciaries to pay
the expense of a surety bond out of the fiduciary's own funds
rather than out of the beneficiary's funds. These provisions
would create a strong disincentive for service vulnerable
veterans and their survivors and might significantly impair the
program.
Among other things, VA is also concerned about provisions
that would require it to obtain an annual accounting regarding
every beneficiary in the program that has a fiduciary,
currently more than 135,000 beneficiaries. VA opposes these
provisions because they would burden fiduciaries, again most of
whom are volunteer family members or friends, without
significantly improving VA's oversight.
Mr. Chairman, this concludes my statement. I am happy to
entertain any questions that the Subcommittee may have.
[The prepared statement of David R. McLenachen appears in
the Appendix]
Mr. Runyan. Thank you very much. And with that I really
want to start with the fiduciary program. We had this
conversation last year and you know, you said you intended to
take a look at the statutes governing the fiduciary program and
make recommendations that might improve it. Do you have any
specific examples of any changes you have made to improve it?
Mr. McLenachen. You mean separate from statutory matters?
Yes, sir. In addition to the four that I have mentioned
actually the system that we have designed is being piloted this
summer. One of the most significant flaws we have had is an
inadequate IT system for the fiduciary program. So we are
actually beyond the point of design. We are building it now.
And it will be piloted this summer.
Also we have issued guidance clarifying that the role of
the fiduciary is actually to determine what is in the best
interests of a beneficiary, not VA. This is one of the major
issues that we discussed at the last hearing we attended.
We have issued guidance regarding fees, specifically
whether a fiduciary can take fees out of a retroactive benefit
payment which as you know happens in virtually every case where
we award benefits. We have made it clear that that is not
appropriate. Rather, fees can only come out of monthly
benefits.
In addition we issued guidance to our fiduciary hubs
instructing them to advise fiduciaries that they must provide a
copy of an approved annual accounting directly to the
beneficiary that they serve again to change the culture in the
fiduciary program to ensure that fiduciaries are actually
acting as fiduciaries. The point being that VA is not the
fiduciary.
As far as statutory initiatives as part of the President's
budget submission, we have a legislative proposal to provide VA
an exemption to the Financial Right to Privacy Act so that we
can obtain better information directly from financial
institutions where fiduciary accounts are maintained. That is
just a sample of some of the things we have done, sir.
Mr. Runyan. I will go back to the beginning part of the
statement, when you are referring to guidance are you talking
about regulation or training letters?
Mr. McLenachen. Regulations sir, I think as I have
mentioned in a prior hearing, they have been completely
rewritten. The concurrence process in VA is as of today almost
complete. OMB has an advance copy of it. I am very hopeful that
those regulations will hit the street for public comment very
soon. Many of the other things that we have done have been in
guidance to our field personnel through what we call fast
letters, those are guidance documents that we issue.
Mr. Runyan. I have another question going back to the
COLAs. Can you explain the rationale behind the round down
requirement? And any benefits that are derived from its usage?
Mr. McLenachen. Well sir, my knowledge of it is pretty much
consistent with the prior panel. Those round down provisions
have been in place for approximately 20 years. It is my
understanding that the original intent was to gain savings.
However, they have been in place for a long time now. VA does
not view the round down provision in your bills as a reduction
in benefits. Rather, it is a continuation of benefits as they
have been for a very long time. And VA fully supports your
bills as well on that.
Mr. Runyan. Is there any other place that round down is
used? For benefits anywhere else?
Mr. McLenachen. It is not solely related to the DAC and
compensation benefits. But I think I had better defer to Mr.
Hipolit. He may have an idea of where it might be used in other
law.
Mr. Hipolit. No, I do not have an example elsewhere,
although that is something we certainly could check and provide
to the Committee as a service if you would like us to do that.
Mr. Runyan. I would appreciate that. And one last question.
You said, in going back to the fiduciary stuff, you are saying
they are being rewritten. Is there a timeline where they are
going to be available?
Mr. McLenachen. Well I can tell you this, sir, that under
an Executive Order regarding rulemaking, OMB has 90 days to
review a regulation once VA submits it to OMB for review. So I
view that as the outer boundary of the time. I know that all of
the concurrence process within VA is nearly complete, based on
the information that I have.
Mr. Runyan. Okay. With that I will recognize the Ranking
Member Ms. Titus.
Ms. Titus. Thank you, Mr. Chairman. And thank you all for
being here. I understand your comments about H.R. 671, and the
preference to do it through regulation, and not through
legislation. In a previous hearing, the VA indicated that you
would be willing to, or offering to, readjudicate all
previously denied claims that were regarding military sexual
trauma. I wondered if you could give us an update on this? Tell
us where it is, when it will be completed, how many cases have
been readjudicated.
Mr. McLenachen. Ma'am, I am going to let Ms. Flynn answer
that question. She is the expert in this area.
Ms. Titus. Thank you.
Ms. Flynn. Thank you. Yes, ma'am. Since the hearing last
July we have actually undertaken, we are going to do two
different reviews. One has been completed, and that was a
review of a statistically valid sample of MST claims that had
previously denied where an examination was provided. So we
sampled approximately 300 claims and our Nashville quality
assurance office conducted a specially focused review on those
cases. And that was at the request of Representative Pingree.
We found that the overall accuracy of that focused review was
that 86.19 percent were accurate. And that compares favorably
with the current national benefit entitlement accuracy level of
86.31 percent.
With regard to the larger review that you mentioned, we are
going to be sending out letters to veterans advising them of
the opportunity to request VA review their previously denied
MST claims. The steps that we have undertaken leading up to
that have been that we requested and received an opinion from
the Office of General Counsel regarding the authority to do a
review, the scope of that review, and how to resolve various
effective date issues. We have since prepared a letter to the
veterans. That is scheduled to go out probably at the end of
this week. And we expect that a certain percentage of them will
request that their claims be reviewed again. At which time we
will ensure that they get the proper full development and
focused review by our claims adjudicators who have been
specially trained in MST claims.
Ms. Titus. And can you tell me how you determine who gets a
letter?
Ms. Flynn. In our database we have done a data pull that
links, these will be people who have previously submitted a
claim for PTSD based on military sexual trauma. If they were
denied then they will be sent a letter. Now the caveat is that
our database only linked that MST identifier going back to
2009.
Ms. Titus. Only 2009?
Ms. Flynn. I'm sorry. It's either 2008 or 2009. But there
is definitely going to be a gap in years since the regulation
that relaxed the evidentiary standards was put into place 2002.
And so for those, to reach those veterans, we plan to have an
outreach process and a notification process advising them of
the opportunity to seek review of their claims.
Ms. Titus. And how will you do that? When you talk about
outreach, what does that mean?
Ms. Flynn. Well our Public Affairs Office is working up a
communications plan. It involves notifying the stakeholders,
getting the word out to the VSOs, as well as the call centers,
and the benefits assistance office, and enlisting the help of
whoever we can to get the word out. In our experience, usually
favorable reviews such as this, the word spreads quickly. So we
are optimistic that we will reach the targeted audience.
Ms. Titus. Thank you, Mr. Chairman.
Mr. Runyan. Mrs. Negrete McLeod? No questions? I do have
another question. Mr. McLenachen, talking about having the
standardized appeal form, in your opinion would such a form
have any noticeable impact on the current backlog?
Mr. McLenachen. Sir, I think it is our position that moving
forward that is exactly the type of thing that VA needs to do.
In other words, simplify the benefits programs that we
administer by having things like standardized forms. What that
leads to is ease in automating and developing rules based
systems for the benefits that we administer. So this is a very
good start. And we wholeheartedly support it for that very
reason.
Whether it would have a measurable impact on the backlog? I
cannot answer that question. On the other hand, it is a matter
that relates directly to appealed cases. So that is not
directly related to the backlog of claims that have not been
adjudicated finally. But to the extent that there is a backlog
of appeals, or there is delays in the appeals process because
we cannot identify a notice of disagreement, currently a notice
of disagreement can be written on anything and given to VA in
any format as long as it is written. That creates problems
because we are required by regulation to go out and clarify
whether that is an NOD and what the claimant's intent is. So to
the extent all of that removed from the system by having a
standardized form, it would be very helpful in the appeal
process.
Mr. Runyan. Thank you. With that, no further questions?
Well on behalf of the Subcommittee I want to thank all of you
for your testimony, and we look forward to working with you
often in the future on a wide range of challenges facing our
Nation's veterans. You are all excused. I ask unanimous consent
that all Members have five legislative days to revise and
extend their remarks and include extraneous material. Hearing
no objection, so ordered. I thank the Members for their
attendance today and this hearing is adjourned.
[Whereupon, at 4:03 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Jon Runyan, Chairman
Good morning. This legislative hearing on H.R. 569, H.R. 570, H.R.
602, H.R. 671, H.R. 679, H.R. 733, H.R. 894, and H.R. 1405 will now
come to order.
Today we have a large number of witnesses present due to the high
level of interest in some of the bills before us. Therefore, in the
interest of time, I am going to forgo a lengthy opening statement and
just briefly touch on three bills on today's agenda which I am proud to
have introduced.
H.R. 569, the Veterans Compensation Cost of Living Act, or COLA, of
2013, provides a cost of living adjustment increase to veterans'
disability compensation rates and other benefits.
H.R. 570 is the American Heroes COLA Act, which is related to the
aforementioned COLA act of 2013, except this bill seeks to make
permanent the annual increase to veterans' disability compensation
rates and other benefits by tying the increase to the cost of living
adjustments for social security benefits.
With the passage of the America Heroes COLA Act, veterans will
never again have to depend on Congressional action to receive an
increase to the cost of living adjustment they have more than earned
through their service. Instead, these increases will become automatic
from year to year just as Social Security benefits increases are
adjusted automatically every year.
As some of you may recall, last year our annual COLA bill was held
up in the Senate, with reports that it had been put on ``secret hold''
by a Senator. There was some question as to whether the bill would pass
and if veterans would receive their annual COLA in a timely manner. The
situation was unacceptable and unfair to our veterans. Thankfully, with
pressure from this Committee and the veterans' community, the bill was
ultimately passed and signed into law. However, last year's situation
highlights the need for this legislation.
The final bill I have sponsored is H.R. 733, the Access to Veterans
Benefits Improvement Act, which provides certain local government
employees, and certain employees of Congress access to case tracking
information through the Department of Veterans' Affairs.
There is no doubt that we have a responsibility to serve our
veterans by ensuring that every effort is made to simplify the claims
process. Key actors in this effort are county veteran service officers,
whose expertise in claim development benefits veterans in many
communities across America. Their assistance is especially critical to
many thousands of veterans who live in rural areas, hours away from a
VA regional office.
Many veterans are overwhelmed as they try to navigate their way
through the claims process, and they are further frustrated when they
ask for help from their county VSO, or their Member of Congress, and
that person cannot directly access even the most basic information
about the status of their claim.
This bill would allow these local government officials to check on
the status of a veterans claim, and ensure that VA has all of the
information needed to process claims in the most efficient manner
possible.
Again, in the interest of time, I would like to reiterate my
request that today's witnesses abide by the decorum and rules of this
hearing and to summarize your statement to five minutes or less during
oral testimony. We have a large number of individuals ready to testify
on legislation today, and I want to make sure everyone is heard in a
timely manner. I would also remind all present that, without any
objection, your written testimony will be made part of the hearing
record.
I appreciate everyone's attendance at this hearing and now call on
the Ranking Member for her opening statement.
Prepared Statement of Hon. Dina Titus
Thank you Mr. Chairman.
Today, we have a full schedule that includes eight bills before us
that address some of the unique needs of our Nation's veterans'
population. The bills pertain to a variety of issues ranging from
military sexual assault and recognizing Guard and Reserve members to
increasing compensation and improving the appeals process.
I support several of these provisions, and I am proud to have
worked with the Chairman to introduce the disability compensation COLA
bills, H.R. 569 and H.R. 570.
H.R. 602, the Veterans 2nd Amendment Protection Act, sponsored by
Full Committee Chairman Miller would require that a judicial authority
adjudicate a veteran or other beneficiary in need of fiduciary
assistance as mentally defective for the purposes of reporting to the
Department of Justice National Instant Background Check System, instead
of the current system which requires VA to report these individuals to
NICS.
The next bill on today's agenda, H.R. 671, Ruth Moore Act of 2013,
was introduced by Ms. Pingree of Maine, and I am pleased to see it
included here today. Many veterans who are victims of military sexual
trauma (MST) express frustration with attempting to file disability
claims for post-traumatic stress; particularly in trying to prove to
that the assault ever happened. In July 2010, the VA relaxed its
evidentiary standards for PTSD, which also includes MST. However, there
are still disparities in compensation and confusion within VBA on when
service-connection compensation for MST is warranted. H.R. 671 seeks to
ensure that more is done to eliminate these hurdles.
H.R. 679, the Honor America's Guard-Reserve Retirees Act, sponsored
by Mr. Walz of Minnesota, a Member of the Full Committee, would grant
honorary veteran status to retired members of the Guard and Reserve who
completed 20 years of service. I support this bill but understand the
reservations concerning moving the envelope on what type of service
accords veteran status, as outlined in VA testimony and in that of some
of the VSOs.
Your other bill, Mr. Chairman, H.R. 733, the Access to Veterans'
Benefits Improvement Act, would grant county veteran service officers,
other State and local employees as well as staff of Members of Congress
with greater access to veterans' claims information for tracking
purposes. I understand and appreciate the need for county VSO's to have
better access to claims for which they may have the Power of Attorney
for the veteran.
Next, H.R. 894, introduced by Mr. Johnson of Ohio, also a Member of
the Full Committee, seeks to reform VA's fiduciary program.
And finally, my bill, H.R. 1405, would target the appeals process.
This measure would require that a VA Appeals form is included with a
Notice of Decision letter, instead of waiting for a veteran to exercise
his or her appeal rights before sending the form to the veteran. I
believe this is a simple courtesy VA could extend to our Nation's
veterans.
I thank all of the Members for their thoughtful legislation. And, I
thank all of our esteemed witnesses for joining us today and look
forward to receiving their testimonies.
Thank you and I yield back.
Prepared Statement of Chairman Jeff Miller
Thank you Mr. Chairman.
With your permission, I would like to make a few remarks on H.R.
602, the Veterans' Second Amendment Protection Act, a bill that I
introduced to protect the constitutional rights of our Nation's
veterans.
This piece of legislation would end the arbitrary process through
which the Department of Veterans Affairs (VA) strips certain veterans
and other beneficiaries of their second amendment rights.
Under current practice, veterans who have a fiduciary appointed to
manage their affairs are deemed to be ``mentally defective.'' And as a
result, these veterans are reported to the FBI's national instant
criminal background check system (NICS), a system which prevents
individuals from purchasing firearms in the United States, and
criminalizes the possession of a firearm.
I label this process ``arbitrary'' because pursuant to VA
regulation thirty-eight CFR section three point three five three, the
definition of mental incompetency is: ``one who because of injury or
disease lacks the mental capacity to contract or to manage his or her
own affairs, including disbursement of funds without limitation.''
In plain English, this means that if VA determines that a person
cannot manage their finances and needs a fiduciary, their second
amendment rights are automatically taken away. This makes no sense. As
a reminder, a majority of VA's regulations concerning fiduciary matters
are from 1975. Although in the course of this Committee's oversight, VA
has indicated that it will update these regulations, to date, no new
fiduciary regulations have been promulgated.
In previous discussion with VA, I have emphasized that its
regulatory scheme does not take into account the importance that our
judicial system plays in determining when someone's constitutional
rights should be infringed upon.
I would again encourage VA to update its regulations accordingly.
As a reminder, the department itself was opposed to judicial review of
any kind on VA determinations all the way through 1988. Judicial
proceedings are comprehensive and all interested parties have a right
to be represented and heard during them.
This is a far cry from the process during which a VA rating
specialist determines that a veteran is mentally defective.
Accordingly, the Veterans' Second Amendment Protection Act would
require that a judicial authority - rather than an internal VA
decision-maker - make the determination that a veteran poses a danger
to themselves or others prior to their name being sent to the NICS.
Taking away a constitutional right is a serious action and one that
should not be taken lightly, particularly when it concerns our Nation's
veterans. Affording veterans their due process rights under the law in
any and all contexts is of utmost importance to me.
As will be further discussed during this hearing, there are other
issues with VA's fiduciary program that also affect veterans' due
process rights. I will defer to the witnesses that have been called
here today to testify as to the specifics of the fiduciary program as a
whole for further comment.
Mr. Chairman, I thank you and the Members of the Subcommittee for
your time. I would like to encourage all of you to support H.R. 602,
the Veterans' Second Amendment Protection Act, and I yield back.
Prepared Statement of Hon. Chellie Pingree
Thank you Chairman Runyan and Ranking Member Titus for having me
here today and for considering the Ruth Moore Act in this afternoon's
legislative hearing. I appreciate the opportunity to talk more about
this bill and why I think we desperately need it to become law.
This legislation has been endorsed by the American Legion, Disabled
American Veterans, Veterans of Foreign Wars, Vietnam Veterans of
America, Iraq and Afghanistan Veterans of America, Service Women's
Action Network, Military Officers Association of America, the National
Organization of Veterans' Advocates, and the Fleet Reserve Association.
We appreciate their support and all the work they do for veterans.
The Ruth Moore Act would relax the evidentiary standards for
survivors of military sexual trauma who file claims for mental health
conditions with the VA. Currently, MST survivors need further proof of
the assault--which for many of them is impossible. Under this bill, in
order to receive service-connected benefits, a veteran would have to
provide a statement that the assault took place; along with a diagnosis
from a VA health care professional that links the assault to a mental
health condition.
This bill also requires the VA to report MST related claims
information back to Congress, such as the number of denied and approved
MST claims each year, and the reasons for denial. As members of
Congress, we have a responsibility to ensure that the VA is providing
timely and accurate decisions to veterans, but we cannot do that
without sufficient data.
This bill is closely modeled after the 2010 change in VA
regulations for combat veterans who have filed PTSD claims based on
their military service.
As you know, in 2010, the VA relaxed the evidentiary standards for
veterans who suffer from combat related PTSD. The VA finally
acknowledged that far too many veterans who have deployed into harm's
way suffered the emotional consequences of their service but could not,
through no fault of their own, locate military documentation that
verified the traumatic events that triggered their PTSD.
The VA now accepts their statement of traumatic events, along with
a PTSD diagnosis and a medical link, as enough to receive disability
benefits.
So what we have is an inequity in the system, and those with a
combat related mental health condition have an easier path to benefits
than those who were raped or sexually harassed--even though both are
service-connected injuries and the same standards should apply.
Ruth Moore, who this bill is named for, is a US Navy veteran from
Maine who was raped twice during her military service. When she
reported it, she was discharged and labeled as having a personality
disorder. She spent over 23 years fighting the VA to get disability
benefits, and she battled homelessness and PTSD during that time.
Ruth, like many MST survivors, did not have military records that
corroborated the rape, so her claim was repeatedly denied.
Unfortunately, she is not alone: DoD's own numbers indicate that over
85% of assaults go unreported. So I ask you, how are these veterans
supposed to qualify for the help they need from the VA?
The VA will tell you that their system accepts ``secondary
markers'' as evidence to verify an assault occurred--and as comforting
as that sounds, we've seen time and time again that the VA is vastly
inconsistent in applying those standards. What one Regional office will
accept as proof another will deny. Almost every day I hear from another
MST survivor who has had their claim denied after these secondary
markers were ignored.
This is a problem of fundamental fairness: If a medical diagnosis
and link to a claimed event is enough for one group of veterans, it
ought to be enough for another. Especially when we know how prevalent
sexual assault in the military is and how hard it is for documentation
to exist to support these instances of assault.
Critics of this legislation might say that it makes it too easy to
get benefits and veterans could just say anything to get those
benefits. First of all, that's simply not true. There still needs to be
a medical diagnosis and medical link, which are not at all easy to come
by. And secondly, we heard that same argument when the VA proposed a
similar change for combat veterans, and I haven't heard the VA say
they've had big problems with veterans lying about their service.
The bottom line is that for too long the burden of proof has been
on the veteran--and that needs to change now.
Mr. Chairman, over the last two years I have heard from dozens and
dozens of veterans from all over the country. Men and women who
volunteered to serve their country, many of them planning on a career
in the military, only to have that career cut short by the horror of a
violent, sexual assault.
Whether the attack happened on a Navy base in Europe or at a
National Guard training facility here in the U.S., whether they were
soldiers, sailors, airmen or Marines, the story too often has the same
ending: The victims were blamed, the crime was covered up, and the
survivors themselves became the subject of further harassment and
recrimination. And too often, what followed was years of mental health
issues, lost jobs, substance abuse and homelessness.
These stories don't have to end this way. With the Ruth Moore Act,
we can change the VA's policy so veterans who survive a sexual assault
can at least get the benefits they deserve.
Again, thank you Mr. Chairman, Ranking Member Titus and Members of
the Committee for considering this legislation. I am happy to answer
any questions you may have.
Executive Summary
HR 671, Ruth Moore Act of 2013
Related Bill(s): S.294
Sponsor: Congresswoman Chellie Pingree, (D- ME -01)
SUMMARY AS OF:
2/13/2013--Introduced.
Ruth Moore Act of 2013 - Directs the Secretary of Veterans Affairs
(VA), in any case in which a veteran claims that a covered mental
health condition was incurred in or aggravated by military sexual
trauma during active duty, to accept as sufficient proof of service-
connection a diagnosis by a mental health professional together with
satisfactory lay or other evidence of such trauma and an opinion by the
mental health professional that such condition is related to such
trauma, 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
resolve every reasonable doubt in favor of the veteran. Allows such
service-connection to be rebutted by clear and convincing evidence to
the contrary.
Includes as a ``covered mental health condition'' post-traumatic
stress disorder, anxiety, depression, or any other mental health
diagnosis that the Secretary determines to be related to military
sexual trauma.
Requires the Secretary to report annually to Congress in each of
2014 through 2018 on covered claims submitted.
Current Sponsors (*Original): Blumenauer*, Brownley*, Capps*,
Connolly, DeFazio, DelBene, Ellison, Grijalva*, Honda*, Jones, Kuster,
Larsen*, Lewis*, McGovern*, Michaud*, McLeod, Murphy, O'Rourke, Payne,
Polis, Rush*, Shea-Porter*, Titus, Tsongas*
Supported by: American Legion, Disabled American Veterans, Fleet
Reserve Association, Iraq and Afghanistan Veterans of America, Military
Officers Association of American, Service Womens Action Network,
Veterans of Foreign Wars, Vietnam Veterans of America.
Prepared Statement of Hon. Bill Johnson
Chairman Runyan, Ranking Member Titus and Members of the
Subcommittee:
I appreciate the opportunity to testify before you on H.R. 894,
important legislation I introduced to reform the Department of
Veterans' Affairs (VA) Fiduciary Program.
As most of you know, last Congress, I served as the Oversight and
Investigations Subcommittee Chairman on the House Veterans' Affairs
Committee. An investigation into the VA's Fiduciary Program by my
Subcommittee revealed shocking behavior on the part of the VA's hired
fiduciaries, and gross misfeasance on the part of the VA. Some
fiduciaries - entrusted to manage the finances of our Nation's heroes
who are unable to do so themselves - were caught abusing the system by
withholding funds, embezzling veterans' money and other egregious
actions.
Furthermore, an Oversight and Investigations Subcommittee hearing
held on February 9 of last year uncovered the fact that many of the
VA's Fiduciary Program policies do not correspond with actual
practices. For instance, the VA claims to have a policy stating
preference for family members and friends to serve as a veteran's
fiduciary. However, the investigation into the Fiduciary Program
revealed instances where this is not the case. In one instance, the VA
arbitrarily removed a veteran's wife, who served as her husband's
fiduciary for ten years, and replaced her with a paid fiduciary. There
are also many honest and hardworking fiduciaries that experience
difficulty performing their duties due to the bureaucratic nature of
the VA's fiduciary program. We owe it to America's heroes to provide
them with a fiduciary program that is more responsive to the needs of
the veterans it is supposed to serve.
