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Kerry Baker

Kerry Baker, Disabled American Veterans, Associate National Legislative Director

Mr. Chairman and Members of the Subcommittee: 

I am pleased to submit for the record, the views of the Disabled American Veterans (DAV) on the various bills under consideration today. In accordance with its congressional charter, the DAV’s legislative mission is focused on benefits and services provided to veterans because of service-connected disabilities. We are therefore pleased to support the bills insofar as they fall within that scope. The DAV does have mandates from its membership to support issues addressed within H.R. 3249 and H.R. 3286. However, the DAV does not have mandates from its membership regarding issues within H.R. 3047, H.R. 3415, and H.R. 1137, but we have no objection to their favorable consideration as long as they support the DAV’s mission. 

H.R. 3249

During the most recent DAV National Convention, our members voted to again adopt a long-standing resolution calling for an increase in burial allowance, which seems worthy of mention considering the objective of this commendable legislation. This bill is consistent with the recommendation of the The Independent Budget (IB) on this issue. The IB is a budget and policy document that sets forth the collective views of the DAV, American Veterans (AMVETS), the Paralyzed Veterans of America (PVA), and the Veterans of Foreign Wars of the United States (VFW).

The “Veterans Burial Benefits Improvement Act of 2007” would increase the funeral expense allowance for a veterans death, resulting from non-service connected causes, from $300 to $1,270, including those veterans whose death occurs in a Department of Veterans Affairs facility. This Act would also increase funeral expenses for veterans whose death results from service-connected causes from $2,000 to $4,100, and would increase burial plot allowances from $300 to $745. Additionally, this Act would allow for an annual adjustment in accordance with Section 5312(a) of title 38, United States Code, which equates to increases in accordance with title II of the Social Security Act (42 U.S.C. 401 et seq.) that is indexed to the cost of living. Overall, H.R. 3249 is very beneficial as it helps to ensure that veterans have access to a dignified burial that provides the level of honor they deserve. The DAV fully supports this beneficial legislation.

H.R. 3286

During the most recent DAV National Convention, our members voted to adopt a resolution calling for a reduction in the 10-year period currently required for a veteran to receive compensation at the 100-percent rate before a surviving spouse can, in most circumstances, received dependency and indemnity compensation (DIC). This resolution is worthy of mention considering the objective of this commendable legislation.

This legislation would reduce the period of time for which veterans must be rated totally disabled for purposes of DIC benefits under Section 1318(b) of title 38, United States Code. If enacted, this legislation would reduce the current 10-year period to one year. In many situations wherein the Department of Veterans Affairs (VA) rates a veteran totally disabled, the veteran’s household income is severely compromised due in large part to the veteran’s spouse having to care for the veteran. In these circumstances, the spouse must usually give up his or her career. In the case of elderly veterans, the surviving spouse is unable to return to the workforce after the veteran’s passing due to his/her own age and/or disability. In these circumstances, when the veteran does pass away, the surviving spouse is not entitled to any of the veteran’s disability compensation, which can leave the surviving spouse destitute and bankrupt. 

Enactment of this legislation would prevent these inexcusable hardships from being forced onto a surviving spouse of a veteran whose service-connected disabilities rendered him or her totally disabled. Ultimately, those who stand on the battlefield and face the terrifying horrors of war, do so with the highest honor. Many are left totally disabled and must therefore depend on their spouses for care, and their government for income, in order to live their lives with a notion of that same honor. This legislation, which DAV fully supports, would ensure that totally disabled veterans’ spouses continue to live with some of the honor their veteran spouses portrayed on the battlefield.

H.R. 3047

The “Veterans Claims Processing Innovation Act of 2007” would (1) revise the work credit system for VA Regional Offices (ROs) of the Veterans Benefits Administration (VBA); (2) require VA to implement electronic processing of claims utilizing artificial intelligence; (3) substitute a surviving spouse of a veteran, whose submission of a claim for benefits is not complete at the time of his or her death, as the claimant for VA benefit purposes; and, (4) require the Secretary of Veterans Affairs (Secretary) to enter into a contract with a private entity for the purpose of evaluating the quality assurance of benefits programs that are required to be included, in accordance with Section 7734 of title 38, United States Code, in the annual report of the Secretary.

