Apr112013
Hearing Transcript on Legislative Hearing on H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R. 5549, and Draft Legislation.
|
LEGISLATIVE HEARING ON H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R. 5549, AND DRAFT LEGISLATION
HEARING BEFORE THE SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS OF THE COMMITTEE ON VETERANS' AFFAIRS U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION JULY 1, 2010 SERIAL No. 111-89 Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE For sale by the Superintendent of Documents, U.S. Government Printing Office
|
|
|
|||||
|
|
CORRINE BROWN, Florida |
STEVE BUYER, Indiana, Ranking |
|
||
|
|
|||||
|
|
Malcom A. Shorter, Staff Director SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
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
July 1, 2010
Legislative Hearing on H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R. 5549, and Draft Legislation
OPENING STATEMENTS
Chairman John J. Hall
Prepared statement of Chairman Hall
Hon. Doug Lamborn, Ranking Republican Member, prepared statement of
WITNESSES
U.S. Department of Veterans Affairs, Thomas J. Pamperin, Associate Deputy Under Secretary for Policy and Program Management, Veterans Benefits Administration
Prepared statement of Mr. Pamperin
Adler, Hon. John H., a Representative in Congress from the State of New Jersey
Prepared statement of Congressman Adler
American Legion, Barry A. Searle, Director, Veterans Affairs and Rehabilitation Commission
Prepared statement of Mr. Searle
Disabled American Veterans, John L. Wilson, Assistant National Legislative Director
Prepared statement of Mr. Wilson
Donnelly, Hon. Joe, a Representative in Congress from the State of Indiana
Prepared statement of Congressman Donnelly
Hastings, Hon. Alcee L., a Representative in Congress from the State of Florida
Prepared statement of Congressman Hastings
Walz, Hon. Timothy J., a Representative in Congress from the State of Minnesota
Prepared statement of Congressman Walz
Veterans of Foreign Wars of the United States, Eric A. Hilleman, Director, National Legislative Service
Prepared statement of Mr. Hilleman
Vietnam Veterans of America, Richard F. Weidman, Executive Director for Policy and Government Affairs
Prepared statement of Mr. Weidman
SUBMISSIONS FOR THE RECORD
Association of the United States Navy, Captain Ike Puzon, USN (Ret.), Director of Governmental Affairs-Legislation, statement
Enlisted Association of the National Guard of the United States, Master Sergeant Michael P. Cline, USA (Ret.), Executive Director, statement
Military Officers Association of America
National Guard Association of the United States, Peter J. Duffy, Deputy Director Legislation, statement
Reserve Officers Association of the United States and Reserve Enlisted Association, joint statement
The Retired Enlisted Association, Master Sergeant Larry D. Madison, USAF (Ret.), Legislative Director, Washington Office
MATERIAL SUBMITTED FOR THE RECORD
Post-Hearing Questions and Responses for the Record:
LEGISLATIVE HEARING ON H.R. 3407, H.R. 3787, H.R. 4541, H.R. 5064, H.R. 5549, AND DRAFT LEGISLATION
Thursday, July 1, 2010
U. S. House of Representatives,
Subcommittee on Disability Assistance and Memorial Affairs,
Committee on Veterans' Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:00 a.m., in Room 334, Cannon House Office Building, Hon. John J. Hall [Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Donnelly, and Lamborn.
OPENING STATEMENT OF CHAIRMAN HALL
Mr. HALL. Good morning, ladies and gentlemen, would you please rise and join me for the pledge of allegiance.
[Pledge of Allegiance.]
Mr. HALL. Thank you.
The purpose of today's hearing will be to explore the policy implications of five bills and one draft measure, H.R. 3407, H.R. 3787, and related draft legislation H.R. 4541, H.R. 5064, and H.R. 5549 that were recently referred to the House Committee on Veterans' Affairs Disability Assistance and Memorial Affairs Subcommittee.
Ranking Member, Mr. Lamborn and I, because we understand there are votes coming shortly, will delay our opening statements until after our first panel has spoken, because these are Members who are the authors and sponsors, prime sponsors of these bills. I know they all have busy days and other meetings to go to.
So with no further ado, if the Committee doesn't mind we will go to the Honorable Timothy Walz of Minnesota.
Mr. Walz, you have 5 minutes, your full statement is already entered for the record.
[The prepared statement of Chairman Hall appears in the Appendix.]
STATEMENTS OF HON. TIMOTHY J. WALZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MINNESOTA; HON. ALCEE L. HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA; HON. JOHN H. ADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY; AND HON. JOE DONNELLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA
STATEMENT OF HON. TIMOTHY J. WALZ
Mr. WALZ. Well thank you, Chairman Hall and Ranking Member Lamborn, Mr. Donnelly, and the staff of this Subcommittee, I personally thank you for the work you do for our veterans, and I understand and truly appreciate how much you are making a difference.
I rise today, and I am here to speak on H.R. 3787, the "Honor America's Guard and Reserve Retiree Act."
I have submitted my full statement for the record, so I will just summarize this.
It may seem like it is a small piece of legislation, but it is an important one that hinges on honor of your National Guard and Reserve soldiers who served in uniform.
What this piece of legislation does is, those who volunteered, wore the uniform, were subject to the uniform code of military justice, learned their jobs, went to training, stood on the ready to serve this Nation, but were never called to long enough periods of Federal active service, they can still be considered veterans. And I think this is really important.
