Mr. Chairman and members of the Committee, thank you for the opportunity to testify today on the draft “Veterans Disability Benefits Claims Modernization Act of 2008.”  I am accompanied today by Richard J. Hipolit, Assistant General Counsel, and Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals.  I will address today only those provisions of the draft bill for which the Administration could develop and coordinate its views in the time provided. 

Section 101

Section 101(a) of the draft bill would add post-traumatic stress disorder (PTSD) to the statutory list of diseases that are presumed to have been incurred in or aggravated by service under certain circumstances.  The presumption would apply to any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition and who is diagnosed with PTSD.  Section 101(b) would make the presumption applicable to compensation claims pending on or after the date of enactment.

The Department of Veterans Affairs (VA)  does not support section 101.  Currently, in cases involving an in-service diagnosis of PTSD by a mental health professional, VA will accept any reasonable in-service stressor as long as it appears consistent with the circumstances of the veteran's service and, if a VA examination and other evidence support the decision, establish service connection on a direct basis.  However, PTSD may first be diagnosed many years after service.  Under such circumstances, VA regulations require a link between the symptoms of properly diagnosed PTSD and an in-service stressor.  If a veteran establishes that he or she engaged in combat and the claimed stressor is related to combat, VA concedes (in the absence of clear and convincing evidence to the contrary) the existence of a stressor sufficient to establish service connection.  Nonetheless, in the case of a post-service diagnosis of PTSD, we believe it is necessary that medical evidence establish a link between the PTSD and the in-service stressor.  Because section 101 would eliminate this requirement, we cannot support it.

Section 102

Section 102 would require VA to conduct a study within 180 days of the date of enactment on adjustment of the Schedule for Rating Disabilities so as to base the schedule on current standards, practices, and codes in common use by the medical and disability profession and determine, among other things, how the schedule could be adjusted to take into account the loss of quality of life resulting from specific disabilities.  VA would be required to report to Congress on its conclusions and recommendations based on the results of the study within 60 days of its completion and submit to Congress not later than 120 days thereafter a plan to readjust the rating schedule within five years to align the schedule with medical best practices, prioritize readjustment with respect to PTSD, traumatic brain injury, and certain other disorders, ensure the schedule is automated in accordance with a comprehensive plan called for in section 110 of the draft bill, and ensure provision of a transition plan to ease transition to the readjusted schedule.  VA would be directed to revise the schedule in accordance with this plan and to form an Advisory Committee on Disability Compensation with which to consult regarding the maintenance and periodic readjustment of the rating schedule. 

VA does not support section 102.  On October 16, 2007, the Administration submitted to Congress proposed legislation, "America's Wounded Warriors Act."  Section 201(b) of that bill contains a proposal for a study regarding creation of a schedule for rating disabilities based on current concepts of medicine and disability, taking into account loss of quality of life and loss of earnings resulting from specific injuries or combination of injuries.  We believe that bill provides the most promising prospect for meaningful revision of the rating schedule and urge its enactment instead of section 102 of the draft bill under consideration today.  Among our concerns with the draft bill is the requirement of section 102(c)(1)(A) that the plan for readjustment of the rating schedule that VA would be required to submit to Congress contain provision for alignment of the schedule with concepts drawn from the Current Procedural Terminology Manual, the International Classification of Diseases, the Diagnostic and Statistical Manual of Mental Disorders, and the applicable American Medical Association Guides.  These sources represent highly complex coding systems intended for purposes other than rating of disabilities for compensation purposes.  We believe reliance on these sources would introduce unwarranted complexity to our disability evaluation process and could undermine our efforts to enhance consistency in rating disabilities.  In addition, VA has contracted for studies on Quality-of-Life and Loss-of-Earnings compensation and on transition payments.  The results of these studies are due in August and could form the basis for a reform such as this legislation would require.

Section 103

Section 103(a) would require VA to study the Veterans Benefits Administration’s (VBA’s) work credit system, which is used to measure VBA employees’ work production.  Section 103(b) would require VA, in carrying out the study, to consider the advisability of implementing:  (1) performance standards and accountability measures to ensure that benefit claims are processed objectively, accurately, consistently, and efficiently and that final decisions on claims are consistent and issued within a certain time; (2) guidelines and procedures for the prompt processing of claims that are ready to rate when submitted; (3) guidelines and procedures for processing claims submitted by severely injured and very severely injured veterans; and (4) requirements for assessing claim processing at each regional office for the purpose of producing lessons learned and best practices.

