[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON
H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484,
H.R. 1627, H.R. 1647, AND H. CON. RES. 12
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE
AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 3, 2011
__________
Serial No. 112-9
__________
Printed for the use of the Committee on Veterans' Affairs
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67-184 WASHINGTON : 2011
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
CLIFF STEARNS, Florida BOB FILNER, California, Ranking
DOUG LAMBORN, Colorado CORRINE BROWN, Florida
GUS M. BILIRAKIS, Florida SILVESTRE REYES, Texas
DAVID P. ROE, Tennessee MICHAEL H. MICHAUD, Maine
MARLIN A. STUTZMAN, Indiana LINDA T. SANCHEZ, California
BILL FLORES, Texas BRUCE L. BRALEY, Iowa
BILL JOHNSON, Ohio JERRY McNERNEY, California
JEFF DENHAM, California JOE DONNELLY, Indiana
JON RUNYAN, New Jersey TIMOTHY J. WALZ, Minnesota
DAN BENISHEK, Michigan JOHN BARROW, Georgia
ANN MARIE BUERKLE, New York RUSS CARNAHAN, Missouri
TIM HUELSKAMP, Kansas
Vacancy
Vacancy
Helen W. Tolar, Staff Director and Chief Counsel
Subcommittee on Disability Assistance and Memorial Affairs
JON RUNYAN, New Jersey, Chairman
DOUG LAMBORN, Colorado JERRY McNERNEY, California,
ANN MARIE BUERKLE, New York Ranking
MARLIN A. STUTZMAN, Indiana JOHN BARROW, Georgia
Vacancy MICHAEL H. MICHAUD, Maine
TIMOTHY J. WALZ, Minnesota
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
__________
May 3, 2011
Page
Legislative Hearing on H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484,
H.R. 1627, H.R. 1647, and H. Con. Res. 12...................... 1
OPENING STATEMENTS
Chairman Jon Runyan.............................................. 1
Prepared statement of Chairman Runyan........................ 35
Hon. Jerry McNerney, Ranking Democratic Member................... 2
Prepared statement of Congressman McNerney................... 35
WITNESSES
U.S. Court of Appeals for Veterans Claims, Hon. Bruce E. Kasold,
Chief Judge.................................................... 19
Prepared statement of Judge Kasold........................... 50
U.S. Department of Veterans Affairs, Diana M. Rubens, Associate
Deputy Under Secretary for Field Operations, Veterans Benefits
Administration................................................. 25
Prepared statement of Ms. Rubens............................. 52
U.S. Department of Defense, Kathryn A. Condon, Executive
Director, Army National Cemeteries Program, Office of the
Secretary of the Army, Department of the Army.................. 27
Prepared statement of Ms. Condon............................. 57
______
American Veterans (AMVETS), Christina M. Roof, National Acting
Legislative Director........................................... 4
Prepared statement of Ms. Roof............................... 36
Disabled American Veterans, Jeffrey C. Hall, Assistant National
Legislative Director........................................... 5
Prepared statement of Mr. Hall............................... 38
National Veterans Legal Service Program, Barton F. Stichman,
Joint Executive Director....................................... 8
Prepared statement of Mr. Stichman........................... 43
Veterans of Foreign Wars of the United States, Shane Barker,
Senior Legislative Associate, National Legislative Service..... 7
Prepared statement of Mr. Barker............................. 41
Weiner, Hon. Anthony D., a Representative in Congress from the
State of New York.............................................. 9
Prepared statement of Congressman Weiner..................... 47
SUBMISSION FOR THE RECORD
Paralyzed Veterans of America, statement......................... 58
LEGISLATIVE HEARING ON
H.R. 811, H.R. 1407, H.R. 1441, H.R. 1484,
H.R. 1627, H.R. 1647, AND H. CON. RES. 12
----------
TUESDAY, MAY 3, 2011
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 8:02 a.m., in
Room 340, Cannon House Office Building, Hon. Jon Runyan
[Chairman of the Subcommittee] presiding.
Present: Representatives Runyan, Buerkle, Stutzman,
McNerney, Barrow, and Walz.
OPENING STATEMENT OF CHAIRMAN RUNYAN
Mr. Runyan. Good morning. The legislative hearing on H.R.
811, H.R. 1407, H.R. 1441, H.R. 1484, H.R. 1627, and H.R. 1647,
and H. Con. Res. 12 will come to order. I want to thank you all
for your attendance at this hearing at such an early hour. With
two other hearings in the Committee on Veterans' Affairs today
we had to do some unorthodox scheduling. I know we have a few
Members who will be in VA Committee hearings all day today.
While the scheduling of this hearing was not optimal, it
was also not utterly unreasonable. My understanding is that
most of the witnesses were able to submit their testimony on
time despite the rigid timeline. Therefore, I am very
disappointed with the lateness of the U.S. Department of
Veterans' Affairs' (VA's) testimony. It is understandable that
it can be difficult to get the testimony through the clearance
process. But it is wholly unacceptable to receive testimony
15\1/2\ hours before the hearing starts. Members and staff must
be given time to do our jobs and properly prepare for your
testimony.
Before I recognize Ranking Member McNerney and the other
Members of the Committee, I just wanted to briefly touch on
three bills on today's agenda that I have introduced. H.R. 1407
is the ``Veterans' Compensation Cost-of-Living Adjustment Act
of 2011.'' It provides a cost-of-living increase to veterans'
disability compensation rates and other benefits. These
increases are tied to the cost-of-living adjustments (COLAs)
for Social Security benefits.
H.R. 1441 codifies regulations and policies that bar
reservations for burial or interment at the Arlington National
Cemetery made on or before January 1, 1962. Like many people, I
was shocked when I learned about the recent allegations that
veterans had been given unofficial reservations by the former
management at Arlington National Cemetery. I applaud the
decision of the new management team, headed by Ms. Condon, to
not honor these unofficial reservations. And this bill makes
the policy crystal clear by putting it into law.
My final bill, H.R. 1647, the ``Veterans' Choice in Filing
Act.'' This bill directs the VA to establish a pilot program
that would allow veterans who live in the jurisdiction of the
five underperforming regional offices (ROs) to choose which
regional office they would like to have their claim
adjudicated. While I understand that many stakeholders here
today have some questions in regard to the logistics of the
bill I am sure we can all agree that it is inappropriate for
veterans from one part of the country to have more accurate and
timely decisions than a veteran living in another part of the
country. My bill is meant to start the discussion in addressing
these inequities and I look forward to hearing suggestions from
our stakeholders here today on how they can work together to
ensure all veterans' claims are timely and accurate. We will
continue to discuss this issue at a hearing we will be having
on underperforming regional offices on June 2nd.
I would like to ask all of today's witnesses to summarize
your written statement within 5 minutes and without objection
the written testimony will be made part of the hearing record.
Before I begin with testimony I will now yield to the
distinguished Ranking Member from the great State of
California, Mr. McNerney.
[The prepared statement of Chairman Runyan appears on p.
35.]
OPENING STATEMENT OF HON. JERRY MCNERNEY
Mr. McNerney. Thank you, Mr. Chairman. I would like to
thank you for holding today's hearing. This morning we are
considering seven pieces of legislation, ranging from claims
processing, appeals modernization, and memorial services at VA
cemeteries, and Arlington National Cemetery. However, I would
be remiss if I did not mention the oddity of the 8:00 a.m.
hearing this hour. You know, if you are a Californian, 8:00 is
kind of early. I know you are doing this to torture me. But
there have been frequent rescheduling and changes in procedure
of at least five times. I hope this high level of confusion and
frequency of changes can be avoided in the future, and that
more consideration can be shown for our colleagues and our
witnesses.
Today we consider two pieces of legislation that seek to
make VA claims processing and appeals and the Board of
Veterans' Appeals (BVA) appeals process more efficient and
effective for our Nation's veterans. Specifically, the
``Veterans Appeals Improvement Act of 2011,'' H.R. 1484,
introduced by the Ranking Democratic Member of the full
Committee, Mr. Filner; and your bill, Mr. Chairman, H.R. 1647,
the ``Veterans' Choice in Filing Act.'' The provisions of the
Ranking Member's bill aim to continue the successful process
which began with the enactment of Public Law 110-389 of making
positive changes to the way our veterans' claims and appeals
are handled by the Veterans Benefits Administration (VBA),
Appeals Management Center, BVA, and the U.S. Court of Appeals
for Veterans Claims (CAVC). Additionally, H.R. 1484 would
establish a commission to examine some of the overarching and
longstanding judicial and administrative issues that contribute
to what many stakeholders refer to as the hamster wheel. I look
forward to delving into again these issue with all the
stakeholders in a bipartisan manner.
I would also like to address your legislation, Mr.
Chairman, the ``Veterans' Compensation Cost-of-Living
Adjustment Act of 2011,'' H.R. 1407. This bill has my full
support. Many of the nearly three million veterans who receive
these benefits depend on these tax free payments not only to
provide for their own basic needs but those of their spouses,
children, and parents as well. We would be derelict in our duty
if we failed to guarantee that those who sacrificed so much for
this country received benefits and services that failed to keep
pace with their needs.
Finally, four of the remaining measures that we will
consider today address memorial issues. H.R. 811, H.R. 1441,
H.R. 1627, and H. Con. Res. 12. I look forward to hearing from
our U.S. Department of Defense (DoD) witnesses as we discuss
the three measures related to the placement of monuments and
grave reservations at Arlington National Cemetery. I am also
pleased that we will have a chance to consider Ranking Member
Filner's bill, ``Providing Military Honors for our Nation's
Heroes,'' H.R. 811, which would help ensure that all of our
veterans receive full burial honors that they deserve. It is
critical that we honor our veterans' services and sacrifices
appropriately as they are laid to rest.
During times of war, such as today, we must simultaneously
ensure the proper compensation and support for our current
veterans, while also creating and implementing innovative
solutions that will allow us to care for those who will become
veterans in our current conflicts. I think the bills under
consideration today strike that balance.
Mr. Chairman, I thank my colleagues, Chairman Miller,
Ranking Member Filner, Mr. Weiner, for introducing the other
measures before us today. I look forward to hearing from all of
our witnesses. I yield back and thank you.
[The prepared statement of Congressman McNerney appears on
p. 35.]
Mr. Runyan. Thank you. At this time I would like to ask the
first panel to come forward. Today we have with us Ms.
Christina Roof, representing AMVETS; Mr. Jeffrey Hall from the
Disabled American Veterans; (DAV) Mr. Shane Barker representing
the Veterans of Foreign Wars (VFW); and Mr. Barton Stichman of
the National Veterans Legal Service Program (NVSLP). Ms. Roof,
you are now recognized for 5 minutes.
STATEMENTS OF CHRISTINA M. ROOF, NATIONAL ACTING LEGISLATIVE
DIRECTOR, AMERICAN VETERANS (AMVETS); JEFFREY C. HALL,
ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN
VETERANS; SHANE BARKER, SENIOR LEGISLATIVE ASSOCIATE, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED
STATES; AND BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR,
NATIONAL VETERANS LEGAL SERVICE PROGRAM
STATEMENT OF CHRISTINA M. ROOF
Ms. Roof. Thank you. Chairman Runyan, Ranking Member
McNerney, and distinguished Members of the Subcommittee, on
behalf of AMVETS I would like to extend our gratitude for being
given the opportunity to share with you our views and
recommendations on these very important pieces of legislation.
The Committee has my full statement for the record. So today,
in the interest of time, I will just touch upon a few bills.
First, AMVETS supports H.R. 811, the ``Providing Military
Honors for our Nation's Heroes Act.'' With the growing demand
for military honors at burials today and the lack of military
personnel or volunteers with the financial means to perform
them, many of our Nation's fallen heroes are going without
proper honors at their funerals. AMVETS finds this poignant
reality unacceptable and avoidable. AMVETS believes that if
funds for travel reimbursement were made available to
organizations providing military honors at burial, more of this
Nation's fallen soldiers would be guaranteed the proper honors
they have earned through their greatest sacrifice to this
country.
AMVETS also supports H.R. 1407, the ``Veterans'
Compensation Cost-of-Living Adjustment Act of 2011.'' AMVETS
strongly supports this bill and urges its swift passage.
AMVETS strongly supports H.R. 1627. AMVETS believes the
proposed language in H.R. 1627 will provide the necessary
clarity, as well as uniform defined requisites for the
placement of acceptable monuments in Arlington National
Cemetery. Furthermore, AMVETS believes that mandating monuments
only be erected in areas not suitable for interment will
provide the opportunity for more of our Nation's fallen heroes
and qualifying veterans to be laid to rest in these sacred
grounds.
Finally, AMVETS supports H.R. 1441, to codify the
prohibition against the reservation of gravesites at Arlington
National Cemetery and for other purposes. It has been brought
to the attention of AMVETS that de factor reservations of plots
were still being made in direct violation to the Army's policy
of prohibition of reservations established in 1962, and that
there is still an unverified reservation list of about 3,200.
AMVETS finds this to be objectionable and disgraceful, given
the importance of what Arlington National Cemetery is tasked
with. Furthermore, AMVETS believes that while H.R. 1441 stands
to codify the Army's regulation, it also stands to provide
accountability and transparency in the daily operations of
Arlington National Cemetery. AMVETS believes that one's status
in life should never determine their eligibility of interment
over anyone else's. Once again, AMVETS supports H.R. 1441 and
further urges Congress to have the strictest of oversight in
the implementation of Arlington's electronic tracking system,
as well as the reservation review process, currently taking
place.
Chairman Runyan and distinguished Members of the
Subcommittee, AMVETS would again like to thank you for inviting
us to share with you our opinions on these very important
pieces of legislation and I stand ready to answer any questions
you may have for me. Thank you.
[The prepared statement of Ms. Roof appears on p. 36.]
Mr. Runyan. Thank you. With that, Mr. Hall we yield you 5
minutes for your testimony.
STATEMENT OF JEFFREY C. HALL
Mr. Hall. Thank you. Chairman Runyan, Ranking Member
McNerney, and Members of the Subcommittee. It is a privilege to
be here today on behalf of the Disabled American Veterans to
offer our views regarding pending legislation under
consideration by the Subcommittee.
Mr. Chairman, as you and other Members of the Subcommittee
are aware the rates of compensation for veterans with service-
connected disabilities and the rates for dependents' indemnity
compensation, or DIC, have not been increased during the past 2
years. Many veterans and their families rely solely on
disability compensation or DIC as their only means of income.
Without a cost-of-living adjustment, or COLA, especially in a
difficult economy, causes many sick and disabled veterans to
struggle financially or to not be able to make ends meet. With
the rapidly increasing cost of basic necessities such a food,
medicine, and gasoline, it is absolutely imperative for
veterans and their families to receive an annual COLA. As such,
DAV strongly supports the passage of
H.R. 1407.
Additionally, DAV calls on Congress to end the practice of
permanently rounding down COLAs to the next whole dollar
amount. While this incremental reduction may seem an
insignificant sum, it is anything but to those disabled
veterans and their families whose only means of financial
support comes from these programs. Likewise, consistent with
The Independent Budget DAV is asking Congress to finally
implement the recommendation of the IOM (Institute of
Medicine), the Veterans Disability Benefits Commission (VDBC),
and the Dole-Shalala Commission to enhance disability
compensation by including compensation for the loss of quality
of life suffered by disabled veterans who have sacrificed so
much serving and defending this great Nation.
With respect to H.R. 1484, DAV strongly supports section
two of the bill as this provision could be beneficial to all
parties involved. Allowing a claimant to submit new or
supplemental evidence directly to the Board without requiring a
waiver of VA regional office consideration could alleviate time
consuming interruptions and unnecessary remands, which can
cause burdensome delays and waste VBA resources in the process.
Regarding section three of the bill, which would create a
Veterans Judicial Review Commission, DAV testified in October
2009 on a similar commission. However, this new proposal is
different in two respects. First, as you know, the VBA is
deeply engaged in reforming the entire claims process to
improve timeliness, accuracy, and consistency of their
decisions. The Veterans Benefits Management System (VBMS) and
the many other VBA pilot programs currently being evaluated
should lead to significant changes in how VBA, the Board, and
the Court receive and process claims and appeals. DAV simply
questions whether the creation of yet another study commission
is warranted or if it would be an appropriate use of resources.
Second, giving the Court of Appeals for Veterans Claims, or
Court, class action authority advances the same concerns we
previously raised during the October 2009 hearing before the
Subcommittee. It remains our view that the appeals decided on
an individual basis afford an appellant the best results. While
class actions may benefit members of that class, further appeal
action is precluded once a decision is rendered. Moreover, as
reported recently in the Washington Post, the Court is
understaffed and unable to keep pace with its pending caseload
at this present time. DAV believes adding class action
submissions would unnecessarily increase the burden on the
Court at a time when its workload can reasonably be predicted
to continue rising in the coming years as a result of a growing
number of new claims filed each year. As such, DAV does not
support section three of the bill at this time.
Lastly, H.R. 1647 would authorize a pilot program to allow
veterans served by certain poor performing VA regional offices
as designed by the Secretary the option to submit their claims
for benefits at any VA regional office. DAV agrees with the
intention of ending the disparities between and improving the
overall performance of VA regional offices. However, during the
past 2 years, the VBA has been engaged in a multitude of pilot
programs directed at reforming the entire claims process. We
believe creating another pilot program, one allowing claimants
the ability to choose which VA regional office they want to
process their claims, could interfere with VBA's ability to
effectively manage their already backlogged caseload and
possibly impeded the critical reform of the entire claims
process. As such, DAV does not support passage of this
legislation.
We would, however, be pleased to work with the Subcommittee
to develop better methods in addressing the performance
differences between VA regional offices centered around better
training and quality control programs. With the enormous amount
of new VBA employees, coaches, and managers sound training is
absolutely imperative for consistency, accuracy, and producing
rating decisions that are done right the first time.
In closing, with respect to H.R. 811, H.R. 1441, H.R. 1627,
and H. Con. Res. 12, DAV does not currently have adopted
resolutions from our membership pertaining to these particular
matters. However, we do not oppose passage of these bills.
Mr. Chairman and Members of the Subcommittee, this
concludes my statement and I am happy to answer any questions
you may have.
[The prepared statement of Mr. Hall appears on p. 38.]
Mr. Runyan. Thank you, Mr. Hall. Mr. Barker, you are
recognized for 5 minutes.
STATEMENT OF SHANE BARKER
Mr. Barker. Mr. Chairman, Ranking Member McNerney, and
Members of the Committee, on behalf of the 2.1 million members
of the Veterans of Foreign Wars of the United States and our
auxiliaries, we offer our thanks for this opportunity to
present our views on today's pending legislation.
The VFW strongly supports H.R. 811, the ``Providing
Military Honors for our Nation's Heroes Act.'' This bill would
offset costs for military retirees and veterans who volunteer
to provide military funeral honors. At a time when many of our
greatest generation are passing on and those serving in current
conflicts are risking their lives for our country, this measure
will help to ensure that all receive the honors they have
earned.
We also support H.R. 1407, the ``Veterans' Compensation
Cost-of-Living Adjustment Act of 2011.'' Veterans and their
survivors have not received COLA increases in 2 years.
Meanwhile, inflation is taking a toll on their budgets. The
most recent data from the Department of Labor shows a 2.1
percent increase in the consumer price index over the 2008 COLA
base, and this legislation is the vehicle to ensure our
veterans and survivors receive a corresponding adjustment in
their payments.
The VFW strongly supports H.R. 1441, a bill that will
finally prohibit in law the insider practice of allowing
certain high-ranking military members and other VIPs to
preselect their gravesites at Arlington National Cemetery. This
practice was banned by the Army nearly 50 years ago, yet
Cemetery administrators have continued to arbitrarily allow
some to circumvent those rules. Burial at Arlington National
Cemetery is a tremendous honor and should always depend upon
honorable service, not rank.
The VFW supports H.R. 1484, the ``Veterans Appeals
Improvement Act of 2011.'' This legislation would alter current
procedures of requiring new evidence submitted for a claim
under appeal to be considered by a regional office before being
sent to the Board of Veterans' Appeals, except in cases where
the appellant waives that review. It also stipulates that the
Board is required to rate all new evidence submitted after the
case is sent to them unless the veteran specifically refuses to
waive that consideration. This bill would allow the Board to
move more quickly on appeals and would alter, but not
eliminate, an appellant's right to local consideration.
According to our internal data, VFW service officers waive
local consideration about 90 percent of the time for veterans
we represent. For this and other reasons we do not believe this
procedural change would have a significant impact on
appellants.
The VFW has no position on section three of the
legislation, which creates a commission to review and report to
Congress regarding the administrative and judicial appellate
review process. We reserve the privilege to review that at a
time when it would be appropriate.
We support H.R. 1627, a measure to codify procedures used
at Arlington governing the placement of memorial markers. Any
decisions that would affect the grounds at Arlington must be
principled, fair, and based on precedent. This legislation
advances these principles by taking existing procedures and
making them the law of the land.
The VFW does not support H.R. 1647, the ``Veterans' Choice
in Filing Act of 2011,'' which would create a pilot program
that would allow veterans at five underperforming regional
offices to submit benefits claims to any VA regional office of
their choice. We are concerned this pilot may only complicate
VA's current process of transferring cases from backed up
offices to those with excess capacity. It would also create
concerns for VFW service officers and those from other veterans
service organizations (VSOs). It is unclear how we or an
individual veteran would know whom to contact about their claim
or how effective a service officer could be regarding a claim
that was sent to a distant state from across the country.
However, we are hopeful that we can work with the Subcommittee
to find solutions that would help expedite this process.
Finally, the VFW does support H. Con. Res. 12. The
resolution states very clearly the sacrifices that have been
made by chaplains by the Jewish faith on behalf of the United
States. Other memorial markers are placed on Chaplains Hill in
Arlington in memoriam of chaplains of other faiths. Rabbinical
chaplains who have also served with dignity and honor should be
similarly memorialized.
Mr. Chairman, this concludes my statement. I would be happy
to answer any questions that you or the Members of the
Committee may have.
[The prepared statement of Mr. Barker appears on p. 41.]
Mr. Runyan. Thank you. Mr. Stichman, we would like to yield
you 5 minutes for your testimony.
STATEMENT OF BARTON F. STICHMAN
Mr. Stichman. Thank you, Mr. Chairman. Thank you for the
opportunity for the National Veterans Legal Service Program to
present their views today. I would like to focus on one part of
the short time that I have on a part of H.R. 1484 that would
create a commission to study, among other things, whether the
Court of Appeals for Veterans Claims should be given class
action authority. You do not need a commission to conclude that
legislation creating class action authority in the Veterans
Court is long overdue.
We know we have an inefficient VA adjudicatory system that
has had problems for years. We know that there is a hamster
wheel phenomenon between the VA regional offices and the Board
of Veterans' Appeals and the Court of Appeals for Veterans
Claims. Class action authority will help, not totally resolve
but will help alleviate those problems.
Traditionally the rights of similarly situated U.S.
citizens, denied Federal Government benefits for the same
reason, have been able to be resolved through the expeditious,
efficient system called a class action. For decades Social
Security claimants have been able to file in U.S. District
Courts class actions for resolution of similarly situated
cases. The VA benefits system prior to the Veterans' Judicial
Review Act of 1988 had a system where U.S. District Courts
could consider class actions. For example, there is a case
called Nehmer in which a U.S. District Court in California
certified a class and struck down the VA's Agent Orange
compensation rules so that all Agent Orange compensation are
decided in a similar fashion.
