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Testimony of

April 13, 2000

on

Mr. Chairman, thank you for the invitation to present my views on H.R. 1020, a bill to establish a presumption of service connection for the occurrence of hepatitis C in certain veterans. This statement is offered to the committee in my individual capacity as a private attorney with extensive experience litigating VA claims at the U.S. Court of Appeals for Veterans Claims and representing veterans, their survivors and family members before the U.S. Department of Veterans Affairs. My current clients include veterans with Hepatitis C. I am also the immediate past president and a founding member of the National Organization of Veterans’ Advocates, an association whose membership is open to those persons admitted to practice before the Court of Appeals for Veterans Claims.

My statement addresses three areas that I believe warrant discussion regarding Hepatitis C claims: (1) the need for a presumptive basis for service connection, (2) the need for revisions to the VA Schedule for Rating Disabilities, and (3) the unique need for services to family members of veterans affected.

Presumptive Service Connection

Establishing entitlement to service connected disability compensation is not easy—not for the veteran and not for the VA. Nor is the process quick. By outlining the risk factors associated with Hepatitis C and permitting the establishment of service connection on a presumptive basis, H.R. 1020 will lighten the burden and speed the process for both veterans and the VA.

The current administrative process is mindboggling in its complexity and in the time it takes for the process to run its course. Given the current limits on hiring attorneys, I generally retained by veterans after they have been denied by the Board of Veterans’ Appeals and are on their way to the U.S. Court of Appeals for Veterans Claims. It is not unusual for my clients to have spent five to eight years getting through the administrative process. Then they face at least one year in litigation and, typically, one or two more years back on remand to the Department.

Congress has grappled most recently with the increasing delays faced by applicants by appropriating additional funds to hire more adjudication personnel. However, in my opinion, there are basic, systemic problems with the process that cannot be fixed simply with the addition of VA personnel.

From my clients’ perspective, consider these problems:

1. They are not provided an application form that tells them what information is needed in order to have a chance at providing the relevant information.

2. They receive letters from the VA asking for names and addresses of healthcare providers so that VA can obtain medical records but they are not told they must provide an opinion letter from a doctor that addresses the relationship between their current disability and certain in-service events.

3. They are not told that they need to obtain a photocopy of their VA claims file (and that it is available free of charge under the Privacy Act, 5 U.S.C. § 552a) so that they can present that to their doctors to permit the doctors to provide opinions based on all the records. Failure of the veterans’ doctors to refer to these records enables the VA to discredit the opinions and give greater weight to its in-house examinations.

4. They are provided form letter denials accompanied by multi-page rating decisions that recite the text of largely irrelevant VA regulations. Even after wading through 12-15 page initial denial letters, Hepatitis C claimants may not understand that they need to establish that they had been exposed to certain risk factors.

5. They are provided form letters that are accompanied by a statement of appellate rights printed in a tiny typeface and written in incomprehensible bureaucratic legalese.

6. They are warned they face deadlines to pursue their claims but they are not given a date-certain by which time they must have their appeals post-marked. Instead, veterans are left to calculate when their one-year deadline to file a Notice of Disagreement expires; whether they really have 60 days from the date on the cover letter accompanying an undated Statement of the Case to file their VA Form 9, Appeal to the Board of Veterans’ Appeals, or whether, by a close reading of the instructions on the VAF9 they might not have more than 60 days (depending on the date of the initial denial letter from the VA). They are left to determine whether they have to file another VAF9 given the information in a Supplemental Statement of the Case (which might refer to issues previously addressed in an earlier Statement of the Case but which are not itemized in the present SSOC).

7. They are not told that there is a marked advantage to having a personal appearance hearing at the VA regional office. Although statistics vary by regional office and year-to-year, historically, the rates at which hearing officers have overturned initial rating board decisions range between 15 and 50%.

8. They are not told that there is a marked advantage to having a personal appearance hearing before a member of the Board of Veterans’ Appeals. In Fiscal Year 1999, hearings conducted in Washington resulted in a 28% allowance rate.

