House Committee on Veterans' Affairs

TESTIMONY OF

RICK SURRATT

DEPUTY NATIONAL LEGISLATIVE DIRECTOR

OF THE

DISABLED AMERICAN VETERANS

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS

SUBCOMMITTEE ON BENEFITS

UNITED STATES HOUSE OF REPRESENTATIVES

MARCH 23, 2000

Mr. Chairman and Members of the Subcommittee:

I am pleased to come before you to state the views of the Disabled American Veterans (DAV) on the "well-grounded" claim requirement imposed upon the Department of Veterans Affairs (VA) by the courts; the problems related to that requirement; and H.R. 3193, a bill that would remedy those problems. For the reasons I will discuss below, the DAV considers this an extremely serious problem that makes enactment of remedial legislation an urgent matter.

Although the courts have given it an entirely new meaning, the requirement that veterans establish that their claims are well grounded is not a new one. This requirement existed in administrative practice since the 1920s. This was the standard for determining whether a veteran had satisfactorily proven entitlement to the benefit claimed. Under VA’s administrative rule, now 38 C.F.R. § 3.102 (1999), "the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded." This rule is consistent with the traditional rule that a person making a claim has the burden of proving that claim. In the VA claims system, VA has a legal duty to assist the veteran in obtaining evidence from the military, from VA facilities, or from private sources, however. This "duty to assist" is in recognition that the government has a special obligation to help veterans prosecute their claims and ensure they receive the benefits a grateful nation has provided for them. The system was designed to obligate VA to work in veterans’ best interests and deliver benefits to them without their being required to have expertise in VA law or to retain representatives to argue their cases. Unlike judicial or other administrative proceedings, VA’s procedures were to be informal and helpful to veterans, in the spirit of the benevolent purpose of veterans’ programs.

While requesting records from Government or private sources is a simple and routine task for VA, it can be well beyond the ability of many veterans. The laws concerning maintenance of records and privacy are designed to allow routine exchange of information between Government entities and contemplate agencies providing such information directly to one another, while these same laws place certain restrictions on release of information to individuals. For example, 38 U.S.C. § 5105(b) provides that certain claims for Social Security benefits will also serve as claims for VA dependency and indemnity compensation (DIC), or vice versa, and that the agency which receives the application will transmit it and supporting documents to the other agency. Under 38 U.S.C. § 5106, the head of any Federal agency must furnish the information VA requests for purposes of determining eligibility for benefits. However, 5 U.S.C. § 552a (f)(3) (the Privacy Act of 1974) permits Federal agencies to deny disclosure of medical information directly to an individual when, in the judgment of the agency, the information could have an adverse effect upon the individual, and 38 U.S.C. § 5701(b)(1) requires VA to release information to veterans or claimants only when such disclosure would not be injurious to the physical or mental health of the veteran or claimant. Similarly, state laws allow state and private entities to refuse disclosure of medical records to individuals when a physician or other health care provider has determined that the information would be injurious to the patient’s health or well being.

When Congress was considering legislation to authorize judicial review of VA’s claims decisions, it realized that judicial review might tend to change VA’s paternal relationship with veterans. Congress also realized that courts tend to favor formal procedures. To preserve the informal characteristics of the existing claims process and to protect against abandonment of VA’s duty to assist and its liberal burden of proof in the environment of judicial review, Congress adopted the rule on well-grounded claims and the duty to assist and included them in the law. The sole reason Congress saw fit to incorporate these administrative rules in the law was to preserve them and ensure their continued application. However, simply because the law stated the well-grounded claim requirement first and the duty to assist second, the Court of Veterans Appeals, now the Court of Appeals for Veterans Claims (CAVC or "the Court"), interpreted the law to mean that veterans are required to prove their claims are well grounded before VA has any duty to assist them in gathering evidence. That interpretation obviously defeats the duty to assist because, to be entitled to VA assistance, veterans must first do alone the very thing for which they seek assistance. Under that interpretation, the law negates its own object. This misinterpretation of the law fundamentally changed VA’s claims procedures in ways that adversely impact upon veterans seeking benefits and VA alike.