The Veterans' Judicial Review of 1988 changed all that
because it changed the jurisdiction over veterans cases to the
U.S. Court of Appeals for Veterans Claims without requiring a
class action rule, and the Court of Appeals for the Federal
Circuit, which does not have class action review authority.
This causes problems for veterans and I will give you one
example to illustrate it.
A number of years ago the VA issued a directive requiring
the regional offices not to send veterans two types of
decisions they made. One, decisions granting over $250,000 in
retroactive benefits. Two, decisions granting over 8 years of
retroactive benefits. Instead those decisions were to be sent
to the VA Central Office for review in a secret proceeding that
veterans never knew about. They did not have a right to a
hearing before the Central Office, or to participate. The
Central Office overturned half of those hundreds of decisions
that were sent pursuant to that directive to the Central Office
and the Central Office decision was substituted for the
regional office grant of benefits that the veteran never got to
see.
The Military Order of the Purple Heart filed a lawsuit in
the Federal circuit challenging that rule. It could not file a
lawsuit in the Court of Appeals for Veterans Claims because
that Court has rule that organizations cannot file suit in that
Court, only individual veterans. And Military Order of the
Purple Heart did not know which members of that organization
had been denied pursuant to this procedure because it was a
secret procedure. Nobody knew whether their cases were
involved.
They went to the Federal circuit, which struck down that
directive. But refused to require the VA to overturn the
individual decisions that were made in violation of the Court's
decision. So none of the individuals have gotten relief,
because that Court has no authority to grant that relief. Class
action authority would end that problem. It would require, have
required the VA to identify all of the people whose cases were
overturned by their Central Office pursuant to the secret
process that the Federal circuit struck down and require the
veterans to get the benefits that were originally awarded.
Now class actions are an efficient system, tried and true
in other benefit systems, for requiring an agency to decide
similarly situated cases in a similar fashion without 58
regional offices, considering each one on an individual basis.
And we urge the Committee without the necessity for a
commission to enact such type of legislation. I would be happy
to answer any questions the Committee may have.
[The prepared statement of Mr. Stichman appears on p. 43.]
Mr. Runyan. Thank you very much. And respecting the time of
one of my colleagues who wanted to come and testify I am going
to recognize Mr. Weiner for 5 minutes for his testimony.
STATEMENT OF HON. ANTHONY WEINER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW YORK
Mr. Weiner. Well, thank you, Mr. Chairman. I doubt I will
take that. And I just wanted to tell you I am impressed by a
Subcommittee that meets at 8:00 a.m. I guess your Subcommittee
has the slogan you get more done by 9:00 a.m. than most
Subcommittees get done all day.
I thank you very much Mr. Chairman, Ranking Member
McNerney, my colleagues for allowing me to briefly testify on
House Concurrent Resolution 12, which would designate a plot of
land at Arlington Cemetery to be used for a memorial honoring
Jewish chaplains of our armed services. As you know, this is
Jewish Heritage Month and I very much appreciate your
leadership and Congressman Rooney who is the lead Republican
sponsor on this bill.
Unlike many things in Congress this bill is simple, it is
straightforward. Jewish chaplains have served our country for
149 years and yet they still do not have a place next to their
Protestant and Catholic brothers on Chaplain Hill in Arlington
Cemetery. Today all that is standing between Arlington Cemetery
and a memorial is the passage of H. Con. Res. 12. And that is
all there is to this resolution.
I am not the person who thought of a memorial for these
Jewish chaplains. In fact, many Jewish Americans and veterans
nationwide, I was surprised to learn that no memorial existed
at Arlington Cemetery for Jewish chaplains. Ken Kraetzner, son
of a World War II Army officer, noticed the lack of a monument
for Jewish chaplains while researching the stories of the four
immortal chaplains who died while giving final rites on board
the USS Dorchester in 1943. Ken located the four men on
Chaplains Hill. He noticed that Rabbi Alexander Goode was the
only one of the four chaplains not distinguished by a memorial.
Ken partnered with two other veterans, Rabbi Harold Robinson
and Sol Moglen, to help lead a fundraising effort. In just a
few months they raised over $50,000 mainly from war veterans
across the Nation who wanted to do the right thing.
They used three other memorials as the model for the new
monument for the 13 Jewish chaplains who lost their lives from
1943 to 1974. Thirteen, as you know, is a very significant
number in the Jewish faith and it is appropriate that a
memorial be for those chaplains and any that come after them.
The monument was designed, will stand 7 feet tall with a
bronze plaque mounted on a granite slab listing the 13 names,
as well as a Jewish proverb: ``I ask not for a lighter burden,
but for broader shoulders,'' and an inscription of the Star of
David. There will also be a place at the bottom for future
chaplains if, God forbid, it is needed. While planning this
project Mr. Kraetzner, Rabbi Robinson, and Mr. Moglen were in
touch with Arlington Cemetery. They were notified of a 2001 law
that requires Congressional approval for memorials in Arlington
Cemetery, and that is what brings us here. The group quickly
alerted Jewish War Veterans of the United States, the Jewish
Welfare Board, and the Jewish Chaplains Council, and they
reached out to those of us in Congress. Senator Schumer has
introduced the Senate version of this, and in less than 4
months the resolution has collected 72 bipartisan cosponsors
including you, Mr. Chairman, and the Chairman of the full
Committee. And it has been endorsed by 35 national Jewish
organizations and 47 local Jewish War Veterans chapters.
The Jewish Federations of North America and Shelly Rood
have been working to help pass the bill to recognize the
achievements of these chaplains. Surviving family members of
the chaplains have also been involved in the process, including
David Engle, son of Rabbi Meir Engle, and Vera Silberberg,
daughter of Morton Singer.
If I may, Mr. Chairman, I would like to submit with
unanimous consent the letter of support from all of these
groups for the record. And I am grateful that we are one step
closer to erecting this monument properly honoring these
chaplains. It is an excellent way, I believe, to celebrate
Jewish Heritage Month.
At this point, if it would be appropriate, I would just
like to read the names of the thirteen Jewish chaplains as well
as their rank? Army Captain Nachman Arnoff, who passed away on
May 19, 1946; Army Lieutenant Colonel Meir Engel, who passed
away December 16, 1964; Army 1st Lieutenant Frank Goldenberg,
deceased on May 22, 1946; Army Lieutenant Alexander D. Goode,
deceased February 3, 1943; Army Lieutenant Henry Goody,
deceased October 19, 1943; Major Samuel Hurwitz, deceased,
December 19, 1943; Major Herman Rosen, deceased June 18, 1943;
Air Force Captain Samuel Rosen, May 1, 1955; Air Force 1st
Lieutenant Solomon Rosen, deceased November 2, 1948; Army
Captain--these I do not have the ranks for these, actually, so
these are just a member of the--Army Chaplain Morton Singer,
deceased December 17, 1968; Air Force Chaplain David Sobel,
deceased March 7, 1974; Army Chaplain Irving Tepper, August 13,
1944; and Army Chaplain Louis Werfel, December 24, 1944.
May we honor them with this memorial, and honor them and
all the chaplains that have come before them and will serve in
the future. And I thank you very much, Mr. Chairman, for the
opportunity to express my support for this resolution.
[The prepared statement of Congressman Weiner appears on p.
47.]
Mr. Runyan. And Mr. Weiner, thank you for the early hour. I
said in my opening statement that this is abnormal. We do not
plan to make this a regular occurrence. So thank you again for
your testimony.
Mr. Weiner. Thank you, sir.
Mr. Runyan. With that I am going to start the questioning
as we alternate back and forth between parties in their order
of arrival. I am going to start with Mr. Stichman would you
talk about the class action authority? You touched on it in
your testimony. But I always look at the unintended, not so
much the unintended consequences, but is the process in itself
going to create a backlog at another level? And that is one of
my first worries.
Mr. Stichman. Well, with regard to unintended consequences,
often when something new is created it will have unintended
consequences. But class action authority is not new. It has
existed for decades in other benefits systems and it existed at
the VA for quite a while prior to 1988. So I do not think you
have, should fear unintended adverse consequences. It will
alleviate, rather than create, backlogs. It will alleviate the
backlog because when somebody files a class action, the Court
can take the authority to order the VA not to adjudicate
similarly situated cases. Do not waste your time deciding
similarly situated cases until the Court has finally resolved
the rights of the veterans who are bringing the lawsuit. So the
VA can save resources. Instead of deciding all these cases
while the case is going on, they can put them on hold. Then
when the Court finally issues a decision, no more appeals
possible, then the VA can decide all those cases in the way
that the Court says it should under the law. So it will
actually alleviate VA resources being expended on cases they
should not have to spend time on.
Mr. Runyan. Thank you for that. Ms. Roof, can you share
with the Members of the Subcommittee how your members currently
volunteer their time at military funerals? And is the DoD
meeting its mission there. I just wanted to get the background
from your perspective on it.
Ms. Roof. Just a brief overview. We have many, many members
of our organization that actually travel the country and
provide honors at military funerals at no cost to the family.
These men and women, our members, are volunteering their time
and their money. They are not asking for anything, to be
reimbursed, but obviously with the influx in gas prices and so
on they are being able to perform less of these funerals. Not
because they do not want to, but because they do not have the
means to. Does that answer your question?
Mr. Runyan. Yes, but as we move forward and set something
up, how can the VSOs really work to ensure that fraud and abuse
is not going to be existent in this? Because it has that
potential to come down the road.
Ms. Roof. Fraud and abuse of people taking advantage of
this?
Mr. Runyan. Taking advantage of it, as it would be
developed.
Ms. Roof. You know, I do not know if I can give you any
clear answer to that. I think with anything we do, and any
program that we do within VA, there is always going to be that
chance for fraud and abuse. I think that is why it is very
important that there be strict oversight in these programs. And
again, I do not want to see people not receive the honors they
deserve because we are worried about fraud and abuse.
Mr. Runyan. Well, thank you very much. With that, I will
turn it over to Ranking Member Mr. McNerney.
Mr. McNerney. Thank you, Mr. Chairman. I thank the
witnesses for coming here this morning. Ms. Roof, I understand
there are several downsides to the Veterans Choice of Filing
Act of 2011, H.R. 1647. Would you please elaborate a little on
the reasons that AMVETS opposes this legislation?
Ms. Roof. Well, we have some concerns with the current
language. As I had stated in my written testimony, we are more
than happy to work on addressing some of this stuff with the
Committee. However, one of our main concerns is that VA has
done this in the past. They have addressed disparities in
production by sort of brokering work out from regional office
to regional office. And what it has proven to do is to sort of
flood the higher performing regional offices. And there is no
improvement. Does that make sense?
Also, we have a personal concern of when it comes to
residency, your service officer. Where are you going to have
your claim adjudicated? And lastly again, when you are flooding
these higher performing offices we have the question of is
there going to be an increase in budget and an increase in
personnel to deal with these newer claims?
Mr. McNerney. So would it be fair to say that you would
prefer, or AMVETS would prefer, a comprehensive overhaul rather
than an approach that looks at transferring loads from one
center to another?
Ms. Roof. I think comprehensive overhaul is what we are all
working towards, absolutely. How we choose to get there I think
is still kind of up in the air. But I absolutely think a
comprehensive overhaul is needed.
Mr. McNerney. Mr. Hall, a similar question. I believe that
you and the DAV oppose that legislation.
Could you explain why, please?
Mr. Hall. Initially--thank you for the question. Initially,
we feel it is the wrong time. With the multitude of the pilot
programs that are currently pending out there, and the goal of
reforming the entire claims process, we simply believe that the
timing of this is off. Now as a deeper concern, when a claim is
filed, to allow the opportunity to file a claim at any VA
regional office, as my colleague has testified, it is going to
create an influx to a VA regional office that may not be
prepared for or expectant of an increased amount of claims.
Where the claims end up, you know, it is not clear with the
intent of the bill how that is going to be decided. But we also
have the concerns of how the claimants in these five VA
regional offices that are chosen, how are they, how is the VA
going to notify the claimants? All of them that are in the
system within, say, a particular regional office are going to
get a letter. So we have a concern about how they are going to
be notified that they can opt in for this particular program.
And lastly I would just say in filing a claim for benefits,
and unlike brokering, brokering of a claims file usually occurs
after an examination and it is usually done to simply process
the claim once all of the evidence or data is gathered. In this
particular scenario if this should happen, an individual is a
New York City claimant. If that is one of the offices that is
chosen so a veteran that would normally be served by that
regional office could file in, say, St. Petersburg, Florida, as
an example. If they choose to do that the file would be
transferred to St. Petersburg, Florida. Then an examination
would be requested in that case. So the file would have to be
transferred back because the examiner just review that file.
Then the file would have to be transferred back to St.
Petersburg. And so we have this, you know, a lot of things
intertwine with that, with the possibility of losing, and----
Mr. McNerney. Okay. I guess what you are saying is that it
could add complexity, it could add layering. In your opinion
would it make the situation worse with respect to the backlogs?
Or better? Or have no effect on the backlog?
Mr. Hall. We believe that it would definitely adversely
affect the current process with the already outrageous backlog
that there is.
Mr. McNerney. All right. Thank you, Mr. Hall. Mr. Barker,
please elaborate a bit please on how VSOs and other volunteers
are reimbursed for rendering military honors when there is no
military representation?
Mr. Barker. Currently?
Mr. McNerney. Yes.
Mr. Barker. I do not know that I am fully aware of the
process by which they are currently reimbursed.
Mr. McNerney. Would it be fair to say that there are cases
where there is no reimbursement?
Mr. Barker. Yes.
Mr. McNerney. Okay, and how would H.R. 811 change that?
Mr. Barker. Well, reading the legislation it is not clear
what aspects of the provision of funeral honors would be
reimbursed. I think that it would be advantageous to have it
more elaborated in the legislation. Which it is not now, but it
would be nice to see very clear provisions of what would be
reimbursed and what is not, I think, getting back to the
Chairman's concerns that there is potential for waste, fraud,
and abuse.
Mr. McNerney. Well, right now is it at the discretion of
the Secretary, is that not correct?
Mr. Barker. Correct.
Mr. McNerney. Okay. All right, thank you, Mr. Chairman.
Mr. Runyan. Mr. Stutzman.
Mr. Stutzman. Thank you, Mr. Chairman. Thank you for being
here today. My question goes towards Mr. Stichman. First of
all, you had said in your testimony that you support waiving
regional office jurisdiction. Do you feel this would just cause
a shift of paperwork around from one level to the other?
Mr. Stichman. I think my testimony goes to the legislation
that would, after a substantive appeal is filed by a veteran,
and the veteran submits additional evidence, that evidence
should be considered initially by the Board of Veterans'
Appeals unless the veteran indicates that the veteran wants the
regional office to consider it and render a new decision. It is
an attempt to streamline the system which currently requires
the regional office to make decision after decision, time and
again, each time the veteran submits evidence which the veteran
thinks is going to be considered by the Board of Veterans'
Appeals because the veteran has appealed to the Board of
Veterans' Appeals.
Mr. Stutzman. So you believe that the appeal would actually
streamline the process rather than----
Mr. Stichman. No, this occurs after an appeal has been
filed. So it is a given that there is an appeal existent. And
the question is, if while the appeal is going on during the 600
days that the case is sitting at the regional office doing
nothing, and the Board is not ready to hear the case, if the
veteran submits new evidence at that point should the regional
office reconvene, rereview the claims file all over again----
Mr. Stutzman. Okay.
Mr. Stichman [continuing]. Look at the new evidence and
make a new decision while the case is on appeal to the Board?
And it is intended to alleviate the problem of multiple
decisionmaking at the regional office level, which has already
heard the case, in favor of a single review by the Board of
Veterans' Appeals.
Mr. Stutzman. If the average delay between a veteran filing
an appeal and the case being certified to the BVA can exceed
1\1/2\ years, can you comment on how this might be improved if
this legislation is enacted?
Mr. Stichman. How the 600-day process might improve?
Mr. Stutzman. Mm-hmm.
Mr. Stichman. I think the case would be more likely to be
sent to the Board in a shorter period of time because it will
not be on someone's desk at the regional office redeciding it.
Mr. Stutzman. Okay. And this is just in the case when there
is new evidence?
Mr. Stichman. That the veteran submits.
Mr. Stutzman. To move forward? Okay.
Mr. Stichman. Exactly.
Mr. Stutzman. All right. Thank you. Thank you, Mr.
Chairman. I yield back.
Mr. Runyan. Thank you. Mr. Walz.
Mr. Walz. Well, thank you Mr. Chairman. And thank you for
holding this hearing, moving some good bills forward, and
having this open discussion and with our experts. I am very
appreciative of that. Mr. Stichman I just wanted to ask you,
and I have to in full disclosure think I agree with you very
much on H.R. 1484, that class action is probably the way to
maybe alleviate some of this and make it more accessible for
veterans. But what gives you any confidence at all after the
recent Supreme Court decision on AT&T that we are going to get
any movement on that at all?
Mr. Stichman. Any movement on a bill to require, to allow
class actions?
Mr. Walz. Yeah. Well, it appears like we are in a state
right now where everything is stacked against the ability to
try and move anything further to expand class action
availability. Or do you think that is the wrong interpretation
of what the Supreme Court ruling was?
Mr. Stichman. I am afraid I am not familiar with the
Supreme Court decision. But I cannot see how it would affect
the ability of a veteran to file a class action when you have
legislation that carefully discussed how one can go about doing
so.
Mr. Walz. Okay. Well, I agree with you. I just think, I
appreciate that optimism. I am just afraid we have seen some
resistance on that. The next question I have on H.R. 1407,
which again I thank the Chairman for addressing a serious issue
and bringing this forward. The issue really here, and I do not
know if any of you can comment on this, the issue is how we
calculate cost of living and the real core inflationary values,
is it not? If we did an overall evaluation, because I think
this very issue starts to resonate down with Social Security
cost-of-living increases and all of the COLAs. Is the best way
to do it to attack that think systemically to get us a better
indicator of inflationary values where we are looking at
gasoline, we are looking at food, we are looking at those
thing? Or is this needed to go and to make sure until that
happens that this is the way to go? The reason I ask is, I
think you are bringing up some very good points about do we
tackle thing with small pilot programs? Or does that bring us
leverage on systemic change? So if anybody could answer on H.R.
1407 because I am in agreement with it, but is that the right
way to go?
Mr. Barker. I think from our perspective it does. One of
the problems with the current system is that it takes so long
to get Social Security recipients, veterans, survivors the
increases that they need to reflect increases in what they are
having to spend for basic commodities. I do not know what the
solution to that would be, but it does seem to be behind the
curve.
Mr. Walz. There is not a, it is, there is no true reflect
of cost of living right now. Because the cost of living I would
argue for all of us, if you filled up this weekend, it has gone
up. I mean, there is no doubt about that. But yet it is not
reflective. I am just trying to get at are we, again, are we
setting ourselves up in the wrong way instead of fixing it
systemically? But I am certainly supportive of it. Anyone else
on that one?
And the last one I would say is again, and while I think
the sentiment is exactly right on, and I think all of us the
frustration we feel with benefits claims, on H.R. 1647, I too
have deep concerns on that. And do not get me wrong. This is
not my provincial looking out for southern Minnesota. We have a
good claims system there. My fear is that if we with a pilot
program in this, is that that burden will be shifted and will
go to a lowest common denominator. And the high performing
offices will be burdened as well as those that need to be
fixed, or redone. So I share your concerns on this. I also note
that the sentiment is exactly in the right place of trying to
figure this thing out, trying to get it cracked. I am just not
certain this is the right approach. And again, I appreciate the
comments from each of you. I yield back, Mr. Chairman.
Mr. Runyan. Thank you. Ms. Buerkle.
Ms. Buerkle. Thank you, Mr. Chairman. And thank you for
holding this hearing, and thank you to our panelists for being
here this morning. My question, I just want to follow up on
H.R. 811. Is there any reimbursement taking place at this time?
For any of the volunteers?
Ms. Roof. I can only speak to what our members do. And
again, this is to the best of my knowledge. I can get back to
you with factual data. Is that our members that are performing
these are not being reimbursed. And I am guessing you are
asking by VA? Are not being reimbursed by VA at this time.
Ms. Buerkle. Okay. And then as far as any other
reimbursements, you do not know that for sure?
Ms. Roof. Again, I do not want to tell you inaccurate
information. But I would be happy to get back to you with that.
[Ms. Roof subsequently provided the following information:]
By law DoD is the only Federal agency authorized to reimburse
properly trained personnel or volunteers to perform ``Military
Honors'' at a funeral. DoD Directive 1300.15, ``Military
Funeral Support'' of September 30, 1985, directs the Military
Departments to provide ``appropriate tribute within the
constraints of available resources.'' This Directive specifies
different levels of support for (1) members on active duty and
Medal of Honor recipients; (2) retirees; and (3) veterans and
National Guard/Reservists not on active duty. The levels of
support indicate minimum requirements, but are subject to the
availability of resources, both financial and what DoD
considers properly trained personnel. Recent studies show that
DoD neither reimburses volunteers or provides Military Honors
to over 65 percent of eligible veterans and volunteers.
The National Cemetery Administration (NCA) within the
Department of Veterans Affairs does not provide funeral honors
or reimburse volunteers that provide Military Honors at a
veterans funeral. The Department of Veterans Affairs provides
an American flag to drape the casket of a deceased veteran or
eligible reservist. There are also some private sector
nonprofits that partially reimburse volunteers that provide
military honors at eligible veterans funerals.
Ms. Buerkle. Good. And then I just wanted to follow up on
my colleague's question regarding cost-of-living increase, the
basis for that, and how that would be calculated? Or how we
would determine what the cost-of-living increase would be? If
anyone could speak to that?
Mr. Hall. In our opinion, I guess the best way would be, as
Congressman Walz had indicated, an over, you are going to have
to look at everything, and deeply. Geographically, you know,
location is going to have to be taken into consideration. I
mean, simply put, and it is not just veterans, but veterans
especially, disabled, sick and disabled veterans, how are they
expected to even go to their medical appointments aside from
the fact that we have a volunteer transportation program that
we can get them to and from? But for those that do not, or are
not able to take advantage of that, to simply pay for the
gasoline to get to and from their necessary medical
appointments at over $4 a gallon is astronomical. So not just
gasoline, food, and things. But yes, it is going to have to
take, you know, an overarching look at the entire country in
that way.
Ms. Buerkle. Does anyone else have any comments?
Ms. Roof. If I could just add one little thing? I think
this year even more important than past years is to look at a
lot of the things that people do not usually look at of what
has gone up. For example, this bill addresses clothing. The
cost of cotton has risen 150 percent over the last year. You
know? Just little things like that are going to mean a lot. You
know, gas, we all know about that stuff. But there are smaller
things, like the price to produce clothing that a lot of
disabled veterans depend on.
Ms. Buerkle. Thank you. Anyone else on the panel wish to
comment? I think, my concern is not so much, I think the
concern is that we give the veterans what they need and that
the calculation of this cost-of-living increase is one that is
going to really fit their needs and not just be a nominal
increase. So that is my concern when we look at the calculation
for that cost of living. Thank you very much. I yield back.
