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Witness Testimony of Mr. Michael Viterna, Esq., President, National Association of Veterans Advocates

The National Organization of Veterans’ Advocates, Inc. (NOVA) is a not-for-profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993.  NOVA represents approximately 500 attorneys and agents assisting tens of thousands of our nation's military Veterans, their widows, and their families to obtain benefits from the Department of Veterans Affairs (VA).  NOVA members represent Veterans before all levels of VA’s disability claims process.  In 2000, the U.S. Court of Appeals for Veterans Claims recognized NOVA's work on behalf of Veterans with the Hart T. Mankin Distinguished Service Award.  NOVA currently operates a full-time office in Washington, D.C.

NOVA willingly offers to work with Congress and VA in efforts undertaken to:  (1) ensure an expeditious transition of veteran paper files to a paperless technologythat assures full access to a veteran’s VA file by his or her appointed representative (Social Security Administration model); (2) establish and maintain accurate and complete service department records by requiring the Department of Defense to take immediate steps to keep adequate field records and reconstruct, to the extent possible, lost or nonexistent field records; and (3) draft language to lessen the evidentiary burden for those veterans whose records were lost or destroyed through no fault of their own, where that evidence was necessary to establish the “in-service incurrence or aggravation of a disease or injury” required for an award of service connectionby modifying 38 U.S.C. § 1154 and requiring VA to expeditiously fulfill its duty to assist by obtaining relevant records as outlined in 38 U.S.C. § 5103A(a)(1).

Veterans have earned certain benefits from their military service and a paper driven system of records and a lack of service department records impede, if not preclude, the receipt of those benefits.  NOVA is willing to work with this Committee and with VA in the implementation of a paperless record system that will ensure real time and complete access to a veteran’s VA records and will include the ability to file documents electronically.  Such access is necessary for advocates to effectively represent claimants before VA, and ultimately will greatly improve the time requirements and efficiency of processing claims.

The impact of lost military service records upon the filing of a veteran’s disability claim with VA is significant.  A claim for VA disability compensation is dependent upon complete and accurate service department records because, to be successful, a claimed disability must arise from an in-service event. The value of accurate and complete service records cannot be overstated in terms of its role in the fair adjudication of a veteran’s claim for disability benefits.  In the absence of these records, the burden unfairly shifts to the veteran to use his own resources to obtain alternative evidence, universally recognized to be of lesser probative value.  In the absence of corroborating service records, veterans are either denied the benefits sought or the adjudication of the claim(s) is significantly delayed.


The National Organization of Veterans' Advocates (NOVA) wants to thank the Subcommittee Chairman, the Ranking Member, and members of the Subcommittee for the opportunity to testify about the disability claims process at the Department of Veterans Affairs (VA).  NOVA is honored to share our views for this hearing, “Wading through Warehouses of Paper: The Challenge of Transitioning Veterans Records to Paperless Technology.”

NOVA is a not-for-profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993.  NOVA represents more than 500 attorneys and agents assisting tens of thousands of our nation's military Veterans, their widows, and their families to obtain benefits from VA.  NOVA members represent Veterans before all levels of VA’s disability claims process.  This includes the Veterans Benefits Administration (VBA), the Board of Veterans’ Appeals (BVA or Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court or CAVC), and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In 2000, the CAVC recognized NOVA's work on behalf of Veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award.

NOVA operates a full-time office in Washington, D.C.  Accompanying me today is our Executive Director, David Hobson, who will assist this Subcommittee and staff with any follow-up questions regarding VA’s record keeping processes and the processing of disability claims when necessary service records are either lost or destroyed.

One of NOVA’s regular functions is monitoring and commenting on VA rule making.  In this regard, NOVA routinely submits comments on changes to Title 38 Regulations.  This is an area of close scrutiny.  NOVA also files challenges at the Federal Circuit in response to VA rule making when we believe veterans’ interests are adversely affected.  NOVA has addressed this Committee previously and appreciates the opportunity to do so again.  The positions stated in this testimony are approved by NOVA’s Board of Directors and represent the shared experience of NOVA’s members in representing our veterans and their families in their pursuit of VA benefits.