A brief comparison of the procedures that existed before with those that exist after the court-imposed change aids in understanding how the court-imposed procedure has impacted upon veterans and VA. Under the VA procedure that existed from the 1920s until CAVC changed it, the process was simple. On the application form for the benefit being claimed, the veteran provided VA with all the relevant information about his or her military service and the sources of evidence to prove entitlement. Once the veteran filed the application, VA clerical personnel proceeded to request all necessary records from Government and private sources. After all available pertinent evidence was received, the claim was referred to an adjudicator for a decision. For example, when a veteran claimed service connection for combat wounds, injuries, or a disease, VA requested the military medical records to determine whether they showed the disability during service. When the service medical records were received, the case was referred to a rating board for a decision. In the case of injuries serious enough to leave residuals or chronic diseases of service origin, verification of service incurrence established entitlement to service connection. VA then ordered an examination to determine the current level of disability and what disability rating should be assigned. Where the service medical record showed presence of the claimed disease but was insufficient to demonstrate that the disease was "chronic," that is, one that is not merely temporary in nature, VA would obtain any available post-service treatment records to determine if they demonstrated persistence of a chronic disease. Occasionally, questions would arise as to whether certain symptoms or manifestations were related to and a part of the service-connected disability or some nonservice-connected cause. In such case, VA rating boards would ask for an opinion from the VA examining physician.

Through established channels and set procedures for exchanging information between agencies, VA routinely developed millions of claims in this manner. VA was not taking the burden of proving the claim upon itself: it was merely assisting the veteran in the task of obtaining available evidence. This system was advantageous and efficient for VA because VA controlled an orderly, methodical process of record development and claims adjudication. VA employees knew what material facts had to be proven in each type of claim and how to go about obtaining the relevant evidence, where veterans generally do not understand these complexities. This system worked well for VA and veterans.

Through a misinterpretation of law that neither the Court nor VA is willing to admit though it is obvious, that simple, efficient, equitable, and time-tested system has been turned upside down and replaced with one characterized by confusion on the part of veterans and VA employees, lack of uniformity, unnecessary formalities, duplicative work processes, protracted appeals to resolve only procedural issues, added expense for veterans, and unjust denials of meritorious claims.

Under the process imposed by the Court, in which the veteran must show that the claim is well grounded as the first step, the veteran must provide, without assistance, evidence to preliminarily establish all material facts before VA has any duty to assist him or her. Where, under the previous procedure, VA gathered all relevant evidence and disposed of the claim with one decision, now, under the court-imposed process, veterans must prove the material facts preliminarily and again for the ultimate decision, and VA must make at least two decisions on every claim. The very first step for VA is a decision as to whether the claim is well grounded. If the application is accompanied by evidence sufficient to establish that the claim is well grounded, or if the veteran later submits evidence sufficient for this purpose, VA theoretically or ostensibly assists the veteran in gathering more evidence to prove the claim ultimately. In reality, the same evidence that serves to establish that the claim is well grounded, in most instances, is necessarily the same, and only, evidence that can serve to prove the claim ultimately. This process therefore rests on the pretense that, once the veteran has provided evidence to demonstrate that the claim is well grounded, VA will assist the veteran in gathering separate evidence to prove the claim ultimately. The net effect of the pretense is one in which VA avoids the duty to assist by requiring the veteran to obtain the necessary evidence without VA assistance, with full knowledge that no further evidence can be obtained. In many kinds of VA claims, only one document can serve to prove an element of the claim, and no possibility exists for gathering separate evidence to prove the claim ultimately.

Despite this pretense and the real fact that there can only be one set of evidence in most cases, two decisions are nonetheless a required formality for every claim. To avoid assisting the veteran, VA is willing to go through all the effort of making at least one additional decisionž and often more than one additional decisionž that accomplishes nothing beneficial, but clearly wastes time, effort, and resources. With each additional decision on a claim, VA must also provide the veteran an additional notice. As is readily apparent, the requirement for two decisions in place of one could almost double the amount of work that must be done by VA to dispose of claims.