For these reasons, I am proud to sponsor H.R. 894, the ``Veteran's
Fiduciary Reform Act.'' This important legislation, initially
introduced last Congress, is based on problems uncovered before,
during, and after the hearing, as well as valuable input from veterans'
service organizations and individuals who have experienced difficulties
with the program firsthand. It is designed to transform the VA's
Fiduciary Program to better serve the needs of our most vulnerable
veterans and their hardworking fiduciaries. And, most importantly, it
will protect veterans in the program from falling victim to deceitful
and criminal fiduciaries.
Specifically, the Veterans Fiduciary Reform Act would require a
credit and criminal background check each time a fiduciary is
appointed, and allow veterans to petition to have their fiduciary
removed if problems arise. It would also decrease the potential maximum
fee a fiduciary can receive to the lesser of 3 percent or $35 per
month, similar to Social Security's fiduciary program. This will help
discourage those who enroll as VA fiduciaries with only a profit motive
in mind.
Importantly, H.R. 894 would enable veterans to appeal their
incompetent status at any time, a right not currently granted to
veterans. Additionally, it would allow veterans to name a preferred
fiduciary, such as a family member.
Last year, my Subcommittee heard numerous complaints about the
requirement for fiduciaries to obtain a bond. While proper in some
settings, it is inappropriate when it causes unnecessary hardship, such
as a mother caring for her veteran son. This legislation would require
the VA to consider whether a bond is necessary, and if it will
adversely affect the fiduciary and the veterans he or she serves. H.R.
894 would also direct the VA's Under Secretaries for Health and
Benefits to coordinate their efforts to ensure that fiduciaries caring
for their loved ones are not overly burdened by redundant requirements.
Lastly, this bill aims to simplify annual reporting requirements.
Currently, the VA does not have to review a fiduciary's annual
accounting, and when it does, it places an onerous burden on those
fiduciaries who are serving out of love, not for monetary gain. This
bill will implement a straight forward annual accounting requirement,
and gives VA the opportunity to audit fiduciary's whose accounting is
suspect.
These significant changes would strengthen the VA's standards for
administering the Fiduciary Program, and increase protection for
vulnerable veterans. Requiring background checks and lowering the fee a
fiduciary can charge would also increase scrutiny of potential
fiduciaries, and help root out potential predators. This legislation
also adds a layer of protection for veterans with fiduciaries by
incorporating the ability for veterans to petition to have their
fiduciary removed and replaced.
I am proud that last Congress, the Veterans Fiduciary Act of 2012
passed the House Veterans' Affairs Committee unopposed, and passed the
full House by voice vote on September 19, 2012. Unfortunately, this
important legislation was not considered by the Senate, and therefore,
the VA's Fiduciary Program is still in urgent need of reform.
Chairman Runyan, Ranking Member Titus, thank you again for the
opportunity to speak on this important legislation, H.R. 894. I am
hopeful that this legislation will again be favorably considered by the
Veterans' Affairs Committee, and this time become law. Our veterans
were willing to sacrifice everything to serve our Nation, and they
deserve to receive the care, benefits, and respect that they have
earned.
Executive Summary
Last Congress, the Veterans Fiduciary Act of 2012 passed the House
Veterans' Affairs Committee unopposed, and passed the full House by
voice vote on September 19, 2012. Unfortunately, this important
legislation was not considered by the Senate, and therefore, the VA's
Fiduciary Program is still in urgent need of reform.
H.R. 894, the ``Veteran's Fiduciary Reform Act,'' is designed to
transform the VA's Fiduciary Program to better serve the needs of our
most vulnerable veterans and their hardworking fiduciaries, and to
protect veterans in the program from falling victim to deceitful and
criminal fiduciaries.
In order discourage bad actors from enrolling as VA paid
fiduciaries, this legislation would require a credit and criminal
background check each time a fiduciary is appointed, and allow veterans
to petition to have their fiduciary removed if problems arise. It would
also decrease the potential maximum fee a fiduciary can receive to the
lesser of 3 percent or $35 per month, similar to Social Security's
fiduciary program.
Importantly, H.R. 894 would enable veterans to appeal their
incompetent status at any time, a right not currently granted to
veterans. It would also allow veterans to name a preferred fiduciary,
such as a family member.
This legislation also takes several important steps to provide
straightforward guidelines and prevent burdensome requirements on
fiduciaries. It would require the VA to consider whether acquiring a
bond for each fiduciary is necessary, and if it will adversely affect
the fiduciary and the veterans he or she serves. And it would also
implement a straight forward annual accounting requirement that gives
the VA the opportunity to audit fiduciary's whose accounting is
suspect.
Prepared Statement of Hon. Timothy J. Walz
I am here to speak in support of H.R. 679, Honor America's Guard-
Reserve Retirees Act. The bill ensures that we recognize the service
and sacrifice of members of the National Guard by honoring them with
status as Veterans under law. I would like to thank Chairman Runyan and
the group of bi-partisan Members of Congress who introduced this bill
with me.
I would like to commend the Subcommittee's Chairman and the Ranking
Member, as well as the Majority and Minority staff for what I consider
being an exceptional work ethic in this Subcommittee, a sense of
urgency to get things done. Thank you for the opportunity to move this
legislation forward.
The men and women of the reserve components take the same oath to
serve and protect our country as the active component: they sacrifice
their time and energy and stand ready if called upon, to serve in
combat in time of war. For those who have completed 20 years or more in
the reserve component but have not served a qualifying period of
Federal active duty, we honor their service with similar benefits given
to active duty military retirees - with one notable exception: they are
denied the title ``Veteran''.
Today, a reservist can successfully complete a Guard or Reserve
career but not earn the title of, ``Veteran of the Armed Forces of the
United States,'' unless he or she has served on Title 10 active duty
for other than training purposes. Title 38 excludes from the definition
of ``Veteran career,'' those reservists who have not served on Title 10
active duty for other than training purposes. Drill training, annual
training, active duty for training, and Title 32 duty are not deemed
qualifying service for ``Veteran'' status.
H.R. 679 would recognize all people who served in the National
Guard and Reserve for more than 20 years by honoring all of them with
the status of Veteran. It specifically bestows no additional benefits
to these brave men and women, it merely honors them with a title of
Veteran.
H.R. 679 is about recognizing our National Guard and Reserve
components play an integral role in the Defense of our Nation. It is
about recognizing that our all-volunteer force would be unsustainable
if it were not for the men and women who dedicate twenty years of their
lives to the training and welfare of America's Soldiers, Airmen,
Sailors and Marines. These servicemembers could have spent their time
and talents doing other things; they could have spent their weekends
enjoying time with their families. Instead they chose to prepare to
defend our country. It is high time that the U.S. Congress honor their
service and sacrifice.
This is a question of honor for those who have served our Nation
faithfully for 20 years in the Guard or Reserve. This legislation
corrects this injustice, at no cost to taxpayers. There are over
280,000 former Reservist and Guardsman across the country who served
dutifully for 20 years that will benefit. I believe that these men and
women have earned the respect and recognition that comes with the
designation of ``Veteran,'' which is why we have introduced H.R. 679,
the Honor America's Guard-Reserve Retirees Act.
The House of Representatives passed this legislation without any
opposition in both the 111th and 112th Congresses. Last Congress fifty-
three bi-partisan members made supporting this legislation a priority,
and the legislation continues to gain support today.
I emphatically encourage the House Veterans Affairs Committee to
streamline this legislation through the Committee and bring this to the
floor of the House of Representatives. Thank you for your time and
consideration.
Prepared Statement Jeffrey C. Hall
Chairman Runyan, Ranking Member Titus and Members of the
Subcommittee:
Thank you for inviting the DAV (Disabled American Veterans) to
testify at this legislative hearing of the Subcommittee on Disability
Assistance and Memorial Affairs. As you know, DAV is a non-profit
veterans service organization comprised of 1.2 million wartime service-
disabled veterans dedicated to a single purpose: empowering veterans to
lead high-quality lives with respect and dignity. DAV is pleased to be
here today to present our views on the bills under consideration by the
Subcommittee.
H.R. 569
H.R. 569, the Veterans' Compensation Cost-of-Living Adjustment Act
of 2013, would increase, effective December 1, 2013, the rates of
compensation for veterans with service-connected disabilities and the
rates of dependency and indemnity compensation (DIC) for the survivors
of certain disabled veterans. Although a cost-of-living adjustment
(COLA) was passed last year at the modest increase of 1.7%, each of the
past two years, there was no increase in the rates for compensation and
DIC because the Social Security index used to measure the COLA did not
increase. Many disabled veterans and their families rely heavily or
solely on VA disability compensation or DIC as their only means of
financial support have struggled during these difficult times. While
the economy has faltered, their personal economic circumstances have
been negatively affected by rising costs of many essential items,
including food, medicines and gasoline. As inflation becomes a greater
factor, it is imperative that veterans and their dependents receive a
COLA and DAV supports this legislation; however, DAV is adamantly
opposed to Section 2(c)(2) of the bill requiring the practice of
rounding down COLA increases to the next lower whole dollar amount,
which incrementally reduces the support to disabled veterans and their
families. The practice of permanently rounding down a veteran's COLA to
the next lower whole dollar amount can cause undue hardship for
veterans and their survivors whose only support comes from these
programs and it is time to end this practice.
H.R. 570
H.R. 570, the American Heroes COLA Act, would provide for annual
COLAs to be made automatically by law each year for the rates of
disability compensation for veterans with service-connected
disabilities as well as the rates of DIC for survivors of certain
service-connected disabled veterans. DAV supports this legislation;
however, as mentioned, DAV is adamantly opposed to the section of the
bill requiring the practice of rounding down COLA increases to the next
lower whole dollar amount.
H.R. 602
H.R. 602, the Veterans 2nd Amendment Protection Act, would clarify
the conditions under which certain persons may be treated as
adjudicated mentally incompetent for certain purposes. An individual
who is mentally incapacitated, deemed mentally incompetent, or
experiencing an extended loss of consciousness shall not be considered
mentally defective without the finding from a judge, magistrate, or
other judicial authority of competent jurisdiction that such individual
is a danger to himself or herself or to others. DAV has no resolution
on this matter.
H.R. 671
H.R. 671, the Ruth Moore Act of 2013, would improve the disability
compensation evaluation procedure of the Secretary of Veterans Affairs
for veterans with mental health conditions related to military sexual
trauma. DAV supports this legislation.
This bill would change the standard of proof required to establish
service connection for veterans suffering from certain mental health
conditions, including post-traumatic stress disorder (PTSD), resulting
from military service or from military sexual trauma that occurred in
service.
Essentially, H.R. 671 would eliminate the requirement of an in-
service, verifiable stressor in conjunction with claims for PTSD. Under
this change, VA would now be able to award entitlement to service
connection for PTSD even when there is no official record of such
incurrence or aggravation in service, provided there is a confirmed
diagnosis of PTSD coupled with the veteran's written testimony that the
PTSD is the result of an incident that occurred during military
service, and a medical opinion supporting a nexus between the two.
In November 2010, VA modified its prior standard of proof for PTSD
related to combat veterans by relaxing the evidentiary standards for
establishing in-service stressors if it was related to a veteran's
``fear of hostile military or terroristic activity.'' H.R. 671 would
build upon that same concept and expands it to cover all environments
in which a veteran experiences a stressor that can reasonably result in
PTSD, regardless of whether it occurred in a combat zone, as long as it
occurred when the veteran had been on active duty. The legislation
would also remove the current requirement that the diagnosis and nexus
opinion come only from VA or VA-contracted mental health professionals,
but would instead allow any qualified mental health professional.
This legislation would also allow VA to award entitlement to
service connection for certain mental health conditions, including
PTSD, anxiety and depression, or other mental health diagnosis
described in the current version of the Diagnostic and Statistical
Manual for Mental Disorders (DSM), which a veteran claims was incurred
or aggravated by military sexual trauma experienced in service, even in
the absence of any official record of the claimed trauma. Similar to
the evidentiary standard above for PTSD, the veteran must have a
diagnosis of the covered mental health condition together with
satisfactory lay or other evidence of such trauma and an opinion by the
mental health professional that such covered mental health condition is
related to such military sexual trauma, if consistent with the
circumstances, conditions, or hardships of such service even in the
absence official record of such incurrence or aggravation in such
service and if so all reasonable doubt will be resolved in favor of the
claimant.
DAV supports H.R. 671, which is consistent with DAV Resolutions 30
and 204. DAV Resolution 204 states that, ``[e]stablishing a causal
relationship between injury and later disability can be daunting due to
lack of records or certain human factors that obscure or prevent
documentation of even basic investigation of such incidents after they
occur...'' and that, ``[a]n absence of documentation of military sexual
trauma in the personnel or military unit records of injured individuals
prevents or obstructs adjudication of claims for disabilities for this
deserving group of veterans injured during their service, and may
prevent their care by VA once they become veterans...'' Further, DAV
Resolution 30 states that, ``[p]roof of a causal relationship may often
be difficult or impossible...'' and that, ``...current law equitably
alleviates the onerous burden of establishing performance of duty or
other causal connection as a prerequisite for service connection...''
Enactment of H.R. 671 would provide a more equitable standard of proof
for veterans who suffer from serious mental and physical traumas in
environments that make it difficult to establish exact causal
connections.
H.R. 679
H.R. 679, the Honor America's Guard-Reserve Retirees Act, would
recognize the service in the reserve components of certain persons
entitled to receive retired pay under Chapter 1223 of title 10, United
States Code, by honoring them with status as veterans under law. DAV
has no resolution on this matter.
H.R. 733
H.R. 733, the Access to Veterans Benefits Improvement Act, would
amend title 38, United States Code, to provide certain employees of
Members of Congress and certain employees of State or local
governmental agencies with access to case-tracking information of the
VA.
DAV had concerns about this legislation when it was introduced in
the 112th Congress. While we were supportive of the previous bill's
intent, we advanced our concerns about the broad language, which would
have allowed certain individuals to gain unrestricted access to
veterans' claims information without accreditation or security
permission. We are extremely pleased some of our suggestions were
considered and the language changed in the previous bill and now
carried forward in H.R. 733. DAV supports the intent of this
legislation, as it would provide assistance to the veteran by keeping
them informed as to the current status of their claim for benefits;
especially important during a time when the time for a claim to be
processed is averaging over 280 days.
DAV National Service Officers (NSOs) are accredited by the VA and
given access to veterans' records and computerized processing systems,
but only for those in which we hold power of attorney. DAV NSOs
regularly interact with certain local government employees, such as
County Veterans Service Officers (CVSOs), who provide local assistance
to veterans. When the assistance desired involves obtaining an update
as to the status of a pending claim, CVSOs generally are not able to
access the information and they must contact the accredited
representative of record, such as a veterans service organization (VSO)
to obtain a status of the pending claim, and then inform the veteran.
If the veteran does not have an accredited representative, such as a
VSO, the CVSO is very limited as to the information that may be
accessed. Likewise, an accredited representative only has access to
those cases for which they hold power of attorney.
Allowing certain covered employees of Members of Congress or local
government agencies to access the VA's case-tracking system to obtain a
status of a claim submitted by a veteran without a properly executed
power of attorney poses many serious questions. As a matter of privacy,
veterans or other claimants must be protected from anyone without
accreditation from being allowed to access VA's system and gain private
information on the veteran or other claimant.
This legislation sets out to amend title 38, United States Code, by
adding a new subsection 5906, which, as written, would allow virtually
any covered employee to gain access to any veteran's private
information; far greater access than afforded to an accredited
representative, such as a DAV NSO. First, the bill should contain the
explicit language contained in title 5, United States Code, section
552a(b), requiring the covered employee to have the written permission
of the veteran or claimant requesting assistance from the covered
employee. Without such request and written permission, the covered
employee has no proprietary reason to access any veteran's information.
Secondly, as stated in H.R. 733, before the covered employee is
able to access the VA's system, he or she is required to certify that
such access is for official purposes only. While we certainly agree
with this requirement, DAV believes that written consent to do so
should be obtained from the veteran or claimant in order to access the
status of the veteran's pending claim. Thirdly, the bill should plainly
set forth the penalties for any violations, such as accessing or
attempting to access the status of any pending claim without the
expressed written consent of the veteran or claimant.
Lastly, DAV believes the bill should also contain an additional
safeguard provision wherein the veteran or claimant is notified when
his or her record is being accessed by a covered employee. This would
further assure the veteran or claimant, especially those without
representation, has authorized the covered employee to perform such
action on their behalf and is aware when it is occurring. This would
also alert VA when a covered employee is attempting to gain access
without the express written consent of the veteran or claimant.
Again, the intent of this bill is to help veterans by providing
these covered employees limited access to VA's electronic database
solely for the purpose of obtaining the status of a claim. DAV believes
this could be very beneficial to all parties in the process, including
DAV NSOs when DAV is the accredited representative of record. DAV
simply wants to ensure that proper security measures are in place to
protect the privacy of veterans and claimants. As such, DAV supports
the intent of the bill, but we recommend the aforementioned changes in
the bill's language in order for us to be able to fully support H.R.
733. We feel the bill's current language is not explicit enough to
ensure the privacy of a veteran or claimant is safeguarded; however,
DAV would be pleased to work with the Subcommittee to make these
necessary changes in the bill's language.
H.R. 894
H.R. 894 would improve the supervision of fiduciaries of veterans
under laws administered by the Secretary of Veterans Affairs. Our
understanding of the bill's primary intent seems to be a restructuring
of existing law with improved protection of a beneficiary's benefits
from abusive, fraudulent or illegal activity by an appointed fiduciary,
while allowing the beneficiary to be more engaged in the process when a
fiduciary is appointment. While DAV does not have a resolution on this
particular matter, we are supportive of the intent of this legislation.
H.R. 1405
H.R. 1405 would require the Secretary of Veterans Affairs to
include an appeals form in any notice of decision issued for the denial
of a benefit sought. Initially we note the term ``appeals form'' in
this legislation is apparently referring to a forthcoming standardized
VA form for the purpose of a notice of disagreement, not a VA Form 9,
Appeal to the Board of Veterans' Appeals. Currently, there is no
prescribed or standardized form for a claimant to utilize when filing a
notice of disagreement, which is the first step in the appellate
process. It should be noted while there is no requirement for a
claimant to utilize a VA Form 9 for a substantive appeal, it does make
it easier for all parties involved by clearly laying out what is being
contested, whether a hearing is being requested and specific
contentions for each issue being contested.
We believe a standardized form to be used for the purpose of a
notice of disagreement makes equal sense to that of a VA Form 9, which
is used for perfecting a substantive appeal. However, VA must still be
required to accept written disagreement or appeal in another form,
provided it clearly identifies the benefit(s) being sought.
As stated, a standardized form to be used for a formal Notice of
Disagreement (NOD) would be extremely beneficial to a veteran in many
ways. For example, currently when a decision is sent to a claimant from
the VA it simply provides appeal rights, which means claimants often
send in their written disagreement by way of letter or by using a VA
Form 21-4138, Statement in Support of Claim. However, many claimants do
not clearly identify the correspondence as being an NOD to a particular
decision. Many claimants mistakenly utilize an appeal form (VA Form 9),
to express their disagreement, not knowing the first step in the
appellate process is the NOD. Confusion begins when an appeal form is
filed without their being an NOD of record. This prompts VA to accept
the appeal form as the NOD, so when the claimant actually receives the
appeal form included in the Statement of the Case, further confusion
occurs. Many claimants do not understand they must complete the form
again, because the first one submitted is actually an NOD. As such, the
claimant fails to complete and submit a second appeal form, eventually
leading to the appeal period expiring and being closed. Having a
standardized VA form to be included with the notice of decision may
alleviate these occurrences.
DAV supports the intent of this legislation, but we feel the
language is far too simplified and broad. We recommend a modest
reworking of the language so it would alleviate any confusion as to the
purpose of this bill or what is intended by ``appeals form'' or ``a
form that may be used to file an appeal . . . '' as proposed in Section
1, which would amend section 5104(b) of title 38. If it is a form to be
used to submit a notice of disagreement, then it should clearly state
such, rather than confusing it with a currently utilized appeal form.
Mr. Chairman, this concludes my testimony and I would be happy to
answer any questions from you or members of the Subcommittee.
Prepared Statement of Raymond C. Kelley
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
On behalf of the nearly 2 million men and women of the Veterans of
Foreign Wars of the United States (VFW) and our Auxiliaries, I would
like to thank you for the opportunity to testify on today's pending
legislation.
H.R. 569, Veterans' Compensation Cost-of-Living Adjustment Act of 2013:
Disabled veterans, their surviving spouses and children depend on
their disability and dependency and indemnity compensation to bridge
the gap of lost earnings and savings that the veteran's disability has
caused. Each year, veterans wait anxiously to find out if they will
receive a cost-of-living adjustment. There is no automatic trigger that
increases these forms of compensation for veterans and their
dependents. Annually, veterans wait for a separate Act of Congress to
provide the same adjustment that is automatic to Social Security
beneficiaries.
The VFW supports this legislation that will bring parity to VA
disability and survivor recipients' compensation by providing a COLA
beginning December 1, 2013, so long as VA disability, pension and
survivor benefits continue to be calculated with the currently used
Consumer Price Index - W and not change the calculations for these
adjustments to the Chained - Consumer Price Index.
The VFW continues to oppose the ``rounding down'' of the increase.
This is nothing more than a money-saving gimmick that comes at the
expense of our veterans and their survivors.
H.R. 570, American Heroes COLA Act:
The VFW agrees with the intent of this bill, which would provide
for an automatic trigger for COLA, eliminating the confusion and
uncertainty the current process brings. However, with the concerted
effort to change the index used to calculate COLA from the Consumer
Price Index - W to Chained - Consumer Price Index, the VFW must oppose
this bill in its current form. The VFW would provide support if this
legislation was amended to provide for the automatic Social Security
trigger, therein removing the Congressional step of passing a
standalone bill, but maintain the current index to calculate the rate
of COLA.
H.R. 602, Veterans 2nd Amendment Protection Act:
The VFW supports H.R. 602, which would provide a layer of
protection for veterans who might be seeking or undergoing mental
health care for service-related psychological disorders from losing
their Second Amendment right. Adding a provision that will require a
finding through the legal system that the veteran's condition causes a
danger to him or herself or others will prevent a veteran's name from
being automatically added to federal no-sell lists.
H.R 671, Ruth Moore Act of 2013:
The VFW strongly supports this legislation and believes that it is
long overdue. ``The Ruth Moore Act of 2013'' would relax evidentiary
standards for tying mental health conditions to an assault, making it
easier for Military Sexual Assault (MST) survivors to receive VA
benefits.
Current regulations put a disproportionate burden on the veteran to
produce evidence of MST - often years after the event and in an
environment which is often unfriendly - in order to prove service-
connection for mental health disorders.
With the extraordinarily high incidence of sexual trauma in the
military and the failure of many victims to report the trauma to
medical or police authorities, it is time Congress amends this
restrictive standard. This legislation does that by providing equity to
those suffering from post-traumatic stress disorder, anxiety,
depression and other mental health diagnoses that are often related to
MST. It puts MST in line with VA's standard of proof provided to combat
veterans who suffer PTSD. Passage of this bill will allow those who
have suffered from sexual violence in the military to get the care and
benefits they deserve. The VFW urges Congress to pass this legislation
quickly.
H.R. 679, Honor America's Guard-Reserve Retirees Act:
The VFW strongly supports this legislation, which would give the
men and women who choose to serve our nation in the Reserve component
the recognition that their service demands. Many who serve in the Guard
and Reserve are in positions that support the deployments of their
active duty comrades to make sure the unit is fully prepared when
called upon. Unfortunately, some of these men and women serve at least
20 years and are entitled to retirement pay, TRICARE, and other
benefits, but are not considered a veteran according to the letter of
the law. Passing this bill into law will grant these Guard and reserve
retirees the recognition their service to our country deserves.
