May212013
Hearing Transcript on Legislative Hearing on the "Veterans Disability Benefits Claims Modernization Act of 2008".
|
LEGISLATIVE HEARING ON THE "VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008"
HEARING BEFORE THE SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS OF THE COMMITTEE ON VETERANS' AFFAIRS U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION APRIL 10, 2008 SERIAL No. 110-81 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
April 10, 2008
Legislative Hearing on the "Veterans Disability Benefits Claims Modernization Act of 2008"
OPENING STATEMENTS
Chairman John J. Hall
Prepared statement of Chairman Hall
Hon. Doug Lamborn, Ranking Republican Member
Prepared statement of Congressman Lamborn
WITNESSES
U.S. Court of Appeals for Veterans Claims, Hon. William P. Greene, Jr., Chief Judge
Prepared statement of Chief Judge Greene
U.S. Department of Veterans Affairs, Bradley G. Mayes, Director, Compensation and Pension Service, Veterans Benefits Administration
Prepared statement of Mr. Mayes
American Legion, Steve Smithson, Deputy Director, Veterans Affairs and Rehabilitation Commission
Prepared statement of Mr. Smithson
Disabled American Veterans, Kerry Baker, Associate National Legislative Director
Prepared statement of Mr. Baker
National Veterans Legal Services Program, Ronald B. Abrams, Joint Executive Director
Prepared statement of Mr. Abrams
Paralyzed Veterans of America, Carl Blake, National Legislative Director
Prepared statement of Mr. Blake
Veterans of Foreign Wars of the United States, Eric A. Hilleman, Deputy Director, National Legislative Service
Prepared statement of Mr. Hilleman
SUBMISSIONS FOR THE RECORD
American Veterans (AMVETS), Raymond C. Kelley, National Legislative Director, statement
Gold Star Wives of America, Inc., Rose Elizabeth Lee, Chair, Government Relations Committee, statement
National Organization of Veterans' Advocates, Inc., Richard Paul Cohen, Executive Director, statement
Vietnam Veterans of America, Richard Weidman, Executive Director for Policy and Government Affairs, statement
MATERIAL SUBMITTED FOR THE RECORD
Post-Hearing Questions and Responses for the Record:
LEGISLATIVE HEARING ON THE "VETERANS DISABILITY BENEFITS CLAIMS MODERNIZATION ACT OF 2008"
Thursday, April 10, 2008
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 2:05 p.m., in Room 334, Cannon House Office Building, Hon. John Hall [Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Rodriguez, Hare, Lamborn, and Bilirakis.
OPENING STATEMENT OF CHAIRMAN HALL
Mr. HALL. Good afternoon. The Veterans’ Affairs Disability Assistance and Memorial Affairs Subcommittee hearing on the "Veterans Disability Benefits Claims Modernization Act of 2008" will come to order.
I would ask everyone to rise for the Pledge of Allegiance. Flags are located in the front and the rear of the room.
[Pledge of Allegiance.]
Mr. HALL. Thank you. I am proud to be here today and that you have all joined us, and I am honored by your presence and to be joined by Ranking Member Lamborn in a bipartisan effort to present this historic legislation to reform the U.S. Department of Veterans Affairs (VA) Benefits Claims Processing System.
This is in no way a unilateral effort. Several of the contained provisions within this legislation were derived from independent bills offered by Members of this Committee on both sides of the aisle.
I am confident that when it is voted on, it will leave this Committee as a seamless, fluid piece of legislation that will grant the wounded warriors of this great country the service they deserve.
I once read, "Veterans' programs are not perfect. Much remains to be done by way of improvements along forward-looking and constructive lines. The dominant problems are the carryover from past decades of a backward-looking pension philosophy and our failure to adjust the existing veterans' programs to fundamental changes in our society."
I found this quote to be striking as it also captures my observations of the Veterans Benefits Administration (VBA). Yet, unfortunately, those observations were made by Omar Bradley in 1956.
We should have listened to the General then, but it is imperative that we do it now, especially since we have our troops in harm's way around the world.
The Subcommittee has conducted extensive oversight during this Congress and listened to the testimony of disabled veterans and their families and survivors who explained their problems with VA benefits.
Many of their concerns led back to issues with claims processing delays, denials, and avoidable remands. For a moment, I want to reflect on what they said since these are the very people at the heart of this bill.
We have heard from a paralyzed veteran who went a year without compensation because of lost files and poor communication with VA. This put his family in dire financial stress and forced his children to drop out of college.
There were parents who talked to us about suicide and mental health problems and the inability of their beloved child to get VA healthcare. In many cases, service connection is necessary to accessing that care.
Another veteran who suffered a traumatic brain injury and an amputation along with his wife confronted us on how exhausting it is to figure out VA benefits and the gaps that exist because the model is outdated and archaic even for a case that is so obviously clear-cut and simple. It does not account for the loss in their quality of life or for their real-world needs.
These unfortunate occurrences are not just affecting veterans from current wars. They affect veterans of every age and from every conflict.
I heard a story of a World War II veteran at a meeting last week in New York, who had a mortar shell that landed directly in front of his face. We heard this gentleman recalling the medic who attended him at the battlefield and his difficulty in telling the difference between his burns and his beard.
