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Witness Testimony of Diana M. Rubens, Associate Deputy Under Secretary for Field Operations, Veterans Benefits Administration, U.S. Department of Veterans Affairs

Mr. Chairman, Ranking Member McNerney, and Members of the Subcommittee, thank you for the opportunity to provide the Department of Veterans Affairs’ (VA) views on pending legislation that would affect VA programs: H.R. 811, H.R. 1407, H.R. 1484, and H.R. 1647. I am accompanied today by the Acting Chairman of the Board of Veterans’ Appeals, Steven Keller, and Assistant General Counsel Richard J. Hipolit.

H.R. 811

H.R. 811, the “Providing Military Honors for our Nation’s Heroes Act,” would authorize VA to reimburse a member of a veterans’ service organization (VSO) or other organization approved by VA for transportation and other appropriate expenses incurred in connection with the voluntary provision of a funeral honors detail at a Veteran’s funeral in any cemetery, including a funeral honors detail requested by a funeral home. The bill as drafted would authorize VA to reimburse expenses for honor guards who perform at Veteran funeral services, but its scope is not limited to honors performed at VA national cemeteries. While VA appreciates the bill’s focus on supporting the provision of funeral honors, VA does not support the bill for the following reasons.

The Department of Defense (DoD), not VA, provides funeral honors details for Veterans’ funerals. DoD is required by 10 U.S.C. § 1491(a) to provide, upon request, a funeral honors detail at the funeral of any Veteran. VA and DoD have successfully partnered to provide funeral honors at VA national cemeteries. Funeral honors at national cemeteries are provided by Servicemembers, as well as by VSOs and individual volunteers on behalf of DoD. VSOs and individual volunteers may also perform this service at State Veterans cemeteries and private cemeteries. It would be anomalous for VA to reimburse individuals who provide funeral honors details on behalf of DoD.

Reimbursement by VA under H.R. 811 would duplicate reimbursement by DoD, which is currently authorized by statute to reimburse persons who participate in a funeral honors detail, other than a Servicemember who is not in a retired status or an employee of the United States, with transportation and expenses or a daily stipend. These volunteers maintain their own log of volunteer hours and expenses. Because DoD is already authorized to reimburse honor guard personnel who are not otherwise being paid for their services, H.R. 811 is unnecessary.

Additionally, H.R. 811 raises significant administrative issues for VA. To comply with H.R. 811, the National Cemetery Administration (NCA) would have to add or reassign cemetery operations staff to manage and verify the time and attendance records of our volunteers and reimburse them for conducting this DoD-administered program. Also, because no funds for this purpose have been identified or included in any VA budget request, reimbursement for this unanticipated expense would most likely have to be provided from NCA's Operations and Maintenance Account, which would divert funds from the essential activities of providing burial operations and maintaining the cemeteries as national shrines.

Finally, by authorizing reimbursement for expenses incurred by one category of volunteers, H.R. 811 would create an inequity between them and other VA volunteers. Volunteers who provide essential services at our VA medical centers, assist families at committal services, place gravesite flags on Memorial Day, and perform landscaping at VA national cemeteries may feel their service is less valued because they receive no reimbursement for their expenses.

VA keeps no data on the number of military funeral honors provided at VA or other cemeteries and defers to DoD for costs associated with reimbursement under H.R. 811.

H.R. 1407

H.R. 1407, the “Veterans’ Compensation Cost-of-Living Adjustment Act of 2011,” would mandate a cost-of-living adjustment (COLA) in the rates of disability compensation and dependency indemnity compensation (DIC) payable for periods beginning on or after December 1, 2011. The COLA would be the same as the COLA that will be provided under current law to Social Security benefit recipients, which is currently estimated to be an increase of 0.9 percent. (As a technical matter, we recommend the year referenced on page 3, line 11 of the bill be corrected to read “2011”.) This increase is identical to that proposed in the President’s Fiscal Year 2012 budget request to protect the affected benefits from

the eroding effects of inflation. VA supports the bill and believes that our Veterans and their dependents deserve no less. VA estimates that enactment would result in benefit costs of $329 million for fiscal year 2012.

H.R. 1484

H.R. 1484, the “Veterans Appeals Improvement Act of 2011,” would amend 38 U.S.C. § 7104 to improve VA’s appeals process and would establish a Veterans Judicial Review Commission to evaluate the administrative and judicial appellate review processes of Veterans’ and survivors’ benefits determinations. As discussed below, section 2 of this legislation has a common theme with a provision in a draft bill Secretary Shinseki submitted to Congress in May 2010, and VA asks the Subcommittee to review that proposal in connection with H.R. 1484.