H.R. 733, Access to Veterans Benefits Improvement Act:
The VFW supports this legislative proposal, which would grant
certain congressional staff members and local governmental agency
employees access to VA's case-tracking information. This bill will
allow Congress to better represent and respond to inquiries from their
veteran constituents.
The VFW contends that state and county service officers should only
have access to veterans for whom they hold a Power of Attorney (POA) or
for veterans who are not represented by a service officer. This will
ensure that service officers who hold a POA will be maintained as the
primary point of contact for the veterans they represent.
H.R. 894, Improvement of Fiduciaries for Veterans:
The VFW supports the intent of H.R. 894. Protecting veterans from
fraudulent fiduciaries, providing them an appeal process to have a new
fiduciary appointed and ensuring veterans are capable of managing their
own finances is critical.
However, it is unclear to the VFW whether or not due process will
be violated by this bill's proposed changes to Chapter 55 of title 38
U.S.C. The VFW believes that changing the title of paragraph 5502 to
read ``Appointment of fiduciaries'' from ``Payments to and supervision
of fiduciaries'' will codify how and when the Secretary can appoint a
fiduciary without regard to the due process provision provided in 38
C.F.R. paragraph 3.353 (d) and (e).
We look forward to working with Congressman Johnson to ensure the
intent of this bill is realized and that veterans' due process is
protected.
H.R. 1405, Inclusion of Appeals Forms in Notices of Decisions of
Benefits Denials:
The VFW supports the intent of H.R. 1405. Ensuring VA has a clear
notice of disagreement from the veteran is important to due process.
Currently, veterans write a letter disagreeing with VA's decision. This
acts as the ``Notice of Disagreement.'' Providing veterans with a
standardized form to file the disagreement will help both the veteran
and VA during the appeals process.
However, the VFW is concerned by the current language of the bill.
The VFW recommends amending this legislation to more clearly describe
the bills intent. By amending Section 1, Paragraph (a), subparagraph
(2) to read, ``(2) by inserting before the period at the end of the
following: `, and (3) a form that may be used to file a notice of
disagreement of the decision'.'' the bill would more closely reflect
the intent of providing a standardized notice of disagreement when the
initial rating decision is provided to the veteran.
Mr. Chairman, this concludes my testimony and I will be happy to
answer any questions you or the Committee may have.
Information Required by Rule XI2(g)(4) of the House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, VFW has
not received any federal grants in Fiscal Year 2013, nor has it
received any federal grants in the two previous Fiscal Years.
Prepared Statement of Colonel Robert F. Norton, USA (Ret.)
Deputy Director, Government Relations
CHAIRMAN RUNYAN, RANKING MEMBER TITUS AND DISTINGUISHED MEMBERS OF
THE SUBCOMMITTEE, on behalf of the over 380,000 members of The Military
Officers Association of America (MOAA), I am pleased to present the
Association's views on selected bills that are under consideration at
today's hearing.
MOAA does not receive any grants or contracts from the federal
government.
H.R. 679, the Honor America's Guard-Reserve Retirees Act of 2013.
H.R. 679 (Reps. Walz, D-MN and Runyan, R-NJ) would honor as a
veteran any retired member of the National Guard or Reserves entitled
to retired pay for nonregular (reserve) service in the Armed Forces of
the United States.
National Guard and Reserve members who complete a full Guard or
Reserve career and are receiving or entitled to a military pension,
government health care and certain earned veterans' benefits under
Title 38 are not ``veterans of the Armed Forces of the United States,''
in the absence of a qualifying period of active duty.
This strange situation exists because the definitions in Title 38
limit the term ``veteran'' only to servicemembers who have performed
duty on active duty (Title 10) orders.
National Guard members who served on military duty orders (other
than Title 10) at Ground Zero in New York City on Sept. 11, 2001, the
Gulf Coast following Hurricane Katrina or Hurricane Sandy, the BP oil
spill catastrophe off the Gulf Coast, or conducted security operations
on our Southwest border, and subsequently retire from the National
Guard or Reserve are not deemed to be veterans under the law unless at
some point they had served on Title 10 orders.
Throughout the Cold War and continuing in practice today,
Reservists may perform operational duty or support operational forces
on 29 different sets of orders. Most of these duty order categories
reflect Service funding and accounting protocols, but unless the orders
purposely are issued under Title 10, they do not count towards
recognition of career reservists as veterans of our Armed Forces.
Ironically, these career reservists earn specified veterans'
benefits, but they can't claim that they are veterans.
For these career volunteers who have served and sacrificed for
decades in uniform, it is deeply embarrassing that they are not
authorized to stand and be recognized as veterans during Veterans Day
and other patriotic celebrations.
MOAA is grateful to the House Veterans Affairs Committee and the
full House of Representatives for twice passing enabling legislation on
this issue.
H.R. 679 would establish that National Guard and Reserve members
who are entitled to a non-regular retirement under Chapter 1223 of 10
USC and who were never called to active federal service during their
careers are veterans of the Armed Forces. The legislation expressly
prohibits the award of any new or unearned veterans' benefits and is
cost-neutral.
A retired New York Army National Guard Master Sergeant recently
responded to an article on this issue in Military Update, a syndicated
column on military issues by Tom Philpott. The Master Sergeant wrote:
``I served 35 years as a Guardsman and am told I am not a veteran. I
did two weeks at Ground Zero and many tours in Germany doing logistics
for the war in Iraq. Yet I am still not a veteran.'' On his behalf and
on behalf of tens of thousands of other Guard and Reserve service
members, MOAA urges passage of H.R. 679.
MOAA strongly supports H.R. 679 to establish that career Reservists
eligible for or in receipt of military retired pay (at age 60),
government health care and certain earned veterans benefits, but who
never served under active duty orders are ``veterans of the Armed
Forces of the United States.''
An Addendum to this Statement includes a Letter of support from The
Military Coalition and Frequently Asked Questions about the Honor
America's Guard-Reserve Retirees Act.
H.R. 569, Veterans' Compensation Cost-of-Living Adjustment Act of
2013. H.R. 569 (Reps. Runyan and Titus, D-NV) would adjust veterans'
compensation, pension, survivors' Dependency and Indemnity compensation
and related benefits by the same percentage as the annual adjustment of
Social Security benefits. The adjusted rates would become effective on
1 December 2013 and reflected in payouts on 1 January 2014. MOAA
strongly supports H.R. 569.
H.R. 570, The American Heroes COLA Act. H.R. 570 (Reps. Runyan and
Titus) would authorize automatic annual cost-of-living adjustments each
year in the rates of disability compensation for veterans with service-
connected disabilities and the rates of dependency and indemnity
compensation for survivors of certain service-connected disabled
veterans. The bill would provide for an automatic adjustment to the
benefits described here whenever there is an increase in benefits
payable for Social Security annuitants. MOAA supports H.R. 570.
H.R. 602, Veterans 2d Amendment Protection Act. H.R. 602 (Rep. Jeff
Miller, R-FL) would prohibit the VA from denying the right of a veteran
deemed mentally incompetent or incapacitated from receiving or carrying
firearms without a court order that such a person is a danger to
himself / herself or others. MOAA has no position on H.R. 602.
H.R. 671, Ruth Moore Act of 2013. H.R. 671 (Rep. Pingree, D-ME)
would revise policy for adjudicating service-connection for veterans
with a mental health condition that was caused or aggravated by
military sexual trauma during active duty. The bill would require the
VA to accept as sufficient proof of service-connection a diagnosis by a
mental health professional together with satisfactory lay or other
evidence of military sexual trauma and an opinion by the mental health
professional that such condition is related to such trauma, if
consistent with the circumstances, conditions, or hardships of the
veteran's service, event when there is no official record of such
incurrence or aggravation in such service, and for other purposes. MOAA
strongly supports H.R. 671.
H.R. 733, Access to Veterans Benefits Improvement Act. H.R. 733
(Reps. Runyan and Walz) would authorize employees of Members of
Congress or of a state or local governmental agency assisting veterans
to have access to case-tracking information to assist them with their
claims. Access would include access to medical records. The bill would
prohibit the employee from modifying the data in the case-tracking
system and require employees to complete certification training on
privacy issues before gaining access to veterans' records. MOAA is not
chartered by the VA to represent veterans' claims and therefore takes
no position on the legislation.
H.R. 894, a bill to improve the supervision of fiduciaries of
veterans. H.R. 894 (Rep. Bill Johnson, R-OH) would revise the laws
governing the appointment, supervision, removal and re-appointment of
fiduciaries by the VA to administer benefits for certain disabled
veterans. The bill establishes procedures for the appointment of
temporary fiduciaries and for the pre-designation of a fiduciary. Among
other purposes, the legislation requires (under current law, permits) a
fiduciary to file an annual accounting of the administration of
beneficiary benefits; requires the VA to conduct annual random audits
of fiduciaries who receive a commission for such service; and, requires
fiduciary repayment of misused benefits.
The legislation grew out of the need to update VA fiduciary rules
and regulations in the best interest of catastrophically disabled
wounded warriors from the Iraq and Afghanistan conflicts. MOAA supports
H.R. 894.
H.R. 1405, a bill to require the Secretary of Veterans Affairs to
include an appeals form in any notice of decision issued for the denial
of a benefit sought. H.R. 1405 (Reps. Titus and Runyan) would take
effect on the date of enactment. At this time, MOAA is not chartered by
the VA to represent veterans' claims and takes no position on the
legislation.
Conclusion
The Military Officers Association of America is grateful to the
leadership and members of the Subcommittee on Disability Assistance and
Memorial Affairs Veterans for your commitment to our nation's veterans
and their survivors.
Addenda: 1. Letter from The Military Coalition, 13 March 2013, re:
H.R. 679. 2. Frequently Asked Questions re the Honor America's Guard-
Reserve Retirees Act.
Letter From The Military Coalition
March 14, 2013
The Honorable Tim Walz
United States House of Representatives
Washington, DC 20515
Dear Congressman Walz:
The Military Coalition, a consortium of uniformed services and
veterans associations representing more than 5.5 million current and
former service members and their families and survivors, writes to
thank you for your leadership in introducing HR 679, the ``Honor
America's Guard-Reserve Retirees Act'' that would grant veteran status
to members of the Reserve Components who served a career of 20 years or
more and are military retirees, but who through no fault of their own
are not recognized by our government as ``veterans.''
The individuals covered by your legislation have already earned
most of the benefits granted to veterans by the Department of Veterans
Affairs, and yet they do not have the right to call themselves veterans
because their service did not include sufficient duty under Title 10
orders. Because of this they feel dishonored by their government. Your
legislation simply authorizes them to be honored as ``veterans of the
Armed Forces'' but prohibits the award of any new benefit.
The ``Honor America's Guard-Reserve Retirees Act'' is a practical
way to honor the vital role members of the Reserve Components have had
in defending our nation throughout long careers of service and
sacrifice. And it can be done at no-cost to the American tax-payer
because of your legislation.
We look forward to the early passage of your bill in the House of
Representatives for the third time and we are hopeful both chambers of
Congress will take favorable action so we can see it signed into law
this year.
You have been the champion for this bill in the House and we are
grateful. We know you understand the importance of the honor of being
recognized as a veteran and we sincerely appreciate your steadfast
support and leadership on this issue that is very important to so many
members of the National Guard and Reserve.
The Military Coalition
TMC letter dated 14 March 2013 in support of H.R. 679
Honor America Guard-Reserve Retirees Act
Frequently Asked Questions
Q. What's the purpose of this legislation? A. To honor certain
career Guard and Reserve service men and women as ``veterans of the
Armed Forces.'' Extract of the VFW's testimony before the Senate
Veterans Affairs Committee on 8 June 2011: ``The VFW strongly supports
this legislation, which would give the men and women who choose to
serve our nation in the Reserve component the recognition that their
service demands. Many who serve in the Guard and Reserve are in
positions that support the deployments of their active duty comrades to
make sure the unit is fully prepared when called upon. Unfortunately,
some of these men and women serve 20 years and are entitled to
retirement pay, TRICARE, and other benefits, but are not considered a
veteran according to the letter of the law. . .
In recent years, Congress has enhanced material benefits to the
members of the Guard and Reserve and this bill does not seek to build
upon those provisions; it simply seeks to bestow honor upon the men and
women of the Guard and Reserve to whom it is due.'' [emphasis added]
Q. Who will this legislation cover? A. Career National Guard and
Reserve service men and women who are entitled to a military retirement
(at age 60) but never served on active duty orders during their
careers. Under the law, only a member of the Armed Forces who has
qualifying active duty service is a ``veteran of the Armed Forces'' as
set out in Title 38.
Q. What qualifies a military member, including Reservists, as a
``veteran''? A. A period of qualifying active duty service. In Title
38, a veteran is defined as a ``person who served in the active
military, naval or air service, and who was discharged or released
therefrom under conditions other than dishonorable.'' (Section 101(2),
38 USC). ``Active military, naval, or air service'' means ``active
duty''; or any period of active duty for training (ADT) or inactive
duty for training (IDT) - often called ``drill duty''--during which a
service person was disabled or died from a disease or injury incurred
or aggravated in the line of duty (Section 101(24)(A)(B)(C).
Q. Why is this legislation important?
A. For three reasons. First, honor. Honor is important to those who
have volunteered to serve the nation in uniform. Second, for decades
Guard and Reserve service men and women have performed military
missions at home and overseas but because of accounting
technicalities--funding sources and duty codes - their military
missions were not considered valid active duty work; i.e., they
performed the mission, but the orders did not credit the work as active
duty. Thus, their very real contributions to the national security have
been de-valued and dishonored leaving them in a no-man's land of ``non-
veteran'' status. Third, the bill simply provides statutory and public
recognition that a full career of service in uniform qualifies a person
with recognition as a veteran. Career reservists have earned specific
military retirement and veterans' benefits but technically are excluded
from being recognized as veterans under the law.
Q. Do National Guard and Reserve service members qualify for any
veterans' benefits even if they've never been called up? A. Yes.
Reserve military service opens eligibility to certain benefits provided
the member meets the specific criteria established in law. The reality
is that reservists already can qualify for certain veterans' benefits,
such as:
Educational benefits under Chapter 1606, 10 USC for an
initial enlistment of 6 years in the Selected Reserve
VA-backed home mortgage loans upon completion of 6 years'
reserve service
Servicemembers Group Life Insurance (SGLI) managed by the
Dept. of Veterans Affairs while serving in the National Guard or
Reserve
Burial in a national cemetery if qualified for a reserve
retirement at age 60
Ironically, however, career reservists who have earned specified
veterans' benefits but never served on active duty orders are not
``veterans of the Armed Forces.''
Q. Are there any new benefits conferred by this legislation? A. No.
The bill confers no benefits. The Congressional Budget Office has
scored the bill as cost-neutral.
Q. Could the bill become a ``nose under the tent'' to win unearned
veterans' benefits?
A. The language of the bill specifically precludes new or unearned
veterans' benefits. ``Any person who is entitled under chapter 1223 of
title 10 to retired pay for nonregular service or, but for age, would
be entitled under such chapter to retired pay for nonregular service
shall be honored as a veteran but shall not be entitled to any benefit
by reason of this section. [emphasis added]
(2) CLERICAL AMENDMENT- The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
107 the following new item:
`107A. Honoring as veterans certain persons who performed service
in the reserve components.'.
(b) Clarification Regarding Benefits- No person may receive any
benefit under the laws administered by the Secretary of Veterans
Affairs solely by reason of section 107A of title 38, United States
Code, as added by subsection (a)''. [emphasis added]
Q. Why do military Reservists perform military missions on non-
active duty orders?
A. During the Cold War (1945-1989), approximately 29 separate types
of orders were created for the Guard and Reserve. These categories
reflect funding sources and the types of duty performed,
notwithstanding that some of these orders resulted in the performance
of ``real world'' military missions. The DoD Comprehensive Review of
the Future Role of the Reserve Component (April 2011) recommended a
simpler framework of reserve duty orders and active duty orders,
boiling down the 29 types of orders to about six. The point is that
orders to carry out a military mission or in direct support of a
mission should usually be accounted for as an active duty mission and
credited accordingly. Unfortunately, some military missions are still
conducted on ADT or IDT orders, denying some Reservists recognition as
veterans.
Q. How can an individual serve for 20 years in the National Guard
or Reserve without having served on active duty?
A. Since World War II, many Guard and Reserve service men and women
have performed military missions - above and beyond their training - on
military orders that do not specify Title 10 ``active duty''.
For example, Naval Reserve, Air National Guard and Air Force
Reserve members often flew overseas missions on other-than-Title 10
orders. The Air National Guard had full responsibility for flying
missions to Howard Air Force Base in Panama, but performed such
missions on non-active duty orders.
National Guard units serving along the southern U.S. border
performing a homeland security mission do not serve on Title 10 orders.
National Guard units who rushed to New York City in response to the
Sept. 11, 2001 attacks, or to New Orleans in response to Hurricane
Katrina performed military missions on non-active duty orders.
Other Guard and Reserve members prepare Guard and Reserve
formations for deployment but do not themselves deploy.
And finally, there are those who have served full careers who were
never activated because of the particular military specialty they
performed.
Over a 20 or more year career in traditional drill status a member
of the Reserve Components serves at least two years and one month on
military duty. But the classification of such duty as either ADT or IDT
precludes veteran status.
Q. Don't National Guard and Reserve members become veterans after
completing their initial active duty service commitment - basic
training or ``boot camp'' - and military skill training? A. No.
National Guard and Reserve initial entry training is performed under
active duty training (ADT) orders. Only in the case of a disability
incurred on ADT or IDT orders would a Reservist be declared a veteran.
Q. If this issue is so important to career Reservists, why hasn't
it come up before?
A. Since World War II, with the exception of the Korean War,
substantial numbers of reservists rarely were called up to Federal
Active duty until Gulf War I (1990) and later. Most career reserve
members were reluctant to challenge accepted wisdom on this issue. With
the creation of the ``Total Force Policy'' (1972), the Guard and
Reserve were gradually integrated into the operational force. The first
large-scale test was Gulf War I followed by routine activations in that
decade for stability operations in Kosovo and Bosnia. Today, Guard and
Reserve members are a sustaining element of the operating force and
participate in every major military mission at home and overseas. Yet,
some of these missions continue to be conducted on non-active duty
orders and reservists whose mission is to prepare other troops for
deployment can never be credited as veterans. In short, the current
policy shortchanges reservists' contribution to the national security
and undermines the vision of the Guard and Reserve as an operational
force.
Q. How many career Guard-Reserve members are affected by this
legislation? A. Based on DoD data (2011), the Congressional Budget
Office estimated that approximately 288,000 career reservists would
become veterans (with no additional benefits) with enactment of the
Honor America's Guard-Reserve Retirees Act.
Biography of Robert F. Norton, COL, USA (Ret.)
Deputy Director, Government Relations
Bob Norton joined the MOAA Government Relations team in 1997,
specializing in National Guard / Reserve, veterans' benefits and VA
health care issues. He co-chairs The Military Coalition's (TMC)
Veterans' Committee and is MOAA's representative to TMC's Guard and
Reserve Committee. In 2000, Bob helped found the Partnership for
Veterans Education, a consortium of TMC, higher education associations,
and other veterans groups that advocates for the GI Bill. Bob served on
the statutory Veterans Advisory Committee on Education from 2004-2008.
Bob entered the Army in 1966 and was commissioned a second
lieutenant of infantry in August 1967. He served in South Vietnam
(1968-1969) as a civil affairs platoon leader. He transferred to the
U.S. Army Reserve in 1969.
Colonel Norton volunteered for full-time active duty in 1978. He
served in various assignments on the Army Staff and the office of the
Secretary of the Army specializing in Reserve manpower and personnel
policy matters.
Bob served two tours in the Office of the Assistant Secretary of
Defense for Reserve Affairs, first as a personnel policy officer (1982-
1985) and then as the Senior Military Assistant to the Assistant
Secretary (1989-1994). Reserve Affairs oversaw the call-up of more than
250,000 members of the Guard / Reserve in the first Gulf War. Colonel
Norton retired in 1995 and joined the MOAA Government Relations staff
in 1997.
Colonel Norton holds a B.A. from Niagara University and an M.S.Ed.
from Canisius College. He is a graduate of the U.S. Army Command and
General Staff College, the Army War College, and the Harvard Kennedy
School of Government senior officials in national security course.
His military awards include the Legion of Merit, Defense Superior
Service Medal, Bronze Star, Vietnam Service Medal, and the Armed Forces
Reserve Medal.
Executive Summary
HR 671, Ruth Moore Act of 2013
Related Bill(s): S.294
Sponsor: Congresswoman Chellie Pingree, (D- ME -01)
SUMMARY AS OF:
2/13/2013--Introduced.
Ruth Moore Act of 2013 - Directs the Secretary of Veterans Affairs
(VA), in any case in which a veteran claims that a covered mental
health condition was incurred in or aggravated by military sexual
trauma during active duty, to accept as sufficient proof of service-
connection a diagnosis by a mental health professional together with
satisfactory lay or other evidence of such trauma and an opinion by the
mental health professional that such condition is related to such
trauma, 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
resolve every reasonable doubt in favor of the veteran. Allows such
service-connection to be rebutted by clear and convincing evidence to
the contrary.
Includes as a ``covered mental health condition'' post-traumatic
stress disorder, anxiety, depression, or any other mental health
diagnosis that the Secretary determines to be related to military
sexual trauma.
Requires the Secretary to report annually to Congress in each of
2014 through 2018 on covered claims submitted.
Current Sponsors (*Original): Blumenauer*, Brownley*, Capps*,
Connolly, DeFazio, DelBene, Ellison, Grijalva*, Honda*, Jones, Kuster,
Larsen*, Lewis*, McGovern*, Michaud*, McLeod, Murphy, O'Rourke, Payne,
Polis, Rush*, Shea-Porter*, Titus, Tsongas*
Supported by: American Legion, Disabled American Veterans, Fleet
Reserve Association, Iraq and Afghanistan Veterans of America, Military
Officers Association of American, Service Womens Action Network,
Veterans of Foreign Wars, Vietnam Veterans of America.
Prepared Statement of Heather L. Ansley
Chairman Runyan, Ranking Member Titus, and other distinguished
members of the subcommittee, thank you for the opportunity to testify
regarding VetsFirst's views on the bills under consideration today.
VetsFirst, a program of United Spinal Association, represents the
culmination of over 60 years of service to veterans and their families.
We provide representation for veterans, their dependents and survivors
in their pursuit of Department of Veterans Affairs (VA) benefits and
health care before VA and in the federal courts. Today, we are not only
a VA-recognized national veterans service organization, but also a
leader in advocacy for all people with disabilities.
Veterans' Compensation Cost-of-Living Adjustment Act of 2013 (H.R. 569)
Disabled veterans and their survivors depend on VA benefits to
provide for themselves and their families. Cost of living adjustments
(COLAs) are an important aspect of ensuring that these benefits are
able to meet beneficiaries' basic needs.
This legislation will ensure that the disabled veterans and their
survivors who receive these benefits are eligible for a COLA on
December 1, 2013. Although the COLA received in 2012 was only 1.7
percent, this small increase is critical for disabled veterans and
their survivors. We would request, however, that any increase not be
rounded down to the next whole dollar amount.
We urge swift passage of this legislation which would ensure that
disabled veterans and their survivors are able to benefit from any COLA
increase. We also hope that Congress will ensure that this COLA is not
reduced through adoption of the chained consumer price index to
calculate any COLA.
American Heroes COLA Act (H.R. 570)
Disabled veterans and their survivors depend on COLAs to their
benefits to meet rising costs of goods and services. These VA
beneficiaries should be automatically eligible for any COLAs. Social
Security beneficiaries are already automatically eligible for these
adjustments.
This legislation will ensure that disabled veterans and their
survivors will be automatically eligible for COLAs. The certainty of
knowing that they are eligible for any potential COLA increase will
provide stability and equality with other government benefits. Veterans
and their survivors should not have to face the uncertainty of knowing
whether or not their benefits will be adjusted.
