[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329; H.R.
1390; H.R. 1564; AND A DRAFT BILL ENTITLED ``QUICKER VETERANS BENEFITS
DELIVERY ACT OF 2017.''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, APRIL 5, 2017
__________
Serial No. 115-11
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
29-679 WASHINGTON : 2018
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COMMITTEE ON VETERANS' AFFAIRS
DAVID P. ROE, Tennessee, Chairman
GUS M. BILIRAKIS, Florida, Vice- TIM WALZ, Minnesota, Ranking
Chairman Member
MIKE COFFMAN, Colorado MARK TAKANO, California
BRAD R. WENSTRUP, Ohio JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American ANN M. KUSTER, New Hampshire
Samoa BETO O'ROURKE, Texas
MIKE BOST, Illinois KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine J. LUIS CORREA, California
NEAL DUNN, Florida KILILI SABLAN, Northern Mariana
JODEY ARRINGTON, Texas Islands
JOHN RUTHERFORD, Florida ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto
Rico
Jon Towers, Staff Director
Ray Kelley, Democratic Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
MIKE BOST, Illinois, Chairman
MIKE COFFMAN, Colorado ELIZABETH ESTY, Connecticut,
AMATA RADEWAGEN, America Samoa Ranking Member
JACK BERGMAN, Michigan JULIA BROWNLEY, California
JIM BANKS, Indiana KILILI SABLAN, Northern Mariana
Islands
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
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Wednesday, April 5, 2017
Page
Legislative Hearing On: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329;
H.R. 1390; H.R. 1564; And A Draft Bill Entitled ``Quicker
Veterans Benefits Delivery Act of 2017.''...................... 1
OPENING STATEMENTS
Honorable Mike Bost, Chairman.................................... 1
Honorable Elizabeth Esty, Ranking Member......................... 2
WITNESSES
The Honorable Jim Banks, U.S. House of Representatives........... 3
The Honorable Julia Brownley, U.S. House of Representatives...... 4
The Honorable Jack Bergman, U.S. House of Representatives........ 5
The Honorable David G. Valadao, U.S. House of Representatives.... 5
Ms. Beth Murphy, Director, Compensation Service, Veterans
Benefits Administration, U. S. Department of Veterans Affairs.. 7
Prepared Statement........................................... 33
Accompanied by:
Dr. Ralph L. Erickson, Chief Consultant for Post Deployment
Health Service, Veterans Health Administration, U. S.
Department of Veterans Affairs
Ms. Patricia Watts, Director, Legislative and Regulatory
Service, National Cemetery Administration, U. S.
Department of Veterans Affairs
Mr. Zachary Hearn, Deputy Director, Veterans Affairs and
Rehabilitation Division, The American Legion................... 15
Prepared Statement........................................... 36
Mr. Rick Weidman, Executive Director of Policy and Government
Affairs for the Vietnam Veterans of America.................... 17
Mr. Patrick Murray, Associate Director, National Legislative
Service, Veterans of Foreign Wars.............................. 18
Prepared Statement........................................... 39
Mr. LeRoy Acosta, Assistant National Legislative Director,
Disabled American Veterans..................................... 20
Prepared Statement........................................... 41
Mr. John B. Wells, Executive Director, Military-Veterans Advocacy
Inc............................................................ 21
STATEMENT FOR THE RECORD
Paralyzed Veterans of America (PVA).............................. 44
Military-Veterans Advocacy....................................... 46
.
LEGISLATIVE HEARING ON: H.R. 105; H.R. 299; H.R. 1328; H.R. 1329; H.R.
1390; H.R. 1564; AND A DRAFT BILL ENTITLED ``QUICKER VETERANS BENEFITS
DELIVERY ACT OF 2017.''
----------
Wednesday, April 5, 2017
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:30 a.m., in
Room 334, Cannon House Office Building, Hon. Mike Bost
[Chairman of the Subcommittee] presiding.
Present: Representatives Bost, Coffman, Radewagen, Bergman,
Banks, Esty, Brownley, Takano, and Sablan.
OPENING STATEMENT OF HONORABLE MIKE BOST, CHAIRMAN
Mr. Bost. Good morning, everyone.
The hearing will come to order. Before we begin, I would
like to ask unanimous consent that Chairman Roe be allowed to
sit at the dais and make a statement and ask questions. He is
not here right now, but he will arrive soon.
Hearing no objections, so ordered.
Thank you all for joining us today to discuss legislation
before the Subcommittee. The seven bills we will talk about
today address issues that are very important to veterans and
their families. These bills would include and involve issues,
things that ensure Veterans Benefits keeps pace with inflation;
require VA to accept private medical evidence; extend benefits
to the Blue Water Navy veterans; protect vulnerable veterans
from fraud; give families more choice to decide where to lay
their loved ones to rest; and clarify that VA may use mandatory
funds to pay the cost of traveling to contract disability
examinations.
We have a full agenda today, so to ensure that we get
through it all, I am going to ask everyone to keep themselves
to five minutes. I heard another Chairman say the other day
that we will refer to that as the bull-riding rule. So, we will
let you go and the buzzer rings at the five-minute mark, you
have eight seconds and then we are going to throw you off.
So, at any rate, I would like to start today with the two
bills that I am proud to have introduced, H.R. 1328, The
American Heroes COLA Act of 2017 and H.R. 1329, The Veterans'
Compensation Cost-of-Living Adjustment Act of 2017.
I also want to thank Ranking Member Esty for being an
original co-sponsor on both of these bills.
H.R. 1329 would give a cost-of-living adjustment to
veterans. This increase would be the same as Social Security
recipients get, and would help veterans keep up with inflation;
of course, H.R. 1329 has my full support, as it should.
I have also introduced H.R. 1328 to ensure that veterans
will receive a COLA every time Social Security recipients get
one. Veterans have earned these benefits and should have the
peace of mind of knowing that they will receive a COLA every
year without having to wait for Congress to act.
I know many of my colleagues here today have worked hard on
these proposals and I look forward to having a constructive
conversation.
I also want to thank our witnesses for testifying on these
important bills. I am going to turn it over to my colleague,
Ranking Member Esty, for her opening statements.
OPENING STATEMENT OF HONORABLE ELIZABETH ESTY, RANKING MEMBER
Ms. Esty. Thank you very much, Mr. Chairman, for holding
today's hearing on behalf of our Nation's veterans.
Today we are examining seven bills that are of vital
importance to our veterans and their families. I support them
all and am proud to have worked with the Chairman to introduce,
as he has just noted, H.R. 1328 and H.R. 1329, The American
Heroes COLA Act of 2017 and The Veterans' Compensation COLA
Adjustment Act. These are bills that ensure that we are keeping
faith with our veterans and keeping economic pace with the
reality of what things cost in America today, so I urge my
colleagues to listen attentively to our witnesses and to
support these important bills, which will make sure that our
veterans with service-connected disabilities and surviving
spouses of veterans, receive dependency and indemnity
compensation that is appropriate. It is simply the right thing
to do.
We are also considering H.R. 1725, the Quicker Veterans
Benefits Delivery Act and it is the important part of today's
agenda. This bill, which is introduced by Full Committee
Ranking Member Walz, speeds up the benefits delivery process by
allowing local physicians to conduct disability medical
examinations for veterans.
I am sure everyone on this panel and everyone in this room
has heard extensively about this issue from the veterans we are
honored to represent; specifically, the bill provides that when
a claimant submits private medical evidence that is competent,
credible, probative, and, otherwise, adequate for rating
purposes, the secretary will not request a VA medical
examination.
Also on today's agenda is H.R. 105, the Protect Veterans
from Financial Fraud Act introduced by our colleague on the
Subcommittee, Julia Brownley. It protects veterans from the
misuse of their money by a fiduciary by expanding the
secretary's authority to pay recompense to a beneficiary that
has been a victim of fraud.
H.R. 299, the Blue Water Veterans--Navy Vietnam Veterans
Act is brought forward by Representative Valadao, who I see has
already joined us and is on the first panel. This bill enjoys
broad bipartisan support from this Congress and I will say I am
strongly supportive. I have many veterans in my district who
have spoken to me repeatedly about this issue.
It expands the compensation and health care benefits to
veterans who served off the coast of Vietnam during the Vietnam
War and who have manifested the statutorily defined diseases
resulted--related to exposure to herbicides used in Vietnam,
such as Agent Orange.
As all of us know, currently, only veterans who have served
on land are eligible for the presumptive connection to
herbicide exposure.
As this group avails and moves forward toward the
Subcommittee markup, I want to thank all the Members for their
thoughtful legislation and I want to thank all of our witnesses
for joining us today, as well as for your work with us on these
bills. I look forward to hearing your testimony. Thank you, and
I yield back.
Mr. Bost. I want to thank the Ranking Member. I look
forward to working with her on these issues as we move forward.
And I want to let you know that I am honored to be joined
with--this morning, by several of my colleagues who are going
to testify about the bills on our agenda that they have
sponsored. I appreciate all of you taking the time out of your
morning to be here with us, for sponsoring legislation to help
the veterans.
With us this morning, we have Representative Jim Banks from
Indiana, Representative Jack Bergman from Michigan, and
Representative David Valadao from Florida. We believe that we
will have Representative--from California. Sorry. It is all
right; Bob Dole did that. Representative Julie Brown--Julia
Brownley will be joining us later, also.
I also understand that Ranking Member Walz wanted to be
here today, but had a scheduled conflict. I am asking unanimous
consent that his written statement on his bill, which was
noticed for this hearing as a draft bill, H.R. 1725, the
Quicker Veterans Benefits Delivery Act of 2017, would be
admitted in the record.
Hearing no objection, so ordered.
Mr. Bost. Mr. Banks, first off, you are recognized for five
minutes to discuss your bill.
OPENING STATEMENT OF HONORABLE JIM BANKS
Mr. Banks. Thank you very much, Mr. Chairman.
In addition to ensuring that our veterans receive the
benefits that they have earned, this Subcommittee is also
tasked with ensuring that our Nation's heroes are treated with
reverence after they pass. Currently, the VA only covers the
cost of transporting a veteran's remains to a national
cemetery, but does not pay burial transportation costs to a
state or tribal veterans cemetery.
H.R. 1390 would correct this problem and allow the VA to
pay the transportation costs, regardless of whether the veteran
is buried in a national, state, or tribal veterans cemetery. By
doing so, this bill would provide more options for families who
are deciding where to lay their loved one to rest. A family may
prefer to bury a veteran in a state or tribal veterans cemetery
because it is closer to home, which would allow the family and
friends to visit the grave and pay their respects. The bill
would remove the financial penalty if a family chooses to inter
their relative in a state or tribal veterans cemetery, instead
of a national cemetery.
It is incumbent that our Nation never forget the sacrifices
that our veterans and their families make each and every day.
One way we can honor their service is to ease the burden of a
grieving family deciding where to lay their loved one to rest,
by offering them more choices.
I ask my colleagues to join me in supporting H.R. 1390, and
I yield back.
Mr. Bost. Thank you, Mr. Banks.
I would like to recognize Ms. Brownley for five minutes on
her bill. Welcome.
OPENING STATEMENT OF HONORABLE JULIA BROWNLEY
Ms. Brownley. Thank you for considering my legislation, the
Protect Veterans from Financial Fraud Act, which will ensure
that our veterans receive the benefits they have earned and
deserved.
As many of you may recall, my bill passed the Subcommittee
in the 114th Congress, but was not brought to the floor for a
vote. I am hoping that we can get a home run this year and
appreciate that the Subcommittee is holding a hearing on the
bill.
As you know, the VA's Fiduciary Program was established to
protect veterans and other beneficiaries who, due to injury,
disease, or old age, are no longer able to manage their
financial affairs. Many veterans who participate in the
Fiduciary Program depend on their VA benefits, truly, to make
ends meet. In fact, in 2016, the Fiduciary Program served more
than 230,000 veterans' survivors and dependents.
My bill would protect veterans and the Fiduciary Program
from financial fraud by ensuring that every veteran in the
program can recover their benefits in cases when the appointed
fiduciary misuses or steals a veteran's benefits.
Under current law, if a VA-appointed fiduciary misuses or
steals a veteran's benefits, the VA has the power to remove the
fiduciary and we know this is a serious concern. In 2016, the
VA conducted nearly 1,500 misuse investigations, of which 764
fiduciaries were removed based upon a finding of misuse of
benefits.
However, in many cases, VA can't reissue the benefits to
the veterans, who, through no fault of their own, may have been
swindled by a VA-appointed fiduciary. This is because the VA
can only reissue the lost benefits to the veteran if their
fiduciary manages VA benefits for at least nine other veterans.
This arbitrary ten-or-more rule means that veterans cannot be
made whole, even if the veteran has been taken advantage of by
unscrupulous individuals, often those closest to them, who were
entrusted with management of a veteran's finances.
My bill will ensure that all veterans who have VA-
appointed fiduciaries are treated equally by eliminating the
ten-or-more rule, and my bill will ensure that all veterans who
have their benefits stolen, can recoup the lost benefits.
I am pleased to see from the testimony that the VSOs here
today are supportive of this change and I am glad to hear that
the VA also believes that Congress needs to fix the statutory
problem and allow the agency to make all veterans whole.
The VA and our VSOs agree that the existing law is
arbitrary because it forces VA to treat two beneficiaries
differently and does not provide the same financial protections
to all veterans. My bill will correct this in justice. Every
veteran participating in the VA Fiduciary Program should be
fully protected from fraud and abuse.
I urge my colleagues to support this simple common sense
fix and am happy to answer any questions.
Mr. Bost. Thank you, Ms. Brownley.
Representative Bergman, you are recognized for five
minutes.
OPENING STATEMENT OF HONORABLE JACK BERGMAN
Mr. Bergman. Thank you, Mr. Chairman.
My bill is very simple. It will clarify that the VA has the
authority to use mandatory funds to pay for the cost of
veterans travel to contract disability examinations.
As you know, a veteran who files a claim for disability
benefits may be required to undergo a VA medical examination;
however, VA does not have enough examiners to schedule these
evaluations in a timely manner. It can be especially
challenging for VA to arrange for disability exams if the
veteran needs to see a specialist, such as a cardiologist.
Furthermore, veterans who live in rural areas often have to
travel long distances to get to VA facilities to see an
examiner.
To address this issue, Congress gave the Department the
authority to contract with non-VA physicians to perform
disability examinations. This policy also allows VA physicians
to devote more time to care for our wounded heroes, rather than
spending time conducting disability exams.
Additionally, using contract examiners has the added
benefit of helping VA to schedule disability evaluations closer
to the veteran's home. For more than 20 years, VA has been
paying for beneficiary travel, regardless of whether veterans
who needed disability evaluations used VA facilities or
contractor facilities.
This bill would simply codify VA's longstanding practice of
using mandatory funds to pay beneficiary travel for contract
exams. H.R. 1564 does not add to the deficit, because this
money is already included in the baseline.
This legislation will help veterans receive the benefits to
which they are entitled by allowing VA to pay beneficiary
travel to contract disability examinations.
I ask my colleagues to join me in supporting H.R. 1564 and
I yield back.
Mr. Bost. Thank you, Mr. Bergman.
Our colleague, Mr. Valadao, from California is at the
witness table. First off, thank you for being here and to
discuss H.R. 299, the Blue Water Navy Vietnam Veterans Act of
2017.
Mr. Valadao, you are recognized for five minutes.
OPENING STATEMENT OF HONORABLE DAVID G. VALADAO
Mr. Valadao. Thank you, Chairman.
Chairman Bost, Ranking Member Esty, Members of the
Subcommittee, thank you for allowing me here today to offer
testimony on my legislation, H.R. 299, the Blue Water Navy
Vietnam Veterans Act.
Since coming to Congress, I have been a proud supporter of
our Nation's veterans and I am excited to sponsor this critical
legislation today. The Members of this distinguished
Subcommittee have a comprehensive understanding of the harmful
effects of the herbicide Agent Orange and the lasting impact it
has had on U.S. servicemembers who sacrificed so much for our
country during the Vietnam War.
Our government must now ensure that those who were exposed
to Agent Orange during wartime are provided for when they
return home. In the aftermath of the Vietnam War, the United
States Government linked the chemical dioxin in Agent Orange to
many harmful and serious medical conditions, affecting those
who served in or around Vietnam.
While the Federal government has provided for those who
served on Vietnam's soil during the war, those who served in
territorial seas of the Republic of Vietnam lack the
compensation and treatment they deserve.
In 2002, the Department of Veterans Affairs reinterpreted
the language of Agent Orange Act of 1991 to apply only to
veterans who actually set foot in the Republic of Vietnam or
who served in the inland, round waterways. As a result, the
veterans who served off the coast in blue water must now
provide service-connection and exposure to Agent Orange, which
can often prove a long and burdensome process.
The VA continues to deny claims for blue water Navy
veterans, despite studies that show higher rates of cancer and
non-Hodgkin's lymphoma among shipboard veterans. While it may
be difficult to definitely prove that blue water Navy veterans
were exposed to Agent Orange, their higher rates of diseases
associated with exposure to the herbicide are cause for alarm.
This, combined with studies to show a plausible pathway for the
herbicide to have entered the South China Sea are evidence
enough that these brave servicemembers were exposed to the
herbicide.
Even more alarming, studies also show the distillation
process to convert saltwater to drinking water enriched the
chemical dioxin in Agent Orange's potency and contaminated the
shipboard water system.
My legislation, H.R. 299, the Blue Water Navy Vietnam
Veterans Act, would restore the presumptive--the presumption of
service-connection for blue water Navy veterans that existed
prior to 2002 VA decision. Lifting the burden of proving
service-connection from the individual veteran is vitally
important, as it places blue water Navy veterans on the same
playing field as those who served on land.
These brave men and women of our Nation's Armed Forces have
sacrificed their health and often times, their lives, in
service to our great country. Providing for them when they
return home is the least we can do to show our unwavering
commitment to our veterans and appreciation for their service.
Along with myself and my colleague, Ranking Member Tim
Walz, this legislation has the support of over 250 Members of
Congress and counting, including 16 Members of the Veterans'
Affairs Committee. It is important for Congress to ensure our
blue water Navy Vietnam veterans receive the support and care
they need.
I thank the Subcommittee on Disability Assistance and
Memorial Affairs, and the Veterans' Affairs Committee as a
whole, for their consideration of this critical legislation,
and I hope that we can work together to provide for our
Nation's heroes. Thank you.
Mr. Bost. Thank you, Mr. Valadao.
And we will forego any rounds of questions for Mr. Valadao
and any questions that anyone may have for our colleague, may
submit them to the record.
I now want to invite the second panel to the table. We are
joined today by Ms. Beth Murphy, the director of compensation
services at the Veterans Benefits Administration; she's
accompanied by Ms. Patricia Watts, the director of legislative
and regulatory services for the National Cemetery
Administration and Mr. Ralph Erickson, the chief consultant for
post-deployment health services at VHA.
Thank you for being here, and Ms. Murphy, you are
recognized for five minutes.
STATEMENT OF BETH MURPHY
Ms. Murphy. Good morning Chairman Bost, Ranking Member Esty
and Members of the Committee. We appreciate the opportunity to
be here this morning to present views on several bills that
would affect VA programs and services.
The first bill I will address is H.R. 105, Protect Veterans
from Financial Fraud Act of 2007. This bill would remove
restrictions on VA's authority to reissue benefits in cases of
fiduciary misuse. Also, it would codify current policy that
mental competence determinations are appealable to a Board of
Veterans' Appeals and U.S. Court of Appeals for Veterans
Claims.
VA supports this bill to ensure equal treatment of all
fiduciary misuse victims and allow VA to promptly reissue
benefits, thereby minimizing financial hardship to
beneficiaries.
H.R. 299 Blue Water Navy Vietnam Veterans Act of 2017 would
extend the presumption of Agent Orange exposure to all veterans
who served on ships in the territorial seas of the Republic of
Vietnam.
VA has concerns with H.R. 299 and cannot support the bill
at this time. The bill does not clearly define the terms
``territorial seas.'' VA is also concerned with the September
25th, 1985, effective date of the bill, which would potentially
result in many cases with retroactive awards of more than 30
years.
Re-adjudicating old claims and establishing large
retroactive awards would be complex and labor-intensive and
divert resources from other disability claims.
Lastly, there is continued scientific uncertainty
surrounding this issue. At VA's request, Institute of Medicine
reviewed all scientific evidence and could not state with
certainty that blue water Navy personnel were or were not
exposed to Agent Orange. VA continues to review and monitor
available scientific evidence on this issue.
H.R. 1328, American Heroes COLA Act of 2017 would
permanently authorize VA to implement cost-of-living increases
to rates of disability compensation and dependency and
indemnity compensation or DIC. VA supports this bill and this
is consistent with the longstanding practice of Congress to
enact regular cost-of-living increases and would eliminate the
need for additional legislation to implement such future annual
increases.
H.R. 1329, Veterans Compensation Cost-of-Living Adjustment
Act 2017 would require VA to increase rates of disability
commencing in DIC by the same percentage as any increase to
Social Security benefits, effective December 1st, 2017. VA
strongly supports this bill to ensure the value of benefits
keeps pace with the increase in consumer prices.
H.R. 1390, Transportation of Deceased Veterans to Veterans
Cemeteries, would increase burial location options, for which
VA may make transportation costs for eligible veterans remains.
VA supports H.R. 1390, because in addition to national
cemeteries, VA would also pay transportation to veterans
cemeteries owned by state or tribal organizations.
Next, H.R. 1564, VA Beneficiary Travel Act of 2017, would
direct the use of funding from the mandatory compensation and
pension appropriations to pay for travel and incidental
expenses associated with contract disability examinations.
VA strongly supports the bill that would codify, clearly
authorizing VA to fund a nationwide contract exam pilot program
from a single source.
Finally, H.R. 1725, Quicker Veterans Benefits Delivery Act
of 2017 would prohibit VA from requesting a C & P examination
when a claimant submits medical evidence adequate for rating
purposes and would require VA to report on the progress of VA's
Acceptable Clinical Evidence or ACE initiative, and submit data
for each VA Regional Office, unused by claimants of private
medical evidence in support of C & P claims.
