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Testimony of  

Mr. Chairman and other distinguished members of the Subcommittee, on behalf of Vietnam Veterans of America (VVA), I am pleased to have this opportunity to present our viewpoint on one of the most important issues facing veterans and their dependents; that is, the reciprocal statutory obligations of claimants to submit well-grounded claims for veterans’ and dependents’ benefits and of the Department of Veterans Affairs (VA) to assist them with the development of their claims. VVA is most appreciative of your allowing us to participate in this hearing, and for your leadership in helping to resolve what has become a daunting obstacle to both deserving claimants in seeking benefits to which they are entitled and to the VA in executing its mission.

VVA wholeheartedly endorses legislative action to end the confusion, injustice and the potential for either unintentional, or even intentional, abuse created by the judicial and administrative evolution of the requirement of a "well-grounded" claim as the trigger for the VA’s duty to assist. Congress has spoken before concerning these threshold issues. It is time for Congress to speak once again. We believe that H.R. 3193, the "Duty to Assist Veterans Act", goes far in resolving these problems.

Defining the problem

At the heart of the matter is 38 U.S.C. § 5107(a), which currently provides:

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 ultimate victims of the tumultuous evolution, or more appropriately, de-evolution, of judicial and administrative interpretation of this statute are veterans and their dependents. It is both unreasonable and unfair to expect claimants, many of whom suffer from serious disability, both physical and psychiatric, to develop their claims without the VA’s assistance and guidance. The vast majority of these claimants do not possess the specialized knowledge that would allow them to traverse the legal and evidentiary requirements of the VA adjudication process. We believe that the current state of affairs is the direct result of both the judiciary’s and the VA’s losing sight of the very essence of the VA’s special and unique mission: to care for veterans and their families.

March 23, 2000 

In passing the foregoing statute, Congress made it clear that it intended to codify "the burden of proof and reasonable doubt standards in VA claims adjudication proceedings" provided for in 38 C.F.R. §§ 3.102 and 3.103. See Reports on Veterans Judicial Review Act, Pub. L. No. 100-687, reprinted in 1988 U.S.C.C.A.N. 5782, 5835-36. The legislative history further reflects that "Congress expects VA to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits." 1988 U.S.C.C.A.N. 5795. Such language reflects Congress’ intention to allow the agency the authority to define the statute’s terms. See Chevron v. NRDC, 467 U.S. 837 (1984). Thus, 38 U.S.C. § 5107(a) begins with Congress’ broad grant of authority to the Secretary to assist all claimants with the development of their claims, even those whose claims do not meet the legal definition of "well-grounded". For years, the VA’s policy, as reflected in various regulations, adjudication procedure manuals and policy directives, was to undertake evidentiary development of claims for VA benefits prior to making a determination as to whether such claims were well-grounded. With the advent of judicial review, however, the VA’s exercise of its statutory discretion to assist claimants with the development of their claims at the outset of the adjudication process began a downward spiral. In precedential decisions of the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit, the VA’s duty to assist has been eroded to the point where it is now being used offensively to summarily deny claims for benefits without consideration of evidence that could not only render a claim well-grounded, but also warrant a favorable decision on the merits. See, e.g., Grivois v. Brown, 6 Vet.App. 136 (1994); Caluza v. Brown, 7 Vet.App. 498 (1995); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, __ U.S. __, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998).

The courts have accomplished this by narrowly defining the term "well-grounded". Since the enactment of the Veterans Judicial Review Act of 1988 (VJRA), the VA has been quite accepting of these definitions. Prior to the VJRA, the VA treated the well-grounded claim requirement as the low threshold that it was intended to be. That changed once the courts began to reset the parameters. The VA, as the agency charged with effectuating veterans benefits statutes, could have, in effect, advised the courts that their onerous definition of well-groundedness was incorrect, or that it was permissibly exercising its administrative discretion to assist claimants at the front end of the adjudication process. It has done neither. In the absence of administrative policy making, the courts have stepped in and established a policy for the agency. The problem is that the courts’ decisions lack historical consistency. In some cases, the courts describe the requirement of a well-grounded claim as a low threshold to merits consideration. See, e.g., Robinette v. Brown, 8 Vet.App. 69, 76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). See also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In other cases, however, the courts define well-

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groundedness in terms of the requirements that a claimant must satisfy in order to prevail on the merits. This schizophrenic rubric, for example, has resulted in the absurd require-

ment that a veteran seeking entitlement to service connection submit evidence that is legally sufficient to prove his or her claim, prior to the VA undertaking any meaningful development. Generally, to establish service connection, a veteran must submit (1) medical evidence of a current disability, (2) medical, or in certain circumstances lay, evidence of the incurrence or aggravation of an injury or disease during service, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet.App. 341, 345 (1999); Davis v. Brown, 10 Vet. App. 209, 212 (1997). This, of course, is the same as the test for well-groundedness set forth in Caluza and Epps, both supra. As a result, the VA’s duty to assist has become a nullity; completely overrun by the judicially defined obligation that claimant must first definitively prove his or her claim before the VA will even consider it.