We urge swift passage of this legislation.
Veterans 2nd Amendment Protection Act (H.R. 602)
When VA proposes to find veterans financially unable to manage
their VA compensation or pension benefits, they are informed that such
adjudication will prohibit them from purchasing, possessing, receiving,
or transporting a firearm or ammunition. However, VA's authority to
adjudicate a veteran or other beneficiary unable to manage his or her
benefits does not grant VA the authority to take away that veteran's
constitutional rights, including his or her rights under the second
amendment. This authority should be in the purview of the legal system.
For veterans with mental health concerns, fears about loss of
second amendment rights could be a barrier to accessing needed care. We
believe that veterans needing assistance should not be forced to weigh
accessing care with the potential loss of their second amendment rights
without proper legal protections.
This legislation will ensure needed judicial protections. Thus, we
support this legislation.
Ruth Moore Act of 2013 (H.R. 671)
Many incidents of sexual trauma are never reported and too many of
those that are reported do not result in justice for the victim. For
veterans who acquired mental health conditions as the result of
military sexual trauma (MST), the VA's claims process does not fully
recognize the unique difficulty in proving that the trauma occurred.
According to data obtain by the Service Women's Action Network (SWAN),
32 percent of claims for Post Traumatic Stress Disorder (PTSD) related
to MST are approved for benefits while 54 percent of non-MST related
PTSD claims are approved for benefits.
The Ruth Moore Act would ease the burden on veterans who are
applying for benefits for an MST related mental health condition to
prove the occurrence of sexual trauma during military service.
Specifically, VA would be required to accept as sufficient proof of MST
satisfactory lay or other evidence and an opinion of a mental health
professional that a currently diagnosed mental health condition is
related to the trauma as long the evidence is consistent with the
circumstances, conditions, or hardships of such service. To ensure the
integrity of the benefits process, the legislation provides that
service-connection can be rebutted but only by clear and convincing
evidence to the contrary.
Reporting requirements included in the legislation will help to
ensure that VA properly implements the provision. This legislation
requires VA to submit an annual report to Congress regarding the number
of covered claims, the number and percentage approved, the number and
percentage denied, and the ratings assigned for approved claims, by
gender. The report will also include information about the three most
common reasons provided for denials and the number of denials that
resulted from the failure of the veteran to attend a required medical
examination.
We support this legislation. We also urge VA to immediately take
any and all actions currently available to expedite implementation.
Honor America's Guard-Reserve Retirees Act (H.R. 679)
Lacking sufficient duty under Title 10 orders, some retired members
of the Reserve Components who served 20 years and receive retiree pay
are not considered veterans. This legislation would allow these men and
women who have sacrificed through long careers of service and who
already receive many of the benefits of veterans the honor of being
formally recognized as veterans. We fully support this legislation and
urge its quick passage.
Access to Veterans Benefits Improvement Act (H.R. 733)
Veterans who have filed claims for benefits deserve to have ready
access to information about the status of their claims. When a veteran
is not easily able to obtain timely and accurate information from VA
regarding their claim, they may contact their member of Congress or the
office of a veterans representative who is affiliated with a state or
county department of veterans affairs. To facilitate access for these
individuals to information about the status of a veteran's claim, this
legislation would allow congressional staff and employees of state or
local governmental agencies to access a claimant's information
regardless of whether the covered employees are acting under a power of
attorney.
While we support the goal of ensuring that veterans receive timely
information regarding the status of their claims, we are concerned that
providing access to sensitive claimant information without regard to
the designation of a power of attorney or written request for release
of information may jeopardize the veterans' private information. We
appreciate the requirement for the covered employee to certify that
each access attempt is for official purposes only and that employees
complete a certification course on privacy issues. However, we feel
that access to information should be limited to those for whom the
covered employee has power of attorney or express written consent to
review.
With proper safeguards, the ability to access information through
VA's case-tracking system could be of benefit to veterans and those who
are assisting them. We also believe, however, that VA should take steps
to better assist and provide accurate status information to claimants,
which might limit the need for other users to access VA's case tracking
system to provide updates.
To improve the supervision of fiduciaries of veterans under the law
administered by the Secretary of Veterans Affairs (H.R. 894)
VA may appoint a fiduciary for a veteran or other beneficiary when
VA determines that it would be in his or her best interest. As defined
by Title 38 United States Code Section 5506, a VA fiduciary is ``a
person who is a guardian, curator, conservator, committee, or person
legally vested with the responsibility or care of a claimant (or a
claimant's estate) or of a beneficiary (or a beneficiary's estate); or
any other person having been appointed in a representative capacity to
receive money paid under any of the laws administered by the Secretary
for the use and benefit of a minor, incompetent, or other
beneficiary.''
In a hearing before the Subcommittee on Oversight and Investigation
on February 9, 2012, witnesses testified about numerous problems and
concerns involving VA's fiduciary program. Some of these problems
included the inability of veterans to receive needed medications due to
the inaction of a VA appointed fiduciary and demands that veterans and
their families provide information on all of a veteran's finances, not
just his or her VA benefits. VA has also appointed paid-fiduciaries
despite the availability of competent family members and in disregard
of valid powers of attorney. For other family members who serve as
their veterans' fiduciaries, the specter of the appointment of a paid-
fiduciary is raised in a manner that feels threatening to these
otherwise compliant fiduciaries.
Although VA has taken some steps to address concerns about the VA
fiduciary program, much more must be done to ensure that the program
fully meets the needs of veterans and other beneficiaries.
Specifically, we believe that VA's fiduciary program must be more
veteran-centric and tailored to address only those veterans who truly
need assistance due to a determination of financial incompetence. It is
important to remember that these VA benefits have been earned by the
veteran and that the funds belong to the veteran, even if he or she
needs assistance with managing them. The program must also provide an
appropriate balance between protecting the needs of veterans and
placing undue burden on family members who serve as fiduciaries.
This legislation takes important steps toward ensuring that VA's
fiduciary program is more transparent and focused on the needs of
veterans. For example, if VA determines that a beneficiary is
incompetent then he or she must be provided with a written statement
detailing the reasons for such a determination. We would like, however,
specific language about the criteria VA should use in making the
determination. We would also suggest that the legislation's use of the
term ``mentally incompetent'' does not accurately reflect the limits of
VA's role, however, which is to determine financial incompetence. Thus,
we suggest that references in the legislation to mental incompetence be
replaced with the term financially incompetent.
Also included in this legislation are statutory protections to
ensure that beneficiaries have the ability to request the removal and
replacement of a fiduciary. While the ability to request a new
fiduciary is critical to ensuring that the program is veteran-centric,
a request to replace a fiduciary must be carefully considered to ensure
that it was made in good faith. We are also pleased that the
legislation requires that any removal or new appointment of a fiduciary
not delay or interrupt the beneficiary's receipt of benefits. While
matters of fiduciary appointment are being resolved, veterans must
continue to have access to their benefits. Access to benefits,
including retroactive benefits, while appealing a determination or
completing the process for appointment of a fiduciary remains a problem
for too many veterans.
We also appreciate efforts to ensure that veterans have an
opportunity to play a role in determining who may serve as their
fiduciary. The opportunity to designate a fiduciary in the event that
one is later needed is an intriguing effort to provide veterans with
the opportunity to have their preferences considered. We think it is
important to note, however, that the need for a fiduciary may arise
many years after designation and that this individual may no longer
represent the veteran's preference.
This legislation also makes significant changes in the commissions
that fiduciaries are able to receive for their services. We believe
that a commission should only be authorized where absolutely necessary
to ensure that the best possible fiduciary serves a veteran or other
beneficiary. Regardless of whether the percent authorized is the
current four percent or the proposed lesser of three percent or $35,
our only concern is that a paid-fiduciary be available to veterans if
there are no other alternatives. As long as highly qualified
fiduciaries are available when needed, we support the lower commission.
To expand the availability of fiduciaries, this legislation also
broadens the definition of a fiduciary to include state or local
government agencies and nonprofit social service agencies. Expanding
the statutory definition of a VA fiduciary will open up avenues for
individuals who need fiduciaries but lack family members or other
individuals who can serve in that capacity. Requiring VA to maintain a
list of entities that can serve as fiduciaries will ensure that this
option may be easily exercised.
This legislation also significantly strengthens the inquiry and
investigation into and qualifications required for fiduciaries.
Although the legislation removes the ability to waive aspects of the
inquiry and investigation, we are pleased that the legislation allows
for priority in conducting the required review for parents, spouses,
and court appointed fiduciaries. We are hopeful that the requirement
for an interview to be conducted within 30 days for all fiduciaries
will ensure family members receive an especially prompt review. The
legislation also adds to this list any person who is authorized to act
on behalf of the beneficiary under a durable power of attorney. Adding
individuals who hold viable durable powers of attorney to the expedited
list of approval will hopefully ensure that VA will fully consider
these individuals when appointing fiduciaries.
We continue to have concerns about whether efforts to tighten the
review of potential fiduciaries will be unduly burdensome on family
members seeking to serve as fiduciaries. Family members must be fully
reviewed prior to appointment, but we hope VA will make every effort to
exercise discretion where appropriate. This also extends to required
annual accountings and the need to secure a bond.
It is also important to remember that VA's authority to appoint a
fiduciary only extends to VA benefits. This duty does not extend, for
instance, to Social Security benefits unless that agency appoints that
fiduciary as a representative payee for those benefits. Thus, we
believe that a fiduciary's annual accounting should be limited to VA
benefits and not include other benefits or income that he or she might
also oversee.
We appreciate the efforts of the subcommittee to address concerns
in the VA's fiduciary program. We pledge to continue serving as a
resource to the committee and urge swift passage of legislation
addressing VA's fiduciary program.
To require the Secretary of Veterans Affairs to include an appeals form
in any notice of decision issued for the denial of a benefit
sought (H.R. 1405)
Veterans wishing to file a notice of disagreement with any aspect
of a VA decision for benefits are not required to use a specific form.
To simplify the process of appealing an initial denial of VA benefits,
this legislation would require VA to include a form with each decision
that may be used to file an appeal of the decision. We support this
legislation but propose that the language be clarified to state that VA
must provide ``a form that may be used to file a notice of disagreement
with the decision.'' This clarification would eliminate any potential
confusion with VA's Form 9, Appeal to the Board of Veterans' Appeals.
Thank you for the opportunity to testify concerning VetsFirst's
views on these important pieces of legislation. We remain committed to
working in partnership to ensure that all veterans are able to
reintegrate in to their communities and remain valued, contributing
members of society.
Information Required by Clause 2(g) of Rule XI of the House of
Representatives
Written testimony submitted by Heather L. Ansley, Vice President of
Veterans Policy; VetsFirst, a program of United Spinal Association;
1660 L Street, NW, Suite 504; Washington, D.C. 20036. (202) 556-2076,
ext. 7702.
This testimony is being submitted on behalf of VetsFirst, a program
of United Spinal Association.
In fiscal year 2012, United Spinal Association served as a
subcontractor to Easter Seals for an amount not to exceed $5000 through
funding Easter Seals received from the U.S. Department of
Transportation. This is the only federal contract or grant, other than
the routine use of office space and associated resources in VA Regional
Offices for Veterans Service Officers that United Spinal Association
has received in the current or previous two fiscal years.
Executive Summary
Veterans' Compensation Cost-of-Living Adjustment Act of 2013 (H.R. 569)
We urge swift passage of this legislation which would ensure these
beneficiaries are eligible for a cost of living adjustment (COLA) to
their benefits on December 1, 2013.
American Heroes COLA Act (H.R. 570)
Disabled veterans and their survivors should be automatically
eligible for COLAs. We strongly support this legislation.
Veterans 2nd Amendment Protection Act (H.R. 602)
Veterans should not be forced to accept the loss of their second
amendment rights without proper legal protections. We support this
legislation which would ensure those protections.
Ruth Moore Act of 2013 (H.R. 671)
We support this legislation which would ease the burden on military
sexual trauma survivors to receive needed compensation benefits and
access to health care.
Honor America's Guard-Reserve Retirees Act (H.R. 679)
This legislation would allow these men and women the right to call
themselves veterans of the Armed Forces and we urge its quick passage.
Access to Veterans Benefits Improvement Act (H.R. 733)
While we support the goal of ensuring that veterans receive timely
information regarding the status of their claims, we believe access to
case-tracking information should be limited to those who hold a
claimant's power of attorney or have express written consent to receive
status information.
To improve the supervision of fiduciaries of veterans under the law
administered by the Secretary of Veterans Affairs (H.R. 894)
This legislation takes important steps toward ensuring that VA's
fiduciary program is more transparent and focused on the needs of
beneficiaries. We believe that the process should be veteran-centered
and appreciate the efforts to ensure accountability to veterans
concerning their benefits. Modifications that would strengthen the
legislation include ensuring that family fiduciaries are not unduly
burden and that veterans have access to benefits when appealing a
determination of financial incompetence or while awaiting appointment
of a fiduciary.
To require the Secretary of Veterans Affairs to include an appeals form
in any notice of decision issued for the denial of a benefit
sought (H.R. 1405)
We support this legislation but propose that the language be
clarified to state that VA must provide ``a form that may be used to
file a notice of disagreement with the decision.''
Prepared Statement of Michael D. Murphy
Good morning Mr. Chairman, members of the committee, and staff, it
is truly my honor to be here for this hearing. As Executive Director of
the National Association of County Veterans Service Officers, I am here
today, to comment on the:
4 The proposed bill, HR 733, to grant access of Veterans
Administration information to Governmental Veterans Service Officers
The National Association of County Veterans Service Officers is an
organization made up of local government employees. Local government
employees that believe we can help the Department of Veterans Affairs
reduce the number of backlogged benefits claims that veterans are
currently waiting to have adjudicated by the Department of Veterans
Affairs.
Our members work in local government offices, an ``arm of
government'' if you will, in 37 States and currently are comprised of
2,400 full time employees in 700 communities. We are not like the
Veterans Service Organizations. We are not dues driven or membership
driven. Every veteran, their dependents and their survivors who live in
our respective jurisdictions are all our clients. We serve them at no
cost to the client. We are equipped to handle and ready to assist
veterans one on one, with every Department of Veterans Affairs benefit,
state and local benefits, and the reason we are here today, to assist
them in tracking their claim.
There are over 22 million honorably discharged veterans of the
armed forces of the United States. During the course of their life
after the military they may have occasion to file a benefits claim for
pension or compensation. Most veterans are not members of a Veterans
Service Organization, but chances are that they live within one of our
communities served by a State, County or City Veterans Service Officer.
To the citizens of our communities, we are the Veterans Administration.
The main issue we are here to talk about today is the lack of
cooperation by the Department of Veterans Affairs in recognizing our
members as an arm of government. We are treated as if we are a Veterans
Service Organization rather than what we are. As governmental employees
we are not unlike the VA itself. There is just a failure to recognize
us in that light.
Let's say that a veteran comes into my office to file a claim for a
knee injury that occurred while the veteran was on active duty in the
Army. We first have to determine eligibility based on war time/peace
time service and a number of factors established by the VA. Let's say
this veteran appears to be eligible. We then put together a claim for
compensation, gather up medical evidence, service medical records,
service records, buddy statements, and other pertinent information and
submit the claim to one of a number of Veterans Service Organizations.
We help the veteran select a Veterans Service Organizations to
represent the veteran through a Power of Attorney. This is done so that
the veteran may have representation at the VA Regional Office and for
any subsequent appeals that may occur. Our local Governmental Veterans
Service Officers may hold the Power of Attorney but many are just too
far away from the Regional Offices to adequately represent their
client.
Then after about 3 months the veteran comes back into my office and
asks what the status of his claim is as he has heard nothing. I have no
way to gain this knowledge even though the claim originated in my
office. I have to refer him to the VA's 1-800 number and hope he can
ask the right questions or to the Veterans Service Organization who
holds his Power of Attorney and who he does not know and probably won't
call. Hopefully he won't go to another jurisdiction and file another
claim which adds to the backlog.
What we are asking in this bill under consideration is to allow the
Governmental Veterans Service Officers to have ``read only'' access to
their client's information. This will allow the local Governmental
Veterans Service Officer to properly track and provide follow-up for
their clients. Sometimes a veteran will file an appeal on a denied
claim and go to another Veterans Service Officer in another
jurisdiction and file another claim for the same thing. This ultimately
adds to the backlog and unnecessarily bogs down the system. If enacted,
this bill will avoid duplication of claims which in turn, will assist
in reducing the current backlog of claims.
We know there is much consternation on the part of the Veterans
Administration regarding this issue. They have had some problems, in
the past, in keeping secure, that information that veterans must give
to the government to obtain the benefits that they earned. We
understand this and are held to the same standards as the VA already.
Remember that a majority of claims for compensation and pension
originate in local Governmental Veterans Service Offices. We are
required to keep secure that information that we supplied to the
Veterans Service Organization and ultimately to the Veterans
Administration. As a prerequisite to receive access to the VA
databases, the government employee must be accredited with the Veterans
Administration, must have attended and successfully completed Training,
Responsibility, Involvement and Preparation of Claims (TRIP) training
and must have had a background check performed on them as a condition
of employment.
There has been much cooperation between the Federal, State and
Local Government over many years. There are cooperative Memorandums of
Understanding (MOU) the Department of Agriculture, Department of
Justice and other Federal arms of government routinely sign every year.
The United States Forest Service cooperatively works with local
jurisdictions to safeguard the resources on the National Forest. The
FBI and Homeland Security work closely with local law enforcement
jurisdictions in an effort to safeguard local residents. A local law
enforcement officer can run a records check on a subject and get most
everything the FBI has on the subject in a few minutes. There are
safeguards in place to make sure the information is not released
improperly and it works very well. If the FBI treated local law
enforcement like the VA treats our members there would be anarchy in
the streets.
In this day and age of our great nation it is unthinkable that a
young man or woman enters the military service, serves honorably and
upon discharge finds difficulties in obtaining the rights and benefits
that they earned through service and sacrifice. It is our
responsibility, the people of the United States, to live up to that
promise of a better and brighter future. That promise that includes a
myriad of veterans benefits should the service member becomes injured
in defense of freedom; but also an underlying promise that says that if
you serve your country with honor your country will be there to serve
you, not with a hand out, but a hand up. Together we must develop a
mechanism for solutions, so that veterans are able to return and find
their part of the American Dream.
The National Association of County Veterans Service Officers has
been in existence since 1990, primarily as a vehicle to provide
continuing education and accreditation training in Department of
Veterans Affairs' procedures and regulations governing veterans'
benefits. The Association provides basic and advanced training for
County Veterans Service Offices and also serves as a vehicle for them
to obtain national accreditation with the Department of Veterans
Affairs.
The National Association of County Veterans Service Officers is
grateful for this opportunity to testify to this Committee. If we work
together, I believe that we can reverse the growing backlog of veterans
benefit claims and get our heroes what they earned and truly deserve.
In Closing, the National Association of County Veterans Service
Officers recommends that this committee move this bill along in the
legislative process. We believe that this bill has the potential to
make a significant difference in the lives of returning veterans and
will afford them a better opportunity to obtain their earned benefits.
Thank you for your time and attention.
Executive Summary
RECOMMENDATIONS:
That the full House Veterans Affairs Committee hold hearings on a
proposed bill to grant Governmental Veterans Service Officers limited
access to Department of Veterans Affairs data bases.
That the House Veterans Affairs Committee enact legislation to
grant Governmental Veterans Service Officers limited access to
Department of Veterans Affairs data bases.
This is a no cost issue for congress. The National Association of
County Veterans Service Officers is an organization made up of local
government employees. Local government employees that believe we can
help the Department of Veterans Affairs reduce the number of backlogged
benefits claims that veterans are currently waiting to have adjudicated
by the Department of Veterans Affairs.
Our members work in local government offices, an ``arm of
government'' if you will, in 37 States and currently are comprised of
2,400 full time employees in 700 communities. We are not like the
Veterans Service Organizations. We are not dues driven or membership
driven. Every veteran, their dependents and their survivors who live in
our respective jurisdictions are all our clients. We serve them at no
cost to the client. We are equipped to handle and ready to assist
veterans one on one, with every Department of Veterans Affairs benefit,
state and local benefits, and the reason we are here today, to assist
them in tracking their claim.
What we are asking in this bill under consideration is to allow the
Governmental Veterans Service Officers to have ``read only'' access to
their client's information. This will allow the local Governmental
Veterans Service Officer to properly track and provide follow-up for
their clients. Sometimes a veteran will file an appeal on a denied
claim and go to another Veterans Service Officer in another
jurisdiction and file another claim for the same thing. This ultimately
adds to the backlog and unnecessarily bogs down the system. If enacted,
this bill will avoid duplication of claims which in turn, will assist
in reducing the current backlog of claims.
Prepared Statement of David R. McLenachen
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to present the views of the Department of Veterans Affairs
(VA) on several bills of interest to Veterans and VA. Joining me today
are Mary Ann Flynn, Deputy Director, Policy and Procedures,
Compensation Service, and Richard Hipolit, Assistant General Counsel.
VA has not had time to develop cost estimates on H.R. 671, H.R.
733, and H.R. 894 and will provide costs on these bills for the record.
H.R. 569
H.R. 569, the ``Veterans' Compensation Cost-of-Living Adjustment
Act of 2013,'' would require the Secretary of Veterans Affairs to
increase, effective December 1, 2013, the rates of disability
compensation for service-disabled Veterans and the rates of dependency
and indemnity compensation (DIC) for survivors of Veterans. This bill
would increase these rates by the same percentage as the percentage by
which Social Security benefits are increased effective December 1,
2013. Each dollar amount increased, if not a whole dollar amount, would
be rounded to the next lower whole dollar amount. The bill would also
require VA to publish the resulting increased rates in the Federal
Register.
VA strongly supports this bill because it would express, in a
tangible way, this Nation's gratitude for the sacrifices made by our
service-disabled Veterans and their surviving spouses and children and
would ensure that the value of their well-deserved benefits will keep
pace with increases in consumer prices.
The cost of the cost-of-living adjustment (COLA) is included in
VA's baseline budget because we assume a COLA will be enacted by
Congress each year. Therefore, enactment of H.R. 569, which would
extend the COLA adjustment through November 30, 2014, would not result
in costs. The round-down in increased rates would result in savings of
approximately $41.6 million in fiscal year (FY) 2014, $262.0 million
over five years, and $573.8 million over ten years.
H.R. 570
H.R. 570, the ``American Heroes COLA Act,'' would amend 38 U.S.C.
Sec. 5312 to permanently authorize the Secretary of Veterans Affairs
to implement cost-of-living increases to the rates of disability
compensation for service-disabled Veterans and the rates of DIC for
survivors of Veterans. This bill would direct the Secretary to increase
the rates of those benefits whenever a cost-of-living increase is made
to benefits under title II of the Social Security Act. The rates of
compensation and DIC would be increased by the same percentage as
Social Security benefits. This bill would also make permanent the
round-down requirement for compensation cost-of-living adjustments. The
amendments made by the bill would take effect on December 1, 2014.
VA supports this bill because it would be consistent with Congress'
long-standing practice of enacting regular cost-of-living increases for
compensation and DIC benefits in order to maintain the value of these
important benefits, but would eliminate the need for additional
legislation to implement such increases in the future. It would also be
consistent with current 38 U.S.C. Sec. Sec. 1104(a) and 1303(a), which
provide that cost-of-living adjustments to compensation and DIC
amounts, if they are made, will be at a uniform percentage not
exceeding the percentage increase to Social Security benefits.
The cost of the COLA is included in VA's baseline budget because we
assume Congress will enact a COLA each year. Therefore, making the
annual COLA automatic would not result in costs. However, making
permanent the provision to round down the COLA would result in savings
of approximately $41.6 million in FY 2014, $712.5 million over five
years, and $2.6 billion over ten years.