That is only part of the story, however. This court-imposed procedure has complicated the process for both veterans and VA employees. Different types of claims present different questions of fact. However, the Court has articulated a three-part general formula for establishing a well-grounded claim for service connection that, for many types of cases, goes well beyond the requirements of law, and even common sense. As a result, VA requires veterans to provide evidence to preliminarily establish facts that are not required to prove ultimate entitlement. As a consequence of the inappropriate generalization in that formula and their lack of training in understanding the fine distinctions between a court decision on one type of case and a court decision on a slightly or substantially different type case, VA employees often fail to understand what is required in a given case, and their decisions are wrong. VA adjudicators are even denying claims because veterans failed to prove, as part of the well-grounded requirement, facts that the law presumes. VA’s written explanations and instructions to veterans are often vague, ambiguous, contradictory, or erroneous. Great variations exist between the interpretations and practices of different VA regional offices. The resulting confusion and frustration on the part of veterans creates an environment of disagreement and mistrust and provides fertile ground for appeals and the necessity for even more decisions to resolve claims.

To establish that a claim for service connection is well grounded under the Court’s three-part formula, a veteran must provide evidence to demonstrate (1) that he or she incurred or suffered aggravation of a disability during military service, (2) that he or she has a current disability, and (3) that there is a causal connection (a "nexus") between the disability shown during service and the disability that currently exists. Under VA’s instructions on the application of this formula, lay evidence can be "competent" for purposes of establishing service incurrence or aggravation if it involves "an event that is ordinarily susceptible to observation and verification by lay persons"; otherwise, "medical evidence will be necessary." However, "[m]edical evidence is required to establish the current disability and nexus requirements."

This formula requires more to establish that the claim is well grounded than VA’s rules require to prove service connection for most disabilities, including chronic diseases, tropical diseases, and injuries. Under VA’s rules governing service connection, if evidence shows that a veteran incurred multiple sclerosis, for example, during military service, that alone proves service connection. In such instance, current disability has no bearing on the question of service connection; it is relevant only to assigning a disability rating. Inasmuch as multiple sclerosis is a chronic disease with permanent physical damage to the nervous system, it is absurd to require the veteran to provide medical evidence to prove that he or she currently has multiple sclerosis and a physician’s opinion to demonstrate that the current multiple sclerosis is related to the multiple sclerosis shown during service.

Similarly, it is absurd to require a veteran who lost an eye, a leg, or an arm, for example, during service to provide medical evidence that he or she still has a missing eye, leg, or arm and a physician’s opinion that the missing eye, leg, or arm shown today is the same eye, leg, or arm lost during service.

Under VA’s long-standing rules governing proof of service connection, evidence of current disability and a link to disability shown during service is required only in cases where those facts are legitimately in question, such as in the case of a disease not clearly shown to have been chronic during service.

Under the law, a veteran is entitled to a nonservice-connected disability pension if the veteran has qualifying wartime service, income within prescribed limits, and disability that is either permanent and total under VA medical criteria or, alternatively, is shown to render the veteran unemployable. Permanent and total disability is conclusively established for any permanent disability that meets the requirements for a 100% evaluation under VA’s rating schedule. In addition, VA regulations provide that loss or permanent loss of use of two extremities or the sight of both eyes, or being permanently helpless or bedridden, conclusively establishes permanent and total disability. Where the veteran has a disability that is permanent and total under these rules, the veteran is not required to provide evidence of unemployability. Yet, VA’s instructions to its field office adjudicators, require all veterans seeking pension to provide medical evidence that they are unemployable to make the claim well grounded. That means that a veteran with amputation of both legs or removal of both eyes could come to VA, file an application for pension, and have the claim denied as not well grounded because the veteran did not provide "medical" evidence to show that he or she is unemployable.

Purportedly, all claims governed by procedures in 38 C.F.R., part 3, are subject to the well-grounded claim requirement. Therefore, a well-grounded claim is a preliminary prerequisite that the veteran or claimant must satisfy before VA will make a second decision to determine entitlement to a wide range of benefits such as the clothing allowance and burial allowance. As discussed below, it is impossible for the veteran or claimant to provide the evidence to preliminarily prove certain elements of these kinds of claims for purposes of meeting the well-grounded requirement.

