Mr. Chairman and members of the Subcommittee, on behalf of Paralyzed Veterans of America (PVA) I would like to thank you for the opportunity to testify today on the “Veterans Disability Benefits Claims Modernization Act of 2008.”  PVA appreciates the emphasis this Subcommittee has placed on making real reforms to a disability claims system that is being crushed by the weight of the claims backlog.  We hope that addressing the issues outlined in this legislation will better benefit today’s veterans and the veterans of tomorrow.

PVA generally supports the provisions outlined in Title I of the proposed legislation.  However, we do have some concerns with different aspects of the various provisions.  With respect to the provisions of Section 101, PVA generally supports the intent of the proposal to establish a presumption for service-connection for veterans who were deployed to a combat theater and who present symptoms of Post-Traumatic Stress Disorder (PTSD).  However, we believe there are serious flaws in the legislation as drafted. 

First, the legislation establishes a standard that we believe is very difficult to prove in order to qualify for presumption.  Specifically, the legislation states that the veteran must have engaged in combat with the enemy.  This places the burden on the veteran to identify a specific event and submit evidence demonstrating that he or she was under fire from the enemy.  We do not believe that this is the actual intent of the legislation, as it would make it even harder to receive a presumptive rating for PTSD. 

Second, this section allows for a very significant increase in the claims backlog.  As written, the legislation would allow a veteran who meets the defined criteria to file a claim for presumptive service-connection, including veterans of all war periods.  If this is in fact the intent of this Subcommittee, that needs to be clarified.  Furthermore, while we recognize the implication that the men and women currently serving in combat theaters in Iraq and Afghanistan are under constant, intense pressure, and that the situation alone can allow for PTSD to manifest itself, we are concerned that this may create a possibility for veterans to be compensated for PTSD that is not the result of service in a combat operation or theater. 

PVA generally supports the requirement that the Department of Veterans Affairs (VA) readjust the schedule for rating disabilities called for in Section 102.  This is a concept addressed by both the Dole-Shalala Commission and the Veterans’ Disability Benefits Commission (VDBC).  It is important to note that the VA is currently undergoing a complete rewrite of its regulations governing application of the ratings schedule.  However, we certainly understand the desire of Congress to see to it that the VA updates the disability ratings schedule. 

The only concern is the continued emphasis on adding a component to disability compensation that takes into account quality of life issues.  While severe disabilities have an obvious impact on the ability to seek gainful employment, the affect on quality of life of individuals is far greater.  Moreover, we are not convinced that there is a method to equitably and reasonably compensate disabled veterans for lost quality of life.  We do believe that current compensation rates for VA disability compensation take into account the impact of a lifetime of living with a disability and the every day challenges associated with that disability.   

PVA supports Section 103 that calls for a study of the work credit system used by the Veterans Benefits Administration (VBA).  This is the system that the VBA uses to evaluate the production of its claims adjudication staff.  PVA particularly appreciates the emphasis placed on performance standards and accountability measures in the development of a new work credit system.  We would, however, caution the Subcommittee on the language concerning implementation of a new work evaluation system.  The language suggests that the current work credit system should be eliminated.  While we certainly agree that there are flaws in that system, given the focus on quantity rather than quality, it is premature to assume that the framework of the current system might not be the best measuring stick with appropriate changes. 

PVA likewise supports the requirement to study the work management system outlined in Section 104.  We appreciate the emphasis placed on maximizing the use of information technology (IT) applications, particularly in light of the frustrations expressed over the last year with the VBA’s IT systems. 

PVA has no problems with Section 105 of the legislation that requires VBA employees and managers to take a certification examination.  PVA requires this from its service officers who provide direct support to veterans seeking benefits.  This has proven to be an effective tool in evaluating the knowledge of our employees and ensuring that the best qualified individuals are assisting veterans.  It only makes sense that the VA be taking similar steps.  Likewise, we support Section 106 of the legislation that will support the development of the certification examination. 

We have no objection to Section 107 of the proposed legislation that is meant to expedite consideration of a fully-developed claim.  We appreciate the recognition given to the work of service officers of the veterans’ service organizations under the newly created Section 5109C of Title 38.  However, we do have some concern about the requirement for a checklist to be provided to individuals submitting claims.  It seems that in order for the VA to provide a checklist of missing items in an incomplete claim, it will have to already adjudicate the claim.  We certainly do not believe that this is the intent of the Subcommittee, and we believe that this provision warrants further consideration and clarification. 