H.R. 602
H.R. 602, the ``Veterans 2nd Amendment Protection Act,'' would
provide that a person who is mentally incapacitated, deemed mentally
incompetent, or unconscious for an extended period will not be
considered adjudicated as a ``mental defective'' for purposes of the
Brady Handgun Violence Prevention Act in the absence of an order or
finding by a judge, magistrate, or other judicial authority that such
person is a danger to himself, herself, or others. The bill would, in
effect, exclude VA determinations of incompetency from the coverage of
the Brady Handgun Violence Prevention Act. VA does not support this
bill.
VA determinations of mental incompetency are based generally on
whether a person, because of injury or disease, lacks the mental
capacity to manage his or her own financial affairs. We believe
adequate protections can be provided to these Veterans under current
statutory authority. Under the [National Instant Criminal Background
Check System] NICS Improvement Amendments Act of 2007, individuals whom
VA has determined to be incompetent can have their firearms rights
restored in two ways: First, a person who has been adjudicated by VA as
unable to manage his or her own affairs can reopen the issue based on
new evidence and have the determination reversed. When this occurs, VA
is obligated to notify the Department of Justice to remove the
individual's name from the roster of those barred from possessing and
purchasing firearms. Second, even if a person remains adjudicated
incompetent by VA for purposes of handling his or her own finances, he
or she is entitled to petition VA to have firearms rights restored on
the basis that the individual poses no threat to public safety. VA has
relief procedures in place, and we are fully committed to continuing to
conduct these procedures in a timely and effective manner to fully
protect the rights of our beneficiaries.
Also, the reliance on an administrative incompetency determination
as a basis for prohibiting an individual from possessing or obtaining
firearms under Federal law is not unique to VA or Veterans. Under the
applicable Federal regulations implementing the Brady Handgun Violence
Prevention Act, any person determined by a lawful authority to lack the
mental capacity to manage his or her own affairs is subject to the same
prohibition. By exempting certain VA mental health determinations that
would otherwise prohibit a person from possessing or obtaining firearms
under Federal law, the bill would create a different standard for
Veterans and their survivors than that applicable to the rest of the
population and could raise public safety issues.
The enactment of H.R. 602 would not impose any costs on VA.
H.R. 671
VA is committed to serving our Nation's Veterans by accurately
adjudicating claims based on military sexual trauma (MST) in a
thoughtful and caring manner, while fully recognizing the unique
evidentiary considerations involved in such an event. Before addressing
the specific provisions of H.R. 671, it would be useful to outline
those efforts, which we believe achieve the intent behind the bill. The
Under Secretary for Benefits has spearheaded the efforts of the
Veterans Benefits Administration (VBA) to ensure that these claims are
adjudicated compassionately and fairly, with sensitivity to the unique
circumstances presented by each individual claim.
VA is aware that, because of the personal and sensitive nature of
the MST stressors in these cases, it is often difficult for the victim
to report or document the event when it occurs. To remedy this, VA
developed regulations and procedures specific to MST claims that
appropriately assist the claimant in developing evidence necessary to
support the claim. As with other posttraumatic stress disorder (PTSD)
claims, VA initially reviews the Veteran's military service records for
evidence of the claimed stressor. VA's regulation also provides that
evidence from sources other than a Veteran's service records may
corroborate the Veteran's account of the stressor incident, such as
evidence from mental health counseling centers or statements from
family members and fellow Servicemembers. Evidence of behavior changes,
such as a request for transfer to another military duty assignment, is
another type of relevant evidence that may indicate occurrence of an
assault. VA notifies Veterans regarding the types of evidence that may
corroborate occurrence of an in-service personal assault and asks them
to submit or identify any such evidence. The actual stressor need not
be documented. If minimal circumstantial evidence of a stressor is
obtained, VA will schedule an examination with an appropriate mental
health professional and request an opinion as to whether the
examination indicates that an in-service stressor occurred. The
Veteran's lay statement during this examination can establish
occurrence of the claimed stressor.
With respect to claims for other disabilities based on MST, VA has
a duty to assist in obtaining evidence to substantiate a claim for
disability compensation. When a Veteran files a claim for mental or
physical disabilities other than PTSD based on MST, VBA will obtain a
Veteran's service medical records, VA treatment records, relevant
Federal records identified by the Veteran, and any other relevant
records, including private records, identified by the Veteran that the
Veteran authorizes VA to obtain. VA must also provide a medical
examination or obtain a medical opinion when necessary to decide a
disability claim. VA will request that the medical examiner provide an
opinion as to whether it is at least as likely as not that the current
symptoms or disability are related to the in-service event. This
opinion will be considered as evidence in deciding whether the
Veteran's disability is service connected.
VBA has also placed a primary emphasis on informing VA regional
office (RO) personnel of the issues related to MST and providing
training in proper claims development and adjudication. VBA developed
and issued Training Letter 11-05, Adjudicating Posttraumatic Stress
Disorder Claims Based on Military Sexual Trauma, in December 2011. This
was followed by a nationwide Microsoft Live Meeting broadcast on MST
claims adjudication. The broadcast focused on describing the range of
potential markers that could indicate occurrence of an MST stressor and
the importance of a thorough and open-minded approach to seeking such
markers in the evidentiary record. In addition, the VBA Challenge
Training Program, which all newly hired claims processors are required
to attend, now includes a module on MST within the course on PTSD
claims processing. VBA also provided its designated Women Veterans
Coordinators with updated specialized training. These employees are
located in every VA RO and are available to assist both female and male
Veterans with their claims resulting from MST.
VBA worked closely with the Veterans Health Administration (VHA)
Office of Disability Examination and Medical Assessment to ensure that
specific training was developed for clinicians conducting PTSD
compensation examinations for MST-related claims. VBA and VHA further
collaborated to provide a training broadcast targeted to VHA clinicians
and VBA raters on this very important topic, which aired initially in
April 2012 and has been rebroadcast numerous times.
Prior to these training initiatives, the grant rate for PTSD claims
based on MST was about 38 percent. Following the training, the grant
rate rose and at the end of February 2013 stood at about 52 percent,
which is roughly comparable to the approximate 59-percent grant rate
for all PTSD claims.
In December 2012, VBA's Systematic Technical Accuracy Review team,
VBA's national quality assurance office, completed a second review of
approximately 300 PTSD claims based on MST. These claims were denials
that followed a medical examination. The review showed an overall
accuracy rate of 86 percent, which is roughly the same as the current
national benefit entitlement accuracy level for all rating-related end
products.
In addition, VBA's new standardized organizational model has now
been implemented at all of our ROs. It incorporates a case-management
approach to claims processing. VBA reorganized its workforce into
cross-functional teams that give employees visibility of the entire
processing cycle of a Veteran's claim. These cross-functional teams
work together on one of three segmented lanes: express, special
operations, or core. Claims that predictably can take less time flow
through an express lane (30 percent); those taking more time or
requiring special handling flow through a special operations lane (10
percent); and the rest of the claims flow through the core lane (60
percent). All MST-related claims are now processed in the special
operations lane, ensuring that our most experienced and skilled
employees are assigned to manage these complex claims.
Under Secretary Hickey's efforts have dramatically improved VA's
overall sensitivity to MST-related PTSD claims and have led to higher
current grant rates. However, she recognized that some Veterans' MST-
related claims were decided before her efforts began. To assist those
Veterans and provide them with the same evidentiary considerations as
Veterans who file claims today, VBA is planning to advise Veterans of
the opportunity to request that VA review their previously denied PTSD
claims based on MST. Those Veterans who respond will receive
reconsideration of their claims based on VA's heightened sensitivity to
MST and a more complete awareness of evidence development. VBA will
also continue to work with VHA medical professionals to ensure they are
aware of their critical role in processing these claims.
Turning to the specifics of H.R. 671, the ``Ruth Moore Act of
2013,'' section 2(a) would add to 38 U.S.C. Sec. 1154 a new subsection
(c) to provide that, if a Veteran alleges that a ``covered mental
health condition'' was incurred or aggravated by MST during active
service, VA must ``accept as sufficient proof of service-connection'' a
mental health professional's diagnosis of the condition together with
satisfactory lay or other evidence of such trauma and the
professional's opinion that the condition is related to such trauma,
provided that the trauma is consistent with the circumstances,
conditions, or hardships of such service, irrespective of whether there
is an official record of incurrence or aggravation in service. Service
connection could be rebutted by ``clear and convincing evidence to the
contrary.'' In the absence of clear and convincing evidence to the
contrary, and provided the claimed MST is consistent with the
circumstances, conditions, and hardships of service, the Veteran's lay
testimony alone would be sufficient to establish the occurrence of the
claimed MST. The provision would define the term ``covered mental
health condition'' to mean PTSD, anxiety, depression, ``or other mental
health diagnosis described in the current version'' of the American
Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders that VA ``determines to be related to military sexual
trauma.'' The bill would define MST to mean ``psychological trauma,
which in the judgment of a mental health professional, resulted from a
physical assault of a sexual nature, battery of a sexual nature, or
sexual harassment which occurred during active military, naval, or air
service.''
Section 2(a) of the bill would require VA to accept as proven the
occurrence of MST or a PTSD stressor without what we consider the
minimal threshold evidence that is needed to maintain the integrity of
the claims process. It would permit a Veteran's lay testimony alone to
establish the occurrence of claimed MST, and service connection for a
covered mental health condition would be established if a mental health
professional diagnoses a covered mental health condition and opines
that the such condition is related to the MST. This would occur whether
or not the mental health professional had access to the Veteran's
service records or was otherwise able to evaluate the claimant's
statements regarding the occurrence of the claimed in-service stressor
or event.
Through VA's extensive, recent, and ongoing actions, we are
ensuring that MST claimants are given a full and fair opportunity to
have their claim considered, with a practical and sensitive approach
based on the nature of MST. As noted above, VA has recognized the
sensitive nature of MST-related PTSD claims and claims based on other
covered mental health conditions, as well as the difficulty inherent in
obtaining evidence of an in-service MST event. Current regulations
provide multiple means to establish an occurrence, and VA has initiated
additional training efforts and specialized handling procedures to
ensure thorough, accurate, and timely processing of these claims.
VA's regulations reflect the special nature of PTSD. Section
3.304(f) of title 38 Code of Federal Regulations, currently provides
particularized rules for establishing stressors related to personal
assault, combat, former prisoner-of-war status, and fear of hostile
military or terrorist activity. These particularized rules are based on
an acknowledgement that certain circumstances of service may make the
claimed stressor more difficult to corroborate. Nevertheless, they
require threshold evidentiary showings designed to ensure accuracy and
fairness in determinations as to whether the claimed stressor occurred.
Evidence of a Veteran's service in combat or as a prisoner of war
generally provides an objective basis for concluding that claimed
stressors related to such service occurred. Evidence that a Veteran
served in an area of potential military or terrorist activity may
provide a basis for concluding that stressors related to fears of such
activity occurred. In such cases, VA also requires the opinion of a VA
or VA-contracted mental health professional, which enables VA to ensure
that such opinions are properly based on consideration of relevant
facts, including service records, as needed. For PTSD claims based on a
personal assault, lay evidence from sources outside the Veteran's
service records may corroborate the Veteran's account of the in-service
stressor, such as statements from law enforcement authorities, mental
health counseling centers, family members, or former Servicemembers, as
well as other evidence of behavioral changes following the claimed
assault. Minimal circumstantial evidence of a stressor is sufficient to
schedule a VA examination and request that the examiner provide an
opinion as to whether the stressor occurred.
The regulatory provisions at 38 C.F.R. Sec. Sec. 3.303 and
3.304(f) have established equitable standards of proof and of evidence
for corroboration of an in-service injury, disease, or event for
purposes of service connection. Further, 38 U.S.C. Sec. 1154 requires
consideration of the places, types, and circumstances of service when
evaluating disability claims and provides for acceptance of lay
statements concerning combat-related injuries, provided evidence
establishes that the Veteran engaged in combat. H.R. 671 would expand
section 1154 to require VA to accept lay statements as sufficient proof
of in-service events in all MST claims involving covered mental health
conditions, based solely on the nature of the claim and without
requiring the objective markers, such as combat service, that are
essential to the effective operation of section 1154. Without the
requirement of any evidentiary threshold for the mandatory acceptance
of a lay statement as sufficient proof of an occurrence in service,
this bill would eliminate, for discrete groups of Veterans, generally
applicable requirements that ensure the fairness and accuracy of claim
adjudications.
In summary, while we appreciate the intent behind this legislation,
we would prefer to continue pursuing non-legislative actions to address
the special nature of claims based upon MST.
Section 2(b) would require VA, for a 5-year period beginning
December 1, 2014, to submit to Congress an annual report on claims
covered by new section 1154(c) that were submitted during the previous
fiscal year. Section 2(b) would also require VA to report on the: (1)
number and percentage of covered claims submitted by each sex that were
approved and denied; (2) rating percentage assigned for each claim
based on the sex of the claimant; (3) three most common reasons for
denying such claims; and (4) number of claims denied based on a
Veteran's failure to report for a medical examination; (5) number of
claims pending at the end of each fiscal year; (6) number of claims on
appeal; (7) average number of days from submission to completion of the
claims; and (8) training provided to VBA employees with respect to
covered claims.
VA does not oppose section 2(b).
Section 2(c) would make proposed section 1154(c) applicable to
disability claims ``for which no final decision has been made before
the date of the enactment'' of the bill. H.R. 671 does not define the
term ``final decision.'' As a result, it is unclear whether the new law
would be applicable to an appealed claim in which no final decision has
been issued by VA or, pursuant to 38 U.S.C. Sec. 7291, by a court.
Benefit costs associated with H.R. 671 are estimated to be $135.9
million in FY 2014, $2.0 billion over five years, and $7.1 billion over
ten years. Costs for information technology and general operating
expenses will be provided for the record.
H.R. 679
H.R. 679, the ``Honor America's Guard-Reserve Retirees Act,'' would
add to chapter 1, title 38, United States Code, a provision to honor as
Veterans, based on retirement status, certain persons who performed
service in reserve components of the Armed Forces but who do not have
service qualifying for Veteran status under 38 U.S.C. Sec. 101(2). The
bill provides that such persons would be ``honored'' as Veterans, but
would not be entitled to any benefit by reason of the amendment.
Under 38 U.S.C. Sec. 101(2), Veteran status is conditioned on the
performance of ``active military, naval, or air service.'' Under
current law, a National Guard or Reserve member is considered to have
had such service only if he or she served on active duty, was disabled
or died from a disease or injury incurred or aggravated in line of duty
during active duty for training, or was disabled or died from any
injury incurred or aggravated in line of duty or from an acute
myocardial infarction, a cardiac arrest, or a cerebrovascular accident
during inactive duty training. H.R. 679 would eliminate these service
requirements for National Guard or Reserve members who served in such a
capacity for at least 20 years. Retirement status alone would make them
eligible for Veteran status.
VA recognizes that the National Guard and Reserves have admirably
served this country and in recent years have played an even greater
role in our Nation's overseas conflicts. Nevertheless, VA does not
support this bill because it represents a departure from active service
as the foundation for Veteran status. This bill would extend Veteran
status to those who never performed active military, naval, or air
service, the very circumstance which qualifies an individual as a
Veteran. Thus, this bill would equate longevity of reserve service with
the active service long ago established as the hallmark for Veteran
status.
VA estimates that there would be no additional benefit or
administrative costs associated with this bill if enacted.
H.R. 733
H.R. 733, the ``Access to Veterans Benefits Improvement Act,''
would add a new section 5906 to chapter 59 of title 38, United States
Code. Proposed section 5906(a)(1) would require VA to provide a
``covered employee'' with access to the ``case-tracking system'' to
provide a Veteran with information regarding the status of the
Veteran's claim, regardless of whether the covered employee is acting
under a power of attorney executed by the Veteran. Proposed section
5906(d) would define the term ``covered employee'' to mean an employee
of a Member of Congress or an employee of a State or local government
agency who, in the course of carrying out the responsibilities of such
employment, assists Veterans with VA benefit claims and would define
the term ``case-tracking system'' to mean ``the system of [VA] that
provides information regarding the status of a claim submitted by a
veteran.''
Proposed section 5906(a)(2) would require VA to ensure that such
access would not allow the covered employee to modify the data in the
case-tracking system and would not include access to medical records.
Proposed section 5906(b) would prohibit VA from providing case-tracking
system access to a covered employee unless the employee has
successfully completed a certification course on privacy issues
provided by VA. Proposed section 5906(c) would essentially create a new
exception to the Privacy Act and the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) by deeming such access to be a
covered disclosure under 5 U.S.C. Sec. 552a(b) and a permitted
disclosure under regulations promulgated under section 264(c) of HIPAA.
VA does not support this bill. It would significantly lessen the
personal privacy protections currently enjoyed by our Nation's
Veterans. In addition, the purpose of the bill is already satisfied
through existing means by which Veterans may secure assistance for
their claims. The measure would create conflicts with other statutory
provisions that would be unchanged by the bill. Finally, it would
impose on VA a substantial burden to accommodate the access
contemplated by the bill through its current operating systems.
National Veterans service organizations are already an integral
part of VA's efforts to assist Veterans. VA provides the individual
members of these organizations with special training and certification
to ensure familiarization with VA claim processing and VA computer
systems. Training and certification are also available for state and
county employees representing Veterans. Additionally, Members of
Congress and their employees are already provided access to claim
status information when authorized by a Veteran constituent or when
they have proper authority to conduct oversight. Each VA RO has a
congressional liaison who may be contacted for claim information.
Finally, any qualified representative authorized by a Veteran has
access to the status of that Veteran's claim information, within
statutory guidelines.
With the exception of medical records, the bill would not limit the
type of information in the case-tracking system to which the Secretary
would be required to provide access. VA tracking systems contain a wide
variety of information, some of it confidential and imbued with a high
degree of personal privacy. Providing access to VA's case-tracking
system would compromise the privacy of Veterans' personal information.
Proposed section 5906(a)(2)(A)(ii) would require VA to ensure that
access is not provided to medical records, yet proposed section
5906(c)(2) would provide that access to such information shall be
deemed to be a permitted disclosure under HIPAA. If the Secretary is
precluded from providing access to protected health information, the
provision concerning a permitted disclosure pursuant to the HIPAA
Privacy Rule promulgated by the Department of Health and Human Services
is superfluous. Furthermore, VA claims are inextricably intertwined
with medical information, so it would be very difficult to allow access
to claims information without access to the information concerning
medical conditions involved in a claim.
Case-tracking information is also protected by 38 U.S.C. Sec. 5701
(the statute protecting the confidentiality of Veterans' records and
the records of their dependents). Section 5701 provides no exception
for disclosure of names and addresses to covered employees without
consent or a power of attorney. The bill contains no exception for
disclosure of information protected by section 5701 to covered
employees without consent or a power of attorney. Thus, the bill would
be inconsistent with the longstanding protections provided by section
5701.
This bill also appears to be inconsistent with 38 U.S.C. Sec.
7332, which protects from unauthorized disclosure records of drug
abuse, alcoholism or alcohol abuse, sickle cell anemia, and infection
with HIV. For example, if a Veteran has established service connection
for one of these conditions, then records of treatment for the
condition would appear in a case-tracking system.
The definition of the term ``covered employee'' in proposed section
5906(d)(2) is quite broad, including a widespread universe of
individuals, employees of Members of Congress and State and local
government employees, including Veterans service officers (an undefined
term), who have, as one of their responsibilities, the provision of
assistance to Veterans with claims for VA benefits. VA's release of
Veterans' information outside of VA always removes to some degree the
protections afforded under Federal privacy laws and regulations and has
the potential to undermine Veterans' trust of VA.
This bill would also impose on VA a substantial administrative
burden. Under 38 U.S.C. Sec. 5723(f), users of VA information and
information systems already must comply with all VA information
security program policies, procedures, and practices. They must attend
security awareness training at least annually, immediately report all
security incidents to the Information Security Officer of the system,
comply with orders from the Assistant Secretary for Information and
Technology when a security incident occurs, and annually sign an
acknowledgement that they have read, understand, and agree to abide by
the VA National Rules of Behavior. Under the bill, ``covered
employees'' would fall within the scope of section 5723(f) as users of
VA information and information systems. Considering the potentially
vast number of covered employees that could be granted access by the
bill, training and oversight by VA would be extremely burdensome and
time consuming. Monitoring changes in duties among covered employees
would be another burden. These administrative burdens are not justified
when VA prefers to direct its resources to providing more timely and
accurate claims decisions and eliminating the claims backlog.
The goal of H.R. 733 is to provide Veterans with status updates on
the processing of their claims. Processing claims involves gathering
and evaluating evidence and providing VA medical examinations when
needed. VA currently informs Veteran claimants of these steps in
writing as they occur. Additionally, the self-service features of
eBenefits allow claimants and their representatives to determine the
status of their claims at any time, day or night. VBA is also
implementing the Stakeholder Enterprise Portal, a secure web-based
access point for VA's authorized business partners. This portal
provides the ability for Veterans service officers and other approved
external VA business partners to represent Veterans quickly,
efficiently, and electronically. Providing covered employees with
access to the same information for duplicative communication with
Veteran claimants would result in an unjustified drain on VA resources
that could result in reduced timeliness in claim processing.
H.R. 894
H.R. 894, a bill to improve the supervision of fiduciaries of
Veterans under laws administered by VA, would make several changes to
VA's administration of its fiduciary program for beneficiaries who
cannot manage their own VA benefits. VA appreciates the interest in
improving VA's fiduciary program, but finds several provisions of the
bill problematic, as set out in detail below. Although VA does not
support those measures, VA shares the desire to improve oversight of
fiduciaries and has already taken steps to clarify VA's and
fiduciaries' roles in the program and improve oversight. Among other
things, VA consolidated its fiduciary activities to six regionally-
aligned hubs to increase efficiency of operations and improve quality
of service, rewrote all of its fiduciary regulations, implemented a new
field examiner training program, and designed a new information
technology system for the program. VA welcomes the opportunity to
discuss these improvements and the goals of, and intent behind, this
bill with you or your staff. VA has just proposed a measure through
last week's budget submission that would allow more effective oversight
of fiduciaries through enhanced access to financial records. We would
welcome discussion of that idea as well.
Section 1(a) of the bill would amend 38 U.S.C. Sec. 5502 governing
payments to and supervision of fiduciaries. Section 1(a) would permit a
beneficiary whom VA has determined is mentally incompetent for purposes
of appointing a fiduciary to appeal VA's determination and would permit
a beneficiary for whom VA has appointed a fiduciary to request, at any
time, that VA remove the fiduciary and appoint a new fiduciary. VA
would have to comply with the request unless VA determines that ``the
request is not made in good faith.'' VA would have to ensure that
removal of a fiduciary or appointment of a new fiduciary does not delay
or interrupt the beneficiary's receipt of benefits. Section 1(a) would
specify that a VA-appointed fiduciary must operate independently of VA
to determine the actions that are in the beneficiary's interest.
The provisions concerning appeals of incompetence determinations
and replacement of fiduciaries generally codify current VA policy.
Under current VA policy, a beneficiary may appeal an incompetency
determination and may at any time for good cause shown request the
appointment of a successor fiduciary. Accordingly, VA does not oppose
these provisions, except for the ``not made in good faith'' provision,
which could disrupt the fiduciary program by requiring VA to frequently
replace fiduciaries for Veterans who are dissatisfied with oversight of
funds under the program.
However, VA opposes the provision that would require VA to ensure
that any removal or appointment of a new fiduciary does not delay or
interrupt the beneficiary's receipt of benefits. If a fiduciary is
removed and a successor fiduciary is being appointed, VA's objective is
to ensure the continuation of benefits to the beneficiary. However, in
some cases, benefit payments get delayed or interrupted when a
fiduciary is being replaced, for reasons beyond VA's control. Under
current law, VA must conduct the inquiry or investigation prescribed by
Congress in 38 U.S.C. Sec. 5507 when it replaces a fiduciary, and
sometimes VA encounters an uncooperative beneficiary or beneficiary's
representative. Some delay may be unavoidable in these cases.