The above problems are not unique to Hepatitis C claimants. Hepatitis C claimants do face unique burdens beyond those outlined above. First of all, they are likely struggling with the VA application process while suffering with symptoms such as extreme fatigue and depression; maybe they are suffering from near-complete liver failure or are awaiting a liver transplant. Nonetheless, it is necessary for them to obtain old service medical records and 20-30-year-old civilian medical records to demonstrate, for example, that they had a blood transfusion or to document "unexplained liver disease" or "unexplained abnormal liver function tests." The VA offers no guidance for veterans to obtain old service medical records and, while VA can obtain medical records from civilian facilities free of charge, there are state-by-state charges applicable to veterans requesting copies of medical records.

Demonstrating exposure to blood on or through skin as a result of handling wounded colleagues or engaging in combat is difficult. The burden should be lessened, under 38 U.S.C. § 1154, for those who are accepted as having engaged in combat with the enemy, but this does not encompass the personnel who helped unload the wounded in a rear area or those who may have been exposed in other non-combat settings.

There was a time when the VA would routinely obtain military records; would routinely obtain civilian medical records; would routinely schedule medical examinations. Not any more. Since the decision last year by the U.S. Court of Appeals for Veterans Claims in Morton v. West, 12 Vet.App. 477, the VA has assumed a markedly adversarial position: it now routinely denies claims because the veterans have not established that their claims are "well grounded." In the absence of meeting this high burden, VA does not feel it has a duty to assist veterans in obtaining benefits. No veterans I have worked with who have received the VA’s form letters denying their claims because they are not well grounded can be convinced that the VA is user-friendly or pro-claimant.

It is true that the VA’s form letters denying claims as not well grounded do recite the applicable law regarding a well-grounded claim of service connection. To quote a recent letter one my clients received:

A well-grounded claim for service connection requires evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service, and evidence of a nexus, or link, between the in-service injury or disease and the current disability.

However, what is missing is the claim-specific advice for the individual veteran. Also missing is the truth about the "nexus, or link." Veterans who call me for help have no clue what the work "nexus" means but once I explain it, they tell me over and over that the "link" is obvious, anybody can see it. What they have a problem with is getting their doctors to put the same thing in writing. Civilian physicians are oriented toward providing treatment, not opinion letters in support of their patients’ claims for disability benefits. Even if the civilian physician can be persuaded to write a letter, and even if the VA accepts that as sufficient to find the claim is well grounded, the veteran’s struggle is far from over.

In my experience from reviewing hundreds of VA claims files, once the VA decides to schedule the veteran for a Compensation and Pension Examination (or C&P exam), at the nearest VA medical facility a whole new set of problems arise. The VA regional office sends a message to the C&P Unit at the VAMC asking it to schedule an exam. The VAMC schedules the exam, conducts it and transmits a report to the VA regional office which uses it to make a decision on the merits. But there is a major problem with this process: the VA regional office does not routinely ask the VA examiner to offer an opinion regarding the etiology of the condition or the nexus. And in the absence of an opinion regarding the etiology or nexus, the regional office and the Board of Veterans’ Appeals routinely deny the claim, often citing the failure of the civilian examiner’s opinion to be based on a review of the VA claims file and that the VA examiner’s report does not support the veteran’s claim. This process appears intentional and designed to give the regional office adjudicator the unbridled discretion to deny the claim for lack of evidence.

The failure of the VA regional offices to ensure that medical examinations are truly adequate for rating purposes under 38 C.F.R. § 4.2 is widespread; it is one of the primary deficiencies that leads to time-consuming remands from the Board of Veterans’ Appeals and, from my own practice of law, leads to remands from the Court of Appeals for Veterans Claims.

The problem of remands is not isolated. In FY 1999, the BVA remanded 36% of the appeals brought to it. The Court of Appeals for Veterans Claims routinely disposes of appeals brought to it via remands. But having remanded a case and issued specific instructions of what is to happen next, does not insure compliance by the VA regional offices.