Our National Service Officers (NSOs), who provide representation to veterans and other claimants across the country, have reported serious injustices and widespread problems related to VA’s attempt to follow the Court’s requirements on the well-grounded claims. They report that the procedure generally places undue burdens upon veterans who often experience difficulty in understanding VA’s confusing instructions and what is required of them, that veterans experience difficulty in understanding how and where to obtain the evidence necessary to establish that their claims are well grounded, and that veterans incur expense in obtaining evidence that is typically provided to VA free of charge. Our NSOs also report that this procedure provides a way for VA to quickly and easily deny claims, that it is used by some VA regional offices as a way to make it appear their timeliness is improving, and that some regional offices are so hasty in finding claims not well grounded that they neglect to note that the application was accompanied by evidence to make the claim well grounded. We have received far too many complaints to quote them all here, so we will provide only a sample.

One of our NSO supervisors reported several of these problems related to VA’s implementation of the court-imposed requirements and explained how they negatively impact on veterans and VA:

As a result of implementation of instructions contained within VBA [Veterans Benefits Administration] letter 20-99-60, it is the observation of this representative that the burden being placed upon the veteran to put forth a well-grounded claim is the highest it has ever been. It is apparent that as the VA attempts to rethink [its] adjudicative process, the well-grounded claims instructions implemented in the VBA letter allows VA to lower [its] timeliness rates, and at the same time, place an unfair burden upon the veteran and his/her representative to undertake their development process. This process will allow the VAROs [VA Regional Offices] around the country to meet their score card goals which will reflect better timeliness and less pending claims, but the long term effect will mean an increased number of appeals in [an] already overwhelmed appeals process.

. . . . We are assisting the veterans in compiling the required documentation to set forth a well-grounded claim at its inception to include copies of service medical records (SMRs) being provided with the original application for benefits. The RO is issuing 30-day not well-grounded letters even though the veteran is filing his original claim within a year after separation from service and providing the necessary medical evidence. This is bringing the claims processing to a snail’s pace on original claims. We are informing the RO that there are no private medical records to obtain and requesting examinations, if needed, for the purpose of facilitating a rating decision. This station currently has approximately 7,200 cases pending. When we enter a memorandum into the system informing the Adjudication Division that additional medical evidence exists at a VA Medical Center (VAMC), by the time that memorandum is being matched with the claims folder, the rating decision has already been accomplished as a result of no response within the VA’s 30-day well-grounded letter. Once the memorandum is associated with the claims folder, the RO is obtaining those records and undertaking the proper development at that point. I have spoken to several VBA Adjudicators on station; they are as frustrated as we are concerning the instructions that are being implemented concerning this issue. . . .

My office is dealing with a host of frustrated veterans who cannot understand why the VA is requiring them to do a majority of the legwork in accomplishing their claim for benefits. This entire process has had an adverse effect on not only the veteran, but the Adjudication Division itself. This station has noticed a decline in the timeliness rate on several of their EPs [end products]. However, once the medical evidence that was solicited in the 30-day letters [is] associated with the claims folders, the folders are being routed back to the original Adjudicators to undertake proper development that would have been done the first time, if not for these new instructions. I believe the consequences of the not well-grounded instructions are counterproductive to the VA’s own adjudicative processes and they are most certainly unjust to the veterans who file claims and expect an accurate and timely decision surrounding their benefits application.

Our NSO supervisor at the Buffalo, New York, office summarized the situation as follows:

To the extent that a pattern has emerged from this RO’s application of the WGC [well-grounded claim] criteria, it is that the WGC criteria seems to be a convenient adjudicative "shield" that permits the RO to dispose of claims expeditiously without, of course, developing evidence to decide the claim on the merits. When in the adjudicative hands of a rating board member it has become an effective tool to avoid developing claims, and of shifting the responsibility for development of the claim. This in turn results in multiple reviews and decisions on the same claim, which doesn’t only exist at the local level, it extends through the BVA [Board of Veterans’ Appeals] and even the CAVC. This is quickly developing into a vicious cycle resulting in a more bogged down claims process than what currently exists. Veterans are becoming more frustrated and distrustful towards the system, which Congress initially established to assist them for their service to this great country.

Our supervisor in Louisville, Kentucky, explained that veterans do not understand the complexities of the new process, and the complexities are compounded by unclear VA instructions in written notices:

The DVA’s [VA’s] letter that provides a lot of technical language about the way a claim may be well grounded compounds this problem. Frequently, the DVA fails to even specify what issue is not well grounded, instead relying on a generic one size fits all form letter providing a definition of well grounded, and informing the claimant that a 30 day period will be allowed to well ground the claim before the DVA proceeds with rating the issue.