We already give them retired pay, they already have access to TRICARE, they can already be buried in a military—a veteran cemetery, but what it does is, is it gives them the honor of being ready. These are our true minutemen. They are the ones that serve on the ready.
I was speaking briefly with a representative of the Minnesota National Guard, Colonel Eric Ahlness who is here today, and we had devastating tornados in Minnesota 2 weeks ago, and I was out there the following morning, and already throughout the entire night our young National Guard soldiers were on duty where power lines were down helping the injured, removing debris.
Those soldiers can be called up to tornados, to floods, to other things. But they are not considered veterans. So what this piece of legislation does is it honors that service.
The conclusions by the Congressional Research Service (CRS) and the U.S. Department of Veterans Affairs (VA) is this is at no cost to the Federal Government. The benefits are already there, it doesn't change any of those. We have the unending support.
As I always say, we always come to this room backed by those who know best. The Veterans of Foreign Wars (VFW), the Disabled American Veterans (DAV), the organizations that support this, and we think it is clear, I think—my friend Larry Madison is here, he served 31 years in uniform, and now works making sure that we take care of our veterans. Larry has earned the right to be called a veteran, and I hope the rest of you would stand in support of this.
I think it is incredibly important. They have raised their hand, they did what was needed, and now this Nation can honor them and allow us to pay back those respects.
So Chairman Hall, I thank you again for all the work you do. I thank you for considering this piece of legislation and to the staff that made it possible, and I would certainly encourage my colleagues to join me in honoring those Guard retirees for the service they gave us.
And I yield back.
[The prepared statement of Congressman Walz appears in the Appendix.]
Mr. HALL. Thank you, Mr. Walz.
Mr. Hastings? The Honorable Alcee Hastings of Florida, you are recognized for 5 minutes.
STATEMENT OF HON. ALCEE L. HASTINGS
Mr. HASTINGS. Thank you very much, Chairman Hall and Ranking Member Lamborn and other Members, and I wish to echo the sentiments of my colleague and good friend, Mr. Walz, in thanking you, the staff, and all for holding this hearing and for the incredible work that you do on behalf of all of us.
I would ask unanimous consent that my full statement be made in the record, and try to be as brief as Mr. Walz was.
I am here to testify regarding H.R. 4541, the "Veterans Pension Protection Act of 2010."
Before I begin I would like to welcome and recognize the veterans in the room today and express my gratitude for their service to our Nation. Each of you has made a difference in the history of our Nation and in the lives of so many. And I would also like to thank the veterans' organizations for their constant hard work improving veterans' lives and for appearing before the Subcommittee today.
In the spring of 2009, one of my constituents, a Navy veteran with muscular dystrophy, reached out to the district office that I am privileged to serve in desperate need of assistance.
The Department of Veterans Affairs had abruptly canceled his pension and he had fallen below the poverty line. Unable to pay for daily expenses, unable to meet his mortgage payments, Carey Scriber was on the verge of losing his home and joining the ranks of the 100,000 homeless veterans in our Nation.
Mr. Scriber didn't break any law, nor did he commit any crime.
In March of 2008 he was hit by a truck when crossing the street in his wheelchair, along with his service dog.
Mr. Scriber was on his way to the pharmacy. Persons who saw it, and he said, that he went 10 feet into the air, landed head-first into the pavement, and suffered numerous injuries, as well as his service dog was injured and his wheelchair was destroyed.
As a law-abiding citizen, he reported to the Veterans Administration the insurance settlement payment that he received from the driver's insurance ought to cover his medical expenses and other replacement costs of his wheelchair. As a result, the VA cancelled his pension benefits for an entire year.
And I might add, they did that in 2 days after he made the assertion to them regarding his receipt of the insurance settlement.
You know the particulars of how veterans are assessed, and I will skip through that, it is in my full record.
Under the current law, if a veteran is seriously injured in an accident or is the victim of a theft and receives insurance compensation to cover his or her medical expenses, the replacement cost of the stolen items, or for pain and suffering, he or she will likely lose their pension as a result. This means that the law effectively punishes veterans when they suffer from such an accident or theft.
Mr. Scriber reached out to the VA several times asking to have his pension reinstated and pointed to the particulars having to do with his circumstances, and each time they refused to reinstate his pension. This is when I became personally involved. I contacted the West Palm Beach VA Medical Center, wrote several letters to Secretary Shinseki, and I do quarrel with the bureaucracy. I recall very vividly that the first letter that I wrote to him was in August, the second was in October, and the third, that was a scathing letter, was in February, not having heard from the Department.
And I understand that secretaries have an extraordinary amount of work to do, but too often the bureaucracy, not only in Veterans Affairs, but in our country, don't respond to inquiries appropriately. And I am distraught that they can cancel the pensions of unemployed and disabled veterans without further notice.
In my view, the VA has a moral responsibility to care for our veterans and ensure that they live decent lives. After serving our Nation as valiantly as they have, they deserve no less than the very best benefits. No veterans should be unable to pay their medical bills, unable to get the care that they need, or be in a situation where they could lose their home because they had an accident and told somebody that they got the money and then find that they are losing their pension. It is unacceptable and this is why I introduced this legislation.
This is companion legislation. Our friend and colleague in the Senate, Mr. Tester of Montana, introduced this provision last month, we have 45 co-sponsors, and I am fully cognizant, Mr. Chairman and Mr. Lamborn and other Members, of the backlog of claims filed by those who serve in uniform and the fact that it is growing, and I understand these difficulties, but I refuse, as I am sure you will, to let them overtake our veterans' well being.
