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Witness Testimony of Mr. Thomas Murphy, Director of Compensation Service, Veterans Benefits Administration

            Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to present the views of the Department of Veterans Affairs (VA) on several legislative items of great interest to Veterans and the Department.  Joining me today is Richard Hipolit, Assistant General Counsel.

H.R. 4142

            H.R. 4142, the “American Heroes COLA Act,” would amend 38 U.S.C. § 5312 to provide permanent authority for the Secretary of Veterans Affairs to implement cost-of-living increases to the rates of disability compensation for service-disabled Veterans and the rates of dependency and indemnity compensation (DIC) for survivors of Veterans.  This bill would direct the Secretary to increase the rates of those benefits whenever a cost-of-living increase is made to benefits under title II of the Social Security Act.  The rates of compensation and DIC would be increased by the same percentage as Social Security benefits.  This bill would also make permanent the round-down requirement for compensation cost-of-living adjustments.  This bill would take effect on December 1, 2013.

            VA supports this bill because it would be consistent with Congress’ long-standing practice of enacting regular cost-of-living increases for compensation and DIC benefits in order to maintain the value of these important benefits, but would eliminate the need for additional legislation to implement such increases in the future.  It would also be consistent with current 38 U.S.C. §§ 1104(a) and 1303(a), which provide that cost-of-living adjustments to compensation and DIC amounts, if they are made, will be at a uniform percentage not exceeding the percentage increase to Social Security benefits.  VA estimates that the enactment of the COLAs would result in first-year benefit costs of $831 million during Fiscal Year (FY) 2014, five-year benefit costs of $10.6 billion, and ten-year benefit costs of $59.2 billion.  The bill also extends the current COLA round down to the next whole dollar (authority which expires at the end of FY2013), resulting in PAYGO savings of $29 million in FY2014, $354.5 million for five years and $1.8 billion over ten years.

H.R. 4114

            H.R. 4114, the “Veterans’ Compensation Cost-of-Living Adjustment Act of 2012,” would require the Secretary of Veterans Affairs to increase, effective December 1, 2012, the rates of disability compensation for service-disabled Veterans and the rates of DIC for survivors of Veterans.  Current estimates suggest that the consumer price index will increase by 1.9%.  This bill would increase these rates by the same percentage as the percentage by which Social Security benefits are increased effective December 1, 2012.

            VA wholeheartedly supports this bill because it would express, in a tangible way, this Nation’s gratitude for the sacrifices made by our service-disabled Veterans and their surviving spouses and children and would ensure that the value of their well-deserved benefits will keep pace with increases in consumer prices.  VA estimates that this bill would result in first-year benefit costs of $772 million in FY 2013, five-year benefit costs of $4.9 billion, and ten-year benefit costs of $10.9 billion.  However, as annual COLAs are included in the baseline for the Disability Compensation program, no PAYGO costs are associated with this proposal.

H.R. 2051

            H.R. 2051, the “Veterans Missing in America Act of 2011,” would direct the Secretary to cooperate with Veterans Service Organizations to assist entities in possession of unclaimed or abandoned human remains in determining whether such remains are those of Veterans or other persons eligible for burial in a national cemetery.  If unclaimed remains are identified as those of Veterans or other eligible persons, the Secretary would provide for burial of the remains in a national cemetery and would cover the cost of preparation, transportation, and burial of the remains.  The bill would further direct VA to establish a national database of such identified individuals.

            VA strongly supports the goal of ensuring that those who have earned the right to burial in a national cemetery are accorded that honor.  VA commends organizations and volunteers who work to ensure that unclaimed and abandoned remains of our Nation’s Veterans are identified and, if eligible, receive a proper burial in a national cemetery.  To ensure that eligible Veterans receive burial in a national cemetery, VA currently works with States, counties, municipalities, and private organizations to determine the eligibility of unclaimed and abandoned remains that are held at funeral homes or coroner’s offices.  In this regard, VA’s National Cemetery Scheduling Office (NCSO) located in St. Louis, Missouri coordinates with Federal, State, and local agencies to verify a deceased individual’s identity and military service.  NCSO also provides eligibility review assistance to entities such as the Missing In America Project (MIAP), to identify unclaimed remains and inter all eligible individuals.  In FY 2011, NCSO processed 663 requests for burial eligibility determinations that were submitted by the MIAP, which works on behalf of entities, such as city and county coroners’ offices, to ensure eligible Veterans receive proper burial.  Currently, NCSO is working with the State of Oregon to identify unclaimed remains recently found in that state and determine whether such individuals may be eligible for burial in a national cemetery.