This supervisor observed that requiring veterans to obtain medical records has a particularly adverse effect upon homeless veterans: "Additionally, we have noted problems with homeless veterans. Even if they do happen to actually receive the incomplete application notice, they have no way to obtain the records from various places they have been treated, often covering several states."

After discussing problems related to specific types of claims, including denial of claims of former prisoners-of-war as not well grounded and delays inherent in the new procedure, this supervisor observed that the current process adversely affects VA, causes unfair denials, and leads to appeals:

While this policy change may initially seem to relieve some of the stress placed on the adjudication section, our observation shows it actually increases the length of time for an average claim, and results in extra workloads being placed on the appeals team and the Hearing Officers. These denials based on not being well grounded inevitably result in an appeal by the victim of the policy change, the standard applicant for benefits.

In conclusion, we feel the DVA’s policy change has resulted in the denial of many claims that would have been granted if they had proceeded to obtain the medical records from service and records shown on VA Form 21-4142 [veteran’s authorization or release of medical records to VA]. Kentucky’s veteran population is frequently unable to understand the generic letter of impending denial, and inevitably reply with a Notice of Disagreement when the final denial is provided.

Our supervisor in Lincoln, Nebraska, provided an example in which a veteran who was released from service on December 22, 1999, filed an original application for compensation on January 31, 2000, accompanied by service medical records showing the disabilities claimed, and received a letter from VA stating that his claim was not well grounded. Where a veteran has just been released from military service and provides evidence of disability during that service that has just ended, it is absurd to require medical evidence of a "current" disability and medical evidence to demonstrate that the current disability is the same, or related to the same, disability shown in service. Under the prior procedure, it having been proven that the veteran incurred disability in service, a rating board would have had the veteran examined to determine the severity of the disability and then awarded service connection.

Several other supervisors complained that VA denies claims as not well grounded even though the veterans have just been released from active duty and provide with their applications their service medical records showing the disabilities claimed. These examples are too numerous to include here, but we provide the comments of our supervisory NSO in Detroit, Michigan:

Recently discharged veterans are being called to "well ground" their claims for service connection by furnishing medical evidence their claimed disabilities still exist. Little consideration is initially given by Rating Board members to determine whether or not service medical records document a chronic condition rather that an acute disability before well-grounded development is initiated. For example, a recently discharged veteran (1-16-00) filed a claim for service connection for a number of disabilities on January 6, 2000, ten days prior to his discharge. . . . The veteran was asked to well ground his claim with current medical evidence showing the continued existence of these claimed conditions. The veteran’s separation physical showed either diagnosis or continued complaints of the veteran’s claimed conditions. [In response to a complaint by the NSO, the rating board member] indicated that his instructions were that the proximity of the date of the veteran’s discharge . . . did not alter the requirement for well-grounded development. In this case, the veteran himself called his DAV representative when he received the VA request and asked why he needs to furnish current medical evidence when this two-month old separation physical showed the existence of these conditions.

Our supervisor in Hartford, Connecticut, was one of several who complained that VA is inappropriately denying claims of recently discharged veterans as not well grounded. She noted regarding the well-grounded claim requirement: "it appears to me that it is an easy way of clearing one’s desk and quickly disposing of a claim by denying the claim as not being well grounded." She also noted that the well-grounded requirement is causing veterans undue financial hardship because they have to pay physicians to get opinions to establish that their current disabilities are related to the same disabilities shown during service:

Although the VA came out with VHA Directive 98-052 allowing VA physicians to offer opinions as to etiology of a claimed condition, trying to get the opinion is extremely difficult nonetheless. Many physicians still fear retribution, don’t have the time to review the necessary papers or outpatient treatment records, or are unaware the restrictions to offering an opinion have been lifted. Thus, forcing the veteran to secure private physician opinions and seeing different specialists for each condition claimed. This has essentially barred some veterans from obtaining benefits at all when they get no cooperation from the VA Medical Center physicians and cannot afford to seek a private opinion.

Some veterans rely on VA as their sole source of medical care; however, many VA physicians are reluctant to provide veterans with opinions to support benefit claims. On the other hand, VA physicians at some locations are providing medical opinions to link current disability with that shown during service. Unfortunately, this expends the time and resources of VA medical facilities. On this point, our supervisor from Albany, New York, remarked: "This has also created additional work for the VA Medical Center where primary care providers are being requested to provide statements in order to well-ground claims."