Consequently, VA opposes this provision to the extent that it would
prohibit, without exception or qualification, any delay in the delivery
of benefits upon removal of a fiduciary.
Section 1(a) would permit a Veteran to ``predesignate a fiduciary''
by providing VA with written notice of the predesignated fiduciary or
submitting a VA form for such purpose and would require VA, if VA
appoints a fiduciary other than the one designated by the beneficiary,
to notify the beneficiary of the reason for not appointing the
designated individual and of the beneficiary's ability to request a
change in the appointed fiduciary. In appointing a fiduciary for a
beneficiary who has not designated one, VA would, to the extent
possible, have to appoint the beneficiary's relative, a court-appointed
guardian, or a person authorized to act on the beneficiary's behalf
under a durable power of attorney.
VA opposes the provision that would permit predesignation of a
fiduciary. As a result of VA's increased outreach and collaboration
with the Department of Defense, many individuals complete their initial
benefit application early in their lifetime when they have no need for
fiduciary services. Designating a fiduciary decades before any actual
need for a fiduciary would likely render the initial designation stale.
Also, VA's current appointment policy gives preference to the
beneficiary's choice and family members' or guardian's desires as
expressed at the time of the field examination, which VA believes is
the best available and most relevant information for purposes of making
a best-interest determination. Such determination should not be based
upon stale information.
VA also opposes the provision that would give priority in
appointment consideration to individuals holding a beneficiary's
durable power of attorney (POA). Based upon experience, VA does not
favor giving a person holding a beneficiary's POA priority over other
candidates based only on the existence of the POA. Veterans and other
beneficiaries in the fiduciary program can be extremely vulnerable and
easily coerced into signing documents. Additionally, a POA can be
executed and revoked by the beneficiary at any time. If an individual
is holding a POA, VA would have no way of determining whether the POA
is still in effect or if the beneficiary had the capacity to execute a
legally enforceable POA under State law at the time. Implementing
policies and procedures related to the assessment of POAs would
needlessly complicate and delay the fiduciary-appointment process.
Also, under current law, VA has a duty to appoint, based upon a
field examination and consideration of the totality of the
circumstances, the individual or entity that is in the beneficiary's
best interest. Although VA might conclude that appointment of an
individual who holds the beneficiary's POA is in the beneficiary's
interest, VA strongly opposes statutory imposition of a preference to
an individual named in a POA. Under current law, VA appoints the person
or entity who will provide the least restrictive fiduciary
relationship. Thus, VA first considers the beneficiary's preference,
followed by a spouse, another family member, or a friend or other
individual who is willing to serve as fiduciary without a fee. Such
appointments constitute the overwhelming majority of VA's fiduciary
appointments. Nonetheless, under this provision of the bill, if a
beneficiary has not designated a fiduciary and a relative is not
available, VA would be required to consider the beneficiary's court-
appointed guardian or an individual who holds the beneficiary's durable
POA. It would require priority consideration for more restrictive
arrangements, contrary to current VA policy.
VA also opposes the provision mandating preference for the
beneficiary's court-appointed guardian because of possible effects on
VA's most vulnerable beneficiaries. Court appointment of a guardian
often is the most restrictive method of payment and the most costly.
Under current law, a VA-appointed fiduciary may collect a maximum fee
of 4 percent of the VA benefits paid to the beneficiary each year.
Further, under VA's interpretation of the law, a fee may not be based
upon retroactive, lump-sum, or other one-time payments or upon
accumulated funds under management. However, under State law, guardians
may collect fees in excess of the 4-percent Federal limit. Although the
fee structure varies from State to State, basic fees range between 5
percent of all income received by the guardian to as high as 10 to 15
percent of all income and funds under management by the guardian.
Additionally, courts often allow extraordinary fees in excess of the
standard fee. The appointment of a guardian often results in the
guardian incurring the cost of attorney fees for filing motions and
annual court accountings. These fees and costs can be as much as
thousands to tens of thousands of dollars per year and are paid from
the beneficiary's VA benefits. Also, because the fee structure varies
from State to State, VA cannot conduct consistent and effective
oversight of guardians appointed by courts, resulting in undesirable
disparate treatment for vulnerable beneficiaries depending upon the
beneficiaries' State of residence. VA believes that Congress
established the fiduciary program for the express purpose of ensuring a
nation-wide, Federal standard for beneficiaries who cannot manage their
own benefits.
Section 1(b) of the bill would make several changes with respect to
the commission payable for fiduciary services. It would: (1) limit a
monthly commission to the lesser of 3 percent of the monthly monetary
benefits paid or $35; (2) prohibit a commission based on any
beneficiary award regarding ``back pay or retroactive benefits
payments''; (3) prohibit a commission if VA determines that the
fiduciary misused a benefit payment; and (4) permit VA to revoke the
appointment if VA determines that a fiduciary has misused any benefit
payment.
VA opposes the provision limiting monthly commissions to a maximum
of 3 percent of benefits paid or $35. Payment of a suitable fee is
necessary if there is no other person who is qualified and willing to
serve as a fiduciary without a fee. In some instances, a beneficiary's
interests can be served only by the appointment of a qualified paid
fiduciary. As of March 31, 2012, VA had identified and appointed
fiduciaries willing to serve without a fee for more than 92 percent of
its beneficiaries needing fiduciaries.
Under current VA policy, fiduciaries are more than mere bill
payers. VA's emerging view is that fiduciaries should remain in contact
with the beneficiaries they serve and assess those beneficiaries'
needs. Without such an assessment, fiduciaries who serve VA's most
vulnerable beneficiaries would be unable to fulfill their obligation to
determine whether disbursement of funds is in the beneficiary's
interest. As noted above, for the overwhelming majority of
beneficiaries needing fiduciaries, a relative or close personal friend
will perform the duties without cost to the beneficiary. However, there
are difficult cases in which VA has no alternative but to turn to an
individual or entity that is willing to serve Veterans and their
survivors for a suitable fee. Reducing the allowable fee when VA is
attempting to strengthen the role of fiduciaries in the program would
create a disincentive for serving these vulnerable beneficiaries. VA
strongly opposes such a reduction because it would harm beneficiaries
and needlessly hinder the program, which has a clear preference for
volunteer service but recognizes the need for a pool of paid
fiduciaries who are willing to accept appointment for a suitable fee in
some of VA's most difficult cases. However, VA supports the prohibition
on deriving commissions from back pay or retroactive payments, which
would codify VA's current policy regarding limitations on fees, and VA
has no objection to the remaining fee and revocation provisions because
they essentially restate current law.
Section 1(c) of the bill would clarify the statutory definition of
``fiduciary'' in 38 U.S.C. Sec. 5506. It would clarify that the term
``person'' in that definition includes a State or local government
agency whose mission is to carry out income maintenance, social
service, or healthcare-related activities; any State or local
government agency with fiduciary responsibilities; or any nonprofit
social service agency that VA determines regularly provides fiduciary
services concurrently to five or more individuals and is not a creditor
of any such individual. It would also require VA to maintain a list of
State or local agencies and nonprofit social service agencies that are
qualified to act as a fiduciary.
VA opposes this provision because it is unnecessary and could cause
confusion regarding the applicability of other statutes. Current 38
U.S.C. Sec. 5507 requires VA to conduct an inquiry or investigation of
any ``person'' to be appointed as a fiduciary to determine the person's
fitness to serve as a fiduciary. Defining the term ``person'' to
include State and local government and nonprofit social service
agencies would imply that VA must conduct the inquiry or investigation
required by section 5507 to determine such agency's fitness to serve as
a fiduciary. However, some provisions of section 5507, such as those
requiring VA to obtain a credit report and to request information
concerning criminal convictions, cannot be made applicable to agencies.
VA already appoints such agencies under current law if VA determines
that it is in a beneficiary's interest. However, VA does not consider
such agencies ``persons'' for purposes of completing the inquiry and
investigation requirements of section 5507.
VA also opposes the provision that would require VA to compile and
maintain a list of State or local and nonprofit agencies qualified to
serve as a fiduciary for beneficiaries because it would divert limited
resources away from the primary program mission. There are as many as
3,009 counties, 64 parishes, 16 boroughs, and 41 independent
municipalities in the United States. In addition, there are over 19,000
municipal governments and more than 30,000 incorporated cities in the
Nation. The resources needed to compile and maintain such a list would
exceed by far any benefit for VA beneficiaries in the fiduciary
program. VA currently appoints fiduciaries according to an order of
preference, which begins with the beneficiary's preference and
otherwise seeks to appoint family members, friends, or other
individuals who are willing to serve without a fee. Rarely does VA need
to appoint a State, local, or nonprofit agency as a fiduciary for a
beneficiary.
Section 1(d) of the bill would revise 38 U.S.C. Sec. 5507, the
statute governing qualification of fiduciaries. It would add to the
list of items required to form the basis of a fiduciary appointment
adequate evidence that the person protects the beneficiary's ``private
information.'' VA supports this provision because VA agrees that
information security is important and that a VA-appointed fiduciary
must safeguard such information. With respect to face-to-face
interviews of proposed fiduciaries, section 1(d) would strike the
phrase ``to the extent practicable'' from current statutory language
requiring such interviews and would require VA to conduct an interview
not later than 30 days after beginning the inquiry or investigation. VA
opposes requiring a face-to-face interview with every proposed
fiduciary because it does not account for the circumstances actually
encountered by VA in the administration of the program, would
needlessly delay some initial fiduciary appointments, and thus could
harm affected beneficiaries. In some cases, a face-to-face interview of
a proposed fiduciary is not practicable and should be waivable. For
example, a face-to-face interview would not be practicable for natural
parents of minor children or certain persons who already manage funds
for multiple beneficiaries. VA has not been able to discern a need for
a face-to-face interview to be conducted within 30 days after beginning
a fitness inquiry or investigation. Therefore, VA does not support this
provision.
Section 1(d) would require a background check of a proposed
fiduciary to determine whether the proposed fiduciary has been
convicted of any offense under Federal or State law, without regard to
the length of resulting imprisonment. VA supports this provision.
Section 1(d) would also require VA to determine whether the proposed
fiduciary will serve the beneficiary's best interest, including by
conducting a credit check and by checking records VA would be required
to maintain of persons who have previously served as fiduciaries and
had their fiduciary status revoked by VA. It would require VA to
conduct the criminal history and credit history background check at no
cost to the beneficiary and each time a person is proposed as a
fiduciary, regardless of whether he or she is serving or has served as
a fiduciary.
Section 1(d) of the bill would also remove the current statutory
authority permitting VA, in conducting an inquiry or investigation on
an expedited basis, to waive any inquiry or investigation requirement
with respect to certain classes of proposed fiduciaries and would add
to the list of proposed fiduciaries, the investigation of whom may be
conducted on an expedited basis, a person who is authorized under a
durable power of attorney to act on a beneficiary's behalf. VA opposes
removal of the waiver provision because it would needlessly delay
certain fiduciary appointments, such as appointments of legal guardians
and certain parents, for whom one or more of the inquiry or
investigation requirements are not needed. In the case of a
beneficiary's immediate family members seeking to provide fiduciary
services, the proposal would result in greater intrusion into family
matters with no real benefit for beneficiaries. VA does not oppose
permitting VA to expedite the inquiry or investigation regarding any
proposed fiduciary, including a person holding a beneficiary's durable
POA.
Section 1(d) would require VA, in requiring the furnishing of a
bond, to ensure that the bond is not paid using any beneficiary funds
and to consider the care a proposed fiduciary has taken to protect the
beneficiary's interests and the proposed fiduciary's capacity to meet
the financial requirements of a bond without sustaining hardship.
Section 1(d) would also require each RO to maintain a list of the name
and contact information for each fiduciary, the date of each
fiduciary's most recent VA background check and credit check, the date
any bond was paid, the name and contact information of each beneficiary
for whom the fiduciary acts, and the amount that the fiduciary controls
for each beneficiary.
VA strongly opposes the provisions that would require fiduciaries
to pay annual surety bond premiums. Requiring the fiduciary to pay the
annual premium would be a disincentive for both volunteer and paid
fiduciaries and would significantly impair VA's ability to find
qualified fiduciaries in some of its most difficult cases. Most
fiduciaries are family members or friends who may not have the funds
needed to meet the cost of the bond premium. With respect to paid
fiduciaries who agree to take some of VA's most difficult cases, the
cost of a bond premium might consume the entire nominal fee authorized
by Congress. It is standard practice in the guardianship industry to
allow for payment of surety bond premiums out of estate funds. If this
provision is enacted, VA anticipates a dramatic increase in the number
of fiduciaries who are also court appointed. Courts will allow the
deduction of the cost of the bond and a substantial fee, in many cases
between 5 and 15 percent of estate value, from the beneficiary's funds.
VA cannot support the inequitable treatment of, and significant harm
to, beneficiaries that would likely result from the enactment of this
provision.
Section 1(e) would mandate that VA require a fiduciary to file an
annual report or accounting and that VA transmit the report or
accounting to the beneficiary and any legal guardian of the
beneficiary. It would also require that a report or accounting include
for each beneficiary the amount of benefits that accrued during the
year, the amount spent, and the amount remaining and an accounting of
all sources of benefits or other income other than VA benefits that are
overseen by the fiduciary.
VA opposes these provisions because they would burden fiduciaries,
most of whom are volunteer family members or friends, but would not
significantly improve VA's oversight of fiduciaries. Under current
policy, which is based upon VA's experience in administering the
program, VA generally requires fiduciaries to submit an annual
accounting in cases in which: (1) the beneficiary's annual VA benefit
amount equals or exceeds the compensation payable to a single Veteran
with service-connected disability rated totally disabling; (2) the
beneficiary's accumulated VA funds under management by the fiduciary
equals $10,000 or more; (3) the fiduciary was appointed by a court; or
(4) the fiduciary receives a fee. These accountings are comprehensive
and must be supported by financial documentation that identifies all
transactions during the accounting period. VA audits more than 30,000
accountings each year.
VA currently pays benefits to more than 17,000 spouse fiduciaries,
many of whom are also caring for severely disabled or infirm Veterans.
Countless other beneficiaries receive only $90 each month and reside in
the protected environment of a Medicaid-approved nursing home. Many
other beneficiaries are cared for by family members who, due to the
beneficiaries' recurring needs, expend all available VA benefits each
month for the beneficiaries' care. The additional burden of documenting
income and expenditure annually for the majority of our beneficiaries
would be an undue hardship and would not result in any benefit to the
beneficiary or the program. VA does not otherwise oppose the
provisions, which restate current law or codify current VA policy
regarding the information that must be included in an accounting.
VA opposes the provision that would require VA to conduct annual,
random audits of paid fiduciaries. Under current policy, VA requires
all paid fiduciaries to submit annual accountings. VA audits every
accounting that it receives. This provision would add to VA's
administrative burden by also requiring a random, annual audit of each
paid fiduciary. VA already has authority to conduct any additional
oversight it deems necessary based upon a case-by-case determination.
Experience administering the program has not identified a need to
randomly audit paid fiduciaries.
VA opposes the provision which would require VA to ensure that the
bill's requirements do not interfere with the care provided to a
beneficiary by a VA fiduciary who is also the beneficiary's care-giver.
This provision is vague with regard to the definition of ``care'' and
other matters. It would require VA personnel to conduct additional
burdensome oversight to somehow determine whether fiduciary
requirements affect care. It is unclear how VA would implement this
provision.
As it is unclear how this bill would be implemented, VA cannot
estimate the cost associated with enactment of H.R. 894.
H.R. 1405
H.R. 1405 would require VA to provide, with notice of each decision
on a claim for benefits, a form that may be used to appeal the
decision. VA supports this bill as it would improve the timeliness and
quality of processing notices of disagreement (NODs), which initiate
the VA appellate process.
Currently, VA accepts as an NOD any ``written communication from a
claimant or his or her representative expressing dissatisfaction or
disagreement with an adjudicative determination by the agency of
original jurisdiction [(AOJ)] and a desire to contest the result.'' If
an AOJ receives a timely filed written communication expressing
disagreement, but cannot clearly identify that communication as
expressing an intent to appeal, or cannot identify which claims the
claimant wants to appeal, then the AOJ will contact the claimant orally
or in writing to request clarification of his or her intent. If the
claimant is contacted in writing, then he or she must respond to the
clarification request within the later of 60 days from the date of the
contact or the remainder of the one year period from the date of
mailing of the notice of the AOJ decision. This clarification process
can consume substantial time.
Providing claimants with a standardized appeal form would reduce
the time it takes an AOJ to recognize or clarify the nature of a
claimant's response to an AOJ decision. In addition, it would simplify
the VA appellate process for claimants. Also, an appeal form would
reduce errors in identifying NODs that can delay resolution of claims.
For example, in Fiscal Year 2011, the Board of Veterans' Appeals
(Board) remanded 1,554 issues to AOJs because the Board identified
timely filed NODs for which the AOJs had not issued a statement of the
case.
Providing claimants with a form on which to submit their initial
disagreement with an AOJ decision would clarify what action claimants
must take to initiate an appeal of an AOJ decision. This in turn would
improve VA's ability to identify NODs when they are received and would
eliminate the need to contact a claimant to clarify whether he or she
intended to initiate an appeal and, if so, of exactly which decisions.
This would help speed up the early steps of the appellate process.
VA estimates that enactment of H.R. 1405 would not result in
significant benefit or administrative costs.
This concludes my statement, Mr. Chairman. I would be happy to
entertain any questions you or the other Members of the Subcommittee
may have.
Statements For The Record
AMERICAN LEGION
Chairman Runyan, Ranking Member Titus and distinguished Members of
the Subcommittee, on behalf of Commander Koutz and the 2.4 million
members of The American Legion, we thank you and your colleagues for
the work you do in support of our service members and veterans as well
as their families. The hard work of this Subcommittee in creating
significant legislation has left a positive impact on our military and
veterans' community.
Nationwide, The American Legion has over 2,600 accredited service
officers to ensure veterans receive the benefits to which they are
entitled at no cost to those veterans. Not only do we advocate for the
2.4 million members in our organization but also the millions of
veterans who do not hold membership; in short, we live by the motto ``a
veteran is a veteran'' and is deserving of representation when seeking
VA benefits. We recognize the necessity to adequately compensate
veterans and veterans' families for disabilities incurred during
service to our nation.
As a grassroots organization, The American Legion draws upon the
strength of its membership to provide guidance on policies in the form
of resolutions passed in national assembly during annual national
convention or at meetings of the National Executive Committee. The will
of the membership of the Legion is expressed through these resolutions,
which support or oppose policy decisions on topics of concern, whether
for veterans, the children and youth of America, the strong national
defense or the principles of Americanism. The support and positions of
The American Legion on any legislation naturally derives from the
guidance of these resolutions and the founding documents of our
organization.
H.R. 569: Veterans' Compensation Cost-of-Living Adjustment Act of 2013
H.R. 570: American Heroes COLA Act
H.R. 569: To increase, effective as of December 1, 2013, the rates
of compensation for veterans with service-connected disabilities and
the rates of dependency and indemnity compensation for the survivors of
certain disabled veterans, and for other purposes.
H.R. 570: To amend title 38, United States Code, to provide for
annual cost-of-living adjustments to be made automatically by law each
year in the rates of disability compensation for veterans with service-
connected disabilities and the rates of dependency and indemnity
compensation for survivors of certain service-connected disabled
veterans.
The American Legion strongly supports a periodic cost-of-living
adjustment (COLA) for veterans reflective of increased expenses due to
inflation and other factors. However, there are many factors currently
being considered regarding the calculation of COLA that merit
discussion.
Within The American Legion's Code of Procedures, accredited
representatives are advised under no circumstances should they cause
harm to veterans' claims for benefits. Current proposals in the
President's proposed budget, as well as in amendments to other bills
that have been floated from time to time, would replace the current
Consumer Price Index (CPI) used to calculate increases to Social
Security COLA with a so-called Chained CPI (C-CPI). Through chaining VA
benefits to the new C-CPI and COLA for Social Security benefits, the
veteran community would indeed be harmed. On December 19, 2012, Dean
Stoline, Deputy Director, The American Legion Legislative Division,
stated that a chained CPI is misguided policy and ``would have
significant deleterious effect on the benefits of millions of
veterans''.
Senator Bernie Sanders (VT) has provided evidence that displays the
long term negative effect upon the veteran community should Congress
mandate a C-CPI approach to determining COLA increases. According to a
press release from Sen. Sanders' office, the proposal would cut VA
disability benefits for a 30-year-old veteran by more than $13,000 a
year by age 45, $1,800 a year by age 55, and $2,260 a year by age 65.
Senior citizens who retire by age 65 would see their Social Security
benefits reduced by about $650 a year by the time they reach 75, and
more than $1,000 a year when they turn 85. These cuts would certainly
place many veterans and their families' economic security in peril.
By resolution \1\ ``The American Legion support[s] legislation to
amend title 38, United States Code, section 1114, to provide a periodic
COLA increase and to increase the monthly rates of disability
compensation; and . . . oppose[s] any legislative effort to
automatically index such [COLA] adjustments to the [COLA] adjustment
for Social Security recipients, non-service connected disability
recipients and death pension beneficiaries.'' The opposition to direct
connection to the Social Security policies reflects the understanding
that veterans and specifically disabled veterans represent a unique
subsection of the American community, and their unique concerns should
receive individual consideration when determining the need for periodic
increases for cost of living.
---------------------------------------------------------------------------
\1\ Resolution No. 178: Department of Veterans Affairs (VA)
Disability Compensation, AUG 2012
---------------------------------------------------------------------------
We do not support either bill. In fact, we encourage Congress to
separate VA benefits from Social Security benefits altogether regarding
COLA adjustments. The long-term negative effects created through
permitting C-CPI for VA benefits could prove disastrous to millions of
veterans.
The American Legion supports an increased Cost-of-Living Adjustment
for veterans, but is unable to support these bills at this time until
they reflect assurances that veterans' needs will be adequately
reflected and not subject to whims of overzealous cost cutting
measures.
H.R. 602: Veterans 2nd Amendment Protection Act
H.R. 602: To amend title 38, United States Code, to clarify the
conditions under which certain persons may be treated as adjudicated
mentally incompetent for certain purposes.
It is both sad and ironic that the veterans' community, a community
in which each and every member swore to uphold the Constitution of the
United States to include the 2nd Amendment, requires advocacy to
maintain its constitutional right to bear arms. Unless deemed unfit to
possess weapons by a judicial authority with the full benefit of due
process, each veteran regardless of disability should maintain the
right to possess a firearm. Any constitutional right should engender
this same expectation of careful scrutiny to ensure no right is removed
without due process.
On December 2, 2012, NBC News published an article regarding
veteran hunting trips as a form of therapy for combat hardened veterans
\2\. Throughout the nation, numerous organizations organize hunting
trips for veterans. Even the Department of Veterans Affairs (VA)
acknowledges the positive effects of shooting firearms for some
veterans. Jose Llamas, community and public affairs officer for VA's
National Veterans Sports Program, stated that hunting is included in a
veteran's health-life plan. At various adaptive sports summits
throughout the nation, veterans can enjoy target shooting.
Additionally, a recent $25,000 grant was made to the Grand Junction,
Colorado, VA Medical Center, to purchase the necessary equipment for
veterans to hunt.
---------------------------------------------------------------------------
\2\ http://usnews.nbcnews.com/--news/2012/12/02/15575983-florida-
guide-uses-hunting-as-rustic-therapy-for-combat-veterans?lite.
---------------------------------------------------------------------------
Furthermore, there are concerns that the threat of being placed on
a list that might deny them of their 2nd Amendment rights could act as
a deterrent for veterans who might otherwise seek treatment. When the
positive effects of therapy for conditions such as Posttraumatic Stress
Disorder (PTSD) are so important, driving veterans away for fear of
repercussions such as confiscation of firearms could only exacerbate
existing stigmas.
