Mr. Chairman and Members of the Subcommittee:

I am pleased to have this opportunity to appear before you on behalf of the Disabled American Veterans (DAV) to address the “Veterans Disability Benefits Claims Modernization Act,” (the “Act”) under consideration today. In accordance with our congressional charter, the DAV’s mission is to “advance the interests, and work for the betterment, of all wounded, injured, and disabled American veterans.” We are therefore pleased to support various measures insofar as they fall within that scope.

Section 101 of the Act provides a presumption of service-connection for post-traumatic stress disorder (PTSD) for veterans diagnosed with such and who engaged in combat with the enemy. The DAV fully supports this provision. However, the current high standards required by Department of Veterans Affairs’ (VA’s) internal operating procedures for verifying veterans who engaged in combat with the enemy are impossible for many veterans of the current wars, as well as past wars, to satisfy. This is usually due to unrecorded traumatic events taking place on the battlefield, unrecorded temporary detachments of service members from one unit to another while in a combat theater of operations, or simply poor recordkeeping. Our concern is that without defining who is considered to have “engaged in combat with the enemy,” this provision will be rendered moot by VA’s internal requirements.

If VA applied 38 U.S.C.A. § 1154 properly, the problems this Act targets, and others, would be resolved. Title 38, United States Code, section 1154(a) reads in part: “[I]n each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service . . . .” 38 U.S.C.A. § 1154(a) (West 2002). Likewise, section 1154(b) states:

In the case of any veteran who engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.

38 U.S.C.A. § 1154(b) (emphasis added). Specific to PTSD resulting from combat, the VA has determined that service connection requires (1) medical evidence of the condition; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between the diagnosis and the in-service stressor. 38 C.F.R. § 3.304(f) (2007). Section 3.304(f) appears on its face to be consistent with the statute by stating:

If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

38 C.F.R. § 3.304(f)(1).

It is quite evident that the provisions of the foregoing statute and regulation do not require validation by official military records of an in-service combat stressor. The law merely requires, absent “clear and convincing evidence to the contrary,” “‘credible,’ satisfactory lay or other evidence” of an in-service stressor that is “consistent with the circumstances, conditions, or hardships of the veteran's service.” Congress made clear its intent of not requiring such proof to be in the form of official military records when it stated, “notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.” In cases of combat-related PTSD, the incurrence of the disability is the actual exposure to the event; therefore, requiring proof through official records of the incurrence violates the law.

Notwithstanding the plain language of the foregoing statute and regulation, the VA has circumvented the law by conducting improper rulemaking through its Office of General Counsel and its adjudication procedures manual, M21-1MR, by requiring the proof that a veteran engaged in combat as that shown through official military records, thus contradicting the intent of the statute. VA Office of General Counsel Opinion 12-99 reads in part:

In order to determine whether VA is required to accept a particular veteran’s “satisfactory lay or other evidence” as sufficient proof of service connection, an initial determination must be made as to whether the veteran “engaged in combat with the enemy.” That determination is not governed by the specific evidentiary standards and procedures in section 1154(b), which only apply once combat service has been established.

VA Gen. Coun. Prec. 12-99 (Oct. 18, 1999). This General Counsel Opinion requires veterans to establish by official military records or decorations that they “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” Further, VA has promulgated internal instructions that arguably go beyond the General Counsel’s Opinion by instructing rating authorities as follows:

Credible supporting evidence that an in-service stressor actually occurred includes not only evidence that specifically documents the veteran's personal participation in the event, but evidence that indicates the veteran served in the immediate area and at the particular time in which the stressful event is alleged to have occurred, and supports the description of the event.

M21-1MR, Part IV, Subpart ii, 1.D.13.

The M21-1 manual gives the following two “examples” to VA adjudicators considering whether a veteran has submitted sufficient evidence of an in-service combat stressor: “When considered as a whole, evidence consisting of a morning report, radio log, and nomination for a Bronze Star may be sufficient to corroborate a veteran's account of an event, even if it does not specifically include mention of the veteran's name.” The second example states: “Unit records documenting the veteran's presence with a specific unit at the time mortar attacks occurred may be sufficient to corroborate a veteran's statement that she/he experienced such attacks personally. These examples go beyond what is required by statute and regulation. By VA requiring official records to prove the “incurrence” of a disease or injury—the in-service stressor serving as the incurrence, or injury, in the case of PTSD—the VA has effectively read “satisfactory lay or other evidence” out of the law, thereby exceeding its authority.

For decades, the VA has required such proof before recognizing a claimant as a “combat veteran.” As a result, those who suffer a disease or injury resulting from combat are forced to provide evidence that may not exist or wait a year or more while the VA conducts research to determine whether a veteran’s unit engaged in combat. Many claims that satisfy the requirements of the statute are improperly denied.