Section 2

Section 2 of this bill would amend 38 U.S.C. § 7104 to require that new evidence submitted by a claimant after filing a substantive appeal be submitted to the Board of Veterans’ Appeals (Board), unless the claimant requests that the evidence be reviewed by a VA Regional Office (VARO) before being submitted to the Board. This new procedure would be applicable to evidence submitted on or after the date 90 days after the date of enactment.

VA fully supports the basic concept behind section 2, namely the automatic waiver of agency of original jurisdiction (AOJ) consideration of evidence submitted by a claimant following perfection of an appeal to the Board, unless the claimant or the claimant’s representative expressly chooses not to waive initial consideration by the AOJ. However, as currently drafted, section 2 would fall short of providing such an automatic waiver. Specifically, as explained in more detail below, the language of section 2 is inadequate in the following ways: (1) it addresses where evidence should be submitted instead of which office should consider it; (2) it fails to account for the fact that claimants’ representatives, rather than claimants themselves, often submit evidence; (3) it fails to account for offices in VA, other than VAROs, that make decisions appealable to the Board; and (4) it fails to require that, if a claimant wants an AOJ, not the Board, to initially consider evidence, the claimant or representative must make that request when submitting the evidence.

The establishment of an automatic waiver would improve the timeliness of appeals processing as a whole. With an automatic waiver provision the AOJ could, in the absence of other development requirements, transfer appeals more quickly to the Board following the receipt of a substantive appeal, spending less time responding to claimants who submit additional evidence after filing a substantive appeal.

Currently, an AOJ may not transfer an appeal to the Board until it has made a decision based on all evidence in the file, including all new evidence. If a claimant submits new evidence after filing a substantive appeal, the AOJ prepares a multi-page supplemental statement of the case (SSOC), which largely reiterates content from the previously issued statement of the case. If the AOJ’s prior decision is unchanged, the SSOC explains why the new evidence does not alter that decision.

After sending a claimant an SSOC, the AOJ must allow the claimant an additional 30 days to respond. If the claimant responds with more evidence, the process of review, SSOC, and 30 days to respond is repeated. This back-and­forth cycle sometimes occurs several times, and many Veterans are unaware that they are delaying the Board’s review of their appeal simply by submitting new evidence. Furthermore, the new evidence submitted often has no bearing on the issue on appeal. For example, if a Veteran must prove that a current disability is related to service, evidence of recent treatment for the disability, without any mention of the disability’s origin, is immaterial to the appeal. Nevertheless, under current law, the AOJ must review the evidence, issue a SSOC, and provide 30 days for the claimant to respond. The submission of such evidence unnecessarily prolongs the appeals process without resulting in a changed outcome.

The Board is already tasked with conducting a de novo review of all the evidence in the file. However, under current law, if new evidence is submitted directly to the Board without a waiver of initial consideration by the AOJ, the Board must remand the case to the AOJ to consider the new evidence in the first instance. With an automatic waiver, the Board would avoid time-consuming remands in cases when the appellants submit evidence directly to the Board without an explicit waiver of AOJ consideration, thereby getting final decisions to Veterans more quickly and reducing the increased appellate workload caused by the reworking of remanded claims.

As mentioned above, the language of section 2 is inadequate to establish an effective automatic waiver. VA therefore requests that the language of section 2 be replaced with a provision of a legislative proposal the Secretary of Veterans Affairs submitted to Congress on May 26, 2010. VA’s proposed language is better than that of section 2 for the following reasons.

Section 2 would require that evidence submitted by a claimant after filing a substantive appeal be submitted to the Board. Directing claimants to submit evidence directly to the Board would not clearly permit the Board to consider such evidence in the first instance. Existing law precludes the Board’s initial consideration of evidence submitted in connection with a claim, unless the claimant waives the right to initial consideration by the AOJ. Under existing case law, evidence must first be considered by the AOJ in order to preserve a claimant’s statutory right under 38 U.S.C. § 7104 to “one review on appeal,” which the Board provides on behalf of the Secretary. Given the current statutory scheme, to be effective, a waiver provision must permit the Board to review evidence without initial review by the AOJ, rather than address where the evidence may be submitted.

VA also recommends that section 2 be expanded to apply to evidence submitted by both representatives and claimants, not just claimants. Claimants often provide evidence to their designated representatives for submission to VA. Expanding the automatic waiver provision to evidence submitted by representatives on behalf of claimants will ensure that the waiver applies to evidence submitted by representatives.