During the 94th National Convention of The American Legion,
Resolution 68 was passed. According to the resolution, ``The American
Legion reaffirms its recognition that the Second Amendment to the
Constitution of the United States guarantees each law-abiding American
citizen the right to keep and bear arms; and, be it finally resolved,
that the membership of The American Legion urges our nation's lawmakers
to recognize, as part of their oaths of office, that the Second
Amendment guarantees law-abiding citizens the right to keep and bear
arms of their choice, as do the millions of American veterans who have
fought, and continue to fight, to preserve those rights, hereby advise
the Congress of the United States and the Executive Department to cease
and desist any and all efforts to restrict these right by any
legislation or order.''
The American Legion supports this bill.
H.R. 671: ``Ruth Moore Act of 2013''
H.R. 671: To amend title 28, United States Code, to improve the
disability compensation evaluation procedure of the Secretary of
Veterans Affairs for veterans with mental health conditions related to
military sexual trauma, and for other purposes.
The American Legion's accredited representatives located in VA
Regional Offices, state and county offices, and the Board of Veterans'
Appeals have acknowledged a unique situation exists for victims of
military sexual trauma (MST). MST is often an unreported crime, or even
in the best cases poorly documented. Even when MST is reported, it is
not uncommon for a lackluster investigation to occur and the
perpetrator of the crime to be brought to justice.
On March 26, 2013, the Institute of Medicine (IOM) released a
study: Returning Home from Iraq and Afghanistan: Assessment of
Readjustment Needs of Veterans, Service Members, and Their Families.
According to the study, ``[M]ilitary sexual trauma has been occurring
in high rates throughout the U.S. armed forces, including the Iraq and
Afghanistan theaters. Sexual harassment and assaults disproportionately
affect women; they have both mental and physical ramifications, and in
many cases these victims have a difficult time readjusting.'' It is
evident by the study that a staggering number of veterans reported
suffering MST; over 48,000 women and 43,000 men reported experiencing
MST.
H.R. 671 addresses the concerns raised repeatedly by The American
Legion regarding MST. In testimony provided by The American Legion
before this subcommittee on July 18, 2012, Lori Perkio, Assistant
Director, The American Legion Veterans Affairs and Rehabilitation
Division, pointed to changes regarding combat zones made by VA
regarding posttraumatic stress disorder in 2010 and asserted that equal
treatment should be applied to MST victims. Both combat zones and MST
related claims are similar in that both types of claims reflect
situations where there is a known and acknowledged lack of record
keeping. Regulations have allowed for extra latitude on behalf of
combat veterans to reflect the lack of record keeping, but the same
consideration is not extended to rape and assault survivors, though
their trauma is no less devastating.
The American Legion believes that VA should review ``military
personnel files in all MST claims and apply reduced criteria to MST-
related PTSD to match that of combat-related PTSD \3\.'' H.R. 671
adequately addresses this resolution by setting up similar criteria for
MST victims as those in effect for combat victims.
---------------------------------------------------------------------------
\3\ Resolution No. 295: Military Sexual Trauma (MST), AUG 2012.
---------------------------------------------------------------------------
The American Legion supports this bill.
H.R. 679: ``Honor America's Guard-Reserve Retirees Act''
H.R. 679: To amend title 38, United States Code to recognize the
service in the reserve components of certain persons by honoring them
with status as veterans under law.
This legislation would provide a purely honorific title of veteran
for those individuals who completed appropriate service in the National
Guard and Reserve components of the Armed Forces, but for whatever
reason do not have active duty service sufficient to bestow a title of
veteran subject to the conditions provided for under the normal titles
of the United States Code which assign veteran status for the purposes
of benefits. This bill would not provide any benefit beyond the title
of `veteran' and is stated to be intended purely as a point of honor.
The American Legion has no position on this legislation.
H.R. 733: ``Access to Veterans Benefit Improvement Act''
H.R. 733: To amend title 38, United States Code, to provide certain
employees of Members of Congress and certain employees of State or
local governmental agencies with access to case-tracking information of
the Department of Veterans Affairs.
This legislation would entitle governmental employees in Congress
as well as state and local governments to access case tracking
information through the VA claims process.
The American Legion has no position on this legislation.
H.R. 894: Improvement of Fiduciaries for Veterans
H.R. 894: To amend title 38, United States Code, to improve the
supervision of fiduciaries of veterans under the laws administered by
the Secretary of Veterans Affairs.
Attention to the VA Fiduciary program came before congressional
subcommittees in 2010 and again in 2012. Veterans who have been deemed
as mentally incompetent by VA standards deserve every effort to protect
them from any possible injustice.
Ensuring background checks are completed on all fiduciaries as well
as providing the veterans their choice of family member before any
other fiduciary is appointed should never be optional and must be
completed in an expedited manner. Requiring the VA to create a database
of all appointed fiduciaries would reduce the time to appoint needed
fiduciaries and not over burden those already being utilized with more
beneficiaries than is appropriate. The beneficiary needs to be able to
utilize their VA monetary benefits beyond the payment of daily living
expenses. When large amounts of monetary `` savings'' are created by
the fiduciary that were in some cases turned back over to the VA after
the death of the beneficiary needs to be provided to the surviving
family members of the beneficiary as it is with all other VA monetary
benefits. Veterans who have been deemed incompetent by VA deserve the
same respect and quality of life as those who have not been deemed
incompetent.
The VA created fiduciary ``hubs'' to streamline and better utilize
their resources. The emphasis now needs to be focused on serving and
protecting the same veterans who selflessly served their country. The
myriad provisions of this bill serve to strengthen protections for
veterans and their families, and address many of the concerns which
have been raised by this committee and concerned veterans groups over
the course of the past several years through hearings addressing the
topic. As those veterans deemed to need a fiduciary are often among the
most vulnerable veterans, special care must be taken to ensure any
legislation on their behalf is fully protective of the veteran first.
The American Legion is willing to work with the committee to ensure the
technical language of this bill is consistent with the veteran first
protective mindset.
The American Legion supports this legislation.
H.R. 1405
H.R. 1405: To amend title 38, United States Code, to require the
Secretary of Veterans Affairs to include an appeals form in any notice
of decision issued for the denial of a benefit sought.
The American Legion understands that H.R. 1405 will require the
Secretary of VA to provide an appeals form with any notice of decision
denying the veteran benefits. The bill fails to consider if the same
letter would be mailed to a veteran where a full granting of the
benefit does not occur. A veteran could be granted a 30 percent
disability rating; however, after review of the veteran's case, it
could be argued that a 70 percent disability rating is warranted.
Through VA's failure to include this letter, the veteran may not
realize the existence of appellate review for the claim.
The American Legion believes in protecting the appellate rights of
veterans, and ensuring the process gives clear and understandable
information to help them make proper decisions about when they should
appeal the decisions rendered regarding their claims. Although The
American Legion does not currently have a resolution to address this
issue, we do welcome the opportunity to work with Congress regarding
this bill to further investigate the process and ensure the appellate
rights of veterans are being served in the most beneficial manner
possible. We encourage the Committee to consider all veterans'
appellate rights with regard to this bill.
The American Legion has no position on this legislation.
For any questions regarding this testimony please contact Ian de
Planque, Deputy Legislative Director of The American Legion at (202)
863-2700 or [email protected].
IRAQ AND AFGHANISTAN VETERANS OF AMERICA
----------------------------------------------------------------------------------------------------------------
Bill # Bill Name Sponsor Position
----------------------------------------------------------------------------------------------------------------
H.R. 569 Veterans' Compensation Cost of Living adjustmenRunyan Support
Act of 2013
----------------------------------------------------------------------------------------------------------------
H.R 570 American Heroes COLA Act Runyan Support
----------------------------------------------------------------------------------------------------------------
H.R. 602 Veterans 2nd Amendment Protection Act Miller Support
----------------------------------------------------------------------------------------------------------------
H.R. 671 Ruth Moore Act of 2013 Pingree Support
----------------------------------------------------------------------------------------------------------------
H.R. 679 Honor America's Guard-Reserve Retirees Act Walz Support
----------------------------------------------------------------------------------------------------------------
H.R. 733 Access to Veterans Benefits Improvement Act Runyan Support
----------------------------------------------------------------------------------------------------------------
H.R. 894 ..to improve the supervision of fiduciaries of Johnson Support
veterans under the laws administered by the
Secretary of Veterans Affairs
----------------------------------------------------------------------------------------------------------------
H.R. 1405 . . . to require the Secretary of Veterans Titus Support
Affairs to include an appeals form in any notice
of decision issued for the denial of a benefit
sought.
----------------------------------------------------------------------------------------------------------------
Chairman Runyan, Ranking Member Titus and distinguished members of
the subcommittee, on behalf of Iraq and Afghanistan Veterans of America
(IAVA) I would like to extend our gratitude for being given the
opportunity to share with you our views and recommendations regarding
H.R. 569, H.R. 570, H.R. 602, H.R. 671, H.R. 679, H.R. 733, H.R. 894
and H.R. 1405.
IAVA is the nation's first and largest nonprofit, nonpartisan
organization for veterans of the wars in Iraq and Afghanistan and their
supporters. Founded in 2004, our mission is critically important but
simple - to improve the lives of Iraq and Afghanistan veterans and
their families. With a steadily growing base of over 200,000 members
and supporters, we strive to help create a society that honors and
supports veterans of all generations.
H.R. 569
IAVA is pleased to offer our support for H.R. 569, the ``Veterans'
Compensation Cost of Living Adjustment Act of 2013.'' This bill will
give qualified disabled veterans and their dependents annual Cost of
Living Adjustments (COLA) starting in December 2013. Tough economic
times have placed a heavy burden on our wounded veterans and the
limited resources they are afforded. As the cost of living increases,
wounded veterans are forced to make difficult financial decisions with
resources that may be insufficient to address economic realities
particular to their needs. In order to receive an increase in benefits,
veterans must rely on legislation authorizing an increase in annual
COLA. HR 569 increases the rates for qualified disabled veterans and
their dependents starting in December 2013. This legislation will help
protect the financial stability of our disabled veterans and their
families. H.R. 569 helps to ensure that the deserved benefits earned by
our veterans remain protected.
H.R. 570
IAVA supports H.R. 570, the ``American Heroes COLA Act,'' which
will make veterans' Cost of Living Adjustments (COLA) permanent,
similar to Social Security benefits. Cost of Living Adjustments in
veterans' benefits, like Social Security benefits, are based on the
Consumer Price Index-Urban Wage Earners and Clerical Workers (CPIW).
However, unlike Social Security benefit increases, veterans' benefit
increases rely on Congress to pass legislation authorizing an increase
each year. Financial planning by our veterans requires them to take
into account COLA rates that may or may not increase. H.R. 570
authorizes the Secretary of Veterans Affairs (VA) to automatically
increase COLA benefits annually based upon the CPIW rate. This
legislation will help protect the financial stability of our disabled
veterans and their families, as well as eliminating an extra redundant
step in the annual COLA process.
H.R.602
IAVA supports H.R. 602, the ``Veterans 2nd Amendment Protection
Act.'' Inaccurate information on mental health and gun ownership rights
feeds the false rhetoric and misinformation of veterans and mental
health, thus adding to the stigmas attached to seeking mental health
care. IAVA believes this bill will help reduce the stigma surrounding
PTSD by creating a fair appeals process for veterans who may have been
wrongly or automatically categorized as unfit to own or purchase
firearms. IAVA strongly supports this bill.
H.R. 671
IAVA supports H.R. 671, the ``Ruth Moore Act of 2013.'' This bill
will improve the VA claims disability process for victims of military
sexual assault who suffer from Post Traumatic Stress Disorder (PTSD)
and other mental health conditions. Current VBA policy requires a
diagnosis of PTSD, medical link to diagnosis, and evidence verifying
the occurrence of sexual assault in order to receive a service
connected disability rating for Military Sexual Trauma (MST).
Furthermore, vast inconsistencies remain among VA offices when
considering secondary evidence. Under H.R. 671 a veteran will be
granted service connection for PTSD if the veteran states he or she was
sexually assaulted in the military, is diagnosed with PTSD or related
mental health condition and has a medical nexus between the two. This
will give MST victims who suffer from PTSD the same standard of proof
that other veterans with PTSD have. IAVA supports this important piece
of legislation.
H.R. 679
IAVA supports H.R. 679, the ``Honor America's Guard-Reserve
Retirees Act.'' Any man or women who chooses to enlist and serve their
country deserves, at minimum, to be called a veteran. If a veteran
devotes years of their life to being ready to serve at a moment's
notice is admirable and selfless. These men and women served honorably
and should not be penalized simply because their country did not call
upon them to actively serve.
H.R. 733
IAVA supports H.R. 733, the ``Access to Veterans Benefits
Improvement Act.'' This bill is another step in the right direction to
ending the VA claims backlog. This bill provides certain employees of
members of Congress and certain employees of state or local
governmental agencies access to VA case-tracking information, while
still protecting veteran's privacy. This bill will help provide
stricter oversight on the actions of VA and the steps that they are
taking to eliminate the claims backlog.
H.R. 894
IAVA supports H.R. 894, to amend title 38, United States Code, to
improve the supervision of fiduciaries of veterans under the laws
administered by the Secretary of Veterans Affairs. A fiduciary is a
person appointed by VA to determine what is in the best interest of a
veteran. However, in recent years there have been numerous problems
identified within this program. The VSO community, including IAVA, has
voiced concerns that many fiduciaries have moved away from the original
intent of the program (protecting the best financial interest of
disabled veterans) to more of an investment banking style and not
veteran-centric at all. This is not, nor will it ever be in the best
interest of a veteran. We believe this legislation is a step in the
right direction in addressing many current problems. This bill will add
transparency, redesign the fiduciary commission model and help protect
the best interest of the veterans using this program. Again, while IAVA
supports this bill we caution that there is still much to be done in
correcting the fiduciary program and sincerely hope this committee will
continue to correct these issues through additional pieces of good
legislation, like HR 894.
H.R. 894
Finally, IAVA strongly supports H.R. 1405, to amend title 38,
United States Code, to require the Secretary of Veterans Affairs to
include an appeals form in any notice of decision issued for the denial
of a benefit sought. Currently, when veterans receive a rating decision
and they wish to appeal it, they must request an appeals form from the
VA and then wait for the VA to send them the form. This unnecessary and
burdensome process typically takes 60 days. HR 1405 is expected to
reduce the need for the VA to mail more than 100,000 unnecessary
letters annually to veterans appealing their decision and will save the
VA approximately 50,000 man hours. The VA is working to reduce the
disability claims backlog, and this legislation provides an opportunity
for Congress to assist. By passing this bill, Congress will instantly
reduce the appeals process for veterans by 60 days. A similar provision
was passed with bipartisan support by the House Veterans Affairs
Subcommittee on Disability Assistance and Memorial Affairs during the
112th Congress.
We again appreciate the opportunity to offer our views on these
important pieces of legislation, and we look forward to continuing to
work with each of you, your staff, and this subcommittee to improve the
lives of veterans and their families. Thank you for your time and
attention.
NATIONAL ORGANIZATION OF VETERANS' ADVOCATES
The National Organization of Veterans' Advocates, Inc. (NOVA)
thanks Committee Chairman Runyan and Ranking Member Titus for the
opportunity to testify on H.R. 671, to amend title 38, United States
Code, to improve the disability compensation evaluation procedure of
the Secretary of Veterans Affairs for veterans with mental health
conditions related to military sexual trauma (MST), and for other
purposes. NOVA is honored to share our views on H.R. 671, cited as the
Ruth Moore Act of 2013, for this hearing.
NOVA is a not for profit 501(c)(6) educational membership
organization incorporated in the District of Columbia in 1993. NOVA
represents nearly 500 attorneys and agents assisting tens of thousands
of our nation's military Veterans, their widows, and their families
obtain benefits from VA. NOVA members represent Veterans before all
levels of VA's disability claim process. This includes the Veterans
Benefits Administration (VBA), the Board of Veterans' Appeals (BVA or
Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court
or CAVC), and the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit). In 2000, the CAVC recognized NOVA's work on behalf
of Veterans when the CAVC awarded the Hart T. Mankin Distinguished
Service Award.
1.Necessity of the legislation
Post-traumatic stress disorder (PTSD) cases have posed significant
problems for the Department of Veterans Affairs (VA) because this
disability, by its nature, often has a delayed onset. Consequently, the
precipitating events are often unrecorded in a service member's medical
records or in-service department records. This is particularly true for
incidents of sexual assault while on active duty. In 2011, the Pentagon
estimated that about 19,000 male and female service members were
sexually assaulted, yet less than 14 percent of these crimes were
reported.
As with any assault case, the victims of in-service personal
assaults are afraid to report the crime. This fear is especially likely
when the assailant is a superior: the person to whom the victim is
instructed to report in these situations. Reporting an assault while on
active duty, however, is problematic for many reasons, even when the
assailant is not the victim's superior. The nature of military service
discourages reporting both implicitly as well as explicitly. Even when
the service member does make a report of the assault, these reports are
rarely documented or associated with the veteran's service records.
The number of veterans who have experienced an in-service personal
assault is high. Among the veterans who use VA health care, over 20
percent of female veterans report being sexually assaulted while in
service. See http://www.ptsd.va.gov/public/pages/how-common-is-
ptsd.asp. Additionally, over 50 percent of female veterans and over 35
percent of male veterans report experiencing sexual harassment in the
military. Id.
Effectiveness of Current Regulation
The current PTSD regulation, as it pertains to in-service personal
assault cases, is not effective. 38 C.F.R. 3.303(f) (5) purports to
reduce the burden for these veterans to prove their claims. In
practice, this has not happened. From 2008 to 2010, VA approved over 50
percent of PTSD claims related to combat, but approved barely 35
percent of PTSD claims related to in-service personal assault.
Ironically, VA concluded that it had made it too difficult for combat
veterans to prove that their PTSD was related to service and, as a
result, reduced the burden on them to show that their PTSD should be
service connected. Unfortunately, VA has not attempted to help in-
service personal assault victims in a similar manner, even though the
approvals for in-service personal assault are significantly lower than
those for combat veterans.
Recently, two significant changes have occurred: first, the
acceptance of a resulting psychiatric disability from trauma; second,
the adoption of VA regulations which impose an often insurmountable
burden on the victims of sexual assault. The taboo and misgivings that
accompanied PTSD and other mental disabilities that result from trauma
have disappeared. Turning to the burden created by VA regulation, the
proposed amendment to 38 U.S.C. Sec. 1154 removes that impediment.
Victims of sexual assault should not have the burden of corroborating
their in-service sexual assaults. Proving that these events occurred is
not merely painful, it is often impossible. The proposed amendment
correctly makes the determination of entitlement to service-connected
compensation for the resulting disability from the in-service trauma a
medical question, not a factual one. This legislation further makes the
appropriate public policy determination that victims of sexual assault
should be entitled to compensation when a competent mental health
professional confirms the existence of a current disability from PTSD.
The legislation also confirms the relationship of that disability to
the reported in-service sexual assault. Importantly, this legislation
relieves the victims of sexual assault from being victimized further by
an adjudication process which implicitly questions the veracity of the
reported in-service assault.
2.Alleviating the VA's backlog
Processing in-service personal assault claims is a slow and time-
consuming process. These claims require VA to make extra efforts to
contact the veteran and fulfill the VA's duty to assist. Before one of
these claims can be decided, VA has to contact the veteran multiple
times to make sure that the veteran understands the special rules that
apply to these claims and the different types of evidence that the
veteran can supply. Furthermore, the adjudicator must request and
attempt to obtain not just the veteran's service medical records, but
also the veteran's full service record jacket. This can require
multiple requests to the National Personnel Records Center. Still, 65
percent of these claims are denied.
Ruth Moore's case is the quintessence of how these claims drag on
and slow down the system. Moore had to fight VA for 23 years over her
benefits -23 years of claims that did not go anywhere. All the while,
she was suffering from depression and a sexually transmitted disease
that she contracted from her attacker. Moore even had the benefit of
the relaxed requirements of 38 C.F.R. 3.304(f) (5), yet it was not
until 2009 that VA finally awarded her claim.
With the proposed legislation, these cases would be streamlined.
The fulcrum would shift from wasting time and effort to navigate a
paper chase to obtaining a medical opinion to determine whether the
veteran's disabilities are related to military sexual trauma (MST). At
a time when the VA's resources are scarce, this legislation would
alleviate some of the backlog.
Conclusion
The vast majority of sexual assaults in the military are not
reported, and even those that are reported are often not prosecuted. As
a result, many survivors of MST have found it hard to prove that an
assault--the stressor--occurred. Furthermore, current VA policy allows
so-called ``secondary markers'' to be considered as evidence of an
assault, although VA has been very inconsistent in applying that
policy. Secondary markers can include evidence from rape kits,
statements from family members citing a change in behavior since
military service, and drug and alcohol abuse. In 2010, VA policy for
combat veterans applying for disability payments was changed in a
similar fashion, allowing lay testimony as evidence that a trauma such
as exposure to a roadside bomb or mortar attack had occurred.
H.R. 671 would allow as sufficient proof of service-connection a
diagnosis of a mental health condition by a mental health professional
together with satisfactory lay or other evidence of MST and an opinion
by the mental health professional that the covered mental health
condition and the MST are indeed related. By allowing the veteran's lay
testimony alone to establish the occurrence of the claimed MST, this
Act brings affected veterans one step closer to receiving the benefits
they deserve for a covered mental health condition incurred or
aggravated by military sexual assault. By further resolving every
reasonable doubt in favor of the Veteran, H.R. 671 effectively serves
to eliminate further victimization of those who have already suffered
enough.
As always, NOVA stands ready to assist the Committee or VA in
whatever way possible to further eliminate the systemic issues that
negatively affect the lives of our Veterans and their families.
We thank you for this opportunity to provide our testimony.
WOUNDED WARRIOR PROJECT
Chairman Runyon, Ranking Member Titus, and Members of the
Subcommittee:
Wounded Warrior Project (WWP) welcomes the opportunity to share
views on two of the bills before the Subcommittee today, H.R. 894, the
Veterans Fiduciary Reform Act of 2013, and H.R. 602, the Ruth Moore Act
of 2013. Each raises issues of concern that we have addressed in our
Policy Agenda this year.
Caregiver-Fiduciaries: H.R. 894
WWP works closely with family members of severely wounded warriors
who are both full-time caregivers and fiduciaries for those warriors.
Almost three years ago, recognizing the sacrifices these family members
have made to care for their loved ones as well as the emotional and
financial toll associated with sustained caregiving, Congress
established the Comprehensive Caregiver-Assistance Program in Public
Law 111-163 to provide them needed supports. The Veterans Benefits
Administration (VBA), however, fails--in administering the fiduciary
program--to recognize the extensive and regularly-ongoing oversight the
Veterans Health Administration (VHA) mounts in determining initial and
continuing eligibility for caregiver-assistance services. As a result,
while the Caregiver-Assistance law was aimed at lightening the family
caregiver's burden, the additional, ongoing VBA scrutiny makes the
caregiver-fiduciary's situation even more stressful.
For example, WWP has seen all too clearly that VBA's intensely
detailed reporting requirements can be overwhelming to an already
emotionally drained family member who is shouldering a young veteran's
total-care needs and yet is left to feel that VA deems her suspect and
distrusted. As one mother described it, ``we are probed yearly by a
forensic accounting that seemingly investigates for `murderous'
infractions,'' even requiring fiduciaries to ``line-item Walmart
receipts.''
As an organization dedicated to the well-being of wounded warriors,
we appreciate the importance of assuring responsible stewardship of
veterans' benefits and the protection of vulnerable beneficiaries and
welcome the focus in H.R. 894 on adding safeguards to strengthen the
program. But it is important to appreciate the unique circumstance of
family members who have given up careers and depleted savings to care
for their loved ones. These individuals are not unknown to VA. In fact,
to qualify and win formal approval for support under the Caregiver-
Assistance program, the family member of a seriously wounded warrior
must undergo VA review, training, home-inspection, and a determination
that the proposed arrangement is in the veteran's best interest. The
caregiver must also undergo regular quarterly home-inspections and
monitoring of the veteran's well-being to continue to receive VA
assistance. Any ``red flags'' that might arise in the course of these
home-inspections can result in revocation of approved caregiver-status.