The DAV fully supports a VA work credit system wherein priority for rating accuracy and personnel accountability are at least on equal parity with that of productivity. We agree with the inference that VA’s current work credit system is focused more on productivity than accuracy and accountability.  However, DAV is concerned that this portion of the bill as currently written, portrays, with all due respect, a certain disconnect with the reality of how multifaceted the VA’s benefits delivery system has become, particularly when considering the various types of claims a beneficiary may file, the various stages of development and decision-making within each claim, and the potential changes that can occur at any particular stage of the claim. We believe that merely withholding work credit until the appellate period expires or the Board of Veterans’ Appeals issues a final decision on appeal, will not be able to account for accuracy at every stage in the process, particularly those non-rating actions performed by claims developers, adjudicators, authorizers, etc, whose work credit is fixed to the claim but not necessarily to the rating decision. 

Currently, VA utilizes over 50 pending end product codes[1] for a multitude of actions.  The number of end product codes may be further expanded by using “modifiers” that designate specific “issues” for types of claims within a certain broader category. The VA’s end product codes are used in conjunction with its productivity and work measurement system. The productivity system is the basic system of work measurement used by Compensation and Pension (C&P) Service for report and tracking purposes. This system provides a comparison between work generated and available resources. The work measurement system provides a measure of effectiveness by comparing standard hours generated from completed end products, formal training time and other measured hours with available labor resources[2]

Quantitative measurement is also a tool utilized in preparing budget forecasts and in distributing available staffing. Quantitative and productivity measurement are also tools used in comparing and tracking employment of resources. Both productivity measurement and work measurement are tools available to management for this purpose. Quantitative measurement also allows Central Office and Area Offices to compare stations and to track both local and national trends. Productivity measurement and work measurement are complementary measurement systems that each depend, in part, on VA’s end product code system. The end product code system is further used in determining work credit provided to VA’s employees.

Additionally, VA’s end product codes are also utilized in the VA’s Systematic Technical Accuracy Review (STAR) program. The STAR system is VBA’s national program for measuring compensation and pension claims processing accuracy. In the STAR program, a sample is drawn each month from a regional office workload divided between rating, authorization, and fiduciary end products. For example, a monthly sample of “rating” related cases generally requires a STAR review of “10” rating-related end product.[3] Therefore, one can easily distinguish the significant importance placed on productivity over and above the priority placed on accuracy. For this reason, DAV fully supports the intent of the legislation at hand.

However, we feel the legislation, as written, does not take into account the significant interplay between VA’s work credit system, which utilizes completion of pending end product codes, and the foregoing measurement systems and STAR program, which also utilize completion of pending end product codes. Nonetheless, because of the positive intent of this legislation, the DAV would welcome the opportunity to discuss this issue in more depth. We would look forward to working hand-in-hand with Congress, as well as any necessary VA officials, in order to help achieve an outcome that satisfies the intent of Congress, improves the lives of disabled veterans, and assists VA in the success of each. 

Regarding the implementation of an electronic claims’ processing system using artificial intelligent, the DAV is not opposed to VA utilizing a test facility to begin implementation of artificial intelligence on an experimental and limited basis. The DAV’s support on this issue at present, is limited to the foregoing on this novel idea. Further, the DAV would appreciate an opportunity to participate in any effort to development such technology, and would further appreciate an opportunity to participate in the experimental phase once such technology has been introduced. 

The DAV does not oppose legislation that would allow a veteran’s surviving spouse to be substituted as the VA claimant when a veteran’s death occurs priors to him or her filing a complete claim for benefits. Likewise, the DAV does not oppose legislation that would strengthen the VA’s training and assessment programs as the complexity of VA’s benefits delivery system is continuously evolving into a complex legal structure. The DAV would welcome an opportunity to consult with VA and/or any private entity responsible for development of such program. 

H.R. 1137 and 3415

The purpose of H.R. 1137 is to amend Section 1562(a) of title 38, United States Code, to increase the amount of the Medal of Honor special pension from $1,000 to $2,000. The DAV does not oppose increasing this special pension rate, particularly for those wartime veterans whose acts of uncommon bravery and selfless sacrifice have earned them the highest possible military honor of this great Nation.

