MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

Thank you for the opportunity to present the views of the National Organization of Veterans’ Advocates, Inc. (“NOVA”) on the “Veterans Disability Benefits Claims Modernization Act of  2008.”

NOVA is a not-for-profit § 501(c)(6) educational organization incorporated in 1993 and dedicated to train and assist attorneys and non-attorney practitioners who represent veterans, surviving spouses, and dependents before the Department of Veterans Affairs (“VA”), the United States Court of Appeals for Veterans Claims (“CAVC”) and before the United States Court of Appeals for the Federal Circuit (“Federal Circuit”).

NOVA has written many amicus briefs on behalf of claimants before the CAVC and the  Federal Circuit.  The CAVC recognized NOVA’s work on behalf of veterans when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000. 

The positions stated in this testimony have been approved by NOVA’s Board of Directors and represent the shared experiences of NOVA’s members as well as my own fifteen-year experience representing claimants at all stages of the veteran’s benefits system from the VA Regional Offices to the Board of Veterans’ Appeals to the CAVC as well as before the Federal Circuit.

Overall, NOVA supports the provisions contained in the “Veterans Disability Benefits Claims Modernization Act of  2008” (“the Act”).  The legislators and their staff are to be commended for their concerted efforts to fix and update the VA’s benefits system.  However, NOVA has suggestions regarding various sections.  Accordingly, this statement will deal with the sections of the Act seriatim.

NOVA recognizes the intent behind Section 101; that is, to provide significant assistance to veterans who have been diagnosed with PTSD after military service and who were in a combat zone where they were exposed to “stressors”, but who have difficulty proving they “engaged in combat with the enemy” due to the nature of their military service.  However, as it exists now,  Section 101 will not bring about its intended purpose.  At present, 38 U.S.C. § 1154(b) does not provide a presumption that a veteran is entitled to benefits for a service connected injury or disorder even for those veterans who the VA concedes engaged in combat with the enemy. Rather, 1154(b) has been interpreted as providing only a presumption of service incurrence which still requires proof of medical nexus, Dalton v. Nicholson, 21 Vet. App. 23 (2006).

In order to accomplish the intended result, Section 101 needs the following addition at line 22 of p. 6 :

“(3) by adding at the end the following new paragraph:

‘(3) In the case of a veteran who has been diagnosed with PTSD after military service and who engaged in combat with the enemy as defined in (2) above, a connection between PTSD and active military service shall be presumed and may be rebutted only by clear and convincing evidence to the contrary.’

It would be an obvious inequity to apply this liberalizing change only to pending claims, thus excluding veterans who saw considerable combat in a theater of combat operations, but are unable to prove it.  Accordingly, the effective date provisions, p.6 ,line 24, et.seq., should state that this section is to be applied retroactively.

Concerning Section 102, NOVA supports adjustment of the schedule of ratings and ensuring parity between the rating of mental and physical disabilities, especially regarding total disability.  Additionally, NOVA supports the Veterans’ Disability Benefits Commission’s two specific recommendations (4.1 and 7.6) that veterans receive an immediate 25% increase in disability payments for loss of or impairment in quality of life.  Accordingly, NOVA recommends inserting a new Section 102(b) which would specifically require a 25% increase in current disability payments to reflect the loss or impairment in quality of life and that proposed Section 102(b) be renumbered 102(c). 

Concerning Section 102(d), NOVA supports the creation of an Advisory Committee on Disability Compensation and suggests that the eighteen committee members include 1-2 veteran advocates from the private sector.  Such inclusion will ensure that the issues integral to veterans’ disability compensation are considered from all relevant perspectives.

NOVA supports, generally, Sections 103 and 104, regarding the VA’s work credit and work management systems, respectively and supports the suspension of the work credit system upon failure of the VA to implement a replacement system within a stated time frame.  Although it may seem draconian to require suspension of the work credit system, NOVA has, by citing to the 2005 OIG report in our prior testimony, highlighted the effect of rewarding the quantity versus quality of decisions made and its impact on the VA’s backlog.  For obvious reasons, NOVA recommends that the mandated studies should be performed by either the Office of Inspector General or the General Accounting Office, rather than by the VA.

NOVA supports Section 105 to the extent that it requires certification and training of VBA employees. NOVA notes an apparent typographical error at p.21, line 23 which should read “§ 7735 Employee Certification and Training.” Substantively, NOVA recommends inserting a specific training requirement by amending Line 25, et seq, to read as follows: “The Secretary shall provide appropriate semi annual training sessions of  ten hours each involving VA regulation and Court decisions for appropriate employees and managers of the Veterans Benefits Administration and shall require such employees...”