Mr. Runyan. Thank you. Mr. Barrow.
Mr. Barrow. I thank the Chair. I have no real questioning
for the witnesses, but I do want to take this opportunity to
share my concerns and reservations about H.R. 1647. As someone
whose constituents reside in a regional office that does not
enjoy a great reputation for moving matters expeditiously, I
share the Chairman's concern that until we fix what is broke
with this system we ought to at least provide folks an escape
valve. We ought to give them a chance to go someplace where
they can get their case decided a little bit quicker. But I
have concerns about how that is going to work in practice.
I guess it is sort of inevitable in today's economy that
the reward you get for doing a good job is you get to do even
more work with less resources. That seems to be a given in the
public and the private sectors. But this is kind of different.
The reward that you get for doing a good job is you get to do
more of the work of the folks who are doing a lousy job. And
that has the unintended effect of sort of rewarding, or
papering over, or obscuring the inefficiencies that are left
untreated in those areas where there is systemic inefficiency.
And if we are only going to allow those wheels that would
otherwise squeak the loudest to get some relief someplace else
we might actually delay the implementation of real reform
trying to make the underperforming systems measure up to the
standards set by the best.
So I share the Chairman's concern. I think systemic
inefficiencies exist throughout many areas, my area in
particular. But I want us to attack the root cause and not try
and add to the burdens of those folks who are already doing a
great job. So with that I just want to share my support for the
reservations and concerns expressed by AMVETS, the DAV, and the
VFW. I think they are on the right track about how we need to
go about this. And with that, I yield back.
Mr. Runyan. Well, thank you. But also asking that question,
Mr. Hall, do you have any ideas of how we are going to get
there?
Mr. Hall. With this particular matter, no I do not have any
ideas, or DAV, at this particular time. But as we said, we
would be happy to work with the Subcommittee and come up with
some type of solution that is tangible that can possibly work
with the goal or the intent of the bill as it stands.
Mr. Runyan. I understand my colleague's frustration, and
also yours with it. But you know, it is a delicate situation
and I think it really needs to be addressed because ultimately
we are here fighting for our veterans and the needs that they
have. And the door is open to ideas. And, this is an idea we
are having and how we are trying to fix it. And I understand,
as I said in previous questions, there are unintended
consequences to everything that we do within the legislation
here in the House. So it is, I know it is difficult. But I
appreciate any and all input you guys can have, especially
because of how close you are to the situation.
Mr. Hall. Mr. Chairman I would say regarding unintended
consequences of this particular matter might be the
demoralization of those five offices that now fully realize
they are, we are the worst. That is an unintended consequence
of what is trying to be a good thing to be helpful, and move
things along in the process, and alleviate the backlog.
However, there is no joy in being labeled as one of the bottom
five.
Mr. Runyan. No, there is not. But I have had many, many
conversations with Secretary Shinseki. And the word always
comes up in our conversations, accountability. And that is
ultimately at the root of what we need to do to step up and
take care of our veterans. You know, I have been on many teams
in my life and I do not like being the last place either. But
when you have the personal pride and the accountability factor
in there, human nature is very competitive. And I think to
reinstate, you know, to instill that into people again is only
going to help our veterans in the long run.
Mr. Hall. I fully agree with the accountability, as we have
testified over and again, regarding this. So we fully agree
with the accountability. I am just simply suggesting that we
need to be careful with the unintended consequence of what it
may do, or the impact it may have in the process.
Mr. Runyan. Thank you. Mr. McNerney, do you have any
further questions?
Mr. McNerney. No, I do not. I think everyone here
sympathizes with the intent of H.R. 1647. What the best way to
move forward is, it is not clear to me. I thank the panel for
their testimony on that, and I look forward to working with the
Committee to finding the right solution. Thank you.
Mr. Runyan. Do any of the other Members have anything? Mr.
Stutzman. Mr. Barrow. Ms. Buerkle. None? At this time the panel
is excused, and thanks now, thanks for your testimony. I
appreciate your coming out and your time.
The second panel consisting of the Honorable Bruce Kasold,
Chief Judge of the U.S. Court of Appeals for Veterans Claims.
Judge Kasold, welcome back to the Subcommittee. Welcome back,
and I recognize you for 5 minutes.
STATEMENT OF HON. BRUCE E. KASOLD, CHIEF JUDGE,
U.S. COURT OF APPEALS FOR VETERANS CLAIMS
Judge Kasold. Thank you, Mr. Chairman, Mr. McNerney,
Members of the Committee. I would first like to make two
comments based on what I was listening to. One is the burial at
Arlington and the secret preselection of sites. I would
personally agree with looking into that but I would just note
that I do not think Arlington is the only DoD cemetery and you
might broaden that to include all of them.
Second, with respect to the testimony on legislation that
would permit the Board to review new and material evidence in
the first instance, actually the Secretary did that in the past
and then the Federal circuit noted that Congress had created
two reviews for the veteran. The RO, the regional office, and
the Board. The veteran, however, can waive the requirement to
go back to the RO and it could go to the Board. Now, whether
veterans are aware of that I do not know. But I just throw that
out--that it was viewed that way legislatively and then the
Federal circuit said that the two reviews were required. And it
actually can be a benefit to a veteran. So whether they decide
to waive it, whether they know they can waive it, are issues
that you might consider.
I have been asked to specifically talk about two bills,
H.R. 1484, the ``Veterans Appeals Improvement Act,'' and H.R.
1647, the ``Veterans' Choice in Filing Act.'' As I note in my
written statement, I do not have a comment on the Choice in
Filing Act. It is really in the purview of the Secretary.
But with regard to H.R. 1484, particularly section three,
we support the establishment of a commission to study judicial
review of the veterans benefit determinations. The Court was
created 20 years ago to ensure fairness and consistency of VA
benefits decisions by adding for the first time the right of
veterans to seek judicial appellate review following the
agency's processing of their claims. At that time, Congress
thought it prudent to create a system where veterans could
appeal agency decisions to the newly created Court where they
would be provided an objective and impartial review of the
processing of their claims by VA. Once a decision is rendered
by the Court, the nonprevailing party, either the veteran or
the VA, may file an appeal at the Court of Appeals for the
Federal Circuit, and from there to the Supreme Court.
Now, with over 20 volumes of case law and developed
expertise in judicial review of veterans benefits appeals, the
time is right for a working group to step back and review the
judicial appellate system we have, critically examine its
strengths and weaknesses, and identify measures that could
benefit the overall judicial appellate review process. Although
not specifically stated in H.R. 1484, I would anticipate and
encourage the commission to weigh the costs and benefits of the
unique two-tiered Federal appellate review system currently in
place for veterans benefits decisions and consider if there is
added value to having multiple layers of Federal appellate
review.
With regard to the specifics of the legislation, I urge the
Committee to clarify the scope of the commission's study, which
is laid out in the title of section three. It is quite broad.
It includes reviewing the administrative as well as the
judicial veterans benefits determinations. The Court of Appeals
for Veterans Claims is part of the judiciary, separate and
distinct from the Department of Veterans Affairs. The judicial
review that the Court takes of the claims appealed to us each
year from the Board of Veterans' Appeals proceed under a wholly
separate set of laws and rules than occur during the processing
of the claims at VA during the administrative claims and review
process. VA's regional offices process over a million claims
each year and VA's Board of Veterans' Appeals decide another
60,000. In contrast to the numbers related to judicial review
of those decisions are the Court's 4,000 yearly appeals, the
Federal circuit's roughly 150 veterans appeals, and the handful
that end at the Supreme Court. Numbers alone would require very
different case processing methods.
But the administrative review process involves
significantly different issues than the judicial appellate
review process with different rights and responsibilities
placed on the claimants and the Secretary. Thus, it is
important to maintain the distinction between the judicial
appellate review process, which is entirely independent of VA
and where the Secretary is one of the adversarial parties, and
the Department of Veterans Affairs claims adjudication process
where the Secretary is required to work hand in glove with the
veteran. To permit focus and timely feedback of the judicial
appellate review process, the Court recommends the legislation
be amended to clarify the commission's focus is to be on
evaluating the judicial appellate review process by simply
dropping the reference to ``administrative.''
Should the Committee believe it is time to study the VA
administrative claims adjudication process, we would recommend
a separate commission be established for that. The amount of
time to review the judicial process, I think, would be much
less than it would be to review the administrative process.
On behalf of the judges of the Court, I thank the Committee
for its consideration and review of the proposed legislation. I
am happy to answer any questions you may have at this time and
ask that my written statement be submitted for the record.
[The prepared statement of Judge Kasold appears on p. 50.]
Mr. Runyan. Thank you, Judge Kasold. Just kind of
elaborating a little bit on your testimony, what impact do you
really believe that the class action authority would have on
the Court's backlog?
Judge Kasold. I am not sure. You have two issues that are
really going on. One is class action authority and the other is
associational standing. The Court early on made a determination
that it did not appear we had class action authority but
ultimately made a determination that it was not needed. And one
of the reasons was because our published cases are
precedential: they are totally binding on the Secretary. So if
a veteran came up through the process and raised the issue of
this secret review that was testified to by the previous panel
of witnesses, it could be reviewed by the Court. If it were
found to be illegal, that would be binding on all the other
cases and the Secretary would then take action.
With regard to the Federal circuit, we also have a two-
tiered review here, which I think goes back to the need for the
commission. The Federal circuit can review the legality of a
regulation directly. We review it when a Board decision comes
up. So with regard to the prior testimony, the reason they went
to the Federal circuit, I submit, was not because they could
not come to us but because they could go directly to the
Federal circuit for a review of the authorization of this other
review process. And the Federal circuit's decisions are also
binding on the Secretary. So I was a little perplexed at Mr.
Stichman's statement, and I can talk to him about it later and
get clarification. But the Secretary would be bound by the
Federal circuit decision, assuming that it did not get appealed
to the Supreme Court, and the Secretary would have to follow
that decision and would not be able to use that other process
anymore.
If you came to our Court, given that we do not have
associational standing--that was another case where the Court
made a determination; brilliant dissent--I am joking. But
anyway, it was a split decision where the majority determined
that we did not have associational standing. One of the reasons
stated by the majority was the individual veteran could bring
the case. That case involved a stay by the Secretary, and that
meant the cases could not be appealed to the Court. Under the
All Writs Act a determination was made that we could review the
stay action because VA was holding back the cases. The case was
filed by an individual veteran so associational standing was
not necessary to getting a resolution of the particular issue.
So I do not think you are going to have the impact that has
possibly been suggested here.
On the other hand, a commission to seriously review this
and had that discussion with Mr. Stichman and others who are
involved in the process, I think would be very helpful.
Mr. Runyan. Okay. And really unrelated to the bills before
us, but in a way kind of, can you discuss your Court's
vacancies and its impact? Your Court vacancies and the impact
on your workload?
Judge Kasold. Yes. Mr. Chairman, I think it is having a
significant impact at this time. Judge Greene retired, which
brought us down to six judges. And I think at seven we were
struggling, and getting a little bit of a delay in certain
areas that I had testified to that I was going to look into as
Chief Judge. With the retirement of Chief Judge Greene, who by
the way is recalled during the year to continue at about 25
percent in his retired status, those 250 cases that he would
have decided are now being spread among the other judges who
are already at a peak. So it would be helpful and beneficial to
the Court if the nominations were to come.
Mr. Runyan. Thank you very much. And that is all I had. Mr.
McNerney.
Mr. McNerney. Thank you, Judge, for appearing this morning.
This is kind of a muddy issue. It is going to be hard for us to
sort through it, so I appreciate your insights here. How many
appeals are currently pending before the CAVC today? And how
does that compare with, say, 2 or 3 years ago?
Judge Kasold. It is about 4,500. And I would say 2 or 3
years ago, it was somewhere close. But compared to 5 years ago?
We are not at about double.
Mr. McNerney. So it has risen, then?
Judge Kasold. It has absolutely risen, yes, sir.
Mr. McNerney. Well, what is the remand rate, then, of
appeals back?
Judge Kasold. It is still about 70 percent. We have a new
process that was instituted by former Chief Judge Greene who
expanded the conferencing process. Previously cases had been
selectively viewed for a determination as to whether or not our
central legal staff--staff attorneys--thought they might be
able to get an agreement between the parties. A few years ago,
the Board of Judges mandated that process for all appeals
wherever there is attorney representation. At the end of the
day, there is about 65-70 percent attorney representation. Of
those cases, in about half, the Secretary in review agrees to a
remand for the various reasons that have been cited. And that
remand could be because of the Board's statement, which must be
understandably by the veteran a requirement that Congress has
imposed on the Board. Court interpretations have stated VA has
to address the material evidence, explain to the veteran why he
lost--those are all we are going to see; the ones where
veterans have lost. It could be that the duty to assist was not
fulfilled, or the medical examination came back but did not
address a particular area and the Board did not explain why
that was important. So those are reasons why it might be sent
back.
So you have the Board, which is independent and makes the
final decision for the Secretary. But then you have the
Secretary and his counsel reviewing the Board's decision after
an appeal has been made and making a judgment that a remand is
appropriate for that Board to review it, and then to possibly
send it back to the regional office which was discussed before.
Again, I think the veteran can waive that in certain instances.
But he is entitled to the two reviews.
Mr. McNerney. Okay. The class action issue has been raised
today. It has been raised before today. We have heard cases
where a large number of veterans did not receive compensation
rewards without knowing that the VA personnel services had
provided an additional level of review. How do you feel about
that with regard to the Improvement Act? Do you think that it
is going to make the situation better with regard to backlog?
With regard to cases that are adjudicated? And so on?
Judge Kasold. Again, I am not sure. A class action you
ultimately identify all of the people that are involved and
proceed. My understanding is that in the case discussed
earlier, the parties did go--the associational standing issue
did go to the Federal circuit. The Federal circuit determined
that the regulatory provisions the additional review allowed
that were not consistent with statute, and overturned that. I
am not sure you can get much--you cannot get any different
relief going to the Court of Appeals for Veterans Claims even
if you had a class action. You still would have someone coming
up to the Court. You then would have all the time and delay, et
cetera, associated with the fact finding necessary to determine
if all these people were appropriately in the class.
I know Mr. Stichman had concerns with the Secretary in
implementing that case but I do not know the ultimate facts.
But the Secretary should have stopped that process and
immediately sent those decisions either back to the regional
office or directly on up to the Board. Some of those cases were
on appeal to our Court, I imagine, because I think I have seen
one or two, and we enforced the Federal circuit and remanded
back for the proper process to be taken.
Mr. McNerney. So, I mean----
Judge Kasold. The commission might be able to elaborate on
that and study it, but I am not sure I am following why a class
action would have been necessary or valuable.
Mr. McNerney. Well, what I think I am hearing you say is
that the amount of time and effort to decide if people are
actually legitimate members of a class is going to make up for
the savings in handling these cases en masse. Is that what you
are saying?
Judge Kasold. No. I do not think we would ever--in a class
action--a legal issue as to whether or not a claim could be
processed by this separate action, the review office. But we
would not handle the individual case in a class action because
a class action has to have commonality on the issues. The only
issue that would be common in those cases is whether or not VA
could conduct this separate review. So once we determined that
the separate review could not be done, all the cases would go
back for a final individual determination by the Board. After
that, in our Court you would have to come up with an All Writs
Act petition based on cases being delayed improperly, and then
we might be able to grant jurisdiction. Again, you could go to
the Federal circuit, as they did, and get a decision directly
in the Federal circuit.
But again, in a class action we would not be rendering a
decision on their individual claims because they are all going
to be different. They are all going to have a different
disability. They are all going to have a different rating
schedule. They are all going to have a different fact basis
associated with their case, whether or not it is service-
connected. So the individual case would have to go back.
Mr. McNerney. But I mean, that is true in general with
regard to class action. So I mean what you are arguing is
against class action in general, not even just related to
veterans cases in my opinion.
Judge Kasold. Well, again, the class action would have
resolved, could have resolved--if we had the broad enough
jurisdiction to take it--the issue as to whether or not VA
could use that separate review. All I am saying is I think the
veterans got a decision on that issue, and my understanding was
they got it from the Federal circuit in a direct review.
If you were to do away with the Federal circuit review, you
would eliminate that dual track that exists. It would all come
into our Court. And I think the commission could study that
entire process. That is why I think the commission does make
sense.
Mr. McNerney. Okay. So it could do away with the judicial
review, which you are not too much in favor of?
Judge Kasold. Oh, I am not against the judicial review. I
think if you gave it to us--I was a dissent in associational
standing. I do not think it is going to impact us significantly
one way or the other. And to the extent I would have granted in
that case the association to make the argument for the veteran,
personally I do not care if the veteran makes it or the
association makes it. It is going to be reviewed, and it did
get reviewed. And I think the majority pointed out that you
could get review in our Court on the issue of--I have shifted
now, to the issue of whether or not the Secretary could stay
matters at the Board. That issue got to our Court; it got
reviewed. Associational standing would have permitted the
associations to come in and directly raise that argument.
Instead we had a veteran raise that argument and the
associations came in as amicus. I do not know that it mattered,
is my personal view. But jurisdictionally? Again, I thought we
had jurisdiction.
As far as the class action, I do think the class action
entails an awful lot of fact finding associated with that
class----
Mr. McNerney. Right.
Judge Kasold. And I will submit that once we render a
decision, it is binding on the Secretary. So I am not sure,
again, what you gain by a class action. Once one person found
out that their case was being handled by this alternate review
process, there was a way to ultimately get to the Court.
Whether or not we would have granted extraordinary relief I
cannot say. I do not recall that we have seen that. But if it
came up in a regular decision at the Board, we would have
reviewed it. If we had found it illegal, the Secretary would
have been bound by that unless he took it to the Federal
circuit and got it overturned. He would have been bound by that
process.
Mr. McNerney. Okay, I have exceeded my time. So----
Judge Kasold. Okay.
Mr. McNerney [continuing]. I yield back.
Judge Kasold. I would just like to add though, if he wanted
to--let us say the Secretary wanted to appeal to the Federal
circuit--he would also have to seek a stay of our order before
he could stop enforcing it.
Mr. Runyan. Thank you. Mr. Stutzman.
Mr. Stutzman. Thank you, Mr. Chairman. Judge Kasold has
already answered the question that I had, so I will just yield
back.
Mr. Runyan. Okay. Ms. Buerkle.
Ms. Buerkle. Thank you. I have no questions, Mr. Chairman.
Mr. Runyan. Well, obviously you answered everyone's
questions in your statement. Thank you again for your
testimony.
Judge Kasold. Thank you very much. Have a nice day.
Mr. Runyan. You, too. The next panel, please come forward.
The third panel consisting of Ms. Diana Rubens, the Associate
Deputy Under Secretary for Field Operations for the Department
of Veterans Affairs, who is accompanied by Mr. Dick Hipolit
from the VA's Office of General Counsel and Mr. Steve Keller,
Acting Chairman of the Board of Veterans' Appeals. We also have
Ms. Kathryn Condon, the Executive Director of the Army's
National Cemeteries Programs. Let us begin with the VA.
STATEMENTS OF DIANA M. RUBENS, ASSOCIATE DEPUTY UNDER SECRETARY
FOR FIELD OPERATIONS, VETERANS BENEFITS ADMINISTRATION, U.S.
DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RICHARD J.
HIPOLIT, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL,
U.S. DEPARTMENT OF VETERANS AFFAIRS; AND STEVEN KELLER, ACTING
CHAIRMAN, BOARD OF VETERANS' APPEALS, U.S. DEPARTMENT OF
VETERANS AFFAIRS; AND KATHRYN A. CONDON, EXECUTIVE DIRECTOR,
ARMY NATIONAL CEMETERIES PROGRAM, OFFICE OF THE SECRETARY OF
THE ARMY, DEPARTMENT OF THE ARMY,
U.S. DEPARTMENT OF DEFENSE
STATEMENT OF DIANA M. RUBENS
Ms. Rubens. Mr. Chairman, Ranking Member McNerney, Members
of the Committee, thank you for the opportunity to provide the
VA's views on pending legislation that would affect VA
programs. As you said, I am accompanied by Acting Chairman
Steve Keller and Assistant General Counsel Dick Hipolit.
I do apologize for the delay for getting the testimony to
you in a timely manner. While there were only four bills, it
did require coordination among various organizations within VA.
We will work to meet your timeliness in the future.
H.R. 1407, the ``Veterans' Compensation Cost-of-Living
Adjustment Act,'' would mandate a cost-of-living adjustment in
the rates of disability compensation and dependency and
indemnity compensation payable to periods beginning on or after
December 1, 2011. VA supports this bill and believes that our
veterans and their dependents deserve no less.
H.R. 811, the ``Providing Military Honors for Our Nation's
Heroes Act'' would authorize VA to reimburse a member of a
veterans service organization or other organization approved by
VA for transportation and other appropriate expenses incurred
in connection with the voluntary provision of a funeral honors
detail at a veteran's funeral in any cemetery, including a
funeral honors detail requested by a funeral home.
While VA appreciates the bill's focus on supporting the
provision of funeral honors, VA does not support the bill for
the following reasons. The Department of Defense currently
provides funeral honors details for veterans funerals. DoD is
required to provide on request a funeral honors detail at the
funeral of any veteran. VA and DoD have successfully partnered
to provide funeral honors at VA national cemeteries and funeral
honors at national cemeteries are provided by servicemembers as
well as VSOs and individual volunteers on behalf of DoD.
Reimbursement by VA under H.R. 811 would duplicate
reimbursement by DoD, which is currently authorized by statute
to reimburse persons who participate in a funeral honors
detail.
Additionally, by authorizing reimbursement for expenses
incurred by one category of volunteers, H.R. 811 would create
an inequity between them and other VA volunteers. Volunteers
who provide essential services at our VA medical centers, who
assist families at committal services, or who place gravesite
flags on Memorial Day may feel their service is somehow less
valued because they receive no reimbursement for their
expenses.
H.R. 1647, the ``Veterans' Choice in Filing Act of 2011'',
would require VA to carry out a 2-year pilot program under
which certain veterans may submit claims to any RO. VA opposes
this bill and conducting this pilot program would not benefit
VA claimants by improving either the efficiency or quality of
the VA claims benefits process nationwide. Of primary
importance is the danger that this program would create forum
shopping. The expectations about speed and outcomes created by
such legislation would likely only frustrate claimants. VA's
energies are best spent on a systemwide effort to improve
performance at all regional offices.
Under existing statutory authority, VA distributes or
brokers claims among regional offices based on performance,
workload, and other factors when necessary and feasible. In
fact, from 2008 through 2010 over 300,000 claims were moved
among offices. VA determines whether to broker cases in or out
of ROs based on various factors, including the allocation of
workload and resources at those offices. If claimants were to
determine where to file claims, many ROs might not be equipped
to handle an unexpected workload that may result.
H.R. 1484, the ``Veterans Appeals Improvement Act of
2011,'' seeks to improve VA's appeals process and would
establish a veterans judicial review commission. In section two
of the bill, focus on the process would require new evidence
submitted by a claimant after filing a substantive appeal be
submitted to the Board of Veterans' Appeals unless the claimant
specifically requests the evidence be reviewed by a regional
office before being submitted to the Board. This section two of
the legislation actually has a common theme with a provision in
a draft bill Secretary Shinseki submitted to Congress in May of
2010. VA would be very happy to work with the Subcommittee on
any technical language in section two of
H.R. 1484.