The DAV does not oppose H.R. 3415. This bill would authorize the placement of memorial markers in a national cemetery for commemorating servicemembers or other persons whose remains are interred in an American Battle Monuments Commission cemetery.

H.R. 3954

The “Providing Military Honors for our Nation’s Heroes Act” would, if enacted, authorize the Secretary to reimburse a veterans’ service organization, or other organization approved by the Secretary, for transportation and other expenses in which the Secretary determines appropriate when such expenses are incurred in connection with details for voluntary funeral honors. Under this legislation, the Secretary would be responsible for promulgating regulations for carrying out these functions.

The bill would assist volunteers across the Country that routinely go above and beyond the call of duty to ensure their fellow veterans are buried with the honor they deserve. These volunteers cover much of the expenses associated with these honors on their own. The DAV believes that this legislation would help to ensure more veterans across this nation receive access to military funeral honors upon their death than do currently. Therefore, the DAV does not oppose this legislation as it rightfully helps to provide the kind of final farewell our nations’ veterans deserve. 

The Veterans Quality of Life Study Act of 2007

The “Veterans Quality of Life Study Act of 2007” (the “Act”) would (1) require the Secretary to enter into a contract with the institute of medicine (IOM), or similar entity, to conduct a study analyzing the extent to which VA’s Schedule for Rating Disabilities (the “Rating Schedule”) accounts for, or should be amended or expanded to account and compensate for loss of quality of life due to a veteran’s service-connected disability or disabilities; (2) replace a veteran’s beneficiary as the claimant for purposes of claims pending at the time of the veteran’s death; (3) modify the required annual workload report of the Court of Appeals for Veterans Claims (Court); and (4) require the General Services Administration (GSA) to report on the feasibility of leasing additional space for the Court within its current location, the impact of such action upon the other tenants within the Court’s current location, and based on such impact, the cost of constructing a new facility as the Veterans Courthouse and Justice Center.

The DAV does not oppose the Act’s requirement that the Secretary contract with an entity, preferably the IOM, to conduct a quality of life study. While the DAV does not have a resolution from its members on this specific topic, we do however have two resolutions that would apply, but only in certain worst-case scenarios. DAV resolution number 056 opposes any change that would, inter alia, redefine service-connected disability. DAV resolution 061 opposes any recommendation by any commission to reduce or eliminate benefits for disabled veterans. However, the likelihood of the Act imposing such radical suggestions seems rather miniscule.

The DAV also noted that the “Veterans’ Disability Benefits Commission,” (the “Commission”) established by Public Law 108-136, the National Defense Authorization Act of 2004, suggested that VA compensate service-connected disabled veterans for, inter alia, the impact disabilities have on a veteran’s quality of life. The Commission listed the following as one of its eight principles that should guide the development and delivery of future benefits for veterans and their families:  “Benefits and services should be provided that collectively compensate for the consequence of service-connected disability on the average impairment of earnings capacity, the ability to engage in usual life activities, and quality of life.” The DAV supports the Commission’s recommendation and therefore does not oppose the Act’s requirement for a quality of life study insofar that it complies with the recommendation of the Commission. The DAV also appreciates the committee’s willingness to take into account advice from veterans’ service organizations on how to manage any changes for veterans’ disability compensation. We look forward to actively contributing to the Committee’s work on improving disability benefits for all veterans.

Section three of the Act would allow a beneficiary to replace a veteran as the claimant for VA purposes when the veteran dies prior to the complete adjudication of a pending claim for benefits from the VA. This legislation is similar, although not identical, to section four of the foregoing legislation, H.R. 3047. The DAV is not opposed to this legislation.

Many veterans’ claims, especially those in appellate status, linger for years before final and favorable disposition. Currently, when filing a claim for accrued benefits following the death of a veteran with a pending claim before the VA, a surviving spouse or other beneficiary must start the VA’s long procedural quagmire of its claims process from the beginning. Such requirement disregards how long the claim has been pending or how close the VA is to completing the claim. For decades, the VA’s archaic requirement that a surviving spouse recreate the proverbial wheel of a veteran’s claim upon his or her death has caused countless surviving spouses innumerable hardships—many of which would be eliminated by this beneficial legislation. 

