TESTIMONY OF CARROLL WILLIAMS, DIRECTOR NATIONAL VETERANS AFFAIRS AND REHABILITATION COMMISSION THE AMERICAN LEGION BEFORE THE SUBCOMMITTEE ON BENEFITS COMMITTEE ON VETERANS’ AFFAIRS UNITED STATES HOUSE OF REPRESENTATIVES ON H.R. 3193 - THE DUTY TO ASSIST VETERANS ACT OF 1999 MARCH 23, 2000
Mr. Chairman and Members of the Subcommittee: The American Legion appreciates this opportunity to discuss the important issues related to the nature and extent of the Department of Veterans Affairs (VA) duty to assist claimants in the preparation and development of claims for benefits to which they may be entitled. We also welcome the opportunity to comment on HR 3193 - Duty to Assist Act of 1999 - introduced by Congressman Lane Evans, to reestablish VA’s original interpretation of their "duty to assist" claimants in the development of claims and to clarify the burden of proof that will apply in such claims. We applaud the elimination of the often misunderstood term "well grounded claim" with the enactment of HR 3193. We wish to commend you, Mr. Chairman, for your leadership in scheduling this very timely and important hearing to consider the adverse effects of the decision of the United States Court of Appeals for Veterans Claims (CAVC or the Court) decision in Morton V. West, 11 Vet. App. 477 (July 1999) on thousands of veterans, their families and survivors. We also appreciate the concern about VA’s implementation of Morton expressed by various Members of the full Committee hearing on the VA FY 2001 budget last month and the obvious desire to correct a situation that Congress never intended when it enacted section 5107 of Title 38, United States Code which provides:
DUTY TO ASSIST Mr. Chairman, the question of the nature and extent of VA’s statutory duty to assist veterans and other claimants in the development of their claims was addressed by the CAVC in their decision Morton v. West issued on July 14, 1999. The court held VA not only does not have the duty to assist a claimant who has not filed a well grounded claim, that it has no authority to do so under the statute, 38 USC § 5107. The court also held that language regarding claims development in regulations, manuals and policy statements of the Compensation and Pension Service, suggesting the Secretary of Veterans Affairs has a duty to assist a claimant even though he or she has not submitted a well grounded claim were, "interpretive" and did not create enforceable substantive rights. We recognize the CAVC's holdings in Morton have profound workload implications for VA. On August 30, 1999 VA’s Under Secretary for Benefits issued a letter to VA regional offices rescinding the invalidated manual provisions and instructing them to comply with Morton v. West. As a result, each day VA now issues letters to thousands of veterans advising them their claims are being denied because they are not well grounded. No doubt, VA will be reporting a significant reduction in the backlog of pending cases for FY 2000, however, we fully expect this reduction in workload will be offset by an increase in the number of appeals filed to the Board of Veterans Appeals. On September 3, 1999, a timely appeal was filed with the Federal Circuit which, under 38 USC 7192, has jurisdiction to review the decision of the CAVC in this case. This appeal is still under review and Morton, is, by law, not final and should not have been implemented. VA is taking advantage of this unique opportunity to significantly reduce its current and long-term workload, regardless of the adverse and potentially irreparable harm done to veterans in the process. Because of this response to the CAVC’s holdings the VA has abandoned one of its most important cornerstone policies. For decades, veterans have looked to VA for assistance with their claims and VA’s policy was to fully develop all claims. It is our contention that this abrupt about-face in long-standing VA policy and practice eviscerates the traditional, non-adversarial process of administering veterans’ claims, greatly increasing the burden and cost to veterans applying for benefits and will inevitably deprive deserving veterans of needed benefits. H.R. 3193 The American Legion supports the intent of H.R. 3193 to reestablish the duty of VA to assist claimants for benefits in developing claims and to clarify the burden of proof for such claims by amending 38 USC § 5103. Again, we applaud the elimination of the often misinterpreted term "well grounded claim" by the introduction of HR 3193. We believe it was and is the intent of Congress that the duty to assist should be triggered when a claimant presents a reasonable claim. There is a legal duty by the VA to reasonably develop such a claim without creating an insurmountable burden for the veteran or his or her dependents by having them pay for medical examinations, or seek out medical or lay evidence of an in-service occurrence when oftentimes the records to show these are already in the government's possession. We do, however, strongly suggest that H.R. 3193 be amended in the following manner. First, the word "information" in section 5103A (a) should be deleted to make it clear that the Secretary is obligated to help produce evidence. Also, the words "information and" in section (b)(2) should be deleted. We believe that the word "information" adds nothing and may confuse VA adjudicators. Second, in section 5103A (b)(6) the words "the Secretary considers" should be deleted because the duty to assist should be mandatory not discretionary on the part of the Secretary. The American Legion believes that when the VA determines, after appropriate development regarding other elements of a claim, that an examination is necessary to determine whether a condition exists, the severity of a disability, or whether there is a nexus to service, the "duty to assist" requires the Secretary to provide that examination. Third, the amendment to section 5107(a) that deals with the burden of proof should be revised to specifically acknowledge that the VA must comply with the duty to assist mandated by section 5103A before the VA determines if the claimant has met his or her burden of proof. Also, the words "eligibility for" should be deleted and replaced with "entitlement to" because the word eligibility has sometimes been interpreted by the Secretary as meaning just a veteran with a qualifying discharge. VETERANS’ HEALTH ADMINISTRATION "DUTY TO ASSIST" VA’s pro-claimant policy was expressed in the Veterans Health Administration (VHA) Directive 98-052 on November 18, 1998, from the former Under Secretary for Health, Dr. Kenneth Kizer. This directive advised all VA medical staff that VA’s obligation to care for veterans extended to providing medical opinions, when requested, in support of their claim for VA disability benefits and in completing forms for other programs or benefits. The authority for that policy directive expired on September 30, 1999 and, to our knowledge, no action has been taken to reestablish it. On several occasions over the past four months, The American Legion has requested the Deputy Under Secretary for Health, Dr. Thomas Garthwaite, to address the issue of whether he intends to change or reaffirm VHA’s "duty to assist" veterans, who need assistance in developing the kind of evidence to make their claims well grounded. However, to date, no response has been received. CONCLUSION In conclusion, when a representative of The American Legion accepts a veteran’s power of attorney, we also accept the responsibility that it is our profound duty and historical obligation to help that claimant in every legal way within our means. Our "duty to assist" begins immediately, as it should. We expect no less of ourselves and we expect no less of the Department of Veterans Affairs. Back to Witness List |