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TESTIMONY OF

MARCH 23, 2000

Chairman Quinn, Ranking Minority Member Filner, members of the Subcommittee, the Paralyzed Veterans of America (PVA) is honored to be invited to testify today concerning H. R. 3193, the "Duty to Assist Veterans Act" and to address generally the proper construction of the Department of Veterans Affairs’ (VA) statutory mandate to assist claimants.

As stated in the Independent Budget:

The purpose of veterans’ programs is to assist veterans. Consistent with that purpose, the benefits delivery system is designed to assist veterans in obtaining the benefits the Nation provides for them. To achieve the public policy purposes behind veterans’ programs, the goal is to ensure veterans receive all benefits to which they are entitled. Congress therefore designed a simple and helpful claims process in which the Government assumed the responsibility of assisting veterans in gathering the proper and necessary evidence to substantiate their claims. Also, because of the benevolent purpose of veterans’ benefits and because there is no competing or opposing interest in veterans’ claims, the burden of proof is lower than that in civil proceedings in courts or other administrative agencies. Under administrative rules dating back to the 1920s, veterans’ claims needed only to be supported by enough evidence to justify a belief by a fair and impartial individual that the claim was ‘well grounded.’ When it authorized judicial review, Congress adopted and codified in statute this long-standing ‘duty to assist’ and the liberal standard of proof to ensure their continuation. The Independent Budget for the Department of Veterans Affairs, Fiscal Year 2001.

These fundamental concepts cannot be stressed too often: Veterans’ programs exist to assist veterans; the public policy purpose underlying veterans’ programs is to ensure that veterans receive all benefits to which they are entitled; and there is no competing or opposing interest in veterans’ claims. Actions and interpretations that subvert these basic concepts are antithetical to the very nature of veterans’ benefits. Today, we turn to one of the most egregious examples of this subversion – the misinterpretation of congressional intent to provide assistance to all veterans in establishing their claims to benefits.

Congress, in the Veterans Judicial Review Act, P.L. 100-687, 102 Stat. 4105 (1988), codified the Department of Veterans Affairs’ (VA) on-going practice of assisting all claimants in developing their claims. VA told Congress that VA practice was to aid all who brought claims, giving claimants the benefit of the doubt on all issues, and granting benefits when a well grounded claim was presented. Even after the enactment of the Veterans Judicial Review Act, the VA’s own internal instructions to its employees, VA Manual M21-1, Part III ¶ 2.01(a) (1992) read, under the chapter heading "Claims Applications and Initial Actions":

1. Assistance to Claimants. Extend all reasonable assistance to claimants in meeting the evidentiary requirements necessary to establish their claims under the applicable laws and regulations. Give them every opportunity to establish entitlement to the benefits sought, to include complete procedural and appellate rights. Provide the claimants complete information and advice in words that the average person can easily understand. Thoroughly develop information from ALL sources before making decisions affecting entitlement. (Emphasis in original).

VA regulations also evidenced a long-standing policy to ensure that veterans received the benefit of the doubt on all issues. 38 CFR § 3.102 also established that the standard to receive benefits was "evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded."

38 CFR 3.103, also in effect in 1988, read, in pertinent part, that "[i]t is the obligation of the Veterans Administration to assist a claimant in developing the facts pertinent to his claim and to render a decision which grants him every benefit that can be supported in law while protecting the interests of the Government." These VA policies are what Congress relied upon in passing the Veterans Judicial Review Act.

In the Explanatory Statement that accompanied the final version of the VJRA, Congress stated that the legislation "would amend chapter 51 of title 38 to add a section which would codify the burden of proof and reasonable doubt standards in VA claims adjudication proceedings currently provided for by regulation (38 CFR 3.102 and 3.103)." Explanatory Statement on Compromise Division A, 134 Cong.Rec. S16550 (Oct. 18, 1988), reprinted in 1988 U.S.C.C.A.N. 5834, 5835-5836. This section, currently codified at 38 U.S.C. § 5107(a), reads:

Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.

The House Report that accompanied the legislation stated that:

Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans benefits. This is particularly true of service-connected disability compensation where the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty.

Implicit in such a beneficial system has been an evolution of a completely ex-parte system of adjudication in which Congress expects VA to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits. Even then, VA is expected to resolve all issues by giving the claimant the benefit of any reasonable doubt. In such a beneficial structure there is no room for such adversarial concepts as cross examination, best evidence rule, hearsay evidence exclusion, or strict adherence to the burden of proof.

After a claim is filed, the agency helps the claimant compile evidence to support his or her claim [ ]. H.Rept. 100-687 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795.

Mr. Chairman, let me repeat: "Congress expects VA to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits." Congress, in drafting and passing the present day § 5107(a) merely codified the existing practices of the VA. The Report noted that: "After a claim is filed, the [VA] helps the claimant compile evidence to support his or her claim." PVA does not understand how the intent behind § 5107(a) could be stated any clearer or any more emphatically – VA must assist all claimants in developing their claims, and the claim must be fully developed before there is a decision on the merits.

That was 1988. Unfortunately, in 2000 things are quite different. The Court of Appeals for Veterans Claims has, through decisions both novel and torturous, rendered congressional intent and statutory language regarding the VA’s duty to assist claimants null and void. To the Court, a claimant must first prove his or her claim before receiving assistance from the VA.