NOVA supports Section 106, Annual Assessment of Quality Assurance.

Although NOVA generally supports Section 107, Expedited Treatment of Fully Developed Claim, because of the value of expeditiously deciding claims that require no further development, NOVA is wary of the language contained in page 28.  Specifically NOVA foresees the likelihood that VA may utilize this language to support the assertion that the unsuspecting veteran waive the right to adequate development of the claim.  In many cases, a veteran who is not represented by an attorney or a well-trained veteran’s advocate is not fully aware or informed of the legal significance of  a waiver.  To require the veteran waive further assistance or development is a dangerous, ill-advised procedural short-cut.

NOVA questions the feasibility of Section 108, the use of medical professionals to assist VBA employees, because of the danger that the medical professionals may – by default and, or contrary to the intent and language of the statute – become the person who rates and evaluates the claim.  Moreover, there is a strong likelihood that the selected medical professional will be from QTC, a company with which VA contracts to conduct medical evaluations.  However, veterans repeatedly report to NOVA members that QTC-employed medical professionals perform medical examinations that tend to be inadequate, deficient, unprofessional and, or biased.  Thus, if medical consultants are to be utilized, the statute should specifically require that all communication (written and oral) between VBA employees and the medical consultants be documented, available in the VA claims file, and the veteran be notified that such consultation was part of the development and, or adjudication of their claim.

While suggesting the use of medical consultants, Congress should also recommend that the VA implement a “treating physician’s rule” similar to that which as has been enacted by the Social Security Administration (“SSA”).  The SSA treating physician rule contained in SSR 96-2p: http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-02-di-01.html  provides that if a treating source’s medical opinion is well-supported and not inconsistent with the other substantial evidence in the record, then it must be given controlling weight, i.e., it must be adopted.

Recognition by the VA that treating physicians have unique insight into the veteran’s

medical condition(s) is long overdue.  A treating physician rule would be beneficial to both the veteran and the VA.  The veteran benefits because the opinion of the medical professional with the most complete knowledge about the veteran’s condition would be given “greater weight” and would provide the VA decision maker with valuable information regarding the etiology and, or severity of the veteran’s medical condition.  The treating physician would also help counter the opinion of a VA physician who examined the veteran on only one occasion and typically for less than 30 minutes.  The VA would also benefit because claims for VA benefits would be decided more efficiently since any issue regarding conflicting medical reports would be resolved easily by using a treating physician rule.

Partial disability ratings which are contained in Section 109 are supported by NOVA.

NOVA supports that portion of Section 110 which provides for automated decision support software and electronic examination templates.  However, although NOVA questions the utility of utilizing Artificial Intelligence, the ability of the veteran to check on the status of a claim on the web, contained in (b)(7) is a good idea.

Section 111, involving substitution where claimant dies while a claim is pending is long overdue.  NOVA assumes that the intent is to apply § 5121A to claims which are pending in the Court or before the VA, and to eliminate uncertainty in that regard, recommends that the language “before the VA or a Court” be inserted at page 36, line 6, after “adjudication.”  NOVA also recommends deleting the language at lines 6-7, “the person who would receive any accrued benefits” and substituting the language “ the person who would receive any accrued benefits or the adult children of the claimant”.  This revision would hopefully correct the current disparate treatment experienced by adult children when their mother or father has predeceased the veteran, thereby precluding any family member from being eligible to receive accrued benefits.

In view of its status as an Article I Court, and the resulting need for Congressional oversight, NOVA supports the reporting requirements imposed upon the CAVC which are contained in section 201. Additionally, NOVA recommends that the court be required to report on the time that elapses from when the case is fully briefed until the Court renders its disposition.

NOVA also supports section 202.  Moreover, NOVA views the deleted provisions requiring the Court to decide all assignments of error raised by an appellant as appropriate and essential.  This provision is appropriate because of the CAVC’s status as an Article I Court, and is essential because, as NOVA has asserted on previous occasions, the CAVC’s practice of narrowly deciding appeals is a major contributing factor to veterans’ repeat visits to the Court and to the Court’s ever-increasing caseload.  This provision may appropriately be founded on the distinction between this Article I Court which renders narrow decisions in cases which frequently return to the Court raising the same errors, and Article III Courts which tend to decide appeals containing one issue which is unlikely to return.  Finally, to deal with the Court’s concern about unnecessarily being required to decide Constitutional claims the following language could be inserted in the provision dealing with the Best/Mahl issue: “except that Constitutional arguments need not be decided if the appeal could be resolved by deciding the other assignments of errors raised.”