NOVA’s goals today are to work with Congress and VA in taking steps to ensure a successful and complete transition of veteran paper files to a paperless technology and to ensure accurate and complete service department records are made and maintained with open access to all qualified representatives of veterans.  Additionally, we will suggest a means to lessen the evidentiary burden for those veterans whose disability claims depend upon service department records that are deemed lost or destroyed.

NOVA will present an overview of experiences and lessons learned from representing veterans and will provide several examples of what some veterans have had to endure when their service records have been lost or destroyed or perhaps did not exist in the first place.  We will describe the hardships and delays that resulted.  We will show how veterans are required to go to extensive efforts to prove their claim when, under the law, the Agency is required to give a veteran the benefit of the doubt.  We also will describe some common scenarios of what a veteran must do to obtain evidence to substitute for service records.

Statement of the Problems

As a threshold matter, we would like to place the issue of veterans’ benefits in the perspective it deserves.  Benefits for veterans are unlike any other federal benefit program and reflect Congressional intent to award "entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign."[1] Veterans have earned certain benefits from their military service and a paper driven system of records and a lack of service department records are impediments, if not preclusive, to the receipt of those benefits.

I.        Transitioning to a Paperless Technology for Veteran Records

 

NOVA applauds VA’s efforts to transition from a paper driven system of records to a paperless environment.  While we recognize the magnitude of such an effort, we nevertheless want to be on the record encouraging VA to effectuate this transition in an expeditious manner.  We are concerned, however, that any system implemented allows real time and complete access to a veteran’s VA records, and will include the ability to file documents electronically in the same manner as that given claimant advocates by the Social Security Administration.  Such access is not only necessary for advocates to effectively represent claimants before VA, but ultimately will greatly improve the time requirements and efficiency of processing claims.

First, fewer VA personnel will be required to not only handle the incoming and outgoing correspondence, but the inquiries by veterans and/or their representatives will also be significantly reduced. 

Second, most veterans have multiple claims being processed at the same time.  Often, these claims are at different stages of development, adjudication or appeal and each is dependent upon a single paper VA case file.  For instance, a veteran may have a claim on appeal before the Board in Washington, D.C., have another being processed in the appeal section at the local VA Regional Office, and yet another claim in the initial stages of development.  If the paper file is physically with the Board in Washington, the Regional Office typically cannot process other claims until the record is returned to that office.[2]

In addition, an electronic record system can include sufficient redundancies to virtually preclude lost or misplaced files as is currently a problem.

NOVA is willing to work with this Committee and with VA in the implementation of a paperless record system that will ensure real time and complete access to the advocates who represent claimants before VA.

 

 

 

II.     Lack of Military Service Records

NOVA has been asked to address the impact of lost military service records upon the filing of a veteran’s disability claim with VA.

A claim for VA disability compensation is dependent upon complete and accurate service department records because, to be successful, a claimed disability must arise from an in-service event.  Under the law, establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.[3] It is the second prong for establishing entitlement that we will be discussing, the in-service incurrence or aggravation.

The value of accurate and complete service records cannot be overstated in terms of its role in the fair adjudication of a veteran’s claim for disability benefits.  "[I]n the context of veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight." Hodge, 155 F.3d at 1363.  In the absence of these records, the burden unfairly shifts to the veteran to obtain alternative evidence, universally recognized to be of lesser probative value, or the result is a denial of benefits rightly earned.

The government’s loss of service records poses difficult, if not insurmountable, obstacles for a claimant in proving the in-service incurrence element of his or her disability claim.  These records include evidence of medical treatment, involvement in a mishap, travel, potential environmental exposure, and performance reports, among others. 

Service medical records (SMRs) may document the occurrence of a disease or injury as well as treatment for any resulting medical condition.  These SMRs will become incontrovertible evidence in establishing the in-service incurrence element of a veteran’s claim and can also demonstrate the chronicity of the claimed condition.  Travel records most commonly are used to demonstrate where a veteran served.  This evidence is often lacking for temporary duty assignments but can be critical in establishing presence in an area of conflict (Vietnam) to specific sites where dangerous environmental exposure was later established (Camp Lejeune).  In addition, performance and disciplinary records can serve to demonstrate behavioral changes that may be indicative of the onset of a psychiatric disability.

The following statutes deal with the evidence used in VA claims processing:

38 U.S.C. § 1154.  Consideration to be accorded time, place, and circumstances of service.   (emphasis added).

(a) The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in 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 as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence… .