The VA does not support this bill, but appreciates the
intent to more expeditiously provide benefits to veterans;
however, VA currently has a policy of adjudicating claims
without a C & P exam if a claimant submits evidence adequate
for rating purposes, even from private providers. This practice
is grounded in existing statute and VA regulation.
VA is especially concerned with the reporting requirements
of the bill. VA tracks the number of ACE exams, but does not
track when evidence is supplemented with a telephone interview
or when private medical evidence is or isn't sufficient for
rating purposes, as this is not a formal determination.
If a C & P exam is requested after receiving and reviewing
private medical evidence, VA has determined in its claims
adjudication process that the evidence is insufficient for
rating purposes.
This concludes my remarks. I would be happy to answer any
questions you may have. Thank you.
[The prepared statement of Beth Murphy appears in the
Appendix]
Mr. Bost. Thank you, Ms. Murphy, and thank you for
testifying before us today.
I am going to go ahead and go to questions and I will have
the first five minutes. Ms. Murphy, can you elaborate, please,
on the importance that Congress pass House Resolution 1329;
that is the Veterans Compensation Cost-of-Living Adjustment,
and why you think that may be necessary and you are in support
of it.
Ms. Murphy. Mr. Chairman, thank you. This--this is--makes
good business sense. It is great for veterans. It makes sure
that we keep pace with the economy and make sure that their
benefits maintain viability with consumer pricing.
Also, I would tell you behind the scenes, there is some
work that has to be done to make those adjustments in our
systems every year and when we're waiting up to the minute
sometimes for that thumbs-up, it gets a little challenging. So
this would just make sure that that cost-of-living adjustment
was in place and ensure veterans with confidence that we want
to make sure that their benefits remain viable.
Mr. Bost. Well, the next question is similar, but going to
the next bill, what do you think of when House Resolution--H.R.
1328--forgive me for the House Resolution--that is my Illinois
side that keeps coming back on that, instead H.R. 1328--would
provide veterans some peace of mind and to having that COLA so
that they know that it is going to occur. What is your
reaction, and then the reaction that you think we would get
from veterans.
Ms. Murphy. I think it is a win-win. We would certainly
support it. It is something that we anticipate every year and
plan for that, but just making--knowing that it will be in
place and that that it is not something we have to wonder and
guess about, provides confidence for us, provides confidence
for veterans and it honors their service, to make sure that
they understand that their benefits are important to them and
they are important to us, as well, and we want to make sure
that they keep pace with economic pricing.
Mr. Bost. My next question is for Dr. Erickson. Dr.
Erickson, in the past, VA has stated that one of the reasons it
has been so hard to determine whether an Agent Orange
presumption should apply to blue water Navy veterans is lack of
measures taken at the time of potential exposure.
What efforts has the Department put in place now, to maybe
adjust that?
Mr. Erickson. Thank you, Mr. Chairman.
Just by way of introduction, I am a veteran as well; I
served for 32 years of active duty as an Army doctor. My last
assignment was as the commander of the Walter Reed Army
Institute of Research. I have been with VA for now, three
years.
We recognize that short of inventing a time machine to go
back and get those measurements that we don't have in this
case, we are being prospective, and so we are actually
partnering with the Department of Defense to create something
called the Individual Longitudinal Exposure Record, the
Individual Longitudinal Exposure Record, or the ILER, for
short. This is a fairly large task that we are undertaking that
will allow the Department of Defense to actually collect
realtime exposure measurements on servicemembers during their
time of service.
And this would be information that would be available,
then, to health care providers while that servicemember is
still on duty and afterwards, to providers who are within the
VA system. We think this will take us a long way forward and
will correct a major gap right now that we have to deal with.
Mr. *Bost.* So, what you just said is you do have the research
available to go back and actually identify those blue water
Navy veterans and truly see. And the studies have been done?
Mr. Erickson. No, sir. We do not have the ability--the DoD
does not have the exposure information. VA does not have the
exposure information for blue water Navy, but from today into
the future, for future servicemembers, we are actually trying
to correct this; realizing that, you know, we didn't do this on
a corporate level within DoD or VA for past cohorts of
servicemembers, but from here on out, we are working with the
Department of Defense to make sure that happens.
Mr. Bost. Okay. Ms. Murphy, one more question for you. Can
you please expand on why the VA extended the presumption of
exposure of the Agent Orange to brown water Navy veterans, but
not blue water Navy veterans.
Ms. Murphy. So, I will ask Dr. Erickson to supplement any
science on this--
Mr. Bost. Okay.
Ms. Murphy [continued]. --but, essentially, those that had
boots on the ground in Vietnam and those in inland waterways
share commonality in the types of exposure, extent of exposure
that they would have been experiencing, which is
differentiation from the amount of types of exposure that they
would have had out in the blue water.
Dr. Erickson, can you supplement with the science behind
that?
Mr. Erickson. Certainly. I think it was based upon the fact
that we knew that spraying had occurred along the coasts, in
fact, included spraying by riveting vessels that would be going
in and out of the rivers and the openings for those rivers. And
so there was a fairly strong basis that, in fact, the Agent
Orange had been sprayed at those locations.
Mr. Bost. My time has expired. I would like to turn the
questioning now over to the Ranking Member, Ms. Esty.
Ms. Esty. Thank you, Mr. Chairman.
If I could follow up, Dr. Erickson or Ms. Murphy, would it
be helpful for us to be more specific on territorial seas?
Certainly, there was some discussion, and I am hearing from
veterans who I represent, and the mechanisms, maybe, Dr.
Erickson, for you about the concentration, the desalination,
and do we really know how much exposure there was? Because that
is what I am hearing. I have to tell you, frankly, that is what
I am hearing a lot about and I am not sure that there has been
sufficient attention paid to what that exposure might have
been.
Ms. Murphy. So, Congresswoman, yes, there is some
uncertainty in what the definition of ``territorial seas'' is;
it is one of several factors that I mentioned that causes
concern with the bill.
Ms. Esty. Would more specificity help? Because we are
facing situations in which we have veterans now, and as you
point out, 30 years on, well, it is hard to prove
retroactively, but let's be very clear; we sent them into
harm's way and they are now experiencing exactly the same
symptoms and problems that their colleagues, men and women in
arms, were facing on land.
And you can understand our frustration and theirs in
saying, like, we don't know enough yet; it is 30 years. You can
understand, there might be a little bit of cynicism about,
maybe, we will decide at a point when it is no longer possible
to help anybody.
Ms. Murphy. I can absolutely understand the frustration. I
have committed my whole career to serving veterans and finding
ways to pay benefits and to do that, we have relied on the fact
that there needs to be a rational basis for additional benefits
and litigation that we--or regulations that we add in to pay
benefits. And we have been searching for that and with blue
water Navy veterans and broader-types of veterans to find
benefits when there is no rational basis or no science behind
it that we can put our finger on.
So, it is something that we continue to look at. We have
not had full opportunity to discuss this with the secretary. He
is new and he is a physician and understands these issues and
has a different perspective possibly, so this will continue--
Ms. Esty. Okay. Great. I have some other questions.
Ms. Murphy. Yes.
Ms. Esty. So, Dr. Erickson, can you speak to a little bit
to the desalination issue.
Mr. Erickson. Certainly. Ranking Member Esty, you have
asked, perhaps, the central question, and we mentioned in our
written testimony that there is uncertainty and there is
tremendous uncertainty.
We very much respect our Australian partners who have gone
to war with us so many times. We respect the scientist who, in
fact, did a key study, which a number of us have read and have
discussed, in which a laboratory setting involved adding
different amounts of various contaminants to include dioxins to
a mixture of water. They would then see if, in fact, during the
distillation process, if, in fact, it was removed or if it
would be co-distilled; it would stay with the water. Not only
was it co-distilled, in fact, it was concentrated.
That in itself, provides the conceptual framework for how,
in fact, onboard the Australian ships, there could be Agent
Orange, and the contaminate of dioxin. And was mentioned by the
authors in the article, they had regularly brought in estuarine
water, that is water near the shore, so as to have less of a
salt content to deal with. And for them, it made sense that
that laboratory simulation would represent what occurred aboard
the Australian vessels.
As it would relate to the U.S. Navy, I understand from our
DoD partners that as a practice, by their standard operating
procedures, they would have drawn in water for their
distillation from 12 miles out. And so it makes it a little bit
harder for this conceptual framework to apply to the U.S. Navy,
but as I mentioned at the beginning--
Ms. Esty. The NVA processing, if you knew for a fact that
there were going to be COLA adjustments every year, would that
allow us to get more benefits in the hands of--
Mr. Bost. Thank you. And Mr. Bergman, you are recognized
for five minutes.
Mr. Bergman. Thank you, Mr. Chairman.
Listening to your questions and the responses, we would all
likely agree that life is complex and as we try to combine
science with what we know to be historical facts or times and
place, it is a challenge. And so I thank everyone for their
engagement in combining all the different factors to come up
with a different solution.
Dr. Erickson, is the VA working with DoD to conduct a
comprehensive review to determine exactly which ships operated
in inland waterways of Vietnam?
Mr. Erickson. Congressman, General, I very much appreciate
this question, and Ms. Murphy could answer this as well. We
have a ships list which, in fact, has been collected over, I
believe, several decades now. Now, the ships list has over 300
ships listed. This has been an ongoing partnership with the
Department of Defense, with the Department of the Navy to look
at their records to where their ships transited; when did they
come into port, when did they anchor, where were they. And the
goal, there, being to actually lower the threshold for
veterans.
If, in fact, Navy veterans would be able to demonstrate
that they were on a given ship that came into shore, that in
itself would bolster their claims.
And please forgive me if I am stepping on your BBA side,
here.
Ms. Murphy. Not at all.
I would say that everybody is passionate about this and
this is the business that we should be in; is hearing from
advocates, doing research, talking to the experts, talking to
our DoD partners, talking to our congressional partners, and
really getting as much evidence information and evidence on
this topic and other similar topics that are of interest and
passionate to veterans, because we want to find ways to pay
them benefits, but historically, we have to say no to some
folks when there is not a rational basis or the evidence is not
there.
So, we continue to look. We want it to continue to be an
issue for discussion so that we can get as much information and
evidence on this as possible.
Mr. Bergman. Okay. But, in placing ships at a certain place
at a certain time, is that--you can--is there a chart that
shows which ships were in those inland waterways--
Ms. Murphy. Yes, we maintain a ships list--
Mr. Bergman. So, you have an exact list, so then we know,
exactly, given our rosters, who was aboard those ships and at
what time. So, as the veterans come in and have a certain set
of conditions, you can immediately go out to a list and say you
were aboard the USS Okinawa LPH3 during the 19--so, therefore,
if we all of a sudden have a certain number of people at a
certain point in time who have a certain set of symptoms or
conditions, it should make--you know, it is not an exhaustive
list; it is a finite list, right?
Ms. Murphy. Congressman, yes, we have a ships list. There
are several hundred ships, different categories of ships. We
have gathered evidence and research in supporting putting those
ships on the list.
And we review it quarterly. We get information from DoD and
recently I think we added 10 or 15 ships to that list.
So--and by certain date ranges is applicable and if a
veteran comes in and we can identify--you know, we can connect
the dots and say, this ship is on the list, we can place that
veteran on that ship during that timeframe that is applicable,
then we extend that presumption to them, yes.
Mr. Bergman. Okay. And I am glad that you used the term
``connect the dots'' because that is a lot of what we do in so
many different ways here is to connect the dots. And if we do
it with data, which it seems like we have, then we are going to
get the best results.
Mr. Chairman, I yield back.
Ms. Murphy. Thank you.
Mr. Bost. Thank you, ma'am.
Let me put on the microphone. Mr. Sablan, you are
recognized for five minutes.
Mr. Sablan. Thank you very much, Mr. Chairman, and Ranking
Member Esty for holding today's hearing and good morning,
everyone.
I just have a few questions and maybe this one would go to
Ms. Watts first, if you don't mind. Ms. Watts, under H.R. 1390,
regarding the transportation of certain deceased veterans--and
I really don't know the answer, which is why--would 1390
include the territories under definition of states, because it
says states or tribal cemeteries.
In my jurisdiction, we have one VA cemetery, but it is--it
belongs to the commonwealth of the territory that I am from.
Ms. Watts. Thank you, Congressman.
I believe that there are territories that do have state--
what we consider state veteran cemeteries.
Mr. Sablan. So, under state, territories are included.
Ms. Watts. They fall in the definition of the state.
Mr. Sablan. And Northern Mariana would be included under
H.R. 1390?
Ms. Watts. Potentially, yes. And we would--there are
certain state veterans--state and tribal cemeteries that we
provide grants--the VA provides grants to allow them to
maintain those cemeteries.
Now, that doesn't mean--I'm sorry.
Mr. Sablan. Not for the Northern Mariana. Yeah, you don't
even provide--
Ms. Watts. Not every state or territory has such a granted
cemetery; that is correct.
Mr. Sablan [continued]. So, would it be asking too much to
maybe sit down with us and consider including the territories
or in particular, if all the territories, except the Northern
Mariana are included, would it be--
Ms. Watts. We would be more than happy to have any
discussion that you would like to have.
Mr. Sablan. Well, thank you. I appreciate that.
Ms. Murphy or Dr. Erickson, would you please--would H.R.
1564, the VA Beneficiary Travel Act, would the transportation
costs be authorized if the veteran were required to travel by
sea or by air? I mean you can't drive around in, for example,
for disability exams.
You know, if a patient from--I come from a place where
there are 14 islands; three are inhabited primarily, so there
is always a requirement for two of those islands, at least, to
travel either by sea or by air to come and see a doctor.
Ms. Murphy. So, Congressman, as far as the beneficiary
travel, we have been working with contract vendors to establish
locations around the country and around the world for
examinations. The contract--where the contract vendors are
located, we are paying for beneficiary travel to go to those
contract vendors, but if that is not a location that is
accessible to a veteran or it is not some place that we would
send them, then we would be relying on VHA to provide that
examination and then we would have to turn to VHA to look to
its beneficiary travel rules for that.
I will say, also, that we do have our disability benefit
questionnaires that we do accept from private providers. So, if
someone were to take a DBQ to their private local provider and
it were to be filled out by a licensed clinician, we would
certainly accept that, as well.
Mr. Sablan. All right. I am actually putting together a
story, sort of--cases, different situations that I would like
to work with the Veterans Administration to get some answers if
possible. But thank you for that answer.
Ms. Murphy. We would be happy to work with you and talk
with you more about that.
Mr. Sablan. I appreciate that thank you.
I have just one more question, again, Ms. Murphy or Dr.
Erickson. In a jurisdiction--and this is on H.R. 1725--in a
jurisdiction where there are no VA health centers or VA
clinics, wouldn't it be reasonable to allow medical or private
practitioners' opinions to be sufficient for rating purposes
and not require veteran to travel by sea or by air for an
examination to see a VA doctor; otherwise, you have to send him
to Honolulu and, of course, sometimes they have to--there are
many instances that I am aware of, where they put up their own
money to go a center, for example, or try and see a doctor in
Guam, if they can.
And I don't have the time, but--
Ms. Murphy. Congressman, that is absolutely an opportunity
they have. We accept private medical evidence and if it is
sufficiently comprehensive and answers all the questions that
we need for rating purposes, we use that.
Mr. Sablan. I understand. Okay. Thank you.
Thank you, Mr. Chairman, I yield back.
Mr. Bost. Thank you.
There is no one else on the dais seeking to ask questions.
We want to thank this panel for being here today, Ms. Murphy
and everybody involved. Thank you so much.
And we want to invite up the third panel.
I want to thank you as a panel for being with us. Mr.
Zachary Hearn is with us, the Department of--I'm sorry--the
Deputy Director for Claims of Veterans Affairs and
Rehabilitation Division of The American Legion; Mr. Rick
Weidman, the Executive Director of Policy and Government
Affairs for the Vietnam Veterans of America; Mr. Patrick
Murray, the Associate Director of National Legislative Services
for Veterans of Foreign Wars; and Mr. Leroy Acosta, the
Assistant National Legislative Director of the Disabled
American Veterans; and also, Mr. John B. Wells, the Executive
Director of Military Veterans Advocacy, Inc.
First off, I want to thank you all for being here and for
working--for the work you and your organizations do every day
to improve the lives of our veterans. We want to thank you for
that.
Mr. Hearn, we will begin with you and you are recognized
for five minutes.
STATEMENT OF ZACHARY HEARN
Mr. Hearn. Good morning. The simple fact is, serving in our
Nation's Armed Forces is inherently dangerous. Medical
conditions may manifest due to service and we, as a society,
have an obligation to compensate for medical conditions related
to service.
Many of these veterans depend upon these benefits and for
this reason, it is imperative that we ensure these deserving
veterans and their family members receive the highest level of
consideration.
Good morning, Chairman Bost, Ranking Member Esty, and
Members of the Subcommittee. On behalf of National Commander
Charles E. Schmidt, and the Nation's largest veteran's service
organization, we welcome the opportunity to testify regarding
pending legislation.
The American Legion supports the passage of H.R. 105,
designed to protect veterans from the unscrupulous acts of
fiduciaries. Veterans requiring fiduciaries are some of the
most vulnerable veterans. Half of these veterans are over 80
years old. All of them are unable to manage their financial
affairs.
Veterans who have been impacted by poor-acting fiduciaries
do not have the ability to recoup their lost funds from VA
unless the fiduciary represents 10 or greater beneficiaries.
This bill would now permit VA to provide the lost funds to the
veteran, regardless of the amount of beneficiaries represent by
a fiduciary.
H.R. 299 corrects a wrong that has played the blue water
Navy veteran community and affords the veterans the benefits--
the benefit of doubt to herbicide exposure.
Over 800,000 blue water Navy personnel served in Vietnam's
territorial waters between 1962 and 1975. VA has repeatedly
stated that there is no conclusive evidence that supports
presumptive herbicide exposure.
The Institute of Medicine's Committee on Veterans and Agent
Orange stated that there were no environmental studies
conducted during the Vietnam War, and due to that fact, it
cannot determine the occurrence of herbicide exposure.
In short, VA cannot prove blue water Navy veterans were
exposed to Agent Orange and it appears they never will. Blue
water Navy veterans, for years, have pointed to the 2002
Australian study that found that distilling of sea water not
only failed to eliminate the toxic chemicals, but it enhanced
it is impact. For a blue water Navy veteran to gain service-
connection due to herbicide exposure, proof has to be provided
that exposure occurred.
VA is essentially directing veterans to provide proof of
exposure to a chemical that few knew of its impact half a
century after the incident. As you can imagine, this is a near-
impossible task. The American Legion has long believed that
these veterans of the blue water Navy deserve to be treated as
presumptively exposed and supports this bill.
H.R. 1328 provides an automatic annual cost-of-living
adjustment for veteran's disability benefits. While this bill
would prove efficient in the administration of COLA, it would
also come as a significant cost to the veteran, as it uses the
chain CPI as its foundation.
The current CCPI COLA formula suggests a 30-year-old
veteran with no children and one hundred percent disabled,
would likely lose about $100,000 in disability compensation by
the time that the veteran reaches 75 years of age. This is the
equivalent of years of benefits lost, due to this bill.
The American Legion opposes this bill and any legislative
efforts to automatically index COLA to the COLA-authorized for
Social Security recipients, nonservice-connected disability
recipients, and death benefits.
H.R. 1329 increases the rate of compensation as of December
1, 2017, for veterans with service-connected disabilities and
surviving spouse benefits. When inflation impacts the cost-of-
living, it is natural to adjust benefits according to the
increases. The American Legion supports this bill.
H.R. 1390 authorizes VA to pay costs associated with
transporting deceased veterans to state- or tribal-owned
veterans cemeteries. VA currently pays transportation costs
only for national cemeteries. This bill will expand options for
veterans' families and The American Legion supports this bill.
H.R. 1564 specifies the funding source for travel related
to examinations by medical professionals, not employed by VA
for compensation and pension examinations. This bill properly
designates where VA draws funds for veterans to receive
payments for travel to C & P exams and does not impose
additional funding requirements. We support this bill.
H.R. 1725 improves the treatment of medical evidence
provided by non-VA medical professionals supporting disability
compensation claims. It is unfortunate that a bill has to be
passed to force VA to do what it already has the authority to
do.
The American Legion regularly reviews VA adjudications and
frequently, VA schedules exams, despite having the necessary
evidence available to decide a claim. This second exam comes at
a cost to VA and delays an adjudication.
Additionally, this process is often frustrated by raters'
near-whole dependence upon its evaluation builder tool, it
doesn't allow for the weighing of evidence. This bill allows
for a streamlining of adjudications through rating based upon
Acceptable Clinical Evidence and The American Legion supports
the bill.
Again, on behalf of National Commander Charles E. Schmidt
and the 2.2 million members of The American Legion, we
appreciate the opportunity to speak this morning on today's
bills. I will be happy to respond to any questions provided by
the Committee. Thank you.
[The prepared statement of Zachary Hearn appears in the
Appendix]
Mr. Bost. Thank you, Mr. Hearn.
Mr. Weidman, you are recognized for five minutes.
STATEMENT OF RICK WEIDMAN
Mr. Weidman. Thank you, Chairman Bost. I look forward to
getting to know you particularly in this new role.
And Ranking Member Esty, I hear such great things about you
from Linda Schwartz and our folks in Connecticut. They think
you can walk the entire length of the reflecting pool in front
of the Lincoln Memorial without getting wet, so I look forward
to getting to know you.
I will comment just on two bills today. And we favor most
of, actually, all of the bills that are on the docket for
various reasons. First, I will touch on the Protect Veterans
from Financial Fraud Act.
The fiduciaries at VA have been a scandal for as long as I
can remember and VA already has the statutory authority to
investigate and to bring charges against those that are
stealing from veterans that are not able to defend themselves,
but they have not done it. And while we favor this particular
act, what is really necessary is oversight hearings that demand
that they follow the statute and the regulations pursuant to
the statute to safeguard those individuals, most vulnerable of
our veterans.
So, I just want to say that as a start, and that you are
going to accomplish, I believe, much more in passing the
legislation--we have no problem with that--but I encourage you,
Mr. Chairman and Madam Ranking Member that you pursue some
oversight hearings on this.