Threshold to adjudication - plausible vs. definitive claims

The dichotomy between the notions of well-groundedness as a low threshold (i.e., a plausible claim) or as an ultimate burden of proof (i.e., a proven claim) came to a head in the Court of Appeals for Veterans Claims’ decision in Morton v. West, 12 Vet.App. 477 (1999). In that decision, the Court opined that it is essentially illegal for the VA to provide even a minimal level of assistance in developing a claim for VA benefits, if that claim is not well-grounded. In so doing, the Court determined that 38 U.S.C. § 5107(a) clearly required the submission of a well-grounded claim before the VA’s duty to assist arises, and that the provisions of the VA’s adjudication procedures manual and policy statements were invalid because they were contrary to the statute. The Court’s decision also had the practical effect of indirectly further invalidating several VA regulations that deal with the duty to assist, as well as those that concern establishing service connection for certain types of disorders (e.g., presumptively service-connected conditions and undiagnosed illnesses in Gulf War veterans).

In response to Morton, the VA, on August 30, 1999, issued a letter to its regional offices that immediately rescinded the duty to assist manual provisions and instructed adjudicators to strictly adhere to the well-grounded claim requirement. Adjudicators were also instructed to review all claims to determine if they are well-grounded prior to beginning development, and to advise claimants whose claims are not well-grounded to provide evidence sufficient to well ground their claims within 30 days or face summary denial. While adjudicators were directed to request service medical records and sufficiently identified VA medical records prior to denying a claim as not well-grounded, they were ordered to refrain from requesting private treatment records or any other documents, even if the claimant has sufficiently identified such documentation.

March 23, 2000 

On December 2, 1999, the VA published a proposed regulation in the Federal Register concerning a claimant’s legal obligation to submit a well-grounded claim, prior to the invocation of the VA’s duty to assist. See 64 Fed. Reg. 67,528. The proposed

regulation, which amends 38 C.F.R. §3.159, essentially codifies the procedures established in the August, 1999 letter to the regional offices. The regulation also contains certain limited exceptions to these procedures that allow for some development, even if the claim is not well-grounded (e.g.¸ claims filed within one year of separation from active service; evidence of medical treatment being denied during the previous year due to a lack of funds; the submission of competent medical evidence of terminal illness; combat veterans’ post-traumatic stress disorder (PTSD) claims (supported by competent medical evidence of symptomatology); and in-service sexual assault victims’ PTSD claims (also supported by competent medical evidence of symptomatology)). Significantly, the proposed regulation adopts the stringent definition of "well-grounded" that effectively requires submission of evidence necessary to prove a claim on the merits before the VA will provide any meaningful assistance in developing a claim for VA benefits.

If the proposed regulation goes into effect as written, the VA’s duty to assist will, for all practical purposes, be relegated to a historical footnote. The deleterious effects of a lack of evidentiary development prior to a determination of well-groundedness have grave consequences beyond a veteran’s entitlement to disability compensation. Often, VA treatment of physical or psychiatric conditions is withheld until a veteran has established service connection for his or her disorder(s). An impediment to an award of service connection frequently translates into an impediment to vitally needed treatment. This presents a serious health problem. Quite literally, these are matters of life and death.

Chilling effect

In a related matter, VVA’s service representatives have advised that VA Compensation and Pension (C&P) Service physicians and psychiatrists have been instructed not to provide statements or opinions that would assist veterans in establishing well-grounded claims (generally, with regard to the medical nexus requirement). We have been told that some of these providers have actually been warned of disciplinary action if they elect to assist veterans in this respect. This practice flies in the face of not only the duty to assist, but also a Veterans Health Administration (VHA) directive (No. 98-052, Nov. 18, 1998) that lifted restrictions on C&P Service physicians to provide claims-related opinions for their patients. Often, VA doctors are a veteran’s sole treating physicians and are in the best position to provide the medical evidence necessary to establish entitlement to service connection. Clinicians cannot operate effectively in a climate of fear, which can only result in a chilling effect on the willingness of VA practitioners to assist veterans. Although the authority for the VHA directive expired on September 30, 1999, it is our understanding that the policy has been informally

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continued, but that no final decision has been made as to whether the policy will become permanent. Interestingly, the VA has codified allowing C&P Service physicians to complete certain non-VA disability-related benefit forms in its health care service enroll-

ment regulations (38 C.F.R. § 17.38(a)(xiv)). See 64 Fed. Reg. 54,217 (Oct. 6, 1999).

Solutions

VVA believes that the current state of affairs with respect to the VA’s duty to assist claimants is intolerable. Too much attention has been focused on the well-groundedness requirement, to the point of virtually obliterating the duty to assist. In this respect, VVA believes that the only way to remedy this situation is through legislative action. There is no indication that the courts, which have already struck down VA policy manuals and statements that provide for evidentiary development prior to determining well-groundedness, will be any more generous toward the VA’s proposed regulation concerning the duty to assist before a claimant satisfies the obligation to submit a well-grounded claim. There is evidence that even the Court of Appeals for Veterans Claims agrees on this point. In Morton, supra, Judge Farley, writing for the Court, stated that:

Congress, of course, can choose to change or eliminate the well-grounded claim requirement altogether. Indeed, it is possible that after evaluating such considerations as fairness, equity, and the personnel, facility, and financial expenditures which would berequired, Congress might well opt for requiring the Secretary to assist and examine all veterans, regardless of whether well- grounded claims have been submitted.