Section 103(c) would require VA to establish a new system for evaluating the work production of VBA employees.  The system would have to be based on findings of the study required by subsection (a), would have to focus on evaluating the accuracy and quality of ratings decisions made by VBA employees, and could not resemble or be based on any concept on which the current system is based.  Section 103(c) would also prohibit VA from awarding a work credit to any VBA employee until VA has implemented the new system.  Section 103(d) would require VA to submit to Congress, not later than 180 days after the date of enactment, a report on the study and VA’s progress in implementing the new employee evaluation system.

VA does not support section 103.  VBA periodically conducts work measurement studies, and employee performance standards are derived from those studies.  Suspension of work credit until implementation of a new system would delay provision of feedback to employees and may have the effect of concealing organizational weaknesses.  The potential impact of this provision on VA's ability to effectively manage organizational performance and determine resource needs is of great concern to us.  Furthermore, while VA is not opposed to studying new work-rate measurement methodologies, we are concerned that the provision of section 103(c) prohibiting the contemplated new system for evaluating work production from resembling or being based on any concept on which the current system is based would seem to prejudge the results of the study that section 103 would authorize.

Section 104

Section 104(a) would require VA to study and report to Congress on the VBA work management system, which is designed to reduce claim processing time.  Section 104(b) would require VA to contract for an evaluation of VA's training and performance assessment programs for VBA employees who are responsible for matters relating to compensation and pension benefits and to report to Congress on the results of that evaluation. 

VA does not support this provision because it is unnecessary.  We are currently implementing a comprehensive strategy to integrate various information technology initiatives to improve claims processing.  At the core of our strategy is the implementation of a business model for compensation and pension claim processing that is less reliant on paper documents.  Initial pilot efforts have demonstrated the feasibility of using imaging technology and computable data to support claims processing in the compensation and pension programs.  In addition to use of imaging and computable data, we are incorporating enhanced electronic workflow capabilities, enterprise content and correspondence management services, and integration with our modernized payment system, VETSNET.  Further, we are exploring the utility of business rules engine software for both workflow management and to potentially support improved decision-making by claims processing personnel.  We recently contracted with IBM to analyze our current business processes and provide recommendations to further improve our operational efficiency and consistency.  The recommendations and plans provided by IBM are consistent with VBA’s goal to completely transition compensation claims processing to a paperless, electronic environment.  We are focused on developing an integrated plan, including milestones and performance metrics, so that we and our stakeholders will be able to assess our progress in this endeavor.  We would prefer to maintain our focus on the measures we are already taking, rather than divert resources to a new evaluation effort.

Section 105

Section 105(a) would require VA to require appropriate VBA employees and managers who are responsible for processing benefit claims to take a certification examination.  The examination would have to be developed in consultation with examination development experts, interested stakeholders, including the VBA employees and managers, and appropriate public and private entities, including veterans service organizations and other service organizations.  Section 105(b) would require VA to implement administration of, and procedures relating to, the certification of employees not later than 90 days after the date of enactment and develop the certification examination not later than one year after that date.

VA does not support this provision because it is unnecessary.  VBA already has a thorough certification examination process for Veterans Service Representatives and that process in being expanded.  Pilot testing has been conducted for Rating Veterans Service Representatives, and a field test is scheduled for next month.  In addition to being unnecessary, section 105 would also impose unrealistic deadlines considering that aspects of this activity would be subject to collective bargaining requirements.

Section 106

Section 106 would amend 38 U.S.C. § 7731 to require VA to enter into a contract with an independent third-party entity to conduct annual assessment of the quality assurance program required under that section.  VA would be required to use the information gathered through the annual assessments in developing the employee certification required under section 105 of the draft bill. 

VA does not support this provision because it is unnecessary.  VBA currently has a robust quality assurance program under which over 15,000 individual claim folders containing decisions will be reviewed annually by 2009.  Site visits are scheduled so that each regional office is visited a minimum of once every three years.  Additionally, VA conducts specialized reviews where appropriate.  VA has conducted initial piloting and validation of tools to monitor consistency of decision-making across regional offices.  We have determined that the methodology we have developed is effective, and we will soon begin regular assessments of the most frequently rated diagnostic codes to evaluate consistency of service-connection and rating determinations across regional offices.  We have also implemented a quality assurance program using silent monitoring to assess the quality of assistance provided on our toll free call-in number.  The General Accountability Office, in a recent assessment of the Department of Defense (DoD) Disability Evaluation System, referenced the VA compensation and pension quality review program as a favorable model for adoption.