The VA must ensure that no veterans are left behind like Mr. Scriber was. There is clearly something wrong with the law that allows for the circumstances that I just described to you.
My full record is in the record, Mr. Chairman. I ask that for the support of the Committee, and that concludes my testimony, and I would be pleased to answer any question you may have, and I thank you for the opportunity to appear.
[The prepared statement of Congressman Hastings appears in the Appendix.]
Mr. HALL. Thank you, Mr. Hastings, and thank you for this common sense piece of legislation, and I think all of us are amazed at how slowly the VA moves a lot of the time, but how quickly they moved in in this instance to cancel a pension. It is certainly something that we will look into.
Mr. Adler, the Honorable representative from New Jersey.
STATEMENT OF HON. JOHN H. ADLER
Mr. ADLER. Mr. Chairman, I thank you, I thank the Ranking Member, Mr. Lamborn, I thank the Members of the Subcommittee and the staff for the opportunity to testify on behalf of H.R. 5064, the "Fair Access to Veterans' Benefits Act."
The need for H.R. 5064 came from a Federal Appeals Court ruling in which a Korean War veteran, David Henderson, who suffers from paranoid schizophrenia, was denied benefits because his appeal was filed 15 days late. The deadline that Mr. Henderson missed was one that required filing an appeal within 120 days of the final notice from the Board of Veterans' Appeals (BVA), the highest administrative authority in the claims process.
Mr. Henderson appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), but he filed his appeal 15 days late. He tried, but failed, to get the Court to reconsider, arguing that his service-connected disability caused him to miss the deadline. The Veterans Court rejected his argument and the U.S. Court of Appeals for the Federal Circuit Court agreed, in Henderson v. Shinseki, that the Veterans Court was right to reject a late appeal.
My bill would require the U.S. Court of Appeals for Veterans' Claims to hear appeals by veterans of administrative decisions denying them benefits when circumstances beyond the veterans control render them unable to meet the deadline for filing an appeal.
"Fair Access to Veterans' Benefits Act" would require the U.S Court of Appeals for Veterans Claims to excuse late filings if the veteran demonstrates good cause so that meritorious benefits claims are not denied their day in Court.
This bill also requires the Court of Appeals for Veterans Claims to reinstate untimely appeals already dismissed as a result of the Court's failure to toll the filing period for good cause.
The veterans claims process is extremely difficult to navigate, especially when doing so without the aid of an attorney or while suffering from a mental disability.
While the Court of Appeals for Veterans Claims was intended to be informal and fair, the imposition of rigid deadlines has resulted in the denial of benefits for many veterans.
Oftentimes, the reason these veterans missed the filing deadline was because of the very service-connected disabilities that should entitle them to the benefits they are seeking.
It is my hope that H.R. 5064 will help ensure that no veteran is denied disability benefits simply because they have missed an arbitrary rigid deadline.
I would again like to thank Chairman Hall, Ranking Member Lamborn, and Members of the Subcommittee for allowing me to testify on this important matter.
I, like the others, would be happy to answer any questions you may have.
[The prepared statement of Congressman Adler appears in the Appendix.]
Mr. HALL. Thank you, Mr. Adler.
Now I will recognize the Honorable Joe Donnelly, Congressman from Indiana.
STATEMENT OF HON. JOE DONNELLY
Mr. DONNELLY. Thank you, Mr. Chairman and Ranking Member Lamborn, and I want to thank my colleagues for being here with us today too. Thanks for the opportunity to discuss this bill before the Subcommittee today.
And I want to give my gratitude to the veterans for the service they have given and for all the help the veterans service organizations (VSOs) have given us with these pieces of legislation.
After closely working with the Iraq and Afghanistan Veterans of America (IAVA) and the Disabled American Veterans, H.R. 5549, "The Rating and Processing Individuals' Disability Claims Act," or the "RAPID Claims Act," was introduced by myself, along with Chairman Hall. The goal of the "RAPID Claims Act" is to improve the disability claims process for our Nation's veterans, something we all agree is necessary.
In 2008, Congress passed the Veterans' Benefits Improvement Act, and included in the bill was the Fully Developed Claim, or the FDC pilot program. This allows veterans to Fully Developed Claims, and they can waive the lengthy development period and receive expedited consideration.
FDC was originally a 1-year pilot program conducted at ten VA Regional Offices (ROs). Due to its significant success, VA recently announced that it is going to implement the program nationwide.
I support this decision to roll out the program nationwide; however, I would like to see FDC become law with a couple of small improvements.
The "RAPID Claims Act" would codify FDC while also modifying it to protect a veteran's effective date for disability compensation and ensuring the veteran who mistakenly files an unsubstantially complete claim in FDC is given fair notice what further evidence might be needed to complete the claim.
When participating in the normal claims process, a veteran can submit a claim at any time, marking the claim's effective date, and the veteran still has up to a year to gather evidence. However, a veteran seeking to participate in FDC may gather evidence independently, preventing an establishment of an effective date for that veteran's disability compensation. This evidence period can take months or up to a year, costing a veteran hundreds or even thousands of dollars in missed benefits.
The "RAPID Claims Act" allows a veteran gathering evidence for a Fully Developed Claim to mark an effective date for his or her compensation by notifying VA that a Fully Developed Claim is forthcoming. Marking this effective date would help ensure that the vet's compensation is made retroactive to an appropriate date.
