Witness Testimony of Richard Paul Cohen, Executive Director, National Organization of Veterans' Advocates, Inc.
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
Thank you for the opportunity to present the views of the National Organization of Veterans' Advocates, Inc. ("NOVA") concerning pending legislation.
NOVA is a not-for-profit § 501(c)(6) educational membership organization incorporated in 1993. Its primary purpose and mission is dedicated to train and assist attorneys and non-attorney practitioners who represent veterans, surviving spouses, and dependents before the Department of Veterans Affairs (“VA”), the Court of Appeals for Veterans Claims ("CAVC"), and the United States Court of Appeals for the Federal Circuit ("Federal Circuit").
NOVA has written amicus briefs on behalf of claimants before the CAVC, the Federal Circuit and the Supreme Court of the United States of America. The CAVC recognized NOVA's work on behalf of veterans when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000. The positions stated in this testimony have been approved by NOVA's Board of Directors and represent the shared experiences of NOVA's members as well as my own nineteen-year experience representing claimants before the VBA.
This bill seeks to amend 38 U.S.C. § 5905 to impose a penalty of fine or imprisonment on those accredited attorneys and agents who are found to be soliciting, contracting for, charging or receiving fees or attempting to do so, for providing advice on how to file for VA benefits or for preparing a claim. It also penalizes unlawfully withholding any part of a benefit that is due the claimant.
It is unnecessary to create additional penalties for improper fee practices of accredited attorneys, because if such improper conduct occurs it will be sufficiently regulated by the VA and by State Bar Associations. Thus, the VA’s regulations prohibit soliciting, contracting for or receiving fees from claimants prior to the filing of a Notice of Disagreement. An accredited attorney who violates the VA’s regulations is subject to suspension or cancellation of accreditation, that is, the right to represent claimants before the VA. 38 C.F.R. §§ 14.632 (c)(5), (c)(6), 14.633. Punishment of improper fee practices by accredited attorneys does not stop with losing accreditation because, most State Bar Associations have adopted variations of the ABA Model Rule 1.5(a), ABA Model Rules of Professional Conduct which prohibit unreasonable fees and which can result in disbarment, or loss of the privilege of practicing law. Even without State Bar Association rules, loss of VA accreditation may result in disbarment because of reciprocal enforcement of disciplinary findings and sanctions. See, for example, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement.
Similarly, accredited agents, who are not attorneys, are also subject to the VA’s rules prohibiting improper fees and may be punished by removal of their privilege to represent veterans.
There may be, however, unregulated persons representing veterans who should be subject to criminal sanctions. For example, NOVA has been told that there are some insurance agents and “VA advisors”, who are neither VA accredited attorneys nor accredited agents, and who have been receiving fees from elderly veterans and their families for legal advice regarding and for assistance with preparation of applications for aid and attendance benefits from the VA.
In order punish the conduct of those insurance agents NOVA recommends that the bill be rewritten to target the under regulated conduct of insurance agents and VA benefits advisors and to establish penalties for improper fees in a new Chapter 60 added to Title 38 and directed toward persons other than accredited agents and attorneys who are not now regulated.
This bill would add 38 U.S.C. § 5511 to insure that a veteran who is deemed mentally incapacitated or incompetent or who experiences extended loss of consciousness will not be automatically considered adjudicated as a mental defective under 18 U.S.C. § 922(d)(4) or (g)(4), and thus prohibited from purchasing or possessing a firearm, without a specific judicial finding that such person is a danger to himself or others.
This is important to prevent veterans from unjustly losing their right to a firearm merely because of a VA determination of incompetency. Presently, regulations from Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice define a person as a mental defective, who is prohibited from buying or possessing a gun, in 27 C.F.R. § 478.11 as a person who has had:
(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
- Is a danger to himself or to others; or
- Lacks the mental capacity to contract or manage his own affairs.