After being taken to a medical facility, he learned that this incident had never been reported by the medic. As a result, this brave soldier who served his Nation in time of dire need had to fight the VA for 51 years before being awarded his benefits due to the requirements of finding witnesses of the event. The burden of proof, while statutorily sound, as interpreted by VA is all too often impossible or extremely difficult for veterans to understand and to complete.
As he stood and told me this story, I watched as he grasped a folder that contained his disability claim and heard him state that he would never let it go in fear that the VA would rescind his claim and take back his money.
For too long, VBA has been allowed to skirt their responsibility to reward our veterans with the same type of selfless, heroic service that veterans themselves gave to our country. However, reciprocity is at hand.
The Veterans Disability Benefits Commission, Dole-Shalala Commission, and many other task forces have made recommendations to improve the system. We have data from the Institute of Medicine, the Center for Naval Analyses, the Institute of Defense Analyses, and several U.S. Government Accountability Offices (GAO), and Inspector General (IG) reports that highlight inconsistencies, variances, disparities, errors numerous areas within the claims processing system in dire need of reform and modernization.
The Veterans Service Organizations (VSO) have shared their ideas and experiences to reform the VBA and have played an integral part in shaping this legislation.
Expert medical, legal, and technological witnesses enlightened us on what is possible in our modern world. VA employees have also worked with us to tackle these problems and there is no doubt that this is a workforce dedicated to assisting disabled veterans.
Unfortunately, VA employees work in a broken, outdated environment. So I am grateful for them and everyone else who has been willing to work with us on developing the improvements this legislation seeks to advance.
With the "Veterans Disability Benefits Claims Modernization Act of 2008," we hope to address the central issues that have led to the enormous and mounting claims backlog, delays in processing, avoidable errors, inconsistencies in ratings, and lack of accountability that amounts to a system of injustice, at least as perceived by many of our veterans.
The provisions of Title I of this bill encapsulate several systemic issues that address evidence problems with post traumatic stress disorder claims (PTSD), as well as requiring the VA to study, report, and implement a plan for readjusting the VA's schedule for rating disabilities so that it includes medically-recognized standards, codes, and practices, and appropriate compensation for the average loss of earnings capacity, quality of life impacts, mental health parity, encouragements for vocational rehabilitation, and creation of an Advisory Committee on Disability Compensation.
Title I would also revamp the VBA work credit and management systems; require certification and training for VBA employees and managers; assess annually quality assurance, expedite fully-developed claims; require a check list provided for evidence necessary to process claims; require a report on employing medical professionals at VBA, assign partial ratings for severely injured veterans while deferring other conditions, enhance information technology that includes a web portal for claims submission and tracking by veterans, that provides rules based, expert systems, and automated decision support; and would allow substitution for veterans who die while claims are pending, allowing qualified loved ones to step into shoes of the veteran and have time to submit and add information.
I would like to thank Ranking Member Lamborn for his contributions to this part of the bill, especially those that would move the VA into the 21st Century in terms of how it handles information rather than the piles of paper with rubber bands and sticky pads on them that we have showcased during previous hearings in our Subcommittee.
Title II of this bill addresses the servicemembers' transition from the U.S. Department of Defense (DoD) to VA, with the creation of a single VA/DoD disability evaluation examination process whereby DoD determines fitness for duty and VA rates the level of severity.
This reduces the duplication for an injured or ill servicemember who must navigate two different systems at a time when they need support and assistance the most.
Title III focuses on matters related to the United States Court of Appeals for Veterans Claims (CAVC). It would establish annual tracking requirements for the Court's workload and gives the Court the authority to affirm, modify, reverse, or vacate, and remand decisions of the Board. The Court must also first decide all assignments of error raised by an appellant for each benefit claimed.
Make no mistake, this is an ambitious landmark piece of legislation which will take a great deal of cooperation and collaboration on multiple fronts. No doubt this will need to be a collective effort that goes well beyond Congress and VA. It will require the support and expertise of the VSOs, DoD, leading experts and professionals, academics, technicians, and other government entities, all of whom bring information and experience to the table.
I know that VA is moving already in the general direction of some of the efforts outlined in this bill and I applaud your efforts in this vein. They are not overlooked.
Also, I do not want to fail to recognize the hard work and dedication of the VA employees throughout the entire VBA, from the Regional Office (RO) to the Central Office. I know that the problems we face today are the result of a culmination of events beyond their control which run the gamut from inadequate funding and poor leadership to a corporate culture that does not foster accountability.
Just as I have heard stories of calamity, I have also heard stories of the care and compassion of VA employees who genuinely care about our veterans and work tirelessly to provide them with every service they can.
But today, time is of the essence and we must stop the incomprehensible cycle of ignoring the lack of accountability for outcomes of claims at the VBA. Outcomes matter, not just process. I repeat, outcomes matter, not just process. And I believe that we need to modernize our Nation's claims processing system to make it accountable and produce better outcomes for our veterans, their families, and survivors.
Ladies and gentlemen, the time has come when we must envision a VA of the future and not leave Omar Bradley's warning unheeded at the expense of another generation of our bravest and finest veterans.
I now yield to Ranking Member Lamborn for his opening statement.
[The statement of Chairman Hall appears in the Appendix.}
OPENING STATEMENT OF HON. DOUG LAMBORN
Mr. LAMBORN. Good afternoon and thank you, Chairman Hall. It is an honor to participate in this important occasion.