Moreover, section 2 is directed toward VAROs only. However, initial decisions appealable to the Board are also made by other VA components, including NCA, VA’s Office of the General Counsel, and the Veterans Health Administration. To better account for other offices in VA that make decisions appealable to the Board, and to make the waiver provision applicable to evidence submitted in connection with decisions made by those offices, the waiver should be directed at AOJ review of evidence, not VARO review. The term “AOJ” includes not only ROs, but also other VA components that make decisions appealable to the Board.

Finally, VA also recommends revising section 2, to avoid inefficiencies in appeals processing, by clarifying that requests for initial AOJ review must be made concurrently with the submission of evidence. As currently drafted, section 2 would allow claimants to request AOJ review of new evidence they submit, at any time following the filing of a substantive appeal. If a claimant requested AOJ review after the case was transferred to the Board, the Board would have to return the case to the AOJ, possibly after having expended considerable resources in adjudicating the appeal. This result would be both inefficient and counter to the underlying purpose of the waiver provision.

Therefore, VA recommends that section 2 of H.R. 1484 be replaced with the following language from VA’s legislative proposal:

AUTOMATIC WAIVER OF AGENCY OF ORIGINAL JURISDICTION REVIEW OF NEW EVIDENCE.

Section 7105 [of title 38, United States Code] is amended by adding at the end the following new subsection:

“([e]) If, either at the time or after the agency of original jurisdiction receives the substantive appeal, the claimant or the claimant’s representative submits evidence to either the agency of original jurisdiction or the Board of Veterans’ Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence will be subject to initial review by the Board of Veterans’ Appeals unless the claimant or the claimant’s representative, if any, requests in writing that the agency of original jurisdiction initially review such evidence. Such request for review must accompany the submission of the evidence.”

This provision of the Secretary’s draft bill addresses each of VA’s concerns with section 2 of H.R. 1484 while accomplishing its underlying purpose.

Section 2 would have no measurable monetary costs or savings, but has the potential to expedite adjudication of appeals at both the AOJ and the Board if the draft statutory language is revised as recommended. Furthermore, amending 38 U.S.C. § 7104 with the statutory language proposed by Secretary Shinseki would result in significant labor savings. VA currently issues more than 60,000 SSOCs per year. Enactment of the Secretary’s proposal would eliminate the need to prepare many of these SSOCs, allowing the Veterans Benefits Administration to focus additional resources on more timely appeals processing. This would free up considerable resources in the VAROs and the Appeals Management Center to focus on key appeal activities such as promulgation of appeal grants and certification of appeals to the Board.

This proposal would also prevent more than 1,600 remands from the Board per year for cases already before the Board in which a claimant submits additional evidence to VA but fails to waive initial AOJ consideration of that evidence. Under existing law, in such cases, the Board must remand the case to the AOJ for the issuance of a SSOC addressing the newly submitted evidence, unless the Board grants the claim in full. By eliminating these remands, the proposal would allow the Board to use this time instead to issue more final decisions. The potential benefits–better service to our Veterans and improved performance of all VAROs–fully justify the enactment of this proposal as submitted to Congress on May 26, 2010.

Section 3

Section 3 of H.R. 1484 would establish the “Veterans Judicial Review Commission” (Commission) to evaluate the administrative and judicial appellate review processes of Veterans’ and survivors’ benefits determinations and make specific recommendations and offer solutions to improve the accuracy, fairness, transparency, predictability, timeliness, and finality of such appellate review processes, including a recommendation as to whether the Court of Appeals for Veterans Claims (Veterans Court) should have the authority to hear class action or associational standing cases.

VA does not support section 3. The administrative and judicial appellate review processes have been the focus of extensive studies and Congressional hearings that have resulted in a number of recommendations. While VA appreciates the aims expressed in section 3, we believe the Commission would duplicate the ongoing work of VA, the Congress, VSOs, and others who are now able to engage in policy discussions aimed at improving the claims process.

With regard to whether the Veterans Court should have the authority to hear class action or associational standing cases, such authority would not be beneficial because the outcome of each Veteran’s case depends largely on the specific facts of each case. Thus, class action suits would not increase efficiency by enabling the Veterans Court to deal with a large number of claims simultaneously. Furthermore, class actions are susceptible to collateral litigation over issues such as commonality, typicality, adequacy of counsel, and notice, diverting scarce judicial resources. Collateral litigation results in a loss of efficiency with respect to the resolution of individual claims. In addition, class actions are unnecessary because, under rules already in place, potential members of a “class” receive the benefit of a precedent decision of the Veterans Court, whether it controls because of identity of facts and issues, or due to a logical extension of the earlier decision. In the interest of economy and efficiency, the Veterans Court has often exercised its already existing authority to consolidate cases and to stay cases, where there are questions of law or fact common to multiple appeals. In this context, class action authority is unnecessary because it would be largely redundant.

