Witness Testimony of Zachary Hearn, Deputy Director for Claims, Veterans Affairs and Rehabilitation Commission, The American Legion
Chairman Runyan, Ranking Member Titus and distinguished Members of the Subcommittee, on behalf of Commander Dellinger and the 2.4 million members of The American Legion, I thank you and your colleagues for the work you do in support of our service members and veterans as well as their families. The hard work of this Subcommittee in creating significant legislation has left a positive impact on our military and veterans’ community.
H.R. 2018 – Honor Those Who Served Act of 2013
To amend title 38, United States Code, to identify the persons who are eligible to request headstones or markers furnished by the Secretary of Veterans Affairs, and other purposes.
This legislation expands the allowable persons who may request headstone markers commemorating deceased veterans to indicate their veteran status to include military researchers, local historians and the like. In many cases, long removed from the period of service, veterans from prior wars may not have recognition of their service on their headstone markers. Concerned citizens may seek to ensure those veterans receive their proper honors and recognition.
The American Legion has been supportive of ensuring all veterans, even those who have been forgotten by time, receive the honors due to them according to their service. Veterans who have served their country deserve to be buried with respect and honors. This legislation would help aid in that recognition.
The American Legion supports the passage of this legislation.
To direct the Secretary of Veterans Affairs to carry out a pilot program to establish claims adjudication centers of excellence.
In order to address the backlog of veterans’ disability claims and to prevent future such backlogs, this legislation aims to create multiple “Centers of Excellence” (COEs) as pilot programs throughout the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The program would set aside twelve VA Regional Office (VARO) claims adjudication centers, designated as the three highest performing VAROs in each of the four areas of the VBA. Performance in these offices would be based on a measurement of quality and accuracy as well as average number of days pending.
Each COE would focus on one medical condition selected by the Secretary, attempting to address conditions that are the most complex and time consuming, provided they occur commonly enough to support the work of the centers. One would assume these conditions would include medical issues such as Posttraumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Gulf War Illnesses, Diabetes, and other multi-symptomatic disorders. If working these claims did not engulf all of the employees’ time, they would be permitted to adjudicate other claims.
Employees at the COEs would receive special, targeted training and undergo examinations to certify expertise.
The aim of improving the quality of decisions, particularly on complex conditions, is admirable. The American Legion certainly thinks some of the notions included in this legislation, such as targeted training for areas of special complexity concurrent with expertise certifying examinations, have promise for improving VBA’s overall quality in adjudicating claims.
However, The American Legion is deeply concerned that the consolidation of work at these COEs is the wrong path, as evidenced by nearly every previous time VA has attempted to improve the system by consolidating efforts.
In January 2002, VBA consolidated the work of pension into three Pension Maintenance Centers (PMCs) in St. Paul, Milwaukee and Philadelphia. Rather than improving speed and accuracy of pension claims, backlogs have become the norm. American Legion service officers used to be able to walk upstairs to talk to VBA employees and come to a quick resolution for pension applicants (who are perhaps the most vulnerable and financially imperiled of veterans). Once consolidated into centers, communication became nearly impossible. Even with service officers co-located in the PMCs, it can be difficult to work through issues by communicating with VA employees. The problem has only been compounded by adding death benefits to the work of these centers.
In recent years, the influx of Nehmer claims related to the addition of new Agent Orange presumptive conditions prompted VBA to consolidate work on the Nehmer claims. Despite this consolidation, VA officials came before Congress many times to point out how the entire system of benefits claims had been set back. The large delays and increases in the backlog were blamed on the Nehmer claims, even though they had been consolidated to centralize processing, ostensibly to alleviate just these concerns.
Time and time again, consolidation has not worked and has not been beneficial. By reducing the ability of top offices to have these excellence teams work on claims outside the purview of their specific medical issue, VBA would be forced to broker more work. Amongst The American Legion’s cadre of over 2,900 accredited service officers, brokering is universally hailed as one of the worst programs utilized by VBA to address the backlog. All brokering does is create more barriers to communication, and throw up more roadblocks in the path of success.