The "Veterans Disability Benefit Claims Modernization Act of 2008" still has far to go, but for the first time in a long while, I believe there is a proper alignment of thought and a cooperative effort to make substantial improvements to the veterans benefits claims process.
This bipartisan bill consists of a number of measures that have as their foundation the collective recommendations of Democrats, Republicans, Veterans Service Organizations, and two Blue Ribbon Commissions on Veterans Benefits. That is not to say this bill is flawless at this point in time or that there are not remaining snags to be worked out. Indeed, there are a couple of issues that cause me difficulty and one that I believe is critically flawed.
I will elaborate more on these concerns in a bit, but I want to preface those remarks with the fact that I wholeheartedly agree with the intent behind even those provisions. Still, I am deeply concerned about unintended consequences that they may hold.
Principally, I am troubled over the provision that would have VA concede presumption of a stressor for every person who served in theater of operation that was subject to combat. This could have enormous ramifications for the VA claims system and could potentially even increase the backlog.
At the same time, I am sympathetic to what the provision attempts to accomplish. I believe an agreed-upon solution can be reached and I believe the expertise needed to arrive at such a fix is gathered here in this room today.
My other concerns are less significant, but I remain concerned about what might occur if we codify certain regulations and leave less discretion for VA.
I very much look forward to the testimony of our witnesses, including that of the VA.
I hope that based upon recommendations made here, resolutions can be reached and this bill will acquire the momentum it needs to make the potential historic impact that it holds.
Chairman Hall, I appreciate the favorable rapport that we share on this Subcommittee. And, I eagerly anticipate working with you and your staff during the short time left in this session to make some great progress for veterans.
Thank you, and I yield back.
[The statement of Congressman Lamborn appears in the Appendix.]
Mr. HALL. Thank you, Congressman Lamborn.
I would like to welcome all of our panelists testifying before the Subcommittee today and remind you that your complete written statements have been made a part of the hearing record.
Please limit your remarks to five minutes so that we may have sufficient time to follow-up with questions once everybody has had the opportunity to provide their testimony.
Joining us on our first panel is William P. Greene, the Chief Judge of the U.S. Court of Appeals for Veterans Claims. The Honorable William P. Greene, you are now recognized for five minutes.
STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS
Chief Judge GREENE. Good afternoon, Chairman Hall, Ranking Member Lamborn, Mr. Rodriguez, Mr. Hare. Thank you for the introduction and thank you for inviting me to be here today with you.
I took the liberty to bring with me members of my Legislative Committee, Judge Al Lance and Judge Mary Schoelen, who on a daily basis, are always available to you and your staff to answer questions about the Court.
I am here today to discuss with you the "Veterans Disability Benefits Claims Modernization Act of 2008." I appear today in my capacity as the Chief Administrative Officer of the Court and in the spirit of cooperation between the Legislative Branch and a national court of record.
Almost 20 years ago, the Senate and House Veterans' Affairs Committees of Congress realized the fruits of their labor when President Reagan signed into law the "Veterans Judicial Review Act." That Act established a national court of record, then the United States Court of Veterans Appeals, to provide independent judicial review of adverse decisions by the Department of Veterans Affairs affecting veterans.
Until that time, the VA was the only Federal agency whose decisions were not subject to review by the Judiciary. Since 1988, I believe the decisions and opinions by the Court have had a positive impact on the adjudication of veterans' benefits by unifying and clarifying this new area of the law.
In doing so, the Court has been faithful to the well-established concepts of appellate judicial review for the Federal Judiciary which includes not only the Article 3 courts, but also the Article 1 courts.
Thus, in carrying out the Court's business, we have, as authorized by our enabling statutes, adopted the practices and procedures established under Title 38 of the United States Code and to those laws applicable to courts of the United States. Therefore, for at least the past 18 years, the Court, like all other courts, has maintained statistics concerning the Court's work and has provided that information annually to the public and to Congress.
The proposed legislation appears to codify the Court's practice and seeks two items of information that are not currently provided in the Court's annual report. There is no difficulty whatsoever in acquiring that additional information and surely it could be provided in future annual reports without a need to compel it statutorily as proposed in Section 301.
Concerning Section 302 of the proposed legislation, I also must state that a litigant before the Court of Appeals for Veterans Claims generally may expect the same practices and procedures experienced in all other Federal courts. However, there can be exceptions because the U.S. Court of Appeals for Veterans Claims is a Court with specialized jurisdiction and, therefore, may have special rules applying to that unique jurisdiction.
The part of Section 302, however, that prohibits a government lawyer who appears as an officer of the court from raising a legitimate error that may provide justice to a veteran could create jurisprudential problems that interfere with the Court's ability to perform its expected judicial responsibility.
As stated in my prepared remarks, I leave it to the Secretary of VA and his General Counsel to speak directly to any potential ethical considerations that might arise from such a mandate.
For sure the proposed legislation, if enacted, would add yet another factor to the delay equation that has peaked our collective interests. The Court already experiences thousands of requests to extend time for the appellant briefs and other documents to be presented to the Court.
For the government to obtain written consent from appellants, many of whom are unrepresented, to raise or concede an error, invites the possibility of even more delay. Surely when Congress created the Court, it intended for justice to be done and for disputes to be resolved fairly and wisely.
That part of Section 302 that amends Section 7252(a) by requiring the Court to decide all assignments of error raised by an appellant surely will have the effect of slowing down considerably the Court's ability to resolve cases timely.