The Blue Water Navy Vietnam Veterans Act, Institute of
Medicine, in every review they have done since--without
evidence, the VA said no more blue water Navy. And to show you
how absurd their definition is, they draw an imaginary line
across Denang Harbor and if, in fact, you are here in the
water, you are not exposed, and if you are here in the water,
two feet away, you are exposed. It is preposterous; it is not
scientific evidence. It is simply wanting to say no.
Vietnam veterans generally believe that the policy of the
VA, when it comes to any kind of toxic exposure, but
particularly Agent Orange, is delay, deny, and wait for us to
die. And, frankly, there is very little to controvert that.
Almost everything in the environmental hazards and public
health section of VA, may be really nice people who are good to
their family, but by God, they are not proper arbiters of
science and they just simply aren't.
The Institute of Medicine study that was done, they were--
in the charge, was to find out whether or not it was plausible
and they did find out that it was plausible. They did replicate
the experiment of the concentration of the dioxin and found out
it was correct.
That is the first time that IOM, as part of one of their
reviews that I know of, where they have actually gone and done
original scientific experiment in order to see for, themselves,
what is the deal. The--when the report came out, they said,
yes, it is, in fact, plausible and, in fact, we believe it
happened.
As you may know, and everybody should understand, Agent
Orange, Agent Pink, and the other defoliants were mixed with a
mixture of kerosene and JP4. And what does that do when it hits
water? It floats near the surface. It floats near the surface
way the heck out to sea where it would then be picked up.
Although Agent Orange is not water-soluble, in fact, it is
water dispensable, and that is what happened, because it was
wrapped in the envelope of those petroleum products that did,
in fact, keep it near the surface.
Coming back to the IOM study, they were charged with
finding out whether there was a mechanism whereby people could
be exposed. And they showed that that was the case, under
pressure from VA. Then turned around and said, well, we can't
really make any recommendation on this because we have no idea
how much folks were exposed.
And we said, so what? You have no idea how much I was
exposed in Icor, northern part of the Republic of Vietnam,
otherwise known as South Vietnam versus my colleague, who
served in For Cor with the Ninth Infantry Division down in the
southern part of Vietnam. And VA decided with the assistance,
shall we say, of the Congress in 1991 to say, this is absurd,
we are never going to figure out who was exposed and not. Let's
look at the effects of this thing.
And the VA, since the blue water Navy, they have tens of
thousands of Navy vets who used VA services; it is very easy to
find out who has a Southeast--or Vietnam service medal and who
does not. And if those who do not who served on a similar
vessel in the Atlantic or the Mediterranean, compare their
health to those who have a Vietnam service ribbon. This is not
a hard thing to do. It is not an expensive thing to do, but
they haven't even requested that it be done.
And we are with the National Academy of Medicine in
recommending that they be restored. We know, as valuable and as
important and as righteous as bill is, because of offsets, it
probably won't be able to bring it to the floor.
But all of you on this Committee, on a bipartisan way,
should pressure the secretary to say, this is absurd; include
these veterans back in. They--Congress in 1991 intended for
them to be in.
So, I am over time. I thank you for your indulgence of the
extra one minute and four seconds sir.
[The prepared statement of Rick Weidman appears in the
Appendix]
Mr. Bost. Thank you, Mr. Weidman. And with that we will
recognize Mr. Murray.
STATEMENT OF PATRICK MURRAY
Mr. Murray. Chairman Bost, Ranking Member Esty and the
Members of the Subcommittee, on behalf of the men and women of
the Veterans of Foreign Wars of the United States and our
auxiliary, thank you for the opportunity to provide our remarks
on legislation pending before the Committee.
The VFW supports Blue Water Navy Vietnam Veterans Act,
which would require the Department of Veteran Affairs to
include territorial seas as part of the Republic of Vietnam,
extending presumptive service-connection and health care for
Agent Orange related illness to Blue Water Navy Veterans.
Currently VA relies on what the Court of Appeals for Veterans
Claims has called arbitrary and capricious interpretation of
inland waterways which unjustly denies veterans who served
aboard ships in the coastal waters of Vietnam the benefits they
deserve. The VFW believes that Blue Water Navy Veterans were
potentially exposed to significant level of toxins and should
be granted the same presumption of service-connection as their
counterparts who served in the inland waterways of Vietnam.
The VFW strongly supports the American Heros COLA Act and
the Veterans Compensation Cost of Living Adjustment Act, which
will increase VA compensation for veterans and survivors and
adjust other benefits by providing a cost of living adjustment.
The VFW is pleased to support any bill increasing COLA for our
veterans. However, we would prefer to make COLA increases
permanent and automatic. Disabled veterans, along with their
surviving spouses and children, depend on their disability
compensation plus dependency and indemnity compensation to
bridge the gap of lost earnings caused by the veteran's
disabilities. Each year veterans wait anxiously to find out if
they will receive a cost of living adjustment. There is no
automatic trigger that increases these forms of compensation
for veterans and their dependents. Annually veterans wait for a
separate act of Congress to provide the same adjustments that
is automatically granted to Social Security beneficiaries.
The VFW supports the Protect Veterans From Financial Fraud
Act, which provides the ability of veterans assigned
fiduciaries to be compensated for having their money mishandled
or misused. We see this bill as a common sense method to
protect some of our most vulnerable veterans. If a veterans
assigned a fiduciary for whatever reason, they need help and
financial protection. And individuals who mistreat or prey upon
their clients should be held accountable and compensation must
be made to those affected. To go further, the VFW supports
adding legislation that installs criminal penalties for those
found to be intentionally preying upon veterans for any other
financial gain. We would like to see this expanded to any
attorneys or claims specialists that charge a fee to process
initial claims. Abusing the health and financial welfare of
veterans in need should be punishable by law.
The VFW strongly supports the Quicker Veterans Benefits
Delivery Act in order to help diminish the workload within VA.
The VFW recognizes that the VA should still be the primary
driver in taking care of patient's examinations. But we also
realize that using third party medical evidence that the VA--I
am sorry--to help is necessary to reduce the workload. Until
the backlogged files begin to diminish within the VA, they
should continue to utilize private physician's evidence to help
shrink the number of claims and appeals. Veterans should not
have to see another VA doctor in order to review and confirm
private outside doctors' findings. This only adds to more
confusion and clogs up the system. The VA needs to allow
acceptable clinical evidence from competent credible physicians
and not force veterans to seek a second opinion from a VA
physician.
While the VFW supports this bill, we do not feel it covers
one of the most important medical issues facing veterans today,
which is mental health. If the VA allows third-party physicians
to examine veterans for almost all physical conditions, they
should also utilize the appropriate medical professionals to
examine mental health. Mental health examinations are
increasing every day. And the VA insisting on patients seeing
only VA doctors for initial examinations is increasing the
burden on their own system. Initial mental health examinations
should be added to the type of evidence accepted by VA
examiners.
Mr. Chairman, this concludes my testimony and I'm prepared
to take any questions you may have.
[The prepared statement of Patrick Murray appears in the
Appendix]
Mr. Bost. Thank you, Mr. Murray. With that, we will go to
Mr. Acosta.
STATEMENT OF LEROY ACOSTA
Mr. Acosta. Thank you, Chairman Bost, Ranking Member Esty
and Members of the Subcommittee. Thank you for inviting DAV to
testify at this legislative hearing of the Subcommittee on
Disability Assistance and Memorial Affairs. As you know, DAV, a
non-profit veteran's service organization comprised of 1.3
million wartime services able veterans is dedicated to a single
purpose, empowering veterans to lead high quality lives with
respect and dignity. I am pleased to be here to present DAV's
views on the bills under consideration by the Subcommittee.
H.R. 105, Protect Veterans From Financial Fraud Act of 2017
would require the VA to repay veterans those benefits that were
misused by fiduciaries and establishes an appeals process for
determinations of veterans mental capacity. DAV does not have a
resolution specific to this issue. However, we would not oppose
passage of this legislation.
H.R. 299, the Blue Water Navy Vietnam Veterans Act of 2017
would expand the definition of the Republic of Vietnam to
include its territorial seas for the purposes of the
presumption of service-connection for diseases associated with
herbicide exposure. The benefits under this bill would be
retroactive to September 25th, 1985. DAV supports H.R. 299
based on DAV Resolution Number 18, which calls for the addition
of the territorial waters of Vietnam to be included in the
presumption of exposure to service-connection for herbicide
related disabilities.
Mr. Chairman, DAV Resolution Number 13 calls on Congress to
support legislation to provide a realistic increase in
disability compensation. DAV supports the provision in H.R.
1328 and H.R. 1329, which would increase veterans' disability
compensation, survivor benefits and clothing allowances by the
same percentage as Social Security benefit increases. However,
DAV is concerned about the automatic adjustment provision in
H.R. 1328. This may adversely affect congressional oversight
meant to protect against the erosion of these critical
benefits, particularly in years where there are no COLA
increases, such as in 2015, or minimal increases, such as in
2017.
H.R. 1390 would permit the VA to cover the costs associated
with the transportation of deceased veterans not only to
national cemeteries, but also to other recognized veteran
cemeteries. DAV does not have a resolution specific to H.R.
1390. However, we would not oppose its passage. This
legislation would benefit veteran survivors by helping to
offset the cost of transporting the veteran to their final
resting place.
H.R. 1564, VA Beneficiary Travel Act of 2017, would amend
Section 504 of the Veterans Benefits Improvement Act of 1996 to
specify the funding source for travel related to examinations
by physicians not employed by the VA regarding medical
disabilities of applicants for VA benefits. DAV does not have a
resolution. However, we would not oppose passage of this
legislation.
The Quicker Veterans Benefits Delivery Act of 2017 would
amend Title 38 U.S.C. to improve the treatment of medical
evidence provided by non-VA medical professionals in support of
veterans' claims for disability compensation. Mr. Chairman, DAV
is pleased to provide our support of this bill, consistent with
DAV Resolution Number 230, which seeks the enactment of
legislation that would require VA to consider private medical
evidence supplied by licensed private health care providers in
private practices. This bill would give due deference to
private medical evidence that is competent, credible, probative
and otherwise adequate for rating purposes.
Mr. Chairman, this concludes my testimony. And I'd be
pleased to address any questions related to the bills discussed
today.
[The prepared statement of LeRoy Acosta appears in the
Appendix]
Mr. Bost. Thank you, Mr. Acosta. Then we want to move on to
Mr. Wells. You are recognized for five minutes.
STATEMENT OF JOHN B. WELLS
Mr. Wells. Thank you, Mr. Chairman, Ranking Member Esty. My
name is Commander John Wells, USN retired. And I appreciate the
opportunity to testify. We are going to talk mostly about Blue
Water Navy Vietnam Veterans Act. I talk a little fast,
especially since I'm going to try to go over some of the
questions and red herrings given by the VA in their testimony
to provide some real answers.
First of all, I know that they are interested in the
definition of territorial seas. That is set by treaty, 1958
Convention on Territorial Seas in the Contiguous Zone, which
has been ratified by the United States Senate. And ratified
treaties become part of domestic law. We also recognized the
territorial seas and Vietnamese sovereignty over them in the
1954 Geneva accords and the 1973 Paris peace treaties. And
court decisions of the Fifth Circuit and the Supreme Court of
the United States specify that we will follow the definition of
territorial seas.
To make it easy, in Attachment One to my testimony we have
shown you where the territorial seas is. It's the dashed line
in there. So we would ask that that be made part of the
legislative history of this so the VA won't define territorial
seas as some lake in the middle of Hanoi.
The 1985 date was picked because of the effective namer.
You won't be adjudicating cases back to 1985. But if there are
new diseases which come about, we would get the same benefit of
namer as our army and brown water brothers would. In effect,
these rights were stripped away from us by the VA in 2002. So
you won't be looking at anymore claims until--2002 would be the
earliest date. And many of those claims have expired, and
unfortunately many of the veterans have expired as well.
As far as the time to adjudicate these claims and so on a
so forth, Mr. Chairman, Ranking Member Esty, Members of the
Subcommittee, we are the backlog. We have kept those going.
Okay. And if you pass this bill and give the presumption there
is going to be a whole lot of the cases in the appellate
backlog and in the individual claims backlog that can be
immediately adjudicated and corrected. So and that is the truth
of the matter.
The VA talked about cost. They threw out a 900 and some
million dollar figure I think for the first year. No, that is
not the case. And Attachment Five to our testimony gives the
CBO estimate of 1.104 billion. And I have seen them give up
costs of 20 billion. I have seen them given costs of 4.4
billion is what they told the Senate in the last Congress.
Let's look at what the CBO says, 1.104 billion. I have met with
the CBO. If anything, and they will agree with this, it is
probably a little high at this time because of the ships added
to the ships' list.
And by the way, the DoD and the VA are not working together
on that. That is input coming from organizations such as the
Blue Water Navy Vietnam Veterans Association and some other
organizations that do it. There is one guy in Cleveland, Jim
Sampel, who does it part time. So, General, in answer to your
question, no, they are not doing what they should, is going out
and saying, hey, Navy, where were the positions of these ships
vis-a-vis Vietnam. We did have a bill that passed the House
twice. It would have done that two congresses ago. We haven't
brought it back up again. We would sure like to see it brought
up again because that would help us identify some more ships
that had gone in the river.
Ms. Murray talked, I am sorry I am talking fast, Ms. Murray
talked about, Murphy, excuse me, talked about rationality and
there has to be a rational basis. We agree with that, we
certainly do. But what she didn't mention was the Court of
Appeals of veterans' claims in a case called Gray v. McDonald
came out and said that the exclusion of the bays and the
harbors are just simply irrational and, as somebody mentioned,
arbitrary and capricious.
Now, they say there is no evidence that the Agent Orange
got there. Mr. Chairman, I have shown you and probably half the
people sitting up there Exhibit Two to our testimony, which
shows where the bottom sediment samples were taken in Naktong
Harbor, and Exhibit Three, which shows the toxicity levels 20
years after the war. So they can't say it is not there. They
don't mention the water barges, which were taking water from Da
Nong Harbor's Monkey Mountain, this area up here that looks
like it is low land, it is actually jungle. Was sprayed
throughout the war. There is a reservoir there. That water was
taken on and your staff has all this information. And they took
it around to the ships.
And by the way, let's talk about another fallacy. They say
that the Australian study was invalid because U.S. Navy ships
did not make potable water within 12 miles of shore. That is
not true. There was a manual in the medicine depart--
publication which suggested it. But I know for a fact, and I
was a chief engineer on a number of these ships, water was my
business, that they did make water, even potable water, in some
of the harbors and certainly close to shore. They had to, to
keep the water tanks going. More importantly they always made
feed water for the boilers. And guess what, it is the same
distillation system down to the final discharge valve. And we
have told the VA this before, they know it. Okay. So that even
if they were only making water for the boilers, it would still
have been contaminated water. Okay.
And I am sorry, I am starting to pull a Rick Weidman here
and go over time. But just a couple other quickies. As far as
studies go, the Australian Cancer Incident Studies shows a much
higher rate of cancer incidents among those that were in the
Navy as against those that went to shore. And the CDC's Non-
Hodgkin's Lymphoma Study says the same thing.
And by the way, the Institute of Medicine, the VA will
always misquote this. In the sentence that they say is they
can't say definitely that there was no Agent Orange exposure.
The very next sentence says ``There is no more or less evidence
to show exposure of Blue Water Navy than there was the brown
water or the people ashore.'' This was never about science. It
was about a bad general counsel's opinion. And when we called
him on it, they circled the wagons and they still do.
I do have a meeting coming up with Secretary Shulkin on
April 21st and we have oral argument on a court suit coming up
on May 5th. So we are pursuing all matters. I understand I am
over time. Shows I can talk longer than Rick. But the problem
is there is so much to cover. But, you know, Mr. Chairman, we
have plenty of money to send those guys to war. We should be
able to pay for them when they get back. I put some ideas in my
written testimony. The Senate has shot us down on a couple. But
frankly, we don't care how you pay for it, but you need to pay
for it. These guys are dying and their families are being left
destitute because of medical bills. We owe them better than
that. Thank you, Mr. Chairman.
[The prepared statement of John B. Wells appears in the
Appendix]
Mr. Bost. Thank you, Mr. Wells.
I'm going to go to questioning now and I will yield myself
five minutes.
First question is for the panel as a whole. Okay. And
before we get to a lot bigger subject, but this is just real
quick. This question is for all witnesses, as I said. How would
veterans and their families benefit assuming they received a
COLA next year? Mr. Hearn, we will start with you.
Mr. Hearn. They would certainly benefit by adjusting for
the cost of inflation. I guess I am kind of confused as to
where you are going with the question. I mean if the cost of
living goes up, it is only natural that Congress responds
accordingly and provides that compensation increase.
Mr. Bost. Okay. Maybe I should expand on--I think in your
testimony, the concern you had was that you feel that Congress
needs to make an every year?
Mr. Hearn. Correct. As far as the--the concern that we have
is dealing with the chain CPI. And if you project that going
out over decades, the amount of money that is lost, and the one
sample that we used was it would be roughly about $100,000 over
a 30 or 40 year span. I pulled up the average income for one of
your residents in your district. Okay. That's roughly $30,000 I
think, somewhere in that area. That would be three years' worth
of salary for your average constituent. So that is a sizeable
amount of income. I mean obviously it would vary between the
Ranking Member and yours, but--
Mr. Bost. Of course.
Mr. Hearn [continued]. But nonetheless it would still be a
costly endeavor over decades.
Mr. Bost. Let me ask this. And you know that I am going to
do everything I can for the veterans. It is just--
Mr. Hearn. Yes. Oh, I know.
Mr. Bost [continued]. --trying to do the thing that is
right. My concern that I have when you say, okay, don't do
this, is then you are just depending on Congress to make a
decision, rather than setting something in place that actually
guarantees and gives some sense of that there is going to be
that COLA. And it is the same thing with Social Security. I was
a little concerned in your testimony when you said that you--
Mr. Hearn. Well, I mean, and the American Legion's position
is pretty simple. It is that the veterans didn't provide a
diluted service to their country. And that this would provide a
diluted benefit if you are talking about that over decades. And
I understand what you are--where you are going with this. But I
also know that $100,000 is a sizable amount of income. And I
agree, we are relying upon Congress and sometimes Congress
doesn't get along very well. But over time that we also don't
want our veterans to be harmed just in the need of efficiency.
If 30 or 40 years we look back at this testimony today and said
we harmed our veterans, I don't think any of us in this room
would feel good.
Mr. Bost. And then I want to go down the panel with the
same question. But the only thing I would say is, is one thing
that we are known for, and that is the big fear, is that if we
do nothing, nothing will be done.
Mr. Hearn. Right.
Mr. Weidman. VVA favors the automatic. We do, however,
think that really should take a hard look at the basic level,
particularly at the 80--70, 80, 90 percent level and as well as
100 percent. It is--if in fact somebody is 100 percent in a
metropolitan area like Washington, what you are doing is
guaranteeing people will be below the poverty line for the rest
of their life. And that is just not right.
Mr. Bost. Right.
Mr. Murray. The VFW simply supports the automatic increase
in COLA. We think it is easier on the recipients, it is easier
on Congress, so we don't need to be sitting here every year
doing this.
Mr. Acosta. Many service-connected disabled veterans rely
on their disability compensation for their livelihood and to
take care of bills, apart from their civilian counterparts. It
is important that we get a realistic increase in those benefits
so they can realize life in the country that they served.
Mr. Bost. Mr. Wells?
Mr. Wells. Automatic is good. That way we don't have to
fool with it. You don't have to fool with it. And it gives you
all more time to kind of concentrate on some other things. So
we support it.
Mr. Bost. Yeah. Okay. I'm running short on time. I know now
it is going to run over. And then I don't want to be thrown off
like the Chairman said. But let me tell you that this is an
important question to ask. And all of us I think are fighting
for the same goal, but we have got to ask it. Last Congress CBO
estimated that the legislation for the Blue Water Navy would be
a $1.1 billion offset in mandatory funds. To avoid adding to
the deficit and then we fall under the existing rules that we
have here. Though many of us, probably all of us on this panel
would want to make sure that would happen. The question that I
have is, and I know that, Mr. Wells, you said you didn't care
where it come from. We have to care where it comes from. And
even though I love my veterans more than anybody else I fight
for and will continue to do that, we have to have that answer.
So, what, any, suggestions do you any Member of the panel have?
Mr. Weidman?
Mr. Weidman. We went to war on a credit card. The war in
Iraq and Afghanistan is the first time in American history
where we have had a tax cut, in fact two, during wartime. So we
didn't make the commitment to pay for the darn wars. Instead we
took it out of OCO, which is nothing but an unsecured credit
account. If you can go to war without having to find an offset,
then, by God, you ought to be able to pay for those torn up in
that war without an offset.
Mr. Bost. Okay. Maybe the follow up question to the rest of
you as well, and I know I am out of time, but I am going to be
like the two on the panel. The question is, is there something
we can work on in the bill that would actually be something
that we could argue that would bring the cost in paperwork
down? You understand what I am saying? So that the estimated
cost, if we don't agree with the estimated cost, maybe we think
that, okay, well, the assumptions are a little bit high or
something like that, so that we can come back and deal with the
argument on what the costs are. And like I said, I want to, if
they do it, I want to be paying for them.
Mr. Wells. Mr. Chairman, there are several things. First
off, you know, I do have the meeting with Secretary Shulkin. It
is possible that he would just restore the benefits, in which
case it become under appropriations and the cost of the bill
would go to zero. Secondly, we do have our pending oral
argument in the Court of Appeals for the Federal Circuit. If we
win that case, then the bays and the harbors would be covered.
We would estimate that about 90 percent of the ships would be
covered. And our estimate of the ten-year cost would then fall
down to about between 100 and 150 million over ten years, but
assuming we cover everybody that went in the harbors.
But here is the kicker. And, yes, you have to understand it
is hard for me to go back and talk to my veterans and say, you
know, and explain the Paygo Act to them.
Mr. Bost. I understand that.
Mr. Wells. Because they're the ones that are dying. I
understand Paygo. Okay. I think it's done a great job in a lot
of ways. But now this is something that we really have to look
at because there is not a lot of mandatory spending left in the
VA budget. There was some in the home loan. We suggested that
and it got sucked up into the Choice Act. There are going to be
some automatic offsets, which I'm not sure CBO has applied.