During the development of the Veterans Benefits Management System (VBMS) VBA officials assured stakeholders that their service officers would see improved communications with VA on veterans’ claims by utilizing electronic message systems within VBMS. We were told we could call out specific notes in a veteran’s file and communicate directly back and forth to address issues. Needless to say, this functionality is not currently present in the system.
Taking some of the most critical claims out of the VAROs and away from the strong communication between VA employees and service officers to resolve difficulties with claims, would be a step back in the move to improve the claims process.
The American Legion supports efforts to improve the claims processing system, and applauds the ideas included in this legislation to develop specialized training on the most complicated issues. Training, with the critical feedback mechanism of testing for expertise certification, could benefit not just employees in a few centers of excellence, but employees in all regional offices. Consolidating these employees is not a solution The American Legion can support however. These changes need to be implemented universally across the entire system.
The American Legion does not support the passage of this legislation.
H.R. 2119 – Veterans Access to Speedy Review Act
To amend title 38, United States Code, to improve the opportunity for veterans to use video conferencing for hearings before the Board of Veterans' Appeals.
A veteran who has appealed their disability claim to the Board of Veterans Appeals (BVA) is entitled to have their case heard before the presiding authority, a veterans’ law judge (VLJ). These hearings can be conducted in a variety of manners. They could be a physical, in person hearing at the BVA in Washington, DC. They could be a traveling Board hearing, where a VLJ physically travels to a VA Regional Office (VARO) to conduct a series of hearings. It could also take the form of a video-teleconference (VTC) hearing. This legislation, in the interest of improving scheduling times, would allow the BVA to determine what the speediest option for providing that hearing would be, and allows veterans to petition BVA for a different type if that is their choice. If the veteran petitions for a different type, the bill states the BVA “may” grant such request.
The American Legion has several concerns about this process. We are certainly sympathetic to the problems of scheduling, which lead to long delays. American Legion service officers report that travel board hearings often take place in a once yearly window, which greatly adds to delays in the appeals process. It is not always practical for a veteran to travel to Washington, DC, although that may be an excellent option for veterans who happen to live on the Eastern seaboard.
For some veterans, especially those of an older generation including Korean War and World War II veterans, meeting with people face to face matters. It is perhaps ironic that those veterans, who may have the least time to wait, often must wait longest for their hearings to take place. In person hearings can make a difference, especially in certain cases including mental disorders, certain visible physical disabilities, and skin disorders may not translate as well to video. American Legion service officers have noted that despite the roll out of the Veterans Benefits Management System (VBMS) they do not always have access to a claims file to review to prepare for accompanying veterans to the VTC hearings. Conducting a hearing in which a veteran’s advocate does not have full access to the information in the claims file is not in the best interest of the veteran, nor is it the full due process to which that veteran is entitled.
Obviously, given time, VA may reach a point with VBMS that alleviates concerns about access to a veteran’s file. They are not at that point currently. With perhaps further clarification, the provision of this bill which allows for veterans to appeal for an in person hearing if they so choose could allow for veterans to get the hearing that is right for them. As the provision currently states the BVA “may” grant such a request, The American Legion is concerned this review process may be conducted not with the interests of what is best for the veteran in mind, but what is best for BVA. That cannot be the aim.
It is the understanding of The American Legion that the bill could be amended to change the “may” language to “shall” language. Such a change would ensure a new system that provides more timeliness to the process by allowing the BVA to set the fastest default venue for the veteran’s hearing, but fully protect veterans who choose a different venue with full knowledge that their choice would add time to their process, but still meet the criteria best suited to that individual veteran.
The claims system is designed to serve veterans who have been disabled. While measures that make things easier for VA may ultimately help veterans, we must always be mindful of putting the needs of the veterans first. The American Legion agrees there may be ways to improve speed and provide incentives for veterans to utilize a system that takes advantage of technology to assist them in a more timely decision on their appeal. However, the rights of the veteran to receive their time before a judge, to have a human being hear their words describing how they came to be disabled in service to this country -- that right must be protected. The American Legion would like to work in concert with the committee and VA to find a way to implement improvements to the process, but ensure that this is done in a way mindful of fully protecting the rights of the veteran appellants.
The American Legion supports the passage of this legislation (with the noted reservation).
