Vietnam Veterans of America (VVA) is pleased to submit this Statement for the Record concerning the discussion draft of a bill to be entitled the “Veterans Disability Benefits Claims Modernization Act of 2008.”

Certainly, no one can object to the purpose of this legislation:  “to ensure the accurate and timely delivery of compensation to veterans and their families and survivors.”  In its findings, Congress has identified the crux of the problem:  “The paper-based, labor-intensive [system of rating claims] employed by the Department [of Veterans Affairs] leaves many disabled veterans and survivors waiting months or years to receive the benefits they have earned.”

Nor can one dispute the premise of this bill:  that the VA “must modernize the claims processing system of the Veterans Benefits Administration to make it a first-class, veteran-centered system that uses 21st century technologies and paradigms and reflects the dignity and sacrifices made by disabled veterans, their families, and survivors.”

However, we caution that any legislation needs to take into account two factors.  First, what we will call the “null hypothesis,” that the laws as currently written are not inadequate; rather, the culture, processes, and regulations of the VBA, and its personnel, are the culprits behind the unconscionably long list of claims awaiting adjudication and the time it takes to rate them.  And second, that the regulation rewrite project currently being undertaken by VA personnel may embrace many of the recommendations of this legislation, as well as offer other recommendations that ought to be included in any legislation enacted by Congress.

Be that as it may, we will offer comments relevant to various sections of the proposed legislation.

Section 2.  Findings

(1)  In referring to the “nearly 24,000,000 American veterans,” it is perhaps more appropriate to say “veterans in America.”  Currently foreign nationals serving in the American military number in the hundreds if not thousands; upon discharge from active service, they do not automatically become “American veterans.”                                                      

(12)  Of the 345,713 veterans whom the Veterans Health Administration treated for Post-Traumatic Stress Disorder (PTSD), how many have filed claims for disability compensation?  How many were informed by VA staffers that they, in fact, could file?                                                       

(16)  No where in this section is it noted that the VA fails to consider cost of living differentials.  Other federal departments in fact do use locality pay.

Title I – Matters Relating to Modernizing the Disability Compensation System of [the] Department of Veterans Affairs. 

Sec. 102.  Study on Readjustment of Schedule for Rating Disabilities.

VVA has no objection for the Secretary of Veterans Affairs to commission a study “on adjusting the schedule for rating disabilities . . . so as to base the schedule on standards, practices, and codes in common use by the medical and disability profession[s].”

While this section notes that the Secretary may enter into a contract (page 7, line 14), this seems at odds with the language on page 9, lines 5-9, to wit:  “In conducting the study . . . the Secretary shall consult with appropriate public and private entities, agencies, and veterans service organizations, and shall employ consultants.”

VVA agrees with the determination of previous reports of relevant commissions that the ratings schedule should be adjusted “to take into account the loss of quality of life and loss of earnings that result from specific disabilities.”

(1)  On line 12, the word “profession” should be plural:  “. . . the medical and disability professions that . . .”

(2) (C)   We question, however, why direct a study to “examine whether disparities exist” with PTSD and other mental disabilities and not with other disabilities?

(E) (iii)  We would request clarification of this provision regarding “the extent to which benefits for veterans may be used to encourage veterans to seek and undergo vocational rehabilitation.”  It seems to us that this language is loaded for misinterpretation.                          

(5) (B)  There seems to be a misstatement of fact here, inasmuch as 1155 does not currently consider “the loss of quality of life.”  Certainly, any fix, or “modernization” of the disability benefits system needs to incorporate a measure to embrace quality of life.

(5) (H)  VVA agrees with providing, “to the maximum extent possible, the benefit of the doubt to veterans . . . in the absence of official military records pertaining to the service-connection of a veteran’s disability, and in particular, of post-traumatic stress disorder, when a determination of service-connection would be consistent with the duties, conditions, and hardships of service in the Armed Forces.”  More importantly to note, however, is that the regulations pursuant to section 1154 of title 38, United States Code, are in fact “consistent.”  The problem lies in that they are not applied consistently.

(b) (1)  Requiring the VA Secretary to submit to Congress “a plan to readjust the schedule for rating disabilities” in 120 imposes a very tight deadline.  If VA personnel are to get it right and do it right the first time, the VA must be accorded a more reasonable amount of time in which to prepare this plan.