First of all, people that are now eligible for non--for a
veterans pension, okay, if they served in time of war and make
I think it's less than about $14,000 a year, they get a
veterans pension. That would be offset by the benefits. And so
there would be a dollar for dollar recovery there. Secondly,
anybody who has retired and is getting a retirement pension if
their disability is 40 percent or less, there would be the VA
waiver, which would be a dollar for dollar offset. We don't
know what those numbers are because VA won't give us the
figures. But there's other things that we need to look at.
A number of people went ashore. Now, they have problems
proving that, and VA will want, you know, 20,000 affidavits and
a video to show they were ashore. But probably about any one
time, about ten percent of the fleet went ashore. They had to
go see the doctor, the dentist, the lawyer, the chaplain, call
home. They got transferred on and off. They made a mail run
into the harbor. You got boat crews. You got helicopter crews,
you know, go pick up some supplies, whatever. There's a number
of those people. And there's no way to determine those numbers.
Mr. Bost. Right.
Mr. Wells. But, you know, our estimate is about, based on
facts, is about ten percent, okay, that those are going to be
offset.
Now, the other thing is if some of these folks are picked
up under the VA system there was a CBO report that came out in
December of 2015. I realize this is--I may have the year wrong,
it may have been 2014, but I realize this is discretionary
spending, not mandatory, but says it is about 21 percent
cheaper to send somebody through the VA system than it is to do
Medicare reimbursement, which makes some sense. I mean if
you've got Tricare for life as your secondary, it is probably
even more than 21 percent. Those are old numbers, it was before
Choice. But, you know, it is still a factor. Okay. All that
being said--
Mr. Bost. Mr. Wells--
Mr. Wells [continued]. Right. Can I make the bill self-pay
for itself? No.
Mr. Bost. Let me go ahead and use--switch over to Ms. Esty
because I almost went five minutes over on my time; I said I
wouldn't do that. But just I think it is vitally important. So,
Ms. Esty, it is your turn.
Ms. Esty. Thank you, Mr. Chairman. We will pick up with
this. And Mr. Weidman, I definitely cannot walk on water,
guaranteed. But Linda Schwartz is awesome and we are happy to
have her back in Connecticut and are going to be using her as a
resource for this Committee. And her passion and commitment
around Agent Orange is in part what inspires me and helps me
work every day on this.
So we are going to pick back up, Mr. Wells, with figuring
out how we are going to pay for this because one of the things
I think is important to note, and all of you have referenced
this, is this cost of the system of trying to determine who is
in and who is out. And that is part of the reason for
presumptive. And I am not sure that the CBO scoring is really
looking at that. And again, you are all right, everyone is
happy to be there when we send our troops to war. And we need a
solemn commitment to take care of them when they come home.
That is part of the reason we need to be all over them right
now I think on burn pits to not repeat with the current
veterans what has happened with this delay, delay, deny for
Vietnam vets. So if you pick back up--
Mr. Wells. Yeah, thank you, Ranking Member Esty. You know,
one of the things is the Blue Water Navy is the tip of the
spear. There is plenty of other Agent Orange exposures which we
can go through at length. There is burn pits, there is Fort
McClellan, there is all kinds of toxic exposures. In our
written testimony we present--we recommended a brand new
funding source we think to cover all toxic exposure research,
kind of a follow on to what was passed last year, and toxic
exposure benefits for burn pits, Fort McClellan and so on so
forth. It is probably going to be north of $20 billion a year.
We recommended a $10 fee for everybody that turned--puts in
a tax return. Okay. And you could make it voluntary and you are
probably not going to get that much, but it would still be
some. If you make it mandatory, we are talking about everybody
who files a tax return, and there is 250 million filed every
year, okay, in this country, to pay what we called a freedom
fee. Okay. And that will generate not only money to pay for the
Blue Water Navy, but the other Agent Orange exposures, Guam,
Panama, wherever, Fort McClellan, burn pits and so on and so
forth. The fact is there is just not enough mandatory spending
left around to--left there to go around. I think we need a new
funding source. That seemed to be a fair way to do it.
Ms. Esty. Thank you. Anyone else who didn't get a chance to
do that? All right. Mr. Weidman, you do not speak as quickly as
Commander Wells. Anything else you would like to add to your
testimony?
Mr. Weidman. The VA never should have taken the Blue Water
Navy's sailors out of the group that was eligible for
presumption in the first place. All of the evidence since is
that they belong and it should be restored and that poor
decision should be reversed. What wasn't said by our friends
from VA was that the first thing they said was our
desalinization units didn't work the same way. We used a
different theory. And then it was pointed out that not only did
we do it the same way, but the desalinization units on the
Australian ships and the American ships were both came from WD
Burrows and Sons and were installed by the American company on
the Australian and the American ships. So now they have moved
to you can't tell how much anybody got.
Well, you know, we finally in that--when I mentioned the
IOM report and the Chair trying to convince association of the
United States Navy and the Fleet Reserve and the Legion
representative and me that somehow this meant that nobody
should be granted presumption. So we said, so, why, because you
can't measure how much dioxin? She said yes. And so we asked
the question what dose of dioxin is safe? And she, with all due
respect to the lady and who is no doubt a good scientist, her
eyes got as big as not saucers, big as great big dinner plates.
And she said well, there is no safe does of dioxin. Admitting
that once you have got biological plausibility and you could
replicate this experiment about how far out at sea, it then
reveals that the whole process inside VA veterans' benefits and
inside the environmental hazards and public health section
frankly is not science, it is sophistry. We should have public
servants there who we can rely on to be neutral arbiters of
science. And we would suggest that they are not.
Ms. Esty. Thank you very much. And you are correct, it is
zero level of safe exposure to dioxin. We all know that. That
is the basis of EPA regulations all across America on this
issue. And it is doubly true for those that were sent in harm's
way to defend freedom. And if you would, please make sure that
we get entered into the record the full relevant reports which
you have referenced from the National Academy of Sciences and
Institute of Medicine, which I'd like to make sure that those
full records are included with the relevant discussions about
the comparative difference between the certainty that there
exists and the certainty that there exists for blue water
versus brown water and territorial. Thank you very much.
Mr. Bost. Thank you.
And Mr. Bergman?
Mr. Bergman. Thanks, Mr. Chairman. Thank all of you for
your testimony this morning. It makes a difference. Mr. Hearn,
please explain why you believe it is important to codify a
veteran's right to appeal VA's decision to appoint a fiduciary?
Mr. Hearn. The American--I mean if VA assigns a fiduciary,
there have been times where the physician will ask the veteran
do you manage your financial affairs at home or does your wife
pay the bills? In my own house, my wife pays a good portion of
the bills. And using their logic, I suppose I should have a
fiduciary. Please don't. But that is the reason. I mean, people
make mistakes, that is human. So I think that some of the
reason why, that is one of the bigger reasons why we should be
appealing, why those issues should be appealed.
Mr. Bergman. Okay. So you are trying to provide a little
extra assistance for that veteran?
Mr. Hearn. Well, I mean if the veteran does not deserve--if
the veteran feels that he or she does not deserve a fiduciary
and has been misunderstood during an examination, I don't think
you would want to have those rights taken away from you. Other
times there are issues dealing with Second Amendment issues
that pop up because if you have been assigned a fiduciary
sometimes they say we need to pull your weapons from you. And
that is certainly something that the American Legion is
against, just because it is the two don't necessarily
correlate.
Mr. Bergman. Okay. Thank you. Mr. Hearn, based on your
experience working with veterans' claims, does the VA routinely
accept competent medical evidence from qualified private
physicians when evaluating claims?
Mr. Hearn. I wouldn't say routinely. The biggest problem
that we have noticed has dealt with this evaluation tool
builder. Imagine being a GS-11 or 12 out of some regional
office making adjudications and the evaluation builder says
this. But it does not have any measure or any way to weigh
evidence. It doesn't allow for lay testimony to be included. It
doesn't include continuity of symptoms. This is a failure. This
is a big failure on VA's part. And it is a failure that even
the regional offices are noticing while we are doing these
regional office reviews. And it really raises questions about
the quality of adjudications when you have got a tool that the
employees are feeling compelled to use, even though they
recognize at times that it doesn't consider all of the evidence
that is of record.
Mr. Bergman. Okay. Any other Members of the panel care to
comment on that question?
Mr. Weidman. The reason why they, even if there is adequate
clinical evidence in the file, that they request an exam is
CYA, sir. Simple as that.
Mr. Bergman. Okay. Anybody else? No. Thank you. Mr.
Chairman, I yield back.
Mr. Bost. Thank you.
Mr. Sablan
Mr. Sablan. Yeah. Thank you very much, Mr. Chairman. And
thank you gentlemen for joining us today. When I--in the
beginning of this term in Congress I asked if I could receive a
waiver to be in this Committee because I noticed an increasing
number of casework from the northern--from my district for our
veterans. And I will be very--truth be told I didn't know there
were so many veteran service organizations.
I am aware of the presence of Veterans of Foreign Wars out
there because there are times when we have a burial for veteran
and it is a member of the VFW who plays the Taps. Sometimes the
Army Reserves are given orders to perform--to give the gun
salute. But nowadays I think they need an order to it. Even if
they voluntarily want to do it they can't without orders.
And, but I am just getting such an education. I didn't know
about this dioxins. You know, I know about Agent Orange, but I
didn't know about this color of rainbow basically, a lot of
just different things. The Vietnam War I was a young pers--
young. But I don't know if you guys were--you guys went to war.
I don't know why we went to war. I became an American in 1986.
We became a part of the United States in 1978. And so last
November, Veterans Day I took the liberty of presenting a
tribute to Vietnam veterans. And I didn't know it meant so
much. So many of them came up to me and said thank you. This
gentleman who I know came up to me in tears and said thank you
because all I did was say welcome home from a very I think
unpopular war was what it was called.
But thank you for what you do. I don't know if we have DAVs
or, you know, but I will continue to work with this Committee.
This Committee have been very helpful to me. And with, of
course, the Veterans Administration. And in Northern Mariana we
have a doctor that when I got in there was no medical services.
So I think that the contract was negotiated, but it was
somebody filed it somewhere. And I think the file got lost
somewhere. So they found it and we got a physician on contract.
And she can only take so many, so I think they got another one.
But we are so far removed that we were forgotten. So we do have
a VHA staff now.
The individual suffering from PTSD see a--get a counseling
through a television screen. It is just incredibly unfair to
someone who has put on a uniform and gone to Afghanistan and
come back and can't see a doctor because they won't give him a
counselor, psychologist or psychiatrist. They instead tell them
that you have to come and sit down in front this table and
there is a TV screen there and someone at the other end will
talk to you.
We did a test of the resource provided to our--the mili--or
the VA's major contractors. We found out that some people on
the list didn't know they were contractors. Some of the people
on the list no longer--they moved away. But we got a new list
and we checked and some of them are now okay. The emergency
crisis line works, but it gets referred to Hawaii, and the time
zone is, you know, different.
But I am here because I do want to try as much as I can to
help those veterans who have served our country. They put on a
uniform. These people were whole when they left home. When they
came back many of them were broken. Some of their wounds we
can't see. But thank you everyone. I am truly getting an
education from all of you. And Mr. Chairman and the Ranking,
thank you for holding today's hearing. I appreciate it. I yield
back.
Mr. Bost. Thank you. And I do want to go ahead and go
around one more time if anybody that might want to. But I want
to limit it to three minutes because I think we are into this
enough. I know there is other hearings going on, but this is
vitally important. And for those that didn't answer, I want to
have the chance to respond. I understand neither one of us were
around when the rule for the offset was written. Okay. But it
is something that we have to do when we move forward with our
colleagues. So anyone that didn't have the opportunity to have
an input for possible offsets, if you have suggestions right
now, if you come up with them later. But I would open it to
anyone that would want to respond for possible offsets. That is
kind of the response I have been getting too.
So let me say this and that was the main question. One
thing I do want to ask, Mr. Wells, you talked about the $10
fee. Okay.
Mr. Wells. Yes, sir.
Mr. Bost. The $10 fee is basically a tax increase because
basically it is everybody who fills out a form will then pay a
$10 fee. So it is a tax increase. But I am not--
Mr. Wells. Certainly.
Mr. Bost [continued]. --arguing against it. I am just
wanting input. Have you raised any of these ideas with other
Committees that are present here in Congress, Ways and Means
staff or any other congressional staff? Because as they move
forward with the different ideas for--we are talking about tax
reform.
Mr. Wells. I was--
Mr. Bost. That would mean--
Mr. Wells [continued]. I did raise the issue with Ways and
Means and we tried to get an appointment with the staff down
there. I finally got a call from somebody there, it was a
gentleman. And, I'm sorry, I don't remember his name off the
top of my head. Who basically said, eh, mark it up, we will
look at it. So that was the response.
Mr. Bost. All right. Well, any response you do get back I
would like to know about.
Mr. Wells. I am going to, when I am coming back here in
May, I am going to try to get back to Ways and Means and to
Appropriations and see, you know, and try to run all the traps
on that.
Mr. Bost. Okay.
Mr. Wells. And Mr. Chairman, you know, it may not be the
best idea in the world. Maybe something that is--
Mr. Bost. It is an idea.
Mr. Wells [continued]. But it is a place to start. And one
of the things that we proposed in our written testimony is it
be dedicated. We will take a presidential finding of necessity
and two-thirds concurrence of both House and Congress to use it
for anything else. Unless we have an alien invasion I don't
think we will get two-thirds of the Congress to agree on too
much.
Mr. Bost. That is true.
Mr. Wells. So, but I do appreciate it. If I can just beg
your indulgence for ten more seconds. Congresswoman Stefanik
did introduce a bill or a resolution rather to show the sense
at Congress that the original Agent Orange Act would have
encompassed the bays, harbors, and territorial seas. Senator
Grassley who was on that bill originally when he was in the
House put out a press release saying basically that is what we
thought it was. So when the VA says they are confused, they
shouldn't be. Thank you.
Mr. Bost. All right. Thank you. Did you--
Mr. Weidman. The tax cut that--and several after that first
tax cut in the early aughts, if you will, upset many of us
because it had never happened before in wartime. And to send
the American people to the mall while our military went to war
was setting up almost what happened to us as Vietnam vets, is
it wasn't the whole Nation pulling together to go to the war.
In fact, the seeds of all of our fiscal problems of our Federal
government were laid in 1966 with the Federal Unified
Consolidated Budget Act where they took the trust out of the
trust, Highway Trust, FUTA, et cetera, and then started
appropriating it out in order to paper balance the budget. So
the guns and budget decision was that particular piece of
legislation which has affected everything since because of the
deficit and because of the scrambling. That is why people call
it smoke and mirrors.
What--and I couldn't get anybody to introduce it, that you
could keep the tax cut if you had a veteran who served on
active duty in your immediate family. Otherwise you couldn't
have the tax cut. And that would distribute at least somewhat
the pain because it is the same, I am convinced, the same
thousand, two thousand families that have fought every doggone
war we have ever had. And that is certainly those in the combat
MOSs.
Mr. Bost. Yeah. I would like to turn it over to Ms. Esty.
Ms. Esty. Thank you very much. And I just want to say thank
you to all of you for your service. Urge you to continue to
work with us. I think we all have good intent here, but to
figure out how to do this and the challenge meaning time, we
really are going to need to work together. So finding where we
can get those offsets, finding where we can get savings,
finding where we can more rapid in determination. And I want to
thank the VA for staying. I know in our last hearing folks were
not able to stay. It is really important that we all be at the
table together, that everyone listen to what everyone else is
saying. And I want to thank you for staying because we really
do need all of us to be partners in this endeavor to do right
by those who have served this country. So again, I want to
thank you all very much. I have kept mine under three minutes.
The only--
Mr. Bost. That is great. Mr. Sablan?
Mr. Sablan. I am done.
Mr. Bost. Okay. That being said, we want to go ahead and
release the third and final panel. And I want to thank everyone
for joining us here today and sharing your views with the
Subcommittee. Your testimony provides us with important insight
into the possibilities as we move forward through this
legislation process.
I ask unanimous consent that written statements provided by
the Paralyzed Veterans of America and the Fleet Reserve
Association be placed into the hearing record. Without
objection, so ordered. Finally, I ask unanimous consent for all
Members have five legislative days to revise and extend their
remarks and include extraneous material on any or all of the
bills under consideration this afternoon. And without
objection, so ordered. This hearing is now adjourned.
[Whereupon, at 12:16 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Beth Murphy
Good morning, Chairman Bost, Ranking Member Etsy, and Members of
the Committee. Thank you for inviting us here today to present our
views on several bills that would affect VA programs and services.
Joining me today are Dr. Ralph L. Erickson, Chief Consultant for Post
Deployment Health Services and Ms. Patricia Watts, Director,
Legislative and Regulatory Service, National Cemetery Administration.
H.R. 105 - ``Protect Veterans from Financial Fraud Act of 2017"
Section 2 of H.R. 105 would amend 38 U.S.C. Sec. 6107(b) by
removing restrictions on VA's authority to reissue benefits in cases of
fiduciary misuse. Currently, VA is authorized to reissue benefits under
this subsection only in cases of negligent supervision by VA, or where
the fiduciary is not an individual, or the fiduciary is an individual
who serves 10 or more beneficiaries for any month during a period when
misuse occurs.
Section 3 of H.R. 105 would amend 38 U.S.C. Sec. 5501A to add a
new subsection stating that mental competence determinations may be
appealed to the Board of Veterans' Appeals (BVA) and the U.S. Court of
Appeals for Veterans Claims (CAVC).
VA supports this bill. Section 2 of the bill would ensure the equal
treatment of all fiduciary misuse victims. VA would no longer be
required to make distinctions in these cases based on the nature and
scope of the fiduciary's business, or on the fiduciary's status. This
bill would allow VA to promptly reissue benefits that have been
misused, thereby minimizing financial hardship to beneficiaries caused
by the misuse, delays in obtaining restitution, or VA determinations
regarding negligence.
We note that by broadening the cases in which the Secretary shall
pay an amount equal to misused benefits to ``any case not covered by
subsection (a)'' and eliminating the requirements currently found in
section 6107(b)(2) that currently attach to non-negligence cases, this
bill effectively allows the Secretary to reissue benefits in all cases
of misuse. While VA supports the bill as written, it is questionable
whether there is any utility in maintaining the distinction between
negligence cases covered by subsection (a) and all other cases if this
bill were to become law. Further, current subsection (b)(3), which this
bill would move to subsection (b)(2), directs VA to pay to a
beneficiary or a successor fiduciary any recouped benefits ``[i]n any
other case in which the Secretary obtains recoupment from a fiduciary
who has misused benefits.'' Insofar as subsections (a) and (b)(1) of
section 6107 would apply to all cases in which a fiduciary misused
benefits, there would not appear to be any ``other'' instances of
misuse to which renumbered subsection (b)(2) would apply.
The cost of this bill is associated with section 2. VA estimates
these costs would be $2 million in FY 2018, $10 million over 5 years,
and $20 million over 10 years. There would be no costs associated with
section 3 of the bill because determinations of mental competence are
already appealable to BVA and the CAVC under existing law.
H.R. 299 - ``Blue Water Navy Vietnam Veterans Act of 2017"
H.R. 299 would extend the presumption of Agent Orange exposure to
all Veterans who served on ships in the ``territorial seas'' of the
Republic of Vietnam. It would do so by amending subsections (a)(1) and
(f) of 38 U.S.C. Sec. 1116, and subsection (e)(4) of 38 U.S.C. Sec.
1710, by inserting the phrase ``including the territorial seas of such
Republic'' after ``served in the Republic of Vietnam'' each place it
appears.
VA has a number of concerns with H.R. 299 and cannot support the
bill at this time. The bill does not clearly define what constitutes
``the territorial seas'' of the Republic of Vietnam. While
international treaties prescribe general standards governing nations'
territorial seas, it is unclear whether this bill is intended to follow
those treaty definitions and, if so, whether it is intended to follow
the treaty definitions extant during the Vietnam War or those extant
today. Without a clear definition, VA could not determine which
Veterans are eligible to receive benefits under the expanded
presumption based on their military service. VA is also concerned with
the September 25, 1985, effective date of the bill, which would
potentially result in retroactive awards of more than 30 years in many
cases. In enacting provisions extending benefits to other groups of
Veterans, Congress generally has not extended those benefits
retroactively, much less for such a significant time period. VA is
concerned about the apparent inequity of this disparate treatment of
different groups of Veterans. Further, re-adjudicating old claims and
establishing awards covering large retroactive periods would be complex
and labor-intensive tasks that would divert resources from other claim
adjudications. As will be discussed in greater detail, VA estimates
that the retroactive benefits payments in FY 2018, alone, would total
no less than $967 million.
Additionally, there is continued scientific uncertainty surrounding
the issue of Blue Water Navy Veterans' exposure to Agent Orange. At
VA's request, the Institute of Medicine (now National Academy of
Medicine) reviewed all available scientific evidence concluding that
they were ``unable to state with certainty that Blue Water Navy
personnel were or were not exposed to Agent Orange and its associated
TCDD'' (ref: Blue Water Navy Vietnam Veterans and Agent Orange
Exposure, 2011). For this reason VA continues to review and monitor the
peer-reviewed scientific / medical literature and is collaborating with
Veterans Service Organizations (including VFW and the Blue Water Navy
Vietnam Veterans Association) to gather more information. A new study
of Vietnam Veterans which includes the collection of data on Blue Water
Navy Veterans is currently ongoing with early results expected to be
available by December 2017. Secretary Shulkin is committed to examining
all available evidence on this issue and gathering input from
stakeholders in order to make well-informed, scientific evidence-based
decisions for our Nation's Veterans.
VA's cost estimate for the bill is broken down into four
categories: benefits, general operating expenses, information
technology (IT), and health care expenditures. VA estimates the total
benefits cost of this bill would be $1.4 billion during FY 2018, $3.0
billion over 5 years, and $5.5 billion over 10 years.