In short, Veterans Health Administration staff assist and work closely
with family caregivers - who in many instances are also fiduciaries and
who have not only been screened before qualifying for the program, but
whose care of the veteran is closely monitored. Surely that process and
ongoing oversight provide ample evidence that these individuals are
trustworthy, and do not pose a risk of misusing the veteran's benefits.
WWP applauds the effort in H.R. 894 to tighten the fiduciary
program, and we are not proposing that caregiver-fiduciaries have no
accountability for management of the beneficiary's funds. But we do see
a need to make provision in law for more balanced accountability and
far less intrusive oversight under circumstances where caregiver-
fiduciaries have demonstrated that they do not pose significant risk
and have earned VA's trust. Dedicated caregiving, as evidenced through
unblemished participation in VA's comprehensive caregiver assistance
program, should be recognized as establishing that trust.
In that regard, we appreciate that H.R. 894 includes language
relating to caregiver-fiduciaries. \1\ Unfortunately, that language--
directing the Secretary to ensure that care provided by a fiduciary is
not worsened by the fiduciary complying with bill's reporting
requirements--falls short of resolving the underlying problem. First,
the provision relates only to reporting, and not audits and other
oversight. But even at that, these self-sacrificing loved ones will not
allow the veteran's care to diminish under any circumstances; as such a
``do-no-harm-to-care'' provision fails to provide real protection. In
our view, where VHA has already screened and approved a family member
as a caregiver, and has carried out home visits that demonstrate that
care is being well maintained, a level of trustworthiness has surely
been established. Under those circumstances, that - at a minimum -
should warrant much less detailed and more ``user-friendly'' reporting,
and more balanced, much less intrusive oversight. Unfortunately, the
bill does not yet achieve that. At the same time, its reporting
requirements are actually more demanding than under current law -
requiring annual reporting in place of the discretion afforded under
existing law - and expanding the scope of such reporting to include an
accounting of benefits and income from sources other than VA.
Consistent with the bill's recognition that caregiver-fiduciaries merit
special consideration, we ask that the Subcommittee refine the language
to more effectively accommodate family caregivers. We would be happy to
work with the Subcommittee to develop language to address these
concerns.
---------------------------------------------------------------------------
\1\ As amended, section 5509(f) of title 38, U.S. Code would
provide that ``In prescribing regulations to carry out this section
[relating to reporting requirements], the Secretary, in consultation
with the Under Secretary for Benefits and the Under Secretary for
Health, shall ensure that the care provided by a fiduciary . . . [who
also provides care to the beneficiary pursuant to this title (including
such care provided under section 1720G of this title] is not diminished
or otherwise worsened by the fiduciary complying with this section.''
---------------------------------------------------------------------------
H.R. 671
H.R. 671, the Ruth Moore Act, highlights another important issue,
military sexual assaults. As the Department of Defense has stated
unequivocably, military sexual assault is a crime that may forever
change the live of its victims. \2\ Yet it is also a significantly
underreported crime. \3\
---------------------------------------------------------------------------
\2\ Department of Defense Annual Report on Sexual Assault in the
Military: Fiscal Year 2011 (April 2012), 1.
\3\ Id., 7.
---------------------------------------------------------------------------
Victims of military sexual trauma (MST) often not only do not
readily disclose these traumatic events, but delay seeking treatment
for conditions relating to that experience. \4\ Yet in-service sexual
assaults have long-term health implications, including post-traumatic
stress disorder, increased suicide risk, major depression and alcohol
or drug abuse. \5\ A comprehensive review of individuals seeking VA
care found that those who experienced MST were three times more likely
to receive a mental health diagnosis of some type, almost nine times
more likely to be diagnosed with PTSD, and twice as likely to be
diagnosed with a substance abuse issue. \6\ Researchers report that the
effects of sexual assault on health are similar to those for combat.
\7\
---------------------------------------------------------------------------
\4\ Rachel Kimerling, et al., ``Military-Related Sexual Trauma
Among Veterans Health Administration Patients Returning From
Afghanistan and Iraq,'' Am J Public Health, 100(8), (August 2010),
1409-1412.
\5\ M. Murdoch, et al., ``Women at War,'' Journal of General
Internal Medicine, vol. 21, Issue S3 (March 2006) accessed at http://
www.ncbi.nlm.nih.gov/pmc/articles/PMC1513175/.
\6\ Rachel Kimerling, Kristian Gima, Mark Smith, et al. ``The
Veterans Administration and Military Sexual Trauma,'' American Journal
of Public Health 97, no. 12 (2007) 2163.
\7\ Id.
---------------------------------------------------------------------------
VA reports that some 1 in 5 women and 1 in 100 men seen in its
medical system responded ``yes'' when screened for military sexual
trauma (MST). \8\ Though rates of MST are higher among women, there are
almost as many men seen in VA that have experienced MST as there are
women. \9\ While researchers cite the importance of screening for
military sexual trauma and associated referral for mental health care,
many victims do not seek VA care. Indeed researchers have noted
frequent lack of knowledge on the part of women veterans regarding
eligibility for and access to VA care, with many mistakenly believing
eligibility is linked to establishing service-connection for a
condition. \10\ Compounding this misperception is the difficulty
individuals experience in attempting to establish service-connection
for mental health conditions resulting from in-service sexual trauma.
---------------------------------------------------------------------------
\8\ Department of Veterans Affairs National Center for PTSD,
``Military Sexual Trauma'' fact sheet, accessed at http://
www.ptsd.va.gov/public/pages/military-sexual-trauma-general.asp.
\9\ Id.
\10\ See Donna Washington, et al., ``Women Veterans' Perceptions
and Decision-Making about Veterans Affairs Health Care,'' Military
Medicine 172, no. 8 (2007): 813-815.
---------------------------------------------------------------------------
VA's regulation governing service-connection for PTSD does reflect
an attempt to address some of the difficulties veterans face in light
of the general requirement that there be ``credible supporting evidence
that the claimed stressor occurred.'' \11\ The regulation specifies
that, in the case of a claim based on in-service personal assault,
evidence from sources other than the veteran's service records may
corroborate the veteran's account, and it provides examples of such
evidence, to include evidence of behavior changes following the claimed
assault.
---------------------------------------------------------------------------
\11\ 38 C.F.R. sec. 3.304(f)
---------------------------------------------------------------------------
But with the overwhelming percentage of military assault-incidents
going unreported, the unique circumstances of the military experience
heighten the likelihood of such an incident going undetected, and
subsequently eluding efforts to provide corroborating evidence.
Military training and culture foster a spirit of comradeship, teamwork,
and loyalty that is critical to success in battle. A sexual assault is
a profound violation of those principles. In the experience of many MST
victims, being sexually assaulted by a fellow servicemember creates
intense feelings of betrayal, confusion and shame. Military culture
strongly values servicemembers' keeping their pain and distress to
themselves. As described in one journal report, ``unit cohesion may
create environments where victims are strongly encouraged to keep
silent about their experiences, have their reports ignored, or are
blamed by others for the sexual assault.'' \12\ Given all these
circumstances, it is very common for victims to experience such
profound fear or shame regarding a military sexual assault that they
remain silent and cover up or hide the attack for years. As one report
noted, despite the pervasiveness of military sexual trauma, many
clinicians fail to recognize as many as 95% of cases among veterans and
active duty personnel. \13\
---------------------------------------------------------------------------
\12\ Kimerling R, Gima K, Smith M, Street A, Frayne S; The Veterans
Health Administration and Military Sexual Trauma, American Journal of
Public Health, vol. 97, no. 12 (December 2007), 2160.
\13\ Sharon Valente and Callie Wight, ``Military Sexual Trauma:
Violence and Sexual Abuse,'' Military Medicine, vol. 172, no. 3 (March
2007), pp. 259-265.
---------------------------------------------------------------------------
For veterans who file claims for service connection for PTSD based
on MST, \14\ the challenges both of providing or identifying evidence
to support the claim and of meeting the inherently subjective
requirement that that evidence be deemed ``credible'' can be
monumental. WWP warriors and benefits' staff tell us that most victims
of MST have no hard evidence on which to rely. The VA's regulation
invites consideration of corroborative evidence of behavioral changes
in service, but ``markers'' of such changes may be subtle or
nonexistent. Moreover, it has been observed that many adjudicators
handling these cases look for obvious, blatant, concrete evidence that
is more likely to be in the claims file, rather than subtle, nuanced
evidence. \15\ As other commentators have observed, even cases with
strong corroborating evidence may still be denied (citing YR v. West,
11 Vet. App. 393 (1998), where evidence included detailed testimony
from the victim's sister reporting observable physical injuries just
two days after a reported in-service assault). \16\
---------------------------------------------------------------------------
\14\ In WWP's experience, some warriors are unwilling to relive the
trauma and simply elect not to initiate claims of service connection
for PTSD based on sexual trauma.
\15\ Jennifer C. Schingle, ``A Disparate Impact on Female Veterans:
The Unintended Consequences of Veterans Affairs Regulations Governing
the Burdens of Proof for Post-traumatic Stress Disorder Due to Combat
and Military Sexual Trauma,'' William & Mary Journal of Women and the
Law, vol. 16: 155 (2009), 170.
\16\ Id.,172.
---------------------------------------------------------------------------
WWP believes that the uniquely troubling circumstances associated
with MST, the health risks it holds, and the heavy burden on the victim
of corroborating a widely-unreported traumatic experience, merits
easing that evidentiary burden. H.R. 671 sets the right evidentiary
standard, in our view, in providing that the veteran's lay statement
may establish the occurrence of the claimed military sexual trauma,
absent clear, convincing evidence to the contrary and if consistent
with the circumstances of the veteran's service. (Acceptance of the lay
statement as establishing in-service trauma is, of course, only one
element in establishing service-connection for PTSD.)
As commentators have aptly noted, VA has the authority to ease the
evidentiary burden of establishing service-connection for PTSD, \17\
and has exercised that authority as recently as 2010. In that most
recent rulemaking, VA established a framework under which the
evidentiary requirement for corroboration of a stressor would be
eliminated in claims for PTSD due to fear of hostile military activity,
\18\ just as in claims involving a combat stressor. \19\ Despite marked
differences, the trauma associated with combat, exposure to hostile
military activity, and military sexual assault are all strong
predictors of PTSD. And each presents great difficulties for the
veteran to provide corroborative evidence of that trauma.
---------------------------------------------------------------------------
\17\ See Schingle, ibid; Moomey, ibid; Brianne Ogilvie and Emily
Tamlyn, ``Coming Full Circle: How VBA Can Complement Recent Changes in
DoD and VHA Policy Regarding Military Sexual Trauma,'' Veterans Law
Review, vol 4 (2012).
\18\ Stressor Determinations for Posttraumatic Stress Disorder, 75
Fed. Reg. 39,843, 39, 846 (July 13, 2010). With that rulemaking, VA
provided that where a VA psychiatrist or psychologist confirms (1) that
a claimed stressor related to fear of hostile military or terrorist
activity is adequate to support a PTSD diagnosis, and (2) the veteran's
symptoms are related to that stressor, the claimant's lay testimony
alone may establish the stressor's occurrence (provided the stressor is
consistent with the places, types, and circumstances of the veteran's
service).
\19\ 38 C.F.R. sec. 3.304(f)(5).
---------------------------------------------------------------------------
Since VA has the requisite authority to remedy this problem
administratively and there are compelling policy reasons, in our view,
to exercise that authority, we urge the Committee to press the
Department to do so. That course would be preferable, in our view, to
the Committee's having to find savings to offset any direct spending
deemed to be associated with enactment of H.R. 671. Ultimately, such
regulatory reform would be an important step toward healing a deep
wound many have suffered.
Thank you for your consideration of our views.
AMERICAN CIVIL LIBERTIES UNION
On behalf of the American Civil Liberties Union (ACLU) and its more
than a half million members, countless additional supporters and
activists, and 53 affiliates nationwide, we commend the House Veterans
Affairs DAMA Subcommittee for its continued commitment to addressing
the problems survivors of military sexual trauma face when applying for
disability benefits from the Department of Veterans Affairs (VA).
For decades, the ACLU has worked not only to end discriminatory
treatment within our military, \1\ but also to prevent and respond to
gender-based violence and harassment in the workplace and to ensure
women's full equality. The ACLU also works to hold governments,
employers and other institutional actors accountable so as to ensure
that women and men can lead lives free from violence.
---------------------------------------------------------------------------
\1\ Most recently, In November 2012, the ACLU initiated a lawsuit,
on behalf of the Service Women Action Network and other plaintiffs,
against the Department of Defense challenging the ground combat
exclusion. Over the years, we have also successfully challenged
military recruitment standards and military academy admissions policies
that discriminated against women; fought for servicewomen to receive
the same military benefits as their male counterparts; and defended the
rights of pregnant servicewomen; and advocated for servicewomen's
access to reproductive health care.
---------------------------------------------------------------------------
Over the last several years, Congress, the Department of Defense
and the VA have grappled with the scourge of sexual harassment, sexual
assault and rape within the military. Although a variety of proposals
have been implemented and some progress has been made to prevent and
respond to sexual assault, sexual harassment and rape in the military,
the problem is deeply-rooted and persists. More than 3,100 reports of
sexual assault were made in FY 2011, \2\ but we know that the incidence
of sexual assault is significantly underreported. The Pentagon
estimated that more than 19,000 incidents of sexual assault occurred in
2010 alone, \3\ and that one in three women serving in the military has
been sexually assaulted. \4\ While such statistics alone are alarming,
the problem of military sexual assault is compounded by the fact that
service members who leave the service find that the trauma they
experienced as a result of sexual assault is not adequately recognized
by the VA.
---------------------------------------------------------------------------
\2\ DEPARTMENT OF DEFENSE, ANNUAL REPORT ON SEXUAL ASSAULT IN THE
MILITARY: FISCAL YEAR 2011, 33 (2012), available at http://
www.sapr.mil/media/pdf/reports/Department--of--Defense--Fiscal--Year--
2011--Annual--Report--on--Sexual--Assault--in--the--Military.pdf.
\3\ DEPARTMENT OF DEFENSE, ANNUAL REPORT ON SEXUAL ASSAULT IN THE
MILITARY: FISCAL YEAR 2010, 90 (2011), available at http://
www.sapr.mil/media/pdf/reports/DoD--Fiscal--Year--2010--Annual--
Report--on--Sexual--Assault--in--the--Military.pdf.
\4\ James Risen, Military Has Not Solved Problem of Sexual Assault,
Women Say, N.Y. TIMES, Nov. 2, 2012 at A15, available at http://
www.nytimes.com/2012/11/02/us/women-in-air-force-say-sexual-misconduct-
still-rampant.html?pagewanted=all&--r=0.
---------------------------------------------------------------------------
The ACLU supports the Ruth Moore Act of 2013 (H.R. 671), which
would remove current barriers that far too often prove insurmountable
for sexual assault survivors who apply for disability compensation for
post-traumatic stress disorder (PTSD) and other mental health
conditions. Congress should act quickly to enact this legislation.
I. Congressional action is needed to ease the evidentiary burden of
proof survivors of sexual assault must meet when seeking
disability benefits.
Veterans who were sexually assaulted during their service in our
armed forces, and who now seek disability benefits, for conditions such
as PTSD and depression, face enormous barriers. Data obtained through a
FOIA lawsuit, filed in 2010 by the ACLU and the Service Women's Action
Network (SWAN) against the VA and the Department of Defense, shows that
only 32 percent of PTSD disability claims based on military sexual
trauma were approved by the Veterans Benefits Administration (VBA),
compared to an approval rate of 54 percent of all other PTSD claims
from 2008-2010. Moreover, of those sexual assault survivors who were
approved for benefits, women were more likely to receive a lower
disability rating than men, therefore qualifying for less compensation.
Despite the disparity in approved claims uncovered by the FOIA
lawsuit, the VA has indicated that it is unwilling to amend 38 C.F.R.
Sec. 3.304(f), the current regulation governing the claims process for
PTSD. \5\ In 2011, the VA issued a ``fast letter'' to all VA Regional
Offices (VAROs) reiterating the current policy while also emphasizing
that the regulation should be interpreted liberally to give a veteran's
claim the benefit of the doubt. \6\ The letter provided further
guidance for what secondary markers--evidentiary signs, events or
circumstances--a claims officer should seek out and review in
determining the validity of a disability claim. While we commend the VA
for providing such guidance, it fails to address the problem. Although
the VA specifically ``developed regulations and procedures that provide
for a liberal approach to evidentiary development and adjudication of
[] claims,'' \7\ the subjective nature of the current policy actually
works against survivors of sexual assault.
---------------------------------------------------------------------------
\5\ See Invisible Wounds: Examining the Disability Compensation
Benefits Process for Victims of Military Sexual Trauma: Hearing Before
the Subcomm. on Disability Assistance & Mem'l Affairs of the H. Comm.
on Veterans' Affairs, 112th Cong. (2012) (statement of Anu Bhagwati,
Executive Director, Service Women's Action Network).
\6\ See Training Letter 11-05 from Thomas J. Murphy, Director,
Compensation & Pension Services, to all VA Regional Offices (Dec. 2,
2011).
\7\ Id.
---------------------------------------------------------------------------
The VA's regulations explicitly treat veterans who suffer from PTSD
based on sexual trauma differently from all other PTSD claims,
including those related to combat and hostile military activity. Even
when a veteran can establish a diagnosis of PTSD and his or her mental
health provider connects PTSD to sexual assault during service, the VA
``is not required to accept doctors' opinions that the alleged PTSD had
its origins'' \8\ in the claimant's military service. The VA reasoned
that while such a diagnosis may constitute credible evidence, it is not
always probative. \9\ As a result, the VA requires additional evidence,
such as records from law enforcement authorities, hospitals, or mental
health facilities, that generally does not exist. As the Department of
Defense itself acknowledges, the vast majority of service members who
are assaulted do not report that assault because of the retaliation
they are likely to face.
---------------------------------------------------------------------------
\8\ Godfrey v. Brown, 8 Vet. App. 113, 121 (1995).
\9\ Post-Traumatic Stress Disorder Claims Based on Personal
Attacks, 67 Fed. Reg. 10330 (Mar. 7, 2002) (codified in 38 C.F.R. pt.
3).
---------------------------------------------------------------------------
Another problem faced by veterans is that until recently, the
Department of Defense retained restricted reports of sexual assault for
only 5 years; after that time the records were destroyed. \10\ On
average, a veteran who was assaulted waits 15 years after leaving the
service to file a disability claim with the VA. \11\ Because of this
delay and the Pentagon's former record retention policy, veterans who
were sexually assaulted are effectively cut off from accessing critical
evidence substantiating their disability claim to the VA. Likewise, as
more time passes before a veteran seeks disability benefits, the harder
it becomes for that individual to later prove a claim of sexual assault
through secondary markers, such as statements from fellow service
members or deterioration in work performance. People move away, while
documents are lost or discarded.
---------------------------------------------------------------------------
\10\ The National Defense Authorization Act for FY13 changed this
policy so that now DoD must retain these documents for 50 years, but
only at the request of the service member. Pub. L. No. 112-239, Sec.
577, 126 Stat. 1632, 1762.
\11\ DEP'T OF VETERANS AFFAIRS, VETERANS HEALTH INITIATIVE:
MILITARY SEXUAL TRAUMA 58 (2004), available at http://
www.publichealth.va.gov/docs/vhi/military--sexual--trauma.pdf.
---------------------------------------------------------------------------
Even when a veteran is able to present evidence to a claims
examiner, whether the claim is approved is ultimately determined by a
subjective standard that differs from examiner to examiner leading to
inconsistent outcomes. \12\ Moreover, VAROs have seen high workforce
turnover and the time period over which new employees receive training
on adjudicating claims has been significantly reduced from one year to
just eight weeks. \13\ As the VA grapples with the overwhelming number
of outstanding benefits claims, which now total almost 900,000, \14\
unprepared and overburdened employees may not have the time or the
skill set needed to properly investigate and adjudicate complex sexual
assault disability claims.
---------------------------------------------------------------------------
\12\ A study commissioned by the VA reported that ``rating
decisions often call for subjective judgments.'' INST. FOR DEF.
ANALYSES, ANALYSIS OF DIFFERENCES IN DISABILITY COMPENSATION IN THE
DEPARTMENT OF VETERANS AFFAIRS, VOLUME 1: FINAL REPORT, S-3 (2006),
available at http://www.va.gov/VETDATA/docs/SurveysAndStudies/State--
Variance--Study-Volumes--1--2.pdf. See also Title Redacted by Agency,
Bd. Vet. App. 0318972 (2003) (veteran's claim was denied despite
presenting substantial evidence corroborating his sexual assault,
including documentation of erratic behavior, sworn statements attesting
to military performance issues, and records of mental counseling and
treatment for sexual transmitted diseases.).
\13\ Focusing on People: A Review of VA's Plans for Employee
Training, Accountability, and Workload Management to Improve Disability
Claims Processing: Hearing Before H. Comm. on Veterans' Affairs, 113th
Cong. (2013) (submission for the record of The American Federation of
Government Employees).
\14\ Rick Maze, VFW defends VA official, despite continued backlog,
FED. TIMES (Mar. 20, 2013, 4:19 PM), http://www.federaltimes.com/
article/20130320/DEPARTMENTS04/303200003/VFW-defends-VA-official-
despite-continued-backlog.
---------------------------------------------------------------------------
While the VA stands by its current policy, it is clear that the
Department is not achieving its mission to ``treat all veterans and
their families with the utmost dignity and compassion.'' \15\ Instead
the VA has created an unfair standard that sets sexual assault
survivors up to fail in claiming the disability benefits they deserve.
---------------------------------------------------------------------------
\15\ U.S. DEP'T OF VETERANS AFFAIRS, ABOUT VA: MISSION, CORE VALUES
& GOALS, available at http://www.va.gov/about--va/mission.asp (last
visited Apr. 15, 2013).
---------------------------------------------------------------------------
The Ruth Moore Act would rectify the current policy and bring
fairness to the claims process. Under H.R. 671, the VA would be
required to treat PTSD claims related to sexual assault the same way it
treats all other PTSD claims: by accepting the veteran's lay testimony
as sufficient proof that the trauma occurred ``in the absence of clear
and convincing evidence to the contrary.'' \16\ This standard will help
reduce the number of inconsistent and arbitrary adjudication decisions
that result from applying a subjective standard and will decrease the
risk of veterans experiencing further trauma as they navigate the
claims process.
---------------------------------------------------------------------------
\16\ Ruth Moore Act of 2013, H.R. 671, 113th Cong. Sec. 2(a)
(2013).
---------------------------------------------------------------------------
II. H.R. 671's reporting requirement helps ensure government
accountability.
The ACLU works to hold our government accountable for responding to
and taking proactive measures to end the cycle of violence in our
country. For this reason, in 2010 we filed a federal lawsuit against
the Department of Defense and the VA for their failure to respond to
our FOIA requests seeking records documenting incidents of sexual
assault, sexual harassment, and domestic violence in the military and
how the government addresses this violence. The goal of the lawsuit was
to ``obtain the release of records on a matter of public concern,
namely, the prevalence of [military sexual trauma] (MST) within the
armed services, the policies of DoD and the VA regarding MST and other
related disabilities, and the nature of each agency's response to
MST.'' \17\
---------------------------------------------------------------------------
\17\ Complaint at 2, Serv. Women's Action Network v. U.S. Dep't of
Def., No. 3:2010cv01953 (D. Conn. Feb. 23, 2011).
---------------------------------------------------------------------------
Given our past work in advancing government accountability, we
strongly support the provision in the bill that requires the VA to
submit an annual report to Congress that includes statistics, such as
the number sexual assault-related claims that were approved or denied,
and the average time it took the VA to adjudicate a claim.
****
Should you have any questions, please don't hesitate to contact
Senior Legislative Counsel Vania Leveille at 202-715-0806 or
[email protected].