Section 107

Section 107(a) would add a new section 5109C to title 38, United States Code, requiring VA to take such actions as necessary to provide for the expeditious treatment of fully developed claims to ensure that any such claim is adjudicated not later than 90 days after submission.  A fully developed claim would be one for which: (1) the claimant received assistance from a veterans service officer or with which the claimant submits an appropriate indication that the claimant does not intend to submit any additional information in support of the claim and does not require additional assistance with respect to the claim; and (2) submits a written certification stating that no additional information is available or needs to be submitted in order for the claim to be adjudicated.  Section 107(b) would amend 38 U.S.C. § 5103 to require VA, as part of its notice to claimants of the information and evidence necessary to substantiate a claim, to provide the claimant with a checklist including a detailed description of any information and evidence required to be submitted by the claimant to substantiate the claim.  These measures would be required to be implemented within 180 days of enactment.

VA does not support section 107(a) because claims that are received ready-to-rate are already fast tracked.  Further, claims submitted by unrepresented veterans or veterans represented by veterans service organizations may in some instances be incomplete, and VA must work with the veterans and their veterans service officers, if any, to assist them in fully developing their claims.  Thus, section 5109C could have the unintended consequence of requiring VA to prematurely adjudicate claims that warrant additional development, including claims that are meritorious and would result in an award of benefits upon full development. 

We also do not support section 107(b).  While we desire to improve the utility of our notice letters, to the extent that the intention of the bill is to require a checklist containing claim specific information, we believe the provision may actually result in delayed claim adjudications and unnecessary litigation.  For instance, section 5109C, as drafted, requires VA to furnish a checklist, including "a detailed description of any information or evidence required to be submitted by the claimant to substantiate the claim.”  This language appears to impose upon VA a duty to “preadjudicate” a claim for benefits, that is, to conduct a review of the information or evidence submitted to date and provide a detailed assessment to the claimant as to what portion of the evidence, if any, needed to substantiate the claim is missing.  This “preadjudication” of a claim, if required, would unduly burden our personnel and would hamper our ability to serve veterans. 

Moreover, because the checklist would be provided as part of VA's required Veterans Claims Assistance Act notice, we believe that it would run a high risk of being considered by a court to be incomplete because relevant issues may not be recognized early in the adjudication process.  Our experience with the current notice requirements clearly indicates that any notice requirement will be subject to judicial interpretation that may necessitate large scale reworking of claims.   For the foregoing reasons, a claim specific notice such as that apparently contemplated by section 107(b) would place too great a burden on VA claim adjudication personnel and severely hamper our efforts to reduce our claim backlog.

Section 108

Section 108 would require VA to conduct a study of the need of VBA to employ medical professionals, including medical professionals who are not physicians, to act as a medical reference for employees required to assess medical evidence submitted in support of claims.  VA would be required to report to Congress within 180 days of enactment on the results of the study.

VA does not support this legislation because VA has physicians available in its Veterans Health Administration who can offer medical opinions to VBA claim adjudicators.

Section 109

Section 109 would add a new section 1156 to title 38, United States Code, requiring VA to assign for compensation purposes a temporary disability rating of 100 percent or 50 percent for a veteran who has been discharged from active duty for 365 days or less, for whom a permanent disability rating cannot be immediately assigned, and who has a severe disability making substantially gainful employment not feasible or advisable or an unhealed or incompletely healed wound or injury where material impairment of employment is likely.  The temporary rating would remain in effect until the earlier of the date on which the veteran receives a permanent disability rating under the rating schedule or the date that is 365 days after the date of the veteran's last separation from active duty.  VA would be required to review all pending disability compensation claims within 30 days of the date of enactment to determine whether the veteran is entitled to a temporary disability rating under this provision.

VA does not support this provision because it is unnecessary.  VA already has sufficient authority under its regulations to award prestabilization ratings for all disabilities using criteria comparable to those specified in the legislation.  Further, the review of all pending claims within 30 days after the date of enactment is not feasible using currently available resources. 

Section 110

Section 110 would require VA, within one year after the date of enactment, to conduct a review of the use of information technology by VBA and develop a comprehensive plan for the use of such technology in claims processing to reduce subjectivity, avoidable remands, and regional office variances in disability ratings.  This section would also require VA to develop a plan that, within three years of implementation, would reduce claim processing time for each claim processed by VBA to not longer than the average time required to process a claim as identified in the most recent annual report submitted under 38 U.S.C. § 7734.  VA would further be required to submit a report to Congress on the required review and plan not later than January 1, 2009.