Additionally, some vets will submit claims through FDC that VA will decide do not qualify for the program for a number of reasons, including missing evidence. If VA determines that a claim submitted through FDC is ineligible, I am concerned that the Veterans Administration may not immediately notify the veteran of what else is needed to substantiate his or her claim. If VA processes the claim before notifying the veteran, this could lead to incomplete and unsatisfactory results.
The "RAPID Claims Act" would modify FDC to require VA to notify and assist the veteran to help substantiate such claims.
Finally, the "RAPID Claims Act" also has a provision targeted at the appeals process. This bill would require that the VA appeals form is included with the Notice of Decision letter, instead of waiting for a veteran to exercise his or her appeal rights before sending the form to the veteran. This is a simple courtesy the VA could extend to our Nation's veterans.
Once again, thank you Chairman Hall, Ranking Member Lamborn, and all of my colleagues for the opportunity today to highlight what I think are simple solutions to help improve the disability claims process for our veterans.
We have worked hard to achieve much on behalf of our veterans in recent years, and there is also further steps that we can continue to take to help them even more. They certainly deserve our very best.
Thank you, Mr. Chairman.
[The prepared statement of Congressman Donnelly appears in the Appendix.]
Mr. HALL. Thank you, Mr. Donnelly.
We also will be considering when we get to our next panels, another piece of legislation that is sponsored by Mr. Buyer, who is unable to be here to discuss it with us right now.
But before we have the votes called, we will ask a couple of quick questions, if we may. I have one for Mr. Walz.
In your testimony you stated that the sole purpose of this legislation is to grant veteran status to those who have been denied up to this point and to avoid having, in your words, second class veteran status.
Could you elaborate what you mean by this statement? And is it your intention to provide these veterans with any benefits to which they are not already entitled?
Mr. WALZ. No. Thank you, Chairman Hall.
No, there are no added benefits that would be here other than the honor of being called veterans. These are folks that did 20 years, attended their annual trainings, attended their schooling that they needed to that were all under the exact same requirements of active-duty forces, but because they were under—the way it is titled under title 38, section 101(2), the definition of a veteran consists of if they did that certain period of time on Federal service, and many of those veterans did not.
There was a tendency, and some of the folks in this room understand, there was a tendency to fall a day or so under that prescribed amount at one time, so we have a lot of veterans that did that.
And my point on the—I don't think it is asking so much that on a Veterans' Day event that these folk can fully participate being veterans, render a hand salute when the National Anthem is played, and consider themselves amongst their colleagues who serve. They were the true minutemen, they were on the ready.
There is no additional cost, CRS. And we are certainly willing to work with the Subcommittee if anything should come up. The VA itself had said there would be no more additional benefits offered, no cost to the government.
It is just—to me though it is the honorable, the right thing to do to make sure we move these citizens, especially with the current reliance on the National Guard and Reserve, of understanding at any given time any one of these folks could have been and would have honorably served.
Mr. HALL. Thank you, Mr. Walz.
Mr. Hastings, we greatly appreciate your sharing Mr. Scriber's story with us.
What pitfalls, if any, do you think this legislation has that would fail to meet the needs of people such as Mr. Scriber or could cause them any increased burden?
Mr. HASTINGS. Well it is really specific, Mr. Chairman, and addresses accidents, thefts, or casualty loss from being included in the determination of a veteran's income.
If anything, I would think that there may be other kinds of situations that veterans might bring to the attention of VA regarding their impact on their pensions from outside income. I would think if a veteran hit the lottery, that might be an entirely proposition. However, feeling very strongly about it, I don't think that should impact the person's right to receive their pension, and certainly not for accidents.
The overall set of circumstances, if there is to be a pitfall, would likely be that most veterans would not be made aware of a law if we can, as I indicated, Mr. Tester filed it on the Senate side, and if it does become law, then I hope that there is early notice. Because I have a suspicion with the number of claims that veterans can bring about—let us use the Gulf for example right now, the number of veterans that are in the fishing business that may receive some kind of compensation, what are they supposed to do? If they report it and they are already marginal in terms of whether or not they are near the poverty line as it were, then are their pension benefits going to be cut off?
So there is some other things to look at, but ours states a specific within the realm of casualty, theft, and accident.
Mr. HALL. So it is basically reimbursement—
Mr. HASTINGS. Yes, sir.
Mr. HALL [continuing]. For medical expenses or loss due to theft?
Mr. HASTINGS. That is correct.
Mr. HALL. Thank you so much.
Mr. Adler, we understand that the veterans' claims and appeals processes are difficult to navigate and need to have major improvements made to them.
With that said, you mentioned in your testimony that the Court of Appeals for Veterans Claims can reinstate untimely appeals that have already been dismissed based on the Court's failure to toll the filing period for good cause.
Please explain to us how you believe the Court can fairly determine which appeals should rightly be reinstated for good cause versus those that simply miss the deadline for another reason.
In other words, how can we believe that a windfall effect can be avoided adding to the further delays in appeals?
Mr. ADLER. Mr. Chairman, thank you for the question. I don't think it is a windfall effect, it is a question of making sure that people who are truly entitled have access to the right litigation process, right appeals process so they can have their appeals considered.
This case with Mr. Henderson was a guy that was 100-percent disabled because of mental incapacity suffered during his service in the Korean War, 100-percent disability. He wanted to have a bump up from out of home care to in-home care because of his disability. Apparently his mental incapacity rendered him unable to file in a timely way his claim.