Section 3 would not appear to have any direct cost to VA as the Commission’s expenses would not be paid out of VA’s budget.

H.R. 1647

1647, the “Veterans’ Choice in Filing Act of 2011,” would require VA to carry out a 2-year pilot program under which certain Veterans may submit claims to any VARO. The Veterans who would qualify for this privilege are those whose claims would otherwise be submitted to any one of five VAROs determined by the Secretary to be below average in performance. The bill would require VA to promptly notify each qualifying Veteran of the opportunity to participate in the program.

1647 would also require VA to report to Congress the five VAROs selected on the basis of below average performance and the rationale for selecting them. Within 90 days after the pilot program’s completion, VA would be required to submit to Congress a final report on the pilot program including recommendations with respect to the allocation of resources among VAROs.

VA opposes this bill because conducting this pilot program would not benefit VA claimants by improving either the efficiency or quality of the VA benefit-claims process. Of primary importance is the danger that the program will create forum shopping. The program would permit claimants under the jurisdiction of one of the five VAROs selected to submit their claims to any VARO if they are dissatisfied or unhappy with the claim process or outcome at their “home” VARO, regardless of the reason for their dissatisfaction, so long as they would normally have to submit their claims to one of the five VAROs selected on the basis of below average performance. Information about which VARO is perceived to be best could easily be manipulated by internet-driven rumor and opinion, rather than verified statistical information, further contributing to the notion that VA claimants should shop for the “best” VARO. The expectations about speed and outcomes created by such legislation would likely only frustrate claimants. As noted below, VA’s energies are best spent on system-wide efforts to improve performance at all VAROs. VA has especially focused on VAROs that have historically been on the low end of critical performance standards.

Under the existing statutory authority, VA distributes, or brokers, claims among VAROs based upon workload and other factors when necessary and feasible. VA determines whether to broker cases in or out of VAROs based upon various factors, including the allocation of workload and resources at those offices. If VA claimants were to determine where to file claims, many VAROs might not be equipped to handle the unexpected workload that would result. VAROs could not predict changing workload demands and sufficiently hire and train employees to timely adjust to these changes.

This experimental pilot program would also interrupt VA’s transformational efforts to reduce the claims backlog while achieving optimum quality. VA is undertaking numerous programs to investigate methods to improve claims-processing efficiency. In addition, VA has designated certain VAROs to have exclusive jurisdiction over specific types of claims. Examples of these types of claims are pension claims, radiation claims, and certain Agent Orange claims. This pilot would interrupt our efforts to assess the viability and success of VA’s transformation efforts.

VA also opposes this bill because of its potential negative impact upon the scheduling and conducting of medical examinations, which by necessity are scheduled in the medical center closest to the Veteran’s home. The claims file must be sent for review by the examiner. Currently, examiners and decision makers are co-located within the medical center and VARO of jurisdiction, but in a forum-shopping program, the examination could be conducted in a location far from the decision-making office. The additional movement of claims files that would be necessary under this bill would be inefficient and would create some risk of losing documents or entire files.

H.R. 1647’s requirement to promptly notify each qualifying veteran of the opportunity to file claims at any VARO would create an administrative challenge. After selecting the five VAROs with below average performance, VA would have to identify all of the Veterans whose claims would otherwise be filed at one of those VAROs, even if they have not yet filed any claim with VA, just to notify them of their eligibility to participate in this pilot program.

Finally, VA has very strong concerns about the concept that there would be five designated VAROs whose performance is “below average.” First, the nature of an average is such that there would always be some VAROs whose performance is above average and other VAROs whose performance is below average. That is inherent in the definition of an average. Furthermore, many factors may affect both the quality and production of a VARO at various times. This proposed pilot’s implication to both claimants and VA employees is that the VAROs selected on the basis of below average performance are branded substandard. Creating such a high-profile negative designation would devastate employee morale and damage VA’s extensive ongoing efforts to improve performance across the Veterans Benefits Administration so as to better serve Veterans.

VA cannot determine potential costs associated with H.R. 1647 due to the unavailability of data.

This concludes my statement, Mr. Chairman. VA appreciates the opportunity to share our views on the proposed legislation, and we would be happy to entertain any questions you or the other members of the Subcommittee may have.