Simply stated, a guiding principle of appellate judicial review is that when a Court can resolve a case based on a particular issue, it should do so without reaching unnecessary issues. The judges of the U.S. Court of Appeals for Veterans Claims follow that guidance and attempt to do so in every case. Indeed, if 20 issues are raised that lead you to the same result, why visit each of those 20 ways?
I know there has been much discussion and comment about this circumstance, but I submit that if there is a question of law involved or where a ruling or another issue would indeed have a direct impact on how a proceeding would be conducted upon remand, the judges will endeavor to address those issues. If not, the appellant could seek reconsideration or, if viable, appeal to the Federal Circuit.
And it must not be forgotten that although appellants have great faith in their arguments, as they should, they may not always prevail. When the Court decides that the Board of Veterans Appeals has committed a prejudicial error that affects the fairness of the proceedings, leading to a denial of a benefit the remedy is to vacate or set aside that decision and return it to the Board for corrective action. When that is done, the appellant obtains a readjudication and is also afforded the opportunity to provide more evidence and additional argument to include the ones that are related to the arguments on appeal to the Court. In essence, the matter is done all over.
While some may see this as a hamster wheel effect, the reality is that the veteran still gets a fair chance to pursue his or her benefit. Arguments that are related to the cause of the remand necessarily change their impact once there is to be readjudication. Thus, it simply is not necessary to expend judicial time in addressing a matter that will be overcome by the evolving circumstances in the readjudication.
But if the argument is addressed and the Court rules against the veteran, that ruling is binding in the case and the appellant loses the ability to make that argument during the readjudication unless he appeals that ruling to the U.S. Court of Appeals for the Federal Circuit and wins. Of course, to do that will consume even more time.
In short, my statement outlines my concerns about the negative, and I am sure unintended consequences, of this proposed legislation. Let me simply assure you that the Court is poised to conduct judicial review responsibly and in a manner that will ensure that all appellants not only have their day in court but also will receive a sufficiently fair decision.
Thank you.
[The statement of Chief Judge Greene appears in the Appendix.]
Mr. HALL. Thank you, Judge Greene, and thank you for being here today and sharing your expertise and experience with us.
Could you elaborate on how the Court determined what it would place in its annual workload report and do you have any objections to the additions made to your annual report and categories? That is assuming legislation aside, for instance.
Chief Judge GREENE. Right. As indicated, Chairman Hall, the Court, like other U.S. courts, maintains statistics annually. The Administrative Office of the U.S. Courts has a case management system that we emulate. And as a result, we maintain pretty much the same identifiers that the other Federal courts use for their statistics. We have been using that as indicated in our annual report for the past 18 years.
The two additional items that are requested, I think one deals with numbers of cases that are over 18 months and then a breakdown of the specific types of cases such as single judge decisions, panel decisions, and full court decisions. We had not kept that information, but it is readily available. And as I indicated, that is just a matter of tweaking the annual report that we already provide.
Mr. HALL. Thank you.
You oppose Section 302 of this bill, which essentially requires the Court to decide all allegations of error raised on appeal and mentioned that primarily in the interest of judicial economy, you do not address all the issues raised on brief by the appellant.
However, you concede in your testimony that this is a serious problem for the Court and one which has been raised by many of the Bar who have the privilege to come before you.
As you know, and as it has been raised repeatedly in numerous hearings before this Subcommittee, I read your reasons for opposing Section 302 and wonder, do you think there are any Constitutional or other reasons as to why the CAVC should not be required to decide at least a preliminary opinion on errors or issues raised on the brief?
Chief Judge GREENE. Well, initially I would say that just as a first blush of the statute, we always want to ensure that we maintain separation of powers. You have the Court, you have the legislature, and you have the executive.
And, of course, the courts have specific responsibility in the area of conducting judicial review. The consideration of telling a court to decide all issues when, in fact, the court has the responsibility of deciding exactly what is needed to resolve the case, it just does not seem to serve any legitimate purpose unless it can be articulated well as to why those particular issues need to be decided.
Mr. HALL. Well, let me just take another tack at it then, Judge Greene. I am sure there is much about your job that I cannot possibly know, especially after the brief time I have been here in Congress.
But at the same time, we hear and see a stream of people talking about the hamster wheel that you referred to and the problem of issues being referred or a claim being referred up to the CAVC and sent back down with a request for more information or more substantiation of one issue or one aspect of the claim and when that is provided could provide that it is sent back up again and then it is remanded back down again with another request or another aspect of the ruling.
This process is where the term hamster wheel came about, which did not happen because of one or two cases, you know. So maybe you could suggest to me, is there something that we could or should do?
I understand and support the concept of separation of powers, but we are dealing with a level of frustration that we are hearing from the VSOs, and from veterans themselves, and maybe you would have some suggestions for us.
Chief Judge GREENE. Some fixing may be required where the adjudications are conducted. The Court is tasked with reviewing what has been conducted and then making a determination if it was done legally correct. If it was done legally correct, that would be the end of the matter unless they then appeal to the Federal Circuit.
The hamster wheel effect as it applies to the Court is pretty straightforward. The issue that comes back to the Court is that the claim remains denied. The question is, upon what basis has it been denied the second time because when we remand the case the first time, we have indeed looked at every issue that has been raised by the appellant. The question is, why should we have to decide each issue raised if the appellant has prevailed.