I think our courts traditionally have been just, but tempered with mercy, and I think that is all we are asking here is for a veteran who is going to win to have a chance to have that appeal considered. If, in fact, he is not going to win, it will be denied on the merits, but I would hate to have a timing issue block fair consideration of a change in his disability status.
Mr. HALL. Thank you. I think that is something our later panels may help us address. I mean 100-percent disability for a psychological or psychiatric condition, there is no question I think that your proposal is a good one and clear.
The question is, what level, I think the Court will probably need to define when the disability is sufficient to justify delaying the deadline.
Let me just move quickly to Mr. Donnelly for one question and then turn it over to the Ranking Member.
Mr. Donnelly, your testimony highlights the risk that some veterans may submit Fully Developed Claims without providing all necessary evidence.
Can you expand upon the steps that VA would be required to take when informing veterans of insubstantial claims prior to processing it? Are you suggesting that the VA include a checklist?
Mr. DONNELLY. Well, it explicitly requires the VA to notify a vet within 30 days if it determines that this is an incomplete claim, and they would be required to revert back to notification and assistance regulations under the Veterans' Claims Assistance Act (VCAA).
So it is just a continuing way to try to be in front with the vet and be helpful to them.
Mr. HALL. Thank you. Mr. Lamborn?
Mr. LAMBORN. Well, Mr. Chairman, I think each of the people presenting their bills has done a good job of explaining it and these are well considered bills that I intend to support.
So in the interest of saving time as well I am just going to refrain from questions for now. But I thank each of them for appearing and for presenting their bills.
Mr. HALL. You ousted Mr. Walz in brevity, so congratulations. Thank you, Mr. Lamborn.
I have one more question for Mr. Donnelly since there is time before these votes are called, which is I am always the guy that talks longer than anything else, so I am maintaining my consistency.
Mr. Donnelly, pertaining to your legislation, the date that a claim is filed is considered the effective date, and upon its approval the claimant receives benefits retroactively.
The "RAPID Claims Act" that you are proposing would provide, among other things, a way for veterans to signal the intent of filing an FDC, a Fully Developed Claim, while being able to file an informal claim to protect the effective date.
Do you foresee any shortcomings or potential exploitations or confusion to such a system, and would there be a way to avoid them, such as veterans filing meritless claims and then using FDC?
Mr. DONNELLY. I think what this does is drop a marker down. And from what we have seen in other voluntary programs, I think in regards to claims that have been reviewed with findings that 95 percent were exactly what they were supposed to be.
When we give the benefit of the doubt we give the benefit of the doubt to the veteran, and that is what we are doing here, is giving them a chance to put a marker down so that in their diligence and in their work they don't look up and find themselves 60 days further behind.
So I don't see that there will be any abuse in this process.
Mr. HALL. Thank you, Mr. Donnelly.
I would like to thank our first panel, Mr. Walz, Mr. Hastings, Mr. Adler, Mr. Donnelly, for the legislation and the work that you have done bringing these bills forward, and thank you for testifying. You are now excused.
And we would ask the changing of the guard, our second panel to join us, please. Richard Weidman, Executive Director for Policy and Government Affairs of the Vietnam Veterans of America (VVA); John L. Wilson, Assistant National Legislative Director, Disabled American Veterans; Barry A. Searle, the Director of Veterans Affairs and Rehabilitation Commission for the American Legion; and Eric A. Hilleman, Director, National Legislative Service, Veterans of Foreign Wars of the United States.
Gentlemen, thank you so much for joining us. We will try to get through as much of this testimony as we can, and if the bell rings we will have to recess and come back. But we will start with Mr. Weidman, you are recognized for 5 minutes.
STATEMENTS OF RICHARD F. WEIDMAN, EXECUTIVE DIRECTOR FOR POLICY AND GOVERNMENT AFFAIRS, VIETNAM VETERANS OF AMERICA; JOHN L. WILSON, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; BARRY A. SEARLE, DIRECTOR, VETERANS AFFAIRS AND REHABILITATION COMMISSION, AMERICAN LEGION; AND ERIC A. HILLEMAN, DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES
STATEMENT OF RICHARD F. WEIDMAN
Mr. WEIDMAN. Mr. Chairman, thank you very much for the opportunity to present testimony here this morning. I will take them in numerical order.
H.R. 3407, the "Severely Injured Veteran Benefits Improvement Act."
First and foremost from our point of view, there was a good deal of need that was answered by the Caregivers Act which you all passed earlier this year, and that addressed the needs of a single generation.
This Committee historically has always sought to have equity between the generations, and the only problem with the Caregivers Act, was that it ignored the fact that caregivers of Vietnam generation, Korean generation, and World War II generation were not eligible for this kind, and it provide extraordinary service to country over many, many years.
In addition to that all of those older generations of veterans are just that, getting older. And so this increase from our point of view will bring some degree of equity back into the situation for those older care providers.
Do I need to stop, Mr. Chairman?
Mr. HALL. No, that is okay, you can continue your testimony. We have 13 minutes to go,
Mr. WEIDMAN. Actually, I have 3 minutes and 43 seconds.
Mr. HALL. You may finish your statement and we will probably hear one other witness before we recess.
Mr. WEIDMAN. Very good, sir.
Anyway, we are very much in favor of this, and VA's objections to it we find unpersuasive and in the extreme.