Although Section 105 of the “NICS Improvement Amendments Act of 2007” P.L. 110-180 provides the opportunity for veterans who have been adjudged by the VA to be incompetent to request that the VA not report their adjudication, this right to request non- reporting by the VA is an unsatisfactory remedy.
The burden of proof is on the veteran to demonstrate by clear and convincing evidence that he is not likely to act in a manner dangerous to public safety, and that granting relief will not be contrary to the public interest. Receiving benefits for a mental disability rated at greater than 10% disabling, substance abuse or a hostile demeanor are all considered by the VA to be factors unfavorable to granting the requested relief. In addition, the usual principles of VA law do not apply to these determinations, and there is no duty to assist the veteran. Also, the benefit of the doubt does not apply and there is no right to appeal an unfavorable determination to the BVA. VA Fast Letter 10-51.
NOVA supports H.R. 1898 for its protection of veterans who have been found by the VA to be unable to manage their money, such as those who suffer from Traumatic Brain Injury, the signature injury of the Global War On Terror, yet who can still function as law abiding citizens and who do not present any danger to themselves and others.
The “Veterans’ Benefits Training Improvement Act of 2011” would add 38 U.S.C. § 7732B to require the Secretary to develop and implement an individualized training program for each employee and manager who is responsible for claims processing and to annually assess their claims processing skills. Additionally, the Act provides for remediation of any deficiency in skills which is revealed in the assessment and for an annual report to Congress.
To the extent that H.R. 2349 requires the Secretary to assess the claims processing skills of each employee and manager who is responsible for claims processing, this legislation duplicates the existing provisions of 38 U.S.C. § 7732A(a) which require the Secretary to provide for an examination of appropriate employees and managers who are responsible for claims processing.
For that reason, although NOVA supports this bill, generally, NOVA recommends that the provisions of § 7732B be combined with those of § 7732A to create an amended § 7732A as follows:
§ 7732A Training in and annual assessment of claims processing skills
‘‘(a) IN GENERAL.—The Secretary shall—
"(1) annually assess the skills of appropriate employees and managers of the Veterans Benefits Administration who are responsible for processing claims for compensation and pension benefits under the laws administered by the Secretary; and
"(2) develop and implement an individualized training plan related to such skills for each such employee and manager.
“(3) consult with appropriate individuals or entities, including training and examination development experts, interested stakeholders, and employee representatives in order to develop suitable training and assessment tools.
“(b) REMEDIATION OF DEFICIENT SKILLS.
"(1) In providing training under subsection (a)(2), if any employee or manager receives a less than satisfactory result on any portion of an assessment under subsection (a)(1), the Secretary shall provide such employee or manager with remediation of any deficiency in the skills related to such portion of the assessment.
"(2) In accordance with this title and title 5, the Secretary shall take appropriate disciplinary actions with respect to any employee or manager who, after being given two opportunities for remediation under paragraph (1), does not receive a satisfactory result on an assessment under subsection (a)(1).
"(c) ANNUAL REPORT.—Not later than March 1 of each year, the Secretary shall submit to the Committee on Veterans’ Affairs of the House of Representatives and the Committee on Veterans’ Affairs of the Senate a report on the assessments and training conducted under this section during the previous year, including a summary of— ‘‘(1) the results of the assessments under subsection (a)(1); ‘‘(2) remediation provided under subsection 13 (b)(1); and ‘‘(3) disciplinary action taken under subsection (b)(2).’’
Although NOVA supports the idea, in general, of training and assessing, as contained in this legislation, NOVA urges this subcommittee to concentrate on correcting the systemic problems with the present work credit system prior to or in addition to mandating that VA implement new training and assessment procedures. The present work credit system has created an environment in which the employees and supervisors are rewarded based upon the number of actions they take each day, and not the quality or those actions nor whether the action will ultimately lead to correct decision making. Thus, currently there is no incentive for these employees or supervisors to take time away from their duties, and thus, their production time, to invest in training, quality control and job improvement.
Neither Mr. Cohen nor NOVA have received any federal grant money or contract work in the last two years related to this testimony.