Chairman Hall, the DAV believes your bill would better deliver its intended effect if it amends title 38, United States Code, section 1154(b) to clarify when a veteran is considered to have engaged in combat for purposes of determining combat-veteran status. In the alternative, the Act could be amended to define under title 38, United States Code, section 1101, who is considered to have engaged in combat with the enemy. Such clarification would hopefully allow for utilization of nonofficial evidence—such as a veteran’s statement alone if the statement is “credible” and “consistent with the circumstances, conditions, or hardships” of the veteran’s service and is otherwise not contradicted by clear and convincing evidence—as proof of an in-service occurrence of a combat-related disease or injury, to include PTSD.

This type of legislation would remove a barrier to the fair adjudication of claims for disabilities incurred or aggravated by military service in a combat zone. This legislation would follow the original intent of the law by requiring VA to accept as sufficient proof lay or other evidence that a veteran engaged in combat with the enemy as well as suffered a disease or injury as a result of that combat if consistent with that veteran’s service.

Many veterans disabled by their service in Iraq and Afghanistan, and those who served in earlier conflicts are unable to benefit from liberalizing evidentiary requirements found in the current version of the applicable statute, section 1154; and regulation, section 3.304(f). This results because of difficulty, even impossibility, in proving personal participation in combat by official military documents.

Oversight visits by Congressional staff to VA regional offices found claims denied under this policy because those who served in combat zones were not able to produce official military documentation of their personal participation in combat via engagement with the enemy in light of VA’s persistence to exceed statutory and regulatory requirements. The only possible resolution to this problem, without amending section 1154 or otherwise defining who is considered to have engaged in combat, is for the military to record the names and personal actions of every single soldier, sailor, airman, and Marine involved in every single event—large or small—that constitutes combat and/or engagement with the enemy on every battlefield. Such recordkeeping is impossible.

Numerous veterans have been and continue to be harmed by this defect in the law. In numerous cases, extensive delays in claims processing occur while VA adjudicators attempt to obtain official military documents showing participation in combat: documents that may never be located. Notwithstanding the possible passage of this bill, without codifying who is considered to have engaged in combat, the VA will continue to apply criteria that unlawfully exceed regulatory and statutory authority. By doing so, this veteran-friendly bill will have no practical effect because VA will continue to deny claims of service connection for PTSD when veterans are unable to prove combat experience in accordance with VA’s stringent internal requirements.

In regards to section 102 of the Act, the DAV fully supports an adjustment to the VA Rating Schedule that ensures parity with mental health disabilities and physical disabilities. The current disparity exists because of the Rating Schedule’s requirement that a veteran suffer from total occupational and social impairment prior to an award of a 100-percent disability rating. VA decision makers generally focus only on occupational skills when considering such ratings and therefore fail to consider all other aspects of life. This type of disparity can result in a veteran that is 100 percent socially impaired, even to the point of being unable to maintain close family relations that results in an isolated life, being denied a total rating by VA because the veteran may be able to earn a living from home. Any change to the Rating Schedule should definitely consider these disparities and seek to resolve them in favor of disabled veterans.

There are various possible solutions to this problem. For example, if VA required total occupational impairment “or” (rather than “and”) social impairment; or more preferably, “near” total occupational impairment “or” “near” total social impairment, then inequities between ratings for physical and mental disabilities would be resolved.

Concerning the study required by this section, one that considers using codes in use by the medical and disability profession, we caution that ICD codes be carefully implemented. There are well over 10,000 of these types of medical codes, but just over 700 current VBA diagnostic codes. Therefore, a diagnostic code-ICD code cross reference would be a required tool in the simplification process of this type of transformation.

As DAV has stated on the congressional record, we support the establishment of an advisory committee as a first priority to begin oversight of any updates and/or adjustments to the Rating Schedule. The DAV requests that we be ensured easy access to the advisory committee once formed.

We currently fail to understand the significance between (c)(1), submission of a plan, and (c)(3)(A), report on plan. These requirements appear redundant; we are therefore requesting clarification. On this note, we also fail to understand the need for the additional studies and reports requested of this portion of the Act. The VA is currently in the process of conducting various studies recommended by recent commissions, such as a quality of life study to include updates to the Rating Schedule. It may be more prudent to review the results of these studies before implementing additional and overlapping studies. There is also the likely chance that the current ongoing studies will be completed by the time this Act moves far enough through the legislative process to become law.