            VA does not, however, support this bill insofar as it would expand existing funeral and transportation benefits to certain non-Veterans and would place no cap on the amount of such payments.  Section 3(b) would require VA to pay the cost of the burial, preparation, and transportation of the unclaimed or abandoned remains of any individual who is eligible for national cemetery burial when there are insufficient resources to cover such expenses.  Under current law, VA provides reimbursement benefits, up to maximum amounts specified by statute, for funeral and transportation costs associated with the burial of certain Veterans, but not all Veterans who are eligible for burial in a national cemetery qualify for these benefits.  VA would support extending this benefit to all unclaimed remains of Veterans, subject to the same monetary caps generally applicable to such payments.  However, VA does not support the current bill insofar as it would provide benefits for non-Veterans that are unavailable for many Veterans eligible for burial in a national cemetery and would lift the generally applicable monetary caps for this benefit. 

Section 3(c) of the bill would direct VA to establish a database of the names of any Veterans or other individuals who are determined, under the identification process described in this bill, to be eligible for burial in a national cemetery.  We believe this provision is unnecessary.  Currently, VA maintains a publicly-accessible database, commonly known as the National Gravesite Locator (NGL), which already performs the functions proposed in this legislation.  The public can use the NGL to search for burial locations of Veterans and other individuals interred in VA National Cemeteries, State veterans cemeteries, and various other military and Department of the Interior cemeteries.  The NGL also provides information about Veterans buried in private cemeteries whose graves are marked with a Government-furnished headstone or maker.  Names of Veterans or other individuals who are eligible for burial and whose remains are unclaimed or abandoned would be made available to the public through the NGL once they are interred.  The National Cemetery Administration is working to make this database even more accessible by implementation of a mobile application.   

H.R. 2051 would impose ongoing costs on VA by extending entitlement to burial and transportation reimbursement benefits for a new category of individuals, without a monetary limit on the amount of such reimbursement.  However, VA presently is unable to estimate the likely extent of those costs.

H.R. 2498

            H.R. 2498, the “Veterans Day Moment of Silence Act,” would amend title 36 of the United States Code to add a provision requiring the President, each year, to issue a proclamation calling on the people of the United States to observe two minutes of silence on Veterans Day to honor the service and sacrifice of Veterans throughout the history of the Nation.  VA supports the goal of promoting recognition and respectful commemoration by all Americans of the service and sacrifice of our Nation’s Veterans.  We defer to Congress on the most appropriate means of accomplishing that goal.  There would be no VA costs associated with this bill.

H.R. 2377

            H.R. 2377, “The Rating and Processing Individuals’ Disability Claims Act” or the “RAPID Claims Act,” would amend 38 U.S.C. § 5101 to establish procedures for the expeditious adjudication of fully developed claims.  Section 2 of the bill provides that, if a claimant submits a fully developed claim, VA would provide the claimant with the opportunity to waive any claim-development period that would otherwise be available and would provide expeditious treatment of the claim.  A “fully developed claim” would be defined, in pertinent part, as one in which the claimant or the claimant’s representative certifies in writing that no additional information or evidence is available or needed in order for the claim to be adjudicated.  The term “expeditious treatment” would be defined to mean that the claim will be fully processed and adjudicated within 90 days after the date the Secretary receives the application for the benefit.  Section 3 of H.R. 2377 would revise 38 U.S.C. § 5104(b) to provide that, when VA denies a benefit sought, it will provide the claimant with “any form or application required by the Secretary to appeal such decision.”