In Pond v. West, 12 Vet.App. 341, 346 (1999), the Court stated that "[g]enerally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury."

Compare this with the definition of a well grounded claim. The United States Court of Appeals for the Federal Circuit adopted the Court of Appeals for Veterans Claims’ definition of a well grounded claim: "For a claim to be well grounded there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability." Epps v. Gober, 126 F.3d 1464, 1468 (1997).

Therefore, once a claimant has, under the definition of the Court, presented a well grounded claim, the claimant has also, once again under the definition of the Court, proven his or her claim. Once a claim is proven the duty to assist is superfluous. Why would Congress enact a duty to assist all claimants if this duty was a dead letter?

As Congress recognized, the public policy rationale underlying the VA’s duty to provide assistance goes to the very nature of the benefits system. This duty also serves practical purposes. Many of the records a claimant needs to prove his or her claim are in the possession or custody of the VA or another government entity. While the veteran claimant is frantically trying to figure out what he or she needs in order to prove a claim for benefits, the VA is often sitting on the very evidence needed by the claimant.

As if this situation were not bad enough, the Court of Appeals for Veterans Claims recently decided that Congress, with the passage of 38 U.S.C. § 5107, mandated that the VA was prohibited from providing assistance to any claimant until his or her claim is deemed well grounded. The Court called a well grounded claim a "condition precedent" to receiving assistance under § 5107(a). The Court stated that "[t]he issue, therefore, is whether the Secretary, by regulation, Manual, and/or C & P policy can and has eliminated the condition precedent placed by Congress upon the inception of his duty to assist. The answer: No." Morton v. West, 12 Vet.App. 477, 481 (1999). This is a fancy judicial way of saying that the VA cannot choose to assist veterans even if it wanted to. We doubt that Congress envisioned or intended this result in 1988.

These twisted interpretations of clear congressional intent and statutory language, this movement to re-make the benefits adjudication system into a legalistic, formalized maze of increasing complexity, have caused real harm to real people. For example, a veteran who has a spinal cord disease gets corrective surgery from VA. This surgery greatly worsens his medical condition and renders him quadriplegic. VA medical records reflect that his post-surgery condition was worse than his pre-surgery condition. Because the veteran was in VA care, VA holds virtually all of his medical records. The Veteran files a claim under 38 U.S.C. § 1151. His claim is denied at the Regional Office and at the Board of Veterans’ Appeals. On appeal to the Court of Appeals for Veterans Claims, the VA argued, for the first time, that the claim was not well grounded, even though the veteran had never received notice of the three elements he supposedly must prove without assistance and while VA held all applicable records. The Court agreed with the VA. This case is still pending on procedural motion.  

We ask you to consider the situation generally faced by widows, many of whom spent years caring for their disabled husbands. They look to the VA for help and find none when they seek DIC or other death benefits. Even though the widow has usually had no access to the veteran’s claims file or medical records during the veteran’s life, after his death the widow is apparently required to fulfill the three-element test of well groundedness. This is, in many instances, an insurmountable hurdle.

These instances, and the many more like them, cannot be what Congress had in mind when it codified VA prior practices to create and perpetuate the ex parte and non-adversarial system. Rather, this is the hallmark of an adversarial system filled with procedural pitfalls to trip up unsuspecting claimants. This newly-fashioned system clearly runs counter to the paternalistic, pro-veteran system intended by Congress with the advent of judicial review. Cases like the ones noted above are the bitter fruit of this new system.

The VA has proposed regulations on this matter. PVA, along with other Veterans Service Organizations, have commented on these proposed regulations. We ask that our comments, dated January 27, 1999 and January 28, 2000, be made part of the record.

PVA is concerned that, even if the VA’s final regulations are favorable to veterans and reiterate the VA’s traditional duty to assist claimants, without congressional action future court decisions may invalidate regulatory action and return us to the point that brought us here today. PVA believes that the VA must be in the forefront vigorously defending its traditional role in assisting veterans with their claims.

PVA applauds this Subcommittee’s interest in ensuring that the duty to assist remains an integral part of a non-adversarial, pro-veteran, claims system. We believe that H.R. 3193 would re-state the clear congressional intent – in a way that veterans, VA, and the courts will understand – that the VA has a duty to assist all claimants.

PVA supports H.R. 3193 and we look forward to working with you to ensure that this legislation is the best legislation it can be and that the purposes underlying this bill are fully and completely carried out. We ask that it be made emphatically clear that the mandatory assistance to be provided to a claimant under the proposed § 5103A(b) is not, by any means, an exhaustive list. We also ask that the Committee ensure, as this bill moves through the process, that no veteran is denied a medical examination if the VA finds one necessary for the purpose of determining a current disability; that the burden of proof is clarified in amending § 5107(a); and that no claim is denied without full notice to the veteran. Finally, we ask that this legislation ensure that no adjudication proceeds before a claim is fully developed – fully developed with the assistance of the VA.

PVA looks forward to working with this Subcommittee, and with the full Committee, to move this legislation as speedily as possible and to ensure that the congressional intent mandating a duty to assist all claimants is restored. We must not delay any longer in returning the system to what it was intended to be.

Again, on behalf of PVA I thank you for this opportunity to testify. I will be happy to answer any questions you might have.

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