VA does not support section 110 because a comprehensive approach to accomplishment of the goal of this legislation is already underway.  As I noted in my comments on section 104 of this bill, we are currently implementing a comprehensive strategy to integrate various information technology initiatives to improve claims processing. 

Section 111

Section 111 would add a new section 5121A to title 38, United States Code, to provide that the person who, under current law, would receive accrued benefits based on the death of a veteran claimant who dies while awaiting the adjudication of the claim (the veteran’s surviving spouse, child, or dependent parent) be treated as the claimant for purposes of processing the claim to completion.  It would permit the person to submit new evidence in support of the claim during the one-year period beginning on the date of the veteran’s death.  If that person certifies to VA that he or she does not want to be treated as the claimant, the person may designate the individual who would receive accrued benefits based upon the first person’s death to be treated as the claimant for purposes of processing the claim to completion.  This provision would apply to the claim of any veteran who dies on or after the date of enactment.

We do not object to this section, which would allow the submission of evidence in support of a claim that was pending before VA when the veteran died.  Such legislation would be consistent with the Veterans Disability Benefits Commission’s recommendation to allow a veteran’s survivors, but not a creditor, to pursue the veteran’s due but unpaid benefits and any additional benefits by continuing a claim that was pending when the veteran died, including presenting new evidence not in VA’s possession at the time of death. 

However, as currently drafted, section 111 would raise several issues with respect to its implementation.  Section 5121(a) of title 38, United States Code, requires VA to pay accrued benefits (periodic monetary benefits to which a deceased claimant was entitled at death under existing decisions or evidence in the file at the time of death) to certain specified individuals (for a deceased veteran, the veteran’s spouse, children, or dependent parents).  Nothing is required of those individuals other than the filing of an application within one year of the claimant’s death and proof that the individual qualifies as a payee under section 5121.  However, only if an application is timely filed and the applicant establishes entitlement to accrued benefits would that person “receive any accrued benefits due to the veteran.”  Only then could the person be treated as the claimant under section 111.  Furthermore, permitting a substitute claimant upon a veteran’s death could require VA to develop the claim, including obtaining medical evidence on the deceased veteran who could no longer be examined or authorize the release of protected health information.  The laws of the various states govern the disclosure of protected health information by private health care providers, so VA and the substitute claimant would be limited by such laws in obtaining medical evidence concerning the deceased veteran.

Under the bill’s language, it would be possible that more than one person could simultaneously be “the claimant.”  Under section 5121, upon the death of a veteran and in the absence of a surviving spouse, the veteran’s children or dependent parents may be entitled to accrued benefits.  Therefore, under section 111 of the bill, in the absence of a surviving spouse, “the claimant” could be two or more children of a veteran or two dependent parents.  This situation could create complications if the persons disagreed as to how to prosecute the claim.

Section 111 is unclear as to what would happen if the person who would receive a deceased veteran’s accrued benefits does not want to be treated as the claimant.  If, as section 111 would permit, that person designates as the claimant “the person who would receive such benefits upon the death of the person who would otherwise be treated as the claimant” under the provision, but also pursues a claim for accrued benefits, then both persons would be pursuing a claim for the same benefits.  Furthermore, the two claims could be decided on different evidence because a claim for accrued benefits under section 5121 is limited to the decisions existing or evidence on file when the veteran died, but a claim pursued under section 111 would not be so limited.

At this time, we cannot estimate the cost of this section because we do not have sufficient data to determine the number of veterans who die with a claim pending.  Additionally, we cannot determine whether their claims would be granted with a compensable evaluation. 

Section 201

Section 201(a) would require VA and DoD to review the results of the Single Disability Evaluation/Transition Medical Examination pilot study conducted pursuant to law and jointly create a single disability examination process for medically transitioning members of the Armed Forces and members of the reserve components.  Section 201(b) would require VA and DoD to:  (1) ensure that DoD determines fitness for duty and VA rates the severity of disability for members who medically separate or retire from active duty service or reserve component service; (2) establish a cost-sharing arrangement for the examination process; (3) consider the reports and applicable recommendations on a single examination process made by the Independent Review Group on Rehabilitative Care and Administrative Processes at Walter Reed Army Medical Center and the National Naval Medical Center, the Secretary of Veterans Affairs Task Force on Returning Global War on Terror Heroes, the President’s Commission on Care for America’s Returning Wounded Warriors, and the Veterans’ Disability Benefits Commission; and (4) ensure that DoD and VA share the costs associated with conducting examinations under the examination process.