H.R. 2529 – Veteran Spouse Equal Treatment Act
To amend title 38, United States Code, to amend the definition of the term `spouse' to recognize new State definitions of such term for the purpose of the laws administered by the Secretary of Veterans Affairs.
The American Legion is a grass roots organization that derives its operational mandate from resolutions passed by membership. The American Legion has no resolution addressing this legislation.
The American Legion has no position on this legislation.
H.R. 3876 – Burial With Dignity for Heroes Act of 2014
To amend title 38, United States Code, to direct the Secretary of Veterans Affairs to carry out a grant program to provide burials for homeless veterans.
This legislation proposes a grant program to provide for the burial in national cemeteries of homeless veterans with no next of kin. The American Legion has a long history of ensuring all of our nation’s heroes receive the honors they deserve in burial. Since 2007, The American Legion has worked with the Missing in America Project (MIAP) to locate, identify and inter the unclaimed remains of American veterans through a variety of means. During the past seven years, veterans have worked with state, local and federal authorities to ensure no one is left behind. Furthermore, The American Legion has been deeply involved in reducing the national scourge of veteran homelessness, assisting the efforts of VA and other agencies to bring the numbers down to fewer than 58,000 homeless veterans from figures totaling more than 75,000 veterans in 2010.
The American Legion has long been supportive of efforts to reach out to homeless veterans, as well as efforts to provide recognition and honors to the forgotten fallen.
The American Legion supports the passage of this legislation.
H.R. 4095 – Veterans Compensation Cost-of-Living Adjustment Act of 2014
To increase, effective as of December 1, 2014, the rates of compensation for veterans with service-connected disabilities and the rates of dependency and indemnity compensation for the survivors of certain disabled veterans, and for other purposes.
The American Legion strongly supports a periodic cost-of-living adjustment (COLA) for veterans reflective of increased expenses due to inflation and other factors. However, there are many factors currently being considered regarding the calculation of COLA that merit discussion.
Within The American Legion’s Code of Procedures, accredited representatives are advised under no circumstances should they cause harm to veterans’ claims for benefits. Current provisions contained in the President’s 2014 proposed budget, as well as in amendments to other bills that have been introduced from time to time, would replace the current Consumer Price Index (CPI) used to calculate increases to Social Security COLA with a so-called Chained CPI (C-CPI). Through chaining VA benefits to the new C-CPI and COLA for Social Security benefits, the veteran community would indeed be harmed. On December 19, 2012, Dean Stoline, Deputy Director of The American Legion Legislative Division, stated that a chained CPI is misguided policy and “would have significant deleterious effect on the benefits of millions of veterans”.
There is a long term negative effect upon the veteran community should Congress mandate a C-CPI approach to determining COLA increases. According to a press release from Sen. Sanders’ office, the proposal would cut VA disability benefits for a 30-year-old veteran by more than $13,000 a year by age 45, $1,800 a year by age 55, and $2,260 a year by age 65. Senior citizens who retire by age 65 would see their Social Security benefits reduced by about $650 a year by the time they reach 75, and more than $1,000 a year when they turn 85. These cuts would certainly place many veterans and their families’ economic security in peril.
By resolution “The American Legion support[s] legislation to amend title 38, United States Code, section 1114, to provide a periodic COLA increase and to increase the monthly rates of disability compensation; and…oppose[s] any legislative effort to automatically index such [COLA] adjustments to the [COLA] adjustment for Social Security recipients, non-service connected disability recipients and death pension beneficiaries.” The opposition to direct and automatic connection to the Social Security policies reflects the understanding that veterans and specifically disabled veterans represent a unique subsection of the American community, and their unique concerns should receive individual consideration when determining the need for periodic increases for cost of living.
The American Legion also raises objection to the practice of “rounding down” to the next lower whole dollar amount as noted in Section 2(c)(2). The American Legion does not support this policy of shortchanging America’s veterans.
The American Legion encourages Congress to seriously examine the disastrous long term negative consequences of C-CPI for veterans. The long-term negative effects created through permitting C-CPI for VA benefits could cause serious financial harm to millions of veterans.