VA does not support section 2 of this bill, as further statutory authority is not needed for VA to carry out its Fully Developed Claim (FDC) program.  Like the bill’s proposal, VA’s current FDC program is designed to expedite and complete such claims within 90 days of receipt.  VA has implemented the FDC program across all regional offices under the existing authority of 38 U.S.C. § 501(a)(4), which provides the Secretary’s authority to prescribe rules and regulations to include establishing the manner in which claims are adjudicated.  The Secretary has complied with the Veterans’ Benefits Improvement Act of 2008, Public Law 110-389, section 221(a), which directed VA to carry out a one-year pilot program to assess the feasibility and advisability of expeditiously processing fully developed compensation and pension claims within 90 days after receipt of the claim.  Based on the favorable results from the pilot, VA has expanded and fully implemented the program, thereby rendering H.R. 2377 unnecessary.  

We are also concerned that ambiguities in the bill text could lead to expansive and unintended interpretations by reviewing courts.  First, proposed section 5101(d)(1)(B) could be construed to require VA to adjudicate claims within 90 days even if the claimant does not actually waive applicable claim development periods.  This concern could be addressed by revising proposed paragraph (d)(1)(B) to state that VA will provide “expeditious treatment to such claim after the claimant has waived any claim development period otherwise available.”

Second, the purpose of proposed section 5101(d)(2) is unclear.  That provision states that, if a person submits written notification of his or her intent to submit a fully developed claim and, within one year of such notification, submits a fully developed claim, VA will provide expeditious treatment to the claim.  Because proposed paragraph (d)(1) of the statute would already require such expeditious treatment, proposed paragraph (d)(2) is unnecessary for that purpose.  On the other hand, if the purpose of proposed paragraph (d)(2) is to provide that the claimant’s initial notification to VA will be accepted as an “informal claim” for purposes of assigning an effective date to any award of benefits, the language of the bill does not clearly support that result.  We note that, under current regulations at 38 C.F.R. § 3.155(a), VA would accept the claimant’s initial notification as an informal claim if it indicated the benefit sought and an intention to apply for that benefit.

Third, the bill is unclear as to the standard VA would apply to determine that a claim submitted as a fully developed claim is not actually fully developed.  Because proposed section 5101(d)(4)(A) defines the term “fully developed claim,” ordinary principles of statutory construction suggest that VA should apply that definition.  However, that definition of “fully developed claim” is based solely upon the claimant’s representation that no further evidence is needed, and not upon VA’s judgment as to whether further evidence is needed.   This raises a question as to whether a VA finding that further evidence is needed would suffice to establish that the claim is not “fully developed” for purposes of the statute. 

VA does not oppose section 3 of this bill, which would amend section 5104 to require VA to provide claimants whose claims are denied with any form or application required to appeal the decision, although we consider this provision unnecessary.  Section 7105(b)(2) of title 38, United States Code, requires only that a notice of disagreement (NOD) be in writing, and VA currently does not require an NOD to be submitted on a specific form.  VA is testing an optional NOD form at its Houston Regional Office.  VA will assess any efficiencies the form might offer in determining whether to release it nationally.  VA anticipates that a standardized form will improve our processes.  Use of a form would clearly let VA know that an individual is in fact submitting an appeal.  It would also help clearly identify the appealed issues by requiring the appellant to be specific about what part of the decision he or she is appealing.  If VA does determine to require use of a standard NOD form, it would certainly make that form readily available to claimants.

There would be no benefit or administrative costs associated with this proposal.

H.R. 2717

            H.R. 2717 would direct the Secretary of Veterans Affairs, each year, to designate one city in the United States as an “American World War II City,” and would designate Wilmington, North Carolina as the initial American World War II City.  VA supports the goal of commemorating our Nation’s World War II efforts on both the battlefield and the home front.  We defer to Congress on the most appropriate means of accomplishing that goal.  There would be no significant VA costs associated with this bill.

H.R. 4213

            H.R. 4213 would amend 38 U.S.C. § 7255 to require that active judges of the U.S. Court of Appeals for Veterans Claims reside within 50 miles of the District of Columbia.  This bill would also amend 38 U.S.C. § 7253(f)(1) to provide that violation of this residency requirement may be grounds for removal of a judge from the court.  The absence of such a residency requirement in current law has not created difficulties for VA.  Accordingly, we perceive no need for this legislation insofar as VA’s interests are concerned.  This bill would result in no costs or savings for VA.

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