Id., 12 Vet.App. at 485-486.

When Congress enacted the VJRA, it made itself clear that the VA’s duty to assist veterans in the development of their claims is of paramount importance. To this end, the Secretary was given the authority to do so, even before a well-grounded claim had been established. The VA’s efforts to exercise its Congressionally mandated discretion have been curtailed by the judiciary to the point of elimination. Moreover, the VA’s "solution" to the problem, i.e., its proposed regulation to amend 38 C.F.R. § 3.159, simply will not work. As discussed above, the regulation essentially requires the submission of a meritorious claim for even initial consideration. VVA therefore applauds Congress’ efforts to assists veterans in its own right.

Any statute designed to reestablish the duty to assist as Congress intends it must be specific enough to preclude what has happened before from happening again. Congress must explicitly state that the well-grounded claim requirement (or any preliminary procedural substitute) is, in fact, a low threshold akin to a pleading require-

March 23, 2000 

ment, rather than an evidentiary requirement. See, e.g., F.R.C.P. 8(a) and (e) (which require only a short and plain statement of entitlement to relief). Thus, if a veteran makes a plausible claim, one capable of substantiation, the claim should move forward and he or she must receive the benefit of the duty to assist. Congress should also make clear that the doctrine of "benefit-of-the-doubt" applies to determinations of well-groundedness, and that once the determination is made in favor of the veteran, it will not be revisited by any element of the VA, including the Board of Veterans’ Appeals, unless it can be shown that the claimant was notified that the claim is not well-grounded and that he or she was given the opportunity to submit any necessary evidence to render the claim well-grounded.

To this end, VVA respectfully proposes that Congress include in the "Duty to Assist Veterans Act" the following description of a claimant’s responsibility to submit a well-grounded claim and the VA’s duty to assist a claimant with the development of that claim:

Except as otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for a benefit under a law administered by the Secretary shall have the burden of proving eligibility for that benefit. That burden will be satisfied where a claimant asserts that there exists competent evidence with respect to each element necessary to establish en-titlement to the benefit sought. Evidence will be considered to be competent where the person offering it is qualified to offer a statement or an opinion on the matter.The Secretary will presume the credibility of evidence offered to establish eligibility for the benefit sought, unless it is inherently incredible. If a statutory or regulatory presumption relieves a claimant from having to submit evidence concerning specific elements to establish such eligibility, the claimant need not submit evidence with respect to those elements. The Secretary shall assist a person who satisfies this burden in developing evidence pertinent to an adjudication of the claim.

VVA believes that only by including such explicit language can Congress prevent the repetition of the injustice currently visited upon deserving veterans and their families.

The elimination of continuous recycling of individual claims on the basis of well-groundedness will conserve precious administrative and judicial resources. More importantly, it will allow the VA to execute the mission it was created to accomplish.

March 23, 2000 

Vietnam Veterans of America sincerely appreciates the opportunity to present our views on this matter of vital concern to veterans, their dependents and the American people. We look forward to working with Congress on this and other important issues.

Director, Veterans Benefits Program 

Leonard J. Selfon, Esq., has served as the Director of VVA’s Veterans Benefits Program since September, 1999. In that position, he is responsible for the training and oversight of more than 400 accredited service representatives nationwide, and supervises VVA’s representation of veterans and their dependents before the Board of Veterans’ Appeals and the Federal courts. In addition, Leonard serves as a contributing writer and managing editor of VVA’s publication Veterans Benefits News, which contains the latest information on legislation, regulations and court decisions that affect veterans benefits law.

Between 1991 and 1998, Leonard served as counsel to the Secretary of Veterans Affairs, working as a Senior Appellate Attorney in the VA Office of the General Counsel. His primary responsibility was to represent the VA in all aspects of appellate litigation before the U.S. Court of Appeals for Veterans Claims. Upon leaving the VA in October, 1998, Leonard served as a veterans law consultant to both the Veterans Consortium Pro Bono Program and to members of the private veterans bar. He has also had experience in the corporate law sector, having served as legal consultant to a national health insurance carrier.

Leonard is a graduate of the University of Maryland and the University of Baltimore School of Law.

March 23, 2000 

The national organization Vietnam Veterans of America (VVA) is a non-profit veterans membership organization registered as a 5019(c)(19) with the Internal Revenue Service. VVA is also appropriately registered with the secretary of the Senate and the Clerk of the House of Representatives in compliance with the Lobbying Disclosure Act of 1995.

VVA is not currently in receipt of any Federal grant or contract, other than routine allocation of office space and associated resources in VA Regional Offices and the Board of Veterans Appeals for outreach and direct services through its Veterans Benefits Program (service representatives). This is also true of the previous two fiscal years.

For further information, please contact:
Director, Government Relations
Vietnam Veterans of America
(202) 628-2700, extension 127

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