And specifically, if we rule that the matter should be readjudicated and one of the other issues is a matter of facts that have to be later developed again, any decision that we would give on that particular issue would be more advisory than any holding because the facts will change when it goes back down to be considered by the Board or the Regional Office.
Now, the veteran has every right to present every one of those arguments that has been raised to the Court and not addressed to the Board or to the Regional Office when he or she returns to achieve further adjudication of the case. And if they were correct, as we ruled that they were correct in getting a new chance, they should prevail. If they do not prevail, then it is some other reason perhaps that brings them back to us.
This is probably more aggravated by the fact that procedurally there are issues that are raised to the Court that indicate that if they did not receive sufficient notice on how to substantiate their claim, that is a procedural error that is prejudicial to the veteran because now the veteran really is saying I have not had a fair chance to present my case.
If we agree with that veteran, we say you should go back and have your case adjudicated and when you do, bring all the evidence to the attention of VA that you think you should have been able to present had you been given the right notice.
Mr. HALL. Judge Greene, my understanding is that as an Article 1 Court, there is a separation on issue similarly to the Court of Appeals for the Armed Forces; is that correct?
Chief Judge GREENE. Separation of issues?
Mr. HALL. Yes, sir.
Chief Judge GREENE. I am not familiar with that.
Mr. HALL. Separation of powers for an Article 1 Court is different than that from—
Chief Judge GREENE. The concept would have to be the same, Chairman Hall, because really you are still dealing with a Court that the Congress created to provide this particular judicial review.
Mr. HALL. Right.
Chief Judge GREENE. And if there is no specific separation of powers statement, there is certainly an analogy.
Mr. HALL. Right. But it is not a court that comes from the Judiciary Branch, you know, by origin. I am wondering in particular if you are familiar with how the CAAF, the Court of Appeals for the Armed Forces, handles similar issues or do they?
Chief Judge GREENE. Well, first of all, cases coming to the Court of Appeals for the Armed Forces come by petition. So the accused or the person convicted must cite issues that they feel would be worthy of consideration by the Court.
So once the Court reviews those petitions and determines that there are worthy issues to be decided, they will take the case and hear it. Convicted persons, except for certain sentences, do not have an appeal by right like veterans do to our Court.
Mr. HALL. Thank you, Judge Greene.
My time has more than expired and I now yield to our Ranking Member, Congressman Lamborn.
Mr. LAMBORN. Thank you, Mr. Chairman.
Judge, on page 42 of the proposed law, lines 15 to 18, let me read a sentence and tell me if this helps at all. In a case in which the Court reverses a decision on the merits of a particular claim and orders an award of benefits, the Court need not decide any additional assignments of error with respect to that claim.
Now, does that help some in complying—
Chief Judge GREENE. I think the analogy would be the same if the Court finds a basis for remand. It need not address the others that would also give a remand.
Mr. LAMBORN. We have been talking in somewhat abstract terms. Can you give a real-life example where you think that the language would be harmful to the veteran or to the process?
Chief Judge GREENE. Where it would be harmful?
Mr. LAMBORN. Well, not so much harmful but a waste of judicial resources or somehow work to delay or somehow impede the veteran in his claim.
Chief Judge GREENE. You know, I think our end result was basically if we find prejudicial error in a veteran’s case, we set the decision aside so that the veteran can have another chance. So that is very helpful. The question is, how many chances or how many reasons do we have to give for him to have that chance.
You asked for an example. The Veterans Claims Assistance Act requires that an individual be notified by VA of the information and evidence that would be helpful in substantiating his or her claim.
So VA then has to look at the claim and see what kind of claim it is and then say, well, these are the things that you need to show service connection. You need to show that you have a current disability. You need to show that you had an incident in service and you need to have medical evidence that connects the two.
So, the veteran presents evidence, but for some reason, it is denied. He comes to the Court after the Board has also denied it and says, number one, I got bad notice. They did not tell me how to really substantiate my claim. And then he also says they did not assist me in the development of my claim. And then they say, I did not get a chance to give my doctor’s statement to the Regional Office.
So, number one, we look at the notice problem and in the notice problem, we see that the Board reviewed what happened and we determine that the Board said there was good notice, but we disagree with the Board and find that indeed there was a defect in the notice.
Then we make a determination whether or not—well, actually, the Federal Circuit says once we find bad notice, prejudice is presumed and then the Secretary has to demonstrate no prejudice. And if the Secretary does not demonstrate no prejudice, the result is to return the case for VA to do it over again and give him the correct notice and give him a chance to present all the evidence.
So we will rule that way. The government has not demonstrated no prejudice. And so what is left? He did not get assistance from the government. Well, it does not make any sense to go into two more pages of decision writing to talk about assistance when, in fact, assistance is going to start all over again.
And then he says, I did not get a chance to give my doctor’s statement to the Regional Office. Well, it does not make any sense for the Court at that point to go through two or three more pages of the requirements for presenting evidence when, in fact, the individual now will have the chance to give that statement to the Regional Office.
And so simply stated, we were able to decide that case on the narrowest ground without having to go into unnecessary opinion writing on other issues which would not make any further difference in the case.
Mr. LAMBORN. Okay. Thank you for that example.