In addition to benefits costs, VA estimates the General Operating
Expenses (GOE) costs for the first year would be $90.7 million and
include salary, benefits, rent, training, supplies, other service, and
equipment. Five-year costs are estimated to be $213.5 million and 10-
year costs are estimated to be $339.0 million. VA further estimates
that the IT cost for the first year would be $2.9 million, $4.5 million
over 5 years, and $5.9 million over 10 years. This cost would include
the IT equipment for full-time equivalent employees, installation,
maintenance, and IT support.
Regarding health care expenditures, VA estimates the costs of the
bill would be $36.5 million in FY 2018, $268.0 million over 5 years,
and $618.2 million over 10 years.
H.R. 1328 - American Heroes COLA Act of 2017
H.R. 1328 would permanently authorize the Secretary to implement
cost-of-living increases to the rates of disability compensation for
service-disabled Veterans and the rates of Dependency and Indemnity
Compensation (DIC) for Survivors of Veterans. This bill would direct
the Secretary to increase the rates of those benefits whenever a cost-
of-living increase is made to benefits administered under title II of
the Social Security Act. These rates would be increased by a percentage
identical to increases to Social Security benefits.
The Department of Veterans Affairs (VA) supports this bill because
it would be consistent with Congress' long-standing practice of
enacting regular cost-of-living increases for compensation and DIC
benefits in order to maintain the value of these important benefits.
Additionally, the bill would eliminate the need for additional
legislation to implement such increases in the future. It would also be
consistent with current law that requires any cost-of-living increases
to disability compensation and DIC to be made at a uniform percentage
that does not exceed the percentage increase to Social Security
benefits.
VA estimates the cost of this bill would be $1.3 billion in fiscal
year (FY) 2018, $24.8 billion over 5 years, and $103.6 billion over 10
years. However, the cost of these increases is included in VA's
baseline budget because VA assumes that Congress will enact a cost-of-
living adjustment each year. Therefore, enactment of H.R. 1329 would
not result in additional costs, beyond what is included in VA's
baseline budget.
H.R. 1329 - Veterans' Compensation Cost-of-Living Adjustment Act of
2017
H.R. 1329 would require the Secretary to increase the rates of
disability compensation and DIC by the same percentage as any increase
to Social Security benefits effective on December 1, 2017. The bill
would also require VA to publish these increased rates in the Federal
Register.
VA strongly supports this bill because it would express, in a
tangible way, this Nation's gratitude for the sacrifices made by our
service-disabled Veterans and their surviving spouses and children. The
bill would also ensure that the value of these benefits keeps pace with
increases in consumer prices.
VA estimates the cost of this bill to be $1.3 billion in FY 2018,
$8.1 billion over 5 years, and $17.5 billion over 10 years. However,
the cost of these increases is included in VA's baseline budget because
VA assumes that Congress will enact a cost-of-living adjustment each
year. Therefore, enactment of H.R. 1329 would not result in additional
costs, beyond what is included in VA's baseline budget.
H.R. 1390 - Transportation of Deceased Veterans to Veterans' Cemeteries
H.R. 1390 would amend 38 U.S.C. Sec. 2308 to allow payment of the
monetary allowance currently payable for transportation of eligible
Veterans' remains for burial in a national cemetery to be paid for
transportation to a ``covered veterans' cemetery.'' The bill would
define a ``covered veterans' cemetery'' as a Veterans' cemetery owned
by a State or Tribal organization in which a deceased Veteran is
eligible to be buried. The bill would increase the options of burial
locations for eligible Veterans.
VA supports the intent of H.R. 1390; however, VA is concerned with
the administrative burden associated with this bill. VA currently
reimburses actual transportation costs based on receipts submitted by
claimants. This bill would require VA to pay no more than the cost of
transportation to the national cemetery nearest the Veteran's last
place of residence in which burial space is available. Calculating
these payments would require VA to check availability at national
cemeteries, determine the equivalent transportation cost to a national
cemetery, and then compare that cost to the claimant's receipts for
transportation to the State or Tribal cemetery. VA would welcome the
opportunity to work with the Subcommittee to address this issue.
VA estimates the benefits cost of the bill would be $1.2 million in
the first year, $6.7 million over 5 years, and $15.2 million over 10
years. Discretionary costs for this bill would be insignificant.
H.R. 1564 ``VA Beneficiary Travel Act of 2017"
H.R. 1564 would amend subsection (d) of section 504 of the
Veterans' Benefits Improvement Act of 1996 (Public Law 104-275, as
amended by Public Law 114-315; 38 United States Code (U.S.C.) Sec.
5101 note), to direct the use of funding from the mandatory
compensation and pension (C&P) appropriation to pay for travel and
incidental expenses associated with contract disability examinations
already funded by the same appropriation in FY 2017 and subsequent
years. The bill would codify subsection (d) as 38 U.S.C. Sec. 5109C
(``Pilot program for use of contract physicians for disability
examinations'').
The Veterans Benefits Administration (VBA) pays for certain
contract C&P examinations with funding from the mandatory C&P
appropriation. Congress granted VBA this authority under section 504,
which enabled VBA to conduct a ``pilot program'' to have contractors
complete C&P examinations for Veterans applying for benefits
administered by VBA. The pilot was initially limited to no more than 10
VA regional offices, and the source of funding for such contracts was
the C&P appropriation. In FY 2017, VBA's authority for the pilot was
expanded to all 56 regional offices.
VA strongly supports legislation to codify VA's current practice
and clearly authorize VA to fund Veteran participation in the pilot
program from a single source, rather than in part from the C&P
appropriation and in part from funds available for the pre-existing
beneficiary travel program under 38 U.S.C. Sec. 111.
This proposal would not require any additional funding or
administrative changes within VA. VBA planned to use the C&P account to
fund beneficiary travel to and from pilot program examinations, as well
as other incidental expenses of the pilot program, in FY 2017 and
subsequent years. In addition, this proposal would not change the
funding source for any other VA beneficiary travel.
H.R. 1725 - ``Quicker Veterans Benefits Delivery Act of 2017"
This bill would revise statutes pertaining to adjudication of
disability benefit claims.
Section 2 of this bill would prohibit VA from requesting a medical
examination when the claimant submits medical evidence or an opinion
from a non-VA provider that is competent, credible, probative, and
adequate for rating purposes. Sections 3 and 4 would require VA to
report to Congress on the progress of VA's Acceptable Clinical Evidence
(ACE) initiative and, for each VA regional office, data on the use by
claimants of private medical evidence in support of compensation and
pension claims.
VA does not support this bill. VA appreciates the intent of the
bill, which seeks to provide benefits to Veterans more expeditiously.
However, as written, the bill is, in some respects, unnecessary and
unclear and would be problematic to implement.
Section 2 of the bill is unnecessary given current legal standards.
This section would prohibit VA from requesting a medical examination
when evidence that is submitted is adequate for rating purposes.
Section 5103A(d)(2) of title 38, U.S.C., notes that an examination or
opinion is only required when the record does not contain sufficient
medical evidence to make a decision. Furthermore, section 5125 of title
38, U.S.C., explicitly notes that private medical examinations may be
sufficient, without conducting additional VA examinations, for
adjudicating claims. VA regulations are consistent with these statutory
requirements. Therefore, this section is unnecessary and duplicative.
At present, VA may adjudicate a claim without an examination if the
claimant provides evidence that is adequate for rating purposes. There
would be no costs associated with section 2.
VA does not support section 3 or 4. VA maintains data concerning
the number of examinations in which ACE is used, but VA does not track
when the evidence is supplemented with a telephone interview, data that
VA would be required to report under the bill. In addition, VA does not
track when private medical evidence is sufficient or insufficient for
rating purposes, as this is not a formal determination. This
determination depends on the receipt and evaluation of each piece of
evidence and may change at any time in the process. When a VA
examination is requested after the submission and review of private
medical evidence, VA has made a determination that the evidence is
insufficient for rating purposes, as it is VA policy to evaluate a
condition without an examination when the evidence of record is
adequate to decide the claim. GOE costs associated with sections 3 and
4 would be insignificant.
This concludes my remarks. I would be happy to answer any questions
that you may have. Thank you.
Prepared Statement of Zachary Hearn
Chairman Bost, Ranking Member Esty and distinguished members of the
Subcommittee on Disability Assistance and Memorial Affairs, on behalf
of National Commander Charles E. Schmidt and The American Legion, the
country's largest patriotic wartime service organization for veterans,
comprising over 2.2 million members and serving every man and woman who
has worn the uniform for this country, we thank you for the opportunity
to testify on behalf of The American Legion's positions on the
following pending legislation.
H.R. 105: Protect Veterans from Financial Fraud Act of 2017
To amend title 38, United States Code, to ensure that the Secretary
of Veterans Affairs repays the misused benefits of veterans with
fiduciaries, to establish an appeals process for determinations by the
Secretary of Veterans Affairs of veterans' mental capacity, and for
other purposes.
VA's Fiduciary Program is designed to protect the most vulnerable
beneficiaries determined to be unable to manage their financial
affairs. A fiduciary is authorized to directly receive a beneficiary's
benefits and act in the best interest of the beneficiary by making
payments to creditors and providing assurances for the financial well-
being of the beneficiary. VA's 2017 Congressional Submission VBA-219
states, ``Fiduciary Program beneficiaries are represented in all VA
benefit categories with the majority of its beneficiaries in receipt of
benefits.'' Additionally, over 50 percent of beneficiaries in the
Fiduciary Program are 80 years old or older. \1\
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\1\ 2017 Congressional Submission VBA-219
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Sadly, not all fiduciaries act in the best interest of
beneficiaries (by stealing, wasting money, or otherwise acting
inappropriately) and in many instances beneficiaries are unable to
recover their lost benefits. The VA is already authorized to reissue
benefits to a beneficiary if an individual fiduciary manages 10 or more
beneficiaries; however, if the fiduciaries represents less than 10
beneficiaries, the veteran is unable to recoup the lost benefits.
Fortunately, H.R. 105 addresses this disparity. All veterans
injured by VA fiduciaries should be able to collect on lost funds due
to a betrayal of trust. \2\
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\2\ American Legion Resolution No. 13 (September 2016): Fiduciary
Responsibility
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The American Legion supports H.R. 105.
H.R. 299: Blue Water Navy Vietnam Veterans Act of 2017
To amend title 38, United States Code, to clarify presumptions
relating to the exposure of certain veterans who served in the vicinity
of the Republic of Vietnam, and for other purposes.
Veterans who served on open sea ships off the shore of Vietnam
during the Vietnam War are called ``Blue Water Veterans.'' Currently,
Blue Water Veterans must have actually stepped foot on the land of
Vietnam or served on its inland waterways anytime between January 9,
1962 and May 7, 1975 to be presumed to have been exposed to herbicides
when claiming service-connection for diseases related to Agent Orange
exposure.
Blue Water Veterans who did not set foot in Vietnam or serve aboard
ships that operated on the inland waterways of Vietnam must show on a
factual basis that they were exposed to herbicides during military
service in order to receive disability compensation for diseases
related to Agent Orange exposure. These claims are decided on a case-
by-case basis.
We are aware that VA previously asked the National Academy of
Sciences' Institute of Medicine (IOM) to review the medical and
scientific evidence regarding Blue Water Veterans' possible exposure to
Agent Orange and other herbicides. IOM's report ``Blue Water Navy
Vietnam Veterans and Agent Orange Exposure'' was released in May 2011.
The report concluded that ``there was not enough information for the
IOM to determine whether Blue Water Navy personnel were or were not
exposed to Agent Orange.''
However, Vietnam veterans who served on land and sea now have
health problems commonly associated with herbicide exposure. Just as
those who served on land were afforded the presumption because it would
have placed an impossible burden on them to prove exposure, Congress
should understand the injustice of placing the same burden on those who
served offshore. Clearly, all the toxic wind-blown, waterborne, and
contamination transfer stemming from aircraft, vehicle, and troop
transfer makes it impossible to conclude that Agent Orange-dioxin
somehow stopped at the coast line.
The American Legion strongly supports legislation to expand the
presumption of Agent Orange exposure to any military personnel who
served on any vessel during the Vietnam War that came within 12
nautical miles of the coastlines of Vietnam. \3\
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\3\ American Legion Resolution No. 246 (Sept. 2016): Blue Water
Navy Vietnam Veterans
---------------------------------------------------------------------------
The American Legion supports H.R. 299.
H.R. 1328: American Heroes COLA Act of 2017
To amend title 38, United States Code, to provide for annual cost-
of-living adjustments to be made automatically by law each year in the
rates of disability compensation for veterans with service-connected
disabilities and the rates of dependency and indemnity compensation for
survivors of certain service-connected disabled veterans, and for other
purposes.
In recent years, Congress has been attempting to establish an
automatic mechanism to provide an annual increase in veterans'
disability benefits. The American Legion understands and appreciates
the efforts to remove the veteran community from the political debate
in determining appropriate annual adjustments to Cost-Of-Living
Adjustment (COLA) amounts for disability benefits. Unfortunately, while
this bill would likely promote efficiency, it could also come with a
significant cost to our nation's veterans.
The current COLA formula already understates the true cost-of-
living increases faced by seniors and people with disabilities.
According to one calculations ``a 30-year-old veteran of the Iraq or
Afghanistan war who has no children and is 100 percent disabled would
likely lose about $100,000 in disability compensation by age 75
(calculated in today's dollars), compared with benefits under the
current cost-of-living formula. Over a 10-year period, 23 million
veterans would lose $17 billion in compensation and pension benefits.''
\4\
---------------------------------------------------------------------------
\4\ AARP Bulletin (March 2013): Chained CPI Change Could Hit
Veterans' Benefits
---------------------------------------------------------------------------
The American Legion opposes ``any legislative efforts to
automatically index such cost-of-living adjustments to the cost-of-
living adjustment authorized for Social Security recipients, non-
service-connected disability recipients and death pension
beneficiaries.'' \5\ The reasoning behind this objection is that
veterans sometimes have needs and expenses which should be considered
on their own merits, rather than being simply lumped in with Social
Security for simple expediency.
---------------------------------------------------------------------------
\5\ American Legion Resolution No. 187 (Sept. 2016): Department of
Veterans Affairs Disability Compensation
---------------------------------------------------------------------------
Additionally, The American Legion ``expresses strong opposition to
using any Consumer Price Index that would reduce the annual cost-of-
living adjustment for military retirees, veterans receiving Social
Security benefits or Department of Veterans Affairs beneficiaries.''
\6\
---------------------------------------------------------------------------
\6\ American Legion Resolution No. 164 (Sept. 2016): Oppose
Lowering of Cost-of-Living Adjustments
---------------------------------------------------------------------------
The American Legion OPPOSES H.R 1328.
H.R. 1329: Veterans Compensation Cost-of-Living Adjustment Act of 2017
To increase, effective as of December 1, 2017, the rates of
compensation for veterans with service-connected disabilities and the
rates of dependency and indemnity compensation for the survivors of
certain disabled veterans, to amend title 38, United States Code, to
improve the United States Court of Appeals for Veterans Claims, to
improve the processing of claims by the Secretary of Veterans Affairs,
and for other purposes.
H.R.1329 would provide a Cost-of-Living Allowance (COLA) effective
December 1, 2017. Disability compensation and pension benefits awarded
by the Department of Veterans Affairs (VA) are designed to compensate
veterans for medical conditions incurred through service, or who earn
below an income threshold. When the cost of living increases due to
inflation, it is only appropriate that veterans' benefits increase
commensurate with those increases.
For nearly 100 years, The American Legion has advocated on behalf
of our nation's veterans, to include the awarding of disability
benefits associated with chronic medical conditions that manifest
related to selfless service to this nation. Annually, veterans and
their family members are subjects in the debate regarding the annual
COLA for these disability benefits. For these veterans and their family
members, COLA is not simply an acronym or a minor adjustment in
benefits; instead, it is a tangible benefit that meets the needs of the
increasing costs of living in a nation that they bravely defended.
H.R. 1329 is designed to allow for a COLA for VA disability and
other monetary benefits. The American Legion supports legislation ``to
provide a periodic cost-of-living adjustment increase and to increase
the monthly rates of disability compensation.'' \7\
---------------------------------------------------------------------------
\7\ American Legion Resolution No. 164 (Sept. 2016): Oppose
Lowering of Cost-of-Living Adjustments
---------------------------------------------------------------------------
The American Legion supports H.R. 1329.
H.R. 1390
To amend title 38, United States Code, to authorize the Secretary
of Veterans Affairs to pay costs relating to the transportation of
certain deceased veterans to veterans' cemeteries owned by a State or
tribal organization.
The VA will pay transportation costs for an eligible deceased
veteran for burial in a national cemetery. This legislation would
expand this benefit to include state or tribal cemeteries. The American
Legion supports the transporting of remains to the place of burial
determined by the family. \8\ Because this legislation expands options
for the family, we support this bill.
---------------------------------------------------------------------------
\8\ American Legion Resolution No. 181 (Sept. 2016): National
Cemetery Administration
---------------------------------------------------------------------------
The American Legion supports H.R. 1390.
H.R. 1564: VA Beneficiary Travel Act of 2017
To amend section 504 of the Veterans' Benefits Improvements Act of
1996 to specify the funding source for travel related to examinations
by physicians not employed by the Department of Veterans Affairs
regarding medical disabilities of applicants for benefits under title
38, United States Code, to codify section 504 of the Veterans' Benefits
Improvements Act of 1996, and for other purposes.
On October 9, 1996, Congress passed and the President signed into
law, Public Law 104-275, the Veterans' Benefits Improvements Act of
1996. This bill would amend section 504 of the law to specify the
funding source for veterans travel related to examinations by
physicians not employed by the Department of Veterans Affairs regarding
medical disabilities of applicants for benefits under title 38, United
States Code.
Since the authority is already law, and the bill aims to clean up
and properly designate where the VA would draw these resources and
would not impose any additional funding requirements, The American
Legion has no objections to H.R. 1564.
The American Legion supports H.R. 1564.
H.R. 1725: Quicker Benefits Delivery Act of 2017
To amend title 38, United States Code, to improve the treatment of
medical evidence provided by non-Department of Veterans Affairs medical
professionals in support of claims for disability compensation under
the laws administered by the Secretary of Veterans Affairs, and for
other purposes.
Many veterans submit private medical evidence to support their
claims for disability benefits. For veterans that require additional
medical review or do not provide a statement from a medical
professional linking the medical condition to military service, VA
provides compensation and pension (C&P) examinations to determine the
link or severity of medical conditions.
Over the past 20 years The American Legion has reviewed tens of
thousands of claims in regional offices around the country through our
Regional Office Action Review (ROAR) program. The American Legion has
testified to Congress that VA schedules unnecessary and duplicative
examinations despite already having the evidence necessary to grant the
claim. This adds further complication to an already complicated
process.
The American Legion understands that there are occasions where a
veteran would need a second examination after submitting a medical
nexus statement. If a private medical provider did not use a VA
disability medical questionnaire, then it stands to reason that the
provider may not have conducted the necessary tests to accurately rate
the veteran.
Unfortunately, these instances did not get noticed solely during
ROAR visits. They are noticed far too frequently by American Legion
representatives at the Board of Veterans' Appeals. There have been
occasions where veterans have been seeking total disability based on
individual unemployability (TDIU) benefits. Meanwhile, the veteran had
previously been granted Social Security disability benefits for a
condition incurred in service and service-connected by VA. Despite
enduring medical examinations for Social Security purposes and having
the benefit granted by the agency, VA would conduct their own
examinations to determine the veteran's employability. Some in the
veteran community refer to this needless development of disability
claims as ``developing to deny''.
This bill will compel VA to release data that establishes
acceptable clinical evidence and increase transparency for claims
development and adjudication. With congressional and VA focus on how
private medical evidence is treated, The American Legion believes that
the treatment of the evidence received from private medical providers
will receive higher consideration. This will expedite adjudications and
increase claims processing transparency. \9\
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\9\ American Legion Resolution No. 123 (Sept. 2016): Increase the
Transparency of the Veterans Benefits Administration's Claim Processing
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The American Legion supports H.R. 1725.
Conclusion
As always, The American Legion thanks this subcommittee for the
opportunity to explain the position of the over 2.2 million veteran
members of this organization. For additional information regarding this
testimony, please contact Mr. Warren J. Goldstein at The American
Legion's Legislative Division at (202) 861-2700 or
[email protected].
Prepared Statement of Patrick Murray
WITH RESPECT TO
H.R. 105, H.R. 299, H.R. 1328, H.R. 1329, H.R. 1390, H.R. 1564, and
H.R. 1725
Chairman Bost, Ranking Member Esty and members of the Subcommittee,
on behalf of the men and women of the Veterans of Foreign Wars of the
United States (VFW) and its Auxiliary, thank you for the opportunity to
provide our remarks on legislation pending before the subcommittee.
H.R. 105, Protect Veterans from Financial Fraud Act of 2017
The VFW supports this legislation, which would authorize veterans
assigned fiduciaries to be compensated when fiduciaries mishandle or
misuse their money. This is a common sense bill to protect some of our
most vulnerable veterans. Veterans assigned a fiduciary need help and
financial protection, and any individual who mistreats or preys upon
them must be held accountable, and restitution must be made to those
affected.
To further protect vulnerable veterans, the VFW supports expanding
this legislation to install criminal and financial penalties for those
found to maliciously prey on veterans for any financial gain, not just
fiduciary fraud. Abusing the health and financial welfare of veterans
in need must be punishable by law.
There have been numerous attempts to draft legislation instituting
criminal penalties for those who illegally charge veterans for services
like assistance in filing an initial claim for VA benefits, but those
attempts to pass legislation have fallen flat. The VFW supports
legislation that protects all veterans from any individual who commits
financial malfeasance, sets substantial penalties for doing so, and
ensures veterans receive any owed compensation as a result of the
crime.
H.R. 299, Blue Water Navy Vietnam Veterans Act of 2017
The VFW strongly supports this legislation, which would require the
Department of Veterans Affairs (VA) to include territorial seas as part
of the Republic of Vietnam, extending presumptive service connection
and health care for Agent Orange-related illnesses to Blue Water Navy
veterans.
Currently, VA relies on what the Court of Appeals for Veterans
Claims has called an ``arbitrary and capricious'' interpretation of
inland waterways, which unjustly denies veterans who served aboard
ships in the coastal waters of Vietnam the benefits they deserve. The
VFW believes that Blue Water Navy veterans were potentially exposed to
significant levels of toxins, and should be granted the same
presumption of service connection as their counterparts who served in
the inland waterways of Vietnam.