(b) (1) (A)  Aligning the schedule with “best practices” needs leeway in the instance that a new treatment modality requires testing before the VA can consider employing it.

(b) (1) (D)  We are not quite sure just what the term “automated” means.  We do believe, however, that a creative use of modern electronic technology can be applied in the adjudication of claims, particularly in the realm of ensuring that all facets, or sections, of a claim are properly completed so that a rater can make a determination as to the viability of a claim and what percentage of disability ought to be granted.

(c) (2)  The three-year timeline for when the VA Secretary intends to readjust the schedule is, we believe, unrealistic.  Because of the potential for massive changes, for the need for notice and comment periods, this timeline should be extended based on input from VHA personnel and VSO service representatives who can offer their expert opinion.     

546.  Advisory Committee on Disability Compensation.

VVA is particularly pleased as to the charge to the VA Secretary, who “shall seek to ensure that members appointed to the [Advisory] Committee [on Disability Compensation] include individuals from a wide variety of geographic areas and ethnic backgrounds, individuals from veterans service organizations, individuals with combat experience, and women.”  This is a critical provision if the work and determinations of said committee are to be respected by the veterans community at large.

(a) (2) (B)  Language should be changed from “or” to “and/or” to wit:  “have experience with the provision of disability compensation by the Department and/or are leading medical or scientific experts in relevant fields.”

(b) (2) (B)  VVA believes that language pertaining to dependents and survivors “of veterans who have served in a theater of combat operations” needs to be included in this provision; also, to add “. . . veterans who have served in a theater of combat operations or area of hostilities as determined by DoD and the VA.”

(c) (1)  A clause on benefits due the survivors of veterans ought to be included in this section.

Sec. 103.  Study on Work Credit System of Veterans Benefits Administration.

(b)  There is too much wiggle room in language that specifies only that “the Secretary shall consider the advisability of implementing –“  This provision must be made mandatory for it to be effective.

(b) (3)  Why note two “classes” of veterans, the “severely injured” and the “very severely injured.”  What about others who have been disabled to a lesser, or even greater, extent, e.g., “catastrophically injured”?

(c) (1)  We are not convinced that a “new system” is required “for evaluating the work production of employees” of the VBA.  The bottom line is that the VBA needs enough experienced raters – and supervisors – to handle the ever-increasing caseload.  And these employees need the training and supervision to enable them to be productive, to meet realistic goals.  Now, raters seemingly are caught between the proverbial rock and hard place:  they are asked to accurately rate more cases faster.

(d) (1) (C)  Potential danger lurks in this language.  As VVA has testified before the Veterans’ Disability Benefits Commission, the “null hypothesis” needs to be considered:  What if the current system of laws and regulations really is valid and workable, but that the issue is, and problems arise because, the system is improperly implemented?

We might suggest adding language that directs VBA supervisors to properly triage cases for adjudication.  For instance, a relatively simple claim for tinnitus that comes in with all fields appropriately filled out ought not take more than 60 days to be processed fully.

We might suggest, too, that the VBA be required to use experienced raters to handle complex, multi-faceted cases, with teams of raters attuned to mental health issues assigned to handle PTSD and other mental health claims. 

Sec. 104.  Study on Work Management System.

In this section, VVA harkens back to our null hypothesis.  The VBA already has, but does not use, “a simplified process to adjudicate claims” [(b) (3)].  The VBA also has laws, rules, and regulations for “rules-based applications and tools for processing and adjudicating claims efficiently and effectively” [(b) (5)].

Attempting to develop “methods of reducing the time required to obtain information from outside sources” [(b) (6)] is complicated by the fact that stressor research is a major problem, one that cannot be “fixed” by a prescription in a provision.

Sec. 105.  Certification and Training of Employees of [the] Veterans Benefits Administration Responsible for Processing Claims.

7735.  Employee Certification.

(b)  VVA suggests that the Secretary shall require all employees and managers, not only “appropriate employees and managers . . . responsible for processing claims for benefits under the laws administered by the Secretary” to take a certification examination.  VVA submits, further, that VSO, state, and county service representatives should be required to take a certification exam as well.

Also, just what does the term “processing” mean here in context?  Does this include the copy clerks who run the copy machine?