Same with—it does something very important, which is recognize that people with severe burns and traumatic brain injury (TBI) need adaptive equipment and access to automobiles, and we thank Mr. Buyer for addressing that as well in this bill and all of co-sponsors from both sides of the aisle.
So we believe that it takes a somewhat different approach than the Caregivers Act, but it is something that is needed and will restore some degree of equity to the situation between the generations.
The "Honor America's Guard and Reserve Retirees Act." When I served on active duty in the U.S. military, there was a dramatic difference between those of us who served on active duty and those who served in the Guard and Reserve, but that was in a long, long time ago in a country very far away called the 1960s, and we are no longer there today.
I believe Congressman Walz is right on the money, is that being subject to being activated at any given time is something that all of the Guard and Reserve are subject to today, and it is materially different than it was at an earlier time.
So we favor the "Honor America's Guard and Reserve Retirees Act."
The "Veterans Pension Protection Act" is just simply good common sense and provides the latitude to make sure that one time payments are not—then don't turn around and exclude people from non-service-connected pension.
Frankly, some of the VA's testimony is a little surprising, and sometimes they wonder why the veterans, community, and others regard them as mean spirited, and it comes across as mean spirited, whether that is the intent or not. That if an individual gets a pain and suffering settlement as a result of being run over by a truck when you are in your wheelchair and then you are going to strip the guy of his pension, we think that is just nuts and is not humane and is not in the best tradition of either the VA or the United States of America.
H.R. 5549, the "Rating and Processing Individuals' Disability Claims Act," or the "RAPID Claims Act." We think it is well thought out, it is simple like most things that will be useful, it conforms to the military axiom of KISS, Keep It Simple Soldier, some use a different "S" for the last word, but any way it works. And we favor passage, it can only help.
H.R. 5064, the "Fair Access To Veterans Benefits Act." Once again it is just common sense. If an individual is not intellectually capable of recognizing that a deadline is hard and fast because of schizophrenia, that first onset of which was in the military, then shame on the Court and shame on the Board for not allowing the individual additional time.
We also would note that VA's attitude when they take sometimes literally years to make basic decisions is la-di-dah, you will just have to wait. But you can't extend it for I believe it was 22 days in a particular incident cited for the individual veteran who is incapable of recognizing the importance of it?
I think that this will provide the latitude that will allow the Court to render more just decisions, and I thank Committee for considering it, and we favor early enactment.
Thank you again, Mr. Chairman. I would be happy to answer any questions.
[The prepared statement of Mr. Weidman appears in the Appendix.]
Mr. HALL. Thank you, sir.
Mr. Wilson?
Mr. WILSON. Mr. Chairman and Members of the Subcommittee, good morning. I am pleased to have this opportunity to appear before you on behalf of Disabled American Veterans to address legislation under consideration today. There are four bills I will address in my oral remarks this morning.
First, H.R. 3407, the "Severely Injured Veterans Benefit Improvement Act of 2009." I will address one of its several provisions, which is the expansion of eligibility for automobile and adaptive equipment grants to disabled veterans and members of the Armed Forces with severe burn injuries.
DAV supports the expansion of this important benefit to those with severe burns.
We also want to raise a related issue of the adequacy of automobile and adaptive equipment grants themselves. Because benefit adjustments have not kept pace with increasing costs of automobiles over the past 53 years, the value of the allowance has been substantially eroded.
Today the current $11,000 automobile allowance represents only 39 percent of the average cost of a larger sedan, which is typically necessary for such veterans.
To restore equity between the cost of a new vehicle and the allowance, based on 80 percent of the average cost, the amount would rise from $11,000 to $22,800.
In accordance with The Independent Budget and DAV Resolution 171, our recommendation is that Congress increase the automobile allowance to 80 percent of the average cost of a new automobile today.
Second, H.R. 5064, the "Fair Access to Veterans Benefits Act of 2010," which would provide for the equitable tolling of the timing of review for appeals of final decisions of the Board of Veterans' Appeals.
Current law does not provide for equitable tolling of the appeal period if a veteran is physically or mentally incapacitated and is thus unable to file, as has been previously indicated. Yet, it is the very disabilities that may significantly impact a veteran's ability to file the appeal paperwork in the first place.
DAV certainly supports this legislation to allow good cause equitable tolling for issues such as physical or mental incapacities.
Third, H.R. 5549, the "RAPID Claims Act," which would expedite those claims certified as fully developed for claimants who waive the development period. If the claimant submits a written notice of their intent to submit a Fully Developed Claim and then does so within 365 days of that notice, the Secretary will accept the then formal claim using the date of the informal claim. That would protect the effective date and save them substantial amounts of time as previously indicated.
In addition, this bill reinstates VA's duty to assist when VA deems a claim is not ready to rate and moves it into the traditional claims process, requiring VA to then notify the claimant accordingly.
DAV was pleased to work with Congressman Donnelly, and add provisions that strengthen protections for veterans, and we support this important legislation.
VA recently rolled out the Fully Developed Claim or FDC program, which as previously indicated, was mandated by Congress under Public Law 110-389, and seeks to expedite claims that are ready to rate. However, VA's FDC program was missing key protections for veterans that H.R. 5549 offers.
VA has since added to the FDC program a provision so veterans can file an informal claim to protect their effective date before submitting the formal FDC application.
We also want to be assured by VA however that when a claim is not ready to rate and, therefore, no longer eligible for the FDC program, that VA will inform the veteran accordingly.