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, 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. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

38 U.S.C. § 5107(b).  Claimant responsibility; benefit of the doubt.  (emphasis added).

(b) Benefit of the doubt.   The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

In terms of quality of proof and in spite of the statutory and regulatory provisions in place, none of these alternatives come close to service department records in terms of credibility and probative value.  SMRs documenting treatment for an injury, disease or condition, for example, are indisputable proof of in-service incurrence.  On the other hand, use of lay evidence for proving an in-service incurrence is problematic in several regards and is often simply not feasible.  For example, providing buddy statements in support of a claim can be difficult or impossible to obtain given the years of separation between the event in service and date of claim.  In addition, locating a fellow service member years after service separation can be very difficult and recollections can fade.   

 No matter how obtained, a buddy statement would thereafter be subject to a credibility determination by VA.  In practice, VA adjudicators are frequently skeptical of lay statements prepared by the Veteran or a buddy well after the alleged in-service incurrence despite the applicable VA regulations and the body of case law that speaks to a claimant’s ability to provide statements regarding symptoms capable of lay observation.[4]

In theory, lay assertions may serve to support a claim for service connection by relating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a).  In practice, however, lay evidence is frequently not sufficient to establish an in-service incurrence.  Early on, the U.S. Court of Appeals for Veterans Claims concluded that it is clear “[t]he regulations regarding service connection do not require that a veteran must establish service connection through medical records alone.” [5]

The Veteran's Claims Assistance Act of 2000 Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (VCAA) was intended to "reaffirm and clarify the duty of the [Secretary] to assist a claimant for benefits under laws administered by the Secretary, and for other purposes." H.R. REP. 106-781 at 4 (2000).   It is well-established that VA has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim." 38 U.S.C. § 5103A(a)(1).  This duty is abrogated if “no reasonable possibility exists that such assistance would aid in substantiating the claim.” See 38 U.S.C. § 5103A(a)(2) Whenever VA attempts to obtain records in federal custody, “efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.”  Id.

Implications for Veterans

If its efforts in obtaining records are unsuccessful, VA then has a duty to inform the claimant of the records that could not be obtained, explain the efforts expended to obtain those records, and describe any further action to be taken by VA in respect to that claim.  It is at this point that the burden is shifted to the veteran to use his own resources and employ alternative means to support his claim, as described supra.  Unfortunately, in the absence of corroborating service records, veterans are either denied the benefits sought or the adjudication of the claim(s) is significantly delayed, as expressed in the examples that follow.

 

1.       Roy Johnson

Mr. Johnson performed military duty from November 1967 to November 1969 and was assigned to the 57th Maintenance Company in Thailand.  His duties involved the repair of small arms, but some artillery as well.  On some occasions, he traveled via military aircraft from Bangkok to Saigon to pick up weapons for repair.

Years after service, Mr. Johnson developed one of the disabling conditions known to be related to Agent Orange, which was used in Vietnam.  In April 2003, VA denied his claim for entitlement to service connection, because there were no service records to document this veteran’s travel into Vietnam.  The National Archives and Records Administration responded to VA that “[u]nfortunately, the 57th Maintenance is one of those units for which we do not have any records.”  In addition, the National Personnel Records Center responded that the Veteran’s service in Vietnam was “not a matter of record.” 

Under VA regulations, the mere presence in Vietnam entitles a veteran to service connection if certain disabling conditions manifest themselves at any time after service.  38 C.F.R. § 3.307(a)(6).  Mr. Johnson could not, however, establish his presence in Vietnam through service records.

In support of his claim, the veteran submitted a buddy statement from an individual who served with him in Thailand and Vietnam.  Despite this corroborating evidence, VA continued to deny the claim and Mr. Johnson continued to appeal.  His claim was subsequently presented to the U.S. Court of Appeals for Veterans Claims where a joint motion for remand occurred in March 2006 due to the presence of errors in how VA had previously adjudicated his claim.  Upon remand, the veteran obtained pay records for his overseas service that showed he had paid no federal income taxes for several months, purportedly due to his “flying over Thailand.”  The matter again returned to the Court and VA’s denial was ultimately reversed in an August 10, 2010 single judge decision (Johnson v. Shinseki, slip op 09-1192).  The Court found that there was no negative evidence refuting the Veteran’s assertions that he traveled on temporary duty to Vietnam, but that there was evidence in support of his claim.  Of special note was the receipt of combat pay for a few months of his overseas duty.  The Court went on to note that under Executive Order 11216, Vietnam, not Thailand or any other country for that matter, was designated as a combat zone during the time period relevant to this appeal.  Accordingly, the Court took the rare step of reversing VA’s denial of benefits finding that “the only permissible view of the evidence is contrary to the Board’s (Board of Veterans’ Appeals) decision.”