Section four of the Act would require the Court to amend its annual report to Congress summarizing its workload. While the DAV does not have a resolution on this specific topic concerning the Court, we do not oppose this legislation.

As with the VA, the greatest challenge facing the Court is the backlog of appeals. Due to long delays in claims processing at the VA, it can take years for appeals to reach the Court. A significant number of disabled veterans are elderly and in poor health, and many do not live to witness resolution to their claims.

Over the years, the Court has shown a reluctance to reverse errors committed by the Board. Rather than addressing an allegation of error raised by an appellant, the Court has a propensity to vacate and remand cases to the Board based on an allegation of error made by the Secretary of Veterans Affairs (Secretary) for the first time on appeal, such as an inadequate statement of reasons or bases in the Board decision. Another example occurs when the Secretary argues, again for the first time on appeal, for remand by the Court because VA failed in its duty to assist the claimant in developing the claim notwithstanding the Board’s express finding of fact that all development is complete. Such actions are particularly noteworthy because the Secretary has no legal right to appeal a Board decision to the Court.[4]

Further, once the Court remands a case based on error by the Board, unlawfully alleged by the Secretary, the Court will generally decline to review alleged errors raised by an appellant that actually serve as the basis of the appeal. Instead, the Court remands the remaining alleged errors on the basis that an appellant is free to present those errors to the Board even though an appellant may have already done so, leading to the likelihood of the Board repeating the same mistakes on remand that it had previously. Such remands leave errors by the Board, and properly raised to the Court, unresolved; reopens the appeal to unnecessary development and further delay; overburdens a backlogged system already past its breaking point; exemplifies far too restrictive and out-of-control judicial restraint; and inevitably requires an appellant to invest many more months and perhaps years of his or her life in order to receive a decision that the Court should have rendered on initial appeal.  As a result, an unnecessarily high number of cases are appealed to the Court for the second, third, or fourth time.

In addition to postponing decisions and prolonging the appeal process, the Court’s reluctance to reverse Board decisions provides an incentive for the VA to avoid admitting error and settling appeals before they reach the Court. By merely ignoring arguments concerning legal errors rather than resolving them at the earliest stage in the process, the VA contributes to the backlog by allowing a greater number of cases to go before the Court. If the Court would reverse decisions more frequently, we believe the VA would be discouraged from standing firm on decisions that are likely to be overturned or settled late in the process.

Therefore, to provide Congress with an accurate measure of the Court’s performance, section 4(a)(4) of the Act should be amended to require the Court to submit an annual report to Congress that includes:  (1) The number of BVA decisions affirmed; (2) the number of dispositions based on (a) joint motion for remand, and (b) settlement; (3) the number of dispositions both reversed and remanded by a single judge decision; and (4) the number of voluntary dismissals. The draft legislation should also be amended to require the Courts annual report to include the number of single-judge decisions by “each” judge, the number of cases appealed to the Court more than once, and the number of appellants who die while awaiting a decision from the Court. This additional data will allow Congress to more accurately assess the Court’s workload and its need for additional resources.

Actions that fall under category two and four are of an administrative nature and are generally accomplished by the Clerk of the Court.  The Court’s judges must accomplish categories one and three, thus presenting the information in this suggested format would give Congress a clearer picture of (1) the Court’s accomplishments and (2) its failures. 

We appreciate the Committee’s interest in these issues, and we appreciate the opportunity to present the DAV’s views, which we hope will be helpful.

[1] M21-4, App. A, Glossary of Terms and Definitions. Manpower Control and Utilization in Adjudication Divisions (Pending End Product: “A claim or issue on which final action has not been completed.  The classification code identified refers to the end product work unit to be recorded when final disposition action has been taken.”).

[2] See M21-4, Ch. 5, § 5.02.

[3] See M21-4, Ch. 3, § 3.02.

[4] 38 U.S.C.A. § 7252(a) (West 2002) (“The Court of Appeals for Veterans Claim shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals. The Secretary may not seek review of any such decision.”)