Section three of H.R. 1484 would establish the Veterans
Judicial Review Commission to evaluate the administrative and
judicial appellate review processes of veterans and survivors
benefits determinations and recommend whether the Court of
Appeals for Veterans Claims should have authority to hear class
action cases. VA does not support section three. The
administrative and judicial appellate review processes have
been the focus of extensive studies and Congressional hearings
that have resulted in a number of recommendations. While VA
appreciates the aims expressed in section three, we believe the
commission would duplicate the ongoing work of VA, Congress,
the VSOs, and others who are now able to engage in policy
discussion aimed at improving the claims process.
With regard to whether the Veterans Court should have the
authority to hear class action cases, such authority would not
be beneficial because the outcome of each veteran's case
depends largely on very specific facts of each case. Class
actions are also not necessary because under rules already in
place potential members of a class receive a benefit of a
precedent decision by the Veterans Court. Class action
authority is unnecessary. It would largely be redundant.
This concludes my statement, Mr. Chairman. I appreciate the
opportunity to share views on the proposed legislation, and I
would be happy to entertain any questions you may have.
[The prepared statement of Ms. Rubens appears on p. 52.]
Mr. Runyan. Thank you. Mr. Hipolit, do you have a
statement?
Mr. Hipolit. No, I do not have a prepared statement.
Mr. Runyan. Thank you very much. Mr. Keller.
Mr. Keller. I, too, do not have a prepared statement.
Mr. Runyan. Oh, Ms. Condon.
STATEMENT OF KATHRYN A. CONDON
Ms. Condon. Mr. Chairman, Ranking Member McNerney, and
distinguished Members of the Subcommittee, thank you for the
opportunity to provide the Department of the Army's views on
the proposed legislation that impacts Arlington Cemetery. Those
views in support of that legislation are reflected in my
written statement that I would like to submit for the record.
On behalf of the cemeteries, Arlington National Cemetery
and the U.S. Soldiers' and Airmen's Home National Cemetery, and
the Department of the Army, I would like to express our
appreciation for the support that Congress has given to the
cemeteries. And in particular, Mr. Chairman, I would like to
thank you for the support that you have personally given to the
Superintendent and I of late.
I decided to keep my opening remarks short, and I look
forward to answering any questions you may have on the
legislation and Arlington's views.
[The prepared statement of Ms. Condon appears on p. 57.]
Mr. Runyan. Thank you very much. I am going to start off
with Ms. Rubens, actually. In your written testimony you stated
that you are concerned that under the Choice inFiling Act the
information about the performance of each RO could be driven--
excuse me. You have a lot of VA health facilities. And they are
rated, and it is public knowledge. And the concern is, and we
talked about it a little bit with the last panel, of making it
public knowledge and kind of allowing veterans to know what
they are going into as part of this process. And is there any
way we can try to make this process happen and just make them
aware of what is going on? I understand we do not want to tag
people as underperforming and all that kind of thing. But we do
want to make them aware of the situations they are getting
into.
Ms. Rubens. Mr. Chairman, thank you, yes. I am very
familiar, particularly I think as you are referring to the
Veterans Health Administration's (VHA's) public facing
information on all of the medical centers. VBA is in the
process of standing up a very similar Web site that will be
outward or public facing very shortly. Internally, we have
access across all regional offices to that information, and
share that freely with VSOs and Members of the Subcommittee and
the Committees on the Hill here. But we are interested in
making that available to veterans. It will have some of that
same effect, although I agree with your statement in terms of
it is human nature to be competitive. Our hope is that as
employees realize information is being shared about the
regional offices in an exterior way that we will all be much
more cognizant of how we can improve not just in each regional
office but at the national level in a systemic way.
Mr. Runyan. Going back to being competitive, when will that
Web site be up and operational?
Ms. Rubens. Sir, I will have to get back to you. It will
probably be within the next 6 to 8 weeks, at the latest. We are
very close to having that information. The Web site internally
is being vetted at the highest levels within VA and is nearly
ready to be posted formally to the public.
[The VA subsequently provided the following information:]
The ASPIRE Web site went live on June 30, 2011. VBA's press
release to announce this is available at: http://www.va.gov/
opa/pressrel/pressrelease. cfm?id=2125.
Mr. Runyan. Do you have, I mean, obviously we do not want
any of our veterans to be put at a disadvantage because of
where they live. And we really need to work together on this.
Do you have any further ideas on how we can accomplish this?
Ms. Rubens. Yes, sir. Thank you. I will tell you that when
Secretary Shinseki arrived he set some very aggressive goals
with VA, and for VBA in particular. So that by 2015 no claim
takes over 125 days. And we do that with a 98 percent quality
level. No small undertaking by any stretch. We have been
engaged in the last nearly 2 years in a process that looks at
people, the process, and the technology engaged in providing
veterans benefits. The goal here is to ensure that veterans
across the country receive a consistent high quality service.
The issue of accountability that came up earlier, I will tell
you that from my standpoint it is about hiring the right
people, giving them the right training, setting the
expectations, and then holding them accountable. VBA has done
that from front line employees, to division-level managers, to
directors, from regional office to regional office.
As we implement our transformation plan, the goal will be
to ensure that we get the right people in the right places.
That we get the process that is as streamlined as we possibly
can make it. Add the technology, the Veterans Benefits
Management System that will take us to a paperless environment
that will ensure 125 days at 98 percent quality is very doable
by 2015.
Mr. Runyan. Thank you. My next question is for Ms. Condon,
and your comments on H.R. 1627. You state that you believe that
Congress should maintain the requirement of having a joint or
concurrent resolution in order for a commemorative monument to
be placed at Arlington. Since it can take Congress such a long
time to move such legislation, would it be easier if we gave
that authority to the Army?
Ms. Condon. Sir, I really think that there is a benefit to
having a joint and concurrent resolution by Congress so that
there is oversight by all jurisdictions. And the reason why I
would not want that in the Army is I really do think that that
is a decision that should be made by Congress and we will
comply with that.
Mr. Runyan. Well, my thoughts in my line of questioning are
at some times up here on the Hill it can become very political,
a decision like that. And I just wanted to put that out there
because as you, if you would turn something, there would be
specific criteria that would have to be met in that process.
And any comment to that?
Ms. Condon. Sir, I really do think that there should be
criteria, and the most important thing is that when a monument
is erected at Arlington, that it does not use a space that we
could bury an eligible veteran. So it would have to be placed
in a space where we could not bury someone. As for criteria, I
realize that it could be political. But when you look at the
reason why someone would erect a monument at Arlington, it
would be for their service to our Nation. So I do not know if
that could be deemed as political or not.
Mr. Runyan. Thank you very much. And with that, Mr.
McNerney.
Mr. McNerney. Thank you again, Mr. Chairman. Thank you, Ms.
Condon, Ms. Rubens. Ms. Condon, given the sort of sacrifices
that are made by veterans, what do you think would be
appropriate standards for determining when a monument should be
placed in Arlington?
Ms. Condon. Sir, I think that should be for a significant
event. The resolution that is currently on the floor is for a
chaplains monument for all of the Jewish chaplains that served
our country because they were not on any other monument in the
cemetery. I think it would have to be for a specific event that
occurs, or a specific battle, etcetera. We should put a
monument for the Cemetery.
Mr. McNerney. Okay. What is the problem with the current
set of standards then for monument placement?
Ms. Condon. Sir, I really do not have a problem with the
current set of standards. What I really am supporting is that
we do have a Congressional resolution and that we do go through
the Commission of Fine Arts to make sure that we have a
standard that they agree with as well. So I do not have any
issue right now with the standards that we are using today.
Mr. McNerney. Thank you. Ms. Rubens, you indicate that the
language in section two of H.R. 1484 does not provide an
automatic waiver. However, you propose language that seems to
put the onus on the veterans, or her or his representative, to
specify what to send and who to send the information to. On the
other hand, I think the onus should be on the VA. So is it your
understanding that the substantive appeals process is governed
by statute?
Ms. Rubens. I am going to ask Mr. Hipolit to address that
question, sir.
Mr. Hipolit. The problem that we see with the current
system is that it requires the veteran to affirmatively waive
review by the agency of original jurisdiction before the Board
can consider new evidence. We think that our bill would create
greater efficiency because it would allow new evidence to
automatically be considered by the Board when it is submitted
after the substantive appeal is filed. The veteran would still
have the right to request agency of original jurisdiction
review if they wanted to do that, but it would I think
encourage review in the first instance by the Board when new
evidence comes in while the appeal is pending. And we think
that would be a substantial efficiency improvement and benefit
all veterans. We do not think we can do that under our existing
authority.
Mr. McNerney. Okay. Well, if section two of H.R. 1484 is
enacted, the VA would have to make changes in its regulations
and forms consistent with the law. Is that also your
understanding?
Mr. Hipolit. Yes. Of course, we would implement the
statute; we would model our procedures and so forth to fit
whatever the statutory standard is.
Mr. McNerney. Okay. On the Military Honors for Our Nation's
Heroes, with the understanding that providing military honors
at veterans' burials and reimbursing those who participate is a
DoD function, what does the VA recommend with regard to
reimbursing volunteers who participate? I took it from your
testimony that you feel that they should not be reimbursed at
all. Is that your position?
Mr. Hipolit. I will take that question. Currently under
title 10, U.S. Code, the Department of Defense has substantial
authority to organize and reimburse funeral honors details.
There is substantial authority there to provide funeral honors
details for any veteran where there would be armed forces
participation. To the extent that there are veterans service
organization participants or other volunteers, the Defense
Department currently has authority to reimburse those
volunteers, to pay travel expenses, and other expenses, or to
pay a daily stipend for their participation. So for those
volunteers, the Defense Department currently has authority to
reimburse them when they participate in a DoD organized funeral
honors detail.
Mr. McNerney. I have been to funerals where there was just
barely a ragtag group that managed to put together whatever
they could, and I found that fairly unsatisfying, including my
own father-in-law. What are the rules for the DoD to reimburse?
Or what are the rules? I mean, just give me a broad outline.
Ms. Condon. Sir, even though I was here to speak for the
Arlington legislation I did do my homework on that prior to
coming to----
Mr. McNerney. I figured you would.
Ms. Condon [continuing]. Prior to coming here today. As you
know, this falls under OSD Personnel and Readiness. But the
bottom line is the rules are that there would be providing two
individuals for each funeral service and also that taps would
be played. If there was not a bugler, then it would be played
with a very distinct recording. That is what is supposed to be
provided for a veteran who requests to have honors at their
ceremony.
Mr. McNerney. It seems to me that someone who has served
and deserves, if a VSO wants to participate, that they should
be compensated to some degree. And that seems to be opposed to
what Ms. Rubens is saying. And I would like to see if there is
some way to get by that purpose.
Mr. Hipolit. To clarify, we are not saying we are opposed
to reimbursement for expenses for volunteers. We are just
saying there is existing DoD authority to do that. So instead
of creating a new program that would overlap to a large degree
with the DoD program by providing VA new authority to do this,
we think that there is existing authority. And if there are
problems with it how that is working, maybe the best thing to
do would be to look at that to see if there needs to be some
adjustments to that authority.
Mr. McNerney. Well, one might be when there is no military
presence. I mean, certainly there are not military personnel,
active-duty personnel, at every veteran's funeral. In which
case we need to have some set of guidelines for compensation.
That is----
Mr. Hipolit. And we are not opposed to that compensation.
We are just saying we should look at the existing DoD authority
and see if maybe that needs to be adjusted before we create a
whole new program.
Mr. McNerney. I yield back.
Mr. Runyan. Ms. Buerkle, do you have any questions?
Ms. Buerkle. Thank you, Mr. Chairman, and thank you to our
panelists. I just want to follow up on my colleague Mr.
McNerney's with regard to this whole DoD versus VA, and the
funeral. Is there an instance where DoD would turn down a
request if asked?
Mr. Hipolit. I cannot speak for DoD on that. I will defer.
Ms. Condon. Ma'am, I would have to take that for the record
and get an answer back to you if we actually denied a request.
But I do know that we do have the authority to reimburse for
actual expenses, travel to and from, and provide a daily
stipend for those volunteers who meet the requirements. But
actually denial? I will have to take that for the record and
get an answer back to you.
[The DoD subsequently provided the following information:]
Yes, a request for compensation would be turned down for
those units who perform funeral honors without participating
with a military unit who had the primary mission of providing
military funeral honors for the veteran.
The Secretary of Defense is responsible for military funeral
honors as established in Public Law 106-65, the National
Defense Authorization Act (NDAA) of FY 2000. The NDAA FY 2000
amended section 1491 of title 10, United States Code to require
at a minimum, a two-person detail from the armed forces (other
than members in a retired status) and at least one of whom
shall be from the service of the deceased veteran. The funeral
honors detail shall, at a minimum, perform at the funeral a
ceremony that includes the folding and presentation of the flag
to the veteran's family and the playing of Taps. A live bugler
is preferred, but a recorded version is authorized.
To comply with the provisions of title 10, section 1491, the
DoD developed existing procedures outlined in Department of
Defense Instruction Number 1300.15, ``Military Funeral
Support'' which includes expense reimbursement or support to
Veterans Service Organizations (VSO) or other volunteers.
In addition to requiring a two-person detail to provide
military funeral honors, the law also recognizes the valuable
role that members of Veteran Service Organizations (VSO) play
in honoring our veterans. Section 1491(b) authorizes members of
VSOs, and other approved organizations, to participate with the
Military Services in providing funeral honors. It stipulates
that the Secretary of a military department may provide either
transportation (or reimbursement for transportation) and
expenses or a daily stipend that is designed to defray the
costs for transportation and other expenses incurred by the
participant in connection with participation in the funeral
honors detail.
The Department of Defense initiated a program that focuses on
using volunteers. This program, known as the Authorized
Provider Partnership Program (or AP3), trains volunteers to
assist in providing MFH as ``Authorized Providers.'' Volunteers
may provide funeral honors elements in addition to flag folding
and the sounding of Taps. Volunteers can augment a DoD detail
in several ways including participation as firing party
members, pallbearers, honor guard members, or as buglers. It is
important to note that the law stipulates that Authorized
Providers can only be provided reimbursement or the stipend
when they participate with the military in rendering funeral
honors. VSO or other volunteer units who provide funeral honors
at the direct request of funeral directors are not eligible for
this support. In these cases, the military service concerned is
unaware of the veterans' passing or a request for military
funeral honors.
Ms. Buerkle. Okay. Thank you very much. I want to ask Ms.
Rubens regarding H.R. 1427, going back to the veterans and the
cost-of-living increase, your testimony here mentions that the
COLA would be the same as the COLA provided under current
Social Security benefits, which currently I estimate to be an
increase of 0.9 percent. Now I have heard from many Social
Security recipients that the last 2 years they have not
received a cost-of-living increase, and they also object to the
fact that this cost-of-living increase is based on not food,
and not gasoline, and not the things that we use most. So my
concern would be we give this cost-of-living increase to the
veterans but it really does not address their needs, and it
does not address where we have seen inflation, and where we
have seen the cost of living go up. So I just, if you could
speak to that issue?
Ms. Rubens. Yes, ma'am. Thank you. The cost-of-living
adjustment is currently scheduled at 0.9 percent. Similar to
Congressman Walz I did fill up this weekend and did feel the
pinch at the pump, and recognize that it will not cover perhaps
some of those things that are day to day living and we will
look at. But I do not know that we have any authority to do
anything other than look at the proposal on the table and
support. I would say that because we have not had something in
the last few years we want to make sure we are supporting the
COLA. And we will look at that dollar amount and have that
discussion.
Ms. Buerkle. Thank you very much. I yield back, Mr.
Chairman.
Mr. Runyan. Thank you. I just have one more question for
Ms. Rubens. After the Nehmer settlement, how much brokering is
actually going on at the VA?
Ms. Rubens. Sure. Chairman Runyan, if I understand the
question, this fiscal year, our, what had formerly been known
as our resource centers where we had brokered claims, and I had
mentioned between 2008 and 2010, because in 2011 we have been
engaged in the readjudication of the Nehmer claims. The
Secretary in October of 2009 added the three new presumptive
conditions due to the exposure of Agent Orange. And that
completed the regulatory period and the Congressional review
act on October 30, 2010. What we are now referring to as our
day one brokering centers, formerly the resource centers. And
the difference is we have staffed those offices to now do both
development of evidence for claims as well as rating of claims
and making final decisions in our resource centers, day one
brokering centers. They have actively been engaged this year in
processing the 93,000 claims that we identified that would need
readjudication under the provisions of the Nehmer decision. And
so brokering has been very limited this fiscal year, to some
small offices that are not engaged in working those Nehmer
claims. And so within service centers we have provided support
to challenged offices to ensure that veterans are being
attended to for their claims.
Mr. Runyan. Thank you. Mr. McNerney, do you have any
further questions?
Mr. McNerney. Yes, I do actually. Thank you. Ms. Rubens,
the average waiting period for an appeal filed at the BVA is
almost 3 years now. How might section two of H.R. 1484 improve
that situation?
Ms. Rubens. The process that would allow us to refer new
evidence once we had a substantive appeal from the veteran
directly to the Board of Veterans' Appeals would make that a
quicker, more streamlined effort so that the regional office or
the agency of original jurisdiction would not have to first
weigh in on that evidence. It would be referred to the Board,
saving time. I'd also ask Mr. Keller if he had any additional
comments to add to that?
Mr. Keller. It would save time in that evidence submitted
by the claimant would go directly to the Board unless the
claimant wished it to go to the RO. We know at least 1,600
cases in the past year would have been affected by this. There
are other cases which since we have colocated VSOs with us here
in Washington, we just run it downstairs and ask them if they
would wish to waive regional office consideration. That is
convenient for the colocated VSOs, but other representatives
are not colocated. And that creates delays. So we would
experience some improvement in the timeliness of claims.
Mr. McNerney. Well, it looks to me like we have about 4,800
currently pending? Forty-eight thousand, excuse me, currently
pending cases. So 1,600 is the number you said per year that
you felt would be improved?
Mr. Keller. Yes. Those are claims physically at the Board.
We have a total of about 30,000 claims at the Board, many of
which are with the veterans service organizations. They
represent the veterans.
Mr. McNerney. So we still have a lot of room for
improvement.
Mr. Keller. Oh, yes we do. Absolutely.
Mr. McNerney. Okay. Thank you.
Mr. Runyan. Ms. Buerkle, do you have any further questions?
Ms. Buerkle. Thank you, yes. I just want to follow up, Ms.
Rubens, with regards to you mentioned Secretary Shinseki has
been very aggressive and by 2015 that there would be this 125
days for claim adjudication. Is that happening now? I mean, it
is not just going to happen automatically in 2015. This is the
common complaint you hear from veterans. It just takes so long,
and there is such uncertainty. So should we expect to begin to
see improvement? And if you could, elaborate a little bit on
how this will take care of the backlog, and how it will improve
so dramatically?
Ms. Rubens. Certainly. VBA has been very fortunate in the
last few years to have the opportunity to bring quite a few new
people onto our rolls to help us process claims. From that
standpoint we are working very hard to get them trained. It
takes about 2 years to get to full journey-level status. The
good news is we have the challenge in front of us of getting
those folks trained. We are also working very hard across VA,
it is not just within VBA but across VA, to address the process
of the claims adjudication itself, working not only with
members of the Board on the appellate piece, but also in
particular our counterparts in VHA. As we have worked on this
transformation plan we have also actively engaged members of
the veterans service organization to participate with us, to
look for things that will help us streamline the process and
improve the process for veterans.
No, it will not happen overnight. I do anticipate that in
fiscal year 2011 as we move beyond the readjudication of the
Nehmer claims that we have got, we will begin to see
improvements in individual regional offices and across the
country for claims processing throughout the end of 2011 and
2012. That will, I think, be accelerated in 2012 in particular
as we begin to implement more fully the Veterans Benefits
Management System. It is a three-phased approach. Phase one
started last November in Providence. We have platformed, if you
will, a paperless technology, working to ensure that we have
all the advantages of technology and working in a paperless
environment. We will roll into phase two later this month, with
phase three scheduled to begin in November of this year. With
the expected full roll out of VBMS beginning at the end of
fiscal year 2012. In an effort to a very all encompassing
approach ensure that all veterans across the country are
getting improved service as we go, working to meet those very
aggressive timelines that the Secretary has set for us.
Ms. Buerkle. And so the three pillars were technology, and
what were the other two?
Ms. Rubens. People, process, and technology. So we think it
is about having the right people in the right jobs. We think it
is about making sure we have the right process in place. And
that technology overlaid on that will give us much improved
service across the board as well. So those three things in
combination.
Ms. Buerkle. Very good. Thanks so much.
Mr. Runyan. Thank you. With that, Mr. McNerney, do you have
any closing statement or further questions?
Mr. McNerney. No, I just yield back.
Mr. Runyan. Well, thank you very much. I want to thank all
the witnesses today for your testimony. It is always welcome
and we value your input. I want to remind everyone that the
Subcommittee on Disability Assistance and Memorial Affairs will
hold a markup at 1:30 p.m. this Thursday in Room 334.
I would ask unanimous consent that Members have 5
legislative days to revise and extend their remarks on any of
the bills we have discussed today. And if there is no further
business we are adjourned.
[Whereupon, at 9:48 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Jon Runyan, Chairman,
Subcommittee on Disability Assistance and Memorial Affairs
Good morning. The legislative hearing on H.R. 811, H.R. 1407, H.R.
1441,
H.R. 1484, H.R. 1627, H.R. 1647, and H. Con. Res. 12 will come to
order. I want to thank you all for your attendance at this hearing at
such an early hour. With two other hearings of the Veterans Committee
today we had to do some unorthodox scheduling.
While the scheduling of this hearing was not optimal, it was also
not utterly unreasonable. To my understanding most of the witnesses
were able to submit their testimony on time despite the rigid timeline.
I therefore am very disappointed with the lateness of VA's testimony.
It is understandable that it can be difficult to get testimony through
the clearance process; but it is wholly unacceptable to receive
testimony 15\1/2\ hours before the hearing. Members and staff must be
given time to do our jobs and properly prepare for your testimony.
Before I recognize Ranking Member McNerney and other Members of the
Committee I wanted to just briefly touch on three bills on today's
agenda that I have introduced.
H.R. 1407, the Veterans Cost of Living Adjustment Act of 2011
provides a cost-of-living increase to veterans' disability compensation
rates and other benefits. This increase is tied to the cost-of-living
adjustment for Social Security benefits.
H.R. 1441 codifies regulations and policies that bar reservations
for burial or interment at Arlington National Cemetery, made on or
after January 1, 1962.
Like many people I was shocked to learn about recent allegations
that veterans had been given unofficial reservations by the former
management at Arlington National Cemetery.
I applaud the decision of the new management team, headed by Ms.
Condon, to not honor these unofficial reservations. This bill makes the
policy crystal clear by putting it into law.
My final bill is H.R. 1647 the Veteran Choice in Filing Act. This
bill directs VA to establish a pilot program that would allow veterans
who live in the jurisdiction of five underperforming regional offices
to choose which regional office they would like to have their claim
adjudicated.