We are pleased that H.R. 5549 directs VA to inform the claimant should their claim be returned to the normal claims process, and we support this legislation as I previously indicated.
Fourth, I would like to clarify my remarks in my written statement regarding the amendment in nature of a substitute offered by Mr. Walz to H.R. 3787. This amendment clearly addresses our concerns, which was the extension of veteran status to individuals who had completed 20 years of military service and reserve status potentially leading to later efforts to extend benefits to these newly defined veterans. This potential for the expansion of benefits could then negatively impact the benefits available to veterans, their dependents, and survivors as currently defined.
Since that amendment excludes access to such benefits, it resolves our concern with the original bill.
Mr. Chairman, we are pleased with the interest that Congress has shown as oversight of the benefits delivery process, we also applaud the Veterans Benefits Administration's (VBA's) openness and outreach to VSOs and incorporation of our suggestions to accept informal claims into the FDA program. However, we remain concerned about their failure to integrate us into their reform efforts or solicit our input at the beginning of the process.
This is a mistake for a number of reasons. VSOs not only bring vast experience and expertise about claims processing, but our local and national service officers hold power of attorney for hundreds of thousands of veterans and their families. In this capacity, we are an integral component of the claims process. We make VBA's job easier by helping veterans prepare and submit better claims, thereby requiring less time and resources for VBA to develop and adjudicate claims. We would like to see ourselves more actively involved in each of these new processes and new pilots as they come on Board.
I would be glad to answer any questions may have, sir.
[The prepared statement of Mr. Wilson appears in the Appendix.]
Mr. HALL. Thank you, Mr. Wilson.
We have a few minutes left in the vote across the street, so at this point we will recess the hearing, and when we come back we will hear from Mr. Searle and Mr. Hilleman.
This meeting is in recess.
[Recess.]
Mr. HALL. The Subcommittee on Disability Assistance and Memorial Affairs will resume our hearing on pieces of legislation, which we have already been discussing. And I apologize for whoever it is that makes the schedules and calls these votes when we have important business to do.
Mr. Barry Searle from the American Legion, you are recognized for 5 minutes.
Mr. SEARLE. Thank you for the opportunity to present the views of the American Legion on several important topics. H.R. 3407. The American Legion is well-known for its advocacy for veterans. We feel that all veterans, but particularly severely injured veterans and those who have received the Purple Heart deserve our utmost respect and have earned the thanks of a grateful Nation.
We who do not on a daily basis contend with injuries both physical and psychological, which were received due to selfless service to this Nation, can never fully repay these severely injured heroes.
H.R. 3407 focuses on increased compensation for disabled veterans and recipients of the Purple Heart. It further adds traumatic brain injury for eligibility for aid and attendance benefits, and severe burn injuries for both veterans and active-duty members for adaptive equipment to automobiles, and extends the provisions of an existing pension for certain hospitalized veterans.
Traumatic Brain Injury, the signature wound of Iraq and Afghanistan, along with severe burns, are a legacy of the tactics being conducted by our enemies in Iraq and Afghanistan. The improvised explosive device (IED) is a weapon of choice for our enemy and is insidious in its utilization and often even more devastating in its long-term effects than gunshots due to the multiple wounds, concussion, and burns it produces.
Terrible scars and the attending loss of appendages and range of motion due to the fires resulting in an IED explosion are a life-long sacrifice our veterans and military personnel must endure as a result of service to the Nation.
The American Legion believes that these warriors have suffered, and will continue to suffer, for their entire life and should not be forced to pay for daily attendance or adaptive equipment necessary to bring some normalcy to their life upon their return.
H.R. 3407 authorizes the VA Secretary to increase monthly special pension for recipients of the Congressional Medal of Honor.
The American Legion feels that these recipients are a special class of veteran. These recipients have given this Nation conspicuous gallantry above and beyond the call of duty.
The American Legion supports H.R. 3407.
H.R. 3787, to amend title 38 U.S. Code to deem certain service and Reserve components as active duty service for purposes of laws administered by the Secretary of Veterans Affairs, and H.R. 4541, the "Veterans Pensions Protection Act of 2010."
The American Legion has no position on either of these legislations.
H.R. 5064, the "Fair Access to Veterans Benefits Act of 2010." This bill impacts the issue of equitable tolling, a principle of tort law stating a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after expiration of the limitations period.
Currently the appellant has 120 days from the date of notice of the final decision of the Board of Veterans' Appeals is mailed to file a notice of appeal to the United States Court of Appeals.
A Supreme Court ruling on an unrelated matter rendered its decision that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement and thus could not be waived.
On 24 July, 2008, the Court of Appeals for Veterans Claims ruled in a two to one decision that this ruling prohibited from using equitable tolling to extend the 120-day appeal period.
The American Legion supports proposed legislation that would allow the CAVC to apply equitable tolling in certain situations, especially in such instances where the veterans service-connected disability hindered the filing of a timely appeal.
The American Legion supports H.R. 5064.
H.R. 5549. H.R. 5549 allows for the waiver of a claim development by VA in those cases where a veteran certifies that he or she has submitted a Fully Developed Claim.
While this measure stands to potentially increase the speed with which a veteran may receive benefits, there are still concerns about this legislation.
The American Legion supports efforts to streamline the claims process and to fast track those claims where additional work is unnecessary. However, it is essential that the veterans ensure and fully understand what is being asked of them when they submit these waivers.