In 1998, the Court of Appeals for Veterans Claims issued a decision in Stegall v. West, 11 Vet.App. 268, that scolded the Secretary of Veterans Affairs for failing to ensure compliance with a prior remand order by the Court. In turn, the Board of Veterans’ Appeals had remanded the case with instructions to the regional office to have specific questions answered during a medical examination. The exam was again not adequate, but the Board relied on it to again deny the claim. The Court was left to once again remand the appeal for compliance with its orders. The Court noted that "the protracted circumstances of this case and others which have come all too frequently before this Court demonstrate the compelling need to hold, as we do, that a remand by this Court or the Board confers on the veteran …, as a matter of law, the right to compliance with the remand orders." 11 Vet.App. at 271.

The Court’s decision in Stegall has had some impact on the Board of Veterans’ Appeals, if not the regional offices. In my recent review of decisions regarding Hepatitis C rendered by the Board of Veterans’ Appeals in 1999, the Board addressed the claim for service connection for chronic Hepatitis C that was on appeal from a 1992 rating decision of the St. Petersburg VA Regional Office. The Board considered and remanded the case in 1997. The Board again considered and remanded the case in 1998. In May 1999, the obviously irked Board member noted that "the Board posed two clear questions to a medical professional. The examiner did not comply. There is no indication that the examiner is willing to cooperate. Despite a phenomenal Stegall violation, the Board shall proceed." BVA Docket No. 96-50 489 at page 2 (redacted decisions of the Board are available for review on the VA’s website or on a CD-ROM offered for sale through the Government Printing Office). Fortunately, the Board granted service connection; unfortunately, this veteran will still have to contend with the same VARO to establish the level of disability.

The problems faced by veterans applying for benefits are daunting and frequently overwhelming. The drop-out rate of persons denied benefits who do not follow through to appeal is drastic—compared to the millions of rating actions taken by regional offices, the Board of Veterans’ Appeals in FY 1999 only issued 37,373 decisions. Of course, if veterans don’t follow through on an appeal, they can always reapply. However, the VA does not provide an application form that explains what constitutes "new and material evidence" needed to successfully reopen their claims. Nor does the VA explain that veterans seeking to reopen their claims had better get a photocopy of their VA claims file to assess what evidence was previously considered by the VA and then be able to determine what evidence might now be considered new and material.

Extending service connection on a presumptive basis could eliminate many of the current hurdles facing veterans and drastically shorten the application process for both veterans and the VA. If H.R. 1020 were enacted into law, it would still be necessary for VA to not only prepare clear implementing regulations but also to provide an application form that would explain what risk factors are accepted by the VA, what evidence is needed to demonstrate the veterans experienced one of those risk factors, and how to obtain that evidence.

The VA apparently is working on Hepatitis C regulations, despite the lack of specific legislative guidance. I urge this Committee to provide specific guidance via legislation. To the extent that the VA exercises its general rulemaking authority to develop rules, they are more likely subject to successful challenge in the U.S. Court of Appeals for the Federal Circuit. The absence of clear legislative history, and worse, the negative implications that could be drawn from considering but not passing legislation, could result in challenges that would tie up all Hepatitis C claims. I urge the Committee to act favorably on H.R. 1020.

VA Schedule for Rating Disabilities

Once service connection is established, veterans still face the task of establishing the level of their disability. Many of the same procedural difficulties noted above regarding the adequacy of VA form letters and the deficiencies in C&P examinations lead to lengthy delays in a final resolution of claims.

The current rating schedule, 38 C.F.R., Part 4, provides for rating Hepatitis C claims under the general heading of "Hepatitis, infectious" with a Diagnostic Code of 7345. 38 C.F.R. § 4.114. It was last revised in March 1976. The rating schedule needs to be revised to ensure that the symptoms characteristic of chronic Hepatits C are adequately considered in establishing a percentage of disability.

In particular, given the experience of one of my clients recently, it is important that the debilitating side-effects of treatment be considered. For certain conditions, the rating schedule provides:

The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after the discontinuance of such treatment the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no recurrence, rate on residuals.