While I understand that many stakeholders here today have some
questions in regard to the logistics of the bill, I am sure we can all
agree that it is inequitable for veterans in one part of the country to
have more accurate and timely decisions than a veteran in another part
of the country.
My bill is meant to start the discussion on addressing this
inequity and I look forward to hearing suggestions from our
stakeholders here today on how we can work together to ensure all
veterans claims are timely and accurate. We will continue to discuss
this issue at a hearing we are having on underperforming regional
offices on June 2nd.
I would ask all of today's witnesses to summarize your written
statement within 5 minutes and without objection, each written
testimony will be made part of the hearing record.
Before we begin with testimony, I now yield to the distinguished
Ranking Member from the great State of California for any remarks he
may have.
Prepared Statement of Hon. Jerry McNerney, Ranking Democratic
Member, Subcommittee on Disability Assistance and Memorial Affairs
Thank you, Mr. Chairman.
I would like to thank you for holding today's hearing.
This morning, we are considering seven pieces of legislation
ranging from the claims process, appeals modernization and memorial
issues at VA cemeteries and Arlington National Cemetery.
However, I would be remiss if I did not mention the oddity of the
8:00 a.m. hearing hour and the frequent scheduling changes that
preceded it--of at least five. I hope that this high level of confusion
and frequency of changes can be avoided in the future--and that more
consideration can be shown for our colleagues and our witnesses.
Today, we will consider two pieces of legislation that seek to make
the VA claims process and the appeals process more efficient and
effective for our Nation's veterans--specifically, the Veterans Appeals
Improvement Act of 2011, H.R. 1484, introduced by the Ranking
Democratic Member of the Full Committee, Mr. Filner, and your bill, Mr.
Chairman, H.R. 1647, the Veterans' Choice in Filing Act.
The provisions of Ranking Member Filner's bill, aim to continue the
successful process began with enactment of P.L. 110-389 of making
positive changes to the way our veterans' claims and appeals are
handled by the Veterans' Benefits Administration (VBA), Appeals
Management Center (AMC), Board of Veterans' Appeals (BVA), and Court of
Appeals for Veterans Claims (CAVC). Additionally, H.R. 1484 would also
establish a Commission to examine some of the overarching and
longstanding judicial and administrative issues that contribute to what
many stakeholders refer to as the ``hamster wheel.'' I look forward to
delving again into these issues with all of the stakeholders in a
bipartisan manner.
I'd also like to address your legislation, Mr. Chairman, the
Veterans' Compensation Cost-of-Living Adjustment Act of 2011. H.R.
1407, has my full support. Many of the nearly 3 million veterans who
receive these benefits depend upon these tax-free payments not only to
provide for their own basic needs, but for those of their spouses,
children and parents as well. We would be derelict in our duty if we
failed to guarantee that those who sacrificed so much for this country
receive benefits and services that fail to keep pace with their needs.
Finally, four of the remaining measures that we will consider today
address memorial issues, H.R. 811, H.R. 1441, H.R. 1627 and
H.Con.Res.12.
I look forward to hearing from our DoD witnesses as we discuss the
three measures relating to the placement of monuments and grave
reservations at Arlington National Cemetery. I also am pleased that we
will have a chance to consider Ranking Member Filner's bill, Providing
Military Honors for our Nation's Heroes Act, H.R. 811, which would help
ensure that all our veterans receive the full burial honors that they
deserve. It is critical that we honor our veterans' service and
sacrifice appropriately as they are laid to rest.
During times of war, such as today, we must simultaneously ensure
the proper compensation and support for our current veterans while also
creating and implementing innovative solutions that will allow us to
care for those who will become veterans of our current conflicts. I
think the bills under consideration today strike that balance.
Mr. Chairman, I thank my colleagues, Chairman Miller, Ranking
Democratic Member Filner, and Mr. Weiner for introducing the other
measures before us today. I look forward to hearing from all of our
witnesses.
Thank you and I yield back.
Prepared Statement of Christina M. Roof,
National Acting Legislative Director, American Veterans (AMVETS)
Chairman Runyan, Ranking Member McNerney and distinguished Members
of the Subcommittee, on behalf of AMVETS, I would like to extend our
gratitude for being given the opportunity to share with you our views
and recommendations regarding H.R. 811, H.R. 1407, H.R. 1441, H.R.
1484, H.R. 1627, H.R. 1647 and
H. Con Res. 12.
AMVETS feels privileged in having been a leader, since 1944, in
helping to preserve the freedoms secured by America's Armed Forces.
Today our organization prides itself on the continuation of this
tradition, as well as our undaunted dedication to ensuring that every
past and present member of the Armed Forces receives all of their due
entitlements. These individuals, who have devoted their entire lives to
upholding our values and freedoms, deserve nothing less.
Given the fact this testimony will be addressing several pieces of
legislation, I shall be addressing each piece of legislation
separately, as to make AMVETS testimony clear and concise on the
individual subject matters of the bills.
AMVETS supports H.R. 811, the ``Providing Military Honors for our
Nation's Heroes Act.'' With the growing demand for Military Honors at
burials today and the lack military personnel or volunteers with the
financial means to perform them, many of our Nation's fallen heroes are
going without proper honors at their funerals. AMVETS finds this
poignant reality unacceptable and avoidable. Even with the low number
of volunteers capable of performing these earned burial honors, many
more could be performed if there were resources available to these
selfless organizations who travel the country to ensure every veteran
and soldier has a proper funeral. Moreover, if reimbursements were made
available more organizations and individual volunteers could start to
offer their services of providing military honors as well. Finally,
AMVETS is quite clear on the State of our Nation's budget, however
while we fully support fiscal responsibility we do not believe that any
man or woman who has served this great Nation should be denied a proper
burial in an effort to balance the budget. AMVETS again lends their
strong support to H.R. 811.
AMVETS strongly supports H.R. 1407, the ``Veterans' Compensation
Cost-of-Living Adjustment Act of 2011.'' H.R. 1407 or ``COLA'' is
critical in ensuring the areas of need regarding today's cost of living
are adjusted annually. Wartime Disability Compensation, the Clothing
Allowance for severely disabled veterans, Dependency and Indemnity
Compensation to Surviving Spouse and Dependency and Indemnity
Compensation to Children monetary values must be increased every year
to sustain veterans, dependents and survivor's current quality of life.
AMVETS urges the swift passage of H.R. 1407 and offers our unwavering
support.
AMVETS supports H.R. 1441, to amend title 38, United States Code,
to codify the prohibition against the reservation of gravesites at
Arlington National Cemetery, and for other purposes.
Under title 32 U.S.C., Chapter V, section 553, subsection
553.18(a), the present policy of the Department of the Army, only one
gravesite is authorized for the burial of a servicemember and eligible
family members. Furthermore, 5553.18(b) states that gravesites may not
be reserved. However, it has been brought to attention of AMVETS that
``de facto reservations'' of plots were still being made in direct
violation to the Army's policy of prohibition of reservations
established in 1962. According to Kathryn Condon, the executive
director of the Army National Cemeteries Program, as of March 2011
there were 3,500 reservations on file, although it is unclear how many
of those 3,500 are valid. AMVETS finds this to be unacceptable and
disgraceful, given the importance of what Arlington National Cemetery
is tasked with. Moreover, while AMVETS completely understands the
esteem and honor of being interred at Arlington National Cemetery, we
find it objectionable for any person to go against the Army's 1962
regulation prohibiting of burial site reservations and to reserve a
site that just might be needed for someone who perishes in combat
tomorrow. Furthermore, AMVETS believes H.R. 1441 stands to codify the
Army's regulation and also stands to provide accountability and
transparency to the process. One's status in life should not determine
their eligibility of interment over anyone else's. Once again, AMVETS
supports H.R. 1441 and further urges Congress to have the strictest of
oversight in the implementation of the electronic tracking system at
Arlington National Cemetery, as well as the reservation review process,
currently taking place at Arlington National Cemetery.
AMVETS supports H.R. 1484, the ``Veterans Appeals Improvement Act
of 2011.'' AMVETS believes H.R. 1484 stands to expedite the claims
process, especially in light of the recent changes to laws regarding
mental health, Agent Orange and several other areas. AMVETS further
believes that through the amending of title 38, section 7104 the claims
process will be sped up through the avoidance of duplication of efforts
and unnecessary paper shuffling. Moreover, AMVETS believes that an
unpaid committee tasked with identifying the weaknesses and
duplications within the Veterans Benefit Administration's claim process
only stands to assist VBA in developing accurate and expedited claims
processing practices, as well as identifying the causes that have led
VBA to be stuck in a never ending cycle of backlogs and improperly
adjudicated claims. While AMVETS applauds VA in their recent efforts to
electronically streamline the claims process, unfortunately little
improvement has been made and the backlog continues to grow. AMVETS
believes that if the proposed ``Veterans Judicial Review Commission''
is held accountable to meeting all standards, guidelines and deadlines
as outlined in H.R. 1484, VBA stands to gain valuable information that
could lead to great improvements to the entire VA claims process. The
unpaid commission will be able to focus strictly on the overall
process, thus being able to identify strengths and weaknesses
throughout the entire VBA claims system. AMVETS strongly believes to
effectively, efficiently and correctly run any program there must be
regular internal and external audits to identify the aforesaid.
Therefore, AMVETS lends our support to H.R. 1484.
AMVETS strongly supports H.R. 1627, to amend title 38, United
States Code, to provide for certain requirements for the placement of
monuments in Arlington National Cemetery, and for other purposes.
AMVETS believes the proposed language in H.R. 1627 will provide
necessary clarity, as well as uniformed defined requisites for the
placement of acceptable monuments in Arlington National Cemetery.
Furthermore, AMVETS believes that mandating monuments only be erected
in areas not suitable for interment will provide the opportunity for
more of our Nation's fallen heroes and qualifying veterans to be laid
to rest in these sacred grounds.
AMVETS cannot support H.R. 1647, the ``Veterans' Choice in Filing
Act of 2011,'' in its current form. While AMVETS is happy to see new
ideas and ``out of the box'' thinking, we still have concerns on the
language in H.R. 1647. So at this time, AMVETS cannot support H.R.
1647, however we are willing to work with the Committee on H.R. 1647 to
see if any language could be changed, so that it addresses AMVETS
current concerns.
AMVETS supports H. Con. Res. 12, expressing the sense of Congress
that an appropriate site on Chaplains Hill in Arlington National
Cemetery should be provided for a memorial marker to honor the memory
of the Jewish chaplains who died while on active duty in the Armed
Forces of the United States. Currently there are three monuments at
Arlington National Cemetery for chaplains. One for those killed in
World War I and one each for Roman Catholic and Protestant chaplains
who died in 20th-century conflicts, including Korea and Vietnam. The
three sit side-by-side in an area known as ``Chaplains Hill.'' The 13
Jewish Chaplains died between 1943 and 1974. Though not all were killed
in overseas combat, they still served this country. Given the facts
that memorial meets the guidelines for erecting a monument at Arlington
National Cemetery, the proper congressional steps are being followed
and that it will be privately funded, AMVETS lends our support to H.
Con. Res. 12.
Chairman Runyan and distinguished Members of the Subcommittee,
AMVETS would again like to thank you for inviting us to share with you
our opinions and recommendations on these very important pieces of
legislation. This concludes my testimony and I stand ready to answer
any questions you may have for me.
Prepared Statement of Jeffrey C. Hall,
Assistant National Legislative Director, Disabled American Veterans
EXECUTIVE SUMMARY
H.R. 811--``Providing Military Honors for our Nation's
Heroes Act.'' DAV does not oppose passage of this legislation.
H.R. 1407--``Veterans' Compensation Cost-of-Living
Adjustment Act of 2011.'' DAV would support passage of this
legislation, while also seeking enactment of legislation for an
automatic annual COLA and the discontinuance of the longstanding
practice of ``rounding down'' of the COLA. DAV is also asking Congress
to enhance VA disability compensation by including compensation for
non-work disability and the loss of quality of life.
H.R. 1441--DAV does not oppose passage of this
legislation.
H.R. 1484--``Veterans Appeals Improvement Act of 2011.''
DAV would support passage of section 2 of the bill; however, DAV would
not support section 3 of the bill at this time, as we question whether
the creation of yet another study commission is warranted or if it
would be an appropriate use of VBA's resources.
H.R. 1627--DAV does not oppose passage of this
legislation.
H.R. 1647--``Veterans Choice in Filing Act of 2011.''
While DAV agrees with the goal of reducing disparities between and
improving the overall performance of regional offices, we do not
believe the insertion of a new pilot program that could potentially
interfere with VBA's ability to manage their workload would be helpful
or contribute to the achieving the fundamental reform needed in this
system; therefore, DAV does not support passage of this bill at this
time.
H. Con. Res. 12--DAV does not oppose passage of this
legislation.
__________
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting the Disabled American Veterans (DAV) to
testify at this legislative hearing of the Subcommittee on Disability
Assistance and Memorial Affairs. As you know, DAV is a nonprofit
organization comprised of 1.2 million service-disabled veterans focused
on building better lives for America's disabled veterans and their
families.
Mr. Chairman, at the Subcommittee's request, DAV is pleased to be
here today to present our views on seven (7) bills under consideration
by the Subcommittee.
H.R. 811, the ``Providing Military Honors for our Nation's Heroes
Act'' would authorize the Secretary of Veterans Affairs (VA) to
reimburse a member of a veterans' service organization or other
organization approved by the Secretary for transportation and other
appropriate expenses incurred in connection with the voluntary
provision of a funeral honors detail at the funeral of a veteran,
including for times when the honors are requested by a funeral home.
This bill would allow volunteers from veterans' service
organizations (VSOs) and other organizations to be reimbursed for
transportation costs and other expenses, such as cleaning uniforms,
incurred while providing military funeral honors. Currently, members of
VSOs and other volunteers can assist the military by providing a color
guard, pallbearers, a bugler or firing party, and be reimbursed for
their expenses, but the law does not address ceremonies in which VSOs
render honors without military representation. Approval of this bill
would allow volunteers to be reimbursed even when no military person is
part of the honor guard, thereby increasing the number of military
funeral honor details that would be available to families. While DAV
does not have an adopted resolution from our membership pertaining to
this particular matter, we do not oppose passage of this legislation.
H.R. 1407, the ``Veterans' Compensation Cost-of-Living Adjustment
Act of 2011'' would increase, effective December 1, 2011, 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. For each of the past 2 years, there has
been no increase in the rates for compensation and DIC because the
Social Security index used to measure the cost-of-living adjustment
(COLA) did not increase. However, many disabled veterans and their
families who rely heavily or solely on VA disability compensation or
DIC as their only means of income 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 medicines and gasoline. As inflation becomes
a greater factor, it is imperative that they receive a COLA and DAV
supports this legislation.
In addition, DAV also calls on Congress to enact legislation that
would make a realistic COLA automatic each year. Furthermore, we call
on Congress to end the practice of ``rounding down'' COLA increases,
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.
Mr. Chairman, consistent with the position of The Independent
Budget (IB), DAV would also ask that Congress consider finally
implementing the recommendation made by the Institute of Medicine
(IOM), the Veterans' Disability Benefits Commission (VDBC), and the
Dole-Shalala Commission (President's Commission on Care for America's
Returning Wounded Warriors) to enhance disability compensation by
including compensation for non-work disability, or noneconomic loss,
and the loss of quality of life suffered by disabled veterans. Non-work
disability specifically refers to limitations on the veteran's ability
to engage in usual life activities other than work, while loss of
quality of life refers to the loss of physical, psychological, social,
and economic well-being in one's life. Such compensation is provided by
other countries who have similar comprehensive systems for compensating
veterans for disabilities, including Canada and Australia, and it is
time for Congress to finally address this matter of equity for the men
and women who have suffered to defend this great Nation.
H.R. 1441 would codify the prohibition against reserving gravesites
at Arlington National Cemetery prior to the death of an eligible
veteran. Additionally, this bill would prohibit the assignment of more
than one gravesite to a veteran or member of the Armed Forces eligible
for interment at a national cemetery and their eligible family members.
While DAV does not have an adopted resolution from our membership
pertaining to this particular matter, we do not oppose passage of this
legislation.
H.R. 1484, the ``Veterans Appeals Improvement Act of 2011'' seeks
to improve the appeal process in two ways. Section 2 of the bill would
allow a claimant to submit new or supplemental evidence in support of a
case for which a substantive appeal has been filed, directly to the
Board of Veterans' Appeals (Board) and not to the VA Regional Office of
jurisdiction. This provision does, however, preserve the claimant's
right to request VA Regional Office consideration of the new or
supplemental evidence should they prefer that option.
Currently, when the Board receives new or supplemental evidence not
previously considered by the VA Regional Office, the case must be
returned to the VA Regional Office of jurisdiction for appropriate
rating or authorization activity, unless the claimant submits a waiver
of VA Regional Office consideration. This current practice requires the
case to be remanded or transferred back to the VA Regional Office which
unnecessarily delays what is already a lengthy appellate process.
DAV strongly supports approval of this provision which would be
beneficial to all parties involved. It would allow a claimant to submit
new or supplemental evidence directly to the Board where the case is
pending without requiring a waiver of VA Regional Office consideration,
and thereby avoiding a time consuming remand process that delays final
decisions to veterans and also wastes VA resources in the process.
Section 3 of H.R. 1484 would create a ``Veterans Judicial Review
Commission'' to study the administrative and judicial elements of
claims adjudication in order to make recommendations about improving
the ``. . . accuracy, fairness, transparency, predictability,
timeliness and finality . . .'' of claims decisions. In addition, the
Commission would be specifically required to make a recommendation as
to whether the Court of Appeals for Veterans Claims should be given the
authority to hear relevant veterans' class action lawsuits. Although
DAV testified in support of a similar commission during a hearing on
October 8, 2009, this new proposal is different in two respects.
First, the inclusion of a specific requirement to consider giving
the Court class action authority raises concerns that DAV has expressed
previously, including during the October 2009 hearing. As we said at
that time, the call for the grant of authority for class action is one
that we do not have a resolution on but wish to express concern as to
the benefit this would provide veterans. It is our view that appeals
decided on an individual basis rather than by class offer the appellant
the best result for their specific case. Class actions may well benefit
those who comprise that class but once decided they in fact preclude
further appeal action on the issue decided. Moreover, as a recent
front-page story in the Washington Post from April 23, 2011 indicated,
the Court is currently understaffed and unable to meet its pending
caseload. The addition of class action filings would certainly further
burden the Court at a time when its workload can reasonably be
predicted to continue rising in the coming years given the increasing
number of new claims filed each year.
Second, over the past 18 months VBA has been engaged in
comprehensive and historic efforts to reform the entire claims
processing system in order to reduce the backlog of pending claims and
dramatically increase the accuracy and consistency of decisions.
Central to this transformation effort will be the new Veterans Benefits
Management System (VBMS), VBA's new paperless, rules-based IT system.
When fully operational, the VBMS should lead to significant changes in
how VBA, including the Board, and the Court receive and process claims
and appeals work. DAV questions whether the creation of yet another
study commission is warranted or if it would be an appropriate use of
VBA's resources. As such, DAV does not support section 3 at this time.
H.R. 1627 seeks to clarify the statute regarding the requirements
for placement of markers or monuments in Arlington National Cemetery.
The bill would codify specific requirements related to the type,
purpose and designated areas for emplacement of monuments, as well as
the authorization or approval process and sponsoring individuals or
organizations required. While DAV does not have an adopted resolution
from our membership pertaining to this particular matter, we do not
oppose passage of this legislation.
H.R. 1647, the ``Veterans' Choice in Filing Act of 2011'' would
authorize a 24-month pilot program to allow veterans served by certain
poor performing VA regional offices the option to submit a claim for
benefits at any regional office of their choice. Under the proposal,
five regional offices would participate in the pilot based upon
criteria to be established by the VA Secretary. Upon completion of the
pilot program, the Secretary would be required to send a final report
to Congress containing recommendations about the future allocation of
resources amongst VA regional offices. Although this legislation
contains few specifics about its purpose or implementation, it appears
the bill is intended to serve as a catalyst to improve and/or
reorganize poor performing VA regional offices through a sense of
competition.
While DAV agrees with the goal of reducing disparities between and
improving the overall performance of regional offices, for the reasons
outlined below, we do not support this pilot program at this time. Over
the past 2 years, VBA has been engaged in a comprehensive effort to
reform its claims processing system that already includes dozens of
innovative pilot programs as well as a complete redesign of the IT
systems used to initiate and process benefit claims. DAV and other VSOs
have been working closely with VBA in these efforts to ensure that the
current claims processing system is redesigned and rebuilt in a manner
that assures each claim for benefits will be processed right the first
time. With VBA halfway through this transformation cycle, we do not
believe the insertion of a new pilot program that could potentially
interfere with VBA's ability to manage their workload would be helpful
or contribute to achieving the fundamental reform needed in this
system. As such, DAV does not support this legislation.
Instead, DAV would like to work with this Subcommittee to develop
better approaches to addressing performance differences between
regional offices, primarily focused on better and more consistent
training and quality control programs. With thousands of new employees
entering the VBA workforce in the past couple of years, as well as the
large number of new coaches and managers appointed to oversee them, it
is imperative that VBA have continuing training programs to ensure
consistency and accuracy of their work. It is equally important that as
VBA continues developing and subsequently deploying the VBMS, that
sufficient time and attention be paid to the inclusion of real-time
quality control programs which can help to identify issues and areas
that need new or better training programs. Mr. Chairman, DAV stands
ready to work with you to achieve these shared goals.
Finally, H.Con.Res. 12, would express the intent of Congress to
honor the memory of the Jewish chaplains who have died while on active
duty in the Armed Forces of the United States with the emplacement of a
memorial marker on Chaplains Hill in Arlington National Cemetery. While
DAV does not have an adopted resolution from our membership pertaining
to this particular matter, we do not oppose passage of this
legislation.
Mr. Chairman and Members of the Subcommittee, this concludes my
statement and I would be happy to answer any questions you may have.
Prepared Statement of Shane Barker, Senior Legislative Associate,
National Legislative Service, Veterans of Foreign Wars of the United
States
MR. CHAIRMAN AND MEMBERS OF THIS COMMITTEE: On behalf of the 2.1
million members of the Veterans of Foreign Wars of the United States
and our Auxiliaries, the VFW would like to thank this Committee for the
opportunity to present our views on today's pending legislation.
H.R. 811, the Providing Military Honors for our Nation's Heroes Act
This bill is intended to help mitigate costs to military retirees
and veterans who are taking it upon themselves to assist in providing
military funeral honors for veterans. Ordinarily, this sacred task is
the responsibility of our military, however, because of our ongoing
commitments overseas they are often unable to meet the demand for such
honors. The VFW strongly believes that all who have earned such honors
should receive them in full. This commitment is the basis on which we
support H.R. 811. This legislation promotes volunteer participation by
providing a reimbursement for travel and incidental expenses to members
of Veteran Service Organizations and other groups approved by the
Secretary of Veterans Affairs. At a time when many of our greatest
generation are passing on, and those serving in current conflicts are
risking their lives for our country, this measure is appropriate and
well-deserved.