H.R. 1390, to authorize the Secretary of Veterans Affairs to pay costs
relating to the transportation of certain deceased veterans to
veterans' cemeteries owned by a State or tribal organization
The VFW supports this legislation, which expands burial benefits to
veterans interred in a State or tribal cemetery.
For more than 150 years, our nation has purchased and maintained
cemeteries to offer our veterans a final resting place that honors
their brave military service. Currently, VA maintains 133 national
cemeteries; only 75 of them, however, are able to accept new
interments. To ensure veterans have burial options within 75 miles to
their home, VA uses agreements and grants with states, United States
territories, and federally recognized tribal organizations to
establish, expand, or improve veterans' cemeteries in areas where the
National Cemetery Administration has no plans to build or maintain a
national cemetery.
While VA covers all the transportation expenses for veterans who
are interred in the nearest national cemetery, VA is not authorized to
reimburse the next of kin of a veteran who is interred in a State or
tribal cemetery because the nearest VA national cemetery is not
accepting new interments or the veteran does not have a national
cemetery near their home. This bill rightfully expands VA's authority
to cover the cost of transporting a veteran's remains to their final
resting place in a State or tribal cemetery.
H.R 1328, American Heroes COLA Act of 2017 & H.R. 1329, Veterans'
Compensation Cost-of-Living Adjustment Act of 2017
The VFW supports this legislation which would increase VA
compensation for veterans and survivors, and adjust other benefits by
providing a cost-of-living adjustment (COLA). The VFW is pleased to
support any bill increasing COLA for our veterans, however, we would
prefer to make COLA increases permanent and automatic.
Disabled veterans, along with their surviving spouses and children,
depend on their disability compensation, plus dependency and indemnity
compensation to bridge the gap of lost earnings caused by the veteran's
disability. Each year veterans wait anxiously to find out if they will
receive a COLA. There is no automatic trigger that increases these
forms of compensation for veterans and their dependents. Annually,
veterans wait for a separate act of Congress to provide the same
adjustment that is automatically granted to Social Security
beneficiaries.
H.R. 1564, VA Beneficiary Travel Act of 2017
The VFW supports this legislation, which would clarify and codify
VA's authority to carry out contracted compensation and pension exams
and reimburse veterans for travel to such exams.
The VA uses third party examinations in order to speed up the
process of either an initial claim or an appeal to ensure veterans
receive timely decisions on their claims. Travel is a significant
barrier to access for low income veterans. Clarifying that veterans may
receive beneficiary travel when attending a contracted compensation and
pension exam would ensure veterans are able to complete this important
step in the claims process.
While the VFW supports this bill, we are concerned that it does not
apply to initial mental health claims. If VA sees the need to contract
third party physicians to examine veterans for any and all physical
conditions, then it should also utilize appropriate medical
professionals to examine mental health conditions. Mental health
examinations are increasing every day, and VA insisting on patients
seeing only VA doctors for these examinations is increasing the burden
on their own system. Mental health examinations for initial claims
should be added to the type of services offered in VA's contracting
physicians' portfolio.
H.R. 1725, Quicker Veterans Benefits Delivery Act of 2017
The VFW strongly supports this legislation which would require VA
to accept competent, creditable, probative, and relevant private
medical evidence in support of a disability compensation claim.
The VFW supports using outside physicians' findings in order to
speed up the review and judgement of claims. Veterans should not have
to see another VA doctor in order to validate their private sector
doctors' findings. Requiring redundant examinations only adds to more
confusion and clogs up the system. VA must accept evidence from
competent, credible physicians and not force veterans to seek a second
opinion from a VA physician.
Veterans submitting initial claims have likely been receiving care
from non-VA doctors for their claimed conditions, meaning there is
likely already a sufficient evidentiary record of the disability.
Eliminating redundant exams would speed up the claims process.
While the VFW vehemently supports this bill, we must once again
reiterate our concerns related to mental health. Currently, all
veterans who claim mental health conditions are sent for a VA exam
regardless of the evidence of record. This is onerous and bad medical
practice for patients who suffer from mental health conditions. VA
should begin accepting private medical evidence for mental health
conditions from third party mental health professionals to avoid
redundant exams and overburdening veterans.
Mr. Chairman, this concludes my testimony. I am prepared to take
any questions you or the subcommittee members may have.
Prepared Statement of Leroy Acosta
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting DAV (Disabled American Veterans) to testify
at this legislative hearing of the Subcommittee on Disability
Assistance and Memorial Affairs. As you know, DAV is a non-profit
veterans' service organization comprised of 1.3 million wartime
service-disabled veterans that is dedicated to a single purpose:
empowering veterans to lead high-quality lives with respect and
dignity. DAV is pleased to present our views on the bills under
consideration by the Subcommittee, and we appreciate your invitation.
H.R. 105, Protect Veterans from Financial Fraud Act of 2017
H.R. 105 would require the Secretary of Veterans Affairs to repay
the misused benefits of veterans by fiduciaries and establish an
appeals process for determinations made by the Secretary of a veteran's
mental capacity.
While DAV does not have a resolution specific to this issue, we
would not oppose passage of this legislation.
H.R. 299, Blue Water Navy Vietnam Veterans Act of 2017
H.R. 299 would amend title 38, United States Code, to expand the
definition of the Republic of Vietnam to include its territorial seas
for the purposes of the presumption of service connection for diseases
associated with exposure by veterans to certain herbicide agents while
in Vietnam such as herbicides containing dioxin, including Agent
Orange, during the Vietnam War.
This legislation would provide Blue Water Navy Vietnam veterans the
disability and health care benefits they earned as a result of exposure
to Agent Orange. Eligibility for VA benefits under this legislation
would be retroactive to September 25, 1985, the date VA began providing
disability compensation to veterans with medical disorders related to
Agent Orange.
During the Vietnam War, the U.S. military sprayed Agent Orange in
Vietnam to eradicate jungle vegetation. This toxic chemical had chronic
and debilitating health effects on millions of veterans who served in
Vietnam and aboard ships operating in the territorial waters of
Vietnam.
The Agent Orange Act of 1991 required the Department of Veterans
Affairs (VA) to provide presumptive service connection to Vietnam
veterans with illnesses that the National Academy of Sciences directly
linked to Agent Orange exposure. Yet, in 2002, the VA decided to only
cover veterans who could prove that they had ``boots on the ground''
during the Vietnam War. Because of this decision, thousands of Vietnam
veterans were excluded from receiving benefits although these Blue
Water Navy veterans had significant Agent Orange exposure from drinking
and bathing in contaminated water just offshore.
Veterans who served on ships no more distant from the spraying of
herbicides than many who served on land are arbitrarily and unjustly
denied benefits of the presumption of exposure, and thereby are
ineligible for presumption of service connection for herbicide-related
disabilities.
DAV supports H.R. 299 based on DAV Resolution No. 018, supporting
legislation to expressly provide that the phrase ``served in the
Republic of Vietnam'' includes service in the territorial waters
offshore.
H.R. 1328, American Heroes COLA Act of 2017
H.R. 1328 would provide automatic annual cost-of-living adjustments
(COLA) in the rates of disability compensation for veterans with
service-connected disabilities and in the rates of additional
compensation for dependents, clothing allowance, and in dependency and
indemnity compensation for survivors of certain service-connected
disabled veterans.
H.R. 1328 also proposes to permanently index future COLA rate
adjustments to Social Security rate adjustments. The method used to
determine the level of the COLA is tied to the United States economy on
a very broad basis. The formula to calculate COLAs is prescribed by law
and determined by the Social Security Administration, utilizing
Department of Labor statistical information. The calculation of COLAs
has been linked directly to the Consumer Price Index since 1975.
In general, a COLA is equal to the percentage increase in the
Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-
W), from the third quarter of one year to the third quarter of the
next. If there is no increase in the index, there is no COLA. In these
cases, ill and injured veterans are denied necessary increases in
disability compensation due to a formula that has little to do with the
real costs they bear.
It has become customary for Congress to determine COLAs in parity
with Social Security recipients, but it is important to note there have
been years in which there were no COLA increases, or such as in 2017,
the COLA increase was quite small, only 0.3 percent. While we do not
oppose the automatic adjustment, this permanent coupling does subject
VA beneficiaries to the same rate adjustments of Social Security
beneficiaries, which can adversely impact veterans and their families
as in the case when there is no increase, or when the increase is
minuscule, especially for those veterans and their dependents who
heavily rely on disability compensation as their sole source of income.
DAV supports legislation that provides veterans with a COLA
increase in accordance with DAV Resolution No. 013, and recommends the
COLA calculation to provide a realistic cost-of-living allowance for
our nation's disabled veterans, their dependents and survivors.
We do not oppose the automatic adjustment; however, DAV has
concerns with permanently indexing COLA increases to the Social
Security Administration. Further, annual consideration by Congress of a
COLA bill provides the oversight needed to ensure compensation rates
continue to bring the standard of living in line with that which ill
and injured veterans would have enjoyed had they not suffered their
service-connected disabilities. In the event of a zero percent COLA,
the automatic index would not provide these veterans, their dependents
and survivors the benefits to maintain their standard of living.
H.R. 1329, Veterans' Compensation Cost-of-Living Adjustment Act of 2017
H.R. 1329 would also provide for increased compensation rates for
wounded, injured and ill veterans, their dependents and survivors
commensurate to that provided to Social Security recipients effective
December 1, 2017. Unlike H.R. 1328, mentioned above, H.R. 1329 does not
propose automatic adjustments to COLAs.
As discussed above, DAV calls on Congress to support legislation to
provide a realistic increase in disability compensation. Injured and
ill veterans, their dependents and survivors rely on their compensation
benefits to maintain their standard of living. Compensation rates must
bring the standard of living in line with that which they would have
enjoyed had they not suffered their service-connected disabilities.
DAV supports H.R. 1329 in accordance with DAV Resolution No. 013
and recommends the COLA calculation provide a realistic cost-of-living
allowance for our nation's disabled veterans, their dependents and
survivors.
H.R. 1390
This bill would permit the Secretary to cover the costs associated
with the transportation of deceased veterans, not only to national
cemeteries, but also to other recognized veterans' cemeteries. H.R.
1390 defines ``covered veterans cemeteries'' as a veterans' cemetery
owned by a state or tribal organization in which the deceased veteran
is eligible to be buried, consistent with the definition currently
codified in section 3765 (4), of title 38, United States Code. The
payment for transportation may not exceed the cost of transportation to
the nearest national cemetery from the deceased veteran's last place of
residence in which burial space is available.
H.R. 1390 would benefit veterans' survivors by helping to offset
the cost transporting the veteran to their final resting place. DAV
does not have a resolution specific to this bill; however, we would not
oppose passage of this legislation.
H.R. 1564, VA Beneficiary Travel Act of 2017
H.R. 1564 would amend section 504 of the Veterans' Benefits
Improvements Act of 1996 to specify the funding source for travel
related to examinations by physicians not employed by the Department of
Veterans Affairs regarding medical disabilities of applicants for
benefits under title 38, United States Code. This legislation codifies
section 504 of the Veterans' Benefits Improvements Act of 1996 by
transferring Section 504 to title 38, United States Code, subsection
5109C, and provides clerical amendments.
DAV does not have a resolution specific to this bill; however, we
would not oppose passage of this legislation.
Draft Bill, Quicker Veterans Benefits Delivery Act of 2017
This draft bill would amend title 38, United States Code, section
5125, to improve the treatment of medical evidence provided by non-
Department of Veterans Affairs (VA) medical professionals in support of
veterans' claims for disability compensation.
The bill would eliminate the VA practice of ordering unnecessary
compensation and pension examinations. Unnecessary examinations lead to
delays in delivery of benefits, tie up VA resources and add to the
frustration of veterans who in many cases have provided sufficient
medical evidence to support their claim. Requesting a VA examination
when acceptable private medical evidence has already been provided,
indicates that the private medical evidence is of less weight than
evidence provided by a VA clinician.
DAV continues to press for changes to improve and streamline the
veterans' benefits claims processing system. This legislation would
give due deference to private medical evidence that is competent,
credible, probative, and otherwise adequate for rating purposes.
Currently acceptance of private medical examinations is not
standardized across the VA. This draft legislation moves toward a more
efficient, less redundant disability claims process.
For these reasons, DAV is pleased to support this bill, consistent
with DAV Resolution No. 230, which seeks the enactment of legislation
that would require VA to consider private medical evidence supplied by
licensed private health care providers to include, but not be limited
to, reports from nurse practitioners and physician assistants in
private practices.
Mr. Chairman, this concludes DAV's testimony. Thank you for
inviting DAV to testify at today's hearing. I would be pleased to
address any questions related to the bills being discussed in my
testimony.
Statements For The Record
PARALYZED VETERANS OF AMERICA (PVA)
Chairman Bost, Ranking Member Esty, and members of the
Subcommittee, Paralyzed Veterans of America (PVA) would like to thank
you for the opportunity to provide our views on pending legislation
before the Subcommittee.
H.R. 105, the ``Protect Veterans from Financial Fraud Act of 2017"
PVA supports this legislation. Under current law, the Department of
Veterans Affairs (VA) is limited in its authority to reissue benefits.
If the fiduciary that misused benefits is an institution or an
individual serving ten (10) or more individuals who are beneficiaries
under title 38, VA is permitted to reissue benefits and make the
veteran whole again. If the fiduciary does not meet those criteria, VA
may only reissue benefits to the extent that it recoups the misused
funds from the fiduciary. The basis of the current rule is that it is
more likely that VA will recoup the funds from an institution or an
individual serving in a sophisticated or professional capacity on
behalf of numerous veterans. This is an unjust result for veterans who
choose not to engage the services of a professional fiduciary. H.R. 105
would remedy this unfortunate circumstance and place all veterans on
equal footing after malicious or incompetent fiduciaries misuse their
benefits.
H.R. 299, the ``Blue Water Navy Vietnam Veterans Act of 2017"
PVA supports H.R. 299, the ``Blue Water Navy Vietnam Veterans Act
of 2017,'' which would amend title 38 and expand the presumption for
service connection related to the exposure of herbicides containing
dioxin, including Agent Orange. As more information becomes available
about these types of exposures, it will be imperative for Congress to
take appropriate steps to ensure that these veterans receive just
consideration for health care and benefits eligibility.
H.R. 1328, the ``American Heroes COLA Act of 2017"
PVA supports H.R. 1328, the ``American Heroes COLA Act of 2017,''
which would increase, effective as of December 1, 2017, 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.
H.R. 1329
Historically, the annual COLA bill has been important legislation
that must pass each year. During times of particularly contentious
relations in Congress, this critical legislation has been used as a
vehicle to pass other important veterans legislation. PVA does not
object, however, to making the COLA adjustment automatic going forward,
as it would add a level of certainty for veterans expecting annual
increases equal to those provided under title II of the Social Security
Act.
H.R. 1390
PVA continues to support legislation expanding VA's authority to
pay for transportation of a deceased veteran's remains to not only
national cemeteries, but also cemeteries owned by States or tribal
organizations. While this bill expands options for veterans wishing to
be buried in a state or tribal cemetery instead of a national cemetery,
it avoids any additional costs to the current program by capping the
reimbursement at the amount needed to transport the veteran's remains
to the nearest national cemetery. This bill, however, does not extend
the same option for veterans without next of kin or sufficient
resources to cover their burial. We think it would be appropriate to
build in an exception allowing VA to transport the remains of such a
veteran to a state or tribal cemetery if VA has information suggesting
that this was the veteran's desire, and if it can be accomplished at or
below the cost of transporting the veteran to a national cemetery.
Doing so under these conditions would impose no additional costs.
H.R. 1564
PVA has no position on this legislation.
H.R. 1725, the ``Quicker Veterans Benefits Delivery Act of 2017"
We strongly support H.R. 1725, the ``Quicker Veterans Benefits
Delivery Act of 2017.'' Those veterans with catastrophic disabilities
have the greatest need for health care services and this legislation
will ensure that they are not forced into delays because the VA will
not accept medical evidence from non-VA medical professionals. This
bill is a high priority for our members.
PVA has consistently recommended that VA accept valid medical
evidence from non-Department medical professionals. The continuing
actions of VA to require medical examinations by its own physicians
does nothing to further efforts to reduce the claims backlog and may
actually cause the backlog to increase in addition to delaying vital
benefits for disabled veterans. We applaud Mr. Walz's efforts to both
define what constitutes ``sufficiently complete'' as well as institute
reporting requirements to ensure VA is avoiding unacceptable delays due
to duplicative medical exams.
VA has suggested in the past on similar legislation that the
Department already has the necessary legal authority to address this
concern. Furthermore, VA believes this change would inadvertently
restrict the Department's ability to help the veteran get a proper exam
if needed. First, we agree the VA has the legal authority. The point of
this legislation, though, is to address the fact that VA does not use
it properly. In fact, VA uses it to the detriment of veterans in some
cases, either by unnecessarily delaying claims or ``developing to
deny'' claims. If, as VA claims, the Department is already making
determinations based on whether the report contains competent,
credible, probative or such information as may be required to make a
decision, then this law adds no new burden on the administrative
process. Second, there is nothing in the language here that restricts
VA's ability to procure an additional exam when needed. If the claim is
not sufficiently complete, then a follow-on exam is warranted. If the
claim is sufficiently complete, then VA should be prohibited from
requiring further scrutiny.
PVA would also like to see VA better adhere to its own ``reasonable
doubt'' provision when adjudicating claims that involve non-VA medical
evidence. We still see too many VA decisions where this veteran-
friendly rule was not properly applied. 38 CFR Sec. 3.102 states that
``[w]hen, after careful consideration of all procurable and assembled
data, a reasonable doubt arises regarding service origin, the degree of
disability, or any other point, such doubt will be resolved in favor of
the claimant.'' Too often it appears VA raters exercise arbitrary
prerogative to avoid ruling in favor of the claimant, continually
adding obstacles to a claimant's path without adequate justification
for doing so. While due diligence in gathering evidence is absolutely
necessary, it often seems that VA is working to avoid a fair and
legally acceptable ruling for the veteran that happens to be favorable.
Both the failure to accept, and tendency to devalue, non-VA medical
evidence are symptoms of this attitude.
Mr. Chairman and members of the Subcommittee, we appreciate your
commitment to ensuring that veterans receive the best benefits and care
available. We also appreciate the fact that this Subcommittee has
functioned in a generally bipartisan manner over the last few years. We
look forward to working with the Subcommittee as we continue to provide
the best care for our veterans.
MILITARY-VETERANS ADVOCACY
Written Testimony for the Record in Support of: H.R. 299; H.R. 1328;
H.R. 1329; H.R. 1390; H.R. 1564 and, a draft bill entitled ``Quicker
Veterans Benefits Delivery Act of 2017"
And in Opposition to: H.R. 105,
Commander John B. Wells, USN (Retired), Executive Director
Introduction
Distinguished Sub-Committee Chairman Mike Bost, Ranking Member
Elizabeth Esty and other members of the Sub-Committee; thank you for
the opportunity to present the Association's views on H.R. 105; H.R.
299; H.R. 1328; H.R. 1329; H.R. 1390; H.R. 1564; and, a draft bill
entitled ``Quicker Veterans Benefits Delivery Act of 2017.'' This
testimony will provide commentary on all of the proposed legislation,
but will concentrate on HR 299.
About Military-Veterans Advocacy
Military-Veterans Advocacy Inc. (MVA) is a tax exempt IRC 501[c][3]
organization based in Slidell Louisiana that works for the benefit of
the armed forces and military veterans. Through litigation, legislation
and education, MVA works to advance benefits for those who are serving
or have served in the military. In support of this, MVA provides
support for various legislation on the State and Federal levels as well
as engaging in targeted litigation to assist those who have served.
Along with the Blue Water Navy Vietnam Veterans Association, Inc.
(BWNVVA) MVA has been the driving force behind the Blue Water Navy
Vietnam Veterans Act (HR 299).
Working with Members of Congress and United States Senators from
across the political spectrum, MVA and BWNVVA provided technical
information and support to sponsors who have worked tirelessly to
partially restore the benefits stripped from the Blue Water Navy
veterans fifteen years ago. Currently HR 299 has 238 co-sponsors. \1\ A
previous version, with identical language, in the 114th Congress had
335 co-sponsors.
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\1\ The 238 co-sponsors is as of March I 9, 2017. An updated number
will be provided during oral testimony.
Military-Veterans Advocacy's Executive Director Commander John B. Wells
---------------------------------------------------------------------------
USN (Ret.)
MVA's Executive Director, Commander John B. Wells, USN (Retired)
has long been viewed as the technical expert on HR 299. A 22-year
veteran of the Navy, Commander Wells served as a Surface Warfare
Officer on six different ships, with over ten years at sea. He
possessed a mechanical engineering subspecialty, was qualified as a
Navigator and for command at sea, and served as the Chief Engineer on
several Navy ships. As Chief Engineer, he was directly responsible for
the water distillation and distribution system. He is well versed in
the science surrounding this bill and is familiar with all aspects of
surface ship operations. This includes the hydrological effect of wind,
tides and currents.
Since retirement, Commander Wells has become a practicing attorney
with an emphasis on military and veterans law. He is counsel on several
pending cases concerning the Blue Water Navy and has filed amicus
curiae briefs in other cases. He has tried cases in state, federal,
military and veterans courts as well as other federal administrative
tribunals. Since 2010 he has visited virtually every Congressional and
Senatorial office to discuss the importance of enacting a bill to
partially restore benefits to those veterans who served in the bays,
harbors and territorial seas of the Republic of Vietnam. He is also
recognized in the veterans community as the subject matter expert on
this matter.
Historical Background Surrounding H.R. 299
In the 1960's and the first part of the 1970's the United States
sprayed over 12,000,000 gallons of a chemical laced with 2,3,7,8-
Tetrachlorodibenzodioxin (TCDD) and nicknamed Agent Orange over
southern Vietnam. This program, code named Operation Ranch Hand, was
designed to defoliate areas providing cover to enemy forces. Spraying
included coastal areas and the areas around rivers and streams that
emptied into the South China Sea. By 1967, studies initiated by the
United States government proved that Agent Orange caused cancer and
birth defects. Similar incidence of cancer development and birth
defects have been documented in members of the United States and Allied
armed forces who served in and near Vietnam.