The American Legion supports an increased Cost-of-Living Adjustment for veterans, but would like to see the legislation amended to ensure veterans’ COLA is protected from being changed to reflect a C-CPI model to the detriment of disabled veterans.
To amend title 38, United States Code, to clarify that the estate of a deceased veteran may receive certain accrued benefits upon the death of the veteran, and for other purposes.
This legislation would clarify the process of substitution in the case of a veteran’s claim where the veteran passes away before final adjudication of the claim. The American Legion is a grass roots organization that derives its operational mandate from resolutions passed by membership. The American Legion has no resolution addressing this legislation.
The American Legion has no position this legislation.
To amend title 38, United States Code, to authorize the Secretary of Veterans Affairs to enter into enhanced-use leases for excess property of the National Cemetery Administration that is unsuitable for burial purposes.
The American Legion recognizes there are situations in which land owned or controlled by the Department of Veterans Affairs is not suitable for the purposes it was intended for. However, The American Legion also believes it is important that Congress restrict Enhanced Use Leasing (EUL) authority to “a priority list of services that will meet the needs of the veteran community”
This legislation, affecting only excess property unsuitable for burial for National Cemetery Administration (NCA) purposes, is acceptable in that it does not adversely impact capacity of the NCA for burial. Section 1(a)(2)(B) amends the EUL authority to include “other purposes.” The American Legion would want it noted, in accordance with Resolution 129 as noted above, that these “other purposes” must adhere to a list of services that meet the needs of the veterans’ community. While EUL is a vital tool and can be helpful to VA operations overall, it must be in the service of veterans.
The American Legion supports (with noted reservation) the passage of this legislation.
H.R. 4191 – Quicker Veterans Benefits Delivery Act
To amend title 38, United States Code, to improve the treatment of medical evidence provided by non-Department of Veterans Affairs medical professionals in support of claims for disability compensation under the laws administered by the Secretary of Veterans Affairs, and for other purposes.
This legislation aims to improve how private medical evidence submitted by veterans is handled within the VA claims system. The bill provides a better definition of “sufficient complete” medical evidence, and importantly alters VA’s authority from the current state where the VA “may” accept the evidence to a state where the VA “shall” accept the evidence. The bill also calls for a report on the progress of the Acceptable Clinical Evidence Initiative.
The American Legion has over 2,900 accredited service officers nationally assisting veterans with their claims. A large percentage of those service officers report frustrations as VA routinely ignores favorable private medical evidence submitted by the veteran and instead schedules unnecessary exams. These VA exams contribute to the backlog of claims by causing needless delays. When the medical evidence of record submitted by the veteran is sufficient to grant a claim, the veteran shouldn’t have to wait through months of backlogged appointment slots to get an appointment with a doctor who will see her for a brief exam. Veteran’s own physicians spend years treating the veteran and interacting with them. They provide critical insight into the overall health picture of the veteran. With the proper use and acceptance of private medical evidence, VA can reduce much of the necessary waiting time in the claims process and deliver decisions to veterans utilizing the private evidence that are more timely and more accurate.
There is one additional item pursuant to private medical evidence The American Legion believes it is important to raise. Currently, under VHA Directive 2007-024, if a veteran’s primary care provider is a VHA physician, that physician’s assistance is limited to “recording of observations on the current medical status of the veteran found in the medical record, including their current functional status.” The American Legion believes private medical opinions are extremely helpful to the process, and would urge for Directive 2007-024 to be amended to specifically allow VA primary care physicians to provide supporting medical opinions, including opinions related to causation of a condition, when it is medically possible to do so.
The American Legion supports the passage of this legislation.
 Resolution 24 “Identify, Honor and Inter Unclaimed Remains of Veterans” MAY 2007
 Resolution 24 “Identify, Honor and Inter Unclaimed Remains of Veterans” MAY 2007
 Resolution No. 178: Department of Veterans Affairs (VA) Disability Compensation, AUG 2012
 Resolution 129 “The Department of Veterans Affairs Enhanced-Use Leasing” AUG 2012
 Resolution 175 “National Cemetery Administration”
 Resolution 24 “Medical Opinions Provided by the Department of Veterans Affairs (VA) Primary Care Providers” OCT 2008