H.R. 1407, the Veterans' Compensation Cost-of-Living Adjustment Act of
2011
The VFW supports this legislation. Veterans have not received a
COLA increase in 2 years, but are still paying more at the grocery
store, pharmacy, gas pump, and elsewhere. We are encouraged that recent
data shows a 2.1 percent increase in the CPI-W over the 2008 COLA base,
and are hopeful that veterans and survivors will see a corresponding
increase in their pensions and other compensation, such as DIC, in the
coming year. This legislation is the vehicle to ensure that takes
place.
H.R. 1441, a Bill To Codify the Prohibition of Gravesites at Arlington
National Cemetery, and For Other Purposes
This legislation is long overdue. It will finally prohibit, in law,
the insider practice of allowing certain high-ranking military members
and other VIPs to pre-select their gravesites. This practice was banned
by Army policy in 1962--nearly 50 years ago--yet cemetery
administrators continued to arbitrarily allow some to skirt the rules.
Burial at Arlington National Cemetery is a tremendous honor that
depends on honorable service, not rank. It is obvious that greater
accountability and transparency is needed, so we appreciate language in
this bill that requires a full audit and a report back to Congress.
H.R. 1484, the Veterans Appeals Improvement Act of 2011
Section 2 would make significant changes to the claims appeals
process. Specifically, it would reverse the current procedure of
requiring new evidence submitted for a claim under appeal to be
considered by a regional office before being sent to the Board of
Veterans Appeals, except in cases where the appellant waives that
review. It would also stipulate that the Board is required to rate all
new evidence submitted after the case is sent to them unless the
veteran specifically refuses to waive their consideration.
To be sure, the procedures currently in place often make for a
lengthy appeals process. When new evidence for an appeal claim is
submitted, the Board puts the appeal on hold and contacts the appellant
to inquire whether or not he or she wants to waive local consideration
of the new evidence. That alone often tacks a few months onto the
length of a claim. When appellants want a regional office to review new
evidence, the appeal is remanded back to that office from the Board,
and that can easily add another year onto the appeal process. In some
cases, however, new evidence being reviewed locally can bring about a
local grant of the benefit sought through the appeal, and can put the
matter to rest more quickly. Additionally, this local review provides
appellants one more opportunity to have the appeal looked at and
decided in their favor.
These changes would allow the Board to move more quickly on
appeals, and would alter but not eliminate an appellant's right to
local consideration. Among our VFW service officers, we waive local
consideration about 90 percent of the time for veterans we represent.
Furthermore, most veterans who file claims unrepresented often do not
know they have the ability to waive local consideration. We do not
believe this procedural change would have a significant impact on
appellants, and the VFW supports section 2 of the bill.
Section 3 would create a Veterans Judicial Review Commission and
charge it with reviewing the administrative and judicial appellate
review process, and to report to Congress recommendations for improving
the process. The VFW would reserve the privilege to review the work of
the Commission and respond after having a chance to read and digest any
specific recommendations they would choose to make.
For these reasons, the VFW has no official position on this section
of the legislation.
H.R. 1627, a Bill To Amend Title 38, United States Code, to Provide for
Certain Requirements for the Placement of Monuments in
Arlington National Cemetery, and For Other Purposes
The VFW supports this effort to codify procedures used at Arlington
Cemetery to place memorial markers. We strongly believe that any
decisions that would affect the grounds at Arlington must be
principled, fair, and based on precedent. We also believe that the
individual placement of memorial markers should not hinge upon the
legislative process. This legislation advances these principles by
taking existing procedures for placing memorial markers and making them
the law of the land.
H.R. 1647, the Veterans Choice in Filing Act of 2011
The VFW does not support this legislation.
H.R. 1647 creates a 2-year pilot program under which veterans at
five underperforming regional offices would be able to submit benefits
claims to any VA regional office of their choice. The VFW is by no
means opposed to identifying and using any appropriate means to raise
poorly performing offices up to standards. In fact, we are so committed
to that goal, we would rather see our collective efforts focused on a
permanent solution to the complicated and systemic problems with claims
processing. This pilot would merely require VA to shuffle work around--
a practice, in fact, that already takes place within VBA. The VA uses
the term ``brokering'' to describe the way in which they address
disparities in production by transferring cases from backed up offices
to those with ``excess capacity.'' One of our concerns is the
possibility that this pilot program could create even more brokering in
response to claims being sent by veterans to the regional office of
their choosing, and could lead to those underperforming offices
receiving the same amount of work from across the country through the
already existing brokering process.
It also creates serious headaches for VFW service offices and those
from other Veteran Service Organizations--and potentially the veterans
themselves. It is unclear how we or an individual veteran would know
whom to contact about their claim, or how effective a service officer
could be regarding a claim that was sent to a distant State from across
the country.
At a time when VA is conducting dozens of other pilot programs
while applying significant resources to get ahead of the curve on the
backlog, we believe measures with no apparent value added should be
deferred.
H. Con. Res. 12, a Resolution Expressing the Sense of Congress That an
Appropriate Site on Chaplains Hill in Arlington National
Cemetery Should Be Provided for a Memorial Marker To Honor the
Memory of the Jewish Chaplains Who Died While on Active Duty in
the Armed Forces of the United States
The VFW supports this resolution. One needs to look no further than
the resolution itself to find testimony of the dedication,
selflessness, and sacrifices made by chaplains of the Jewish faith on
behalf of the United States. Today there stands three other memorial
markers on Chaplains Hill in Arlington, two of which are in memoriam of
chaplains of other faiths. It seems appropriate and fitting that a
marker of similar design should be allowed to pay tribute to the many
Rabbinical Chaplains who have also served with dignity and honor.
Mr. Chairman, this concludes my statement. I would be happy to
answer any questions that you or the Members of the Committee may have.
Prepared Statement of Barton F. Stichman,
Joint Executive Director, National Veterans Legal Services Program
EXECUTIVE SUMMARY
National Veterans Legal Services Program (NVLSP) is a nonprofit
veterans service organization. NVLSP's views on the Veterans Appeals
Improvement Act of 2011 (H.R. 1484) and the Veterans' Choice in Filing
Act of 2011 (H.R. 1647) are informed by the widespread frustration and
disappointment in the VA claims adjudication system experienced by
disabled veterans.
NVLSP supports the proposed legislation that would waive Regional
Office (RO) jurisdiction over new evidence submitted after a veteran
has filed a substantive appeal but before the case is certified to the
BVA. The average delay between a veteran filing a substantive appeal
and the case being certified to the BVA can exceed 1\1/2\ years. A
primary culprit of this unreasonable delay is VA's policy with respect
to evidence submitted during this period: VA sends the new evidence and
the claims file back to the RO for consideration and preparation of a
new decision. Section 2 of the Veterans Appeals Improvement Act of 2011
would change this policy to the benefit of veterans, while preserving
the ability of a veteran to request RO consideration of evidence,
should he or she so desire.
NVLSP also supports the proposed legislation that would create a
Veterans Judicial Review Commission. Of the appeals decided by the CAVC
in 2009, it found reversible or remandable error in more than 60
percent of the BVA's decisions. The errors by the BVA include
inaccurately stating or applying the facts or the law and/or failing to
adequately explain its decision. The high percentage of wrongly decided
cases demonstrates that improvements must be made in the BVA's
accuracy, fairness, and transparency. Section 3 of the Veterans Appeals
Improvement Act of 2011 would aid in achieving this goal.
NVLSP also supports giving the CAVC and Court of Appeals for the
Federal Circuit (Federal Circuit) clear class action authority. The
benefit of class actions is that they conserve the resources of the
government and the Courts, serve as a mechanism for identifying
affected individuals, and help ensure that the government treats all
similarly situated individuals in the same way. That said, NVLSP
maintains that a Commission--as contemplated by section 3--to explore
the viability of granting class action authority is not necessary. The
need is clear now.
Finally, NVSLP supports the creation of a pilot program to allow a
veteran whose local RO has ``below average performance'' to file his or
her claim in a different RO. Many VA adjudicators are inadequately
trained and many ROs are improperly managed and inadequately staffed.
Section 2 of the Veterans' Choice in Filing Act of 2011 would provide
veterans an alternative to filing in an RO plagued by these
inadequacies. That said, NVLSP maintains that section 2 should specify
that a veteran who chooses a different RO will not have to travel for
VA medical examinations or hearings. Section 2 also should include
specific guidelines to inform the Secretary of Veterans Affairs in his
selection of ROs with ``below average performance,'' as well as a
mechanism to review his selections.
NVLSP thanks you for the opportunity to express its views.
__________
Thank you for the opportunity to present the views of the National
Veterans Legal Services Program (NVLSP) on the bills entitled the
``Veterans Appeals Improvement Act of 2011'' (H.R. 1484) and the
``Veterans' Choice in Filing Act of 2011'' (H.R. 1647). As explained
below, NVLSP strongly supports (1) creating a Commission to investigate
methods to improve the efficiency and fairness of the appeals process,
(2) giving clear class action authority to the Court of Appeals for
Veterans Claims (CAVC) and Court of Appeals for the Federal Circuit
(Federal Circuit), and (3) implementing a pilot program giving veterans
the option to file their claims in a better-performing VA Regional
Office (RO).
NVLSP is a nonprofit veterans service organization founded in 1980.
Since its founding, NVLSP has represented thousands of claimants before
the Board of Veterans' Appeals (BVA) and the CAVC, as well as the
Federal Circuit and other Federal Courts. NVLSP is one of the four
veterans service organizations that comprise the Veterans Consortium
Pro Bono Program, which recruits and trains volunteer lawyers to
represent veterans who have appealed a BVA decision to the CAVC without
a representative. In addition to its activities with the program, NVLSP
has trained thousands of veterans service officers and lawyers in
veterans benefits law, and has written educational publications that
thousands of veterans advocates regularly use as practice tools to
assist them in their representation of Department of Veterans Affairs
(VA) claimants.
My testimony today is informed by the widespread frustration and
disappointment in the VA claims adjudication system experienced by
disabled veterans and their survivors. They face a number of serious
challenges at both the BVA and the CAVC. We believe that the proposed
Commission and pilot program, as well as giving class action authority
to the CAVC and Federal Circuit, would make the process both more
efficient and fairer to those who have served our country.
I. The Veterans Appeals Improvement Act of 2011
A. Section 2: Addressing Waiver of RO Jurisdiction Over Evidence
Submitted After the Substantive Appeal
One of the reasons for the unreasonably long delays that occur in
VA decisionmaking is the time it takes for VA to forward an appeal to
the BVA for a decision. This interval occurs after the veteran files
his or her claim, the RO issues a decision denying the claim, the
veteran files a notice of disagreement with the RO decision, the RO
issues a statement of the case (SOC), and the veteran files a
substantive appeal. The BVA reported in its Report of the Chairman for
Fiscal Year 2010 that it took an average of 609 days (1 year and 8
months) after the filing of the substantive appeal for the RO to
``certify'' the appeal, or forward the VA claims file to the BVA for a
decision.
A primary cause for this large time lag is the legal requirements
governing VA's handling of evidence submitted by the veteran after the
substantive appeal but before certification to the BVA. While veterans
wait for their cases to be sent to the BVA, they often decide to submit
additional evidence in support of their claims. Since they have already
appealed to the BVA, they often assume that this evidence will go to,
and be reviewed by, the BVA. To the contrary, VA is required, upon
submission of new evidence during this time period, to send the case to
an RO adjudicator for review of both the new evidence and the claims
file and preparation of a new decisional document, called a
Supplemental Statement of the Case (SSOC). If the veteran submits still
additional evidence after the SSOC, the case is again sent to an RO
adjudicator for review and preparation of yet another SSOC. In some
cases, VA has taken the time to prepare four or more SSOCs before the
case is forwarded to the BVA for a decision.
Section 2 of the bill would change this VA requirement, to the
benefit of the veteran and VA. It would mandate that any evidence
submitted after a certain point in the process is forwarded directly to
the BVA for review, unless the veteran or his representative
specifically requests that it go to, and be reviewed by, the RO first.
NVLSP strongly supports this change, as it will bring the process more
in line with the expectations of veterans and will help alleviate the
delay and waste of judicial resources that currently plagues the BVA
appellate process.
NVLSP also notes that submission of the substantive appeal is the
appropriate point in the process at which to transfer jurisdiction over
new evidence to the BVA. At that point, the veteran has had the
opportunity to exercise his or her right to a hearing before a Decision
Review Officer and has received an SOC.
B. Section 3: Addressing Creation of a Veterans Judicial Review
Commission and the Need for Class Action Authority
Another cause of the unreasonable length of time it takes for
veterans to obtain relief, and the attendant frustrations of said
veterans, is the high number of errors made by the BVA. The CAVC
reported in its Annual Report for Fiscal Year 2009 that, of the 4,379
cases it decided, it ``affirmed or dismissed in part, reversed/vacated
& remanded in part'' 498 cases; ``reversed/vacated & remanded'' 397
cases; and ``remanded'' 1,758 cases. This means that, of those cases
that the veteran or his survivors appealed to the CAVC, the BVA
decision is vacated in more than 60 percent of the cases. Most of these
remands are due to administrative error by the agency (rather than
merely a post-decisional change in law). These mistakes often include
an inaccurate recitation and application of the facts or law and/or an
inadequate statement of the BVA's rationale for its decision.
Additionally, veterans advocates have noted that a decision from one
Veterans Law Judge may differ substantially from a decision by another
based on similar facts. In those cases requiring remand for additional
development or explanation, a subsequent appeal to the CAVC may be
necessary.
Given the high percentage of BVA decisions requiring reversal or
remand, the creation of a Veterans Judicial Review Commission to
evaluate, and make recommendations for the improvement of, the
accuracy, fairness, transparency, and predictability of the BVA review
process is necessary. Therefore, NVLSP strongly supports the creation
of a Commission for this purpose.
A third reason for the longstanding delays and inefficiency in the
VA adjudication system derives from the fact that neither the CAVC nor
the Federal Circuit has clear authority to certify a veteran's lawsuit
as a class action. When Congress enacted the Veterans' Judicial Review
Act (VJRA) in 1988, it inadvertently erected a significant roadblock to
justice. Prior to the VJRA, U.S. District Courts of Appeal had
authority to certify a lawsuit challenging a VA rule or policy as a
class action on behalf of a large group of similarly situated veterans.
See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404
(N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F.
Supp. 34 (D.P.R. 1993). If the district Court held that the challenged
rule or policy was unlawful, it had the power to ensure that all
similarly situated veterans benefited from the Court's decision.
The ability of a veteran or veterans organization to file a class
action ended with the VJRA. In that landmark legislation, Congress
transferred jurisdiction over challenges to VA rules and policies from
district Courts (which operate under rules authorizing class actions)
to the Federal Circuit and the newly created CAVC. In making this
transfer of jurisdiction, Congress failed to clearly address the
authority of the CAVC and the Federal Circuit to certify a case as a
class action. As a result of this oversight, the CAVC has ruled that it
does not have authority to entertain a class action (see Lefkowitz v.
Derwinski, 1 Vet. App. 439 (1991)), and the Federal Circuit has
indicated the same (see Liesegang v. Secretary of Veterans Affairs, 312
F.3d 1368, 1378 (Fed. Cir. 2002).
The benefit of class actions in litigation against the government
is that they conserve the resources of the government and the Courts
and help ensure that the government treats all similarly situated
individuals in the same way. Class actions are typically used by Courts
to resolve efficiently a legal issue that affects a large number of
similarly situated individuals. There are literally hundreds of
individual VA rules and policies that affect the entitlement to VA
benefits for a large number of VA claimants. From time to time, a VA
claimant will file an appeal at the CAVC or the Federal Circuit that
challenges the legality of one of these rules or policies. Injustice
and inefficiency result from the fact that these Courts do not have
class action authority.
A pertinent example is the lawsuit filed by NVLSP and the Military
Order of the Purple Heart in the Federal Circuit challenging VA
directive (Fast Letter 07-19) issued on August 27, 2007. This Fast
Letter instituted a new decisionmaking process for the adjudication of
certain claims involving a large amount of benefits.
The Fast Letter required VA, in any case in which an RO awarded a
veteran more than $250,000 in benefits or awarded 8 or more years of
retroactive benefits, to withhold its award decision from the veteran
and representative and to send it to Washington, D.C., for a review by
the Compensation & Pension Service. No RO decisions denying a large
amount of benefits were subject to the Fast Letter. The Compensation &
Pension Service would then decide the claim anew. If it disagreed with
the RO award of a large amount of benefits, it would order the RO to
rewrite the decision to comply with the Compensation & Pension
Service's view and then send the rewritten decision to the veteran and
representative. The RO had to destroy or discard the initial favorable
decision and the instructions of the Compensation & Pension Service
that caused the denial.
On September 10, 2009, the Federal Circuit ruled that the Fast
Letter procedure, ``whereby certain regional office decisions are
redetermined by the Compensation & Pension Service . . . without the
knowledge and participation of the claimant, does not comply with the
extant Regulations, and that [VA's] promulgation [of the Fast Letter
without public notice and comment] violated the Notice and Comment
provisions of the'' Administrative Procedure Act. As such, the Federal
Circuit invalidated the Fast Letter. VA then ordered a halt to
Compensation & Pension Service review of RO awards of a large amount of
benefits. Military Order of the Purple Heart of the USA and National
Veterans Legal Services Program v. Secretary of Veterans Affairs, 580
F.3d 1293 (Fed. Cir. 2009).
The problem with the judicial resolution of this case is that for 2
full years--from August 2007 to September 2009--the Compensation &
Pension Service had been allowed to continue to review RO decisions
awarding a large amount of benefits. In fact, over 800 large awards
were reviewed, and in more than 50 percent of these cases the large
award was overturned by the Compensation & Pension Service. The
hundreds of veterans who were each denied hundreds of thousands of
dollars in disability benefits cannot identify themselves as entitled
to the benefits initially granted by the RO and validated by the
Federal Circuit's decision.
If the Courts had class action authority, this injustice and
inefficiency would not occur. As soon as NVLSP and the Military Order
of the Purple Heart filed suit, the Court could certify the case as a
class action, order the Compensation & Pension Service to halt its
review until the Court could consider the legality of the Fast Letter,
and order VA to keep track of the identity of each of the veterans
subject to the Fast Letter. Then, if the Court determined that the Fast
Letter was illegal, as the Federal Circuit did in this case, it would
have authority to order VA to reinstate each of the RO decisions
awarding a large amount of benefits.
Justice would thereby be served because the hundreds of veterans
who were each illegally denied hundreds of thousands of dollars in
benefits under the Fast Letter would actually receive these benefits.
VA efficiency would be improved because the scarce resources of the
Compensation & Pension Service and ROs would not have been expended in
deciding whether to overturn the initial RO decisions, an activity
deemed invalid by the Federal Circuit.
Moreover, class actions would be manageable in the CAVC and Federal
Circuit. They are done uniformly in district Courts and are considered
manageable there.
For these reasons, NVLSP strongly advocates giving the CAVC and
Federal Circuit clear class action authority. That said, NVLSP does not
believe that creation of a Commission to evaluate whether to give class
action authority--as contemplated by section 3 of the bill--is
necessary. By the terms of the bill, the Commission would not render a
final report until December 31, 2012, more than 1\1/2\ years from now.
However, the need for class action authority is clear now. In the
interim, cases may arise that are appropriate for certification, and
veterans whose rights were abridged (like those discussed above) would
be denied justice.
II. The Veterans' Choice in Filing Act of 2011
A. Section 2: Addressing Creation of a Program To Give Veterans a
Choice of RO in Which To File a Claim
It is clear that the quality of VA adjudications is not
satisfactory and is a major contributor to the size of the backlog. In
many cases, claims are improperly denied, VA adjudicators are
inadequately trained, ROs are improperly managed, and ROs are
inadequately staffed. Because VA Central Office management has not
acted to fix these problems in any meaningful way, veterans and other
claimants for VA benefits have to file unnecessary appeals, wait
several years for a BVA remand, and wait for VA to obtain evidence that
should have been requested during the original adjudication of the
claim. These appeals clog the system and create unneeded work for VA.
Of course, it would have been better for the RO to do the work
correctly the first time
Given these problems that plague many ROs, NVSLP supports the
creation of a pilot program for allowing a veteran whose local RO is
deemed to have ``below average performance'' to file his or her claim
in a different RO. While NVLSP agrees with the legislation, we suggest
two additions to the bill.
First, section 2 should specify that a choice of non-local RO does
not strip the veteran of his or her right to have any VA medical
examination or hearing conducted locally. A veteran who chooses to file
his or her claim in an out-of-state RO should not be required to travel
for a VA medical examination or hearing. Requiring travel would be
unduly prohibitive to veterans, who are frequently advanced in age and
ill in health, and would have a chilling effect on their decisions to
choose a different RO.
Second, section 2 should include specific guidelines to inform the
Secretary of Veterans Affairs (Secretary) in his selection of ROs with
``below average performance,'' as well as a process to review the
Secretary's selections and rationale. As the bill is written, the
Secretary has complete discretion to choose which five ROs are subject
to the pilot program: his choice is not guided by either a stated goal
for the pilot program or a recommendation of what constitutes ``below
average performance.'' The criteria for choosing which ROs qualify
should include a quality component based on the RO's remand and
reversal rate at the BVA, as well as the Veterans Benefits
Administration's Systematic Technical Accuracy Review (STAR) report.
That completes my testimony. Again, NVLSP appreciates the
opportunity to express its views on these important pieces of
legislation and thanks you for your continued dedication to veterans.
Prepared Statement of Hon. Anthony D. Weiner,
a Representative in Congress from the State of New York
Chairman Runyan, Ranking Member McNerney, thank you for allowing me
to testify today on House Concurrent Resolution 12, which would
designate a plot of land in Arlington Cemetery to be used for a
memorial honoring the Jewish chaplains of our armed services.
Unlike many things in Congress, this bill is simple and
straightforward.
Jewish chaplains have served our country for 149 years, yet they
still do not have a place next to their Protestant and Catholic
counterparts on Chaplains Hill in Arlington Cemetery.
Today, all that is standing between Arlington Cemetery and a
memorial for Jewish chaplains is the passage of H. Con. Res. 12.
That is all there is to this resolution.
I am not the one who thought of creating a memorial for Jewish
veterans.
In fact, like many Jewish-Americans and veterans nationwide, I was
surprised to learn that no such memorial existed in Arlington Cemetery
at all.
Ken Kraetzner, son of a World War II Army officer, noticed the lack
of a monument for Jewish chaplains while researching the stories of the
four immortal chaplains who died while giving final rites on board the
USS Dorchester in 1943.
Ken located the four men on Chaplains Hill; he noticed that Rabbi
Alexander Goode was the only one of the four chaplains not
distinguished by a memorial.
Ken partnered with two other veterans, Rabbi Harold Robinson and
Sol Moglen, to help lead fundraising efforts. In just a few months,
they raised over $50,000.
They used the three other memorials as a model for the new monument
they envisioned for the 13 Jewish chaplains that lost their lives from
1943 to 1974.
As you know, Mr. Chairman, the number thirteen is significant in
Judaism. We have the 13 attributes of divine mercy on Yom Kippur, the
13 Maimonedian principles of the Jewish faith and of course, the 13
tribes of Israel.