Throughout the war, the United States Navy provided support for
combat operations ashore. This included air strikes and close air
support, naval gunfire support, electronic intelligence, interdiction
of enemy vessels and the insertion of supplies and troops ashore.
Almost every such operation was conducted within the territorial seas.
The South China Sea is a shallow body of water and the thirty-
fathom curve (a fathom is six feet) extends through much of the
territorial seas. The gun ships would operate as close to shore as
possible. The maximum effective range of the guns required most
operations to occur within the territorial seas as documented in the
attachment. \2\ Often ships would operate in harbors or within the ten-
fathom curve to maximize their field of fire. The maximum range on
shipboard guns (except the Battleship 16 inch turrets) required the
ship to operate within the territorial seas in order to support forces
ashore.
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\2\ The red line on the attached chart, Exhibit 1, is known as the
base line. Vietnam uses the straight baseline method which intersects
the outermost coastal islands. The dashed line is twelve nautical miles
from the baseline and represents the territorial seas. The bold line
marks the demarcation line for eligibility for the Vietnam Service
Medal. Prior to 2002, the VA granted the presumption of exposure to any
ship that crossed the bold line. H.R. 299 will restore the presumption
only to a ship that crosses the dashed line.
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It was common practice for the ships to anchor while providing
gunfire support. Digital computers were not yet in use and the fire
control systems used analog computers. By anchoring, the ship's crew
was able to achieve a more stable fire control solution, since there
was no need to factor in their own ship's course and speed. It was also
common for ships to steam up and down the coast at high speeds to
respond to call for fire missions, interdict enemy sampans and other
operational requirements.
Small boat transfers were conducted quite close to land. Many
replenishments via helicopter took place within the territorial seas.
Often these helicopters landed in country for refueling, to disembark
passengers or to pick up mail. Small boat or assault craft landings of
Marine forces always took place within the territorial seas. Many of
these Marines re-embarked, bringing Agent Orange back aboard on
themselves and their equipment. Additionally mail, equipment and
supplies staged in harbor areas were often sprayed before being
transferred to the outlying ships. Embarking personnel would take boats
or helicopters to ships operating in the territorial seas. The Agent
Orange would adhere to their shoes and clothing as well as to mail bags
and other containers. It would then be tracked throughout the ship on
the shoes of embarking personnel and the clothing of those handling
mail and other supplies brought aboard. Their clothing was washed in a
common laundry, contaminating the laundry equipment and the clothing of
other sailors.
Flight operations from aircraft carriers often occurred outside of
the territorial seas. As an example, Yankee station was outside of the
territorial seas of the Republic of Vietnam. Dixie Station, however,
was on the border of the territorial seas. Some carriers, especially in
the South, entered the territorial seas while launching or recovering
aircraft, conducting search and rescue operations and racing to meet
disabled planes returning from combat. Aircraft carriers also entered
the territorial seas for other operational reasons. Many times these
planes flew through clouds of Agent Orange while conducting close air
support missions. These planes were then washed down on the flight
deck, exposing the flight deck crew to Agent Orange.
Agent Orange Act of 1991.
In 1991, the Congress passed and President George H. W. Bush
signed, the Agent Orange Act of 1991, Pub.L. 102-4, Feb. 6, 1991, 105
Stat. 11. This federal law required VA to award benefits to a veteran
who manifests a specified disease and who ``during active military,
naval, or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7, 1975.''
The Agent Orange Act of 1991 further required the Secretary to
``take into account reports received by the Secretary from the National
Academy of Sciences and all other sound medical and scientific
information and analyses available to the Secretary.'' The Secretary is
further required to consider whether the results are statistically
significant, are capable of replication, and withstand peer review. The
responsibility to prepare a biennial report concerning the health
effects of herbicide exposure in Vietnam veterans was delegated to the
Institute of Medicine (IOM), a non-profit organization which is
chartered by the National Academy of Sciences.
The Agent Orange Act required the Secretary to conduct blood tests
on those veterans exposed to Agent Orange. The VA generally ignored
this requirement and few blood tests were taken. Unfortunately, the
half-life deterioration of the dioxin is now below the detection
threshold and cannot be identified. While the dioxin has deteriorated,
its effects have not. Many of these effects manifested themselves 20-30
years after exposure.
The Department of Veterans Affairs (hereinafter VA) drafted
regulations to implement the Agent Orange Act of 1991 and defined
``service in the Republic of Vietnam'' as ``service in the waters
offshore and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam.'' 38 C.F.R.
Sec. 3.307(a)(6)(iii) (1994). This was in contrast to a previous
definition which defined ``service in Vietnam'' as ``service in the
waters offshore, or service in other locations if the conditions of
service involved duty or visitation in Vietnam.'' 38 C.F.R. Sec. 3.313
(1991). These regulations allowed the presumption of exposure
throughout the Vietnam Service Medal area, the dark solid line marked
on Exhibit 1. Under this definition, a ballistic missile submarine was
covered as were the aircraft carriers on Yankee Station and submarines
conducting operations in the Gulf of Tonkin in an area off the coast
where no Agent Orange was sprayed. These ships would not be covered
under H.R. 299.
In 1997 the VA General Counsel issued a precedential opinion
excluding service members who served offshore but not within the land
borders of Vietnam. The opinion construed the phrase ``served in the
Republic of Vietnam'' as defined in 38 U.S.C. Sec. 101(29)(A) not to
apply to service members whose service was on ships and who did not
serve within the borders of the Republic of Vietnam during a portion of
the ``Vietnam era.'' The opinion stated that the definition of the
phrase ``service in the Republic of Vietnam'' in the Agent Orange
regulation, 38 C.F.R. Sec. 3.307(a)(6)(iii), ``requires that an
individual actually have been present within the boundaries of the
Republic to be considered to have served there,'' and that for purposes
of both the Agent Orange regulation and section I01(29)(A), service
``in the Republic of Vietnam'' does not include service on ships that
traversed the waters offshore of Vietnam absent the service member's
presence at some point on the landmass of Vietnam.'' \3\
---------------------------------------------------------------------------
\3\ VA Op. Gen. Counsel Pree. 27-97 (1997).
---------------------------------------------------------------------------
After lying dormant for a few years, this General Counsel's opinion
was incorporated into a policy change that was published in the Federal
Register during the last days of the Clinton Administration. \4\ The
final rule was adopted in Federal Register in May of that year. \5\ The
VA recognized the exposure presumption for the ``inland'' waterways but
not for offshore waters or other locations.
---------------------------------------------------------------------------
\4\ 66 Fed.Reg. 2376 (January 11, 2001).
\5\ 66 Fed. Reg. 23166.
---------------------------------------------------------------------------
Historically the VA's Adjudication guidance, the M21-l Manual,
allowed the exposure presumption to be extended to all veterans who had
received the Vietnam service medal, in the absence of ``contradictory
evidence.'' In a February 2002 revision to the M21- l Manual, the VA
incorporated the VA General Counsel Opinion and the May 2001 final rule
and required a showing that the veteran has set foot on the land or
entered an internal river or stream. This ``boots on the ground''
requirement is in effect today.
One exception to this rule deals with Non-Hodgkin's Lymphoma (NHL).
A punctuation difference in the regulation requires the inclusion of
Blue Water Navy veterans. The VA General Counsel has ruled that all
persons in the Center for Disease Control's (CDC) Selected Cancers
Study, including Blue Water Navy (BWN) veterans, were presumed to be
included in the definition of ``duty or visitation in Vietnam.'' \6\
The Secretary has never explained why Agent Orange exposure caused NHL
in BWN veterans but that it did not cause the other diseases associated
with the dioxin. This selective application is inexplicable.
---------------------------------------------------------------------------
\6\ VAOPGCPREC 7-93, 1993.
---------------------------------------------------------------------------
Hydrological Effect
The Agent Orange spray was mixed with petroleum. The mixture washed
into the rivers and streams and discharged into the South China Sea.
The riverbanks were sprayed continuously resulting in direct
contamination of the rivers. The dirt and silt that washed into the
river was clearly seen exiting the rivers and entering the sea. This is
called a discharge ``plume'' and in the Mekong River it is
considerable. Although the Mekong has a smaller drainage area than
other large rivers, it has approximately 85% of the sediment load of
the Mississippi. In two weeks, the fresh water of the Mekong will
travel several hundred kilometers. \7\ Notably, Agent Orange dioxin
dumped in the Passaic River in New Jersey made its way off the east
coast of the United States and was found in fish over one hundred
nautical miles from shore. \8\
---------------------------------------------------------------------------
\7\ Chen, Liu et. al, Signature of the Mekong River plume in the
western South China, Sea revealed by radium isotopes, JOURNAL OF
GEOPHYSICAL RESEARCH, Vol. 115, (Dec. 2010).
\8\ Belton, et. al, 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and
2,3,7,8- Tetrachlorodibenzo-p-Furan (TCDF), In Blue Crabs and American
Lobsters from the New York Bight, New Jersey Department of
Environmental Protection (November 12, 1988).
---------------------------------------------------------------------------
By coincidence, the baseline and territorial seas extend further
from the mainland off the Mekong River. At its widest point off the
Mekong, the territorial seas extend to 90 nautical miles from the
mainland. This was due to the location of the barrier islands owned by
Vietnam. Given the more pronounced effect of the Mekong plume, however,
the broader area off the Mekong Delta is appropriate. The force of the
water in this area is greater than the river discharge in other parts
of the country.
Eventually, the Agent Orange/petroleum mixture would emulsify and
fall to the seabed. Evidence of Agent Orange impingement was found in
the sea bed and coral of Nha Trang Harbor. This was determined by a
study of coral deterioration in the harbor. \9\ Here the Vietnamese
government contracted with Dr. Pavlov \10\ and his team to ascertain
why the coral in the Nha Trang area was dying. Their conclusion was
that the coral was dying from the effect of Agent Orange. The presence
of the dioxin was confirmed
---------------------------------------------------------------------------
\9\ Pavlov, et, al, Present-Day State of Coral Reefs of Nha Trang
Bay (Southern Vietnam) and Possible Reasons for the Disturbance of
Habitats of Scleractinian Corals, RUSSIAN JOURNAL OF MARINE BIOLOGY,
Vol. 30, No. 1 (2004).
\10\ Dr. Pavlov was affiliated with the Institute of Ecology and
Problems of Evolution, Russian Academy of Sciences, Biological
Department, Moscow State University and Russian-Vietnamese Tropical
Center, Hanoi, Vietnam.
---------------------------------------------------------------------------
Table 1 from this report (reproduced herein as Exhibit 2) shows the
stations where the damage was verified in the coral as well as the
stations where bottom sediment samples revealed the presence of the
dioxin. The cross hatched section in the upper left hand quadrant shows
the limit of Agent Orange spraying, encompassing part of the Kay River.
The first station, station 50, is located in the Kay River seaward of
the sprayed area. Bottom sediment samples, as reflected in Table 2
(reproduced as Exhibit 3) show a significant toxic effect in the column
entitled 1-TEQ, ng/kg. The stations in a direct path from Transects
Band C, as shown in Table 1, have more significant toxic effect than
other areas. Transects A and D are in the discharge paths of rivers
that did not receive direct spraying. While the stations along these
Transects do show lower levels of toxic exposure. This is more
appropriate for rainwater runoff from sprayed areas rather than
discharge from the Kay River which received direct spraying. While all
four Transects showed definite Agent Orange infiltration, the exposure
was greater along the discharge plume of the Kay River.
The Pavlov study confirms the premise advanced by Military-Veterans
Advocacy and hydrologists familiar with the Vietnamese River systems
that the Agent Orange, which was mixed with petroleum, floated out to
the harbors and the South China Sea from areas that were directly
sprayed as well as rain water runoff into the inland waterways.
Notably, the harbors and bays of Vietnam were not ``deep water''
ports, as depicted by the VA, but shallow water areas. Da Nang Harbor
currently has a depth at the anchorage of 31-35 feet (http://
www.worldportsource.com/ports/portCall/VNM--Da--Nang--Port--1457.php
(last visited August 16, 2015), although anecdotal information
indicates it was dredged to 42 feet during the Vietnam War. The deepest
point of Nha Trang Harbor is 32.7 meters or 107 feet. Most of the area
is shallower. Destroyer sized ships normally drew 15-18 feet (depending
on loadout) and could safely anchor up to a depth of 180-200 feet.
These ships would churn up the seabed when entering and leaving the
harbor and again when anchoring or weighing anchor. The emulsified
Agent Orange would continue to be stirred up and would rise to the
surface.
During the Vietnam War, the coastline, especially in the harbors
and within the thirty-fathom curve, was a busy place with military and
civilian shipping constantly entering and leaving the area in support
of the war effort. Whenever ships anchored, the anchoring evolution
would disturb the shallow seabed and churn up the bottom. Weighing
anchor actually pulled up a small portion of the bottom. The propeller
cavitation from ships traveling at high speeds, especially within the
ten-fathom curve, impinged on the sea bottom. The wakes left by small
boats traveling from ships to the shore would also churn up the sea
bottom. This caused the Agent Orange to constantly rise to the surface.
The contaminated water was ingested into the ship's evaporation
distillation system which was used to produce water for the boilers and
potable drinking water. Navy ships within the South China Sea were
constantly steaming through a sea of Agent Orange molecules.
The Australian Factor and the Distillation Process
In August of 1998 Dr. Keith Horsley of the Australian Department of
Veterans Affairs met Dr. Jochen Mueller of the University of
Queensland's National Research Centre for Environmental Toxicology
(hereinafter NRCET) in Stockholm at the ``Dioxin 1998'' conference.
Horsley shared a disturbing trend with Mueller. Australian VA studies
showed a significant increase in Agent Orange related cancer incidence
for sailors serving offshore over those who fought ashore. Based on
that meeting, the Australian Department of Veterans Affairs
commissioned NRCET to determine the cause of the elevated cancer
incidence in Navy veterans.
In 2002, as the American Department of Veterans Affairs (VA) was
beginning to deny the presumption of exposure to the United States Navy
veterans, NRCET published the result of their study. \11\ Their report
noted that ships in the near shore marine waters collected water that
was contaminated with the runoff from areas sprayed with Agent Orange.
The evaporation distillation plants aboard the ships co-distilled the
dioxin and actually enriched its effects. As a result of this study,
the Australian government began granting benefits to those who had
served in an area within 185.2 kilometers (roughly 100 nautical miles)
from the mainland of Vietnam.
---------------------------------------------------------------------------
\11\ Mueller, J; Gaus, C, et. al. Examination of The Potential
Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated
Dibenzodioxins And Polychlorinated Dibenzofurans Via Drinking Water
(2002).
---------------------------------------------------------------------------
Institute of Medicine (IOM) Reports
In June of 2008, Blue Water Navy representatives presented to the
IOM's Committee to Review the Health Effects in Vietnam Veterans of
Exposure to Herbicides (Seventh Biennial Update) in San Antonio, Texas.
That Committee report \12\ accepted the proposition that veterans who
served on ships off the coast of the Republic of Vietnam were exposed
to Agent Orange and recommended that they not be excluded from the
presumption of exposure. The Committee reviewed the Australian
distillation report and confirmed its findings based on Henry's Law.
The VA did not accept these recommendations. Instead then Secretary
Shinseki ordered another IOM study. On May 3, 2010, Blue Water Navy
representatives testified before the Institute of Medicine's Board on
the Health of Special Populations in relation to the project ``Blue
Water Navy Vietnam Veterans and Agent Orange Exposure.'' \13\ They
concluded: (1) There was a plausible pathway for some amount of Agent
Orange to have reached the South China Sea through drainage from the
rivers and streams of South Vietnam as well as wind drift, (2) The
distillation plants aboard ships at the time which converted salt water
to potable water did not remove the Agent Orange dioxin in the
distillation process and enriched it by a factor of ten, (3) Based on
the lack of firm scientific data and the four decade passage of time,
they could not specifically state that Agent Orange was present in the
South China sea in the l 960's and 1970's, (4) There was no more or
less evidence to support its presence off the coast than there was to
support its presence on land or in the internal waterways and (5)
Regarding the decision to extend the presumption of exposure ``given
the lack of measurements taken during the war and the almost 40 years
since the war, this will never be a matter of science but instead a
matter of policy.'' Notably this report did not contradict the findings
of the Seventh Biennial report that the Blue Water Navy personnel
should not be excluded from the presumption of exposure.
---------------------------------------------------------------------------
\12\ IOM (Institute of Medicine). 2009. Veterans and Agent Orange:
Update 2008. Washington, DC: The National Academies Press.
\13\ IOM (Institute of Medicine). 2011. Blue Water Navy Vietnam
Veterans and Agent Orange Exposure. Washington, DC: The National
Academies Press.
---------------------------------------------------------------------------
The IOM's Eighth Biennial Update recognized that ``it is generally
acknowledged that estuarine waters became contaminated with herbicides
and dioxin as a result of shoreline spraying and runoff from spraying
on land.'' \14\ The Ninth Biennial Update stated that'' it is generally
acknowledged that estuarine waters became contaminated with herbicides
and dioxin as a result of shoreline spraying and runoff from spraying
on land, particularly in heavily sprayed areas that experienced
frequent flooding.'' \15\
---------------------------------------------------------------------------
\14\ IOM (Institute of Medicine). 2012. Veterans and Agent Orange:
Update 2010. Washington, DC: The National Academies Press.
\15\ IOM (Institute of Medicine). 2014. Veterans and Agent Orange:
Update 2012. Washington, DC: The National Academies Press.
---------------------------------------------------------------------------
Harbor Water Barges
In April of 2016, Military-Veteran Advocacy bought to the attention
of former Chairman Jeff Miller the use of water barges in Vietnamese
harbors, specifically Da Nang. These water barges furnished potable
water, contaminated with the Agent Orange dioxin, to ships at anchor.
Most Navy ships had limited potable water reserves. The potable
water was used for drinking, laundry, cooking, cleaning and hygiene for
the crew and other embarked personnel. When anchored in the harbors,
ships tended to distill mainly to reserve feed water, used for the
boilers, \16\ because of sanitation issues. Solid waste permeated the
harbor both from the ships themselves, the shore establishment and
indigenous residents of the area. Accordingly, distillation to potable
water was discouraged. As a result, reserve potable water levels often
fell below acceptable limits. This required periodic replenishment from
military and commercial potable water barges.
---------------------------------------------------------------------------
\16\ Since the same intake distillation and discharge system was
used for reserve feed and potable water distillation, the entire system
was contaminated by Agent Orange dioxin discharged into the harbors via
the rivers. Emulsified Agent Orange that sank to the seabed was
disturbed and rose to the surface by the cavitation effects of ships
entering and leaving the harbor and by the anchoring evolutions.
---------------------------------------------------------------------------
At least three self-propelled water barges YW 101, 126 and 128 were
deployed to Vietnam. \17\ These barges were used frequently in Qui Nhon
and Da Nang harbors. Their efforts were supplemented by commercial
water barges.
---------------------------------------------------------------------------
\17\ See: http://www.navsource.org/archives/14/17idx.htm
---------------------------------------------------------------------------
In their monthly report, Commander Naval Forces Vietnam noted
millions of gallons of potable water being delivered to anchored ships
in any given month. These reports are available from the Naval
Historical command. \18\ This water was obtained from an open-air
reservoir on ``Monkey Mountain'' which overlooked Da Nang Harbor. The
use of water from Monkey Mountain has been verified by Mary Ellen
McCarthy, the former staff director of the Senate Veterans Committee.
Notably this water was not only provided to anchored ships, but to
ships moored to the piers.
---------------------------------------------------------------------------
\18\ See: http://oai.dtic.mil/oai/
oai?verb=getRecord&metadataPrefix=html&identifier=ADA953613 and http://
www.history.navy.mil/content/dam/nhhc/research/archives/commander-
naval-forces- Vietnam/monthly-summaries-1967/July l967.pdf
---------------------------------------------------------------------------
The entire area was frequently sprayed with Agent Orange because
there was a communications facility and artillery spotters located on
the mountain. The intent was to deny cover to enemy forces who might
attack those facilities or use the mountain as a mortar location.
Law of the Sea
Despite VA protestations to the contrary, the exclusion of the Blue
Water Navy veterans from the presumption of exposure was never about
science. The decision stems from an irrational, arbitrary and
capricious finding of an incompetent General Counsel's office. The
basis behind this deadly determination was an improper statutory
interpretation, made in defiance of accepted principles concerning the
law of the sea as well as international treaties signed and ratified by
the United States. In defense of the General Counsel's office,
Military-Veterans Advocacy believes the initial action was taken
because of ignorance rather than maliciousness. Their unconscionable
defense of a bad decision, however, has been nothing sort of abhorrent.
The fact that an agency of the United States government would condemn
tens of thousands of veterans to an early death to cover-up their error
is despicable.
The Agent Orange Act of 1991 provides that:
... [A] veteran who, during active military, naval, or air service
in the Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7,1975, and has ...[an enumerated disease]
shall be presumed to have been exposed during such service to an
herbicide agent containing dioxin ... unless there is affirmative
evidence to establish that the veteran was not exposed to any such
agent during service.
38 U.S.C. Sec. 1116(a)(3). (Emphasis added).
Vietnam claims a 12-mile territorial sea. The United States has
consistently recognized Vietnamese sovereignty over the territorial
seas of Vietnam. This recognition was expressly incorporated into the
1954 Geneva Accords Art. 4 which established the Republic of Vietnam.
\19\ It was confirmed again in Art. 1 of the 1973 Paris Peace Treaty
which ended the Vietnam War. \20\ During the war, the United States
recognized the Vietnamese 12 limit. \21\
---------------------------------------------------------------------------
\19\ https://www.mtholyoke.edu/acad/intrel/genevacc.htm (last
visited June 6, 2014).
\20\ http://www.upa.pdx.edu/IMS/currentprojects/TAHv3/Content/PDFs/
Paris--Peace-- Accord--1973.pdf (last visited June 6, 2014).