While Mr. Johnson ultimately was granted the benefits he sought, his journey lasted more than nine years from the time his claim was filed until VA actually implemented the Court’s decision.  No official records were located documenting the veteran’s service in Vietnam.  The veteran took his own steps and obtained a buddy statement in support of his claim, but this was not sufficient.  Finally, he was able to locate pay records that documented his presence in a combat zone, thereby verifying his presence in Vietnam, such that benefits were awarded, albeit by judicial order. 

2.      Charles Johnson

 

Mr. Johnson served from 1953 until 1957.  Records of his service were destroyed in the 1973 fire at the National Personnel Records Center (NPRC).  In November 1992, he sought entitlement to service connection for a number of medical conditions that he asserted had their onset during service.  Due to a lack of evidence, VA denied the veteran’s claims but he appealed, which resulted in a remand from the Board in April 1995 to permit additional development of evidence.  The matter returned to the Board, where it was remanded again in 1998 with orders to the VA Regional Office (VARO) to attempt to obtain “daily sick reports” or similar documents.  NPRC responded that it had no medical records on file.  In December of 1998, the Board remanded the matter for the third time, instructing the VARO to contact the United States Armed Services Center for Research of Unit Records (USASCRUR) and the Office of the Surgeon General.  USASCRUR responded that it did not maintain morning reports from 1954 and the Surgeon General responded negatively as well. 

Over the years, Mr. Johnson has submitted lay statements from friends and family that attest to the onset of his disabilities, but all have been discounted by VA.  It is now 20 years later and the matter, for the third time, is before the Veterans Court.

3.       Albert Drake

Mr. Drake served for 28 years in the U.S. Navy, retiring in February 1980.  While in service, the veteran served for seven years as a nuclear reactor operator, participated in atomic/nuclear testing exercises, and served aboard several nuclear submarines.

In 1988, the veteran developed skin cancer, with multiple additional malignancies manifesting in the years that followed.  He was diagnosed with thrombocytopenia in 2005.  Skin cancer is recognized by VA to be a radiogenic disease, while his thrombocytopenia is not.  A radiogenic disease is defined by VA regulations to be a disease that “may be induced by ionizing radiation.”  See 38 C.F.R. § 3.311(b)(2)(i)-(xxiv).  He subsequently made claims for entitlement to service connection, but was denied in April 2003.  In support of his claim, Mr. Drake submitted two medical opinions from dermatologists linking his skin cancer to the radiation exposure in service, one of which also linked his thrombocytopenia to ionizing radiation exposure.  One doctor noted that the veteran had a history of multiple skin cancers on both sun exposed and non sun exposed areas.  The veteran was raised in the Pacific Northwest, had no other radiation exposure outside service, and had no family history of skin cancer.  In consideration of all the evidence, the veteran’s private doctor went on to opine that “[t]his distribution is typical for radiation exposure.”

In assessing the veteran’s case, VA’s Chief Public Health and Environmental Hazards Officer looked to the Navy’s documentation of his exposure to ionizing radiation from 1957 until 1962.  Based upon the recorded dosage, the VA doctor opined that “it was unlikely” that the veteran’s claimed conditions can be attributed to occupational exposure to ionizing radiation in service. 

In this instance, the veteran has alleged that his exposure to ionizing radiation was greater than documented by the Navy.  He has stated that he served on nuclear submarines as late as 1976, while Navy records show his ionizing radiation exposure ended in 1962.  As a consequence of this discrepancy, VA concluded that his radiation dose estimate was lower than the thresholds established that produce service-connected disabilities.  Effectively, because official records did not document all of this veteran’s occupational radiation exposure, VA has denied his claims.  This matter has been on appeal for nearly ten years and is currently before the Veterans Court.