See note at DC 7703, Leukemia (38 C.F.R. § 4.117), and at DC 7914, Neoplasm, malignant, any specified part of the endocrine system (38 C.F.R. § 4.119). A similar provision should be applicable to Hepatitis C ratings.

Further, if required treatment leads to a liver transplant, the schedule should be revised to reflect the provision currently applicable in the case of veterans who have kidney transplants:

The 100 percent evaluation shall be assigned as of the date of hospital admission for transplant surgery and shall continue with a mandatory VA examination one year following hospital discharge. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.

See note at DC 7531, Kidney transplant (38 C.F.R. § 4.115b). A similar provision should be applicable to Hepatitis C ratings.

Given the increasing need for liver transplants, this Committee may wish to consider whether it may be able to encourage or facilitate the broader understanding within the community of veterans of the need for organ donations.

Considerations for Family Members

The spouse of one of my clients who has a pending claim for Hepatitis C has not been tested. She clearly is at risk and she wants to be tested but because the family has no health insurance and cannot afford the testing, she does not know her status. If the spread of Hepatitis C is to be slowed, it is vital that testing be extended to family. Not only are spouses at risk but their children may also be at risk. For example, one of the methods of exposure is through shared toothbrushes.

The Committee should consider whether medical care can be extended to family that tests positive. Currently, only after veterans are service connected and evaluated as permanently and totally disabled are their family members eligible for CHAMPVA healthcare benefits. Extending treatment options to family of veterans not yet rated P&T should be considered.

Finally, there is a recent precedent for providing compensation to family. The children of Vietnam veterans exposed to Agent Orange who suffer from spina bifida are paid compensation based on the severity of their condition. 38 U.S.C. § 1805; 38 C.F.R. § 3.814. Given the prevalence today of two wage-earners per family, this Committee is urged to consider whether compensation may be appropriate for the non-veteran spouse who is infected and whose ability to work is impaired.

KEITH D. SNYDER PC

Attorney at Law

PO Box 5

Olney MD 20830

301-774-1525

FAX 301-774-1551

keithsnydr@aol.com

EDUCATION

Washington College of Law (J.D. 1983)

George Washington University (Paralegal Certificate 1976)

The American University (B.S. 1976)

EMPLOYMENT

PRIVATE PRACTICE (1989—present)

Practice focuses primarily on appeals for veterans’ disability benefits before U.S. Court of Veterans Appeals and U.S. Department of Veterans Affairs.

Director, VETERANS EDUCATION PROJECT, Washington DC (1977—present).

The Project is a nonprofit, tax-exempt organization that publishes and distributes a series of "self-help guides" (on military discharge upgrading, veterans’ appeals) for use by individual veterans. Formerly edited the Veterans’ Law Reporter, a comprehensive legal reporting service for advocates and attorneys, the Veterans Rights Newsletter and Discharge Upgrading Newsletter. Currently provide, under contract with the Vietnam Veterans of America, a series of self-help guides, bi-monthly newsletter, and training for its service representatives.

Program Director, NATIONAL VETERANS LEGAL SERVICES PROJECT, Washington DC (1987—June 1989).

The Project is a Legal Services Corporation-funded back up center specializing in veterans benefits law. Responsibilities included supervising staff, preparing and monitoring a budget, complying with detailed reporting requirements; also included researching inquiries received from Legal Services staff; identifying trends from these inquiries and developing appropriate written materials; preparing training manuals and conducting training programs for Legal Services staff.

Staff Attorney, NATIONAL VETERANS LEGAL SERVICES PROJECT, Washington DC (1984—1987).

Staff Attorney, VIETNAM VETERANS OF AMERICA LEGAL SERVICES, Washington DC (1984—June 1989).

The Legal Services was the in-house law firm for the Vietnam Veterans of America, a Congressionally-chartered veterans service organization. Responsibilities included tracking regulatory and legislative developments involving the Veterans Administration and Department of Defense; preparing training manuals and conducting training programs for lay advocates; advising veterans advocates on procedures for persons seeking to upgrade military discharges and appeal denials of veterans benefits.