PVA has no objection to Section 108 of the legislation that requires a study and report on employing medical professionals to assist employees of the VBA.  However, we believe that the language needs to be clear as to what the desired role of medical professionals is meant to be in the process.  We have no problem with medical professionals serving as a resource to claims adjudication staff on questions directly related to general health issues.  However, we do not believe medical professionals should be called on to make judgments on issues as they relate to adjudication of veterans claims specifically. 

PVA has not objection to the provisions of Section 109 that would require the VA to provide a temporary disability rating to certain veterans with a disability or who might not be employable.  However, it is important to ensure that provision of a temporary disability rating will not preclude the VA from completing a veteran’s claim in a timely manner.  We particularly appreciate the language that will allow the temporary rating to be extended, if necessary. 

Recent hearings have demonstrated how far behind the VBA is in using information technology in its claims adjudication process.  While we believe that the entire claims process cannot be automated, there are many aspects and steps that certainly can.  We have long complained to the VA that it makes no sense for severely disabled veterans to separately apply for the many ancillary benefits to which they are entitled.  Their service-connected rating immediately establishes eligibility for such benefits as the Specially Adapted Housing grant, adaptive automobile equipment, and education benefits.  However, they still must file separate application forms to receive these benefits.  That makes no sense whatsoever. 

Furthermore, certain specific disabilities require an automatic rating under the disability ratings schedule.  It does not take a great deal of time and effort to adjudicate a below knee single-leg amputation.  An advanced information technology system can determine a benefit award for just such an injury quickly.  With these thoughts in mind, PVA fully supports the provisions of Section 110. 

PVA supports the provisions of Section 111 of the legislation.  We have supported similar legislation in the past.  It is only appropriate that the original claimant’s beneficiary be permitted to complete the claims process if the veteran dies during the process. 

With respect to the transition of service members from active duty to veteran status outlined in Title II of the legislation, we certainly support the intent.  We supported the recommendations of both the Veterans’ Disability Benefits Commission and the Dole-Shalala Commission that called for a single separation physical.  As mentioned in the legislation, the VA and DOD are currently conducting a pilot program that addresses this issue and we look forward to their findings during the conduct of this program. 

We do believe that the language should stipulate that the VA be responsible for actually performing the separation physical.  The VA has greater experience at providing a comprehensive medical examination as it requires the most thorough medical review of a veteran to determine degree of disability.  DOD separation physicals tend to be singularly focused on the immediate health issue that impacts fitness for duty. 

We are pleased with the fact that the legislation calls for the DOD to only determine fitness for duty as a part of the process and the VA to determine the degree of disability.  This reaffirms the responsibility that each department has in a single separation process.  The DOD simply needs to be concerned about whether or not a service member can perform his or her military responsibilities.  The VA is the subject matter expert on determining degree of disability for compensation purposes. 

PVA supports the requirement in Section 301 of the legislation for the United States Court of Appeals for Veterans Claims to file an annual report detailing the workload it handles each year.  The list of required information seems to be comprehensive.  This section is in accordance with the recommendations of The Independent Budget.  We would only hope that the information provided is put to good use. 

With respect to Section 302, we have had extensive discussion at PVA between our Veterans Benefits staff and our General Counsel.  This section would amend the jurisdiction of the United States Court of Appeals for Veterans Claims to require it to essentially address all issues raised by an appellant, and it would preclude the VA from confessing error.  While we recognize that this issue is addressed in The Independent Budget for FY 2009, our General Counsel has expressed some concerns with this provision of the legislation that I would like to outline.   

While we understand that it is sometimes frustrating when the Court fails to address issues raised to it, there is no Court that is required by its jurisdictional statute to address all issues raised by an appellant.  We believe that requiring the Court to address all issues raised in an appeal will certainly result in a significant increase in processing time for cases on appeal to the Court.  We believe that this could create a situation where the Court may find cases and even issues to be frivolous whenever it can as a means to discourage appellants from bringing cases and issues that are not relevant to a decision on the matter. 

We also believe that it can be harmful to veterans to preclude the VA from confessing error in cases on appeal to the Court.  Confessing error is something that we should encourage the government to do when appropriate.  Over the years, PVA has achieved a great deal of success by working with the VA and encouraging them through negotiation to confess error resulting in our clients obtaining benefits in the most expeditious manner.

Mr. Chairman and members of the Subcommittee, PVA would once again like to thank you for the opportunity to provide our views on this important legislation.  We look forward to working with you to continue to improve the benefits and services available to veterans. 

Thank you again.  I would be happy to answer any questions that you might have.