These examples do not reflect isolated cases.  We have learned from the Vietnam Veterans of America, for instance, that in 3,956 issues remanded for veterans they represented between 2003 and 2001, military service records  were missing in 954 issues.[6]

NOVA willingly offers to assist this Committee and VA in efforts undertaken to draft legislation to lessen the evidentiary burden for those veterans whose claims are adversely impacted by lost, missing or nonexistent military service records.  This language could model that of Section 1154(b), as applies to veterans engaged in combat.  Also, VA’s fulfillment of its duty to assist by obtaining relevant records under 38 U.S.C. 5103A should be subject to reasonable timeliness standard.

            What Should Be Done:

 

1.       VA should, in an expeditious manner, continue the transition from a paper record environment to that of a paperless system that assures full access to a veteran’s VA file by his or her appointed representative.  We would encourage VA to model the advocate’s access after that used by the Social Security Administration.

 

2.      Require the Department of Defense to take immediate steps to keep adequate field records and reconstruct, to the extent possible, lost or nonexistent field records.

 

3.      Introduce legislation to lessen the standard of proof for establishing in-service incurrence by modifying 38 U.S.C. § 1154 for veterans whose claims are impacted by lost, missing or nonexistent military service records.  Additionally, language should be put in place to require VA to expeditiously fulfill its duty to assist as outlined in 38 U.S.C. § 5103A(a)(1).

Conclusion

NOVA offers to work with the Committee and VA to develop language to lessen the evidentiary burden for those veterans whose records were lost or destroyed through no fault of their own, where that evidence was necessary to establish the “in-service incurrence or aggravation of a disease or injury” required for an award of service connection.

BIOGRAPHY

Michael Viterna retired in 2001 after nearly 33 years of total military service in the U.S. Air Force, Air Force Reserves and Air National Guard, 20 years of which were spent on active duty.  He served as a Medical Service Manager and attained the rank of Chief Master Sergeant (E-9).  While in service, he dealt with line of duty determinations, fitness for duty evaluations, and Medical Evaluation/Physical Board proceedings.  Mr. Viterna graduated from Eastern Michigan University in 1976 with a Bachelor of Science degree and later earned a Masters degree in Health Services Administration from Central Michigan University in 1990.  While still on active duty, he attended law school during evenings and graduated from Michigan State University-Detroit College of Law in 1995.  He currently has a law office in Belleville, Michigan that is exclusively dedicated to veteran law matters.

Mr. Viterna was introduced to veteran’s law in 1998 through training offered by the Veterans Consortium Pro Bono Program as part of its initiative to attract attorneys to this area of law.  As a consequence of this introduction, Mr. Viterna has been accredited by VA and handled several thousand veteran-related cases over the years.  He has represented claimants before every VA Regional Office throughout the United States, at the Board of Veteran’s appeals, at the U.S. Court of Appeals for Veterans Claims and to the U.S. Court of Appeals for the Federal Circuit.  He has been accredited by the Department of Veterans Affairs.  Mr. Viterna is a sustaining member of the National Organization of Veterans’ Advocates, Inc. and serves on its Board of Directors as its President.  He is also a member of the American Bar Association, serving on the ABA Veterans Affairs Committee as its Co-Chair, and is a member of the Court of Appeals for Veterans Claims Bar Association.  In addition, he lectures frequently on veteran law matters and has authored a chapter on veteran’s law for the Michigan Institute of Continuing Legal Education’s book, Advising the Older Client and Client with a Disability.



[1] Bailey v. West, 160 F.3d 1360, 1370 Fed. Cir. 1998); see also Jaquay v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002) (en banc); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000).

[2] A claim for an increased disability rating may be an exception as new medical evidence regarding the current level of disability may be obtained and considered without benefit of the complete paper file.

[4]See Falzone v. Brown, 8 Vet.App. 398, 406 (1995); and Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). See 38 U.S.C. § 5103A(d)(2) (Secretary is to take into consideration all lay or medical evidence of record, including statements of claimant).

[5] Triplette v. Principi, 4 Vet.App. 45, 49 (1993), citing Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991).  Over the succeeding years, the Courts have further refined the import and applicability of lay statements.  See e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed.Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

[6] 325 due to missing service medical and unit records, 3,984 to obtain  missing U.S. Army and Joint Services Records Research Center  (JSRRC) records, and 245 for missing personnel records.