The monument, as designed, will stand about 7 feet tall, with a
bronze plaque mounted on a granite slab listing the 13 names as well as
a Jewish proverb--``I ask not for a lighter burden, but for broader
shoulders''--and an inscription with the Star of David. There will also
be space at the bottom for future chaplains if needed.
While planning this project, Ken Kraetzer, Rabbi Harold Robinson
and Sol Moglen were in touch with Arlington Cemetery; however, they
were only notified of a new 2001 law that requires congressional
approval for memorials in Arlington Cemetery.
The group quickly alerted the Jewish War Veterans of the United
States of America, the Jewish Welfare Board Jewish Chaplains Council,
and they finally reached out to me.
I was touched by the work of these great men and quickly introduced
this resolution. Senator Schumer has also introduced the Senate version
of this bill.
In less than 4 months, the resolution collected 72 bi-partisan
cosponsors (including Chairman Runyan and full Committee Chairman Jeff
Miller), and has been endorsed by 35 national Jewish organizations and
47 local Jewish War Veterans chapters.
The Jewish Federations of North America and Shelly Rood have been
working to help pass this bill to recognize the achievements of the 13
Jewish chaplains. Surviving family members of the chaplains have also
been involved in the process, including David Engle, son of Rabbi Meir
Engle and Vera Silberberg, daughter of Morton Singer.
If I may, Mr. Chairman, I would like to submit the letter of
support from all these groups into the record.
I am very grateful that we are one step closer to erecting this
monument and properly honoring the brave Jewish chaplains that served
our country.
What better way to celebrate Jewish Heritage Month.
I look forward to the passage of this resolution on the House
floor.
Now, Mr. Chairman, please let me take a moment to repeat the names
of the 13 chaplains honored through this resolution.
1. Nachman S. Arnoff, Army
2. Meir Engel, Army
3. Frank Goldenberg, Army
4. Alexander D. Goode, Army
5. Henry Goody, Army
6. Samuel D. Hurwitz, Army
7. Herman L. Rosen, Air Force
8. Samuel Rosen, Air Force
9. Solomon Rosen, Army
10. Morton H. Singer, Army
11. David Sobel, Air Force
12. Irving Tepper, Army
13. Louis Werfel, Army
Thank you.
__________
March 22, 2011
Support Jewish Military Chaplains at Chaplains Hill
in Arlington National Cemetery
Dear Members of Congress:
As you may know, the men and women serving in America's armed
forces are supported by brave military chaplains of many faiths, who--
at great personal risk and peril--provide spiritual and emotional
support to soldiers defending our freedom. These heroes who are
sometimes killed or injured in the line of duty deserve our Nation's
utmost respect. Chaplains Hill in Arlington National Cemetery
appropriately memorializes the names of 242 chaplains who perished
while on active duty, but astonishingly, none of the 13 Jewish
chaplains who have died while serving are honored on Chaplains Hill.
As organizations representing Jewish communities across the
country, we urge you to support H. Con. Res. 12 and S. Con. Res. 4,
which call for a memorial honoring the Jewish chaplains who perished
while serving on active duty. Private funds for this memorial have
already been raised, but Congress must act to designate the space.
One of the transformational moments in American life was the heroic
sacrifice of the four chaplains of the USS Dorchester, which was
transporting 900 soldiers and civilian workers to the European front
when it was sunk by German torpedoes off the coast of Greenland on
February 3, 1943. Each of the four chaplains on board spontaneously
gave his lifejacket to another soldier, and the chaplains perished
together as they prayed and sang hymns to men in lifeboats and in the
icy water. The chaplains represented three faith traditions--two
Protestants, a Catholic, and a Jew--and their death marked the first
time the term ``Protestant, Catholic and Jew'' was used to describe
America. Three of the four are memorialized on Chaplains Hill, but
neither Rabbi Alexander Goode nor any of the other rabbis who died in
other active service situations are so remembered.
Members of the Jewish faith have served our country since the days
of the American Revolution, and Jewish chaplains have bravely served
alongside. In total 13 Jewish chaplains have perished while on active
duty in the Armed Forces of the United States. Working with the
American Legion and the Jewish War Veterans, the Jewish Welfare Board
Jewish Chaplains Council has raised the funds to establish this
memorial. We urge you to act swiftly to pass this legislation in the
House and in the Senate.
To cosponsor this legislation, please contact Naz Durakoglu in Rep.
Weiner's office at x5-6616 or [email protected], Jessica
Moore in Rep. Rooney's office at x5-5792 or
[email protected], or Rachel Yemini in Sen. Schumer's office
at x4-6542 or [email protected].
For additional information, please contact Shelley Rood at the
Jewish Federations of North America at (202) 736-5880 or
[email protected].
Thank you for your consideration.
Sincerely,
American Jewish Committee
Anti-Defamation League
Association of Jewish Aging Services
Association of Jewish Chaplains of the Armed Forces and Veterans
Affairs
Association of Jewish Children & Family Agencies
B'nai B'rith International
Central Conference of American Rabbis
Foundation for Jewish Culture
International Association of Jewish Vocational Services
Jewish American Heritage Month
Jewish Communal Service Association of North America
Jewish Community Centers Association
Jewish Community Relations Council of New York
Jewish Community Relations Council of the Jewish United Fund of
Metropolitan Chicago
Jewish Council for Public Affairs
Jewish Education Service of North America
Jewish Federation of Metropolitan Chicago
The Jewish Federations of North America
Jewish Institute for National Security Affairs
Jewish War Veterans
Jewish Women International
JWB-Jewish Chaplains Council
National Association of Jewish Chaplains
National Council of Jewish Women
National Council of Young Israel
National Jewish Democratic Council
Orthodox Union
Rabbinical Council of America
Reconstructionist Rabbinical Association
Religious Action Center of Reform Judaism
Republican Jewish Coalition
The Rabbinical Assembly
UJA-Federation New York
Union for Reform Judaism
United Synagogue of Conservative Judaism
Local Veterans Organizations
Jewish War Veterans of Nevada, Post 21
Jewish War Veterans of Nevada, Post 64
Jewish War Veterans of Nevada, Post 65
Jewish War Veterans of Nevada, Post 711
The Jewish War Veterans of the U.S.A. Sergeant Manny Peven Post 65
Local Jewish Organizations
American Jewish Committee New York Regional Office
Brownstein Jewish Family Service
Bureau of Jewish Education of Buffalo
Community Relations Committee of United Jewish Communities of
MetroWest
Community Relations Council of the Jewish Federation of San Antonio
Congregation Beth Shalom, Wilmington, Delaware
Council of Jewish Organizations of Las Vegas
FEGS Health and Human Services System
Jewish Community Center of Staten Island
Jewish Community Relations Council of the Allied Jewish Federation
of Colorado
Jewish Community Relations Council of Greater Boston
Jewish Community Relations Council of the Jewish Federation of
Northern New Jersey
Jewish Community Relations Council of the Jewish Federation of
Palm Beach County
Jewish Community Relations Council of Long Island
Jewish Community Relations Council of United Jewish Council of
Greater Toledo
Jewish Community Relations Council of the Youngstown Area Jewish
Federation
Jewish Family & Child Service of Portland
Jewish Family Service of Bergen and North Hudson
Jewish Family Service of Buffalo & Erie County, NY
Jewish Family Service of the Cincinnati Area
Jewish Family Service of Greater Danbury, CT & Putnam County, NY
Jewish Family Service of Greater New Orleans
Jewish Family Service of Los Angeles
Jewish Family Services of Northeastern New York
Jewish Federation of the Bluegrass
Jewish Federation of Las Vegas
Jewish Federation of Nashville Community Relations Committee
Jewish Federation of Northeastern New York
Jewish Social Service Agency
Joint Chaplaincy Committee of MetroWest
Knoxville Jewish Alliance
Metropolitan Council on Jewish Poverty
New Jersey State Association of Jewish Federations
New York Board of Rabbis
North Louisiana Jewish Federation
Ohio Jewish Communities
Palm Beach County Board Of Rabbis
Parker Jewish Institute for Health Care & Rehabilitation
Pennsylvania Jewish Coalition
Samuel Field YM-YWHA
Selfhelp Community Services, Inc.
Westchester Jewish Council
Prepared Statement of Hon. Bruce E. Kasold,
Chief Judge, U.S. Court of Appeals for Veterans Claims
EXECUTIVE SUMMARY
H.R. 1647 (authorizing submission of claims at any
regional office) and section 2 (waiver of regional office review of new
evidence) of H.R. 1484 concern operations within the purview of the
Department of Veterans Affairs (VA). The Court has no special insight
and no further comment on these proposals.
The Court supports creation of a Commission, as generally
proposed in section 3 of H.R. 1484, with the suggestion that subsection
(b)(1) of section 3 be modified to focus the scope of the Committee's
duties on evaluating the judicial appellate review process, as is the
stated scope in the title of section 3. This can be accomplished by
deleting the words ``administrative and'' from subsection (b)(1).
__________
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
Good morning. Thank you, Mr. Chairman and Members of the Committee,
for asking for the views of the U.S. Court of Appeals for Veterans
Claims (Court) on two recent bills introduced this year: H.R. 1484
(``Veterans Appeals Improvement Act of 2011'') and H.R. 1647
(``Veterans' Choice in Filing Act of 2011''). Because H.R. 1647
(authorizing submission of claims at any regional office) and section 2
(waiver of regional office review of new evidence) of H.R. 1484 concern
operations within the purview of the Department of Veterans Affairs
(VA), I have no special insight to offer the Committee and leave
further comment to the Secretary and Chairman of the Board who would be
impacted directly by those provisions.
COMMISSION TO STUDY JUDICIAL REVIEW
OF THE DETERMINATION OF VETERANS' BENEFITS
The Board of Judges of the Court fully supports the creation of a
Commission to study judicial review of veterans' benefits
determinations, as the title of section 3 of H.R. 1484 suggests, and to
make recommendations for improvement as required by subsection (h).
Indeed, the time is right for a working group to step back and review
the judicial appellate review system we have, critically examine its
strengths and weaknesses, and identify measures that could benefit the
overall judicial appellate review process.
Although not specifically stated in H.R. 1484, I would anticipate
and encourage the Commission to weigh the costs and benefits of the
unique two-tiered Federal appellate review system currently in place
for veterans' benefits decisions. Similar action was taken in the past
with regard to the U.S. Court of Appeals for the Armed Forces, whose
appeals are now final, subject to certiorari review by the Supreme
Court. With two decades of experience in appellate review of veterans'
benefits claims, and the resultant seasoned body of case law, it is
time to consider the added value of a second layer of Federal judicial
appellate review.
No doubt, continued bites at the apple, so to speak, will be sought
by some, but at the end of the day, as the Supreme Court recently
recognized:
It is the Veterans Court, not the Federal Circuit, that sees
sufficient case-specific raw material in veterans' cases to
enable it to make empirically based, nonbinding generalizations
about ``natural effects.'' And the Veterans Court, which has
exclusive jurisdiction over these cases, is likely better able
than is the Federal Circuit to exercise an informed judgment as
to how often veterans are harmed by which kinds of notice
errors.
Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009).
Indeed, I suggest it cannot be argued convincingly that a veteran,
the taxpayer, or anyone is best served by waiting nearly 2 years to
have a decision of the Veterans Court overturned by the Federal
Circuit, only to wait approximately another 2 years to have the Federal
Circuit overturned by the Supreme Court, as was the situation in the
case of Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009), or to have a
veteran wait 18 months to have a decision of the Veterans Court upheld
by the Federal Circuit, only to wait another 9 months to have that
decision overturned by the Supreme Court, as was the situation in the
recently decided case of Henderson v. Shinseki, 131 S.Ct. 1197 (Mar. 1,
2011). Because these cases involve issues of law, their impact is far
reaching, often causing cases to be stayed, reconsidered, or
readjudicated below. The extra step in the appellate process is unique,
time consuming and costly, and worthy of examination for its continued
need.
We also support Commission review of whether the Court should have
the authority to hear class action or associational standing cases. As
the Committee is no doubt aware, the Court early on indicated that it
may not have authority to permit a class action suit, but the actual
basis for denying the class action to proceed in that case was that it
would be unmanageable and unnecessary. See Lefkowitz v. Derwinski, 1
Vet.App. 439 (1991) (noting that it ``appear[s]'' Court lacks authority
to permit class action, and rejecting class action in that case as
unmanageable and unnecessary), Judge Kramer concurring in result
(noting that the Court has the authority to grant class action where
all petitioners meet jurisdictional requirement, and agreeing that
granting such status was unwise on policy grounds as stated by
majority). Similarly, the Court has addressed associational standing
and determined in a 4-3 decision that the Court did not have the
authority to recognize such standing. See American Legion v. Nicholson,
21 Vet.App. 1 (2007), Judges Kasold, Hagel, and Schoelen dissenting. I
recommend both cases to the Committee and the Commission as providing
an excellent starting point for identifying and analyzing the issues
raised by class action suits and associational standing litigation,
which include, inter alia, whether such authority is needed or even
helpful, and what effect it might have on the timely judicial review of
appeals.
I do note, however, what appears to be a significant disconnect
between the scope of the Commission study as laid out in the title of
section 3, and the duties of the Commission as stated in subsection
(b)(1) of section 3, which includes an evaluation of the
``administrative'' as well as the ``judicial'' appellate review
processes. The administrative appellate review process involves
significantly different issues than the judicial appellate review
process, and is not only beyond the scope as designated in the title of
section 3, its inclusion within the duties of the Commission very well
may place so much within the Commission's purview that it would not
permit the detailed focus sought on either the administrative or the
judicial appellate review process, particularly not in the time
provided.
Indeed, the differences between the administrative and judicial
appellate review processes are huge. The administrative appellate
review provided to the veteran is part and parcel of the claims
adjudication process conducted by VA. The administrative appellate
review includes a de novo review of the evidence, the benefit of the
doubt in weighing the evidence, and the ability to submit additional
evidence. It involves a symbiotic relationship between the Secretary
and the veteran, with both parties working to maximize benefits for the
veteran, as permitted by law. Perhaps most significantly, these
administrative adjudications apply only to the case at hand and set no
precedent or policy that must be used to decide future cases.
Judicial appellate review, on the other hand, takes place only
after the claim has been administratively adjudicated by VA. Judicial
appellate review is limited to a review of the record upon which VA
made its decision. Moreover, the parties (the Secretary and party
seeking benefits) are adversaries, each arguing that the decision below
was either correct or wrong, and that the remedy for any error should
be reversal or remand. Judicial appellate review does not permit a
substitute of the Court's view for the Board's fact finding, unless
such fact finding is clearly erroneous. And, whereas administrative
appellate review is focused solely on the application of law as
interpreted by the Secretary in the individual case under
consideration, judicial appellate review permits interpretations of the
law by Federal judges appointed by the President upon the advice and
consent of the Senate. In contrast to adjudications by VA, the Court's
interpretations of law are precedential, and binding not only in the
case at hand, but in all cases decided henceforth by the Secretary and
the Board.
Thus, to maintain integrity between the Department of Veterans
Affairs claims adjudication process (including the administrative
appellate review process) and the judicial appellate review process
(which is entirely independent of VA and where the Secretary is one of
the adversarial parties), and to permit focused and timely review of
the judicial appellate review process, I recommend that subsection
(b)(1) of section 3 be amended by deleting the words ``administrative
and'', thus focusing the Commission's duties on evaluation of the
judicial appellate review process, consistent with the title of the
section. Should the Committee believe it is time to study the VA
claims, administrative adjudication process, I would recommend a
separate Commission be established for such study.
On behalf of the judges of the Court, I thank the Committee for its
consideration of our views on this proposed legislation.
Prepared Statement of Diana M. Rubens,
Associate Deputy Under Secretary for Field Operations,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Mr. Chairman, Ranking Member McNerney, and Members of the
Subcommittee, thank you for the opportunity to provide the Department
of Veterans Affairs' (VA) views on pending legislation that would
affect VA programs: H.R. 811, H.R. 1407, H.R. 1484, and H.R. 1647. I am
accompanied today by the Acting Chairman of the Board of Veterans'
Appeals, Steven Keller, and Assistant General Counsel Richard J.
Hipolit.
H.R. 811
H.R. 811, the ``Providing Military Honors for our Nation's Heroes
Act,'' would authorize VA to reimburse a member of a veterans' service
organization (VSO) or other organization approved by VA for
transportation and other appropriate expenses incurred in connection
with the voluntary provision of a funeral honors detail at a veteran's
funeral in any cemetery, including a funeral honors detail requested by
a funeral home. The bill as drafted would authorize VA to reimburse
expenses for honor guards who perform at veteran funeral services, but
its scope is not limited to honors performed at VA national cemeteries.
While VA appreciates the bill's focus on supporting the provision of
funeral honors, VA does not support the bill for the following reasons.
The Department of Defense (DoD), not VA, provides funeral honors
details for veterans' funerals. DoD is required by 10 U.S.C.
Sec. 1491(a) to provide, upon request, a funeral honors detail at the
funeral of any veteran. VA and DoD have successfully partnered to
provide funeral honors at VA national cemeteries. Funeral honors at
national cemeteries are provided by servicemembers, as well as by VSOs
and individual volunteers on behalf of DoD. VSOs and individual
volunteers may also perform this service at State veterans cemeteries
and private cemeteries. It would be anomalous for VA to reimburse
individuals who provide funeral honors details on behalf of DoD.
Reimbursement by VA under H.R. 811 would duplicate reimbursement by
DoD, which is currently authorized by statute to reimburse persons who
participate in a funeral honors detail, other than a servicemember who
is not in a retired status or an employee of the United States, with
transportation and expenses or a daily stipend. These volunteers
maintain their own log of volunteer hours and expenses. Because DoD is
already authorized to reimburse honor guard personnel who are not
otherwise being paid for their services, H.R. 811 is unnecessary.
Additionally, H.R. 811 raises significant administrative issues for
VA. To comply with H.R. 811, the National Cemetery Administration (NCA)
would have to add or reassign cemetery operations staff to manage and
verify the time and attendance records of our volunteers and reimburse
them for conducting this DoD-administered program. Also, because no
funds for this purpose have been identified or included in any VA
budget request, reimbursement for this unanticipated expense would most
likely have to be provided from NCA's Operations and Maintenance
Account, which would divert funds from the essential activities of
providing burial operations and maintaining the cemeteries as national
shrines.
Finally, by authorizing reimbursement for expenses incurred by one
category of volunteers, H.R. 811 would create an inequity between them
and other VA volunteers. Volunteers who provide essential services at
our VA medical centers, assist families at committal services, place
gravesite flags on Memorial Day, and perform landscaping at VA national
cemeteries may feel their service is less valued because they receive
no reimbursement for their expenses.
VA keeps no data on the number of military funeral honors provided
at VA or other cemeteries and defers to DoD for costs associated with
reimbursement under H.R. 811.
H.R. 1407
H.R. 1407, the ``Veterans' Compensation Cost-of-Living Adjustment
Act of 2011,'' would mandate a cost-of-living adjustment (COLA) in the
rates of disability compensation and dependency indemnity compensation
(DIC) payable for periods beginning on or after December 1, 2011. The
COLA would be the same as the COLA that will be provided under current
law to Social Security benefit recipients, which is currently estimated
to be an increase of 0.9 percent. (As a technical matter, we recommend
the year referenced on page 3, line 11 of the bill be corrected to read
``2011''.) This increase is identical to that proposed in the
President's Fiscal Year 2012 budget request to protect the affected
benefits from the eroding effects of inflation. VA supports the bill
and believes that our veterans and their dependents deserve no less. VA
estimates that enactment would result in benefit costs of $329 million
for fiscal year 2012.
H.R. 1484
H.R. 1484, the ``Veterans Appeals Improvement Act of 2011,'' would
amend 38 U.S.C. Sec. 7104 to improve VA's appeals process and would
establish a Veterans Judicial Review Commission to evaluate the
administrative and judicial appellate review processes of veterans' and
survivors' benefits determinations. As discussed below, section 2 of
this legislation has a common theme with a provision in a draft bill
Secretary Shinseki submitted to Congress in May 2010, and VA asks the
Subcommittee to review that proposal in connection with H.R. 1484.
Section 2
Section 2 of this bill would amend 38 U.S.C. Sec. 7104 to require
that new evidence submitted by a claimant after filing a substantive
appeal be submitted to the Board of Veterans' Appeals (Board), unless
the claimant requests that the evidence be reviewed by a VA Regional
Office (VARO) before being submitted to the Board. This new procedure
would be applicable to evidence submitted on or after the date 90 days
after the date of enactment.
VA fully supports the basic concept behind section 2, namely the
automatic waiver of agency of original jurisdiction (AOJ) consideration
of evidence submitted by a claimant following perfection of an appeal
to the Board, unless the claimant or the claimant's representative
expressly chooses not to waive initial consideration by the AOJ.
However, as currently drafted, section 2 would fall short of providing
such an automatic waiver. Specifically, as explained in more detail
below, the language of section 2 is inadequate in the following ways:
(1) it addresses where evidence should be submitted instead of which
office should consider it; (2) it fails to account for the fact that
claimants' representatives, rather than claimants themselves, often
submit evidence; (3) it fails to account for offices in VA, other than
VAROs, that make decisions appealable to the Board; and (4) it fails to
require that, if a claimant wants an AOJ, not the Board, to initially
consider evidence, the claimant or representative must make that
request when submitting the evidence.
The establishment of an automatic waiver would improve the
timeliness of appeals processing as a whole. With an automatic waiver
provision the AOJ could, in the absence of other development
requirements, transfer appeals more quickly to the Board following the
receipt of a substantive appeal, spending less time responding to
claimants who submit additional evidence after filing a substantive
appeal.
Currently, an AOJ may not transfer an appeal to the Board until it
has made a decision based on all evidence in the file, including all
new evidence. If a claimant submits new evidence after filing a
substantive appeal, the AOJ prepares a multi-page supplemental
statement of the case (SSOC), which largely reiterates content from the
previously issued statement of the case. If the AOJ's prior decision is
unchanged, the SSOC explains why the new evidence does not alter that
decision.
After sending a claimant an SSOC, the AOJ must allow the claimant
an additional 30 days to respond. If the claimant responds with more
evidence, the process of review, SSOC, and 30 days to respond is
repeated. This back-and-forth cycle sometimes occurs several times, and
many veterans are unaware that they are delaying the Board's review of
their appeal simply by submitting new evidence. Furthermore, the new
evidence submitted often has no bearing on the issue on appeal. For
example, if a veteran must prove that a current disability is related
to service, evidence of recent treatment for the disability, without
any mention of the disability's origin, is immaterial to the appeal.
Nevertheless, under current law, the AOJ must review the evidence,
issue a SSOC, and provide 30 days for the claimant to respond. The
submission of such evidence unnecessarily prolongs the appeals process
without resulting in a changed outcome.
The Board is already tasked with conducting a de novo review of all
the evidence in the file. However, under current law, if new evidence
is submitted directly to the Board without a waiver of initial
consideration by the AOJ, the Board must remand the case to the AOJ to
consider the new evidence in the first instance. With an automatic
waiver, the Board would avoid time-consuming remands in cases when the
appellants submit evidence directly to the Board without an explicit
waiver of AOJ consideration, thereby getting final decisions to
veterans more quickly and reducing the increased appellate workload
caused by the reworking of remanded claims.