\21\ The Joint Chiefs of Staff and the War in Vietnam 1960-1968,
Part II which can be found at dtic.mil/doctrine/.../jcsvietnam--pt2.pdf
at 358.
---------------------------------------------------------------------------
Vietnam claims as internal or inland waters the seas landward side
of the baseline. \22\ Additionally, bays such as Da Nang Harbor are
considered part of inland waters and under international law are the
sovereign territory of the nation. \23\
---------------------------------------------------------------------------
\22\ United States Department of State Bureau of Intelligence and
Research, Limits in the Seas No. 99 Straight Baselines: Vietnam,
(1983).
\23\ Convention on the Territorial Sea and Contiguous Zone, [1958]
15 U.S.T. 1607, T.I.A.S. No. 5639.
---------------------------------------------------------------------------
The Secretary has recognized the presumption of exposure for those
who served onboard ships who were in ``inland'' waters. The VA
definition only includes inland rivers and does not cover the bays and
harbors. Recently the Court of Appeals for Veterans Claims has rejected
the VA's exclusion of Da Nang Harbor from the definition of inland
waters as irrational and not entitled to deference \24\ in this case,
the Court reviewed the case of a veteran whose ship was anchored in Da
Nang Harbor but who did not set foot on land. As shown in Exhibit 4, Da
Nang Harbor is surrounded on three sides by land and is considered
inland waters under international law. The court required the VA to
rationally specify what they consider to be inland waters. Instead in
February of 2016 they doubled down on the exclusion without
explanation. Military- Veterans Advocacy filed suit under the
Administrative Procedures Act and 38 U.S.C. Sec. 502 to invalidate
that regulation. Briefing is complete and the parties are scheduled for
oral argument on May 5, 2017.
---------------------------------------------------------------------------
\24\ Gray v. McDonald, No. 13 3339, 2015 WL 1843053, (Vet. App.
Apr. 23, 2015).
---------------------------------------------------------------------------
Attempt to Search for Dioxin Residue on Inactive Ships
The staff of this sub-committee has sought to have the Navy
investigate and test for the dioxin on ships that formerly served in
Vietnamese waters. In May of 2016, Military-Veterans Advocacy contacted
former Chairman Miller to discuss this matter. A follow up meeting in
September of 2016 discussed the futility of this attempt.
There is very little likelihood that any residue is present aboard
any inactive ship. This is very different from the C-123 aircraft that
were stored in the dry heat environment of the Arizona desert. Ships
remain in the water which is very susceptible to temperature changes.
These temperature changes cause condensation inside of the hull,
especially in the engineering spaces which are located below the
waterline. The humidity caused by this environment will have a
completely different effect than the dry arid environment had on the
tanks in the C-123.
More importantly, the water distribution system, steam system and
auxiliaries would have been continuously flushed after leaving
Vietnamese waters. Ships continued to distill water for months, years
and sometimes decades before they were decommissioned. The constant
flow of water would have eventually removed the dioxin. Additionally,
the internals of the distillation plant were removed on an annual basis
for descaling and in later years sand blasting. The internal shell of
the evaporator distillation equipment would be hand scraped to remove
the scale that accumulated during operations. Boiler tubes were
mechanically cleaned every 1800 hours of operation and in later years
were water jetted with several thousand pounds of pressure. This was
critical to maintaining purity and efficiency as the scale affected
heat transfer. In boilers, the scale buildup could lead to catastrophe
boiler tube failure.
These ships were on a five-year overhaul cycle. The water
distribution piping was located in the bilges and often suffered
corrosion damage due to immersion in water, including salt water. It
was normally inspected and if necessary replaced during the overhaul
cycle. Distillation pumps were inspected quarterly and often
refurbished on an annual basis. The water tanks were drained and
cleaned to remove moisture. The tanks were inspected and if necessary
the interiors were repainted. Most major equipment would be refurbished
during that overhaul.
Even more important, the Committee staff has not been able to
assure Military-Veterans Advocacy that the ships under consideration,
three aircraft carriers, even served in the territorial seas. If they
did not, the relevance of this test is below any threshold of reason.
Nor were these ships inactivated immediately after return. They appear
to have had subsequent operations and deployments prior to
decommissioning.
A better study would be to take bottom sediment samples in the
various Vietnamese harbors and in the territorial seas out to the 30-
fathom curve. That would of course require diplomatic clearances and it
might spur a request for significant reparations from the Vietnamese
government. It would also call into question the safety of Vietnamese
seafood imported into the United States. Unlike the ship test, the
bottom sediment examination would reveal tangible proof of the presence
of dioxin.
The ship test is an attempt to prove a negative. As a naval
engineer with a mechanical engineering subspecialty, I can confirm that
under these circumstances no residue will be found. This is an exercise
in futility and a waste of governmental resources. It will have a
predictable negative result which could be used by the VA or other
opponents of this bill as a basis to question the proven science.
Cost of HR 299
In October of 2012, the Congressional Budget Office provided a
preliminary estimate that the Blue Water Navy Vietnam Veterans Act
would cost $2.74 billion over ten years. After meeting with Military-
Veterans Advocacy, CBO re-scored the bill at $1.104 billion over ten
years. (See preliminary score attached as Exhibit 5). Military-Veterans
Advocacy estimates that approximately 90,000 veterans would be affected
by this bill.
Due to several unknowns, the CBO really cannot accurately score
this bill and their estimate appears to be significantly higher than
the actual cost. As a threshold matter, additional ships have been
confirmed to have entered the Vietnamese river system. Once a ship's
position in a river has been substantiated, everyone onboard on that
date is covered by the presumption of exposure. MVA estimates another
10% of the crews actually set foot in Vietnam. This includes crew
members who went ashore for conferences, to pick up supplies, equipment
or mail and those who piloted and crewed the boats and/or the
helicopters that operated between the ships and shore. Additionally,
some personnel went ashore to see the doctor, the dentist, the chaplain
or the lawyer. They called home. They shopped at the PX and departed on
emergency leave or permanent change of station orders. Additionally,
men reporting to the ship would often transit though Vietnam. Finally,
a number of ships that were at anchorage would send a portion of the
crew ashore for beach parties or liberty. All of those veterans are
covered under existing law if they can prove that they actually set
foot in Vietnam.
Some Blue Water Navy veterans, especially those who served for 20-
30 years, manifested symptoms while on active duty. They are
automatically service-connected for those diseases and should not be
considered in computing the cost of the bill.
There will be a dollar for dollar offset for Navy veterans
currently receiving a non-service connected pension. Additionally,
under concurrent receipt laws, some veterans who are also military
retirees will have a dollar for dollar offset due to waiver of their
Title 10 pension (less federal tax liability).
Additionally, the CBO preliminary estimate shows a slow up-ramp in
dollars after the third year. Due to the accelerated death rate among
Agent Orange victims, the number of veterans covered will be decreasing
at a rate that outstrips inflation. While some money will have to be
paid to survivors under the Dependent's Indemnity Compensation program,
that is a mere 40% of the veteran's benefit.
Additionally, as most Blue Water Navy veterans are in their 60's
they are Medicare eligible or will become Medicare eligible during the
ten-year cost cycle. In a previous report, the CBO has compared the
cost of Medicare treatment with treatment at a VA facility. \25\ One of
the key findings of this report was that private sector Medicare
services would have cost about 21 percent more than services at a VA
facility. When dealing with retirees, the cost would be greater since
Medicare only provides coverage for 80% of the cost. Tricare for Life
provides an additional 20% coverage for military retirees. Notably this
estimate was issued prior to the Choice program so the savings may be
less dramatic. Additionally, CBO admits that they made their decision
based on old data because the VA failed to provide updated information.
Still some savings in discretionary spending should be realized if HR
299 is adopted.
---------------------------------------------------------------------------
\25\ Congressional Budget Office, Comparing the Costs of the
Veterans' Health Care System With Private-Sector Costs (December 2014)
---------------------------------------------------------------------------
While HR 299 will require an expenditure of funds, many of the
costs will be recoverable. The Blue Water Navy Vietnam Veteran
Association analysis indicates a probable ten-year cost of $800
million. MVA concurs with that estimate.
It is possible that the cost picture will change dramatically. I
have a meeting with Secretary Shulkin on April 21 concerning a
rulemaking request to include both Da Nang and Nha Trang harbors. We
also have our pending court case concerning the exclusion of all bays
and harbors. If Secretary Shulkin grants our request or the court finds
in our favor, tens of thousands of additional veterans would be covered
under existing law. That will require the score to be revised downward.
MVA estimates a ten-year cost of between $100 and $150 million if all
of the bays and harbors are covered.
MVA has proposed offsets in the past. We identified excessive
mandatory spending in the VA Home loan program during the 113ttth
Congress. Unfortunately, that money was used to partially fund the
Veterans Access, Choice and Accountability Act. In the 114th Congress,
MVA proposed the use of ``round downs'' to fund the bill. Our
information was that ``round downs'' would generate $1.8 billion over
ten years. Senator Sanders refused to go along with the ``round
downs.'' Then we worked with the sponsors and the Senate Judiciary
Committee to propose an increase in student visa fees. Senator Leahy
chose to put the interests of foreign students ahead of veterans and
withheld his consent.
We believe offsets are a Congressional responsibility rather than a
proponent's responsibility, but we have tried to do our part to work
within the rules. We are at a loss to find an offset acceptable to all
100 Senators. While a favorable decision from Secretary Shulkin or the
federal court will reduce the problem, the requirement to produce an
offset for mandatory benefits, earned as a result of wartime service,
should be exempt from the offset requirements of the Pay As You Go Act
of 2010 (PAYGO).
The Blue Water Navy is not alone in being sacrificed on the altar
of PAYGO. Other Agent Orange exposures have taken place in Guam,
Thailand, Laos, Cambodia, Korea, Panama, Okinawa and other areas.
Additionally, other toxic exposures have been identified including
PCBs, mustard gas, asbestos, radiation, burn pits, Fort McClellan,
depleted uranium and others have been negatively affected the health of
veterans who were exposed while on active duty. Military-Veterans
Advocacy estimates that the cost of benefits for all toxic exposures
would be $20-25 billion over ten years. On May 20, 2017, victims of
toxic exposure will gather on the National Mall to call attention to
their plight in ``Operation Stand Together.'' We hope that the Sub-
Committee will send a representative.
In today's budgetary world, Congress must decide whether they are
willing to pay for service connected toxic exposure. One of the reasons
why service connected benefits are necessary is that military personnel
are not allowed to sue the government or its contractors for injuries
caused by negligence that are incident to service. \26\ One of the
basis for the adoption of this policy, known as the Feres doctrine, was
the promise of generous disability benefits available to veterans for
their service connected illnesses and disability. A failure to address
these toxic exposures may result in a request for a judicial
reconsideration of the Feres doctrine.
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\26\ Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed.
(1950).
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President Trump has stated repeatedly that he wants to address the
needs of the veterans community. In order to achieve this praiseworthy
goal, a funding source must be identified. Congress has been stymied in
adopting piecemeal approaches to offsets. In the case of the VA, there
are no significant mandatory spending funds available without cutting
benefits. Military- Veterans Advocacy proposes the establishment of a
$10.00 annual ``Freedom Fee'' for all personal and cooperate tax
returns except for those tax exempt entities organized under Sec. 501
(c)(3) of the Internal Revenue Code. This should generate $2.5 billion
per year for ten years. The fund must be dedicated to fund benefits for
veterans exposed to toxic substances and to conduct research into the
effect of those exposures. We recommend that the diversion of any funds
raised by the ``Freedom Fee'' be prohibited absent a Presidential
finding of necessity and the 2/3 vote of both Houses of Congress.
Partial Coverage
Military-Veterans Advocacy is aware of some movement to provide
partial relief. The suggestion often heard is to provide medical care
but not compensation. While we understand that there may be a need for
segmented coverage we recommend a different approach. Providing medical
coverage only would cost $217 million of discretionary spending. It
will not address the mandatory spending. While this would certainly
provide some minor relief, it would be somewhat illusionary. Most of
our Blue Water Navy veterans are Medicare eligible. While it is true
Medicare only covers 80% of the costs, many veterans have supplemental
plans.
Additionally, as stated earlier, CBO has also estimated a higher
cost for Medicare reimbursement than treatment at the VA hospitals.
Perhaps more important, many of our veterans are below the income
threshold for nonservice connected treatment. They are receiving the
treatment already, albeit at a lower priority.
More importantly, the Blue Water Navy veterans have been treated as
second class veterans for the past fifteen years. While any assistance
is appreciated, Military-Veterans Advocacy urges the Congress to
recognize these veterans as deserving the same level of respect as
their ground force and brown water brothers and sisters.
Although Military-Veterans Advocacy does not support the concept of
partial coverage, if financial constraints require such a segmented
approach, we recommend it be done on a geographical basis. Nha Trang
Harbor should be the first area covered since we know that toxic levels
of Agent Orange were present there 20 years after the war ended. The
next priority would be ships anchored in harbors when a water barge
using contaminated water can be confirmed to have come alongside. The
third priority should be the remainder of ships anchored in Da Nang
Harbor because of the dumping by the C-123s as they approached the
airfield and the numerous canals and ditches that ran from the airport
into the harbor. The fourth priority should be the remaining bays and
harbors. The next priority should be the remainder of the territorial
seas.
Any decision on partial coverage should be held in abeyance until
such time as Secretary Shulkin acts on our rulemaking request and the
court has ruled on our pending court action. Either or both of these
activities could significantly affect the scope of the coverage and its
associated cost.
Common VA Misrepresentations
The VA has consistently opposed the expansion of the presumption of
exposure. Whether it is a reluctance to admit an error or other
bureaucratic arrogance is unknown, but they have invariably
misrepresented the facts surrounding this issue. They have even come
before Congress and fabricated their testimony. As a result, tens of
thousands of veterans have died without the compensation and care that
they have earned. Additionally, the spouses of veterans were forced to
leave the work force early to nurse sick husbands suffering from the
ravages of Agent Orange. Many of these survivors have been left
destitute. Since it may not be possible to address all of the VA
disingenuous confabulations, I have repeated some of their most common
fallacies.
Some common misrepresentations are as follows:
Misrepresentation: The Australian distillation study was never peer
reviewed.
MVA Comment: The report was presented for review at the 21st
International Symposium on Halogenated Environmental Organic Pollutants
and POPs and is published in the associated peer reviewed conference
proceedings: Muller, J.F., Gaus, C., Bundred, K., Alberts, V., Moore,
M.R., Horsley, K., 2001. It was also reviewed and confirmed by two
separate committees of the IOM. Its findings were accepted by the
Australian government.
Misrepresentation: There is no evidence that the evaporation
distillation process used by the Australians was the same as used on
United States ships.
MVA Comment: All steam ships used a similar system which remained
in place until the 1990's. In addition, many of the Australian gun
ships were the United States Charles F. Adams class and were built in
the United States. Both the MVA Executive Director and another
experienced Navy Chief Engineer have reviewed the Australian report.
They concluded the distillation systems therein were the same as used
by U.S. ships.
Misrepresentation: There is no evidence that Navy ships distilled
potable water.
MVA Comment: Ships carried a reserve of potable water but it was
normally replenished by distillation daily or every other day. A
Destroyer sized ship carried less than 20,000 gallons for a crew size
between 275 and 300 men. The water was used for cooking, cleaning,
laundry, showering and drinking. As Vietnam is in the tropics,
significant hydration was necessary. In addition, the warmer sea
injection temperature below the 17th parallel resulted in less
efficient water production. Water hours, where showers were limited or
banned, was common during tropical deployments. Water was constantly
being distilled to meet the requirements for boiler feed water and
potable water.
Misrepresentation: The Australian study monitored the reverse
osmosis system rather than the evaporation distillation system used on
U. S. ships.
MVA Comment: The only time that the reverse osmosis system was used
in the Australian study was to purify the baseline sample prior to
adding the solids and sediments consistent with the estuarine waters of
Vietnam. The actual distillation process, as confirmed above, was the
same distillation system used by U. S. Ships.
Misrepresentation: The IOM found more pathways of Agent Orange
exposure for land based veterans than those at sea.
MVA Comment: Technically this is true but irrelevant. The IOM noted
that discharges from rivers and steams was a pathway unique to the Blue
Water Navy and that it was one of the plausible pathways of exposure.
The number of possible pathways is not determinative. What is
conclusive is that pathways of exposure existed.
Misrepresentation: The IOM could not quantify any Agent Orange in
the water.
MVA Comment: This again is a red herring. Any amount of exposure
can do damage to the human body. The IOM also found that the
evaporation distillation process enriched the dioxin by a factor of
ten. This is consistent with Australian studies showing a higher cancer
incidence among Navy veterans and a Center for Disease Control study
showing a higher incidence of Non-Hodgkin's Lymphoma among Navy
veterans. Additionally, measurements of the dioxin found in Nha Trang
Harbor have been repeatedly provided to the VA The VA has ignored this
evidence.
Misrepresentation: Ships operating hundreds of miles off shore who
were not exposed will be given the presumption of exposure.
MVA Comment: Not true. This bill applies only to the territorial
seas which at their widest point off the Mekong extends out to 90
nautical miles from the mainland. In the central and northern part of
the Republic of Vietnam, the territorial seas would only extend 20-30
nautical miles from the mainland.
Misrepresentation: Submarines would come into the area to obtain
the Vietnam Service Medal for their crews and would be eligible for the
presumption.
MVA Comment: One ballistic missile submarine the USS Tecumseh, SSBN
628 did enter the VSM area for that purpose but there is no indication
that they entered the territorial seas. Submarines operating off of
Haiphong or near Hainan Island would not have been within the
territorial seas and are not covered by H.R. 299.
Misrepresentation: No Agent Orange was sprayed over water.
MVA Comment: Not true. MVA is in possession of statements from
witnesses that ships anchored in Da Nang Harbor were inadvertently
sprayed as the ``Ranch Hand'' planes made their approach to the
airfield. Additionally, there are anecdotal reports of defective spray
nozzles resulting in spray over the ships at anchor or operating in the
South China Sea. Finally, the IOM recognized that the offsetting winds
would blow some spray intended for the landmass over water.
Misrepresentation: Navy regulations prevented ships from distilling
water within ten miles of land.
MVA Comment: This statement was taken out of context from a
preventive medicine manual and was not a firm requirement. Ships were
encouraged to not distill potable water near land because of the
possibility of bacteriological contamination. Commanding Officers could
allow potable water to be distilled close to land and often delegated
that authority to the Chief Engineer. The IOM noted that the
recommendation contained in the manual was widely ignored. More
importantly, the recommendations in the manual did not apply to the
distillation of feed water for use in the boilers. Since the same
equipment was used for potable water, distillation to feed water would
contaminate the entire system down to the final discharge manifold.
Additionally, feed water used in auxiliary systems was discharged to
the bilges via low pressure drains. Crew members would also be exposed
to Agent Orange residue while cleaning and inspecting the watersides of
boilers and the steam sides of condensers as well as other equipment.
Additionally, when potable water was not distilled, water barges
were used to furnish contaminated water to anchored ships.
Misrepresentation: The IOM confirmed that there was no likelihood
of exposure to herbicides in Da Nang Harbor.
MVA Comment: The court in Gray v. McDonald, took the VA to task for
this statement noting that this was not the conclusion of the IOM.
Misrepresentation: There is no evidence that the dioxin entered the
bays, harbors and territorial seas.
MVA Comment: This is simply not true. Toxic levels were found in
Nha Trang Harbor. Additionally, numerous drainage ditches and canals
ran from the Da Nang airfield, where the planes were washed down and
the spray tanks washed out, to the river and harbor.
There are also anecdotal stories of the C-123s dumping excess spray
as they approached the air field. That flight path often came over the
harbor. Given the offsetting winds, it is probable that some portion of
the spray was blown out to the harbor and the seas beyond.
Conclusion concerning HR 299
MVA urges the adoption of HR 299. It will restore the earned
benefits to tens of thousands of Navy veterans that were taken from
them over a decade ago. This bill is supported by virtually all
veterans organizations including the American Legion, The Military
Coalition, Veterans of Foreign Wars, Vietnam Veterans of America,
Reserve Officers Association, Fleet Reserve Association, Military
Officers Association of America, Association of the U.S. Navy and other
groups. Enactment of this legislation is overdue and Military-Veterans
Advocacy most strongly supports its passage.
H.R. 105
While Military-Veterans Advocacy supports the concept, that
veterans should be reimbursed for financial fraud on the part of a
fiduciary, we do not believe HR 105 is the proper avenue. This bill
would effectively make the Department an insurer for the fiduciaries.
While the pertinent statute does call for recoupment, such an effort
may be ineffective and result in an unnecessary burden on the
Secretary. Collection will require the allocation of money and the
expenditure of significant employee time to collect what may be a small
debt.
A better approach is to require the fiduciary to obtain a bond in
the amount of benefits to be awarded annually. The Secretary can
promulgate a listing of approved bond companies and update that listing
periodically. The Secretary can also pay the cost of the bond from the
fee claimed by each fiduciary. This bond should also apply to cases
where the Secretary was negligent in investigating allegations of
fraud. The application of the bond to the latter situation will recover
money that would otherwise be expended pursuant to 38 U.S.C. Sec.
6107.
H.R. 1328
Military-Veterans Advocacy supports H.R. 1328. This bill will allow
an automatic increase in COLA based on the Social Security Act.
Enactment of this bill will streamline the process and eliminate the
need for a separate bill each year.
H.R. 1329
Military-Veterans Advocacy concurs with the cost of living
increase.
H.R. 1390
Military-Veterans Advocacy supports this bill. The cost is minimal
and is outweighed by assuming the financial burden that would otherwise
be placed on the veteran's survivors.
H.R. 1564
Military-Veterans Advocacy supports this bill.
Quicker Veterans Benefits Delivery Act of 2017
Military-Veterans Advocacy supports this bill. This bill makes good
sense. There is no need to duplicate the efforts of qualified medical
professionals. In many cases, the VA doctors performing Compensation
and Pension examinations are not board certified in the pertinent
specialty. The evidence of qualified non-VA doctors should be accepted
into evidence. There is no need to duplicate the evidence.
Thank you for allowing Military-Veterans Advocacy to testify on
this matter.
John B. Wells
Commander, USN (Retired)
Executive Director
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