Due to the problems obtaining medical opinions to satisfy the so-called nexus requirement of a well-grounded claim, our Hartford supervisor remarked: "Unfortunately, this has caused some veterans to become quite irate and drop the claim, distrusting the government to ‘do the right thing.’ Veterans have complained that they have to ‘jump through hoops’ to get any benefits." She concluded: "The only entity the Morton decision [the CAVC decision that held VA cannot voluntarily assist veterans who have not established well-grounded claims] is helping is the Department of Veterans Affairs, certainly not the disabled veterans. It has enabled VA to dispose of mass claims in an expeditious manner and bring their ‘numbers’ up to a more socially/politically acceptable level."

A number of our offices complained that VA is exploiting the well-grounded claim requirement to quickly dispose of claims, while allowing other claims to go unresolved for long periods of time. Our supervisor in New York City stated:

Without a doubt, the RO has placed an unprecedented effort on the NWG cases. This has caused delay on the handling of other end products. Furthermore, in the rush to get the cases completed, decisions are being made without a thorough search of the mail. This results in denials based on the veteran’s failure to [respond] to the initial NWG letter when in actuality the veteran responded timely, but his/her response was not associated with the claims folder when the rating decision was made. This is not to say we do not have the regular run of the mill errors.

Some of the letters are inaccurate or just too complicated for the average person to understand. However, the worst outcome has been the burden placed on a population that is usually under employed, without quality health care, and . . . many of whom are homeless. They must now obtain quality medical evaluations, which are often expensive, in order to get their claims considered. Many just do not bother.

From information provided by DAV’s field offices, some VA regional offices obtain service medical records for veterans, others do not, and some obtain them only for recently discharged veterans. Our supervisors report substantial inconsistencies in applying the requirements, even among different adjudicators within the same regional offices. Apparently, a few directors of VA regional offices believe the well-grounded claim requirement is so contrary to the philosophical bases underlying veterans’ programs that they either have not implemented the requirement at all or enforce it very loosely. It is also apparent that some VA adjudicators themselves often do not understand the requirements. One of our supervisors remarked: "As to the proper understanding of the well grounded concept in this RO, I could ask ten different adjudicators their interpretation of the requirements and get ten different answers." Without a doubt, VA’s letters to veterans from all offices are confusing for the average person. Also, when VA’s letters inform veterans they must provide service medical records, the letters do not tell veterans where to write for those records. Veterans everywhere are having great difficulty understanding and fulfilling the well-grounded claim requirement. They are having difficulty fulfilling it because they rely on VA for their medical treatment, but cannot get VA to provide the required medical opinions, and they cannot afford to obtain them from private sources or cannot afford to pay for copies of private treatment records. One office reported problems related to medical care providers refusing to release medical records directly to veterans on grounds that information in the records would have harmful effects upon the veterans.

The problems just discussed are some of the ones that seem most prevalent, although our supervisors report many more. Our supervisor in Nebraska provided these general observations about the well-grounded claim requirement and its effects:

It is the opinion of this representative the implementation of the well-grounded claim process has adversely impacted the veterans of Nebraska. The adverse effect is noted in increased frustration, delay in processing of claims, and increased paperwork and workload due to Notices of Disagreements being filed which would not have been needed had the claims been properly adjudicated after assistance had been given in the pursuit of the veteran’s claim.

The frustration on the part of the veteran results in continued distrust of the VA claims process and the feeling the Government they fought to defend has let them down once again. In a few instances our veterans have stated they wish to "just forget it". We have found in some of our veteran’s cases they do not have the money nor insurance needed in order to obtain the evidence requested and therefore ultimately find they are unable to pursue the claim.

In addition to the veteran population, we have found the local VARO employees see the overall process as an additional cog in the wheel of veteran’s claims, resulting in a decrease in the processing of pending claims.

Our supervisor in Chicago summarized the situation there, which seems to be typical of many VA regional offices:

In the short time the Chicago VARO has been utilizing the policies mandated by VBA Letter 20-99-60 a wide array of letters are being sent to claimants indicating their claims have been denied as not well-grounded. . . . Additionally, we believe the different letters being sent to claimants are confusing and lacking detailed information. This has caused an increasing need for our office to intervene and provide clarification . . . .