Finally, we have reservations with section (b)(2)(B), which requires a study on the “nature of the disabilities for which compensation is payable under laws other than laws administered by the Secretary.” This provision appears, at least on its face, to compare service-connected disability compensation to private disability programs, i.e., workman’s compensation. Disabilities incurred on the battlefield or during military training are not tantamount to the typical on-the-factory-job repetitive motion injury. Nonetheless, some disabilities acquired as a result of military service will have overlapping symptoms of disability caused by civilian occupations. The VA, however, provides a set of benefits that are uniquely pro-claimant and veteran-friendly—benefits provided by a nation grateful to those that stand up to defend it. These benefits should not be comparable to workman’s compensation or social security.

Section 103 of the Act focuses on the VA’s work credit system and Section 104 requires a study on the work management system. The DAV has long advocated for a more stringent system of accountability. We therefore do not oppose the purpose behind these sections of the bill. However, we feel that any improvements in the work credit system, aimed at increasing accuracy and accountability, will be less than effective if equal or coinciding changes are not made in VA’s quality assurance practices in conjunction with those of the work credit system. With careful and well-planned changes, the VA’s quality assurance system, the Systematic Technical Accuracy Review (STAR) program, can serve its purpose of overseeing accuracy much more effectively and simultaneously serve as a tool to implement an accountability program.

In the STAR program, a sample is drawn each month from a regional office workload divided between rating, authorization, and fiduciary end products. For example, a monthly sample of “rating” related cases generally requires a STAR review of “10” rating-related end products.[1] Reviewing 10 rating related end products per month does not amount even to a tenth of one percent of the rating decisions produced in many average-sized regional offices. This should serve as an example of the lack of importance placed on accuracy. For this reason, DAV fully supports the intent of the legislation at hand.

As for the issue of suspending the award of work credits if VA fails to implement a new system, this may be unfeasible. Suspending work credit fails to consider the reality of how multifaceted the VA’s benefits delivery system has become, particularly when considering the various types of claims a beneficiary may file, the various stages of development and decision-making within each claim, and the potential changes that can occur at any particular stage of the claim. Suspending work credit may render the VA unable to account for accuracy at every stage in the process, particularly those non-rating actions performed by claims developers, adjudicators, authorizers, etc, whose work credit is fixed to the claim but not necessarily to the rating decision.

Currently, VA utilizes over 50 pending end-product codes[2] for a multitude of actions. The number of end-product codes may be further expanded by using “modifiers” that designate specific “issues” for types of claims within a certain broader category. The VA’s end product codes are used in conjunction with its productivity and work measurement system. The productivity system is the basic system of work measurement used by Compensation and Pension (C&P) Service, but it is also used for report and tracking. Additionally, VA’s end-product codes are also utilized in the STAR program. This further supports the notion that these two systems should be improved simultaneously in order for any improvements to be effective.

The program is also used for quantitative measurement, a tool utilized in preparing budget forecasts and in distributing available staffing. Quantitative and productivity measurement are also tools used in comparing and tracking employment of resources. Both productivity measurement and work measurement are tools available to management for this purpose. Quantitative measurement also allows Central Office and Area Offices to compare stations and to track both local and national trends. Productivity measurement and work measurement are complementary measurement systems that each depend, in part, on VA’s end product code system. The end-product code system is further used in determining work credit provided to VA’s employees. The work credit function of these programs would have to be disconnected, if possible, from the remaining function of the programs; or else, the VA would lose the ability to manage and track its day-to-day functions.

Based on the foregoing, we feel the legislation as written, does not take into account the significant interplay between VA’s work credit system, which utilizes completion of pending end-product codes, and the foregoing measurement systems and STAR program, which also utilize completion of pending end product codes. Nonetheless, because of the positive intent of this legislation, the DAV would welcome the opportunity to discuss this issue in more depth. We would look forward to working hand-in-hand with Congress, as well as any necessary VA officials, in order to help achieve an outcome that satisfies the intent of Congress, improves the lives of disabled veterans, and assists VA in the success of each.

Section 105 of the Act would create a required certification for employees of the Veterans Benefits Administration (VBA) responsible for processing claims. We have long-advocated for better training in VBA and therefore fully support this portion of the bill. The DAV has maintained the preeminent training program throughout the VSO community for many years; of which, many other organizations have adopted. Training is tied directly to quality—the DAV would welcome the opportunity to assist the VA in developing such a program.

Section 106 requires an assessment of VA’s quality assurance program. For this section, please refer to our discussion on sections 103 and 104 of the Act.

Section 107 of the Act expands authorization for developing, submitting, and certifying a claim as fully developed. The DAV understands the need for novel initiatives that have the possibility of assisting VA with, or providing VA with the tools for, expediting the claims process. Nonetheless, we have concern as to whether this is the correct tool.