In a different subject entirely, there is less than a minute left, so I will ask for a brief response from you. You state in your testimony that the largest problem in terms of timeliness of cases before the Court is that parties file extensions of time to file briefs.
How can we in Congress help you with this problem or can we?
Chief Judge GREENE. Well, I am trying to condense it, so it will be brief. But I think the main situation here is that as an Appellate Court, each party has a right to present briefs to the Court in order for us to render the decision.
A lot of these extensions of times are coming from the government because of the magnitude of the size of the caseload. Consequently, we either deny the request for extensions and then throw the government out of Court or deny the request for extension and throw the appellant out of Court. And that, we do not want to do because that does not pursue the justice that we believe the veteran deserves.
We are taking steps within the Court to reduce the time, but the way the system is set up, because we go from a nonadversarial system to an adversarial system and there is really no record of trial, we have to get a record of trial that then forms the basis of the appellate briefs. And, consequently, that consumes 254 days right there. And then when you add on the extensions to that, you do have extensive time involved.
Mr. LAMBORN. Okay. Thank you.
Mr. Chairman, I yield back.
Mr. HALL. The Chair recognizes Mr. Hare.
Mr. HARE. Thank you, Mr. Chairman.
Judge, I just have a couple questions. They do not necessarily really, relate to your testimony, but I am just kind of interested and maybe you could share with me, or maybe if you do not know or could you find out.
What is roughly the amount of decisions that the CAVC overturns that are appealed to you?
Chief Judge GREENE. The number of decisions that are appealed to us?
Mr. HARE. Yes.
Chief Judge GREENE. This past fiscal year, I think it was around 4,600.
Mr. HARE. What is the main reason for the Court to overturn those decisions? Is it incorrect ratings or misinterpretation of veterans’ law?
Chief Judge GREENE. I am sorry. Maybe I misunderstood your question. You asked what were the number of cases appealed to us?
Mr. HARE. Correct.
Chief Judge GREENE. Or how many reversals did we decide?
Mr. HARE. Correct.
Chief Judge GREENE. I do not have that number exactly. But there are very few reversals simply because we do not engage in fact finding.
And in order for us to reverse, we generally will either have to find that, as a matter of law, the Board was so incorrect in the application of that law that had they applied the correct law, another outcome would have resulted in which case, given the same set of facts, there would be a reversal and perhaps an award to the veteran.
Otherwise, we would have to determine if the Board’s fact finding was clearly erroneous. And in that case, we might reverse the specific finding, but then you would have to examine the rest of the record to make a determination if whether on the face of that record there remains sufficient evidence that would otherwise warrant awarding a benefit to the veteran. If it does not, it is a matter of returning it to the fact finder for them to engage in the proper fact finding to reach a conclusion.
Mr. HARE. Okay. Well, and I know I probably even confused even myself with this question, too, so do not feel bad.
Do you know what the main reasons for the Court to overturn decisions are? You know, in other words, is it incorrect ratings? Is it misinterpretation of veterans' law, under-development of the claim? What do you see as the main culprit here?
Chief Judge GREENE. Well, recently, there have been a lot of errors in the notice arena as in the example that I gave you. And the law continues to develop in that area because of our decisions as well as the decisions of the Federal Circuit. But we get all types of benefits decisions before us, so it is kind of hard for me right now to say exactly. I will take a look at that and get some information to you.
Mr. HARE. I would appreciate that.
Chief Judge GREENE. All right.
Mr. HARE. Thank you very much.
Thank you, Mr. Chairman.
Mr. HALL. Thank you, Mr. Hare.
Judge Greene, if I may, could I ask you, understanding your concerns about issues pertaining to the precedential value of the Court’s decisions, do you think that each of the issues raised should be fully considered and ruled on and then, if necessary, indicate that the decision is made without prejudice to the appellant even if a full opinion might not be warranted or necessary? Might the Court, for instance, be able to issue a preliminary opinion that does not have a precedential effect?
And the reason I ask this is once again because we are trying to give the veteran, or the veteran’s representative, the opportunity to understand upon remand what all of the issues that they are going to have to deal with are. And what we are hearing back from them is that because of the policy of not doing that extra work on the other—once you have come across a procedural issue that requires a remand, then it is sent down without the others being commented on.
So the question is, could the Court issue a preliminary opinion on those other issues that is not precedential in effect?
Chief Judge GREENE. We treasure the concept of preserving judicial resources, but I want to certainly correct any misperception that we are doing it just to avoid the work.
Mr. HALL. I never thought so, sir.
Chief Judge GREENE. I know. And, consequently, I think it is very important to understand, too, that we do not have a policy. That is not a policy. The policy is to decide the case fairly and wisely.
And, consequently, I can assure that all of my colleagues and I look at each case and we do, in fact, consider every issue raised by the appellant. And then after we have considered those issues and deliberated over the government’s side and the appellant’s side, we make a determination as to how the case should be disposed of. And if a decision is made to remand the case, then all of that falls into that reasoning.
To give a preliminary finding is to give what we would call in the appellate practice an advisory opinion because it would not have any binding effect upon anybody. Of course, the Board, if we told the Board, well, hey, by the way, you should, in fact, be sure that the veteran gets a chance to give his evidence to the Regional Office, we can do that anyway without necessarily rendering a full dissertation on that. And in most cases, we will.
Please understand that we look at these issues and where there is, we believe, a need to send a signal or send a message to the Board, we will do that and we do do that.