Paralegal, NATIONAL VETERANS LAW CENTER, Washington College of Law, Washington DC (1979—1983).

Hospital Corpsman, U.S. NAVY (1969—1972).

PUBLICATIONS

• VVA Veterans Benefits News (1995—2000), editor of bi-monthly newsletter (Vietnam Veterans of America, Washington, DC).

• VVA’s Guide on PTSD (1998), author (Vietnam Veterans of America, Washington, DC).

• VVA’s Guide on VA Claims and Appeals (1995), author (Vietnam Veterans of America, Washington, DC).

• VVA’s Guide on PTSD (1995), author (Vietnam Veterans of America, Washington, DC).

• VVA’s Guide on Agent Orange (1995), author (Vietnam Veterans of America, Washington, DC).

• Veterans Benefits (1994), co-author (HarperCollins, New York).

• Veterans’ Law Reporter (1987—1991), editor.

• Veterans Rights Newsletter (1981—April 1987), editor.

• Discharge Upgrading Newsletter (1979—1980), editor.

• Self-Help Guide to U.S. Court of Veterans Appeals (1991), author (Veterans Education Project, Washington, DC).

• "Advising the Veteran Facing Debt Collection by the VA," The Practical Lawyer (December 1990).

• "Introduction to Practice Before the U.S. Department of Veterans Affairs," The Practical Lawyer (December 1989).

• Self-Help Guide to Discharge Upgrading (1979 and rev. ed. 1983, 1990), author (Veterans Education Project, Washington, DC).

• "Paralegal’s Guide to Veterans’ Administration Advocacy," Clearinghouse Review (July 1989).

• "Ask The Lawyer," weekly column carried by Army, Navy and Air Force Times (1986-1988), contributing author (Times Journal Co., Springfield, Virginia).

• VVA on Agent Orange (1984, and rev. ed. 1988, 1989), author (Vietnam Veterans of America, Washington DC).

• Self-Help Guide to VA Claims (1988), author (Vietnam Veterans of America, Washington DC).

• Agent Orange (1986), author (Vietnam Veterans of America, Washington DC).

• Little Max: Creating Maximum Benefits for Children, Elderly, Poor, and "Disabled" People (1986 and 1987), contributing editor (Massachusetts Law Reform Institute, Boston, Massachusetts).

• Overpayments of Veterans Administration Benefits: Legal Services Practice Manual (1985), author (National Clearinghouse for Legal Services, Chicago, Illinois).

• Viet Vet Survival Guide (1985), co-author (Ballantine Books, New York).

• Guide to Veterans Benefits: VVA Service Representatives Manual (1983 and rev. ed. 1985), co-author (Vietnam Veterans of America Foundation, Washington, DC).

• Self-Help Guide to Stress Disorder (1985 ed.), editor (Veterans Education Project, Washington DC).

• Self-Help Guide to Agent Orange (1983 ed.), editor (Veterans Education Project, Washington DC).

• "PTSD: The War Is Over, The Battles Go On," TRIAL Magazine (January 1983), co-author.

• Self-Help Guide to Radiation (1982), editor (Veterans Education Project, Washington DC).

• Self-Help Guide to Stress Disorder (1982 ed.), editor (Veterans Education Project, Washington DC).

• Military Discharge Upgrading and Introduction to Veterans Administration Law (1982), co-author (Veterans Education Project, Washington, DC).

• "Effect of Public Law 95-126 on the Special Discharge Review Program and the Discharge Review Boards," 6 Mil. L. Rep. 6001 (Jan.-Feb. 1978), co-author.

• Compilation of State and Federal Privacy Law (1975), co-author (Privacy Journal, Washington DC).

MEMBERSHIPS

• Founding member, past president, National Organization of Veterans’ Advocates.

• Admitted to practice before U.S. Court of Appeals for Veterans Claims.

• Admitted to practice before U.S. Court of Appeals for the Federal Circuit.

• Member, Rules Advisory Committee, U.S. Court of Veterans Appeals (1992-99).

• Montgomery County Bar Association.

• Maryland State Bar Association.

• District of Columbia Bar Association.