(c)  Again, let’s not sweep out all facets of the current disability benefits system.  Part of the consideration must be questions as to the efficacy of implementation of laws and regs currently on the books.

(c) (2) (B)  This needs to be rewritten into readable English.  After reading it and rereading it, we still are not quite sure as to its meaning.

Sec. 106.  Annual Assessment of Quality Assurance Program.

(c) (1) (E)  Assessing the performance ought not be limited to employees and managers of the VBA.  Contractors and consultants should be added to this provision.

Sec. 107.  Expedited Treatment of Fully-Developed Claims and Requirement for Checklist to be Provided to Individuals Submitting Incomplete Claims.

5109C.  Expedited Treatment of Fully-Developed Claims.

(a)  A fully developed claim ought to take well under 90 days to adjudicate.  Perhaps this needs to read to the effect that initially such a claim must be completed within 90 days.  Within two years(?), however, this must be reduced to 60 days, an eminently reasonable amount of time.

(b)  What if  claimant waives his/her rights? 

(c) (1) (A)  The assumption that a claim will be fully developed if a claimant has “received assistance from a veterans service officer, a State or county veterans service officer, an agent, or an attorney” is misplaced.  Such representation simply does not ensure that a claim is fully developed.  The reality is that just as there are service officers, agents, and attorneys who are competent and dedicated, there also are service officers, agents, and attorneys whose competence and knowledge must be questioned.  (This is another reason why these folks should be required to take, and pass, a certification exam.)                               

(c) (1) (B) (2)  In addition to said certification being signed by a claimant, his/her service representative should also be compelled to sign as well, sort of like your accountant does who prepares your taxes.

Sec. 108.  Study and Report on Employing Medical Professionals to Assist Employees of [the] Veterans Benefits Administration.

(a)  It should be noted that the VBA already uses the services of these professionals.  And the term “medical professionals” ought not be repeated four times in the first sentence in this clause.

Sec. 109.  Assignment of Temporary Disability Ratings to Qualifying Veterans.

1156.Temporary Disability Ratings.

VVA endorses the concept of assigning temporary disability ratings.  Because this provision has the potential for abuse, it must be carefully structured and enforced.  We do question, though, why a “qualifying veteran” is one who “has been discharged from active duty service for 365 days or less” [(b) (1)].  Why limit this to one year?

(d) (2)  Placing a 30-day time limit for VA personnel to “review each pending claim for disability compensation . . . [to] determine whether the claimant submitting each such claim is entitled to a partial disability rating” is a bit restrictive and could prove quite onerous and could even hamstring the VA.  How many such claims are there?

Sec. 110.  Review and Enhancement of Use of Information Technology at Veterans Benefits Administration.

(b) (1)  VVA endorses the use of “rules-based processing and information technology systems and automated decision support software at all levels of processing claims.”  Appropriate software can, we believe, be developed expeditiously – or can be adapted from software currently available.  Even with the inevitable kinks in introducing such IT into the claims adjudicating and rating process, this is an initiative that ought to be undertaken.  It is past time for the VBA to enter the 21st century.

(b) (3)  “Survivors” needs to be added to the litany of active-duty members of the Armed Forces, veterans, and their dependents.

(b) (7)  VVA is particularly supportive of making available “on the Internet website of the Department, of a mechanism that can be used by a claimant to check on the status of any claim submitted by that claimant.”

Sec. 111.  Treatment of Claims Upon Death of Claimant.

5121A.  Substitution in Case of Death of Claimant.

(a)  VVA endorses the proposal that, if “a veteran who is a claimant dies while a claim for any benefit under a law administered by the Secretary is pending and awaiting adjudication, the person who would receive any accrued benefits due to the veteran . . . shall be treated as the claimant for the purposes of processing the claim to completion.” We believe, however, that placing a cut-off of one year from the date of the veteran that such person may only submit new evidence in support of the claim is too restrictive.  For example, it can take far longer than one year to obtain a copy of a ship’s deck log for a specific date.

(b)  What if two individuals are eligible?

Title II – Matters Relating to United States Court of Appeals for Veterans Claims.

7288.Annual Report

(10)  With regard to “the number of cases pending longer than 18 months,” the Court should be required to enumerate the reasons why these cases have been pending for so long.  Simply providing a number doesn’t tell the whole story.