Mr. HALL. Judge, would Administrative Law Judges work better in this role?
Chief Judge GREENE. Administrative Law Judges would work great at the VA level and the Board.
Mr. HALL. And I just want to ask you one more question. It has to do with our proposal regarding the Veterans Claims Assistance Act (VCAA) letters.
There are some who believe that the problems with the VCAA letters stem from numerous court decisions rendered since its inception that add requirements beyond congressional intent and which have resulted in a duty to notify letter that is nearly incomprehensible to veterans.
If VA provided a clear check list to veterans outlining what is needed as evidence to develop, do you think the Court would still be required to render decisions that require more information to be added to the letter to clarify VA’s responsibilities, if you can provide such an opinion?
And the reason I ask is because the VA contends that the Court’s requirements imposed in cases such as Vasquez Flores are overstepping the original Congressional intent and treading into Article I jurisdiction.
I know this may be a stretch for you, but would you please give your general impressions as to whether VA is satisfactorily meeting its duty to notify since the passage of VCAA and if you can, can you conceive of any or comment on what proper VCAA notice might contain?
Chief Judge GREENE. At the outset, just let me say that for eight years, there has been litigation over the “Veterans Claims Assistance Act.” I mean, Congress decided to pass that after there were some rulings about the well-grounded claim concept, but that is another story.
In 2000, I thought the message was clear that all the VA had to do was do a check list and run down and make sure the veteran understood what it was that they had to present. And that is the message that the Court has been trying to convey over the last seven years and the Federal Circuit.
Now, Vasquez Flores is a pending case that I would refrain from commenting on, although I am very curious that you have that given that there is currently pending some litigation on that.
Mr. HALL. Thank you, Judge Greene.
Mr. Lamborn, you have more— Mr. Bilirakis?
Mr. BILIRAKIS. I have no questions at this time.
Mr. HALL. Okay. Since everybody else has no questions, let me just ask you one more. I promise this is the last one.
Could you describe the Court’s interpretation of the Best and Mahl cases and how it believes these cases control its ability to decide all assignments of error based on appeal or raised on appeal?
Chief Judge GREENE. The Best case—
Mr. HALL. The Best case and the Mahl case.
Chief Judge GREENE. The Best case was written simply to highlight and convey the Appellate Court practice of deciding issues presented to the Court on the narrowest ground and that you would look at the case and make a determination as to how best can justice be done in this case.
Mahl extended that to the extent that it also recognized that the Court could entertain multiple issues if they found it necessary. And those guiding principles are what the Court employs when we look at each and every case. The judge makes a decision after looking at all the issues presented as to what he or she thinks needs to be decided to get the case back in the hands of the people who should have it.
Mr. HALL. So given the confines of Best and Mahl, could you conceive of the Court exercising its discretion more broadly to reach to the assignments of error raised on appeal?
Chief Judge GREENE. You have to understand, you look at the Mahl case and you can look at the Wells case and you can see dissents on those cases that talk about, hey, we should consider everything or what have you.
But if a particular judge may want to address a particular issue, then the question is, does the majority agree that that issue should be addressed in that particular case.
But clearly each case will have to stand on its own merits and I do not see how you can have a blanket rule. In my prepared statement, I indicated that there is a strict rule about not taking on Constitutional issues.
If an appellant or veteran raises a Constitutional issue, this statute would require us to address it even though we would not necessarily be required to, or if he submits 300 issues, would we then have to submit discussion on all 300 issues?
Mr. HALL. Mr. Lamborn?
Mr. LAMBORN. Thank you, Mr. Chairman. I did have a brief follow-up question on the matter you just raised, the Constitutional question.
The precept against deciding Constitutional questions that are not necessary for the adjudication of the case, how often does that come up?
Chief Judge GREENE. Very infrequently.
Mr. LAMBORN. Okay. But on the occasions where it does, then—
Chief Judge GREENE. In a pro se case, we might bend over to make a consideration of that.
Mr. LAMBORN. Okay. All right. Thank you.
Chief Judge GREENE. By the way, sir, congratulations on Kansas.
Mr. HALL. Judge Greene, thank you so much for your testimony and your presence here today and your work that you do. And Judge Lance and Judge Schoelen is it?
Chief Judge GREENE. Schoelen.
Mr. HALL. My eyes are not all the way there.
Thank you very much. If we have any further questions, we will submit them in writing.
Chief Judge GREENE. Yes, sir. And may I also offer, if there is any further information that you do need, Judge Schoelen and Judge Lance would be more than happy to meet with each Member or members of your staff individually.
Mr. HALL. Thank you very much. The panel is excused.
I call our second panel to the table now, Kerry Baker, Associate National Legislative Director of Disabled American Veterans (DAV); Ronald B. Abrams, the Joint Executive Director of the National Veterans Legal Services Program (NVLSP); Steve Smithson, Deputy Director of Veterans Affairs and Rehabilitation Commission at the American Legion; Eric Hilleman, Deputy Director, National Legislative Service, Veterans of Foreign Wars (VFW) of the United States; and Carl Blake, the National Legislative Director of Paralyzed Veterans of America (PVA).
Gentlemen, thank you again for joining us and for your patience. And your statements have been entered into the record as written, so we are recognizing each for five minutes beginning with Mr. Baker.