As mentioned above, the language of section 2 is inadequate to
establish an effective automatic waiver. VA therefore requests that the
language of section 2 be replaced with a provision of a legislative
proposal the Secretary of Veterans Affairs submitted to Congress on May
26, 2010. VA's proposed language is better than that of section 2 for
the following reasons.
Section 2 would require that evidence submitted by a claimant after
filing a substantive appeal be submitted to the Board. Directing
claimants to submit evidence directly to the Board would not clearly
permit the Board to consider such evidence in the first instance.
Existing law precludes the Board's initial consideration of evidence
submitted in connection with a claim, unless the claimant waives the
right to initial consideration by the AOJ. Under existing case law,
evidence must first be considered by the AOJ in order to preserve a
claimant's statutory right under 38 U.S.C. Sec. 7104 to ``one review on
appeal,'' which the Board provides on behalf of the Secretary. Given
the current statutory scheme, to be effective, a waiver provision must
permit the Board to review evidence without initial review by the AOJ,
rather than address where the evidence may be submitted.
VA also recommends that section 2 be expanded to apply to evidence
submitted by both representatives and claimants, not just claimants.
Claimants often provide evidence to their designated representatives
for submission to VA. Expanding the automatic waiver provision to
evidence submitted by representatives on behalf of claimants will
ensure that the waiver applies to evidence submitted by
representatives.
Moreover, section 2 is directed toward VAROs only. However, initial
decisions appealable to the Board are also made by other VA components,
including NCA, VA's Office of the General Counsel, and the Veterans
Health Administration. To better account for other offices in VA that
make decisions appealable to the Board, and to make the waiver
provision applicable to evidence submitted in connection with decisions
made by those offices, the waiver should be directed at AOJ review of
evidence, not VARO review. The term ``AOJ'' includes not only ROs, but
also other VA components that make decisions appealable to the Board.
Finally, VA also recommends revising section 2, to avoid
inefficiencies in appeals processing, by clarifying that requests for
initial AOJ review must be made concurrently with the submission of
evidence. As currently drafted, section 2 would allow claimants to
request AOJ review of new evidence they submit, at any time following
the filing of a substantive appeal. If a claimant requested AOJ review
after the case was transferred to the Board, the Board would have to
return the case to the AOJ, possibly after having expended considerable
resources in adjudicating the appeal. This result would be both
inefficient and counter to the underlying purpose of the waiver
provision.
Therefore, VA recommends that section 2 of H.R. 1484 be replaced
with the following language from VA's legislative proposal:
AUTOMATIC WAIVER OF AGENCY OF ORIGINAL JURISDICTION REVIEW OF
NEW EVIDENCE.
Section 7105 [of title 38, United States Code] is amended by
adding at the end the following new subsection:
``([e]) If, either at the time or after the agency of
original jurisdiction receives the substantive appeal, the
claimant or the claimant's representative submits evidence to
either the agency of original jurisdiction or the Board of
Veterans' Appeals for consideration in connection with the
issue or issues with which disagreement has been expressed,
such evidence will be subject to initial review by the Board of
Veterans' Appeals unless the claimant or the claimant's
representative, if any, requests in writing that the agency of
original jurisdiction initially review such evidence. Such
request for review must accompany the submission of the
evidence.''
This provision of the Secretary's draft bill addresses each of VA's
concerns with section 2 of H.R. 1484 while accomplishing its underlying
purpose.
Section 2 would have no measurable monetary costs or savings, but
has the potential to expedite adjudication of appeals at both the AOJ
and the Board if the draft statutory language is revised as
recommended. Furthermore, amending 38 U.S.C. Sec. 7104 with the
statutory language proposed by Secretary Shinseki would result in
significant labor savings. VA currently issues more than 60,000 SSOCs
per year. Enactment of the Secretary's proposal would eliminate the
need to prepare many of these SSOCs, allowing the Veterans Benefits
Administration to focus additional resources on more timely appeals
processing. This would free up considerable resources in the VAROs and
the Appeals Management Center to focus on key appeal activities such as
promulgation of appeal grants and certification of appeals to the
Board.
This proposal would also prevent more than 1,600 remands from the
Board per year for cases already before the Board in which a claimant
submits additional evidence to VA but fails to waive initial AOJ
consideration of that evidence. Under existing law, in such cases, the
Board must remand the case to the AOJ for the issuance of a SSOC
addressing the newly submitted evidence, unless the Board grants the
claim in full. By eliminating these remands, the proposal would allow
the Board to use this time instead to issue more final decisions. The
potential benefits--better service to our veterans and improved
performance of all VAROs--fully justify the enactment of this proposal
as submitted to Congress on May 26, 2010.
Section 3
Section 3 of H.R. 1484 would establish the ``Veterans Judicial
Review Commission'' (Commission) to evaluate the administrative and
judicial appellate review processes of veterans' and survivors'
benefits determinations and make specific recommendations and offer
solutions to improve the accuracy, fairness, transparency,
predictability, timeliness, and finality of such appellate review
processes, including a recommendation as to whether the Court of
Appeals for Veterans Claims (Veterans Court) should have the authority
to hear class action or associational standing cases.
VA does not support section 3. The administrative and judicial
appellate review processes have been the focus of extensive studies and
Congressional hearings that have resulted in a number of
recommendations. While VA appreciates the aims expressed in section 3,
we believe the Commission would duplicate the ongoing work of VA, the
Congress, VSOs, and others who are now able to engage in policy
discussions aimed at improving the claims process.
With regard to whether the Veterans Court should have the authority
to hear class action or associational standing cases, such authority
would not be beneficial because the outcome of each veteran's case
depends largely on the specific facts of each case. Thus, class action
suits would not increase efficiency by enabling the Veterans Court to
deal with a large number of claims simultaneously. Furthermore, class
actions are susceptible to collateral litigation over issues such as
commonality, typicality, adequacy of counsel, and notice, diverting
scarce judicial resources. Collateral litigation results in a loss of
efficiency with respect to the resolution of individual claims. In
addition, class actions are unnecessary because, under rules already in
place, potential members of a ``class'' receive the benefit of a
precedent decision of the Veterans Court, whether it controls because
of identity of facts and issues, or due to a logical extension of the
earlier decision. In the interest of economy and efficiency, the
Veterans Court has often exercised its already existing authority to
consolidate cases and to stay cases, where there are questions of law
or fact common to multiple appeals. In this context, class action
authority is unnecessary because it would be largely redundant.
Section 3 would not appear to have any direct cost to VA as the
Commission's expenses would not be paid out of VA's budget.
H.R. 1647
H.R. 1647, the ``Veterans' Choice in Filing Act of 2011,'' would
require VA to carry out a 2-year pilot program under which certain
veterans may submit claims to any VARO. The veterans who would qualify
for this privilege are those whose claims would otherwise be submitted
to any one of five VAROs determined by the Secretary to be below
average in performance. The bill would require VA to promptly notify
each qualifying veteran of the opportunity to participate in the
program.
H.R. 1647 would also require VA to report to Congress the five
VAROs selected on the basis of below average performance and the
rationale for selecting them. Within 90 days after the pilot program's
completion, VA would be required to submit to Congress a final report
on the pilot program including recommendations with respect to the
allocation of resources among VAROs.
VA opposes this bill because conducting this pilot program would
not benefit VA claimants by improving either the efficiency or quality
of the VA benefit-claims process. Of primary importance is the danger
that the program will create forum shopping. The program would permit
claimants under the jurisdiction of one of the five VAROs selected to
submit their claims to any VARO if they are dissatisfied or unhappy
with the claim process or outcome at their ``home'' VARO, regardless of
the reason for their dissatisfaction, so long as they would normally
have to submit their claims to one of the five VAROs selected on the
basis of below average performance. Information about which VARO is
perceived to be best could easily be manipulated by Internet-driven
rumor and opinion, rather than verified statistical information,
further contributing to the notion that VA claimants should shop for
the ``best'' VARO. The expectations about speed and outcomes created by
such legislation would likely only frustrate claimants. As noted below,
VA's energies are best spent on systemwide efforts to improve
performance at all VAROs. VA has especially focused on VAROs that have
historically been on the low end of critical performance standards.
Under the existing statutory authority, VA distributes, or brokers,
claims among VAROs based upon workload and other factors when necessary
and feasible. VA determines whether to broker cases in or out of VAROs
based upon various factors, including the allocation of workload and
resources at those offices. If VA claimants were to determine where to
file claims, many VAROs might not be equipped to handle the unexpected
workload that would result. VAROs could not predict changing workload
demands and sufficiently hire and train employees to timely adjust to
these changes.
This experimental pilot program would also interrupt VA's
transformational efforts to reduce the claims backlog while achieving
optimum quality. VA is undertaking numerous programs to investigate
methods to improve claims-processing efficiency. In addition, VA has
designated certain VAROs to have exclusive jurisdiction over specific
types of claims. Examples of these types of claims are pension claims,
radiation claims, and certain Agent Orange claims. This pilot would
interrupt our efforts to assess the viability and success of VA's
transformation efforts.
VA also opposes this bill because of its potential negative impact
upon the scheduling and conducting of medical examinations, which by
necessity are scheduled in the medical center closest to the veteran's
home. The claims file must be sent for review by the examiner.
Currently, examiners and decision makers are co-located within the
medical center and VARO of jurisdiction, but in a forum-shopping
program, the examination could be conducted in a location far from the
decisionmaking office. The additional movement of claims files that
would be necessary under this bill would be inefficient and would
create some risk of losing documents or entire files.
H.R. 1647's requirement to promptly notify each qualifying veteran
of the opportunity to file claims at any VARO would create an
administrative challenge. After selecting the five VAROs with below
average performance, VA would have to identify all of the veterans
whose claims would otherwise be filed at one of those VAROs, even if
they have not yet filed any claim with VA, just to notify them of their
eligibility to participate in this pilot program.
Finally, VA has very strong concerns about the concept that there
would be five designated VAROs whose performance is ``below average.''
First, the nature of an average is such that there would always be some
VAROs whose performance is above average and other VAROs whose
performance is below average. That is inherent in the definition of an
average. Furthermore, many factors may affect both the quality and
production of a VARO at various times. This proposed pilot's
implication to both claimants and VA employees is that the VAROs
selected on the basis of below average performance are branded
substandard. Creating such a high-profile negative designation would
devastate employee morale and damage VA's extensive ongoing efforts to
improve performance across the Veterans Benefits Administration so as
to better serve veterans.
VA cannot determine potential costs associated with H.R. 1647 due
to the unavailability of data.
This concludes my statement, Mr. Chairman. VA appreciates the
opportunity to share our views on the proposed legislation, and we
would be happy to entertain any questions you or the other Members of
the Subcommittee may have.
Prepared Statement of Kathryn A. Condon,
Executive Director, Army National Cemeteries Program,
Department of the Army, U.S. Department of Defense
INTRODUCTION
Mr. Chairman, Ranking Member McNerney, and distinguished Members of
the Subcommittee, thank you for the opportunity to provide the
Department of the Army's views on H.R. 1441, H.R. 1627 and H. Con. Res.
12.
Arlington National Cemetery is both the most hallowed burial ground
of our Nation's fallen and one of the most visited tourist sites in the
Washington, DC, area. A fully operational national cemetery since May
1864, Arlington National Cemetery presently conducts an average of 27
funerals each workday--final farewells to fallen heroes from the fronts
of Iraq and Afghanistan, as well as to veterans of World War II, the
Korean conflict, Vietnam and the Cold War and their family members.
While maintaining the honor, dignity and privacy of each graveside
service, Arlington National Cemetery hosts approximately 4 million
guests annually. This duality of purpose serves to bring the national
shrine of Arlington National Cemetery, and the sacrifices of those
buried there, closer to the American people. On behalf of the
cemeteries and the Department of the Army, I would like to express our
appreciation for the support that Congress has provided over the years.
H.R. 1441
H.R. 1441 would amend title 38, United States Code, to codify the
prohibition against the reservation of gravesites at Arlington National
Cemetery. As drafted, H.R. 1441 would prohibit more than one gravesite
per eligible veteran and would also prohibit gravesite reservations
prior to the time of need with an exception for written ``requests''
for a reserved gravesite made prior to January 1, 1962, regardless of
current eligibility requirements.
Current Army regulations establish a ``one-gravesite-per-family''
policy. This rule has been in effect since 1961. One important element
of Army policy is that the Army may allow exceptions to the ``one-
gravesite-per-family'' policy when strict adherence to the policy is
not feasible. This policy is set forth at 32 CFR Sec. 553.18(a) and
Army Regulation 290-5 Sec. 2-5(a). H.R. 1441, as drafted, does not, but
in the Department's view should, provide the Secretary of the Army with
the requisite authority to make an appropriately justified exception to
the ``one-gravesite-per-family'' policy. The Army recommends modifying
H.R. 1441 accordingly.
Similarly, the Army currently prohibits reserving gravesites prior
to time of need and does not honor gravesite reservations unless (1)
the reservation was made in writing before the ``one-gravesite-per-
family'' policy was established, (2) an eligible person was interred
before the one-gravesite-per-family policy was established, and (3) the
person holding the reservation for the adjacent gravesite is eligible
for interment at Arlington National Cemetery under current Army
eligibility rules. This policy is set forth at 32 CFR Sec. 553.18 and
Army Regulation 290-5 Sec. 2-5. This exception to the prohibition on
reservations is necessary because prior to the ``one-gravesite-per-
family'' policy, individuals were not interred at depths that would
accommodate two or three subsequent burials in the same gravesite like
they are today.
As drafted, proposed section 2410A(b) in H.R. 1441 reflects the
Army's current policy prohibiting reservations. Section 1(c)(2) of H.R.
1441, however, creates an exception to the prohibition on reservations
for those who have a ``written request for a reserved gravesite [that]
was submitted to the Secretary of the Army before January 1, 1962.''
This exception would alter current Army policy by allowing reservations
for those with only a reservation request rather than an approved
reservation before 1962. The requirement for a valid reservation, not
just a request, is necessary to implement H.R. 1441.
The Department has no objection to the reporting requirement
contained in section 1(d) of H.R. 1441.
H.R. 1627
H.R. 1627 would amend section 2409 of title 38, United States Code,
to provide for certain requirements for the placement of monuments in
Arlington National Cemetery, and for other purposes. As drafted, H.R.
1627 codifies what is already Army policy regarding commemorative
memorials at Arlington National Cemetery with one notable exception.
Currently, ``commemorative monuments'' (monuments that commemorate an
individual, group or event (in contrast to ``individual memorial
markers'' authorized by 38 U.S.C. Sec. 2409)) may be placed in
Arlington National Cemetery only after they are authorized by a joint
or concurrent resolution of Congress. This policy and rule is
promulgated at 32 CFR Sec. 553.22(l). As drafted, H.R. 1627 does not
address the Army's current policy requiring joint resolution by
Congress before a new ``commemorative monument'' is authorized to be
placed within Arlington National Cemetery. The Department would not
oppose H.R. 1627 if amended to clearly articulate the requirement that
Congress authorize, by joint or concurrent resolution, all
``commemorative monuments'' prior to placement in Arlington National
Cemetery.
The Army does not read the proposed amendment to Sec. 2409 to
alter, or in any way affect, the placement of ``individual memorial
markers'' for servicemembers and veterans pursuant to Sec. 2409.
H. CON. RES. 12
H. Con. Res. 12 expresses the sense of Congress that an appropriate
site on Chaplains Hill in Arlington National Cemetery should be
provided for a memorial marker to honor the memory of Jewish chaplains
who died while on active duty in the Armed Forces of the United States.
Reliance on a Congressional resolution to authorize placement of a
commemorative monument at Arlington National Cemetery is consistent
with current Army policy. Although H. Con. Res. 12 grants the Secretary
of the Army ``exclusive authority to approve the design and site of the
memorial marker,'' because the language does not preclude or address
the Army's current policy to consult with the Commission of Fine Arts,
the Army would still require the proposed commemorative monument to
undergo review by the Commission.
Although the Department does not take a position on the merits of
this or any other proposed commemorative monument prior to
Congressional authorization, the Army stands ready to execute the
intent of Congress upon passage of the concurrent resolution.
CONCLUSION
The Department, as a general proposition, supports the codification
of current Army rules and policy pertaining to the operation and
management of Arlington National Cemetery and the U.S. Soldiers' and
Airmen's Home National Cemetery. H.R. 1411 and H.R. 1627 both attempt
to codify existing rules and or policy. The Department does not oppose
the proposed codifications (H.R. 1411, H.R. 1627), subject to points of
clarification discussed above. The Army has no objection to H. Con.
Res. 12 and would be prepared to facilitate Congressional intent
consistent with current policy if enacted.
Mr. Chairman, this concludes my testimony. I will gladly respond to
any questions that you or the Subcommittee Members may have.
Statement of Paralyzed Veterans of America
Mr. Chairman and Members of the Subcommittee, on behalf of
Paralyzed Veterans of America (PVA), we would like to thank you for the
opportunity to submit a statement for the record regarding the proposed
legislation. We appreciate the fact that you continue to address the
broadest range of issues with the intention of improving benefits for
veterans. We particularly support any focus placed on meeting the
complex needs of the newest generation of veterans, even as we continue
to improve services for those who have served in the past.
PVA members represent one of the segments of the veteran population
that benefit most from the many ancillary benefits provided by VA.
Without the provision of benefits such as Special Monthly Compensation
(SMC), our members, and other severely disabled veterans, would
experience a much lower quality of life and would in many cases be
unable to live independently.
H.R. 811, the
``Providing Military Honors for Our Nation's Heroes Act''
PVA does not oppose H.R. 811, the ``Providing Military Honors for
our Nation's Heroes Act.'' This legislation would authorize the
Secretary of Veterans Affairs (VA) to reimburse a member of a veterans'
service organization or other organization approved by the Secretary
for transportation expenses incurred while volunteering services during
funeral honors detailed to a veteran and funeral honors requested by a
funeral home.
This bill would also authorize volunteers from veterans' service
organizations (VSOs) and other organizations to be reimbursed for
expenses associated with travel and uniform cleaning. Current law does
not reimburse members of the VSOs for service without having military
representation. This simply means that VSOs and other volunteers can
assist the military by providing color guard details and be reimbursed
for expenses incurred. While PVA has no resolution from our membership,
we do not oppose this legislation.
H.R. 1407, the
``Veterans' Compensation Cost-of-Living Adjustment Act of 2011''
PVA supports H.R. 1407, the ``Veterans' Compensation Cost-of-Living
(COLA) Adjustment Act of 2011,'' that would increase, effective as of
December 1, 2011, 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. This
would include increases in wartime disability compensation, additional
compensation for dependents, clothing allowance, and dependency and
indemnity compensation for children. This legislation also includes
language specific to rounding each dollar amount increased, if not a
whole dollar amount, shall be rounded to the next lower whole dollar
amount.
For the past 2 years, there has been no increase in compensation or
DIC rates due to the Social Security index not increasing. While our
economy has been in disorder, veterans personal finances have been
affected by rising costs of essential necessities to live from day-to-
day maintaining a certain standard of quality of life. PVA supports
enactment of this legislation so our veterans receive COLA, this year
but also urges Congress to enhance language to include an automatic
annual COLA, compensation for non-work disability, and the loss of
quality of life.
Mr. Chairman, PVA also urges Congress to consider the position of
The Independent Budget (IB) to implement the recommendation made by the
Dole-Shalala Commission, Institute of Medicine (IOM), and the Veterans
Disability Commission (VDBC) to enhance disability compensation for
non-work disability and the loss of quality of life. Specifically, non-
work refers to the veterans limited ability to engage in normal
functions and activities other than work such as social, physical, and
psychological. This issue needs to be addressed so our Nations veterans
can be compensated from the impact on loss of quality of life.
H.R. 1441
PVA does not oppose H.R. 1441, legislation that would codify the
prohibition against the reservation of gravesites prior to death at the
Arlington National Cemetery. This bill would also prohibit multiple
gravesites from being reserved for a servicemember or veteran who is
eligible for interment, being one gravesite per family.
H.R. 1484, the ``Veterans Appeals Improvement Act of 2011''
H.R. 1484, the ``Veterans Appeals Improvement Act of 2011'' seeks
to improve the appeal process. Section 2 of the bill would allow a
claimant to submit new evidence to support an appeal case that was
previously filed, directly to the Board of Veterans' Appeals (Board)
and not to the claimants VA Regional Office. This legislation does
allow for the claimant to request VA Regional Office consideration of
the new evidence, if the claimant prefers.
PVA strongly supports approval of this legislation, which would be
very beneficial to the veteran as well as the Board. It would allow a
claimant to submit new or supplemental evidence directly to the Board
instead of submitting it and requiring numerous other steps at a VA
Regional Office. Submitting to a VA Regional Office is very time
consuming and initiates long delays in the adjudication process.
While we support section 2 of the bill, PVA does not support other
sections as written. At this time we question whether the creation of
another study is warranted or appropriate.
H.R. 1627
H.R. 1627, provides clarification on the requirements for placement
of monuments in Arlington National Cemetery. This bill will clarify
specific requirements related to the purpose and type of monument
requested. In addition, the legislation outlines the requirements and
authorization process in which sponsoring individuals or organizations
put forth a request. While PVA does not have a position, we do not
oppose this legislation.
H.R. 1647, the ``Veterans Choice of Filing Act of 2011''
H.R. 1647, the ``Veterans Choice of Filing Act of 2011,'' directs
the Secretary of Veterans Affairs to carry out a pilot program under
which certain veterans may submit claims for benefits under laws
administered by the Secretary to any regional office of the Department
of Veterans Affairs. This particular pilot program would be authorized
for 24 months and would allow the veteran who is served by a poor
performing VA regional office the option to submit a claim for benefits
to any regional office of their choosing. In the proposal, five
regional offices would take part in the program.
PVA believes this legislation has very few specifics regarding the
purpose of the program and implementation. It appears the bill is
intended to gauge improvements of certain poor performing VA regional
offices.
While PVA does not oppose this bill, we cannot support it at this
time. We have been working with numerous VSOs and VBA to
comprehensively improve and streamline the claims processing system.
Currently, VBA has numerous pilot programs under way as well as a
redesigning measure of the IT systems used to initiate the claims
process. PVA believes while good measure is being taken, there is a
possibility that by inserting another pilot program may interfere with
VBA's ability to manage their workload and achieve results.
PVA would like to work with the Subcommittee and other VSOs to
better develop initiatives that address the current needs of our
veterans while measures are being met in a performing claims processing
system. It is important that VBA continues to enhance, develop, and
deploy the VBMS program. The program we look forward to is one that
will allow timeliness and quality to be met in one system. PVA as well
as other VSOs want quality control programs to be a priority. PVA
stands ready to assist in achieving these benchmarks.
H. Con. Res. 12
Finally, H. Con. Res. 12, would articulate the intent of Congress
to honor the memory of the Jewish chaplains who have died while on
active duty with the placement of a memorial marker on Chaplains Hill
in Arlington National Cemetery. Currently, PVA does not have a
position, but does not oppose this legislation.
Mr. Chairman and Members of the Subcommittee, PVA would once again
like to thank you for the opportunity to provide our views on veterans'
legislation. We look forward to working with you to continue to improve
these benefits for our veterans.