Section 201(c) would require VA and DoD to implement the single disability examination process not later than one year after the date of enactment.  Section 201(d) would require VA and DoD to submit to Congress an interim report not later than three months after the date of enactment and a final report not later than six months after that date.

VA does not support section 201 because it assumes that the pilot program currently underway will be successful and should be expanded to all service personnel subject to the disability evaluation process.  VA, DoD, and Congress should wait for the results of the pilot project before determining whether continuation and expansion of the joint program would be beneficial.

Section 301

Section 301 would require the Chief Judge of the United States Court of Appeals for Veterans Claims (Veterans Court) to report annually to the House and Senate Committees on Veterans’ Affairs on the Court’s workload during the previous fiscal year.  Because this section would impose the reporting requirement on the Court and require nothing of VA, we defer to the Court on this matter.

Section 302

Section 302(a) would make the following changes with respect to the Veterans Court’s review of decisions of the Board of Veterans' Appeals (Board).  It would prohibit VA from making an assignment of error or conceding an error not raised by the appellant unless first obtaining the appellant’s written consent.  It would add to the Veterans Cour t’s current powers (to affirm, modify, or reverse a Board decision or remand the matter, as appropriate) the power to “vacate and remand” a Board decision.  It would prohibit the Court from affirming, modifying, reversing, remanding, or vacating and remanding a Board decision without first deciding all assignments of error raised by an appellant for each particular claim for benefits.  Finally, it would permit the Court, if the Court reverses a decision on the merit of a particular claim and orders an award of benefits, not to decide any additional assignments of error with respect to that claim.  Under section 302(b), these changes would apply to Board decisions made on or after the date of enactment.

VA opposes enactment of section 302.  The provision prohibiting VA from making an assignment of error or conceding an error not raised by the appellant, without first obtaining the appellant’s written consent, is undesirable and unnecessary.  If an appellant has retained a representative, then the parties to the litigation jointly negotiate the terms of a remand, and there is no need to require the appellant’s consent to any confessions of error.  If, on the other hand, the appellant is not represented (as is often the case), then the Veterans Court typically orders the appellant to respond to VA’s remand motion and thereby provides ample opportunity for the appellant to object to the remand and any confessions of error made by VA.  Moreover, the appellant can waive an error noted by VA if the appellant believes that such error was harmless or otherwise not worthy of the Court’s consideration.  Thus, the existing system already safeguards the appellant’s interests.

Anywhere from 19 percent to 47 percent of appellants represent themselves before the Veterans Cour t.  Many have limited educations, are otherwise unsophisticated in litigation and adjudication matters, or suffer the effects of mental disorders.  Many are suspicious of the government.  These factors would hinder VA’s ability to assign errors for the Court’s consideration and, perhaps, act as a disincentive to do so.  Given these realities, it is not viable to require written consent from an appellant before VA may submit the issues to the Court for resolution. 

Moreover, this provision would create ethical problems.  For example, VA counsel are ethically bound to represent VA’s interests.  Counsel cannot ethically cede VA’s interests to his or her adversary by permitting VA’s adversary to determine what issues VA may argue before the Court.

In addition, this provision would implicate counsel’s duty of candor to the Court.  The Veterans Court observed in Johnson v. Brown, 7 Vet. App. 95 (1994), “[a]s to the General Counsel's general responsibilities, Rule 3.3(a)(3) of the American Bar Association's Model Rules of Professional Conduct, the Code of Professional Responsibility, adopted in Rule 1(b) of the Appendix to Rule 46 of this Court's Rules of Practice and Procedure [Court's Rules] (see Misc. Order No. 3-92 (Aug. 1, 1992) (en banc)), states:  ‘A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel’.  Model Rules of Professional Conduct Rule 3.3(a)(3) (1991).  The Secretary's confession of errors here is thus a disclosure of legal authority, ‘not disclosed by opposing counsel’, that is worthy of the Court's attention, not its disregard.”  Johnson, 7 Vet. App. at 98.  It is undesirable for section 302 to so constrain counsel’s duty of candor to the Court.