STATEMENTS OF KERRY BAKER, ASSOCIATE NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; RONALD B. ABRAMS, JOINT EXECUTIVE DIRECTOR, NATIONAL VETERANS LEGAL SERVICES PROGRAM; STEVE SMITHSON, DEPUTY DIRECTOR, VETERANS AFFAIRS AND REHABILITATION COMMISSION, AMERICAN LEGION; ERIC A. HILLEMAN, DEPUTY DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; AND CARL BLAKE, NATIONAL LEGISLATIVE DIRECTOR, PARALYZED VETERANS OF AMERICA
Mr. BAKER. Thank you, Mr. Chairman, and Members of the Committee.
On behalf of the DAV, I am pleased to offer my testimony to address the “Veterans Disability Benefits Claims Modernization Act.”
Section 101 of the Act provides a presumption of service connection for post traumatic stress disorder for veterans diagnosed with such and who engaged in combat with the enemy. My statement on this issue is, therefore, limited to combat-related PTSD.
While the DAV supports this provision, we feel the current high standards required by VA’s internal operating procedures for verifying veterans who engaged in combat with the enemy are impossible for many to satisfy. This is usually due to unrecorded traumatic events taking place on the battlefield, unrecorded temporary detachments of servicemembers from one unit to another while in the theater of operations, or simply poor recordkeeping.
Our concern is that with defining who is considered to have engaged in combat with the enemy, this provision will be rendered moot by VA’s internal requirements.
The provisions of the applicable statute, Section 1154, and the applicable regulation, Section 3.304(f), are uniform in relation to those who engaged in combat with the enemy.
Together they require VA to accept a sufficient proof of service connection for any disease or injury resulting from such service absent clear and convincing evidence to the contrary, credible, satisfactory, lay, or other evidence of service incurrence of the disease or injury if consistent with the circumstances, conditions or hardship to the veteran’s service and notwithstanding the fact there is no official record of such incurrence in the service.
The regulation further reiterates that when these perimeters are met, the veteran’s lay testimony alone may establish the incurrence of the claimed in-service stressor.
Neither the statute nor the regulation requires validation by official military records of an in-service combat stressor. Nonetheless, VA’s adjudication procedure manual requires proof that a veteran engaged in combat through official military records, thus contradicting the intent of the statute and ignoring its own regulation.
These internal instructions defy incredible supporting evidence that an in-service stressor occurred as evidence that specifically documents personal participation in the event that indicates the veteran served in the immediate area and at the particular time in which the event is alleged to have occurred.
Having said that, we do, however, acknowledge that VA most likely promulgated these internal instructions based on its interpretation that the statute and regulation failed to define who is considered to have engaged in combat.
We nonetheless respectfully disagree with that interpretation as well as the extra statutory and regulatory path in which VA chose to create a substantive rule of law.
The DAV believes your bill would better deliver its intended effect if it amends 1154(b) to clarify when a veteran is considered to have engaged in combat or defines those who have engaged in combat under the definitions of Section 1101, either of which I will readily admit is not an easy task.
Section 107 of the Act expands authorization for developing, submitting, and certifying a claim is fully developed by veterans’ representatives. There are many obstacles in the path of this novel idea. Because of those obstacles, the DAV would like further discussions and a better understanding of the nature of this provision before we can determine the level of our support or opposition.
Section 108 requires a study that considers employing medical professionals to assist VBA. Based on our comprehensive experience in the claims process, one that dates back to a time when VA employed medical professionals in the claims process, we must oppose this section of the bill.
The biggest challenge facing VA decision-makers results from inadequate legal training, not inadequate medical training. Misunderstandings of the law can offer far more errors than do misunderstandings of medicine.
Section 301 increases the reporting requirements of the Court and Section 302 modifies the jurisdiction of the Court. Each of the foregoing provisions is nearly mirrored in the Independent Budget (IB) for fiscal year 2009. We strongly support each and commend Chairman Hall for the recommendation.
At present, I have only commented on a few of the sections of the bill, but have done so in the remainder of my written testimony. I will be happy to answer questions on these sections or any other section should you have any.
[The statement of Mr. Baker appears in the Appendix.]
Mr. HALL. Thank you, Mr. Baker.
Mr. Abrams, you are now recognized.
Mr. ABRAMS. Good afternoon, Mr. Chairman and Members. I am pleased to have the opportunity to talk to you today on behalf of the National Veterans Legal Services Program.
I want to thank you for your hard work and I especially want to thank the staff on both sides for their contribution to this bill. It has been long overdue.
We would first like to talk about Section 101. And we feel though well intentioned as written, Section 101 would have very limited positive impact. We know that in Iraq and Afghanistan, there is really no specific front or rear area. No servicemember is really safe in either place and just about everyone there is subject to enemy attacks.
Therefore, we suggest that 101 be redrafted to establish a presumption of service connection for PTSD if the veteran served on active duty in Iraq or Afghanistan and currently suffers from PTSD. And we would also like to extend this to veterans who did not serve in Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF) but did serve in a combat zone during active duty.
We think that the presumption should apply unless there is clear and convincing evidence that the veteran’s PTSD is caused by a stressful event that did not occur during a period of military service, and I would like to add this to my written testimony, in OIF or OEF or in a combat zone. That should satisfy everybody. A doctor is going to have to link the current PTSD to an event that happened during service in a combat zone or
Sign Up for Committee Updates
Stay connected with the Committee