• Member, Veterans Administration Advisory Committee on Health-Related Effects of Phenoxy Herbicides (1986-87).

TRAINING PROGRAM PRESENTATIONS

• Veterans Benefits Basic Training, sponsored by the Vietnam Veterans of America, Washington, DC (June 1999).

• Veterans Benefits Basic Training, sponsored by the Vietnam Veterans of America, Washington, DC (June 1998).

• Veterans Law Seminar: Practice and Procedures Before the U.S. Court of Veterans Appeals, sponsored by the National Organization of Veterans’ Advocates, Washington, DC (September 1996).

• Veterans Benefits Basic Training, sponsored by the Vietnam Veterans of America, Washington, DC (June 1996).

• Veterans Law Seminar, sponsored by the National Organization of Veterans’ Advocates, Seattle, Washington (March 1996).

• Veterans Benefits Basic Training, sponsored by the Vietnam Veterans of America, Boston, Massachusetts (February 1996).

• Veterans Benefits Basic Training, sponsored by the Vietnam Veterans of America, Washington, DC (June 1996).

• Veterans Law Seminar, sponsored by the National Organization of Veterans’ Advocates, Kansas City, Missouri (October 1994).

• Third Judicial Conference of the U.S. Court of Veterans Appeals, Arlington, VA (October1994).

• Veterans Law Seminar, sponsored by the National Organization of Veterans’ Advocates, Kansas City, Missouri (May 1994).

• Second Judicial Conference of the U.S. Court of Veterans Appeals, Arlington, VA (October 1993).

• Veterans Law Seminar, sponsored by the National Organization of Veterans’ Advocates, Washington, DC (October 1993).

• Veterans Law Seminar, Washington, DC (March 1993).

• Veterans Law Seminar, Los Angeles, CA (November 1992).

• Veterans Law Seminar, Washington, DC (September1992).

• Veterans Law Seminar, Washington, DC (May 1992).

• Jacksonville Area Legal Aid, Jacksonville, Florida (April 1991).

• Ohio State Legal Services Association, Columbus, Ohio (December 1990).

• Vermont Legal Aid & Department of Rehabilitation and Aging, Randolph, Vermont (April 1990).

• V.A. Disability Law Seminar, Washington, DC (June 1989).

• District of Columbia Bar and Georgetown University Law Center’s Continuing Legal Education Division, Washington, DC (May 1989).

• Vermont Legal Aid & New Hampshire Legal Assistance, White River Junction, Vermont (May 1989).

• Coalition of Colorado Legal Services Programs, Denver, Colorado (February 1989)

• Community Legal Services, Philadelphia, Pennsylvania (January 1989).

• Volunteer Lawyers Program, Milwaukee, Wisconsin (October 1988).

• Puerto Rico Legal Services Program, San Juan, Puerto Rico (February 1988).

• Volunteer Lawyers Program, Phoenix, Arizona (October 1987).

• Kentucky Legal Services Program, Lexington, Kentucky (August 1987).

• Vietnam Veterans of America Service Representatives, Washington, DC (June 1983—89, 5-day programs).

• Georgia Legal Services Programs, Atlanta, Georgia (May 1987)

MISCELLANEOUS

• Presented testimony before Senate Veterans Affairs Committee on funding for Pro Bono Consortium (May 23, 1996).

• Qualified as Expert Witness for Plaintiff in Day v. Department of Veterans Affairs, No. C-90-38 (S.D. Tex. trial March 1993) (testified as to the complexity of VA regulations, policies, procedures and need for counsel).

• Qualified as Expert Witness for Plaintiffs’ in National Association of Radiation Survivors v. Walters, No. 83-1861 (N.D. Cal. trial September 1987) (testified as to the complexity of VA regulations, policies, procedures).

• Elected to Town Council, Kensington, Maryland (1984—86).

DISCLOSURE STATEMENT REQUIRED BY HOUSE OF REPRESENTATIVES RULES

I have received no Federal grant or contract relative to the subject matter of the testimony presented during the current or previous two fiscal years.

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