Seemingly, local practice, as indicated by the enormous amount of claims denied since October 1999, has warmly embraced and accepted this practice, thereby taking advantage of the well-grounded claim requirement. The number of claims, which have been denied since October 1999, is indicative of an adversarial process without conscience. Although there have been claims rightfully denied as not well grounded, we have returned a number of claims for corrective action.

The local adjudicators seem to have proper understanding of the well grounded concept and requirements as defined by VBA Letter 20-99-60; however, we are of the opinion that some adjudicators are quick to deny a claim as not well grounded based upon a workload factor instead of fairly disposing [of] the claim . . . .

Overall, we believe this practice is counterproductive and unjust by unfairly imposing requirements on claimants to develop their own claims, or provide evidence without VA assistance. As you know, a vast number of claimants do not have the ability or means to fulfill these requirements without VA assistance. [T]herefore . . . claimants may never receive those rightfully earned benefits.

Our supervisor in Des Moines, Iowa, remarked that the well-grounded claim requirement "has placed an unjust burden upon the shoulders of many claimants who have legitimate claims and have caused the VA to become an adversarial place." He noted:

A number of claimants have walked away from their claim or even filing a claim, simply because they don’t feel that the VA is doing what it is supposed to be doing and therefore why even try. To quote a number of claimants that I have spoken with: "The Government has found another way to screw us vets." I think this can sum up what many are thinking.

Again, this represents only a sample of the complaints our NSO supervisors have made regarding this issue.

Certainly, the adverse effects of this requirement do not distinguish between the most meritorious claims and those in which entitlement may ultimately be found to not exist. We are aware of one recent case in which VA held that the claim of a Medal of Honor recipient seeking service connection for shell fragment wounds was not well grounded. Because VA quickly reversed itself when it realized what it had done and of the interest in the case, the veteran did not want us to identify his case in our testimony.

In some instances, VA imposes well-grounded claim requirements that are impossible to satisfy. Under VA practice, its adjudicators determine whether a claim is well grounded as the first action after receipt of the application. If the claim is not well grounded and the veteran does not submit satisfactory evidence to make it well grounded, VA denies the claim. As noted, to establish a well-grounded claim, the veteran must submit evidence to preliminarily establish the same facts that must be established to prove the claim ultimately. A necessary premise for dual decisionsž one on well groundedness and another on entitlementž is that one type of evidence is considered in the first decision and a different type of evidence is considered in the second. VA insists that it is not requiring veterans to prove the case to the same degree of certainty in the first decision as it is in the second. One case in which a veteran’s claim for clothing allowance was denied as not well grounded demonstrates that VA has made it impossible for the veteran to successfully prosecute a claim for clothing allowance although the evidence shows he fully meets the eligibility requirements. The law entitles a veteran to clothing allowance when he or she, "because of service-connected disability, wears or uses a prosthetic or orthopedic appliance . . . which the Secretary [of Veterans Affairs] determines tends to wear out or tear the clothing of the veteran." VA considers all leg braces with steel components to meet the requirements for the clothing allowance. However, under VA regulations, veterans must go through a process in which the appropriate VA outpatient clinic certifies that the veteran wears a prosthetic or orthopedic appliance that tends to wear or tear clothing. The request for this certification must come from the VA regional office after the veteran files a claim for the clothing allowance. The application form includes filing instructions, which say nothing about a requirement to include evidence with the application. VA’s Adjudication Manual provides that the regional office will approve or disallow the claim based on the certification provided by the outpatient clinic.