Importantly, the Veterans Court is authorized by law to review the entire record and consider all errors.  Although an appellant is entitled to seek judicial review by filing a notice of appeal, the law does not afford an appellant the right to frame the issues or to otherwise control the appeal once the Court is vested with jurisdiction.  As noted in Johnson, “[t]he law has specifically assigned to this Court ‘exclusive jurisdiction to review decisions of the Board.’  38 U.S.C. § 7252(a).  In carrying out this review, the Court is directed to, inter alia, ‘decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action by the Secretary’.  38 U.S.C. § 7261(a)(1).  Under this broad authority—indeed, mandate—to carry out comprehensive judicial review of [Board] decisions, the Court undoubtedly would have jurisdiction to consider those same Board errors if raised by the appellant or noted, sua sponte, by the Court itself.  Hence, the fact that these errors were here raised by the Secretary cannot deprive the Court of jurisdiction to consider them.”  Johnson, 7 Vet. App. at 98-99.

The provision that would prohibit the Veterans Court from deciding an appeal without first addressing every allegation of error raised by the appellant is also problematic.  The notion of requiring the Court to delay remanding a case until it decides all assignments of error raised by an appellant was cogently rejected by the Court in Best v. Principi, 15 Vet. App. 18 (2001) (per curiam order).  Such a rule would harm rather than help veterans. 

In Best, the Court had remanded the appeal for VA’s consideration of a recently enacted public law, but the appellant objected on the basis that the Court had not considered allegations of error that he had raised which might be capable of repetition on remand.  The Court offered a compelling analysis regarding why a remand on narrow grounds is in the best interest of appellants and the sound administration of justice.  First, the Court explained that, when it issues a remand, the underlying Board decision is vacated (i.e., rendered a nullity), and the claim must be adjudicated anew.  The Board must reexamine the case and permit the claimant to submit additional evidence and additional arguments.  In other words, the claimant retains the right to raise to the Board all putative errors in the handling of the claim, without being limited by the specific grounds of the Court’s remand order.

Second, the Court noted in Best that the practice of remanding a case on narrow grounds was consistent with the practice in other courts, and consistent with the statute defining the Court’s scope of review.  It warned, for example, that the Court might be relegated to the role of issuing a mere advisory opinion regarding the putative errors asserted by an appellant, because further development of factual and legal issues can change the landscape of the case on remand.

Finally, the Court in Best also warned that, if it were to rule on every allegation raised by an appellant, then any rulings against the appellant would foreclose him from reasserting the issues on remand.  “A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”  Best, 15 Vet. App. at 20.  Such foreclosure would deprive an appellant of the opportunity to craft a more persuasive argument below against the new legal and factual context of the readjudicated claim, and would deprive the appellant of judicial review of the issue if VA decides against him or her.

The Best holding is a flexible rule, and it does not require a judge to disregard other putative errors asserted by an appellant when remanding a case.  Instead, the Best rule leaves to the discretion of the judge which arguments will be addressed, depending upon the circumstances of each case.  Indeed, in several remanded appeals, the Veterans Court has chosen to address each putative error raised the appellant, notwithstanding Best.

This provision of the draft bill would be unfair to those who are waiting in the queue for the judges to get to their cases.  The parties before the Veterans Court are entitled to a timely decision.  Many appellants before the Veterans Court are in poor health or are elderly.  The purely conjectural allure of the provision must yield to the very real possibility that some appellants will die before obtaining a decision from the Veterans Court, if the judges are required to address every argument in every case without regard to whether the argument would make a difference to the ultimate outcome of the appeal.

Moreover, this provision would deprive the judges of the flexibility that they need to manage a burgeoning caseload with limited resources.  Notably, the provision makes no distinction between colorable arguments and frivolous arguments—the Veterans Court must address them all.  This requirement is antithetical to the principle of judicial economy and is counterproductive to Congressional efforts to reduce the inventory of appeals at the Veterans Court.  If section 302 were enacted, decisions on appeals would be delayed, the backlog would grow, and veterans and VA would be deprived of timely resolution of their disputes.

For all these reasons, VA believes that enactment of section 302 of the draft bill is undesirable, and we oppose it.

Section 401

Section 401 would require VA to submit within 180 days of the date of enactment a report to Congress describing how VA plans to implement the legislation and the amendments made by it. 

A number of provisions of the draft bill include requirements for reports to Congress on studies and actions to implement particular provisions of the bill.  The report contemplated by section 401 would seem to duplicate, and in some instances conflict with, the timing of reports otherwise called for in the bill.  For this reason, VA does not support enactment of section 104.

This concludes my statement, Mr. Chairman.  I would be pleased to entertain any questions you or the other members of the Subcommittee may have.