The American Legion believes that there must be further clarification on what mechanism is provided by H.R. 5549 to protect a veteran in situations where a veteran may erroneously believe, and therefore, certify, that all necessary development has been performed on a claim.
It is critical that the veteran be entitled to return to the traditional claims or general population process at any point when it becomes clear that the claim is in fact not fully developed. In this way the rights of the veteran would be protected while allowing more speed in processing.
It is understood that the veteran has a right to file a notice of disagreement with a decision and enter into an appeals process; however, this would delay the claim as it moves through another backlogged system and, therefore, defeat the purpose of the original intent of H.R. 5549, to expedite accurate decisions of original claims.
In short, there are still concerns about the implementation of the measure such as this and how it will affect veterans.
The American Legion would like to see more clarification and assurances of protection for veterans so that they are not put in a situation where they sacrifice their ability to receive thorough review of their claim and in hopes of having it processed more swiftly.
With the previous concerns noted, the American Legion supports H.R. 5549.
As always, the American Legion appreciates the opportunity, and thanks this Subcommittee to testify and present the position of over 2.5 million veterans of this organization and their family.
This concludes my testimony.
[The prepared statement of Mr. Searle appears in the Appendix.]
Mr. HALL. Thank you, Mr. Searle.
Mr. Hilleman?
Mr. HILLEMAN. Thank you, Mr. Chairman, Members of the Subcommittee.
On behalf of the 2.1 million men and women of the Veterans of Foreign Wars and our Auxiliaries I thank you for the opportunity to testify on these bills pending before the Subcommittee.
Due to the time constraints I will limit my remarks to three bills.
Beginning with H.R. 5549, the "Rating and Processing Individuals' Disability Claims Act," or "RAPID Claims Act."
The VFW is heartened by this legislation, which would provide VA a mechanism for identifying and expediting claims that are ready to rate by granting the Secretary the authority to wave the mandatory 60-day development period with written permission of the veteran.
As of June 15th, VA announced a new expedited claims process reminiscent of this legislation.
VA is seeking to advance ready to rate compensation and pension through a fast track process.
The details are yet unclear, but this Committee's continued effort to reduce the backlog through oversight and advancing ideas such as ready to rate, claims have encouraged the VA to adopt this practice.
Under this bill, if a veteran submits a statement which indicates the veteran's intent to submit a Fully Developed Claim, the veteran would have 1 year from the date of submission to provide the Secretary with a Fully Developed Claim and access the expedition treatment of their claim.
If the Secretary determines a claim to be underdeveloped, the VA would notify within 30 days the veteran of more evidence and information is required for their case.
The backlog of veterans claims for disability compensation and pension is approaching 900,000, and over 100,000 new claims are expected to be filed every year for the foreseeable future.
This legislation will create an incentive for veterans and their duly appointed representatives to represent VA with fully developed cases in a timely fashion. In turn, it will reduce the time and energy required of VA to track down external evidence while developing the case.
While this legislation creates an incentive to compile outside evidence quickly and address a veteran's claim, it does not stress the importance of quality rating decisions.
The VFW has always believed quality rating decisions are central to addressing a long-term backlog and instilling confidence in the VA's disability benefits system.
The VFW cannot support this legislation as written due to the absence of the date of preservation in Section 2, paragraph 2, which allows a veteran to submit a statement of intent to submit a Fully Developed Claim.
As worded, we believe the intent of this section was to imply that a veteran could preserve the date of claim and still access the expedited claims process.
We would be happy to fully support this legislation with the inclusion of language preserving this right to the date of claim.
The second bill is H.R. 3407, the "Severely Injured Veterans Benefits Improvement Act of 2009."
We are proud to support this legislation, which would increase the aid and attendance for severely injured veterans, qualify severely burned veterans for adaptive grants, increase pension for housebound veterans, expand aid and attendance to cover veterans with traumatic brain injury, and increase the service pension for Congressional Medal of Honor recipients.
We would like to highlight Section 3, which expands the eligibility for those who have suffered severe burn injuries to qualify for automotive and adaptive grants.
Given the severe burns caused by many improvised explosive devices, veterans are living with scar tissue that decreases the range of motion and limits the use of digits and extremities. Burn injuries in some cases are extreme enough to require special adaptation to simply achieve basic functionality and independent living.
The VFW believes every possible accommodation should be made to restore the highest level of independence to these deserving veterans.
H.R. 3787, the "Honor America's Guard and Reserve Retirees Act."
H.R. 3787 has in mind an extremely important goal, to give men and women who choose to serve our Nation in the Reserve component the recognition their service demands.
The mission of many Guard and Reservists is to facilitate and support the developments of their comrades so that the unit is fully prepared when called upon. Unfortunately, the law does not currently allow those who serve several years and are entitled to retirement pay, TRICARE, and other benefits, to call themselves veterans.
Such men and women have been extremely busy and have made extraordinary sacrifices in support of missions and Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF). That is why we are in full support of this legislation.
Thank you for the opportunity to testify today, and I look forward to your questions.
[The prepared statement of Mr. Hilleman appears in the Appendix.]
Mr. HALL. Thank you, Mr. Hilleman.
First to Mr. Weidman—or is it Weidman, I am sorry.
Mr. WEIDMAN. It is Weidman, sir.
Mr. HALL. Thank you so much. Forgive my memory lapses.
According to your testimony, VVA
Sign Up for Committee Updates
Stay connected with the Committee