In this case, the VA Regional Office in Hawaii denied a veteran’s claim for clothing allowance. The veteran was service connected for a disability of the left knee, and the record contained evidence that the veteran wore a metal knee brace provided by VA for his service-connected disability. The record also included a written statement by the veteran that he used a knee brace which wore out his clothing. In August 1997, the regional office erroneously denied the claim on the basis that the record did not show the veteran wore a knee brace. The Board of Veterans’ Appeals acknowledged that the regional office made an error in that respect but nonetheless denied the claim as not well grounded. The Board held that a well-grounded claim for clothing allowance "has two elements: the presence of a service-connected disability, and certification by the Chief Medical Director [now the Under Secretary for Health] or his designee [the outpatient clinic has been delegated the authority to provide the certification] that because of such disability a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran’s clothing." Because the regional office had erroneously determined that the veteran did not wear the brace, it did not request the certification from the outpatient clinic. The Board held that the veteran’s claim must be denied as not well grounded because the veteran had not provided the required certification from the Chief Medical Director (i.e. the certification from the VA outpatient clinic):

The veteran has met the first prong of the well groundnesses test; namely, he has a service-connected left knee disability by virtue of the RO’s May 1997 rating decision.

He has not met the second prong of the test, however. The Chief Medical Director or his or her designee has not certified that because of such disability a knee brace is worn which tends to ware [sic] or tear the veteran’s clothing, and the veteran may not stand in the place of the Chief Medical Director or his or her designee with his own statements. The regulation specifies that the only one who is competent to render this certification is the Chief Medical Director or his or her designee.

In response to the representative’s argument to the Board that it should remand the case with an order for the regional office to obtain the certification, the Board stated that the regional office had cited the regulation that specified the requirement of the certification, and that "from a plain reading of the regulation it is easily ascertainable what type of evidence needs to be submitted to make the claim well grounded, and where the veteran can obtain it." In other words, the veteran should have known that he was required to provide this evidence to make the claim well grounded. The Board also reasoned that it could not remand the case with instructions that the regional office obtain this certification because to do so would violate the prohibition against assisting veterans who have not established well-grounded claims: "Moreover, there is no VA duty to assist a claimant who has not submitted a well-grounded claim, and in fact, VA may not assist a claimant who has not submitted a well-grounded claim." The veteran’s time pursuing this claim and appeal, from August 1997 to December 1999, was wasted. Thus, this is a situation where the veteran must provide with his application evidence to make the claim well grounded, and it must be the exact same and only evidence that can establish entitlement ultimately, but it is evidence the veteran cannot possibly provide because it can only be obtained through internal VA procedures in which an authorized regional office employee makes an official request to the outpatient clinic. Under the strict requirement of a well-grounded claim as a precondition for VA assistance, the VA official cannot provide this assistance, however. Not only is this absurd, it exposes the untruth of VA’s argument that less is required to establish a well-grounded claim than to prove the claim ultimately and that two different types of evidence exist for these two different decisions. It also strongly suggests that VA is unconcerned about using this well-grounded requirement to prevent veterans from obtaining benefits to which they are clearly entitled.

As noted, we have cases in which VA denied claims as not well grounded even though the law provided for presumption of service connection. For example, on March 3, 2000, the Buffalo, New York, VA Regional Office determined that the claim of a Vietnam veteran, an Army chaplain, seeking service connection for prostrate cancer was not well grounded, although the veteran noted on his application for compensation that he had been treated in the Syracuse VA Hospital from 1995 to the present for prostate cancer and although the law presumes service connection for prostate cancer in Vietnam veterans. Other examples of routine denials of meritorious claims on the basis that they are not well grounded are too numerous to include here.

VA has proposed regulations to implement the court-imposed requirement regarding well-grounded claims. Because the proposed regulation is based on the Court’s misinterpretation of the meaning of well-grounded claim, it is fundamentally flawed. Apart from being premised on an error in law, the proposed rule contains provisions that contravene numerous other VA rules on such matters as principles of service connection and admissibility of evidence. The proposed rule would compound many of the problems cited above and make an already bad situation worse. We have provided this Subcommittee a copy of DAV’s comments on this proposed rule, and invite your attention to them.

Other than a decision by the Court of Appeals for the Federal Circuit, or the Supreme Court, overruling the erroneous interpretation of the well-grounded requirement, the prospects of which are uncertain, this deplorable situation can only be remedied by legislation. H.R. 3193 would restore and define VA’s duty to assist and remove the well-grounded requirement from the statute altogether. The DAV applauds and strongly supports this bill, which had 109 cosponsors at last count. We urge this Subcommittee approve H.R. 3193 and report it to the full Committee as soon as possible.

On behalf of the DAV, I want to thank the Subcommittee for its consideration of this issue and for the opportunity to present our views. We sincerely appreciate your continuing support of veterans.

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