The reality of claims development is that the vast majority of claims submitted, with the potential exception of claims for discharging service members, requires access to internal and external developmental tools. Some of these tools include access to, and authorization to use intra and inter agency communication platforms that are necessary to request records from sources such as the Social Security Administration, Department of Defense, and the Veterans Health Administration. Currently, veterans service organization representatives, whether local, state, or national do not have access to these systems because limitations based on representation (power of attorney) are not built into the software.

However, what is more concerning to us than technological and logistical limitations is the proper training required to thoroughly understand what constitutes a fully developed claim. VA adjudicators are usually well versed in the particular and varied details surrounding claims development, but only after extensive on-the-job experience. Nonetheless, the majority of appealed cases remanded by the Board of Veterans’ Appeals (“BVA” or “Board”) are because of errors committed by VA in its duty to assist claimants in the development of their cases.

We fear that this remand rate would increase with the addition of potentially unqualified individuals to the claims development arena. This is not to indicate that we are absolutely opposed to any plan that would allow personnel other than VA employees to assist in the development of claims, but only to express our concerns regarding the current barriers to success of such an idea.

Section 108 of the Act requires a study and/or report on employing medical professionals to assist VBA. Based on our comprehensive experience in the claims process, one that dates back to a time when the VBA and the BVA employed medical professionals in the claims process, the DAV must oppose this section of the bill.

The many complications involved in the claims process do not include VA decision makers facing many challenges interpreting the medical data involved in the decision-making process. The biggest challenges facing VA decision makers result from inadequate legal training, not inadequate medical training. Misunderstandings of law account for far more errors than do misunderstandings of medicine.

Additionally, integrating the medical and legal segments of the claims process will ultimately ensure the disappearance of any distinction between the two. Medical professionals are not legal professionals and therefore should be restricted to and held accountable for accurately reporting medical facts.

Section 109 codifies the use of pre-stabilization ratings. The DAV does not oppose codification of pre-stabilization benefits. However, Congress should include provisions for extending such ratings when a veteran is not shown to have stabilized within the specified time.

Section 110 concerns the use of information technology at VBA. A reasonable approach would be to enact legislation that requires VA to submit to Congress a broad and over-arching plan by a reasonable date outlining the technology identified and the manner in which such technology would be utilized. Once this plan is complete, the groundwork will be laid for VA to coordinate with various entities, i.e., Congress, Veterans Service Organizations, Department of Defense, etc., in order to begin turning the plan into reality on a larger scale. The DAV would welcome the opportunity to work with the Agency, to include any contractors, in order to assist in the development of an electronic claims process system.

The goal of any form of electronic claims process should be to automate, and thereby shorten as much as possible those portions of the claims process that currently consume the majority of time. Expecting a form of technology to imitate intelligent human behavior with respect to the decision-making process of VA’s benefits delivery system, particularly where evidence weighing and judgment calls on such evidence are required, appears as an untenable goal—automation rather than human imitation is the first logical phase of this undertaking.

Contrary to some beliefs, the majority of time spent by VA on disability claims is in preparing the case for a decision. This includes receiving the claims by VA, establishing the claim in VA’s current computer systems, and developing the evidence to support the claim. Evidence development, whether in the form of gathering military records from the service department or the Records Processing Center, private health records, VA health records, VA or private medical opinions, and stressor verification through the U.S. Army and Joint Services Records Research Center consumes the vast majority of the claims-processing time. Therefore, any viable electronic claims-processing system implemented with real expectations of shortening the claims process must focus on all VA functions and development leading up to the rating decision more so than just the rating decision itself.

The DAV supports the provisions of section 111 that pertain to the management of claims for accrued benefits upon the death of a claimant. We do not, however, support the portion stating that the substituted party may designate the person who receives benefits if such party does not want to be a claimant. The codification should merely follow the regulation.

Section 201 creates a single joint VA and Department of Defense disability examinations process. The DAV supports this provision, for which a pilot program is currently being conducted.

Section 301 increases reporting requirements of the United States Court of Appeals for Veterans Claims (Court), and section 302 modifies the jurisdiction of the Court. Each of the forgoing provisions is nearly mirrored in the Independent Veterans Service Organizations, Independent Budget for FY 2009. We strongly support each and commend Chairmen Hall for their recommendation.

[1] See M21-4, Ch. 3, § 3.02.

[2] M21-4, App. A, Glossary of Terms and Definitions. Manpower Control and Utilization in Adjudication Divisions (Pending End Product: “A claim or issue on which final action has not been completed. The classification code identified refers to the end product work unit to be recorded when final disposition action has been taken.”).